Johnson v. Detroit Metropolitan Airport

350 N.W.2d 295, 133 Mich. App. 603

• Court: Michigan Court of Appeals
• Decided: April 3, 1984
• Docket: Docket 71079
• Status: Published

Opinions

Per Curiam.

This is a suit for personal injuries suffered when plaintiff slipped and fell due to the presence of ice cream on the floor of the terminal building at Detroit Metropolitan Airport._

The trial court granted summary judgment on the theory that defendant enjoyed governmental immunity.

The trial court buttressed its judgment on the case of Fulco, Inc v Martin Tropf & Sons, Inc, 36 Mich App 39; 193 NW2d 194 (1971), which did hold that the defendant airport was clothed in governmental immunity. That panel of this Court believed that the question was controlled by the following statutory section:

"The acquisition of any lands for the purpose of establishing airports, landing fields or other aeronautical facilities; the acquisition of airport protection privileges; the acquisition, establishment, construction, enlargement, improvement, maintenance, equipment and operation of airports, landing fields and other aeronautical facilities, and the exercise of any other powers herein granted to political subdivisions of this state are hereby declared to be public, governmental and municipal functions, exercised for a public purpose, in matters of public necessity.” (Emphasis supplied.) MCL 259.132; MSA 10.232.

Clearly, this statute was designed by the Legislature to give the defendant the power of eminent domain, such as railroads, gas companies, and public utilities enjoy. The operational portion of the statute refers solely to the acquisition of lands for airport purposes. To this end the word "acquisition” appears three times in the paragraph relied upon by the Court in Fulco. It was not designed to cloak defendant with governmental immunity. If the intent of the Legislature were, as this Court said it was, to confer on defendant governmental immunity, that could have been done by the addition of a few well chosen words and an amendment to the title of the act. We, therefore, hold that Fulco was decided on a faulty premise and we decline to follow it.

As every casual reader of the law is aware, the Supreme Court has been unable to frame a comprehensive formula to determine when immunity applies and when it does not. The quandry in which the Court finds itself was best expressed by Justice Ryan in Ross v Consumers Power Co, 415 Mich 1, 11-12; 327 NW 2d 293 (1982), when he said:

"This case has been under consideration for some time. All of the members of the Court have attempted to identify a single, workable rule for reasonably easy application which would enable litigants, advocates, judges, students, insurers, legislators, and taxpayers, and all we serve, to predict with reasonable accuracy which governmental activities are immune from tort liability and which are not. Despite special attention during opinion conference to that goal and the best good-faith effort of each member of the Court, it has not been possible to develop majority adherence to such a rule.

"It must be left to another day and to either a newly constituted Court or a change of mind among presently seated members, in just the right combination, to enable us to enunciate the definitive rule which we all would welcome.”

Ross repudiates by implication the "common good of all” test, Smith v Ginther, 379 Mich 208; 150 NW2d 798 (1967), and the "essence of government test”, Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978).

The absence of direction in this important field is accentuated by the absence of precedent, the common-law doctrine of governmental immunity having been abrogated by the Court. Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976).

The Legislature, in adopting the statute which conferred governmental immunity on municipalities, did so in the light of the law as it existed at the time of the passage of the act.

"Except 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. 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.” (Emphasis supplied.) MCL 691.1407; MSA 3.996(107).

The test for governmental immunity was then whether the governing unit was engaged in a governmental or proprietary function. Knapp v City of Dearborn, 60 Mich App 18; 230 NW2d 293 (1975).

The Legislature attempted to incorporate the common-law concept of governmental versus proprietary function by enacting into the law the following section which, while never used by the courts, has never been declared unconstitutional:

"The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a. proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the state for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1, 1965.” MCL 691.1413; MSA 3.996(113).

Historically, the operation of an airport was considered a proprietary rather than a governmental function even though a strong public interest strain was inherent in such operation. Marks v City of Battle Creek, 358 Mich 114; 99 NW2d 587 (1959). The same public interest strain could also be found in the municipal operation of bus and streetcar companies, which were always considered proprietary even though the profit element was more frequently lacking than present in such operations.

Under the facts of this case and for the purpose of disposing of this case only,¹ the operation of a municipal airport is a proprietary function and, by statutory definition, not entitled to governmental immunity.

Reversed and remanded for trial. No costs.

1 Other functions of a municipal airport may be governmental or proprietary in nature depending on the facts of that case.