Knapp v. City of Dearborn, Docket No. 19543

• Decision Date: 25 March 1975
• Docket Number: Docket No. 19543,No. 1,1
• Citation: 60 Mich.App. 18,230 N.W.2d 293
• Parties: Lorraine KNAPP, a minor, by her next friend, Raymond Kanpp, and Raymond Knapp, individually,Plaintiffs-Appellants, v. CITY OF DEARBORN, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 293

230 N.W.2d 293

60 Mich.App. 18

Lorraine KNAPP, a minor, by her next friend, Raymond Kanpp and Raymond Knapp, individually,Plaintiffs-Appellants, v. CITY OF DEARBORN, Defendant-Appellee.

Docket No. 19543.

Court of Appeals of Michigan, Division No. 1.

March 25, 1975.

Rehearing Denied April 25, 1975.

Released for Publication June 26, 1975.

Lopatin, Miller, Bindes & Freedman by Michael A. Gantz, Detroit, for plaintiffs-appellants.

Garan, Lucow, Miller, Lehman, Seward & Cooper by George J. Parish, Detroit, for defendant-appellee.

Before D. E. HOLBROOK, P.J., and DANHOF and KAUFMAN, JJ.

D. E. HOLBROOK, Presiding Judge.

This action was instituted for damages for injuries sustained to the minor plaintiff, Lorraine Knapp, on the premises of Camp Dearborn, a camp operated by the defendant, City of Dearborn, a municipal corporation.

On or about July 15, 1973, the minor plaintiff herein, while attempting to use a manual water pump permanently affixed on the premises of the defendant, injured herself due to a defective condition of that pump, when the pump handle broke off and struck the plaintiff minor herein.

A complaint was filed in the Wayne County Circuit Court on or about October 22, 1973, and on November 8, 1973, an answer was filed by the defendant, setting forth the affirmative defense of governmental immunity.

On January 18, 1974, a motion for accelerated judgment based on GCR 1963, 116.1(2), that the court lacks jurisdiction of the subject matter, and GCR 1963, 117.2(1), that the opposing party has failed to state a claim upon which relief can be granted, was filed by the defendant claiming that the defendant is immune from suit by reason of governmental immunity. M.C.L.A. § 691.1407; M.S.A. § 3.996(107). The motion was heard on February 1, 1974, and granted. On February 4, 1974, an accelerated judgment of no cause of action was signed by the court and filed. Plaintiffs appeal from the accelerated judgment and raise ten issues, the first eight having to do with various aspects of the constitutionality of the Michigan governmental immunity statute. M.C.L.A. § 691.1407; M.S.A. § 3.996(107). ¹

We choose to incorporate these first eight issues into one, wherein plaintiffs claim that the statute conferring immunity from tort liability on governmental agencies is unconstitutional because it is repugnant to notions of equal justice because it is an invalid exercise of police power, its application unreasonably burdens free access to the courts, constitutes a deprivation of property without just compensation, and because it creates an arbitrary distinction between tortfeasors and injured persons.

These claims have been presented to the courts of our state many times and some quite recently with the result being negative as to plaintiffs' position. This Court has stated on several occasions, and most recently in In re Jones Estate, 52 Mich.App. 628, 631, 218 N.W.2d 89, 91--92 (1974):

'The law on the subject of governmental immunity is uncertain at the present time, and it is of doubtful value to give a detailed recitation of past decisions and statutes. Nullification or modification, if it is to come, must emanate from the Supreme Court or the Legislature.' (Fn. omitted.)

At the time of the decision in In re Jones, there were four cases pending before the Supreme Court for determination on various aspects of this problem. They were: McCann v. Michigan, 47 Mich.App. 326, 209 N.W.2d 456 (1973); Curry v. Detroit, 49 Mich.App. 240, 211 N.W.2d 559 (1973); Pittman v. City of Taylor, Court of Appeals order No. 14881, and Pichette v. Manistique Public Schools, 50 Mich.App. 770, 213 N.W.2d 784 (1973), with leave held in abeyance pending the outcome of Curry, supra, and Pittman, supra. The Pichette v. Manistique Public Schools, Supreme Court No. 55472, order 3/27/74.

Until we have further word from the Supreme Court concerning this matter, we are constrained to follow precedent and rule that the governmental immunity statute is constitutional.

Plaintiffs have discussed in issue IX the fact that in the case of Lykins v. Peoples Community Hospital, 355 F.Supp. 52 (E.D.Mich., 1973), ² it was the rule that the operation of a municipally owned hospital providing medical service to the public for a fee is a proprietary function as opposed to a governmental function. Judge John Feikens of the United States District Court, Eastern District, Southern Division of Michigan, stated in his opinion:

'This court is of the opinion that to follow the Pre-Williams (v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1) case law and to define 'governmental function' to include the operation of a public hospital might raise a constitutional problem. There appears no rational basis to distinguish liability for services delivered by a public hospital and liability for the same services when provided by a private or charitable hospital. Cf. Parker v. Port Huron Hospita, 361 Mich. 1, 105 N.W.2d 1 (1960). If, for example, in a given situation a person is taken to a hospital for treatment and actionable negligence occurs, the success of a subsequent cause of action against that hospital might well turn on whether the hospital was public or private. Such a result would place a particular burden on those who are served by public hospitals. Thus, if 'governmental function' is interpreted to include public hospital services, the Legislature may have established a classification which might not pass constitutional muster.

'This court must follow 'the rule that a statute should be interpreted, if fairly possible, in such a way as to Free it from not insubstantial constitutional doubts.' Lynch v. Overholser, 369 U.S. 705, 710--711, 82 S.Ct. 1063, 1067, 8 L.Ed.2d 211(215--216) (1962). By defining the phrase 'governmental functions' to exclude the day-to-day operations of a public hospital this court not only respects the plain meaning of the phrase but avoids a possible constitutional problem.

'Therefore, as a matter of law this court holds that defendants PCHA and its operating unit, Beyer Memorial Hospital, may not urge governmental immunity as a defense in this case.'

Also see numerous cases cited in said decision.

This brings us to a very important issue of whether the City of Dearborn, when operating its park and charging a fee therefor, is acting in a proprietary function. This issue has not been briefed in this appeal except as stated herein. We now turn to the complaint of plaintiffs in the trial court and find the following:

'2. That the defendant herein, CITY OF DEARBORN, is a municipal corporation, existing under and by virtue of the laws and statutes of the State of Michigan and that, at all times pertinent herein, and insofar as is herein relevant, the said defendant was engaged in the proprietary function of owning and operating a recreational facility known as Camp Dearborn, located in the County of Wayne, State of Michigan.

'3. That the defendant herein, CITY OF DEARBORN, a municipal corporation, did invite the general public, including your plaintiff minor to enter the aforesaid Camp Dearborn recreational facility and did hold themselves out as conducting a place of business thereat that was safe and proper and where no harm would come to the general public, in particular your plaintiff minor as a result of defects and dangers contained therein.'

The defendant answered as follows:

'2. Answering Paragraph Two, defendant admits its municipal corporation status, but further denies that it was engaged in a proprietary function as alleged, for the reason that it is untrue and, therefore, leaves plaintiffs to their proofs.

'3. Answering Paragraph Three, defendant admits operating a recreational facility by the name of Camp Dearborn, but denies that it operates a business as stated and denies that there were any defects or dangers within said recreational facility for the reason that it is untrue and therefore, leaves plaintiffs to their proofs; as to the remaining allegations, contained in said paragraph, defendant neither admits nor denies same, not having sufficient information upon which to form a belief and therefore leaves plaintiffs to their proofs.'

Defendant attached an affidavit to the motion for accelerated judgment stating in effect that in operating the park no profits had been realized. M.C.L.A. § 691.1413; M.S.A. § 3.996(113), reads:

'The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the state for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1, 1965.' 1964 P.A. 170, § 13, Eff. July 1, 1965.

The fact that the city had not as yet experienced a profit in operating the park does not of itself...