Pichette v. Manistique Public Schools

Decision Date30 August 1978
Docket NumberDocket No. 55472,No. 1,1
PartiesJeffrey PICHETTE, a minor, by his next friend, Louis Pichette, and Louis Pichette, Plaintiffs-Appellants, v. MANISTIQUE PUBLIC SCHOOLS, Defendant-Appellee. Calendar
CourtMichigan Supreme Court

Green, Renner, Weisse, Rettig, Rademacher & Clark by James M. Rettig, Escanaba, for plaintiffs-appellants.

Hansley, Neiman, Peterson, Beauchamp & Stupak, P. C. by John R. Beauchamp, Escanaba, for defendant-appellee.

FITZGERALD, Justice.

Jeffrey Pichette, a 12-year-old, was injured on July 17, 1971, when he went down a slide on a playground of one of defendant's schools. The playground was unsupervised and unfenced, and the slide was in a state of disrepair.

Plaintiffs filed a complaint against Manistique Public Schools in circuit court seeking damages. The trial court granted the Manistique Public Schools' motion for summary judgment, grounded on governmental immunity. The Court of Appeals affirmed.

Plaintiffs raise three issues on appeal:

1) Whether the operation of a playground by a school district during the summer recess constitutes the "exercise or discharge of a governmental function" for purposes of immunity.

2) Whether a permanently attached slide located on a public school playground comes within the statutory "public buildings" exception to the doctrine of governmental immunity.

3) Whether the purchase of general liability insurance constitutes a waiver of the defense of governmental immunity. We reverse on the basis of the first and second issues and remand for trial.

I. FACTS

Plaintiffs, residents of Ferndale, Michigan, were vacationing in Manistique in July 1971. On July 17, 1971, at approximately 5:30 p. m., plaintiff Jeffrey Pichette was playing on defendant's Lincoln School playground. At that time of the year the school was not in session. The playground, which was immediately adjacent to the school, was unattended and completely accessible to the general public.

Jeffrey climbed up a slide located on the playground and slid down in a manner in which slides are expected to be used. The evidence reveals that the slide was approximately 18 feet long and 10 feet high and was embedded in concrete. The slide was constructed with a metal bottom and two wooden siderails. It is uncontroverted that the slide was old and that the wooden siderails were rotten. Jeffrey, while going down the slide, encountered an 11-inch wooden sliver from the siderail which became dislodged and went through his right thigh. He was rushed to the local hospital where emergency surgery was required to remove the sliver. The treating physician, understandably disturbed by such an injury, summoned the city police to the hospital operating room to inform them of the circumstances of the injury and to request that the playground slide be made inaccessible to the public until it could be repaired. On that evening, at the request of the police, two school employees dismantled the slide. On the following day the remnants were removed to the city dump.

On April 28, 1972, plaintiffs Jeffrey Pichette, a minor by his next friend, Louis Pichette, and Louis Pichette filed suit in Schoolcraft County Circuit Court against Manistique Public Schools for injuries resulting from negligence. While admitting its negligence in permitting the physical condition of the slide to deteriorate and in failing to provide supervision of the playground, defendant, on August 25, 1972, filed a motion for summary judgment in accordance with GCR 1963, 117.2(1), based on the claim that it was engaged in the exercise of a governmental function and thus immune in tort liability. M.C.L. § 691.1407; M.S.A. § 3.996(107).

In granting defendant's motion for summary judgment, the trial judge found that the operation of a playground was a governmental function, that a permanently attached slide did not come within the "public building" exception of the governmental immunity statute, M.C.L. § 691.1406; M.S.A. § 3.996(106), and that defendant's purchase of liability insurance did not constitute a waiver of the defense of governmental immunity. A divided panel of the Court of Appeals affirmed on December 6, 1973. 50 Mich.App. 770, 213 N.W.2d 784 (1973). Leave to appeal was granted by this Court on February 14, 1977. 399 Mich. 840 (1977).

II. ISSUES
A.

The controlling statutory provision for governmental immunity is contained in M.C.L. § 691.1407; M.S.A. § 3.996(107). This section reads:

"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." (Emphasis added.)

This general grant of governmental immunity does not apply to actions "arising out of the performance of a proprietary function," which is defined as "any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees." M.C.L. § 691.1413; M.S.A. § 3.996(113). The governmental immunity statute also contains certain exceptions to the general grant of immunity. 1

The threshold question then, in determining whether a governmental agency is immune from tort liability, is whether or not a particular case is one in which a government agency is "engaged in the exercise or discharge of a governmental function."

However, unlike the term "proprietary function", the term "governmental function" is nowhere defined in the statute. As Justice Williams explained in Thomas v. State Highway Department, 398 Mich. 1, 9, 247 N.W.2d 530, 532 (1976), " 'Governmental function' is a term of art which has been used by the courts of this State to describe those activities of government which due to their public nature should not give rise to liability at common law."

Since the Legislature has used a term of judicial origin without further definition, we find that it is incumbent upon this Court to define the scope of "in the exercise or discharge of a governmental function." We cannot accept the notion that with the enactment of the governmental immunity statute, the Legislature "froze" for all time state governmental immunity as it was then recognized by case law. 2

In the past, analysis of the question of whether a particular governmental activity is immune followed the assumption that an activity engaged in by a governmental agency is either an immune "governmental function" or a nonimmune "proprietary function", depending on whether the activity is for the "common good" or for special corporate benefit or pecuniary profit. 3 See Gunther v. Cheboygan County Road Commissioners, 225 Mich. 619, 196 N.W. 386 (1923).

However, a review of the case law in Michigan reveals that except to the extent that immunity has been waived by statute, virtually all activities engaged in by governmental agencies have been considered "governmental" unless some pretense could be found for labeling an activity "proprietary". 4 Following this analysis, an injured party's right of recovery would depend solely on the identity of the tortfeasor, rather than on the nature of the function being performed.

We cannot accept such a broad definition of "exercise or discharge of a governmental function" a definition which for all practical purposes has no substantive meaning. With the great expansion of governmental activity in recent years, there are many services provided by local and state agencies which are not essentially governmental in nature.

We agree with Professor Cooperrider's analysis that:

" 'Immunity,' no longer a logical necessity, has become a policy question, and 'governmental function' may properly be understood as a designation for situations where the government Should be able to act or to remain passive without compensating citizens adversely affected by the decision a species of Privilege extending to those instances where there are sound policy reasons for nonliability despite the existence of circumstances that would subject a nongovernmental defendant to liability." Cooperrider, The Court, The Legislature and Governmental Tort Immunity in Michigan, 72 Mich.L.Rev. 187, 282 (1973).

Accordingly, we find that public policy dictates a narrow construction of "in the exercise or discharge of a governmental function" contained in M.C.L. & 691.1407; M.S.A. § 3.996(107). We are mindful of the fact that the ability of government to govern would be seriously jeopardized if the exercise of discretion in the formulation of governmental policy were exposed to tort liability. Indeed, as Professor Kenneth Culp Davis has noted:

"A city should not be liable for damage done by a zoning ordinance, which necessarily reduces the value of some property. Nor should the state be liable to the seller of a harmful drug if it enacts a statute prohibiting further sale of the drug, thereby destroying a profitable business." 3 Davis, Administrative Law Treatise, § 25.11, p. 484.

Nevertheless, we do not believe that the operation of governmental agencies would be undermined by making those governmental agencies liable for their tortious acts or omissions done in the course of their operation. We reiterate what Chief Justice Kavanagh and I, with the concurrence of Justice Levin, said in Thomas v. State Highway Dept., supra, 398 Mich. at p. 21, 247 N.W.2d at p. 538:

"The test then, of 'governmental function' for purposes of the immunity statute, must be phrased in terms of the nature of the specific function. We conclude that a function is not 'governmental' in this context unless the particular activity that this function entails is uniquely associated with those activities having 'no common...

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