Ross v. Consumers Power Co.

Decision Date19 November 1979
Docket NumberDocket No. 78-2140
Citation287 N.W.2d 319,93 Mich.App. 687
PartiesRuth ROSS and Michael Ross, Plaintiffs, v. CONSUMERS POWER COMPANY, a Michigan Corporation, Defendant and Third-Party Plaintiff-Appellant, v. JOHN SAINES PROJECT 1 DRAINAGE DISTRICT, and Wendell A. Gee, Third-Party Defendants-Appellees. 93 Mich.App. 687, 287 N.W.2d 319
CourtCourt of Appeal of Michigan — District of US

[93 MICHAPP 689] William E. Wisner, James E. Brunner, Jackson, for appellant.

James D. Adams, Jackson, for John Saines Project 1 Drainage Dist.

Charles A. Nelson, Jackson, for Wendell A. Gee.

Willard F. Rappleye, Jackson, for Ruth Ross.

[93 MICHAPP 690] Before V. J. BRENNAN, P. J., and BRONSON and CYNAR, JJ.

BRONSON, Judge.

Third-party plaintiff, Consumers Power Company (Consumers), appeals as of right the trial court's grant of summary judgment in favor of third-party defendant John Saines Project 1 Drainage District (District) on the grounds of governmental immunity.

On August 24, 1971, Michael Ross was electroshocked and severely injured when a construction vehicle near which he was working came in contact with electric power lines maintained by Consumers. At the time, Ross was an employee of Dunigan Brothers, Inc., the construction firm that was building the drain. Ross sued Consumers, and the case was eventually settled. On October 18, 1977, Consumers filed an amended third-party complaint against the District and Wendell Gee, the Jackson County Drainage Commissioner at the time of the incident, alleging essentially a three-count cause of action. Two of the counts were in contract, and the third was in tort. The District's motion for summary judgment was granted, the trial court holding that the District was immune from tort liability based on the doctrine of governmental immunity. 1 The issue on appeal is whether the trial court was correct in according the District the shield of governmental immunity.

I

Governmental immunity in Michigan is now a statutory creature, the Supreme Court having progressively[93 MICHAPP 691] abrogated the common-law doctrine. 2 The statute provides that "(e)xcept 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". M.C.L. § 691.1407; M.S.A. § 3.996(107). The statute speaks only to immunity from Tort liability; it does not grant immunity from contract claims. Accordingly, the trial court's grant of summary judgment as to the two contract counts is reversed and the cause is remanded to the trial court. 3

The crucial issue we must decide in determining whether the District is protected from liability on the tort count is whether the alleged acts and omissions of the District were part of the "exercise or discharge of a governmental function". The Legislature's use of the common-law term "governmental function" was originally thought to signal a legislative intent to have the statute codify the common-law meaning of that term as of the date of the state's enactment. Thomas v. Dep't of State Highways, 398 Mich. 1, 247 N.W.2d 530 (1976). In two recent Supreme Court cases, however, this [93 MICHAPP 692] approach was rejected, and the term was held to be subject to judicial refinement. Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978). See Cronin v. Hazel Park, 88 Mich.App. 488, 276 N.W.2d 922 (1979). Parker and Perry have been accorded present, rather than prospective effect. Berkowski v. Hall, 91 Mich.App. 1, 282 N.W.2d 813 (1979).

In Parker, the analysis of Justices Fitzgerald, Kavanagh and Levin advanced from its prior status as dissent 4 to become the lead opinion of the Court. According to this analysis, the term "governmental function" is limited "to those activities Sui generis governmental of essence to governing". Parker, supra, 404 Mich. at 193, 273 N.W.2d at 416. 5 These three justices have previously taken this analysis at least one step further, resulting in a distinction between the "planning" aspects of governmental activity, which would be protected from liability, and the "operational" aspects, which would not. 6

The Court in Parker was split, however, and as a result the critical analysis was supplied by Justice[93 MICHAPP 693] Moody. He accepted the proposition that the Court was free to begin anew in its interpretation of "governmental function", and that immunity should apply only to those activities of government that are of the essence of governing. His analysis amounts to a refinement of that idea, however, and results in a somewhat broader definition of "governmental function":

"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 parameter, although performed by a government agency, are not governmental functions and therefore not immune." Parker, supra, 200, 273 N.W.2d 419.

More specifically, it seems apparent that Justice Moody differs from the Fitzgerald-Kavanagh-Levin analysis in his reluctance to accept a planning/operations distinction as a means of applying the "essence of governing" test.

"Furthermore, it was observed that the parameter of governmental function will most often 'run along the line of distinction between decisional and planning aspects of governmental duties on the one hand, and operational aspects on the other'. 398 Mich. 21, 22, 247 N.W.2d (530), 538, 539.

"Although these concepts may have some significance in given cases when applying the 'governmental essence' test, in other instances they could be misleading or inapplicable. For instance, it would be incongruous to find that the operational activities of some public agencies are other than governmental. Likewise, conceivably[93 MICHAPP 694] there could be essential governmental activity which would have some common analogy in the private sector." Parker, supra, 200, 273 N.W.2d 419.

Justice Moody's analysis becomes critical at this particular stage in the development of the immunity doctrine because he has emerged as the "swing vote" on questions of the application of governmental immunity. If a given fact situation would satisfy his definition of "governmental function", then it would most likely satisfy Justices Fitzgerald, Kavanagh, and Levin as well. In Parker, application of his analysis led him to agree with Justices Fitzgerald, Kavanagh, and Levin that the day-to-day operations of a municipal general hospital were not unique to government nor pursuant to a governmental mandate, and, as a result, were not shielded from liability. In Perry, on the other hand, Justice Moody's approach led him to reach the same result as Justices Coleman, Ryan, and Williams, upholding the immunity of a state mental hospital. The different result for public mental hospitals and public general hospitals was based on the state's substantial appropriations for mental health, the legislatively declared policy that services for the seriously mentally handicapped be fostered and provided, and the necessity of public mental facilities for the civil and criminal disposition of the mentally diseased by the courts. Justice Moody noted that private mental health facilities existed, but, since their numbers were inadequate to "deal with the substantial institutional needs of the public", public mental facilities were held to perform "an essentially unique activity mandated by legislative action". Perry, supra, 214, 273 N.W.2d 424.

Parker and Perry have been discussed in only a limited number of cases to date. In Cronin v. Hazel [93 MICHAPP 695] Park, supra, plaintiff was injured while roller skating during activity conducted by the city's recreation department at a community center building. Plaintiff claimed that the injury resulted from the city's negligent supervision of the event. The Court held that the operation of a roller skating program by a municipal corporation is not a governmental function because it is not "of essence to governing" and, as a result, determined there was no need to ascertain whether the specific activity complained of, I. e., negligent supervision, was an exercise or discharge of that function. Likewise, in Daugherty v. Michigan, 91 Mich.App. 658, 283 N.W.2d 825 (1979), this Court held that the operation of a state recreational area is not of essence to governing, nor, due to its unique character or governmental mandate, can it be effectively accomplished only by government. The plaintiff was allowed to proceed with the action, and governmental immunity was not applied. In Berkowski v. Hall, supra, this Court held that the operation of an EMS unit by a municipal fire department was not a governmental function. However, in Central Advertising Co. v. Novi, 91 Mich.App. 303, 283 N.W.2d 730 (1979), and Antkiewicz v. Motorists Mutual Ins. Co., 91 Mich.App. 389, 283 N.W.2d 749 (1979), this Court held respectively that enactment of a regulatory ordinance relating to signs and conducting arson investigations were governmental functions under Parker and Perry and were entitled to immunity.

In Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979), the Supreme Court once again split on the question of whether governmental immunity was applicable. In Lockaby, plaintiff brought an action against several governmental defendants for injuries allegedly suffered while he [93 MICHAPP 696] was a prisoner in the custody of the Wayne County Sheriff. Summary judgment was...

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