Lee by Lee v. School Dist. of City of Highland Park, Docket No. 58658

• Decision Date: 07 October 1982
• Docket Number: Docket No. 58658
• Citation: 324 N.W.2d 632,6 Ed. Law Rep. 816,118 Mich.App. 305
• Parties: Valerie LEE, a minor by her next friend, Paul LEE, Plaintiff-Appellant, v. SCHOOL DISTRICT OF the CITY OF HIGHLAND PARK, Defendant-Appellee. 118 Mich.App. 305, 324 N.W.2d 632, 6 Ed. Law Rep. 816
• Court: Court of Appeal of Michigan — District of US

Page 632

324 N.W.2d 632

Valerie LEE, a minor by her next friend, Paul LEE Plaintiff-Appellant, v. SCHOOL DISTRICT OF the CITY OF HIGHLAND PARK Defendant-Appellee.

Docket No. 58658.

118 Mich.App. 305, 324 N.W.2d 632, 6 Ed. Law Rep. 816

Court of Appeals of Michigan.

Submitted May 17, 1982.

Decided July 20, 1982.

Released for Publication Oct. 7, 1982.

[118 MICHAPP 306] Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P. C. by Kathleen L. Bogas, Detroit, for plaintiff-appellant.

Ogne, Jinks, Ecclestone & Alberts, P. C. by Frederick G. Ecclestone and Stephen T. Moffett, Troy, for defendant-appellee.

Before CAVANAGH, P. J., and KAUFMAN and BENSON ^*, JJ.

PER CURIAM.

Plaintiff appeals by right from an order of summary judgment in favor of defendant school district based upon the doctrine of governmental immunity. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107).

Plaintiff alleges that on May 4, 1966, when she was a four-year old preschool student at defendant's Lincoln School, she was injured when a ping-pong table fell upon her. According to plaintiff, the table was leaning against a wall at a 45 degree angle in a playroom adjoining her classroom. She alleges she was told by her teacher to tell other students not to play behind the table. While plaintiff was relaying the message to the other children, the table fell upon her. Plaintiff suffered a broken left hip and was placed in a cast [118 MICHAPP 307] running from her waist to her left foot and right knee. She claims that her left knee has since occasionally given out and that she has fallen twice.

On appeal, plaintiff contends: (1) that the daily operation of a public school system is not a governmental function; and (2) that, if the operation of a public school system is a governmental function, the claim here falls within the public building exception to the governmental immunity doctrine. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106).

All governmental agencies are immune from tort liability in all cases where they are engaged in the exercise and discharge of governmental functions. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). In considering the meaning of the term "governmental function", this Court has consistently applied the test formulated by Justice Moody in his "swing vote" opinions in Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), and Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978). According to Justice Moody, the term "governmental function" is limited to those activities sui generis governmental--of essence to governing.

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government's ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune." Parker v. Highland Park, supra, 404 Mich. at 200, 273 N.W.2d 413.

[118 MICHAPP 308] In applying this test, our Court has consistently found that the operation of a public school system is a governmental function: that is, it involves an activity, fulfilling the public's educational needs, that can only be effectively accomplished by the government. As stated in Deaner v. Utica Community School Dist., 99 Mich.App. 103, 108, 297 N.W.2d 625 (1980):

"Operation of a public school presents factors similar to those relied on by Justice MOODY to distinguish mental hospitals from general hospitals. The government plays a pervasive role in the area of education, appropriating substantial state funds to that field and declaring education as a public policy. See Const 1963, art 8, Secs. 1 & 2. The number of private schools is inadequate to meet the educational needs of the public. Finally, while private schools exist to educate some students, the provision of a free and universal education is a uniquely governmental function. Therefore, we would find that the trial court was correct in granting summary judgment to the school district based on governmental immunity."

See also, Belmont v. Forest Hills Public Schools, 114 Mich.App. 692, 319 N.W.2d 386 (1982); Bokano v. Wayne-Westland Community Schools, 114 Mich.App. 79, 318 N.W.2d 613 (1982); Cobb v. Fox, 113 Mich.App. 249, 317 N.W.2d 583 (1982); Everhart v. Board of Education of the Roseville Community Schools, 108 Mich.App. 218, 221, 310 N.W.2d 338 (1981); Churilla v. East Detroit School Dist., 105 Mich.App. 32, 35, 306 N.W.2d 381 (1981). We are in accord with the analysis employed by these opinions and conclude that the operation of a public school system is a governmental function.

The building exception to the doctrine of governmental immunity is stated in M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) which provides in part:

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