Pichette v. Manistique Public Schools

269 N.W.2d 143, 403 Mich. 268, 1978 Mich. LEXIS 340

• Court: Michigan Supreme Court
• Decided: August 30, 1978
• Docket: 55472, (Calendar No. 1)
• Status: Published

Opinions

Fitzgerald, J.

Jeffrey Pichette, a 12-year-old, was injured on July 17, 1971, when he went down a slide on a playground of one of defendant’s schools. The playground was unsupervised and unfenced, and the slide was in a state of disrepair.

Plaintiffs filed a complaint against Manistique Public Schools in circuit court seeking damages. The trial court granted the Manistique Public Schools’ motion for summary judgment, grounded on governmental immunity. The Court of Appeals affirmed.

Plaintiffs raise three issues on appeal:

1) Whether the operation of a playground by a school district during the summer recess constitutes the "exercise or discharge of a governmental function” for purposes of immunity.

2) Whether a permanently attached slide located on a public school playground comes within the statutory "public buildings” exception to the doctrine of governmental immunity.

3) Whether the purchase of general liability insurance constitutes a waiver of the defense of governmental immunity. We reverse on the basis of the first and second issues and remand for trial.

I. Facts

Plaintiffs, residents of Ferndale, Michigan, were vacationing in Manistique in July 1971. On July 17, 1971, at approximately 5:30 p.m., plaintiff Jeffrey Pichette was playing on defendant’s Lincoln School playground. At that time of the year the school was not in session. The playground, which was immediately adjacent to the school, was unattended and completely accessible to the general public.

Jeffrey climbed up a slide located on the playground and slid down in a manner in which slides are expected to be used. The evidence reveals that the slide was approximately 18 feet long and 10 feet high and was embedded in concrete. The slide was constructed with a metal bottom and two wooden siderails. It is uncontroverted that the slide was old and that the wooden siderails were rotten. Jeffrey, while going down the slide, encountered an 11-inch wooden sliver from the siderail which became dislodged and went through his right thigh. He was rushed to the local hospital where emergency surgery was required to remove the sliver. The treating physician, understandably disturbed by such an injury, summoned the city police to the hospital operating room to inform them of the circumstances of the injury and to request that the playground slide be made inaccessible to the public until it could be repaired. On that evening, at the request of the police, two school employees dismantled the slide. On the following day the remnants were removed to the city dump.

On April 28, 1972, plaintiffs Jeffrey Pichette, a minor, by his next friend, Louis Pichette, and Louis Pichette filed suit in Schoolcraft County Circuit Court against Manistique Public Schools for injuries resulting from negligence. While admitting its negligence in permitting the physical condition of the slide to deteriorate and in failing to provide supervision of the playground, defendant, on August 25, 1972, filed a motion for summary judgment in accordance with GCR 1963, 117.2(1), based on the claim that it was engaged in the exercise of a governmental function and thus immune in tort liability. MCL 691.1407; MSA 3.996(107).

In granting defendant’s motion for summary judgment, the trial judge found that the operation of a playground was a governmental function, that a permanently attached slide did not come within the "public building” exception of the governmental immunity statute, MCL 691.1406; MSA 3.996(106), and that defendant’s purchase of liability insurance did not constitute a waiver of the defense of governmental immunity. A divided panel of the Court of Appeals affirmed on Decernber 6, 1973. 50 Mich App 770; 213 NW2d 784 (1973). Leave to appeal was granted by this Court on February 14, 1977. 399 Mich 840 (1977).

II. Issues

A.

The controlling statutory provision for governmental immunity is contained in MCL 691.1407; MSA 3.996(107). This section reads:

"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 added.)

This general grant of governmental immunity does not apply to actions "arising out of the performance of a proprietary function”, which is defined as "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”. MCL 691.1413; MSA 3.996(113). The governmental immunity statute also contains certain exceptions to the general grant of immunity.¹

The threshold question then, in determining whether a governmental agency is immune from tort liability, is whether or not a particular case is one in which a government agency is "engaged in the exercise or discharge of a governmental function”.

However, unlike the term "proprietary function”, the term "governmental function” is nowhere defined in the statute. As Justice Williams explained in Thomas v Dep’t of State Highways, 398 Mich 1, 9; 247 NW2d 530 (1976), " '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”.

Since the Legislature has used a term of judicial origin without further definition, we find that it is incumbent upon this Court to define the scope of "in the exercise or discharge of a governmental function”. We cannot accept the notion that with the enactment of the governmental immunity statute, the Legislature "froze” for all time state governmental immunity as it was then recognized by case law.²

In the past, analysis of the question of whether a particular governmental activity is immune followed the assumption that an activity engaged in by a governmental agency is either an immune "governmental function” or a nonimmune "proprietary function”, depending on whether the activity is for the "common good” or for special corporate benefit or pecuniary profit.³ See Gunther v Cheboygan County Road Commissioners, 225 Mich 619; 196 NW 386 (1923).

However, a review of the case law in Michigan reveals that except to the extent that immunity has been waived by statute, virtually all activities engaged in by governmental agencies have been considered "governmental” unless some pretense could be found for labeling an activity "proprietary”.⁴ Following this analysis, an injured party’s right of recovery would depend solely on the identity of the tortfeasor, rather than on the nature of the function being performed.

We cannot accept such a broad definition of "exercise or discharge of a governmental function” —a definition which for all practical purposes has no substantive meaning. With the great expansion of governmental activity in recent years, there are many services provided by local and state agencies which are not essentially governmental in nature.

We agree with Professor Cooperrider’s analysis that:

" 'Immunity,’ no longer a logical necessity, has become a policy question, and 'governmental function’ may properly be understood as a designation for situations where the government should be able to act or to remain passive without compensating citizens adversely affected by the decision — a species of privilege extending to those instances where there are sound policy reasons for nonliability despite the existence of circumstances that would subject a nongovernmental defendant to liability.” Cooperrider, The Court, The Legislature and Governmental Tort Immunity in Michigan, 72 Mich L Rev 187, 282 (1973).

Accordingly, we find that public policy dictates a narrow construction of "in the exercise or discharge of a governmental function” contained in MCL 691.1407; MSA 3.996(107). We are mindful of the fact that the ability of government to govern would be seriously jeopardized if the exercise of discretion in the formulation of governmental policy were exposed to tort liability. Indeed, as Professor Kenneth Culp Davis has noted:

"A city should not be liable for damage done by a zoning ordinance, which necessarily reduces the value of some property. Nor should the state be liable to the seller of a harmful drug if it enacts a statute prohibiting further sale of the drug, thereby destroying a profitable business.” 3 Davis, Administrative Law Treatise, § 25.11, p 484.

Nevertheless, we do not believe that the operation of governmental agencies would be undermined by making those governmental agencies liable for their tortious acts or omissions done in the course of their operation. We reiterate what Chief Justice Kavanagh and I, with the Concurrence of Justice Levin, said in Thomas v State Highway Dep’t, supra, p 21:

"The test then, of 'governmental function’ for purposes of the immunity statute, must be phrased in terms of the nature of the specific function. We conclude that a function is not 'governmental’ in this context unless the particular activity that this function entails is uniquely associated with those activities having 'no common analogy in the private sector because they reflect the imperative element in government, the implementation of its right and duty to govern’. Thus, a government is immune only when it is planning and carrying out duties which, due to their peculiar nature, can only be done by a government. The mere fact that a governmental agency is doing a certain act does not make such act a 'governmental function’ if a private person or corporation may undertake the same act. Thus, 'governmental function’ is not delineated by questions of the broad scope of an activity undertaken or by financial or insurance considerations which may be indicative of a governmental undertaking, but rather by viewing the precise action allegedly giving rise to liability, and determining whether such action is sui generis governmental — of essence to governing. Supervision of road construction (as opposed to the making of decisions as to whether to build a road), operation of hospitals and schools (as opposed to planning or deciding what health services to offer or what subject to teach), operation and supervision of playgrounds and swimming pools (as opposed to deciding whether to operate such playgrounds or pools) are not governmental functions within this definition. On the other hand, certain aspects of the exercise of the executive, legislative, or judicial powers are by their very nature governmental functions and necessarily removed from the undertakings of the private sector.” (Footnotes omitted.)

In view of the foregoing, we find in the instant case that Manistique Public Schools was not "engaged in the exercise or discharge of a governmental function,” within the meaning of MCL 691.1407; MSA 3.996(107), by merely providing for the operation of a playground. While defendant’s decision to operate the playground upon which Jeffrey Pichette was injured would be protected by governmental immunity, defendant should not escape liability for the negligent acts or omissions of its employees in the operation of that playground.

B.

Plaintiffs argue in the alternative that even if defendant’s operation of a school playground did constitute "the exercise or discharge of a governmental function” for purposes of immunity, the permanently attached slide located on defendant’s school playground comes with the "public buildings” exception of the governmental immunity statute. MCL 691.1406; MSA 3.996(106). We agree.

MCL 691.1406; MSA 3.996(106) provides, in pertinent part, as follows:

"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building * * *.”

Previous cases concerning the scope of MCL 691.1406; MSA 3.996(106) do not provide us with clear guidance in determining whether a permanently attached slide on a public school playground comes within the "public buildings” exception of the governmental immunity statute. A broken lock on a commode door was found to be the defective maintenance of a public building in Smith v Clintondale School Dist, 14 Mich App 153; 165 NW2d 332 (1968). Likewise, a defective door closing mechanism was held to be within the statutory exception in Jackson v Detroit Board of Education, 18 Mich App 73; 170 NW2d 489 (1969). In Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491 (1971), a permanently installed planing machine, which all parties apparently conceded was defective, was considered to be part of the building for purposes of the statutory "public buildings” exception. However, a "mini-trampoline” in a public building, but in no way attached to it, which plaintiffs never alleged to be improperly manufactured, negligently erected, or dangerously maintained, was held not to be within the exception in Cody v Southfield-Lathrup School Dist, 25 Mich App 33; 181 NW2d 81 (1970).

In both Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975), lv gtd 400 Mich 814 (1977), and Zawadzki v Taylor, 70 Mich App 545; 246 NW2d 161 (1976), the Court of Appeals held that, on the facts of those cases, the absence of safety devices or equipment did not constitute dangerous or defective conditions of the buildings involved.⁵ Following this analysis, the Court of Appeals concluded in Bush v Oscoda Area Schools, 72 Mich App 670; 250 NW2d 759 (1976), lv gtd 399 Mich 895 (1977), that plaintiffs allegation that defendant violated its statutory duty to maintain and repair public buildings was properly dismissed because the injury resulted not from the absence of safety devices or equipment but from the use to which the classroom was put.⁶

Defendant in the instant case would have us find that it is not liable for plaintiffs’ injuries under the "public buildings” exception of the governmental immunity statute, since a permanently attached slide is not itself a building "according to common and approved usage of the language”.⁷ The Court of Appeals agreed with this analysis of the statute:

"We do not believe that in the usual commonly accepted sense of the term a slide in a playground, anchored in concrete or not, is a public 'building’, statutorily speaking, and so hold.” 50 Mich App 770, 776.

Further support for defendant’s argument can be found in Stanton v Garfield Twp, 75 Mich App 537; 255 NW2d 675 (1977). In that case, the Court of Appeals, relying on its majority opinion in Pichette, rejected plaintiff’s argument that dangerous premises adjacent to a public building should come within the "public buildings” exception of the governmental immunity statute.

However, we find that such a narrow construction of the "public buildings” exception conflicts with what we perceive to be the purpose of MCL 691.1406; MSA 3.996(106). We believe that in providing for the three exceptions to the general grant of immunity contained in MCL 691.1407; MSA 3.996(107), the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public places, whether such places are public highways or public buildings.

Accordingly, we find it of little importance that the slide upon which plaintiff in the instant case was injured was not itself a public building or was on the premises of a public building rather than inside the building. To be sure, Jeffrey Pichette would not have encountered the dangerous condition which led to his injuries but for the existence of defendant’s school. To bar plaintiff recovery because he was injured by a defective condition on the premises of a public buiding, which were under the control of the governmental entity, rather than inside the building, would have no basis either in logic or justice. That such a narrow construction of the "public buildings” exception has no rational basis is amply demonstrated by the case at bar.

C.

Plaintiffs urge this Court to adopt the rule that the purchase of a general liability policy of insurance by a governmental agency constitutes a waiver of the defense of governmental immunity.

Plaintiffs cite Christie v Board of Regents of University of Michigan, 364 Mich 202; 111 NW2d 30 (1961), in which Justice Black wrote that the purchase of a liability insurance policy by a governmental agency should constitute a waiver of immunity to the extent of the insurance coverage. However, three concurring and two dissenting justices specifically refused to adopt this rule. Since this issue was decided in Christie, this Court and the Court of Appeals have consistently held that a governmental agency does not waive its immunity by purchasing a policy of general liability insurance. See Sayers v School Dist No 1, Fractional, 366 Mich 217; 114 NW2d 191 (1962); Branum v Board of Regents of University of Michigan, 5 Mich App 134; 145 NW2d 860 (1966); and Cody v Southfield-Lathrup School Dist, supra.

While a growing minority of jurisdictions has adopted the rule advanced by plaintiffs,⁸ the Legislature made its position on this issue abundantly clear with the enactment of 1964 PA 170, § 9. MCL 691.1409; MSA 3.996(109) provides, in pertinent part, as follows:

"The existence of any policy of insurance indemnifying any governmental agency against liability for damages is not a waiver of any defense otherwise available to the governmental agency in the defense of the claim.”

In view of the foregoing, we do not feel free to adopt what has been characterized as the "enlightened” view, as plaintiffs would have us do.

Because we have partially rejected the bases for granting defendant’s motion for summary judgment, the Court of Appeals and trial court are reversed. We remand the matter to the trial court for further proceedings in accordance with this opinion.

No costs, a public question being involved.

Kavanagh, C.J., and Levin, J., concurred with Fitzgerald, J.

1 These exceptions include the following: MCL 691.1402; MSA 3.996(102), failure to keep highways fit and safe for travel; MCL 691.1405; MSA 3.996(105), negligent operation of motor vehicles; and MCL 691.1406; MSA 3.996(106), dangerous and defective buildings.

2 In Thomas, supra, 17, fn 4, Chief Justice Kavanagh and I stated:

"We do not, however, construe this sentence [the second sentence of MCL 691.1407; MSA 3.996(107)] to be an 'affirmation’ of case-law precedent preserving for all time state governmental immunity heretofore recognized by case law. To read it in such a manner would be to assume that the Legislature failed to recognize that the evolution of case-law precedent is exclusively committed to the judicial branch of government. We rather find that by the last sentence of the section it was intended that the governmental immunity act was not to be construed in such a way as to alter, unless so indicated by express statutory provision, state governmental immunity as recognized by case-law precedent existing at the time of enactment. Such precedent no longer has force in light of our decision in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976).”

3 Professor Kenneth Culp Davis notes that "[t]he [governmental proprietary] distinction is probably one of the most unsatisfactory known to the law, for it has caused confusion not only among the various jurisdictions but almost always within each jurisdiction”. 3 Davis, Administrative Law Treatise, § 25.07, p 460. See Lykins v Peoples Community Hospital, 355 F Supp 52 (ED Mich, 1973); Spencer v General Hospital of Dist’ of Columbia, 138 US App DC 48; 425 F2d 479 (1969); Elgin v Dist’ of Columbia, 119 US App DC 116; 337 F2d 152 (1964).

4 In Hodgins v Bay City, 156 Mich 687; 121 NW 274 (1909), this unfortunate distinction led this Court to find that negligence in maintaining wires for lighting homes made defendant city liable but negligence in maintaining wires for lighting streets and public buildings did not. That a city could be liable for maintaining one set of wires but not another set of wires on the same pole is illustrative of the legal confusion to which this distinction inevitably leads.

5 In Lockaby plaintiff, who had been jailed and evaluated as having a "mental problem”, was confined in a segregated ward in the jail designed for inmates with such problems and allegedly sustained serious injuries from running into a wall. The majority of the Court concluded that the failure to provide a padded cell did not create a dangerous condition within the meaning of the "public buildings” exception of the governmental immunity statute. In Zawadzki, plaintiff suffered an eye injury in a school gymnasium when struck by a tennis ball hit by defendant from the adjacent tennis court. The Court rejected plaintiff’s argument that the absence of netting or other screening between the courts constituted a dangerous or defective condition.

6 In Bush, plaintiff was injured by an explosion in a classroom which was being used for laboratory work. The Court wrote that "[rjather than stating facts indicating an inherently dangerous condition of the building for the contemplated use, the complaint alleges a course of classroom conduct which would be dangerous even in a properly equipped laboratory”. 72 Mich App 670, 699-700 (opinion by Peterson, J.).

7 MCL 8.3a; MSA 2.212(1) provides for the following rule of statutory construction:

"All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

8 See 68 ALR2d 1437, § 4, p 1448, where the annotator notes:

"In a few jurisdictions the courts have taken the view (which is worthy of characterization as enlightened) that to the extent that a liability insurance policy protects a governmental unit against tort liability, the otherwise-existing immunity of the unit is removed.”

At present, this "visibly growing minority” consists of Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Minnesota, Montana, Nebraska, New Mexico, North Carolina, Ohio, Tennessee, Vermont, Wisconsin and Wyoming. See 68 ALR2d 1437, § 4, p 1448, and Later Case Service.