Weaver v. Duff Norton Co.

• Decision Date: 11 June 1982
• Docket Number: Docket No. 53598
• Citation: 4 Ed. Law Rep. 853,320 N.W.2d 248,115 Mich.App. 286
• Parties: Jeffrey WEAVER, Plaintiff-Appellee, v. DUFF NORTON COMPANY, A Foreign Corporation And Subsidiary Of Amstar Corporation, A Foreign Corporation, Douglas St. Clair, And John Beinkowski, Jointly And Severally, Defendants, and Waterford District School Board, Defendant-Appellant. 115 Mich.App. 286, 320 N.W.2d 248, 4 Ed. Law Rep. 853
• Court: Court of Appeal of Michigan — District of US

Page 248

320 N.W.2d 248

Jeffrey WEAVER, Plaintiff-Appellee, v. DUFF NORTON COMPANY, A Foreign Corporation And Subsidiary Of Amstar Corporation, A Foreign Corporation, Douglas St. Clair, And John Beinkowski, Jointly And Severally, Defendants and Waterford District School Board, Defendant-Appellant.

Docket No. 53598.

115 Mich.App. 286, 320 N.W.2d 248, 4 Ed. Law Rep. 853

Court of Appeals of Michigan.

Submitted Jan. 22, 1982.

Decided March 23, 1982.

Released for Publication June 11, 1982.

[115 MICHAPP 287] Samuel I. Bernstein, Southfield, for plaintiff-appellee.

Ogne, Jinks, Ecclestone & Alberts, P.C., by Dennis[115 MICHAPP 288] D. Alberts and Stephen T. Moffett, Troy, for defendant-appellant.

Before KAUFMAN, P. J., and V. J. BRENNAN and TAHVONEN, ^* JJ.

PER CURIAM.

Defendant Waterford District School Board appeals by leave granted from a June 11, 1980, Oakland County Circuit Court order denying its motion for summary judgment, GCR 1963, 117.2(1), based on the statute on governmental immunity, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107).

As part of its educational program, the Waterford District School Board operates a vocational education program under which students hold part-time jobs with private companies, learning skills and performing tasks within the students' chosen fields. In this case, plaintiff was provided a job with the Clawson Tank Company as a welder as part of his vocational education training. While on the premises of the company and while engaged in his duties under that program, plaintiff suffered severe injuries to his right foot when an object fell on his foot on December 31, 1975.

Plaintiff commenced this personal injury action in Oakland County Circuit Court on December 13, 1978. His complaint alleged, inter alia, that the Waterford District School Board was negligent in the following respects: (a) failing to adequately supervise the work areas and conditions at the Clawson Tank Company; (b) failing to adequately instruct or warn plaintiff of the dangers associated with his work at the company; (c) failing to adequately instruct plaintiff in the proper and safe [115 MICHAPP 289] procedures for performing his work; and (d) allowing, directing, and/or instructing plaintiff to work in an area that the school district knew or should have known was dangerous.

The issue in this case is whether a public school district's operation of a vocational education program is a governmental function.

A motion based on GCR 1963, 117.2(1), challenges the legal sufficiency of the complaint and is to be considered by an examination of the pleadings alone. It is the duty of the reviewing court to accept as true well-pled facts in the complaint and to determine whether those claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Duhame v. Kaiser Engineering of Michigan, Inc., 102 Mich.App. 68, 71, 300 N.W.2d 737 (1980), lv. den., 411 Mich. 955 (1981).

The question presented in this case is one of first impression. In four recent cases, this Court has held that the operation of a public school is a governmental function. Deaner v. Utica Community School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980); Churilla v. School Dist. for the City of East Detroit, 105 Mich.App. 32, 306 N.W.2d 381 (1981); Smith v. Mimnaugh, 105 Mich.App. 209, 306 N.W.2d 454 (1981); Everhart v. Board of Education of the Roseville Community Schools, 108 Mich.App. 218, 310 N.W.2d 338 (1981). In Gaston v. Becker, 111 Mich.App. 692, 314 N.W.2d 728 (1981), this Court held that the hiring and supervising of public school teachers is a governmental function. See also Holzer v. Oakland University, 110 Mich.App. 355, 313 N.W.2d 124 (1981) (operation of a state university is a governmental function immune from tort liability). However, no case has considered the question of whether a public school district's operation of a [115 MICHAPP 290] vocational education program is a governmental function.

The cases of Parker v. 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), provide the relevant legal guidelines for determining whether a particular governmental activity is a governmental function for purposes of the immunity statute, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). In Parker, the Court held that the operation of a public general hospital is not a governmental function. In Perry, it held that the operation of a state mental hospital is a governmental function.

Justices Kavanagh, Levin and Fitzgerald "limit the term 'governmental function' to those activities sui generis governmental--of essence to governing". Parker, supra, 404 Mich. 193, 273 N.W.2d 413 (plurality opinion of Fitzgerald, J.); Perry, supra, 404 Mich. 215, 273 N.W.2d 421 (dissenting opinion of Kavanagh, C. J.). In the view of these three justices, a governmental function is restrictively defined as one that "can be done only by the government". Id. Justices Ryan, Williams, and Chief Justice Coleman "look to the common law for guidance in determining whether, in a given case, a governmental agency is exercising or discharging a 'governmental function' for purposes of the immunity statute". Parker, supra, 404 Mich. 203, 273 N.W.2d 413 (dissenting opinion of Ryan, J.). These three justices apply the broad "common good of all" definition of governmental function. Id.

Justice Moody emerged as the swing vote in Parker and Perry. He agrees that only those activities of essence to governing are governmental functions, but he applies the governmental essence test more expansively than Justices Fitzgerald, Kavanagh and Levin:

[115 MICHAPP 291] "It is held today that activity conducted in a general hospital operated by a municipality is not a governmental function for immunity purposes. This conclusion is predicated on the basis that the term 'governmental function' is limited to those activities sui generis governmental--of essence to governing.

"In Thomas [v. Dept. of State Highways, 398 Mich. 1, 247 N.W.2d 530], it was suggested that this test meant that a function is not governmental unless the particular activity involved has 'no common analogy in the private sector'. Furthermore, it was observed that the perimeter 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 .

"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 there could be essential governmental activity which would have some common analogy in the private sector.

"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 the government's ability to govern, activities that fall outside this perimeter, although performed by a government...