Murray v. Beyer Memorial Hospital
| Decision Date | 30 June 1980 |
| Docket Number | 61674,No. 7,Docket Nos. 61673,7 |
| Citation | 293 N.W.2d 341,409 Mich. 217 |
| Parties | Ronald MURRAY and Kathleen M. Murray, as adoptive parents of Kathleen Janet (Gutierrez) Murray, a minor, Plaintiffs-Appellants, v. BEYER MEMORIAL HOSPITAL, Defendant-Appellee, and Dr. A. M. Capili; Dr. Evangeline Capili; Dr. George S. Sayre; Dr. D. E. Pearson; and Fran A. Arlin, jointly and severally, Defendants. Ronald L. MURRAY, as next friend of Kathleen Janet (Gutierrez) Murray, a minor, Plaintiff-Appellant, v. BEYER MEMORIAL HOSPITAL, Defendant-Appellee, and Dr. A. M. Capili; Dr. Evangeline Capili; Dr. George S. Sayre; Dr. D. E. Pearson; and Fran A. Arlin, jointly and severally, Defendants. Calendar |
| Court | Michigan Supreme Court |
Sommers, Schwartz, Silver & Schwartz, P. C. by Stanley S. Schwartz, Southfield, for plaintiffs.
Cozadd, Shangle & Smith, Dearborn, by B. Ward Smith and Daniel J. Andrews, Dearborn, for defendant-appellee.
This case involves two complaints, consolidated on appeal, for alleged negligence in the care and treatment of a child at the time of her birth on November 29, 1970. The parent's complaint was filed on November 28, 1972. The complaint on behalf of the child was filed on February 23, 1973. The defendant hospital filed a motion for summary and/or accelerated judgment on the ground that the hospital was engaged in a governmental function and was therefore immune from tort liability under M.C.L. § 691.1407; M.S.A. § 3.996(107). The circuit court granted the hospital accelerated judgment on December 3, 1975. The Court of Appeals affirmed in an unpublished per curiam opinion on June 12, 1978. Application for leave to appeal to this Court was filed on June 28, 1978.
On December 27, 1978 this Court rendered a decision in Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978). Subsequently we granted leave to determine whether the Parker decision should be applied to this case to require reversal and remand to the circuit court for further proceedings. We hold it should, and the rule of Parker is to be applied to all cases pending on December 27, 1978 in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date. See Placek v. Sterling Heights, 405 Mich. 638, 662-668, 275 N.W.2d 511 (1979); Pittman v. City of Taylor, 398 Mich. 41, 50, 247 N.W.2d 512 (1976); Daley v. LaCroix, 384 Mich. 4, 14, 179 N.W.2d 390 (1970); Bricker v. Green, 313 Mich. 218, 236, 21 N.W.2d 105 (1946).
In Parker, four justices agreed that the activities of a municipally owned general hospital did not constitute a "governmental function" within the meaning of M.C.L. § 691.1407; M.S.A. § 3.996(107), and thus were not entitled to governmental immunity. Plaintiff claims that the rule of Parker should apply to the instant case for several reasons: The injury involved here occurred approximately two months after the injury of Parker; they have disputed the defendant hospital's claim to immunity at every step of the proceeding; the fortuity that Parker's case attacking governmental immunity for the day-to-day operation of a hospital was decided first should not deprive plaintiff of the benefit of the rule. (See Placek, supra, 405 Mich. 667, 275 N.W.2d 511.)
Defendant, citing Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960), argues for the rule adopted in that case and urges that Parker v. Highland Park, supra, be applied prospectively from the date the opinion was released and not cover other cases pending on that date.
We are satisfied that the adventitious disposition of Parker while we held plaintiffs' application in abeyance should not deprive plaintiffs of the benefit of the rule or make available to defendant a defense we will no longer enforce for others.
We acknowledge that whenever a new rule of law is promulgated some unfairness to those who have relied on the old rule may be claimed. Courts, however, do not alter an established rule of law without thorough evaluation of the policy considerations involved. When the decision to overrule precedent is finally made, the Court is satisfied that the importance of the result reached outweighs any unfairness to those negatively affected by the decision. Applying the ruling prospectively with the exception of that case and cases pending on appeal in which the issue was raised and preserved is an attempt to limit any such unfairness.
As Justice Moody recognized in his concurring opinion in Parker we have removed a defense, not imposed a liability.
Reversed and remanded. No costs, a public question.
A majority of this Court in separate opinions determined a municipally owned general hospital providing a public medical service for a fee was not performing a governmental function within the meaning of M.C.L. § 691.1407; M.S.A. § 3.996(107). Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978). I joined two of my colleagues in dissenting from that result. 404 Mich. 183, 202, 273 N.W.2d 413, 421.
However, now that the rule in Parker is the law of this state, I concur with my Brother Kavanagh that that rule should apply "to all cases pending on December 27, 1978 in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date" (--- Mich. ---, ---, 293 N.W.2d 342). See my concurring opinion in Pittman v. City of Taylor, 398 Mich. 41, 51, 247 N.W.2d 512 (1976); Bricker v. Green, 313 Mich. 218, 236, 21 N.W.2d 105 (1946). The prospective only ruling of Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960), is not entirely applicable to this case. First of all, that case involved a charitable hospital, whereas this case involves a public hospital. Second, unfortunately, the state of the law is to what constitutes governmental immunity, without further legislative definition, has for some years been in flux. While in the field of governmental immunity there has been no such clear and simple signal of change as was specifically given in comparative negligence, Placek v. Sterling Heights, 405 Mich. 638, 662-668, 275 N.W.2d 511 (1979), the opinions of this Court have been such as should warn those who might possibly be affected that they had better seek protection either through insurance or through legislative redefinition. See, for example, Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960), itself; Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); and more recently and subsequent to the facts of this case, the dissenting opinions in Thomas v. Dep't of State Highways, 398 Mich. 1, 14, 25, 247 N.W.2d 530 (1976); Bush v. Oscoda Area Schools, 405 Mich. 716, 734, 275 N.W.2d 268 (1979).
The argument for excepting the operation of a publicly-owned hospital from the immunity provided governmental agencies in M.C.L. § 691.1407; M.S.A. § 3.996(107), was convincing to four Justices of this Court in Parker v. City of Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), and thus has become the law.
Consequently, the only remaining question in this case is whether the 1978 change in the law of governmental immunity effected by Parker should be applied retroactively to benefit the instant plaintiffs who claim against the defendants for negligence alleged to have occurred in 1970.
From the Court's affirmative answer to that question, I respectfully dissent and would apply Parker in a purely prospective fashion; that is, to causes of action accruing after December 27, 1978, the date of decision in that case.
I
Parker was decided almost six years after the acts and omissions for which the plaintiffs make complaint in these cases. For more than three-quarters of a century before Parker was decided, the courts of this state followed the settled rule that the operation of a public hospital was a governmental function and, as a result, such institutions were immune from tort liability. See Nicholson v. City of Detroit, 129 Mich. 246, 88 N.W. 695 (1902); Martinson v. Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950); Schwartz v. City of Detroit, 83 Mich.App. 590, 269 N.W.2d 237 (1978), rev'd 405 Mich. 839 (1979). 1
In Parker, recognizing that the Court was changing the meaning of "governmental function", as that expression had historically been defined and applied to the operation of public hospitals in this state, Justice Fitzgerald said:
"It is time we recognize that our case law precedent, as it attempts to distinguish between a governmental and a proprietary function, is 'inherently unsound.' " 404 Mich. 190-193, 273 N.W.2d 413, 415-16. (Emphasis added.)
In similar recognition, Justice Moody, writing separately, said:
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