Jones v. Williams

• Decision Date: 23 November 1988
• Docket Number: Docket Nos. 91602,92550
• Citation: 431 N.W.2d 419,172 Mich.App. 167
• Parties: , 50 Ed. Law Rep. 168 Henrietta JONES, as Next Friend of Curtis Jones, Plaintiffs-Appellees and Cross-Appellant, v. Rolly WILLIAMS and the Board of Education for the City of Detroit, Defendants-Appellants, and North Idaho Junior College, Defendant/Cross-Appellee, and Fred Snowden, jointly and severally, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 419

431 N.W.2d 419

172 Mich.App. 167, 50 Ed. Law Rep. 168

Henrietta JONES, as Next Friend of Curtis Jones Plaintiffs-Appellees and Cross-Appellant, v. Rolly WILLIAMS and the Board of Education for the City of Detroit, Defendants-Appellants and North Idaho Junior College, Defendant/Cross-Appellee and Fred Snowden, jointly and severally, Defendant.

Docket Nos. 91602, 92550.

Court of Appeals of Michigan.

Submitted Nov. 4, 1987.

Decided Aug. 3, 1988.

Released for Publication Nov. 23, 1988.

Quinn, Borella & Stockton, P.C. by Jerome G. Quinn, and Gromek, Bendure & Thomas by David J. Wright and Neal G. Villhaver, of counsel, Detroit, for plaintiffs-appellees and cross-appellant.

Reynolds, Beeby, Magnuson & Kenny, P.C. by Renee Vintzel Loridas, Detroit, for Rolly Williams and North Idaho Junior College.

Edward F. Bell and Associates, P.C. by Cynthia K. Yott, Detroit, for Detroit Bd. of Educ.

Before GILLIS, P.J., and HOLBROOK and ANDREWS, ^* JJ.

PER CURIAM.

Plaintiff commenced this action on August 14, 1981, alleging that defendants herein, with others not relevant to this appeal, acted in concert to exploit the basketball talents of Curtis Jones, now mentally incompetent, in derogation of duties they had to assist him in furthering his education.

Defendant City of Detroit Board of Education appeals by leave granted from the trial court's order of April 4, 1986, denying its motion for summary disposition for failure to state a claim upon which relief could be granted and governmental immunity. We reverse.

Plaintiff cross-appeals as of right from the trial court's order of December 3, 1982, granting accelerated judgment as to defendant North Idaho Junior College (NIJC) also known as North Idaho College. We affirm.

Defendant Rolly Williams appeals by leave granted from an order of March 21, 1986, denying his motion for summary disposition for failure to state a claim upon which relief could be granted and governmental immunity. We reverse, finding no jurisdiction by this state.

Plaintiff alleges that, by the fourth grade, defendant school board discovered Curtis Jones was intellectually deficient and would require special education in a school for slow learners. So placed, he graduated to a similar junior high school where he developed a talent for basketball. Plaintiff claims that, once this talent became known, he was transferred into regular Detroit junior high and high school programs solely to exploit that talent. Graduated from Northwestern High School in 1968, Jones attended NIJC where, he claims, he was to play basketball while being "academically carried" for two years, whereupon he was to attend the University of Michigan on the same terms until he played out his eligibility. Plaintiff claims that defendants knew of Curtis Jones' intellectual limitations and his inability to perform academically in college and that he could neither read nor write. Plaintiff claims that during his second year at NIJC Jones was subjected to such ridicule by students who had discovered his illiteracy that he suffered a complete nervous breakdown from which he has not recovered.

Defendant school board moved for summary disposition on the grounds that plaintiff failed to state a claim upon which relief could be granted and that, in any event, plaintiff's claims were barred by governmental immunity. The trial court denied the motion except as to plaintiff's 42 U.S.C. Sec. 1983 claim. We reverse that part of defendant's motion which was denied. When bringing suit against a state agency, plaintiff must plead in avoidance of governmental immunity. Hoffman v. Genesee County, 157 Mich.App. 1, 403 N.W.2d 485 (1987), lv. den. 428 Mich. 902 (1987). Boards of education have traditionally been classified as state agencies for tort liability purposes. Here, plaintiff did plead in avoidance of governmental immunity.

The substantive rights and liabilities of parties are determinable according to the law as it stood when the causes alleged by the plaintiff accrued. Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965). Plaintiff's cause of action arose in January, 1970, when the last element necessary to the cause of action occurred. Sovereign immunity was first codified by the Legislature in 1964, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq. Section 7 of 1964 PA 107 was declared unconstitutional in Maki v. City of East Tawas, 18 Mich.App. 109, 170 N.W.2d 530 (1969), aff'd 385 Mich. 151, 188 N.W.2d 593 (1971). Thus, statutory immunity, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), does not apply to shield defendant school board from tort liability. Campbell v. Detroit, 51 Mich.App. 34, 214 N.W.2d 337 (1973). The constitutional defect was corrected by 1970 PA 155, effective August 1, 1970. However, causes of action arising before this date were governed by this Court's common-law decisions. Pittman v. City of Taylor, 398 Mich. 41, 46, 247 N.W.2d 512 (1976). Although Pittman abrogated the common-law doctrine of governmental immunity, the ruling was prospective "with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity has been made and preserved." Id. at 45, 247 N.W.2d 512. The Court in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), addressed that language in Pittman and stated that "Pittman, however, has limited applicability. Only those cases pending or filed as of November 23, 1976, involving causes of action arising before August 1, 1970 (the date Sec. 7 became effective), could take advantage of the demise of common-law sovereign immunity." Ross at 607, n. 23, 363 N.W.2d 641. Compare Rozier v. Dep't of Public Health, 161 Mich.App. 591, 411 N.W.2d 786 (1987), lv. den. (abrogation of common-law immunity announced in Pittman would be applicable to all cases started after November 23, 1976, regardless of when the cause of action arose). The Rozier panel, however, failed to address the language of Ross. We are bound to follow Ross, and, therefore, hold that defendant school board is entitled to claim that common-law governmental immunity applies.

We must now decide which definition of common-law immunity applies. When plaintiff's claim accrued in January, 1970, "the state enjoyed immunity from tort liability ... whenever it was engaged in the exercise or discharge of a governmental function." Ross, 420 Mich. at 608, 363 N.W.2d 641. "Governmental function" has been defined in a variety of ways. Plaintiff, in raising the issue of governmental immunity in her pleadings, pled in avoidance of it under the definition found in Ross. Plaintiff properly preserved the issue through appeal, at all times arguing under Ross. Under Hyde v. University of Michigan Bd. of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986), "the rules articulated in Ross apply to all cases ... pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved." Id. at 230, 393 N.W.2d 847. In addition, Ross states: "These nine cases require us to reexamine the extent of immunity from tort liability which the governmental tort act, M.C.L. Sec. 691.1401et seq.; M.S.A. Sec. 3.996(101) et seq., and the common law provide to the state and its agencies." Ross, 420 Mich. at 591, 363 N.W.2d 641 (emphasis supplied). Thus, we apply the Ross definition of "governmental function." Under Ross, a governmental function is any "activity which is expressly or impliedly mandated or authorized by constitution, statute or other law." 420 Mich. at 620, 363 N.W.2d 641. Defendant school board would be immune from suit because it was performing a function authorized by constitution and statute. See, Const.1963, art. 8, Secs. 1, 2, M.C.L. Sec. 380.1 et seq.; M.S.A. Sec. 15.4001 et seq., M.C.L. Sec. 380.1289; M.S.A. Sec. 15.41289. Even under the "common good of all" test of governmental function at common law, it is clear that high school sports as part of the secondary education process is a governmental function. Richards v. Birmingham School Dist., 348 Mich. 490, 509-510, 83 N.W.2d 643 (1957), overruled on other grounds, Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961).

Immunity applies not only to negligence, but also to intentional torts if they are committed within the scope of a governmental function. Smith v. Dep't of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987). This Court should focus on the general activity involved rather than the specific conduct. Id. at 607-610, 410 N.W.2d 749. In this case, the general activity was the maintenance of an interscholastic basketball program as a part of the general secondary education process. "Intent" is used to distinguish governmental function from nongovernmental functions, not to distinguish the nature of the tort. Id. at 611, 410 N.W.2d 749. Again, under common law, intentional torts were not an exception to governmental immunity. Moreover, a governmental agency will not be vicariously liable for a tort committed by its officer, employee, or agent, acting during the course of employment and within the scope of authority while engaged in an activity which constituted the exercise or discharge of a governmental function. Ross, 420 Mich. at 625, 363 N.W.2d 641. Those individuals employed by defendant school board must be deemed to have been cloaked with the apparent authority to act as they did and they were acting within the scope of their employment. In addition, defendant school board's employees and agents were engaged in an activity which is a governmental function. Therefore, defendant school board is not vicariously liable for any tort which may have been committed by it or its employees or agents against Curtis Jones.

Next, plaintiff cross-appeals from an order granting accelerated judgment to defendants North Idaho Junior College and its President, Barry G. Schuler, on the grounds that...