Lovitt v. Concord School Dist.

Decision Date13 February 1975
Docket NumberNo. 2,Docket No. 19657--8,2
Citation228 N.W.2d 479,58 Mich.App. 593
PartiesDorothy I. LOVITT, Administratrix of the Estate of David Lovitt, Deceased, Plaintiff-Appellant, v. CONCORD SCHOOL DISTRICT et al., Defendants-Appellees. Joyce R. CECIL, next friend of Brian T. Cecil, a minor et al., Plaintiffs- Appellants, v. CONCORD SCHOOL DISTRICT et al., Defendants-Appellees
CourtCourt of Appeal of Michigan — District of US

Felix F. Best Best Arnold, Gleeson & Best, P.C., Jackson, forplaintiffs-appellants.

Anderson, Patch, Rosenfeld, Potter & Grover by George E. Potter, Jackson, Lilly, Fitzgerald & Smith by John E. Fitzgerald, Kalamazoo, for defendants-Appellees.

Before DANHOF, P.J., and McGREGOR and WALSH, JJ.

DANHOF, Presiding Judge.

Plaintiffs brought separate actions seeking to recover for injuries sustained as a result of the negligence of the defendants in the conduct and supervision of their high school football program. Defendants' motion for a summary judgment was granted, and plaintiffs appeal. We affirm in part, and reverse in part.

David Lovitt and Brian Cecil, students at Concord High School, began practicing for the football team early in July, 1972. On August 30, 1972, during a particularly severe practice session, the boys were overcome by heat prostration. As a result of their exertions, David Lovitt died and Brian Cecil suffered serious permanent injury. Complaints were filed alleging that Lovitt's death and Cecil's injuries were caused by the negligence of the teacher-coaches in ordering them to perform unreasonably strenuous exercises, and the negligence of the other defendants in hiring and supervising the teachers.

These cases were consolidated in the lower court for the purpose of considering a motion for summary disposition based on the affirmative defense of governmental immunity. 1 The motion was granted as to all of the defendants: the Concord School District Ray Keech, the superintendent of schools, Warren Sprague, the principal of Concord High School, and the remaining defendants who were teachers and coaches at Concord High School. Plaintiffs appeal contending that the trial court misapplied and overextended the doctrine of sovereign immunity.

Plaintiffs contend that the Concord High School football program was a proprietary function of the local school district and hence was not entitled to the protection of governmental immunity. According to this argument, the primary purpose of the football program was not the physical education of the student body, but rather it was designed to earn revenue. The trial court, after issuing an opinion indicating that governmental immunity would be applied to all of the defendants, agreed to withhold final judgment until the deposition of the athletic director of the Concord School District could be taken. This depositional testimony established that the district's athletic program had been operating at a deficit for the past five years. This information reinforced the court's determination that the defendants were not engaged in a proprietary function, and the court reaffirmed its decision to dismiss the case on the basis of governmental immunity.

On appeal, plaintiffs argue that even though no profit was made, the football program could still be a proprietary function and that they should be given an opportunity to prove the proprietary nature of the football program through the use of other evidence during a full trial on the merits. It is well settled that a school district is a governmental agency granted immunity from tort liability by statute when engaged in the exercise of a governmental function. M.C.L.A. § 691.1407; M.S.A. § 3.996(107). Sayers v. School District No. 1, 366 Mich. 217, 114 N.W.2d 191 (1962), Picard v. Greisinger, 2 Mich.App. 96, 138 N.W.2d 508 (1965), Williams v. Primary School District No. 3, 3 Mich.App. 468, 142 N.W.2d 894 (1966), McNees v. Scholley, 46 Mich.App. 702, 208 N.W.2d 643 (1973). Physical-education activities have specifically been held to constitute a governmental and not a proprietary function. Cody v. Southfield-Lathrup School District, 25 Mich.App. 33, 181 N.W.2d 81 (1970), McDonell v. Brozo, 285 Mich. 38, 280 N.W. 100 (1938).

Plaintiffs' contention that because an admission charged to the games was paid, the football program amounted to a proprietary function of the district unprotected by government immunity cannot be accepted. An identical argument was advanced in Watson v. Bay City School District, 324 Mich. 1, 11, 36 N.W.2d 195, 199 (1949), wherein Justice Dethmers writing for affirmance by an evenly divided Court concluded 'Here the football game was part of the school's physical education program. The function is inherently educational, a governmental function without doubt. * * * The incidental profit or revenue does not operate to change the character of that function.'

The precise question of immunity from liability claimed here was decided in Richards v. Birmingham School District, 348 Mich. 490, 83 N.W.2d 643 (1957). In that case, plaintiff was a paid spectator at a high school football game who was injured when temporary bleachers collapsed. Plaintiff brought suit against the defendant school district, arguing that the district was not immune from liability because it was engaged in the performance of a proprietary function. This argument was resolved contrary to the plaintiff's position.

'An exhibit introduced by defendant district on the trial of the case, without objection, which exhibit was prepared by certified public accountants, discloses that the athletic activities program of the defendant school district for the year ending June 30, 1949, resulted in a net operating loss. The football game played on November 25, 1948, must be considered as a part of the athletic activities of the school rather than as an independent contest. It thus appears that such activities of the physical education department did not, for the year in question, result in a net profit. On the record in the case it may not be claimed that such activities are carried on for the purpose of making money for the benefit of defendant school district. Rather, the entire department is operated as a part of the school facilities and in furtherance of the objectives to be attained in educational lines. It may not be said that defendant district, in allowing athletic competition with other schools, is thereby engaging in a function proprietary in nature. On the contrary, it is performing a governmental function vested in it by law.' 348 Mich. 509--510, 83 N.W.2d 653.

In the present case, the athletic activities program of the defendant school district had resulted in a net operating loss for the past five years. Thus, plaintiffs here cannot claim that by carrying on the football program, the district was 'engaging in a function proprietary in nature'. The trial court did not err by granting a summary judgment in favor of the school district grounded on the application of statutorily created governmental immunity.

Although defendants have devoted a large part of their brief on appeal to denying liability on the part of the superintendent and the principal, the plaintiffs accept the determination that if sovereign immunity is found to apply to the school district, the superintendent and the principal are also protected by it. Thus, our decision above as to the immunity of the school district also applies as to the principal and the superintendent.' 2 The plaintiffs contend, however, that even if immunity is established to protect the school district, its superintendent, and the principal, the individual teacher-coaches may still be found liable for their own personal acts of negligence. With this contention, we agree.

Under the common law, a teacher could be found liable for a student's injuries proximately caused by the teacher's negligence. Gaincott v. Davis, 281 Mich. 515, 275 N.W. 229 (1937). Defendants maintain that this principle is superseded by statute, M.C.L.A. § 691.1407; M.S.A. § 3.996(107) which, as discussed previously, has been held to apply to school districts. The statute reads as follows:

'Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.'

The issue of whether or not the governmental immunity of a school district extends to include an employee, and particularly a teacher, appears to be a...

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    ...Duncan, and have refused to extend the tort immunity of the board to its teachers or other employees. See Lovitt v. Concord School Dist. (1975), 58 Mich.App. 593, 228 N.W.2d 479; Rose v. Bd. of Edn. (1959), 184 Kan. 486, 337 P.2d 652; Anderson v. Calamus Com. School Dist. (Iowa 1970), 174 N......
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    ...Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975); Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1976); Lovitt v. Concord School District, 58 Mich.App. 593, 228 N.W.2d 479 (1975). Affirmed as to the defendant school superintendent and the school district. Reversed as to defendant teacher a......
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    ...is a public employee. See Galli v. Kirkeby, 398 Mich. 527, 248 N.W.2d 149 (1976) (Coleman, J. dissenting); Lovitt v. Concord School Dist., 58 Mich.App. 593, 228 N.W.2d 479 (1975), overruled in part, 398 Mich. 527, 536, 248 N.W.2d 149 (1976); Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1......
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