Schwartz v. City of Detroit

• Decision Date: 23 May 1978
• Docket Number: Docket No. 77-2516
• Citation: 83 Mich.App. 590,269 N.W.2d 237
• Parties: Louis SCHWARTZ, Plaintiff-Appellant, v. CITY OF DETROIT and Detroit General Hospital, Defendants-Appellees. 83 Mich.App. 590, 269 N.W.2d 237
• Court: Court of Appeal of Michigan — District of US

Page 237

269 N.W.2d 237

Louis SCHWARTZ, Plaintiff-Appellant, v. CITY OF DETROIT and Detroit General Hospital Defendants-Appellees.

Docket No. 77-2516.

83 Mich.App. 590, 269 N.W.2d 237

Court of Appeals of Michigan.

May 23, 1978.

Released for Publication Sept. 7, 1978.

[83 MICHAPP 591] Lopatin, Miller, Bindes, Freedman & Bluestone by Michael Gagleard, Detroit, for plaintiff-appellant.

James S. Goulding, Detroit, for defendants-appellees.

Before T. M. BURNS, P. J., and CAVANAGH and RILEY, JJ.

PER CURIAM.

The defendant herein secured accelerated judgment on plaintiff's malpractice claim. Defendant's motion was granted on grounds of governmental immunity. The appropriate order was entered and plaintiff appeals by right.

At the outset, we note that defendant's motion for accelerated judgment on the grounds of governmental immunity should have been a motion for summary judgment. McCann v. Michigan, 398 Mich. 65, 77, 247 N.W.2d 521 (1976); Butler v. Wayne County Sheriff's Dept., 75 Mich.App. 202, 203, 255 N.W.2d 7 (1977). However, the plaintiff was not prejudiced by the mislabeling of defendant's motion as the motion averred that plaintiff had failed to state a claim upon which relief could be granted and because the defendant had governmental immunity.

Plaintiff's initial challenge to the constitutionality of the governmental immunity statute has been rejected by this Court. See Rohrabaugh v. [83 MICHAPP 592] Huron-Clinton Metropolitan Authority Corp., 75 Mich.App. 677, 256 N.W.2d 240 (1977), and cases discussed therein.

Plaintiff also contends that the operation of a community owned hospital is not a governmental function which is immune from tort liability. This precise question was recently decided against the plaintiff in White v. Detroit, 74 Mich.App. 545, 254 N.W.2d 572 (1977).

"While other areas may require us to use our 'creative genius' to resolve the issue of 'governmental function', Thomas v. Department of State Highways, 398 Mich. 1, 11, 247 N.W.2d 530, 533 (1977) an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function.

Martinson v. Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950); Nicholson v. Detroit, 129 Mich. 246, 88 N.W. 695 (1902); Knight v. City of Tecumseh, 63 Mich.App. 215, 234 N.W.2d 457 (1975); Lockaby v. Wayne County, 63 Mich.App. 185, 190-191, 234 N.W.2d 444, 446 (1975); Snow v. Freeman, 55 Mich.App. 84, 222 N.W.2d 43 (1974). We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability." White, supra, at 548, 254 N.W.2d at 574.

The trial court's decision is affirmed. Costs to defendants.

T. M. BURNS, Presiding Judge, dissenting.

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