Thomas v. State Highway Dept.
| Decision Date | 23 November 1976 |
| Docket Number | No. 7,7 |
| Citation | 247 N.W.2d 530,398 Mich. 1 |
| Parties | Janet THOMAS et al., Plaintiffs and Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant and Appellee. 398 Mich. 1, 247 N.W.2d 530 |
| Court | Michigan Supreme Court |
James D. Wines, Brighton, for plaintiff-appellant.
Louis J. Caruso, Francis, J. Carrier, Lansing, for defendant-appellee.
This case concerns government immunity from liability for tort. 1 Such immunity may arise either from judicial policy or legislation. This case does not involve judicially created but rather legislatively created immunity.
On appeal the question raised by the Court of Claims grant of summary judgment is whether the facts pled in this case, the death of an employee of a subcontractor who was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way, deal with a as provided by statute. 2
We hold that the facts as pled deal with a as defined by common law precedent at the time of the enactment of the pertinent governmental immunity statute and affirm the Court of Appeals.
The legislative provision for governmental immunity is contained in M.C.L.A. § 691.1407; M.S.A. § 3.996(107). This section provides:
(emphasis added)
To this general grant of immunity the Legislature has enacted certain exceptions 3 none of which here is applicable.
The key to determining the applicability of the immunity defense is in ascertaining whether or not the particular case is one 'wherein the * * * agency is engaged in the exercise or discharge of a governmental function.'
The term 'governmental function' is nowhere defined in the statute. However, this does not mean that we have been left with no guidelines in determining what the Legislature intended by adopting this particular phraseology.
'Governmental function' is a term of art which has been used by the courts of this State to describe those activities of government which due to their public nature should not give rise to liability at common law. Through many years of application, the label of governmental function has been attached to a number of governmental activities.
Words and phrases which have acquired meaning in the common law are interpreted as having the same meaning when used in statutes dealing with the same subject matter as that which they were associated at the common law. 2A Sands, Sutherland Statutory Construction (3d ed), § 50.03, [398 MICH 10] pp. 277--278. See People v. Den Uyl, 320 Mich. 477, 486, 31 N.W.2d 699 (1948).
It is therefore reasonable to conclude that the Legislature, in choosing the precise terminology of 'governmental function' to describe the limits of governmental immunity, intended that activities described as governmental functions at common law at the time of enactment of the new legislation would enjoy Statutory immunity from tort liability.
The historical context in which the governmental immunity statute was enacted suggests that the Legislature, alarmed at the prospects of liability for government activities previously protected, sought to restore the immunity enjoyed by municipalities prior to Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961) and to codify the State's existing immunity to insulate governmental entities from tort liability. 4
The Legislature accomplished this goal by employing a term, 'governmental function', which served to mark the boundaries of common law immunity, and used it to set the limits of statutory immunity.
This conclusion is supported by the language employed in M.C.L.A. § 691.1407; M.S.A. § 3.996(107). This section provides in pertinent part:
'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.' 5
Obviously this language must be construed as an 'affirmation' of case law precedent on the subject of the State's immunity.
II--STATE WAS ENGAGED IN A 'GOVERNMENTAL FUNCTION'
Given that the Legislature intended activities regarded as governmental functions under common law should be considered governmental functions under the statute, the question becomes whether under the facts the Department of State Highways at the time of decedent's fatal injury was engaged in the exercise or discharge of a 'governmental function' under common law immunity.
The question whether or not a government agency was engaged in a governmental function will not always be easily answered. In many instances governmental activities have never been examined in terms of whether they constitute governmental function and in others the case law precedent is less than clear. In those cases the courts will be forced to adapt case law precedent as best they can and will no doubt be called upon to use their own creative genius to resolve the case. However, in this case, prior court decisions have clearly established that the activity involved--the maintenance and improvement of a highway--is a governmental function.
In Gunther v. Board of County Road Commissioners of Cheboygan County, 225 Mich. 619, 631, 196 N.W. 386, 390 (1923), this Court held:
'Our former decisions, as well as the great weight of authority sustain the contention of defendant's counsel and the holding of the trial judge that in this work (maintenance and repair of highways) the counties are discharging a governmental function, and, in the absence of statute, are immune from liability for their negligence or that of their agent in carrying on this work.' See In re Moross, 242 Mich. 277, 281, 218 N.W. 683, Cert. den. 278 U.S. 635, 49 S.Ct. 32, 73 L.Ed. 552 (1928) () and Johnson v. Board of County Road Commissioners of Ontonagon County, 253 Mich. 465, 468, 235 N.W. 221 (1931). 6
Confronted by the uniformity and clarity with which prior case law has treated the repair, maintenance and construction of highways as a governmental function it is difficult to conclude other than that the activity involved in this case must be regarded as a governmental function under the statute and that as a result the defense of governmental immunity is available to the State Highway Department. 7
The result reached in this decision is the result mandated by the governmental immunity statute as it presently exists.
This statute is not as precise or pervasive as it could be. The practical effect of the Legislature's decision to establish governmental immunity in the manner it has chosen is to return much of the task of determining the limits of governmental immunity to the courts. Under the present statutory scheme the judiciary, looking to past precedents (which in many cases are less than clear), must decide on a case by case basis which activities may be classified as governmental functions and thus entitled to immunity. Until such judicial decisions are made, which may not be until a number of years have passed, those who must try to live with this statute will encounter many areas of doubt as to whether a given activity is or is not a governmental function. Such confusion could be more quickly relieved by more specific legislative guidelines. 8
Under the guise of 'judicial refinement,' the Kavanagh/Fitzgerald opinion has sought to impose rather novel standards for governmental immunity. For example, the opinion suggests that if a police commission plans a particular type of war on crime, that is a governmental function, but if a police officer under that plan performs the traditional police function of arresting a criminal, that is not a governmental function. 9 This certainly does not in any way correspond to the meaning the Legislature intended.
Under the governmental immunity statute as it presently is constituted, the common law and common sense indicate that the State was engaged in a governmental function at the time decedent was fatally injured and thus the State is entitled to raise the defense of governmental immunity until the Legislature enacts a Governmental Immunity Law holding otherwise.
The Court of Appeals is affirmed. No costs, a public question.
Plaintiffs' decedent, an employee of a subcontractor, was engaged in the construction of a state highway when he was killed by falling earth when tunneling under a railroad right-of-way. This action was originally brought in the Court of Claims alleging, Inter alia, negligence of the State Highway Department. 1 Summary judgment was entered for the defendant. That judgment was affirmed by the Court of Appeals.
On appeal to this Court, plaintiffs raise three issues. Only the third issue deals with the constitutionality and construction of the governmental immunity act, 1964 P.A. 170; M.C.L.A. § 691.1401 Et seq.; M.S.A. § 3.996(101) Et seq. 2 We conclude that in this case, on the basis of the statutory language, the state is not immunized from liability. We do not reach the other issues raised as they are not ripe for appellate resolution.
In their complaint plaintiffs contended that defendant was negligent in failing to 'supervise the digging out of the dirt beneath the Grand Trunk...
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