Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp.

• Decision Date: 17 May 1977
• Docket Number: Docket No. 28208,HURON-CLINTON
• Citation: 75 Mich.App. 677,256 N.W.2d 240
• Parties: Joanne ROHRABAUGH, Plaintiff-Appellant, v.METROPOLITAN AUTHORITY CORPORATION, Defendant-Appellee. 75 Mich.App. 677, 256 N.W.2d 240
• Court: Court of Appeal of Michigan — District of US

Page 240

256 N.W.2d 240

Joanne ROHRABAUGH, Plaintiff-Appellant, v. HURON-CLINTON METROPOLITAN AUTHORITY CORPORATION Defendant-Appellee.

Docket No. 28208.

75 Mich.App. 677, 256 N.W.2d 240

Court of Appeals of Michigan.

May 17, 1977.

Released for Publication July 20, 1977.

[75 MICHAPP 679] Lopatin, Miller, Bindes & Freedman by Michael Gagleard, Detroit, for plaintiff-appellant.

Garan, Lucow, Miller, Lehman by George J. Parish, Detroit, for defendant-appellee.

Before D. E. HOLBROOK, P. J., and BASHARA and HOOD, ^* JJ.

D. E. HOLBROOK, Presiding Judge.

This action arose out of injuries sustained by plaintiff while skating at a roller rink operated by defendant Huron-Clinton Metropolitan Authority Corporation (hereafter referred to as Authority). Defendant moved for accelerated judgment and dismissal on the basis of governmental immunity, M.C.L.A. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq., and the trial court granted [75 MICHAPP 680] the motion. Plaintiff's motion for rehearing was denied. Plaintiff appeals as of right.

Plaintiff initially challenges the constitutionality of the governmental immunity statute. This Court has frequently been faced with such arguments and has declined to hold the statute unconstitutional. ¹ Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1976); Lockaby v. Wayne County, 63 Mich.App. 185, 234 N.W.2d 444 (1975); Knapp v. Dearborn, 60 Mich.App. 18, 230 N.W.2d 293 (1975); In re Jones Estate, 52 Mich.App. 628, 218 N.W.2d 89 (1974), lv. den. 392 Mich. 770 (1974). We feel we are constrained to follow precedent and rule that the governmental immunity statute is constitutional. Our Supreme Court recently reviewed this statute in three cases, Thomas v. Department of State Highways, 398 Mich. 1, 247 N.W.2d 530 (1976); Pittman v. City of Taylor, 398 Mich. 41, 247 N.W.2d 512 (1976); McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976). The Court did not address the constitutionality of this statute, although it did spend a considerable amount of time and space explaining its operation. The Court failed to discuss constitutionality even while Justice Levin concluded in dissent that the statute was violative of the equal protection clause, Thomas, supra, 398 Mich. at 26, 247 N.W.2d 530, Justice Levin dissenting. See also Thomas, at 19, n.8, 247 N.W.2d 530, Chief Justice Kavanagh and Justice Fitzgerald dissenting, and Pittman, supra, 398 Mich. at 49, n.8, 247 N.W.2d 512. While dissenting in Thomas, 398 Mich. at 15, 247 N.W.2d 530, Justices Kavanagh and Fitzgerald did state that the constitutional issues raised by the appellant were "not ripe for appellate resolution". Apparently the [75 MICHAPP 681] rest of the Court, with the exception of Justice Levin, agreed with Justices Kavanagh and Fitzgerald on this point. Until such time as the Supreme Court reverses prior law and finds the statute unconstitutional, we are bound by precedent.

We must now turn to the question of whether the operation of this outdoor roller skating facility, located in a municipal park, constitutes a governmental function which in turn, by operation of statute, renders the Authority immune from liability. M.C.L.A. § 691.1407; M.S.A. § 3.996(107). The Supreme Court in the recent governmental immunity cases concluded that the language of this statute "Obviously * * * must be construed as an 'affirmation' of case-law precedent on the subject of the state's immunity". Thomas, supra, 398 Mich. at 11, 247 N.W.2d at 533. The Court did recognize that in applying the traditional common law test of governmental immunity there will be many incidences in which "governmental activities have never been examined in terms of whether they constitute governmental function" and areas in which "the case-law precedent is less than clear". Thomas, supra, at 11, 247 N.W.2d at 533. This is such a case.

Michigan courts have traditionally treated the operation of recreational parks as a governmental function. Royston v. Charlotte, 278 Mich. 255, 270 N.W. 288 (1936); Matthews v. Detroit, 291 Mich. 161, 289 N.W. 115 (1939); Penix v. St. Johns, 354 Mich. 259, 92 N.W.2d 332 (1958). In the same year that Penix was decided, however, the Court also held that the operation of an entertainment hall was a proprietary function. Dohm v. Township of Acme, 354 Mich. 447, 93 N.W.2d 323 (1958). The determination of whether the operation of this facility constituted a governmental function depends upon a proper characterization of the nature of this operation.

[75 MICHAPP 682] Herein, plaintiff went to the Metropolitan Beach Roller Rink, the recreational facility operated and maintained by defendant Authority. Once there, she paid $1 for admission and skate rental, and proceeded to skate around the outdoor rink. Plaintiff's injuries resulted when she was knocked down from behind by another skater.

Defendant submitted affidavits that indicated that a 50-cent admission fee was imposed in order to have some control over users and to control some of the cost of operation, including maintenance, wages and other expenses. Expenses of the park are apparently met by general tax revenues of the Authority. ² Defendant maintains that the roller rink was not set up to make a profit and that the rates charged are not competitive with the rates charged at comparable facilities conducted by private business. Plaintiff, in fact, however, indicated in a deposition that this was the first time she patronized this facility, and that normally her skating was done at a private profit-oriented establishment.

[75 MICHAPP 683] A review of Michigan authority does not reveal any cases directly on point. A review of sister states' experiences also is inconclusive. A Florida court has held that a city exercises a proprietary function while operating playground and recreational areas. Daytona Beach v. Baker, 98 So.2d 804 (Fla.App., 1957). North Carolina has held that a city was engaged in a proprietary function when it operated and leased an arena for ice hockey games in return for a share of box office receipts. Aaser v. Charlotte, 265 N.C. 494, 144 S.E.2d 610 (1965). On the other hand, Connecticut has held in a case almost directly on point that operation of a skating rink at a community center by a town is a governmental function even though a small fee was charged for use of the facilities. Wolfe v. Branford, 22 Conn.Sup. 239, 167 A.2d 924 (1960). See Anno., Maintenance of auditorium, community recreational center building, or the like, by municipal corporation as governmental or proprietary function for purposes of tort liability, 47 A.L.R.2d 544. Each state's experience with and decisions regarding governmental immunity vary greatly. See Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich.L.Rev. 187 (1973). In resolving this matter, we feel Michigan authority must be followed and, therefore, we do not rely on other states' rather inconclusive treatment of this subject.

A review of Michigan authority reveals a recent case which at first glance appears to be on point. Smith v. Board of Commissioners of Huron-Clinton Metropolitan Authority, 49 Mich.App. 280, 212 N.W.2d 32 (1973). ³ In Smith, plaintiff was injured[75 MICHAPP 684] when he fell off a gangplank of an excursion boat at the same park we are concerned with herein. The Court held:

"The problem, so refined, is whether defendant operated the 'Island Queen' 'primarily for the purpose of producing a pecuniary profit for the state'. Considering the undisputed fact that the boat was operated during the four years immediately prior to plaintiff's injuries at a deficit, the only possible conclusion is that it was not for the purpose of profit.

"Considering both the statutory definition ⁴ and the four-year deficit, it was not reversible error for the trial court to conclude that defendant's operation of the 'Island Queen' was a governmental function, immune from tort liability under M.C.L.A. 69l.1407; M.S.A. 3.996(107)." 49 Mich.App. at 283-284, 212 N.W.2d at 34.

This decision in Smith is troubling to this panel and we do not need to say how we would have decided that case. We do note the following appropriate remarks made by Judge T. M. Burns dissenting in Smith :

"More importantly, however, the majority, in determining the question of the defendant's liability by relying exclusively upon whether a pecuniary profit was made in operating the excursion boat, place prospective injured plaintiffs at the mercy of a governmental agency's management skills and business practices. For example, in Matthews v. City of Detroit, 291 Mich. 161, [75 MICHAPP 685] 167-168, 289 N.W. 115, 118 (1939), a plaintiff visited the Detroit Zoological Park. The city operated a miniature railroad within the park to transport visitors to various points of interest. As here, there was no charge for admission to the park, but fare on the railroad was five cents. The park was maintained at the city's expense; however, the operation of the railroad was profitable, though offset by the greater expense of maintaining the park. Plaintiff paid the five-cent fare and was transported via the railroad to an exhibit on the grounds. While attempting to step off the car, however, the engine jerked and plaintiff was tossed to the platform and injured. Plaintiff brought suit against the city and recovered a jury verdict. The City of Detroit appealed alleging inter alia the defense of governmental immunity. In rejecting this argument and affirming the plaintiff's verdict, the Court stated:

" 'It is our conclusion that while the city of Detroit was maintaining the Zoological Park in its purely governmental capacity, nevertheless in its operation of the miniature railroad, with a resultant profit therefrom, it was exercising a proprietary function; and was liable for negligence arising from such operation.'

"To grant relief in one case and deny it in the case at bar merely upon the happenstance a profit was turned by a...