Ross v. Consumers Power Co.
| Decision Date | 22 January 1985 |
| Docket Number | 68861,70246,70177,68885,70598 and 71266,69672,Docket Nos. 64241,70456,Nos. 1-9,s. 1-9 |
| Citation | 363 N.W.2d 641,420 Mich. 567 |
| Parties | , 23 Ed. Law Rep. 671 Ruth ROSS and Michael Ross, Plaintiffs, v. CONSUMERS POWER COMPANY, a Michigan corporation, Defendants, Third-Party Plaintiff-Appellee, v. JOHN SAINES PROJECT 1 DRAINAGE DISTRICT, Third-Party Defendant-Appellant and Wendell A. Gee, Third-Party Defendant. (On Rehearing) Mary O. WILLIS, Administratrix of the Estate of Jeffrey Willis, Deceased, Plaintiff-Appellee and Cross-Appellant, v. Dennis NIENOW, Erma Knox and Cyndi Hunt, Jointly and Severally, Defendants- Appellants and Cross-Appellees. Mary O. WILLIS, Administratrix of the Estate of Jeffrey Willis, Deceased, Plaintiff-Appellee and Cross-Appellant, v. DEPARTMENT OF SOCIAL SERVICES, Defendants-Appellants and Cross-Appellees. Russell SIENER, Jr., Plaintiff-Appellant, v. DEPARTMENT OF MENTAL HEALTH, Hawthorne Center, Defendants-Appellees. James Louis ROCCO, Individually and as Independent Personal Representative for the Estate of Daniel Rocco, Deceased, and Judith Lynne Rocco, Plaintiffs-Appellees and Cross-Appellants, v. DEPARTMENT OF MENTAL HEALTH and Department of Social Services, and Ypsilanti Regional Psychiatric Hospital, Defendants-Appellants, Cross-Appellees. James REGULSKI, Plaintiff-Appellant, v. William MURPHY, Leo Hansen and The Wayne-Westland School District, Jointly and Severally, Defendants-Appellees. Elvera TREZZI, Administratrix of the Estate of Rosa Brigolin, Deceased, and Elvera Trezzi, Administratrix of the Estate of Gino Brigolin, Deceased, Plaintiffs-Appellants, v. CITY OF DETROIT, and Philip Torbit, John Doe and Mary Roe, Defendants. DISAPPEARING LAKES ASSOCIATION, a Michigan non-profit corporation, et al., Plaintiffs-Appellants, and Vidosh Brothers, Inc., Intervening Plaintiff-Appellee, v. DEPARTMENT OF NATURAL RESOURCES, Defendants-Appellees. Jose Baudelio ZAVALA and Maria Zavala, Plaintiffs-Appellants, v. Sergeant Andrea ZINSER, Officer Freida Y. Harris and the City of Detroit, a Municipal Corporation, Jointly and Severally, Defendants-Appellees, and Linda Guerra, a/k/ |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William K. Basinger, Theodore E. Hughes, Alan F. Hoffman, Thomas L. Casey, Asst. Attys. Gen., Lansing, for Dennis Nienow, Erma Knox, State of Mich., Dept. of Social Services, Dept. of Natural Resources, Dept. of Mental Health, Hawthorne Center, Ypsilanti Regional Psychiatric Hosp.
Howard Schwartz, Birmingham, for Jose Zavala and Maria Zavala; Gagleard, Addis, Imbrunone & Gagleard, Michael A. Gagleard, Troy, of counsel.
City of Detroit, a Mun. Corp., Donald A. Pailen, Corp. Counsel, William Dietrich, William L. Woodard, Abigail Elias, Asst. Corp. Counsel, Detroit, for City of Detroit, Andrea Zinser and Freida Harris.
William E. Wisner, Jackson, for Consumers Power Co.
Parker, Adams, Mazur & Matyjaszek, P.C. by James D. Adams, Jackson, for John Saines Project 1 Drainage Dist.
Richard J. McClear, Joseph F. Lucas, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, for City of Detroit, amicus curiae; George W. Crockett, Jr., Acting Corp. Counsel, Darryl F. Alexander, Asst. Corp. Counsel, Detroit, of counsel.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Joseph V. Walker, John P. Jacobs, Christine D. Oldani, for amicus curiae, State Bar of Michigan, Public Corp. Law Section.
Robert H. Fredericks, II, Pontiac, for George W. Kuhn, Oakland County Drain Com'r and Michigan Ass'n of County Drain Com'rs.
Robert F. Travis, Bauckham, Reed, Lang, Schaefer & Travis, P.C., Kalamazoo, for amicus curiae Michigan Townships Ass'n.
Harry D. Hirsch, Jr., Southfield, for Regulski; E.R. Whinham, Southfield, of counsel.
Millard Becker, Jr., Rosalind H. Rochkind, Garan, Lucow, Miller, Seware, Cooper & Becker, Detroit, for Murphy et al.
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Steven G. Silverman, Detroit, for Trezzi et al.
Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. by Elizabeth J. Larin, Detroit, for Disappearing Lakes Ass'n.
Grant & Busch by Gary M. Busch, Southfield, for Russell Siener.
Adrienne G. Southgate, Charfoods, Christensen, Gilbert & Archer, P.C., Detroit, for Rocco et al. Chollette, Perkins & Buchanan by Edward D. Wells, Grand Rapids, for Cyndi Hunt.
Stephen D. Turner, Robert S. Lipak, Baxter & Hammond, Grand Rapids, for Mary Willis.
Barris, Sott, Denn & Driker by Eugene Driker and Morley Witus, Detroit, for City of Troy, amicus curiae.
These nine cases require us to reexamine the extent of immunity from tort liability which the governmental tort liability act, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq., and the common law provide to the state and its agencies, non-sovereign governmental agencies, and the officers, agents and employees of these state and local governmental agencies. We hold:
1) All governmental agencies (state and local) are statutorily liable for injuries arising out of the failure to keep highways in reasonable repair (M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996; negligent operation of a government-owned motor vehicle by an officer, agent, or employee (M.C.L. Sec. 691.1405; M.S.A. Sec. 3.996; and dangerous or defective conditions in public buildings under the agency's control (M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996.
2) All governmental agencies (state and local) have tort liability for injuries arising out of the performance of a proprietary function. "Proprietary function" is defined as any activity conducted primarily for pecuniary profit, excluding activities normally supported by taxes or fees (see M.C.L. Sec. 691.1413; M.S.A. Sec. 3.996.
3) All governmental agencies (state and local) are immune from tort liability for injuries arising out of the exercise or discharge of a non-proprietary, governmental function. "Governmental function" is defined as any activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. An agency's ultra vires activities are therefore not entitled to immunity.
4) All governmental agencies (state and local) are vicariously liable for the negligent operation of government-owned motor vehicles by their officers, employees, and agents (M.C.L. Sec. 691.1405; M.S.A. Sec. 3.996. Vicarious liability for all other torts may be imposed on a governmental agency only when its officer, employee or agent, acting during the course of his employment and within the scope of his authority, commits a tort while engaged in an activity which is non-governmental or proprietary, or which falls within a statutory exception.
5) Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative, and executive authority. Lower level officers, employees, and agents are immune from tort liability only when they are
a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;
b) acting in good faith; and
c) performing discretionary-decisional, as opposed to ministerial-operational, acts.
"Discretionary-decisional" acts are those which involve significant decision-making that entails personal deliberation, decision and judgment. "Ministerial-operational" acts involve the execution or implementation of a decision and entail only minor decision-making.
The governmental immunity act sets forth four categories of activity for which tort liability may be imposed. All governmental agencies, both state and local 3 are statutorily liable for bodily injury and property damage arising out of the failure to keep their highways in reasonable repair; 4 the negligent operation of a government-owned motor vehicle by the agency's officer, agent, or employee; 5 and dangerous or defective conditions in public buildings under the agency's control. 6 In addition, the state and its agencies, departments, and commissions are liable when engaged in a proprietary function. 7
The heart of the act is Sec. 7, which provides broad immunity...
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