Smith v. Mimnaugh
| Decision Date | 08 April 1981 |
| Docket Number | Docket No. 49788 |
| Citation | 105 Mich.App. 209,306 N.W.2d 454 |
| Parties | Karen SMITH, as Next Friend of Gentry Smith, a minor, Plaintiff-Appellant, v. James MIMNAUGH, Lawrence H. Markey and Suzanne M. Markey, Husband and Wife, Wayne County Road Commission, a governmental agency, City of Northville, a municipal corporation, and Northville Public School District, a governmental agency, Jointly and Severally, Defendants, and Northville Public School District, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Arthur Y. Liss, Southfield, for plaintiff-appellant.
Dennis D. Alberts, Troy, for defendant-appellee.
Before CYNAR, P. J., and BASHARA and BEASLEY, JJ.
Five-year-old Gentry Smith was struck by an automobile as he was crossing a street on his way to Amerman Elementary School in the Northville School District. The school is located at the intersection of Eight Mile and Sheldon Roads. As young Gentry attempted to cross Eight Mile Road near its intersection with Sheldon, he was struck by an automobile traveling easterly on Eight Mile.
The defendant school district provided one crossing guard at the intersection. There was no pedestrian overpass at the site. Plaintiff Karen Smith filed this lawsuit on behalf of her son, Gentry, in the Oakland County Circuit Court. The complaint alleged inter alia that the school district negligently failed to provide sufficient crossing guards or an overhead crosswalk at the intersection.
The trial court granted the defendant school district's motion for summary judgment on the basis of the governmental immunity statute, M.C.L. § 691.1407; M.S.A. § 3.996(107).
The sole issue plaintiff presents in this appeal is whether the trial court erred in granting summary judgment to the school district on the basis of governmental immunity. We hold that it did not.
The question of whether the day-to-day operation of a school is a governmental function has been the subject of intense judicial scrutiny in Michigan. In Pittman v. City of Taylor, 398 Mich. 41, 247 N.W.2d 512 (1976), the Supreme Court specifically abrogated the common-law doctrine of governmental immunity. Justices Kavanagh, Levin and Fitzgerald indicated that the common-law principles of governmental immunity should no longer apply to school boards. Later, in Galli v. Kirkeby, 398 Mich. 527, 531, 248 N.W.2d 149 (1976), the same trio categorically and succinctly stated: "The day-to-day operation of a school is not a governmental function."
The Court's subsequent position in Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979), sheds light on the positions of the other four Justices. Justice Levin, writing for himself and Justices Kavanagh and Fitzgerald, conceded the position represented by the three of them did not command the concurrence of the majority of the Court. Id., 727-728, 275 N.W.2d 268.
Chief Justice Coleman and Justices Williams and Ryan, having already held that governmental immunity attaches to the operation of public schools in Pittman v. City of Taylor, supra, and Pichette v. Manistique Public Schools, 403 Mich. 268, 269 N.W.2d 143 (1978), agreed with Justice Levin's assessment. Justice Moody did not participate in Pittman or Pichette. However, he, too, concurred in Justice Levin's statement that the "Kavanagh, Levin, Fitzgerald view" did not claim a majority of the Court.
Furthermore, the case of Deaner v. Utica Community School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980), is an excellent analysis, applying Justice Moody's holding in Parker v. City of Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), and Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978), to a case involving...
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