McNeal v. Department of Natural Resources

• Decision Date: 01 April 1985
• Docket Number: Docket No. 73583
• Citation: 140 Mich.App. 625,364 N.W.2d 768
• Parties: James McNEAL, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Michigan State Parks and the State of Michigan, Defendants-Appellees. 140 Mich.App. 625, 364 N.W.2d 768
• Court: Court of Appeal of Michigan — District of US

Page 768

364 N.W.2d 768

James McNEAL, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Michigan State Parks and the State of Michigan, Defendants-Appellees.

Docket No. 73583.

140 Mich.App. 625, 364 N.W.2d 768

Court of Appeals of Michigan.

Submitted June 20, 1984.

Decided February 6, 1985.

Released for Publication April 1, 1985.

[140 MICHAPP 626] Joel S. Morse, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Wallace T. Hart, Asst. Atty. Gen., for defendants-appellees.

Before MacKENZIE, P.J., and BEASLEY and KIRWAN, ^* JJ.

KIRWAN, Judge.

Plaintiff appeals as of right from an order of a judge of the Court of Claims granting summary judgment in favor of all defendants.

Plaintiff filed a complaint against the Department of Natural Resources (DNR), Michigan State Parks, and the State of Michigan, alleging that he was a [140 MICHAPP 627] passenger in an off-the-road vehicle (ORV) being driven in an area that permits the operation of such vehicles at Silver Lake State Park, which is owned and operated by the DNR. Plaintiff suffered serious injuries when the vehicle crested a hill, became airborne, and tipped over. After plaintiff had commenced his lawsuit, all defendants moved for summary judgment, alleging that they were immune from tort liability in connection with the operation of a state park by virtue of governmental immunity as well as the provisions of the recreational use statute. Plaintiff then amended his complaint, alleging gross negligence and willful and wanton misconduct. Thereafter, the trial court granted summary judgment, finding that allowing an ORV vehicle to be driven at Silver Lake State Park was a governmental function under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107); that the DNR was also immune from liability under the provisions of the recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485; and that the plaintiff failed to allege facts sufficient to state a claim of gross negligence or wilful and wanton misconduct. Plaintiff claims error.

I

Are the defendants immune from liability by virtue of the doctrine of governmental immunity for their alleged negligent acts which it is claimed caused serious injuries to the plaintiff?

The governmental tort immunity statute provides 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 [140 MICHAPP 628] 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 Michigan Court of Appeals cases, Daugherty v. State of Michigan, 91 Mich.App. 658, 283 N.W.2d 825 (1979), lv. den. 408 Mich. 853 (1980); Feliciano v. Dep't of Natural Resources, 97 Mich.App. 101, 293 N.W.2d 732 (1980); and Haselhuhn v. The Huron-Clinton Metropolitan Authority, 106 Mich.App. 461, 308 N.W.2d 190 (1981), have dealt with the issue of whether or not the operation of a state park is a governmental function. In Daugherty, supra, the Court held that the operation of a state park was not a governmental function and that the state was not, therefore, immune from liability. The Court said:

"In applying the law as stated in the recent decisions of our Supreme Court as we understand it, it appears that the operation of a recreational area is not 'of essence to governing' because it is not an activity which can be done only by government. Private recreational areas do exist and provide essentially the same services. Also under the analysis stated by Mr. Justice Moody, in Parker [v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978) ], the instant case does not present a situation where the purpose, planning, carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government. In addition, liability would not be an unacceptable interference with the government's obligation to govern." 91 Mich.App. 663, 283 N.W.2d 825.

Shortly thereafter, another panel of this Court in deciding Feliciano, supra, disagreed in part with Daugherty, holding as follows:

"In summary, to the extent that Daugherty, supra, holds that the entire spectrum of the Department of Natural Resources statutory prescribed operation of the [140 MICHAPP 629] Pinckney Recreation Area is not a governmental function, we disagree with Daugherty. But to the extent that case holds that the conduct and operation of a bathing and swimming area is a nongovernmental function to which the defense of immunity does not apply, we agree with the decision." (Emphasis in Feliciano; footnote omitted.) 97 Mich.App. 107-108, 293 N.W.2d 732.

In rejecting the broad scope of Daugherty, the panel distinguished between maintenance and operation of a park and recreation system, which by its magnitude must be a governmental function, and operation of a bathing beach, which is commonly performed by private enterprise.

In Haselhuhn, supra, a different panel of this Court cited with approval Feliciano, supra, holding that a groundskeeper whose duties supported the overall operation of a park was performing a governmental function and that defendant Huron-Clinton Metropolitan Authority was, therefore, immune from liability.

We view the decision in Feliciano, supra, the more reasoned approach and look, therefore, to the specific activity that is conducted by the DNR in determining whether or not that activity is cloaked with governmental immunity.

This Court has cited with approval the following language contained in Professor Cooperrider's article, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich.L.Rev. 187, 284-285 (1973):

" 'On the other hand, the defense also covers injuries causally relatable to conditions of publicly owned premises that, while left open for entry by the public, are not developed for intensive use. This would include areas such as large rustic parks, forest and other lands left substantially in their natural condition, and public waters other than supervised beach areas. The private [140 MICHAPP 630] sector offers no analogy here, for no private party is the occupier of premises remotely comparable in extent.

" ' * * * Such an area is offered for use without warranty, the user may fairly be said to have assumed the risk, and the applicable general principle should be one of nonliability. The function of providing public access to such areas, I would contend, is uniquely governmental.' "

The ORV area at Silver Lake is purposely left in its natural condition for use by the public. The only facility is a parking lot adjacent to the dune area with several warning signs nearby. The fact that an adjacent dune area is leased to a private dune buggy company does not convert the entire ORV site operation into a proprietary function. This area is, therefore, squarely within Professor Cooperrider's category of lands left substantially in their natural condition, and as this area was not used for a proprietary function, the defendants are cloaked with governmental tort immunity.

II

Does the recreational use act, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, apply to state-owned land so that the defendants as landowners are protected from liability for their acts of negligence?

It is useful to consider this issue because it is also dispositive of the case.

Plaintiff claims that the recreational use act does not apply to state-owned property and that his complaint has, therefore, set forth an actionable claim. This Court has acknowledged that the recreational use statute is applicable to publicly-held lands. Graham v. Gratiot County, 126 Mich.App. 385, 387, 337 N.W.2d 73 (1983); Syrowik v. Detroit, 119 Mich.App. 343, 326 N.W.2d 507 (1982). Further, the language of the holding of the Supreme Court opinion in Burnett v. City of Adrian, 414 Mich. 448, [140 MICHAPP 631] 326 N.W.2d 810 (1982), also supports this conclusion. In that case, the Court said:

"This is an appeal from a Court of Appeals affirmance of a summary judgment dismissing the plaintiffs' case for failure to state an actionable claim under the so-called recreational use statute, MCL 300.201; MSA 13.1485. The only question before us is whether the plaintiffs have alleged facts sufficient to state a claim for gross negligence or willful and wanton misconduct. Our task is thus limited because the recreational use law authorizes recovery in the circumstances of this case only if gross negligence or willful and wanton misconduct is shown." (Footnote omitted.) Id., pp. 453-454...