Ross v. Consumers Power Co.

• Decision Date: 08 December 1982
• Docket Number: No. 1,Docket No. 64241,1
• Citation: 327 N.W.2d 293,415 Mich. 1
• Parties: Ruth ROSS and Michael Ross, Plaintiffs, v. CONSUMERS POWER COMPANY, a Michigan corporation, Defendant and Third-Party Plaintiff-Appellee, v. JOHN SAINES PROJECT 1 DRAINAGE DISTRICT, Third-Party Defendant-Appellant, and Wendell A. Gee, Third-Party Defendant. Calendar
• Court: Michigan Supreme Court

Page 293

327 N.W.2d 293

415 Mich. 1

Ruth ROSS and Michael Ross, Plaintiffs, v. CONSUMERS POWER COMPANY, a Michigan corporation, Defendant and Third-Party Plaintiff-Appellee, v. JOHN SAINES PROJECT 1 DRAINAGE DISTRICT, Third-Party

Defendant-Appellant,

and

Wendell A. Gee, Third-Party Defendant.

Docket No. 64241.

Calendar No. 1.

Supreme Court of Michigan.

Argued Dec. 9, 1980.

Decided Dec. 8, 1982.

W.E. Wisner, Jackson, for defendant and third party plaintiff-appellee Consumers Power Co.

Parker, Adams & Mazur, P.C. by James D. Adams, Jackson, for third party defendant-appellant.

Robert H. Fredericks, II, Chief Deputy Drain Com'r., Pontiac, for George W. Kuhn, Oakland County Drain Com'r. and The Michigan Ass'n of County Drain Com'rs.

Richard J. McClear, Joseph F. Lucas, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, for the City of Detroit, amicus curiae; George W. Crockett, Jr., Acting Corp. Counsel, Darryl F. Alexander, Asst. Corp. Counsel, Detroit, of counsel.

RYAN, Justice.

This is a governmental immunity case.

There are two issues to be decided:

(1) Whether the John Saines Project 1 Drainage District is immune from tort liability for certain alleged derelictions which, it is claimed, resulted in serious injury to plaintiff Michael Ross, and

(2) Whether the Court of Appeals, 93 Mich.App. 687, 287 N.W.2d 319, erred in applying the "essence of governing" test in determining that the appellant drainage district did not enjoy governmental immunity. ¹

We answer the questions yes and no respectively.

Resolution of both questions turns ultimately upon an interpretation of M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), the governmental immunity statute, which provides:

"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."

I

For purposes of this litigation, the principal operative words in the statute, of course, are "governmental function". What did the Legislature intend the expression "governmental function" to mean when it conferred immunity from tort liability upon "all governmental agencies" for injury resulting from the agencies' engagement in "the exercise or discharge" of such functions? The answer to that question has divided this Court for six years. Three tests have emerged from our decisions for determining whether a particular activity is a governmental function within the meaning of the statute.

The first of the tests has come to be known as "the common good of all" test, and both of the other two, for reasons explained below, have come to be known as the "essence of governing" tests. Neither expression is found in the governmental immunity statute. They are the result of judicial efforts to distill from the Legislature's somewhat cryptic statutory language an understandable and easily applied standard for identifying activities undertaken by agencies of government which the Legislature intends to be immune from tort liability.

A

The expression "common good of all" has been used for more than a half century in cases discussing the doctrine of governmental immunity. Originally, it was intended to distinguish between governmental activity which has an exclusively public purpose as opposed to that which is "of special corporate benefit or pecuniary profit". See Bolster v. City of Lawrence, 225 Mass. 387, 114 N.E. 722 (1917). The expression was first employed in our state's jurisprudence in cases concerning the immunity or liability of municipal corporations to distinguish between "governmental" and "proprietary" municipal functions. Gunther v. Cheboygan County Road Comm'rs., 225 Mich. 619, 621, 196 N.W. 386 (1923). See also Martinson v. Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950), and cases cited therein. More recently the expression has been used in governmental immunity cases interpreting M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) to describe the standard by which an activity of a governmental agency is judged to be a governmental function and therefore immune from tort liability at the common law. For example, in Perry v. Kalamazoo State Hospital, 404 Mich. 205, 211-212, 273 N.W.2d 421 (1978), discussing the immunity or liability of a public hospital, the lead opinion stated:

"Furthermore, the operation of a public hospital comes clearly within the frequently cited 'common good of all' definition of governmental function. ³"

If the briefs of the parties and amici curiae in this case are any indication, the expression "common good of all test" is now generally understood by the profession to describe the standard adopted by presently seated Justices Coleman, Williams, and Ryan to describe an activity which is statutorily immune from tort liability because it was immune from such liability at the common law.

B

The idiom "essence of governing test" has emerged from our decisions as a shorthand expression to describe another standard to determine whether a specific activity being performed by an agency of government, or at its direction, is the kind of "governmental function" over which the Legislature has conferred the protection of immunity from tort liability. There is a potential for confusion in the use of that expression because, while the expression is used by Chief Justice Fitzgerald and Justices Kavanagh and Levin to define an immune governmental function, it means something different to them than it did to the late Justice Moody.

The original version of the expression first appeared in our reports in the dissenting opinion of Justices Kavanagh and Fitzgerald, also signed by Justice Levin, in Thomas v. State Highway Dep't., 398 Mich. 1, 21, 247 N.W.2d 530 (1976). After first declaring:

"We conclude that a function is not 'governmental' in this context unless the particular activity that this function entails is uniquely associated with the activities having 'no common analogy in the private sector' ",

the dissenters observed:

"Thus, 'governmental function' is not delineated by questions of the broad scope of an activity undertaken or by financial or insurance considerations which may be indicative of a governmental undertaking, but rather by viewing the precise action allegedly giving rise to liability, and determining whether such action is sui generis governmental--of essence to governing." (Emphasis added.) ²

The expression next appeared in Justice Fitzgerald's opinion in Parker v. Highland Park, 404 Mich. 183, 193, 273 N.W.2d 413 (1978), again signed only by himself, Justice Kavanagh, and Justice Levin. There it was stated:

"We would limit the term 'govermental function' to those activities sui generis governmental--of essence to governing."

And:

"In adopting the 'of essence to government' [sic] test for defining the term 'governmental function', we reject the 'common good of all' test applied in Martinson v Alpena [328 Mich 595; 44 NW2d 148 (1950) ]."

Since the decision in Thomas, Justice Lindemer, who subscribed to the "common good of all" test and voted with the majority in that case, departed the Court and was succeeded by the late Justice Moody. Being unimpressed by the rationale of the Fitzgerald-Kavanagh-Levin opinion in Parker limiting governmental immunity to activities that have "no common analogy in the private sector", and equally unimpressed with the reasoning and result of the Ryan opinion, also signed by Chief Justice Coleman and Justice Williams, for reaffirmation of the common-law "common good of all" definition of governmental immunity, Justice Moody wrote separately, stating:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government's ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune." Parker, supra, 404 Mich. 200, 273 N.W.2d 413.

Having thus narrowed, at least for himself, the "of essence of governing" or "essence to government" or "governmental essence", or "essence of governing" test, Justice Moody established still a third view of the meaning of "governmental function" and a second meaning of the "essence of governing" test.

That three-three-one division of this Court as to the meaning of the legislative expression "governmental function" recurred in Perry v. Kalamazoo State Hospital, supra, which was released with the Parker case. The result in that case was a finding of immunity because Justice Moody, although applying his new definition of "essence of governing", found on the facts of the case that the defendant hospital was engaged in a governmental function and thus was immune from tort liability.

In the wake of our multihued definition of "governmental function" in Thomas, Parker, and Perry, the "essence of governing" expression has virtually taken on a life of its own. The Court of Appeals has employed the expression in at least 29 published opinions as the last pronouncement of a majority of this Court as to what is meant by the legislative term "governmental function". Until such time as a majority of this Court can agree upon a single meaning for the "essence to governing" or "essence of governing" expression, it will have no usefulness in defining the term "governmental function" as used in the statute and will continue to contribute...