Jenkinson v. Department of Natural Resources

• Decision Date: 05 June 1987
• Docket Number: Docket No. 88658
• Citation: 406 N.W.2d 302,159 Mich.App. 376
• Court: Court of Appeal of Michigan — District of US
• Parties: Alice JENKINSON, Personal Representative of the Estate of Gregory Michael Jenkinson, deceased, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee. 159 Mich.App. 376, 406 N.W.2d 302

Page 302

406 N.W.2d 302

Alice JENKINSON, Personal Representative of the Estate of Gregory Michael Jenkinson, deceased, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.

Docket No. 88658.

159 Mich.App. 376, 406 N.W.2d 302

Court of Appeals of Michigan.

Submitted Nov. 4, 1986.

Decided April 20, 1987.

Released for Publication June 5, 1987.

[159 MICHAPP 377] Becker & Van Cleef, P.C. by Frank G. Becker, Dearborn, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Eric J. Eggan, Asst. Atty. Gen., for defendant-appellee.

Before HOLBROOK, P.J., and ALLEN and CLULO, ^* JJ.

PER CURIAM.

Plaintiff's decedent, Gregory Michael Jenkinson, drowned while wading at the Bald Mountain State Recreation Area public beach. The recreation area is owned and operated by defendant State of Michigan Department of Natural Resources. On May 7, 1981, plaintiff filed this action against the DNR alleging that plaintiff's decedent's death was the direct and proximate [159 MICHAPP 378] result of defendant's negligence. ¹ On July 28, 1981, the Court of Claims denied defendant's motion for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8). Subsequently, on October 31, 1985, the court granted defendant's motion for summary disposition under MCR 2.116(C)(7) on the basis that plaintiff's claim was barred by governmental immunity, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), and by the recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485. Plaintiff appeals as of right. We hold that the action against the DNR is barred by both statutes and, therefore, affirm the decision of the Court of Claims.

In order to plead a valid claim against a government agency, the plaintiff must plead facts in avoidance of governmental immunity. McCann v. Michigan, 398 Mich. 65, 77, 247 N.W.2d 521 (1976). This is accomplished by stating a claim which fits within one of the legislatively ² or judicially created exceptions to governmental immunity or by pleading facts which demonstrate that the activity alleged is not in the "exercise or discharge of a governmental function" within M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). McCann, supra; Veeneman v. Michigan, 143 Mich.App. 694, 698, 373 N.W.2d 193 (1985), lv. gtd. 424 Mich. 876 (1986).

In the instant case, plaintiff contends that the operation of a swimming beach is not a governmental function subject to immunity. See Feliciano [159 MICHAPP 379] v. Dep't of Natural Resources, 97 Mich.App. 101, 293 N.W.2d 732 (1980). We find that Feliciano, which was decided prior to the Supreme Court's decision in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), and was effectively overruled by Ross. In Ross, the Court adopted the following definition of "governmental function":

"We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in Sec. 13) or falls within one of the other statutory exceptions to the governmental immunity act." Ross, supra, p. 620, 363 N.W.2d 641.

In this case, the state's operation of Bald Mountain Recreation Area is an activity which is expressly mandated or authorized by statute. M.C.L. Sec. 318.3 et seq.; M.S.A. Sec. 13.1011 et seq. See also Const.1963, Art. 10, Sec. 5 and M.C.L. Sec. 299.3; M.S.A. Sec. 13.3, which provides that the DNR shall provide outdoor recreational facilities. The recreational activity at issue here is clearly not proprietary in nature and does not come within any of the statutory exceptions to governmental immunity. We therefore conclude that plaintiff's claim against the state is barred by governmental immunity. Contrary to plaintiff's assertion Ross has limited retroactive effect and is applicable to this case. Hyde v. University of Michigan Board of Regents, 426 Mich. 223, 230, 393 N.W.2d 847 (1986).

Nor do we find plaintiff's claim under the recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, a viable one. That statute provides:

[159 MICHAPP 380] "No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee."

The recreational use act has been held to be applicable to publicly owned lands. Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982); Graham v. Gratiot County, 126 Mich.App. 385, 337 N.W.2d 73 (1983); Lucchesi v. Kent County Road Comm., 109 Mich.App. 254, 312 N.W.2d 86 (1981); Syrowik v. Detroit, 119 Mich.App. 343, 326 N.W.2d 507 (1982); McNeal v. Dep't of Natural Resources, 140 Mich.App. 625, 364 N.W.2d 768 (1985). In the instant case, plaintiff's complaint failed to allege or even plead defendant's gross negligence or wilful and wanton misconduct. Hence her claim under this statute must fail. See, e.g. Matthews v. Detroit, 141 Mich.App. 712, 367 N.W.2d 440 (1985), lv. den. 422 Mich. 978 (1985).

Finally, plaintiff's claims that the nuisance and public buildings exceptions are applicable to this case are without merit. Although plaintiff contends in her brief on appeal that she sought leave to amend her complaint in the lower court to allege intentional nuisance and the public buildings exception, the lower court record lacks any papers or hearing transcripts to support this. We find that, since plaintiff did not properly raise her claims...