Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp.

256 N.W.2d 240, 75 Mich. App. 677, 1977 Mich. App. LEXIS 1149
CourtMichigan Court of Appeals
DecidedMay 17, 1977
DocketDocket 28208
StatusPublished
Cited by12 cases

This text of 256 N.W.2d 240 (Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp.) 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
Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp., 256 N.W.2d 240, 75 Mich. App. 677, 1977 Mich. App. LEXIS 1149 (Mich. Ct. App. 1977).

Opinions

D. E. Holbrook, P. J.

This action arose out of injuries sustained by plaintiff while skating at a roller rink operated by defendant Huron-Clinton Metropolitan Authority Corporation (hereafter referred to as Authority). Defendant moved for accelerated judgment and dismissal on the basis of governmental immunity, MCLA 691.1401 et seq.; MSA 3.996(101) et seq., and the trial court granted [680]*680the motion. Plaintiffs motion for rehearing was denied. Plaintiff appeals as of right.

Plaintiff initially challenges the constitutionality of the governmental immunity statute. This Court has frequently been faced with such arguments and has declined to hold the statute unconstitutional.1 Wynn v Cole, 68 Mich App 706; 243 NW2d 923 (1976), Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975), Knapp v Dearborn, 60 Mich App 18; 230 NW2d 293 (1975), In re Jones Estate, 52 Mich App 628; 218 NW2d 89 (1974), lv den 392 Mich 770 (1974). We feel we are constrained to follow precedent and rule that the governmental immunity statute is constitutional. Our Supreme Court recently reviewed this statute in three cases, Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976). The Court did not address the constitutionality of this statute, although it did spend a considerable amount of time and space explaining its operation. The Court failed to discuss constitutionality even while Justice Levin concluded in dissent that the statute was violative of the equal protection clause, Thomas, supra, at 26, Justice Levin dissenting. See also Thomas, at 19, n 8, Chief Justice Kavanagh and Justice Fitzgerald dissenting, and Pittman, supra, at 49, n 8. While dissenting in Thomas at 15, Justices Kavanagh and Fitzgerald did state that the constitutional issues raised by the appellant were "not ripe for appellate resolution”. Apparently the [681]*681rest of the Court, with the exception of Justice Levin, agreed with Justices Kavanagh and Fitzgerald on this point. Until such time as the Supreme Court reverses prior law and finds the statute unconstitutional, we are bound by precedent.

We must now turn to the question of whether the operation of this outdoor roller skating facility, located in a municipal park, constitutes a governmental function which in turn, by operation of statute, renders the Authority immune from liability. MCLA 691.1407; MSA 3.996(107). The Supreme Court in the recent governmental immunity cases concluded that the language of this statute "Obviously * * * must be construed as an 'affirmation’ of case-law precedent on the subject of the state’s immunity”. Thomas, supra, at 11. The Court did recognize that in applying the traditional common law test of governmental immunity there will be many incidences in which "governmental activities have never been examined in terms of whether they constitute governmental function” and areas in which "the case-law precedent is less than clear”. Thomas, supra, at 11. This is such a case.

Michigan courts have traditionally treated the operation of recreational parks as a governmental function. Royston v Charlotte, 278 Mich 255; 270 NW 288 (1936), Matthews v Detroit, 291 Mich 161; 289 NW 115 (1939), Penix v St Johns, 354 Mich 259; 92 NW2d 332 (1958). In the same year that Penix was decided, however, the Court also held that the operation of an entertainment hall was a proprietary function. Dohm v Township of Acme, 354 Mich 447; 93 NW2d 323 (1958). The determination of whether the operation of this facility constituted a governmental function depends upon a proper characterization of the nature of this operation.

[682]*682Herein, plaintiff went to the Metropolitan Beach Roller Rink, the recreational facility operated and maintained by defendant Authority. Once there, she paid $1 for admission and skate rental, and proceeded to skate around the outdoor rink. Plaintiff’s injuries resulted when she was knocked down from behind by another skater.

Defendant submitted affidavits that indicated that a 50-cent admission fee was imposed in order to have some control over users and to control some of the cost of operation, including maintenance, wages and other expenses. Expenses of the park are apparently met by general tax revenues of the Authority.2 Defendant maintains that the roller rink was not set up to make a profit and that the rates charged are not competitive with the rates charged at comparable facilities conducted by private business. Plaintiff, in fact, however, indicated in a deposition that this was the first time she patronized this facility, and that normally her skating was done at a private profit-oriented establishment.

[683]*683A review of Michigan authority does not reveal any cases directly on point. A review of sister states’ experiences also is inconclusive. A Florida court has held that a city exercises a proprietary function while operating playground and recreational areas. Daytona Beach v Baker, 98 So 2d 804 (Fla App, 1957). North Carolina has held that a city was engaged in a proprietary function when it operated and leased an arena for ice hockey games in return for a share of box office receipts. Aaser v Charlotte, 265 NC 494; 144 SE2d 610 (1965). On the other hand, Connecticut has held in a case almost directly on point that operation of a skating rink at a community center by a town is a governmental function even though a small fee was charged for use of the facilities. Wolfe v Branford, 22 Conn Sup 239; 167 A2d 924 (1960). See Anno, Maintenance of auditorium, community recreational center building, or the like, by municipal corporation as governmental or proprietary function for purposes of tort liability, 47 ALR2d 544. Each state’s experience with and decisions regarding governmental immunity vary greatly. See Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187 (1973). In resolving this matter, we feel Michigan authority must be followed and, therefore, we do not rely on other states’ rather inconclusive treatment of this subject.

A review of Michigan authority reveals a recent case which at first glance appears to be on point. Smith v Board of Commissioners of the Huron-Clinton Metropolitan Authority, 49 Mich App 280; 212 NW2d 32 (1973).3 In Smith, plaintiff was in[684]*684jured when he fell off a gangplank of an excursion boat at the same park we are concerned with herein. The Court held:

"The problem, so refined, is whether defendant operated the 'Island Queen’ 'primarily for the purpose of producing a pecuniary profit for the state’. Considering the undisputed fact that the boat was operated during the four years immediately prior to plaintiffs injuries at a deficit, the only possible conclusion is that it was not for the purpose of profit.
"Considering both the statutory definition4

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Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp.
256 N.W.2d 240 (Michigan Court of Appeals, 1977)

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Bluebook (online)
256 N.W.2d 240, 75 Mich. App. 677, 1977 Mich. App. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rohrabaugh-v-huron-clinton-metropolitan-authority-corp-michctapp-1977.