Richardson v. Jackson County

407 N.W.2d 74, 159 Mich. App. 766
CourtMichigan Court of Appeals
DecidedMay 4, 1987
DocketDocket Nos. 85278, 85335
StatusPublished
Cited by5 cases

This text of 407 N.W.2d 74 (Richardson v. Jackson County) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Jackson County, 407 N.W.2d 74, 159 Mich. App. 766 (Mich. Ct. App. 1987).

Opinion

Per Curiam.

Defendants Jackson County, Board of Park Trustees of Jackson County, and Summit Township appeal by leave granted from an order of the Jackson Circuit Court, which denied their motions for accelerated judgment. Defendants assert that they were entitled to accelerated judgment because they are immune from plaintiff Richardson’s tort claim under the doctrine of governmental immunity. The court concluded, as is argued by plaintiff, that defendants’ governmental immunity was abrogated by the defendants’ ultra vires act of operating a park swimming area contrary to law.

Plaintiff’s decedent, Louis Allen, drowned on July 24, 1979, while at a park owned by Jackson County and primarily maintained and operated by Summit Township. The park is located on Vandercook Lake, and has a designated swimming area. The swimming area is marked by buoys placed by the defendants. The defendants did not obtain a permit for the buoys prior to their placement, as required by statute.

The parties dispute whether the decedent, a nonswimmer, was inside or outside of the marked swimming area when he was last seen alive. There is testimony to support both parties. Apparently, the buoys are located very near a sharp drop-off of the lake bottom. The testimony conflicts as to [769]*769whether the buoys are located before or after the drop-off. The decedent’s body was recovered in approximately fifteen feet of water, about twenty yards beyond the buoys.

Plaintiff, as personal representative of the decedent’s estate, commenced the present action on July 8, 1981. The complaint was originally filed in Wayne Circuit Court and alleged that the defendants’ operation of the public swimming area was not a "governmental function” as it was then defined in case law and set forth claims in ordinary negligence and nuisance.

By stipulation of the parties, venue was changed to Jackson Circuit Court. Jackson County and the Board of Park Trustees of Jackson County answered and asserted the affirmative defense of governmental immunity. Summit Township also raised the defense separately.

All of the defendants subsequently filed motions for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). They argued that the recreational use statute, MCL 300.201; MSA 13.1485, precluded any claims arising from the operation of the swimming area except for claims founded upon gross negligence or wanton and wilful misconduct. The court granted the motions, as well as plaintiff’s motion to file an amended complaint to set forth the permissible claims. Plaintiff subsequently filed his amended complaint, to conform with the court’s ruling. By stipulation, all other claims were dismissed with prejudice.

In addition, on July 16, 1982, plaintiff applied for leave to this Court to appeal the circuit court’s ruling. By order dated November 16, 1982, this Court held the application in abeyance pending our Supreme Court’s resolution of the issue in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982). Following the issuance of the decision [770]*770in Burnett, which supported the circuit court’s ruling, this Court denied leave to appeal by order dated February 4, 1983.

Jackson County subsequently moved for accelerated judgment on the basis that its ownership and operation of the park was cloaked with governmental immunity, as the term had been recently redefined in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), reh den 421 Mich 1202 (1985). Summit Township joined in that motion. Plaintiff answered and argued that by defendants’ failure to comply with the requirements of law regarding the placement of buoys, defendants had acted outside their powers and could not claim immunity. The court subsequently ruled that plaintiff was correct.

The sole issue on appeal is whether defendants’ failure to obtain and place swimming buoys as required by statute renders their operation of the Vandercook Lake park swimming area ultra vires and thus abrogates governmental immunity. Governmental immunity is broadly granted in MCL 691.1407; MSA 3.996(107), which at the time of the decedent’s drowning provided:

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.

The case of Ross v Consumers Power Co (On Rehearing), supra, pp 608-609, consolidated the views of the Michigan Supreme Court justices and announced a controlling interpretation of "govern[771]*771mental function.” Under Ross, all governmental agencies are immune from tort liability whenever they are engaged in the exercise of a governmental function. "Governmental function” is broadly defined as "an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.” Id., p 620. Conversely, an agency’s ultra vires activities are not entitled to immunity. Id., p 591. An ultra vires activity is one which is not expressly or impliedly mandated or authorized by law. Id., p 620.

The conflicting positions of the parties in the instant case rest upon differing perspectives of this definition of "ultra vires” in conjunction with the Marine Safety Act, MCL 281.1001 et seq.; MSA 18.1287(1) et seq. Defendants maintain that their violation of the act was an omission of an act, rather than a commission, and that mere failure to comply with the law is not an affirmatively ultra vires act which divests them of immunity. Plaintiff argues that such a distinction is unmerited and that it is factually unfounded at any rate because defendants improperly view their act as a function of running a park rather than as the unauthorized operation of a swimming area.

There is no dispute that Jackson County and Summit Township are broadly authorized to operate public recreational areas. MCL 123.51; MSA 5.2421 provides as follows:

Any city, village, county or township may operate a system of public recreation and playgrounds; acquire, equip and maintain land, buildings or other recreational facilities; employ a superintendent of recreation and assistants; vote and expend funds for the operation of such system.

Similarly, the Jackson County Board of Park Trustees is empowered to acquire park lands, MCL [772]*772123.66; MSA 5.2436, and the county is authorized to acquire, maintain and operate public parks, playgrounds and recreational centers through a parks and recreation commission. MCL 46.351 et seq.; MSA 5.570(101) et seq. Thus, the establishment and maintenance of a park is a "governmental function” entitled to immunity. See Royston v City of Charlotte, 278 Mich 255, 257; 270 NW 288 (1936), and Meredith v City of Melvindale, 11 Mich App 208, 212; 160 NW2d 793 (1968), rev’d on other grounds 381 Mich 572 (1969).

Without considering the Marine Safety Act, supra, the logic of defendants’ argument is simple and well-founded. In determining whether an act is ultra vires, this Court has previously distinguished between omissions and commissions in the context of intentional torts.

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Related

ISABELLA CTY. v. Michigan
449 N.W.2d 111 (Michigan Court of Appeals, 1989)
Richardson v. Jackson County
443 N.W.2d 105 (Michigan Supreme Court, 1989)
Marlin v. City of Detroit
441 N.W.2d 45 (Michigan Court of Appeals, 1989)
Roberts v. City of Troy
429 N.W.2d 206 (Michigan Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
407 N.W.2d 74, 159 Mich. App. 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-jackson-county-michctapp-1987.