Parker v. City of Highland Park, Docket No. 55330

CourtSupreme Court of Michigan
Citation404 Mich. 183,273 N.W.2d 413
Docket NumberNo. 15,Docket No. 55330,O,15
PartiesVincent Oshee PARKER, a minor by his next friend, Casey Parker, and Casey Parker, Individually, Plaintiffs-Appellants, v. CITY OF HIGHLAND PARK (Highland Park General Hospital), Dr. Sokolowski and Physicians Emergency Service, a corporation, Defendants-Appellees. Calendarct. Term 1977.
Decision Date27 December 1978

Lopatin, Miller, Bindes, Freedman & Bluestone by Michael A. Gantz, Michael A. Gagleard, Detroit, for plaintiffs-appellants.

Garan, Lugow, Miller, Lehman, Seward & Cooper by Albert A. Miller, Detroit, for defendants-appellees; David J. Curran, Detroit, of counsel; Cozadd, Shangle & Smith, Dearborn, of counsel on brief, by B. Ward Smith, Daniel J. Andrews, Dearborn.

Roger E. Craig, Corp. Counsel, George G. Matish, Deputy Corp. Counsel, Thomas H. Gallagher, Asst. Corp. Counsel, Detroit, for amicus curiae City of Detroit.


Plaintiff Vincent Parker fell through a glass storm door on September 12, 1970. He was treated for serious lacerations on the back and neck at the emergency room of Highland Park General Hospital, a municipal hospital operated by the City of Highland Park. In 1972, Vincent Parker and his father, Casey Parker, filed a malpractice suit against the hospital; Physicians Emergency Service, the corporation which operated the emergency room; and the doctor who had treated Vincent Parker.

In their complaint plaintiffs alleged that the treating physicians had failed to take X-rays, that Vincent Parker had continued to feel pain in his back after treatment at Highland Park General Hospital, and that in 1972 treatment at another hospital revealed that a large piece of glass had remained lodged underneath the skin of Vincent Parker's back since his accident.

The city moved for summary judgment, contending that plaintiffs had failed to state a claim upon which relief could be granted, because the city, as a governmental agency engaged in the exercise or discharge of a governmental function, was immune from tort liability under M.C.L. § 691.1407; M.S.A. § 3.996(107). 1 The Court of Appeals denied leave to appeal. We granted leave to consider whether the day-to-day operation of a hospital 2 is a "governmental function" as that phrase is used in the statute.

In the past this Court did hold that the operation of a hospital was a governmental function. Nicholson v. Detroit, 129 Mich. 246, 88 N.W. 695 (1902), Martinson v. Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950). 3

We do not believe that because we once held the operation of a hospital to be a governmental function we must do so today. 4 A comparison of the reasoning employed by this Court in Nicholson with that of Martinson shows that the meaning of the term "governmental function" has varied as the judiciary's thinking on the nature of government has evolved. 5

Nor do we believe that the Legislature intended that we must today hold the operation of a hospital to be a governmental function because we did so in 1902 and 1950. As was stated in the Kavanagh-Fitzgerald dissenting opinion in Thomas v. Dept. of State Highways, 398 Mich. 1, 17, fn.4, 247 N.W.2d 530, 536 (1976), to read the second sentence of M.C.L. § 691.1407; M.S.A. § 3.996(107) 6 as "preserving for all time state governmental immunity heretofore recognized by case law" would be to "assume that the Legislature failed to recognize that the evolution of case-law precedent is exclusively committed to the judicial branch of government." 7

Determining whether or not a certain activity is or is not a "governmental function" is a matter of statutory interpretation. In the absence of a legislative definition of the term, statutory interpretation is a function committed to the judiciary. The term "governmental function" is particularly subject to judicial interpretation because the phrase is of judicial origin.

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." 8 In abrogating common-law judge-made immunity (Pittman v. Taylor, 398 Mich. 41, 49, 247 N.W.2d 512 (1976)), we recognized the appropriateness of the analysis used to overrule a hospital's charitable immunity to the governmental immunity area of the law. By substituting "definition of governmental function" and "governmental function" for "charitable" and "charities" in Parker v. Port Huron Hospital, 361 Mich. 1, 25, 105 N.W.2d 1, 13 (1960), we said about charitable immunity then what we wish to say about governmental immunity today:

"The old rule of charitable immunity (definition of governmental function) was justified in its time, on its own facts. Today we have a new set of facts. It is true that the new facts are still described by the same word in our English language "charities" (governmental function) but that is because our language has not changed as the facts of our life have changed. We have new facts described by old nomenclature. To say that the old rule of law still applies is to reach a result on the basis of nomenclature, not of facts; it is to apply a rule, proper in its time, to completely new facts, and to justify doing so by reference to language merely without regard to the facts." (Emphasis supplied.)

Again, we reject the rigid dichotomy of the past. Because an activity is not proprietary, it does not necessarily follow that the activity is governmental. We would limit the term "governmental function" to those activities Sui generis governmental of essence to governing. This principle was recognized in Lykins v. Peoples Community Hospital, 355 F.Supp. 52, 53 (E.D.Mich.1973):

"This court does not believe the statutory scheme contemplates immunity for the day-to-day operations of a hospital. The statute speaks of immunity for 'governmental functions,' and this court is of the opinion that while it may be an appropriate goal or objective of government to establish a hospital authority, it does not follow that the daily operations of such a hospital authority constitute a governmental function. Governmental functions more properly refer to the tasks of governing. There is, for example, a governmental character to activities such as the collection of taxes or the operation of a court system. But the services of healing offered by a public hospital are not governmental functions."

The operation of a hospital is not an activity of a peculiar nature such that the activity can only be done by government. Rather, government participates alongside private enterprise, charitable and religious organizations in operating hospitals. 9

In adopting the "of essence to government" test for defining the term "governmental function," we reject the "common good of all" test applied in Martinson v. Alpena, supra. The operation of a hospital is a noble undertaking on the part of a unit of government. But, the fact that the government-operated hospital contributes to the "common good" does not distinguish the government-operated hospital from the non-government-operated hospital. 10 We feel safe in assuming that hospitals operated by non-government entities, who do not enjoy immunity from tort liability, also contribute to the "common good".

The modern hospital, whether operated by a city, a church, or a group of private investors, is essentially a business. 11 As such, there is no rational ground upon which immunity for the government-operated hospital can rest. 12

Reversed and remanded. No costs, a public question.

KAVANAGH, C. J., and LEVIN, J., concur.

MOODY, Judge (concurring).

The question of law on this appeal is whether the activities conducted by a municipally owned general hospital providing the public medical service for a fee constitute a governmental function within the meaning of M.C.L. § 691.1407; M.S.A. § 3.996(107).

It is determined that the activities of such a municipally owned general hospital do not constitute a governmental function. Therefore, this opinion concurs with the result reached by Justice Fitzgerald. However, the reasons for reaching this conclusion differ to some extent from the analysis of my colleagues.


Governmental tort immunity in Michigan was originally created by court decision. Early in the state's history, this Court began a slow process of extending protection from tort liability to municipal and state governing units. Often, contrary to strong indications from the Legislature to allow governmental liability, this Court enlarged the scope of governmental immunity. It fashioned the present theory of protection embodied in the "governmental function" concept. 1

The momentum of these protective decisions continued unabated until the relatively recent case of Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961). The Court in Williams held that "the judicial doctrine of governmental immunity" was henceforth abolished in Michigan. However, this Court later restricted the broad sweep of Williams to apply only to municipal corporations. McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491 (1961).

In response to the Williams initiative, the Legislature passed 1964 P.A. 170. That statute, as amended by 1970 P.A. 155, included a general provision for immunity:

"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 and 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. § 691.1407; M.S.A. § 3.996(107).

Although not defining the term "governmental function", the Legislature did define the concept of "proprietary function":

"The immunity of the state shall not apply to actions to recover for bodily injury or...

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