Martin by Martin v. State

• Decision Date: 15 December 1983
• Docket Number: Docket No. 64357
• Citation: 341 N.W.2d 239,129 Mich.App. 100
• Parties: James MARTIN, by his guardian, Pauline MARTIN, Plaintiff-Appellant, v. The STATE of Michigan, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 239

341 N.W.2d 239

129 Mich.App. 100

James MARTIN, by his guardian, Pauline MARTIN, Plaintiff-Appellant, v. The STATE of Michigan, Defendant-Appellee.

Docket No. 64357.

Court of Appeals of Michigan.

Submitted March 8, 1983.

Decided Sept. 26, 1983.

Released for Publication Dec. 15, 1983.

Stiles, Fowler & Tuttle by Robert L. Harley, Jr., Lansing, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George L. McCargar and Craig Atchinson, Asst. Atty. Gen., for defendant-appellee.

Before KELLY, P.J., and GRIBBS and TAHVONEN, ^* JJ.

TAHVONEN, Judge.

Plaintiff appeals as of right from a trial court order granting defendant summary judgment under GCR 1963, 117.2(1). We affirm.

On April 23, 1980, plaintiff was a voluntary patient at the Michigan Institute of Mental Health in Dimondale. Between 9 a.m. and 10 a.m. on that day, plaintiff, while sleeping, was struck over the head with a chair or table by another patient, who had been assigned to share plaintiff's room. On April 23, 1981, plaintiff's mother, Pauline Martin, filed suit on behalf of plaintiff, seeking damages for the injuries plaintiff sustained as a result of the attack. Count I of the complaint was based on negligence. Count II was based on an alleged breach of defendant's statutory duties. M.C.L. Sec. 330.1708; M.S.A. Sec. 14.800(708).

On June 26, 1981, defendant moved for summary judgment based on the governmental immunity statute. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). Thereafter, plaintiff amended his complaint to add a count alleging that the "acts and failure to act on the part of defendant constitute the creation and maintenance of a nuisance, either per se, or in fact". The acts and omissions which plaintiff claimed to have constituted the creation and maintenance of the nuisance were specified in the complaint as follows:

"a) Failed to screen residents for known violent behavior patterns.

"b) Failed to separate residents with violent behavior patterns from other residents and, in particular, placed an individual with known violent behavior patterns in the room with Plaintiff as set forth in the above Counts and paragraphs.

"c) Failed to provide adequate staff and personnel for the supervision of patients.

"d) Failed to provide a safe and secure living environment within said facility.

"e) Failed to warn voluntary residents of the dangers peculiar to the facility.

"f) Failed to provide constant supervision of the residents with known violent behavior patterns "g) Having knowledge of the fact that an inadequate staff existed to properly supervise residents in the facility, failed to safeguard the residents' well-being by securing additional personnel."

At the hearing on the motion for summary judgment, defendant argued that, although plaintiff had pled a claim for nuisance so as to avoid the defense of governmental immunity, plaintiff's action was still barred by governmental immunity because the nuisance claim was based on allegations of mere negligence. At the close of the hearing, the trial judge ruled as follows:

"The Court has reviewed the matter and frankly the only sum and substance it really sees in the complaint as filed sounds in negligence. The procedural aspects and so on I don't think is subject to the attack of they just were set up that way to be a negligent nuisance, and that's the way it was intended to operate. I am sorry, but I cannot see the validity in the particular argument. Motion for Summary Judgment is granted."

The only question presented is whether the trial court erred in granting defendant summary judgment based on governmental immunity.

In passing upon a motion for summary judgment based on GCR 1963, 117.2(1), the trial court must accept as true all of the plaintiff's factual allegations as well as any conclusions which can reasonably be drawn therefrom and determine whether the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can justify a right to recovery. Where immunity is involved, the complaint must plead facts in avoidance of immunity. Armstrong v. Ross Twp., 82 Mich.App. 77, 82, 266 N.W.2d 674 (1978).

Although the common-law doctrine of governmental immunity has been abrogated, Pittman v. City of Taylor, 398 Mich. 41, 45-49, 247 N.W.2d 512 (1976), general immunity from tort liability is provided for by statute:

"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." M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107).

Three principal tests have emerged for determining whether a particular activity is a governmental function. Justices Williams and Ryan and former Chief Justice Coleman have favored the "common good of all" test. If the act is for the common good of all without the element of special corporate benefit or pecuniary profit, there is no liability flowing from the activity. Ross v. Consumers Power Co., 415 Mich. 1, 327 N.W.2d 293 (1982).

The second test is the "essence of governing" test as employed by Justices Kavanagh and Levin and former Justice Fitzgerald. Justices Kavanagh, Levin and Fitzgerald would give protection to only those activities which have no analogy in the private sector but are sui generis governmental--of essence to governing.

The third test is the "essence of governing" test as understood and expressed by the late Justice Moody.

"[t]he 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 the government's ability to govern, activities that fall outside this perimeter, although performed by a governmental agency, are not governmental functions and therefore not immune." Parker v. Highland Park, 404 Mich. 183, 200, 273 N.W.2d 413 (1978).

In Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978), Justices

Kavanagh, Fitzgerald and Levin found that, because the operation of a state mental hospital is not an activity which can be performed only by the government, it is not a governmental function and, therefore, tort actions arising from the negligent operation of a state mental hospital are not barred by governmental immunity. 404 Mich. 215, 273 N.W.2d 421. Applying the "common good of all" test, Justices Williams, Coleman and Ryan found that the operation of the state mental hospital was a government function and, therefore, that the hospital was immune from suit. 404 Mich. 210-213, 273 N.W.2d 421.

The deciding vote in Perry, supra, was cast by Justice Moody who, relying on the mandate of Const.1963, art. 8, Sec. 8, and M.C.L. Sec. 330.1116; M.S.A. Sec. 14.800(116), declaring that "services for the care, treatment or rehabilitation of those who are seriously mentally handicapped shall always be fostered and supported", found that public mental health hospitals perform an essentially unique activity required by legislative action which could effectively only be accomplished by the government. Accordingly, Justice Moody ruled that the state mental hospital was entitled to immunity. 404 Mich. 214, 273 N.W.2d 421.

In the present case, relying on the dissenting opinion in Perry, supra, plaintiff argues that the operation of the Michigan Institute of Mental Health is not a governmental function. This argument must be rejected. This Court is bound by the doctrine of stare decisis. Schwartz v. Flint (After Remand), 120 Mich.App. 449, 462, 329 N.W.2d 26 (1982). Although the composition of the Supreme Court has been substantially altered in recent months, thus leaving the continued validity of Perry, supra, open to question, Perry, supra, must still be followed here. Accordingly, since Counts I and II of plaintiff's amended complaint are based on negligence and an alleged breach of the statutory duties imposed upon state mental health facilities, those counts were properly dismissed. Perry, supra.

Plaintiff next contends that his first amended complaint sufficiently alleges a nuisance and that he has therefore pled facts in avoidance of immunity. According to plaintiff, the questions of whether a nuisance exists and whether the nuisance was negligently or intentionally created must be determined by a trier of fact.

A nuisance arises from the existence of a dangerous condition. Rosario v. Lansing, 403 Mich. 124, 132, 268 N.W.2d 230 (1978). (Opinion of Fitzgerald, J.)

" 'Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.' Buckeye Union Fire Insurance Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476 (1970)."

In Rosario, supra, and Gerzeski v. Dep't of State Highways, 403 Mich. 149, 268 N.W.2d 525 (1978), the Supreme Court examined the impact of the nuisance doctrine on governmental immunity. Although no clear majority view emerged from the opinions, the result of the opinions is that governmental immunity does not bar liability for certain types of nuisances. Ford v. Detroit, 91 Mich.App. 333, 335, 283 N.W.2d 739 (1979).

There are two categories of nuisances: nuisances per se and nuisances in fact. The latter category is further divided into intentional nuisances and negligent nuisances. Gerzeski v. Dep't of State Highways, supra. A nuisance per se is an act,...