Ross v. Consumers Power Co.

363 N.W.2d 641, 420 Mich. 567

• Court: Michigan Supreme Court
• Decided: January 22, 1985
• Docket: Docket Nos. 64241, 68861, 68885, 69672, 70177, 70246, 70456, 70598, 71266. (Calendar Nos. 1-9)
• Status: Published

Opinions

Per Curiam.

These nine cases require us to reexamine the extent of immunity from tort liability which the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., and the common law provide to the state and its agencies, non-sovereign governmental agencies, and the officers, agents, and employees of these state and local governmental agencies. We hold:

1) All governmental agencies (state and local) are statutorily liable for injuries arising out of the failure to keep highways in reasonable repair (MCL 691.1402; MSA 3.996[102]), negligent operation of a government-owned motor vehicle by an officer, agent, or employee (MCL 691.1405; MSA 3.996[105]), and dangerous or defective conditions in public buildings under the agency’s control (MCL 691.1406; MSA 3.996[106]).

2) All governmental agencies (state and local) have tort liability for injuries arising out of the performance of a proprietary function. "Proprietary function” is defined as any activity conducted primarily for pecuniary profit, excluding activities normally supported by taxes or fees (see MCL 691.1413; MSA 3.996[113]).

3) All governmental agencies (state and local) are immune from tort liability for injuries arising out of the exercise or discharge of a non-proprietary, governmental function. "Governmental function” is defined as any activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. An agency’s ultra vires activities are therefore not entitled to immunity.

4) All governmental agencies (state and local) are vicariously liable for the negligent operation of government-owned motor vehicles by their officers, employees, and agents (MCL 691.1405; MSA 3.996[105]). Vicarious liability for all other torts may be imposed on a governmental agency only when its officer, employee, or agent, acting during the course of his employment and within the scope of his authority, commits a tort while engaged in an activity which is non-governmental or proprietary, or which falls within a statutory exception.

5) Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative, and executive authority. Lower level officers, employees, and agents are immune from tort liability only when they are

a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;

b) acting in good faith; and

c) performing discretionary-decisional, as opposed to ministerial-operational, acts.

"Discretionary-decisional” acts are those which involve significant decision-making that entails personal deliberation, decision, and judgment. "Ministerial-operational” acts involve the execution or implementation of a decision and entail only minor decision-making.

6) If the officer, agent, or employee is acting within the course of his employment and the scope of his authority, the governmental agency may pay for, engage, or furnish an attorney; represent the officer, agent, or .employee in the action; and compromise, settle, pay, or indemnify claims or judgments against the officer, agent, or employee. Such action, however, does not impose tort liability upon the governmental agency (MCL 691.1408; MSA 3.996[108]).

I. The Governmental Tort Liability Act

The causes of action in each of these cases arose after the governmental immunity statute was enacted.¹ The title of the act, as amended,² states that it is

"AN ACT to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of this liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; to provide for the legal defense of public officers and employees; to provide for reimbursement of public officers and employees for certain legal expenses; and to repeal certain acts and parts of acts.”

The governmental immunity act sets forth four categories of activity for which tort liability may be imposed. All governmental agencies, both state and local³ are statutorily liable for bodily injury and property damage arising out of the failure to keep their highways in reasonable repair,⁴ the negligent operation of a government-owned motor vehicle by the agency’s officer, agent, or employee,⁵ and dangerous or defective conditions in public buildings under the agency’s control.⁶ In addition, the state and its agencies, departments, and commissions are liable when engaged in a proprietary function.⁷

The heart of the act is § 7, which provides broad immunity from tort liability to governmental agencies whenever they are engaged in the exercise or discharge of a governmental function:

"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.” MCL 691.1407; MSA 3.996(107).

Two problems are readily apparent in interpreting this provision. First, the second sentence statutorily affirms the law of sovereign (state) immunity from tort liability as it existed at the time the statute was enacted. Thus, this Court must examine the history of sovereign immunity to determine the exact parameters of the state’s immunity. Second, "governmental function” is not defined in the act. This Court has struggled for more than a century to reach a consensus on this term’s definition and application in a myriad of factual situations.

Finally, the act allows a governmental agency to provide legal assistance to and reimbursement of settlements and judgments levied against its officers, agents, and employees under certain circumstances.⁸ However, the act does not define under what circumstances such officers, agents, and employees may be held liable for their tortious acts. Nor does it specifically address the question of whether a governmental agency may be held vicariously liable for such torts under a theory of respondeat superior. We must again resort to an analysis of common law to determine the parameters of official liability.

In resolving the questions presented by this act, our goal has been to create a cohesive, uniform, and workable set of rules which will readily define the injured party’s rights and the governmental agency’s liability. We recognize that our case law on these questions is confused, often irreconcilable, and of little guidance to the bench and bar. We have made great efforts to reexamine our prior collective and individual views on this subject in order to formulate an approach which is faithful to the statutory language and legislative intent. Wherever possible and necessary, we have reaffirmed our prior decisions. The consensus which our efforts produce today should not be viewed as this Court’s individual or collective determinations of what would be most fair or just or the best public policy. The consensus does reflect, however, what we believe the Legislature intended the law to be in this area.

II. Sovereign (State) Immunity

Although the concepts of "sovereign immunity” and "governmental immunity” are related, they have distinct origins and histories:

" '[Sovereign’ immunity and 'governmental’ immunity are not synonymous. True, they have been over the years used interchangeably in decisions, but a delineation may be helpful. Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions; boards, institutions, and instrumentalities of the State. The reason is the State is the only sovereignty in our system of government, except as the States delegated part of their implicit sovereignty to the Federal government.

"Over the years, by judicial construction, this 'sovereign’ immunity has been transmogrified into 'governmental’ immunity and made applicable to the 'inferior’ divisions of government, i.e., townships, school districts, villages, cities, and counties, but with an important distinction. These subdivisions of government enjoyed the immunity only when engaged in 'governmental’ as distinguished from 'proprietary’ functions.” Myers v Genesee County Auditor, 375 Mich 1, 6, 8-9; 133 NW2d 190 (1965) (opinion by O’Hara, J.) (emphasis in the original).

Sovereign immunity is an ancient common-law concept that predates the statehood of Michigan by centuries. The sovereign immunity rule stated that the "sovereign” was immune from suit unless he consented to the action. Over the years, lawyers and judges have articulated two bases for this rule. The first rationale developed from the perception that the sovereign (the king) was somehow "divine” or above the law. As such, the king could commit no wrong and was, therefore, never properly sued. The second explanation was that the king was superior to the courts which he had created and vested with a portion of his power. As such, while the sovereign could do wrong, there was no entity with power to enter judgment against the sovereign. Only by the sovereign’s consent (essentially, a self-inflicted judgment) could a party recover for an injury caused by the sovereign. This rule, with its dual rationale, was the common-law rule for all sovereigns in the early nineteenth century.⁹

From statehood forward, Michigan jurisprudence recognized that the sovereign (the state) was immune from all suits, including suits for tortious injuries which it had caused. The rationale for sovereign immunity was never grounded in a belief that the state could do no wrong. Rather, sovereign immunity existed in Michigan because the state, as creator of the courts, was not subject to them or their jurisdiction. As the Supreme Court stated in Michigan State Bank v Hastings, 1 Doug 225, 236 (Mich, 1844):

"The principle is well settled that, while a state may sue, it cannot be sued in its own courts, unless, indeed, it consents to submit itself to their jurisdiction. * * * [A]n act of the legislature, conferring jurisdiction upon the courts in the particular case, is the usual mode by which the state consents to submit its rights to the judgment of the judiciary.”

Thus, the original Michigan rule held that the state was immune from all suits except to the extent that it consented to be sued in its courts.

Sovereign immunity was not, however, an absolute bar to recovery against the state. As noted in Hastings, the Legislature could and did consent to suits. In 1842, the difficulties caused by legislative disposition of every claim against the state led to the creation of the Board of State Auditors. The Legislature authorized the board to hear and decide claims against the state.¹⁰ In effect, the Board of State Auditors exercised the "sovereign” legislative power to consent to suit or to assert sovereign immunity. However, when the board chose not to consent to "suit,” the issue was not appealable to the state courts. As the Supreme Court stated in People ex rel Ayres v Board of State Auditors, 42 Mich 422, 427-428; 4 NW 274 (1880):

"[N]o claim against the State could, under the old Constitution, be allowed except by the Legislature. The State has never, before or since, allowed itself to be sued in its own courts * * *.

"* * * In providing for a different method of determining claims against the State, it was not deemed proper to include it within the judicial power * * *.”¹¹

In the 1920’s, most of this general claims function was transferred to the State Administrative Board. Among other matters, the board was statutorily authorized to inquire into, settle, and pay claims for injuries incurred by state employees during the course of their employment,¹² and to entertain and pay claims for damages arising out of the negligent construction, improvement, or maintenance of state trunk line highways.¹³ In. addition, it had the discretionary power to hear and determine claims against the state arising from the "negligence, malfeasance or misfeasance of any state officer, employe, commission, department, board, institution, or other governmental division * * *.”¹⁴

In 1939, the Legislature created the Court of Claims. 1939 PA 135, § 2. The Court of Claims was given exclusive jurisdiction "[t]o hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies.” §8(1). By creating a court with jurisdiction over the state, the Legislature destroyed the theoretical basis for sovereign immunity. There was now an entity with power to hear cases against the state, and individual consent to suit was no longer required. However, the Legislature retained sovereign immunity from tort liability in § 24:

"This act shall in no manner be construed as enlarging the present liabilities of the state and any of its departments, commissions, boards, institutions, arms or agencies.”

The distinction between immunity from suit and immunity from liability was made clear in Manion v State Highway Comm’r, 303 Mich 1, 19-21; 5 NW2d 527 (1942). There, plaintiff sued for injuries received while employed by the State Highway Commission. The state successfully moved to dismiss the suit on the grounds that the injuries were sustained during the maintenance of a highway, which was a governmental function. In determining exactly what immunity the Legislature had waived by enacting 1939 PA 135, the majority wrote:

"The State, as sovereign, is immune from suit save as it consents to be sued, and any relinquishment of sovereign immunity must be strictly interpreted * * *.

"There is a distinction between sovereign immunity from suit and sovereign immunity from liability. The latter exists when the sovereign is engaged in a governmental function. The former may be waived without a waiver of the latter. Section 24 of the court of claims act * * * reads:

" 'This act shall in no manner be construed as enlarging the present liabilities of the State and any of its departments, commissions, boards, institutions, arms or agencies.’

"I construe this to mean that the State’s immunity from liability while engaged in a governmental function is preserved because the waiver of this defense would enlarge the 'present liabilities of the State.’

"The State is not liable in this instance because of its sovereign immunity from liability in the performance of a governmental function and not because of its sovereign immunity from suit.” (Emphasis added.)

Subsequent decisions emphasized that the common-law doctrine of sovereign immunity from tort liability could not be waived or abrogated except by statute. Mead v Michigan Public Service Comm, 303 Mich 168, 173; 5 NW2d 740 (1942); McNair v State Highway Dep’t, 305 Mich 181, 187; 9 NW2d 52 (1943). In addition, sovereign immunity from tort liability was recognized as a defense only when the state was engaged in the exercise or discharge of a governmental function. See, eg., Daszkiewicz v Detroit Bd of Ed, 301 Mich 212, 220; 3 NW2d 71 (1942); Mead, supra, p 171; Thomas v Dep’t of State Highways, 398 Mich 1, 11, fn 5; 247 NW2d 530 (1976); Bofysil v Dep’t of State Highways, 44 Mich App 118, 126; 205 NW2d 222 (1972), lv den 389 Mich 768 (1973).¹⁵

In 1943, the Legislature abolished a significant portion of the state’s sovereign immunity from tort liability by amending § 24 of 1939 PA 135. The state was now liable for injuries caused by the misfeasance or negligence of its officers and employees while acting within the scope of their employment. 1943 PA 237, § 24.¹⁶ However, 1943 was repealed soon thereafter by 1945 PA 87, § 2, thus resurrecting the state’s previous common-law sovereign immunity from tort liability. 1945 PA 87, § 1, however, created a limited statutory exception to this common-law immunity — the state was liable for damages arising out of the negligent operation of a state-owned motor vehicle by a state employee. The fact that the state was engaged in a governmental function at the time of the injury was not a defense.¹⁷ Thus, the Legislature impliedly acknowledged that the state enjoyed immunity only when it was engaged in the exercise or discharge of a governmental function.

The viability of the doctrine of sovereign immunity was not seriously assailed until Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). There, plaintiffs decedent fell down an elevator shaft in a city building while moving furniture out of city offices. The majority held that the city was immune from liability because the injury was incurred while the city was performing a governmental function. In the future, however, this would not be so. Justice Edwards, joined by Justices Smith, T. M. Kavanagh, and Souris, wrote:

"From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan. In this case, we overrule preceding court-made law to the contrary.” Williams, supra, p 250.

However, Justice Black’s concurring opinion held that immunity from liability would only be abolished for municipalities, not for the state and its subdivisions:

"We are not considering today — as the opinions of both Brothers suggest — 'the doctrine of governmental immunity.’ That doctrine includes within its purview the State and 'its departments, commissions, boards, institutions, arms or agencies.’ * * * We are considering the common-law rule that municipal corporations are immune from tort liability. 'Municipal corporations’ are distinctively definable * * * and care should be taken that today’s decision is confined thereto.” Id., p 278 (emphasis in original).

Thus, by a 4-4 vote, sovereign immunity was reaffirmed. Justice Black’s position was thereafter adopted in McDowell v State Highway Comm’r, 365 Mich 268, 270-271; 112 NW2d 491 (1961).¹⁸

In reaction to this Court’s abolition of common-law governmental immunity for municipalities in Williams, and in anticipation of a similar demise of immunity for counties, townships, and villages,¹⁹ the Legislature enacted the governmental immunity act in 1964. The first sentence of § 7 was intended to not only restore governmental immunity to non-sovereign governmental agencies, but to provide uniform treatment for state and local agencies.²⁰ Furthermore, the affirmance of cornmon-law sovereign immunity in the second sentence of § 7 was a clear directive that this Court henceforth could not further extend Williams and judicially abrogate the state’s sovereign immunity. See Thomas, supra, 398 Mich 10.

Therefore, at the time § 7 was enacted, the state was immune from tort liability when it was engaged in the exercise or discharge of a governmental function, unless a statutory exception was applicable. This same immunity is reiterated by the first and second sentences of § 7.

Subsequent decisions of this Court did not change the parameters of statutory sovereign immunity. In Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971), this Court affirmed the Court of Appeals determination that § 7 was unconstitutional because it violated the title-object clause of Const 1963, art 4, § 24.²¹ During the pendency of the case before this Court, however, the Legislature amended the title of the governmental immunity act to remedy the constitutional problem. It did not modify § 7 in any significant respect.²² Such action indicates that the Legislature did not intend to change the scope of statutory sovereign or governmental immunity from that intended in* the original 1964 version of § 7._

The net effect of Maki was that statutory sovereign and governmental immunity did not exist until August 1, 1970, the effective date of the Legislature’s amendment ,of the act’s title. Causes of action arising before this date were governed by this Court’s common-law decisions. Pittman v City of Taylor, 398 Mich 41, 46; 247 NW2d 512 (1976) (opinion of Kavanagh, C.J.).

Pittman subsequently abolished common-law sovereign immunity as to that case and those cases pending as of November 23, 1976 (the date Pittman was decided) which had raised an express challenge to common-law "governmental” (i.e., sovereign) immunity. Id., p 50.²³ ********************23 However, the lead opinion specifically noted that its holding abolished only common-law immunity; the statutory immunity conferred by the governmental immunity act had to be given effect, unless it was unconstitutional to do so. Id., p 49, fn 8. Since Pittman was decided long after the Legislature enacted and amended the act, it is not relevant to determining the legislative intent behind the second sentence of § 7.

In summary, at the time § 7 was enacted and became effective, the state enjoyed immunity from tort liability at common law whenever it was engaged in the exercise or discharge of a governmental function, unless a statutory exception was applicable. This common-law sovereign immunity was codified by the second sentence of § 7. The immunity granted to the state by the first sentence of §7 is essentially coextensive with this common-law immunity. We note that this interpretation furthers the Legislature’s intent to create uniform standards of liability for state and non-sovereign governmental agencies.

III. Definition of "Governmental Function”

Sovereign and governmental immunity from tort liability exist only when governmental agencies are "engaged in the exercise or discharge of a governmental function.” § 7. Although "governmental function” is not defined in the act, it "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.” Thomas v Dep’t of State Highways, 398 Mich 1, 9; 247 NW2d 530 (1976). There is a substantial body of case law defining this term. The initial question which must be resolved is whether the phrase "governmental function” is to be interpreted in light of present-day governmental activities, or whether the Legislature intended § 7 to have, as its fixed meaning, the common-law definition which existed at the time § 7 became effective.

In Thomas, supra, pp 9-11, a majority of the Court concluded that we were bound by the common-law definition.²⁴ However, this holding was overruled in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). In holding that the operation of a general hospital by a city is not a governmental function, Justice Fitzgerald, joined by Chief Justice Kavanagh and Justice Levin, wrote:

"[W]e [do not] believe that the Legislature intended that we must today hold the operation of a hospital to be a governmental function because we did so in 1902 and 1950. As was stated in the Kavanagh-Fitzgerald dissenting opinion in Thomas v Dep’t of State Highways, 398 Mich 1, 17, fn 4; 247 NW2d 530 (1976), to read the second sentence of MCL 691.1407; MSA 3.996(107) as 'preserving for all time state governmental immunity heretofore recognized by case-law’ 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.’

"Determining whether or not a certain activity is or is not a 'governmental function’ is a matter of statutory interpretation. In the absence of a legislative definition of the term, statutory interpretation is a function committed to the judiciary. The term 'governmental function’ is particularly subject to judicial interpretation because the phrase is of judicial origin.” Id., p 192._

Justice Moody reached a similar conclusion in his concurring opinion. Id., pp 197-199.²⁵

We decline this opportunity to overrule this aspect of Parker. We note that the Legislature was certainly aware of our conflicting "morass” of case law concerning the definition of "governmental function” when it enacted § 7. The Legislature could have statutorily defined the term, as it did with "proprietary function” in § 13, but it has not done so. Furthermore, judicial development and refinement of the concept of governmental function allows us to keep abreast of the changing activities and needs of government and its people.

A. Prior Deñnitions of "Governmental Function”

Prior to 1976, the decisions of this Court generally fell into two categories. A governmental agency could not assert the defense of sovereign or governmental immunity from tort liability if it was engaged in a "proprietary” function²⁶ or did not act for the "common good of all.”²⁷ In 1976, the "essence to governing” test was articulated by the Thomas dissent. Under this test, a function is not governmental unless the particular activity involved is essential to governing in that it has no common analogy to the private sector. Thomas, supra, p 21 (Kavanagh, C.J., and Fitzgerald, J., dissenting).

28 A similar "of essence to governing” test was created by the late Justice Blair Moody, Jr. Rather than requiring that the activity have no common analogy, Justice Moody believed that the governmental agency must show that "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.” Parker, supra, p 200.

29

Unfortunately, each of these tests has proved difficult to apply.

"Proprietary Function” Test. Since government is instituted for the equal benefit, security, and protection of its people,³⁰ a governmental agency cannot claim that it is engaged in a governmental function when the activity makes a profit for itself or for private individuals. Decisions of this Court have differed, however, as to how much, if any, incidental profit can be generated before an activity is deemed to be proprietary.³¹ By enacting § 13 of the governmental immunity act, the Legislature adopted the common-law "proprietary function” test but made it clear that activities which generate an incidental profit may still be considered governmental functions:

"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.”

However, the enactment of § 13 presents two problems. First, it can be argued that if proprietary functions have always been considered nongovernmental in nature, there would have been no need to enact the first sentence of § 13. Stated another way, the statutory waiver of immunity from tort liability for proprietary functions would have been totally unnecessary because such functions have never enjoyed immunity.

We do not believe that § 13 is mere surplusage. As with the second sentence of § 7, the Legislature wished to codify the "proprietary function” test and to define clearly the parameters thereof to prevent this Court from further modifying the common-law test. Nevertheless, in order to avoid rendering the first sentence surplusage, we will no longer define "governmental function” with reference to "proprietary function.” The question whether a particular activity is governmental or proprietary in nature involves two separate inquiries. A governmental agency which performs a proprietary function is not immune from tort liability pursuant to § 13; however, the converse is not necessarily true. An activity may generate no profit (i.e., be nonproprietary), but may still be nongovernmental in nature, as hereinafter defined, and thus subject to tort liability pursuant to § 7.³²

The second problem is that § 13 applies only to the state and its agencies, departments and commissions. The failure to include non-sovereign governmental agencies could be interpreted as bestowing governmental immunity upon their proprietary activities. We decline to read § 13 in such a manner because we do not believe the Legislature intended such a result.

The governmental immunity act was intended to provide uniform liability and immunity to both state and local governmental agencies. A strict "expressio unius est exclusio alterius” reading of § 13 would destroy this uniformity. As noted in Pittman, supra, p 48, there is no satisfactory reason to treat state and non-sovereign governmental agencies differently. Moreover, the "proprietary function” exception to common-law governmental immunity was well established at the time § 13 was enacted. If the Legislature had wished to abolish this rule as to non-sovereign governmental agencies, it would have done so in more explicit language.

Therefore, we reaffirm the common-law "proprietary function” exception to governmental immunity from tort liability, and we conclude that the statutory definition of "proprietary function” is applicable to all governmental agencies, State and local. In short, although § 13 of the governmental immunity act applies only to state governmental agencies, the same terms and principles embodied therein will be judicially applied to non-sovereign governmental agencies.

"Common Good of All” Test. This test was aptly summarized by Justice Ryan in Ross, supra, p 7:

"The expression "common good of all” has been used for more than a half century in cases discussing the doctrine of governmental immunity. Originally, it was intended to distinguish between governmental activity which has an exclusively public purpose as opposed to that which is 'of special corporate benefit or pecuniary profit.’ See Bolster v City of Lawrence, 225 Mass 387; 114 NE 722 (1917). The expression was first employed in our state’s jurisprudence in cases concerning the immunity or liability of municipal corporations to distinguish between 'governmental’ and 'proprietary’ municipal functions. Gunther v Cheboygan County Road Comm’rs, 225 Mich 619, 621; 196 NW 386 (1923). See also Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950), and cases cited therein. More recently the expression has been used in governmental immunity cases interpreting MCL 691.1407; MSA 3.996(107) to describe the standard by which an activity of a governmental agency is judged to be a governmental function and therefore immune from tort liability at the common law.”

The proponents of the "essence to governing” test have criticized the "common good of all” test. They argue that governmental agencies often engage in activities which arguably contribute to the common good. Nevertheless, these same activities are often accomplished by non-governmental entities which do not enjoy immunity from tort liability. The mere fact that a governmental agency engages in such an activity does not convert the activity into a governmental function. Ross, supra, pp 29-30 (opinion of Kavanagh, J.); Parker, supra, pp 194-195 (opinion of Fitzgerald, J.).

Aside from these criticisms, we also note that. the "common good of all” test is rather amorphous and difficult to apply. Almost all government activity is in some sense directed toward the public good. Nevertheless, it is rare when a particular activity benefits every member of the state equally. For example, a state mental hospital, such as that involved in Perry, is theoretically open to every member of the state who requires psychiatric treatment. In practice, however, only a small percentage of the state population actually uses the. facility. Similarly, a municipal hospital, such as that involved in Parker, is generally open only to local residents even though it is a public facility. Finally, although the drain constructed in Ross was planned, designed, constructed, and maintained pursuant to the state Drain Code’s comprehensive system of water management control, it directly benefited only the Jackson County landowners whose land was drained. Because application of the "common good of all” test could result in either immunity or liability depending upon the viewpoint of the particular decision-maker, we decline to incorporate this test into the definition of "governmental function.”

"Essence to/of Governing” Tests. These tests represent attempts to describe and pinpoint those activities which are uniquely and generally associated with government. Relatively few activities can qualify for immunity under the "essence of governing” test since they must have no common analogy to the private sector. As the Thomas dissent noted, their test would generally grant immunity only to executive, legislative, or judicial decision-making and planning — the execution of these decisions would be susceptible to tort liability. Thomas, supra, pp 21-22. Moreover, governmental activities which appear unique at the time a particular case is decided may not be so in the future. Private enterprise has ventured into such "unique” activities as providing private security forces and establishing jail facilities. Some activities which a governmental agency is required by law to undertake and provide to the public, and which have consistently been afforded immunity from tort liability, have common private sector counterparts, e.g., public schools and state mental health facilities.

Justice Moody’s "essence of governing” test provides more flexibility because it focuses on whether the activity can be effectively accomplished only by government. Unfortunately, this approach is also flawed. For example, as noted in Ross, supra, pp 23-24 (opinion of Ryan, J.), many storm drains in the state are privately financed and built by individual landowners who require them. Private construction companies may be able to engineer, construct, and maintain drains more effectively than the local drainage district. Nevertheless, the fact remains that the drainage district is statutorily responsible for providing an efficient and systematic drainage system to safeguard the public health and welfare. Private enterprise may also decline to engage in or abandon an activity which benefits the public good (e.g., a hospital or health care facility) because it is not sufficiently profitable, not because it cannot effectively accomplish the activity. If a governmental agency thereafter assumes the responsibility in order to provide or continue to make available necessary public services, it risks tort liability.

Finally, both tests fail to specify precisely what activity must be evaluated. As noted in Ross, supra, pp 22-23 (opinion of Ryan, J.), if the actual physical construction of a drain, sewer, or other public project is the activity which must be evaluated, immunity will never be afforded to the governmental agency which undertakes the construction itself, since the private sector often undertakes similar projects. This would be true even where the project is mandated by statute.

B. New Deñnition of "Governmental Function”

The fundamental problem with the "common good of all” and "essence to/of governing” definitions of "governmental function” is that they require the judiciary to make value judgments as to which activities government should be allowed to engage in without being held responsible for the unfortunate consequences thereof. This type of subjective inquiry necessarily results in legitimate difference of opinion. In contrast, the immunity from tort liability provided by § 7 is expressed in the broadest possible language — it extends immunity to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function. This broad grant of immunity, when coupled with the four narrowly drawn statutory exceptions, suggests that the Legislature intended that the term "governmental function” be interpreted in a broad manner.

The Legislature’s refusal to abolish completely sovereign and governmental immunity, despite this Court’s recent attempts to do so, evidences a clear legislative judgment that public and private tortfeasors should be treated differently. This disparate treatment is not totally unjustifiable. The California Law Commission, after an extensive and careful study of the problems presented by sovereign and governmental immunity, concluded:

"The problems involved in drawing standards for governmental liability and governmental immunity are of immense difficulty. Government cannot merely be liable as private persons are for public entities are fundamentally different from private persons. Private persons do not make laws. Private persons do not issue and revoke licenses to engage in various professions and occupations. Private persons do not quarantine sick persons and do not commit mentally disturbed persons to involuntary confinement. Private persons do not prosecute and incarcerate violators of the law or administer prison systems. Only public entities are required to build and maintain thousands of miles of streets, sidewalks and highways. Unlike many private persons, a public entity often cannot reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services that cannot be adequately provided by any other agency. Moreover, in our system of government, decision-making has been allocated among three branches of government — legislative, executive and judicial — and in many cases decisions made by the legislative and executive branches should not be subject to review in tort suits for damages, for this would take the ultimate decision-making authority away from those who are responsible politically for making the decisions.” 4 California Law Revision Comm Reports, Recommendations & Studies, p 810 (1963).

Our task therefore must be to devise an objective definition of "governmental function” which will further this legislative judgment.

Const 1963, art 1, § 1 sets forth a simple, fundamental concept of government.

"All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.”

In our organized society, people, through the state constitution they have ratified and the laws enacted by representatives they have elected, require or authorize their government to perform certain activities in their behalf. People allow government to handle these matters for a variety of reasons. Often, an individual or group of people cannot accomplish an activity or project because of, e.g., the amount of financing required, the tremendous risks involved, or the size or scope of the project or activity. Regardless of the reason, however, the fact that the people have delegated these responsibilities to government indicates their belief that a particular activity or function is one which the government must or can undertake to meet their individual and collective needs. In other words, the people, by mandating or authorizing the government to engage in certain activities, have determined that these activities are governmental in nature.

Conversely, activities which are not mandated or authorized by the people cannot be deemed governmental. When a governmental agency engages in such activities, it is acting for itself, rather than on behalf of the people. In these situations, the agency should be treated the same as a private tortfeasor.

We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in § 13) or falls within one of the other statutory exceptions to the governmental immunity act. Whenever a governmental agency engages in an activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra vires activity), it is not engaging in the exercise or discharge of a governmental function. The agency is therefore liable for any injuries or damages incurred as a result of its tortious conduct.³³

We realize that the definition we have formulated today is broad and encompasses most of the activities undertaken by governmental agencies. We have adopted this approach because we believe that this is the result envisioned by the enactors of the governmental immunity act. We note, however, that our definition may be statutorily modified to reflect more accurately the desires and needs of the public.

IV. Vicarious Liability of Governmental Agencies for the Torts of Their Officers, Employees, and Agents

The tort liability of a governmental agency can be premised on two distinct theories.³⁴ The plaintiff may allege that the agency itself acted, or failed to act, in a tortious manner.³⁵ In such situations, the agency will be held directly liable for its torts if the activity in which it was engaged constituted a non-governmental or proprietary function, or fell within the statutory "highway,” "motor vehicle,” or "public building” exceptions.

The plaintiff may also allege that the governmental agency is vicariously liable for the torts of its officers, employees, and agents. This vicarious liability is premised on the employer-employee or principal-agent relationship which exists between the agency and the individual tortfeasor. Plaintiffs often seek to impose liability even though the governmental agency played no part in the tort, did nothing whatsoever to aid or encourage it, or may have done everything possible to stop it. See Prosser, Torts (4th ed), § 69, p 458.

Unfortunately, plaintiffs often do not clearly differentiate between direct and vicarious liability theories in their pleadings. The problem lies in part with the governmental immunity act. The act focuses primarily upon the actions of the agency itself. The "motor vehicle” exception in § 5 is the only instance where a governmental agency is explicitly held vicariously liable for the negligent actions of its officers, employees, and agents. Section 8 authorizes an agency to furnish an attorney to appear on behalf of or pay claims and judgments rendered against an officer or employee who negligently causes injuries while in the course of employment and while acting within the scope of his or her authority.³⁶ An agency is also permitted under § 9 to purchase liability insurance in order to indemnify and protect itself and/or its officers, employees, and agents.³⁷ However, if the agency decides to take any of the aforementioned action, such action does not impose any liability on the agency. §§ 8(3), 9.

Despite the. act’s general silence as to if or when vicarious tort liability may be imposed upon a governmental agency, this Court impliedly acknowledged the continued existence of common-law respondeat superior theories of recovery in Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976), and McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976). Nevertheless, courts must be careful not to destroy an agency’s immunity by indiscriminately imposing vicarious liability whenever individual officers, employees, and agents are held personally liable for their torts.

Allegations of vicarious tort liability generally arise where an employment relationship exists between the governmental agency and the individual tortfeasor. Respondeat superior liability generally can be imposed only where the individual tortfeasor acted during the course of his or her employment and within the scope of his or her authority.³⁸ If either of these conditions is not met, a governmental agency cannot be held vicariously liable:

"The question of the liability of a municipality under the doctrine of respondeat superior is subject, ordinarily, to the same rules as govern the liability of any other corporation or individual. Thus, it must appear that an agent or servant was acting within the scope of his authority at the time the injury complained of occurred. If he was not, the municipal corporation is not liable. Also, the act of the agent or servant must have been done in the course of the employment. * * * [A municipal corporation is not] liable for * * * unauthorized and unlawful acts of its officers and employees which are outside the scope of their authority, although purported to be done on the behalf of the corporation; it must further appear that such persons were expressly authorized by the municipal government to do the acts complained of, or that they were done in pursuance of a general authority to act for the municipality, on the subject to which they related. A municipal corporation may, however, be liable for an unlawful and unauthorized act of one of its officers or agents if the act was done in the course of his official duty or employment, and within the general scope of his authority.” 57 Am Jur 2d, Municipal, School, and State Tort Liability, § 88, pp 99-100.

Even when the tort is committed during the employee’s course of employment and is within the scope of the employee’s authority, the governmental agency is not automatically liable. Where the individual tortfeasor is acting on behalf of an employer, the focus should be on the activity which the individual was engaged in at the time the tort was committed. A governmental agency can be held vicariously liable only when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity which is nongovernmental or proprietary, or which falls within a statutory exception. The agency is vicariously liable in these situations because it is in effect furthering its own interests or performing activities for which liability has been statutorily imposed. However, if the activity in which the tortfeasor was engaged at the time the tort was committed constituted the exercise or discharge of a governmental function (i.e., the activity was expressly or impliedly mandated or authorized by constitution, statute, or other law), the agency is immune pursuant to § 7 of the governmental immunity act. See Hirych v State Fair Comm, 376 Mich 384, 391-393; 136 NW2d 910 (1965), and Sherbutte v Marine City, 374 Mich 48, 50; 130 NW2d 920 (1964) (city cannot be held vicariously liable for torts of its police officers committed during the course of an arrest because the officers were engaged in police activity, which is a governmental function entitled to immunity).

This type of analysis will require plaintiffs to plead their causes of action more precisely. Such precision is necessary to ensure that governmental agencies retain the full extent of immunity from tort liability which the Legislature intended.

V. Individual Immunity

Like sovereign and governmental immunity, the scope of immunity from tort liability granted to officers, employees, and agents of a governmental agency is not presently clear. Prior to 1979, officers, employees, and agents were immune when engaged in discretionary, as opposed to ministerial, acts which were within the scope of their authority. In Wall v Trumbull, 16 Mich 228, 235-238 (1867), Justice Cooley explained that the members of a township board could not be held liable for authorizing an allegedly illegal tax:

"In determining whether the members of the township board voting for the allowance are liable, the first question which arises is, whether the nature of their duties is judicial, or ministerial only; for the rule of liability is altogether different in the two cases. A ministerial officer has a line of conduct marked out for him, and has nothing to do but to follow it; and he must be held liable for any failure to do so which results in the injury of another. A judicial officer, on the other hand, has certain powers confided to him to be exercised according to his judgment or discretion; and the law would be oppressive which should compel him in every case to decide correctly at his peril. It is accordingly a rule of very great antiquity that no action will lie against a judicial officer for any act done by him in the exercise of his judicial functions, provided the act, though done mistakenly, were within the scope of his jurisdiction[.] [Citations omitted.] This principle of protection is not confined to courts of record, but it applies as well to inferior jurisdictions * * *. Nor does the rule depend upon whether the tribunal is a court or not; it is the nature of the duties to be performed that determines its application.

"[0]fficers, judicial as well as ministerial,-have been held liable when acting without jurisdiction. * * * The rule of official exemption depends in these cases upon jurisdiction; but wherever that appears and is not exceeded, the protection is complete.

"The board then had jurisdiction to determine whether the claim was within the law or not, and their record, showing the presentation of the claim, would affirmatively show jurisdiction.

"If we were at liberty to pass upon these claims ourselves, upon the evidence appearing in this record, I should be inclined to think the board decided correctly as to some of the claims, and erred as to others. But nothing could be more apparent than the injustice of reviewing their decision in a suit against them in trespass. For whether each particular claim was within the law or not, would depend upon the proof as to whether the money was advanced upon the credit of the township; and the showing on this point might be very different before the board, and in the circuit court. To hold the members of the board responsible in such a case, we must not only hold them bound to decide correctly at their peril, upon the evidence presented to them, but we must also hold that at their peril they must come to the same conclusion as to the legality of the claim which the circuit judge will afterwards arrive at on another hearing, when the testimony may be either more or less than they acted upon, and when even the same witnesses may have told a different story. The mere statement of such a proposition seems to me sufficient to refute it.”³⁹

The doctrine of individual immunity even survived the abolition of common-law governmental immunity. Justice Edwards, in his opinion in Williams, supra, 364 Mich 261-262, wrote:

"[T]here are and will continue to be many situations in relation to which real or fancied grievances exist where governmental freedom from liability will persist on wholly different grounds. Legislative bodies, for example, have the right to make many types of decisions which may do harm to some. Subsequent history may clearly demonstrate that some of those decisions were wrong. Discretion implies the right to be wrong. So long as those decisions are within the discretion vested in the legislative body, there is clearly neither breach of duty nor a right to damages. The instant case, a tort action, does not in any manner alter the fact that actions or decisions of a legislative, executive, or judicial character which are performed within the scope of authority of the governmental body or officer concerned continue to enjoy freedom from liability.

"The people place great powers of decision making in the hands of their government. In the exercise of discretionary power, governmental duty runs to the benefit of the whole public, rather than to individuals. It is of great importance that this crucial function of democratic decision making be unhampered by litigation.*

The governmental immunity act does not address whether or when individual officers, employees, and agents are immune from tort liability. It merely authorizes governmental agencies to defend, indemnify, and insure officers and employees who have committed negligent torts during the course of their employment and while acting within the scope of their authority. §§ 8, 9. Thus, the existence and scope of individual immunity continues to be a creature of judicial decision-making.

Unfortunately, two recent decisions of this Court have obfuscated the precise parameters of individual immunity. In Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), plaintiffs sued a school district, its superintendent, a principal, and a teacher concerning injuries incurred by a student during a science classroom explosion. Three members of the Court summarily concluded that the complaint stated a claim against the individual defendants. Id., p 733 (opinion of Levin, J.). Justice Moody, joined by Chief Justice Coleman, wrote that the superintendent, principal, and teacher were immune from liability for their ordinary negligence because they "were performing primarily discretionary activities that are of essence to government” and which were public in nature. Id., p 734. Justice Williams believed that only the ultra vires activities of public employees are not protected by governmental immunity because the exercise or discharge of a governmental function is not involved. Id. Justice Ryan stated that the immunity defense was applicable if the school district and employees were engaged in the exercise or discharge of a governmental function. Id., pp 734-735. The end result was that the individual officials and employees were immune from tort liability unless they had been engaged in ultra vires activities. None of the opinions mentioned the traditional "discretionary/ministerial” test.

Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), added to the confusion. There, an action was brought inter alios against the Wayne County Sheriff and the administrator of the county jail for the intentional assaults and mistreatment of an inmate by unidentified jail personnel. Justice Levin, joined by Justices Kavanagh and Fitzgerald, concluded that although the sheriff could not be held responsible for the acts of his deputies by statute, he was responsible for his own acts of negligence and the tortious acts of employees who were not deputies pursuant to the common-law doctrine of respondeat superior. Similarly, the jail administrator was responsible for his own negligence. Although Justice Levin recognized that government officials have limited immunity at common law, the decision as to whether immunity actually existed was deferred until after trial. Id., pp 77-78.

Justice Moody wrote that the county officers and employees, while acting within the scope of their employment (i.e., operating and maintaining a jail), were primarily performing essential public duties and therefore were immune from tort liability for their negligent actions and selection of personnel. In addition, plaintiff had failed to allege that the sheriff or administrator had committed or condoned any intentional acts. Id., p 84. The remaining three justices essentially agreed with this reasoning. Id., pp 79, 82. However, Justice Williams noted that intentional torts may be protected by governmental immunity as long as they do not constitute ultra vires activities and are within the scope of the exercise and discharge of a governmental function. Id., pp 82-83.

The tendency of this Court to define individual immunity with respect to "governmental function” has been criticized as blurring two separate inquiries.⁴⁰ As noted in Williams, individual immunity may exist where sovereign or governmental immunity does not. For example, a governmental agency which runs a statutorily mandated or authorized activity that is proprietary in nature would not be entitled to immunity under § 13. However, those officials and employees who are required to make decisions as to how the proprietary activity must be carried out should be entitled to immunity as long as they are acting within the scope of their authority and during the course of their employment. Individual immunity exists to ensure that a decision-maker is free to devise the best overall solution to a particular problem, undeterred by the fear that those few people who are injured by the decision will bring suit. We therefore will no longer define the parameters of individual immunity with reference to whether the tortfeasor was engaged in the exercise or discharge of a governmental function.

The "ultra vires” element of the individual immunity test also has its drawbacks. By definition, ultra vires activities are those which are unauthorized and outside the scope of employment. Officials and employees who engage in such activities have never been immune from tort liability, even under the traditional "discretionary/ministerial” test. However, under the present formulation of the "ultra vires” test, immunity is extended to every public official, employee, and agent whenever they engage in authorized acts, including those which are merely ministerial. Such broad individual immunity is not justified by either prior case law or present-day realities. The mere fact that individuals are employed by a governmental agency does not relieve them of the responsibility to perform their duties properly and conscientiously.

Michigan’s traditional "discretionary/ministerial” approach to individual immunity is somewhat different than that of other jurisdictions. Michigan case law affords absolute immunity to all public officials, employees, and agents for both intentional and negligent torts whenever they are engaged in discretionary acts within the scope of their authority. In contrast, other jurisdictions have extended different levels of immunity depending upon the function of the officer. Absolute immunity from tort liability is granted to judges, legislators, and the highest executive officials of all levels of government, even for malicious acts, as long as they are acting within their respective judicial, legislative, and executive authority. Lower level officers, employees, and agents are extended only qualified immunity. This immunity exists when the individual is engaged in discretionary acts which are performed in good faith. An employee therefore risks liability for negligently performed ministerial acts, regardless of good faith. Prosser, supra, § 132, pp 987-990, and cases cited therein; Littlejohn & DeMars, Governmental Immunity After Parker and Perry: The King Can Do Some Wrong, 1982 Det C L Rev 1, 25-27.

This disparate treatment of individuals based upon their official function has been justified as follows:

"It is assumed through the broad grant of immunity to certain public employees that these officials and, therefore, their governmental agencies, will not be intimidated nor timid in the discharge of their public duties. Although absolute immunity may be necessary for unfettered governmental decision-making, courts have been reluctant, understandably, to extend its protection beyond select public employees who are delegated policy-making powers.

"* * * The policy which only provides a limited immunity to lower level executive officials, unlike the justifications for absolute immunity, reflects a recognition that official immunity should not shield malicious or intentionally unlawful behavior when the actor is not engaged in broad, essential governmental decision-making. Holding these public servants liable does not hamper or intimidate them in the faithful discharge of their duties since they are responding to established administrative guidelines, regulations and informal policy. It is assumed, therefore, that an unreasonable burden does not fall on an administrative system when courts hold lower level executive employees liable for their acts performed in bad faith.” Littlejohn & DeMars, supra, pp 27-28.

We are persuaded that a similar scheme of individual immunity should be adopted in Michigan. We therefore hold that judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are

1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;⁴¹

2) acting in good faith; and_

3) performing discretionary, as opposed to ministerial acts.

Under this test, no individual immunity exists for ultra vires activities.

The final problem is defining "discretionary” and "ministerial” acts. Because of the longstanding difficulty of accurately differentiating between discretionary and ministerial acts, some writers have suggested that the distinction be abandoned.⁴² We decline this opportunity to do so. The "discretionary/ministerial” test has a long common-law history and grants immunity to individuals only to the extent necessary to guarantee unfettered decision-making.

"Discretionary” acts have been defined as those which require personal deliberation, decision, and judgment. Prosser, supra, § 132, p 988. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives.⁴³ However, it does not encompass every trivial decision, such as "the driving of a nail,”⁴⁴ which may be involved in performing an activity. For clarity, we would add the word "decisional” so the operative term would be "discretionary-decisional” acts.

"Ministerial” acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between "discretionary” and "ministerial” acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word "operational” so the operative term would be "ministerial-operational” acts.

Many individuals are given some measure of discretionary authority in order to perform their duties effectively. Therefore, to determine the existence and scope of the individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined. The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner.

Under the rules set forth today, it is obvious that the immunity extended to individuals is far less than that afforded governmental agencies. We believe that this was the result intended by the Legislature. The threat of personal liability for engaging in ultra vires activities or tortiously executing one’s duties may be the most effective way of deterring improper conduct. We note, however, that a governmental agency is statutorily authorized to defend or indemnify its officers, employees, and agents in its discretion under certain circumstances. This statutory authorization could be the basis for a contractual agreement of representation and indemnification.

VI. Application of Law to Cases

Ross v Consumers Power Co

Appellant, the John Saines Project I Drainage District, contracted the construction of a drain to Dunigan Brothers, Inc. Since a portion of the drain was to be constructed on property owned by appellee, Consumers Power Company, Consumers granted an easement to Jackson County. On August 24, 1971, Michael Ross, a Dunigan employee, was injured when a vehicle in or near which he was working came in contact with overhead electric power lines maintained by Consumers.

Ross sued Consumers and the action was eventually settled. Consumers filed an amended third-party complaint against the district and drain commissioner, alleging two counts in contract and one count in tort. The Court of Appeals summarized the allegations contained in the tort claim as follows:

"In its essentials, Consumers’ tort claim against the District alleges negligence arising out of a failure to notify Consumers that work was being undertaken that could interfere with the power lines, a failure to make arrangements with Consumers to safeguard workers from contact with the lines, a failure to instruct and warn its contractors concerning the lines, a failure to hire a properly licensed and competent contractor, and a failure to adequately supervise and inspect the project in such a manner as to prevent the accident from occurring.” 93 Mich App 687, 697; 287 NW2d 319 (1979).

The trial court granted the district and commissioner’s motion for summary judgment as to all three counts. Consumers appealed only the judgment for the district. The Court of Appeals reversed as to the two contract counts because § 7 of the governmental immunity act does not grant immunity from contract liability. Applying Justice Moody’s "essence of governing” test, the Court concluded that the district was also not immune from tort liability because the construction of a drain is not of the essence of governing. The district appealed only the decision concerning the tort claim. This Court affirmed by an equally divided Court, 415 Mich 1; 327 NW2d 293 (1982), but subsequently granted rehearing. 417 Mich 1113 (1983).

This appeal involves only the direct liability of a non-sovereign governmental agency for its negligence in contracting out, supervising, and inspecting the construction of a drain. The crucial inquiry is whether these activities, from which the injuries arose, constitute the exercise or discharge of a non-proprietary, governmental function. There is no allegation that any of these activities were conducted by the district primarily for pecuniary profit. We therefore must determine whether the contracting out, supervision, and inspection of the construction were activities which the district was expressly or impliedly mandated or authorized by constitution, statute, or other , law to perform.

Const 1963, art 4, §§ 51 and 52 require the Legislature to provide for the protection and promotion of public health and the state’s natural resources. The Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., is a comprehensive act governing the establishment of drainage districts and construction of drains. A drainage district has the power to contract under § 5, and the drain commissioner is specifically authorized to let out construction contracts under prescribed circumstances. See, e.g., §§ 151,154, 221-223, 471. Furthermore, the commissioner, or a competent designatee, is required to inspect „and approve all construction work. § 241. Any right to supervise the actual construction of a drain is impliedly authorized by the district’s general power over the establishment, construction, and maintenance of drains. The trial court correctly found that the district is immune from tort liability.

Willis v Nienow

Willis v Dep’t of Social Services

The Court of Appeals summarized the facts of these cases as follows:

"These cases arose out of the same incident and were consolidated on appeal. Plaintiff is the administratrix of the Estate of Jeffrey Willis. On August 16, 1978, 16-year-old Jeffrey was a resident of Harbor House, a juvenile care facility for delinquent and neglected youths operated by defendant Department of Social Services. At Harbor House, defendant Dennis Nienow was the director, defendant Erma Knox was a counselor, and defendant Cindy Hunt was a student-intern. Jeffrey and other Harbor House residents were taken for a swimming outing on Lake Michigan under the supervision of Knox and Hunt. Jeffrey drowned in the course of the outing.

"Plaintiff brought actions against defendants State of Michigan and Department of Social Services in the court of claims and against defendants Nienow, Knox, and Hunt in circuit court. Plaintiff’s complaints alleged that Jeffrey and Knox could not swim or were of marginal swimming ability, that neither Knox nor Hunt had lifesaving training, that there were no lifeguards on duty at the time in question, that Jeffrey and other Harbor House residents were allowed to swim in areas not designated as swimming areas, and that Jeffrey and the other residents were allowed to swim under dangerous weather conditions. In each case the trial court granted summary judgment for defendants based on governmental immunity * * *.” 113 Mich App 30, 32-33; 317 NW2d 273 (1982).⁴⁵

The Court of Appeals, applying Justice Moody’s reasoning in Perry, concluded that the operation of a juvenile care facility constitutes a governmental function and that recreational activities are directly related to an effective program of caring for the children. Using the traditional "discretionary/ministerial” test for individual immunity, the Court concluded that defendant Nienow’s hiring decisions involved discretionary acts which were entitled to immunity, but the manner in which the swimming outing was conducted involved ministerial acts. Finally, the Court held that plaintiff had failed to state a cause of action for intentional tort. Thus, judgment for the state and DSS was affirmed, but reversed as to the individual defendants.

Plaintiff essentially alleges that Nienow, Knox, and Hunt were negligent or reckless in allowing decedent to participate in the swimming outing and in failing to adequately care for and supervise him. In deciding whether these defendants are entitled to immunity, we must determine whether they were 1) acting during the course of their employment and within the scope of their authority; 2) acting in good faith; and 3) performing discretionary-decisional acts.

There is no suggestion that the supervision of children during recreational activities was not during the course of defendants’ employment or within the scope of their authority. There is no allegation of bad faith. Assuming that each defendant had the authority to, and in fact did, decide who would participate in the outing, as well as when and where it would be conducted, we hold that these were discretionary-decisional acts entitled to immunity. However, the execution of these decisions, which included the care and supervision of the participating children, were ministerial-operational acts that entailed only minor decision-making.

As to defendant Nienow, plaintiff alleged that he was negligent in hiring Knox and Hunt. There is no suggestion that the hiring of personnel was outside the course of Nienow’s employment or beyond the scope of his authority. Nor is bad faith alleged. We agree with the Court of Appeals that the decision to hire Knox and Hunt was a discretionary-decisional act entitled to immunity.

The complaint against the state and the DSS does not clearly differentiate between direct and vicarious liability theories. It can be read as alleging that defendants themselves did not adequately care for and supervise decedent, or that they are vicariously liable for their employees’ negligent care and supervision. Assuming that a vicarious liability theory was pleaded, we have already assumed that the employees were acting during the course of their employment and within the scope of their authority. The question therefore is whether allowing decedent to participate in a swimming outing, and the care and supervision of decedent during the outing, constitute the exercise or discharge of a non-proprietary, governmental function.

There is no allegation that the swimming outing was conducted primarily for pecuniary profit. Furthermore, recreational activities for delinquent and neglected children residing in state facilities are impliedly authorized by statute. The Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq., requires the DSS, through the office of children and youth services, to operate halfway houses, regional detention facilities, etc., with the goal of providing "an effective program of out-of-home care.” § 115(a). Recreational activities can be an important part of such a program. Implicit in the authority to conduct such activities is the authority to decide who will participate in them.

Finally, the DSS is expressly required by statute to care for and supervise children residing in state facilities. Sections 3 and 4(1) of the Youth Rehabilitation Services Act, MCL 803.301 et seq.; MSA 25.399(51) et seq., require the DSS to supervise and operate state facilities and programs for the proper care of delinquent and neglected children. Even if this statute did not exist, the care of resident children implies a responsibility to supervise them in order to prevent, as far as is practicable, any unnecessary injury. We therefore conclude that the state and the DSS are entitled to sovereign immunity from tort liability since the injuries arose while they and their employees were engaged in the exercise or discharge of a governmental function.

We also conclude that plaintiff failed to state a claim of intentional tort against any of the defendants for the reasons stated by the Court of Appeals.

Siener v Dep’t of Mental Health

Plaintiff Russell Siener, Jr., was an in-patient at the Hawthorn Center, a state mental health facility for emotionally disturbed children. On July 8, 1976, plaintiff and several other patients were taken by the center’s personnel on a field trip to Greenfield Village in Dearborn, Michigan. Plaintiff maintained that a supervisor had permitted five boys, including himself, to leave the group without supervision. Subsequently, one of the boys seriously injured plaintiff by striking him in the face with a cast iron pot lid.

Plaintiff brought a negligence action against the state, the Department of Mental Health, and the Hawthorn Center alleging that they had failed to properly supervise and control the patients. The Court of Claims denied defendants’ motion for summary judgment because plaintiff had pled facts in avoidance of governmental immunity. The Court of Appeals reversed. 117 Mich App 179; 323 NW2d 642 (1982). The Court found that under Perry, the operation of a state mental health facility for children is a governmental function. Furthermore, the field trip was directly related to the effective care of emotionally disturbed children. The Court rejected plaintiff’s argument that MCL 330.1722; MSA 14.800(722) is a statutory exception to the governmental immunity act.

The complaint could be read as alleging that defendants are directly liable because of their failure to provide adequate supervision and control over plaintiff and the other patients, or that defendants are vicariously liable for their employees’ negligent supervision. (Plaintiff apparently has not commenced an action against the individual employees.) Plaintiff does not argue that the field trip should not have been conducted, or that he should not have been allowed to participate. Assuming that a vicarious liability theory was pleaded, there is no suggestion that the employees who supervised the patients during the field trip were not acting during the course of their employment or within the scope of their authority. Furthermore, there is no allegation that the trip was conducted primarily for pecuniary profit. We must therefore determine whether the control and supervision of emotionally disturbed patients by defendants and their employees during a field trip is expressly or impliedly mandated or authorized by constitution, statute, or other law.

Educational and recreational field trips for emotionally disturbed, in-patient children are impliedly authorized by constitution and statute. Const 1963, art 8, § 8 states that programs and services for the care, treatment, education, or rehabilitation of the mentally or otherwise seriously handicapped shall always be fostered and supported. Section 116 of the Mental Health Code, MCL 330.1001 et seq.; MSA 14.800(1) et seq., authorizes the Department of Mental Health to provide directly, or through contractual arrangement, any type of patient service related to the treatment, care, education, training, and rehabilitation of the mentally ill or retarded. In addition, a child who resides in a mental health facility is entitled to an education. § 738.

Finally, the Department of Mental Health and the Hawthorn Center are expressly and impliedly required by statute to adequately control and supervise in-patients of mental health facilities. All residents are entitled to a safe, sanitary, and humane living environment. § 708. The governing body of a mental health facility is responsible for the operation of the facility, the selection of the medical staff, and the quality of care rendered. § 143. Implicit in the notion of caring for emotionally disturbed patients is the responsibility to control and supervise them to prevent, as far as is practicable, any unnecessary injury. We therefore conclude that defendants are entitled to sovereign immunity from tort liability since the injury arose while they and their employees were engaged in the exercise or discharge of a governmental function.

Plaintiff maintains the defendants are nevertheless liable because § 722 of the Mental Health Code⁴⁶ is an exception to §7 of the governmental immunity act. Section 722 provides in part that if a recipient of mental health services is physically or otherwise abused, the recipient has a right to pursue injunctive and other appropriate civil relief. We disagree with plaintiffs argument for the reasons stated in Rocco v Dep’t of Mental Health, 114 Mich App 792, 798-799; 319 NW2d 674 (1982):

"MCL 330.1700 et seq.; MSA 14.800(700) et seq., enumerates certain rights possessed by recipients of mental health services. The statute’s purpose is to ensure that patients are treated in a humane manner and that their privacy is maintained. The statute focuses on the duty of the health care facility towards its patients. None of the sections discusses the rights and responsibilities between patients. The statute’s primary purpose is to protect the patient from certain abuses by the mental health facility or its staff. When this purpose is read into MCL 330.1722; MSA 14.800(722), it is clear that this provision was meant to prevent the staff of a mental health care facility from abusing the patients in its care. It was not the intention of the Legislature to abolish governmental, immunity in those cases where one patient attacks another.”_

Rocco v Dep’t of Mental Health

The Court of Appeals summarized the facts of this case as follows:

"On January 7, 1980, plaintiffs’ decedent, Daniel Rocco, was a resident patient of the Ypsilanti Regional Psychiatric Hospital (hospital). That night, while he was sleeping in his hospital bed, Rocco was murdered by another patient. The murderer was Andrew Higginbotham, a patient who had a history of violence and assaultive behavior.

"Plaintiffs filed a complaint in the Court of Claims against two state agencies (the Department of Social Services and the Department of Mental Health) which supervise the administration of the hospital, and the hospital. The state agencies and hospital are hereinafter referred to as defendants. The complaint consisted of two counts. Count I alleged negligence in that defendants failed to take steps to protect the decedent from attack by violent patients in the hospital. Specifically, plaintiffs alleged that defendants breached their duty of care and committed malpractice in that they were aware of Higginbotham’s violent and criminal tendencies, yet placed him unrestrained and unsupervised in the same ward with the decedent. Count II alleged breach of implied contract, averring that plaintiffs agreed to and did in fact pay for the care and treatment of the decedent but that defendants breached their contractual duty by failing to protect the decedent from harm and abuse by other patients at the hospital.” Rocco, supra, pp 794-795.

Defendants were granted summary judgment on both counts. The Court of Appeals affirmed the judgment as to Count I, concluding that the operation of a state mental hospital is a governmental function and that § 722 of the Mental Health Code is not an exception to governmental immunity. As to Count II, the majority held that the breach of an implied contract claim was not merely a restatement of the tort claim. Since the governmental immunity act does not bar contract claims, judgment for defendants was reversed.

The tort claim alleges that defendants are directly and vicariously liable. As to the vicarious liability theory, there is no suggestion that defendants’ employees were not acting during the course of their employment or within the scope of their authority. Although plaintiffs paid for the care rendered to decedent by the hospital, there is no allegation that the hospital provided súch care primarily for pecuniary profit. In fact, § 808 of the Mental Health Code specifically limits the total financial liability of a recipient of mental health services to the cost of the services rendered. The crucial inquiry therefore is whether the placement of patients within a mental health facility, and the care, control, and supervision of in-patients, are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law.

The evaluation of patients upon admission and periodically thereafter is expressly mandated by § 710 of the Mental Health Code. A patient may be secluded or his freedom of movement restricted only insofar as such action is necessary to prevent the patient from physically harming himself or others, or causing substantial property damage. §§ 742(2), 744. The governing body of a mental health facility is required to establish the maximum length of time seclusion may last, how often the patient must be examined, and any other appropriate regulations. § 742(6). Finally, we have previously concluded in Willis and Siener, supra, pp 638-644, that the Department of Mental Health, the DSS, and a mental health facility have an express and implied responsibility to care for, control, and supervise residents of state facilities. We therefore hold that defendants are entitled to sovereign immunity from tort liability because the injuries arose while they and their employees were engaged in the exercise or discharge of a governmental function. As in Siener, we reject plaintiffs’ argument that § 722 is an exception to the governmental immunity act.

Defendants recognize that the governmental immunity act grants immunity only from tort liability, but maintain that plaintiffs’ contract claim should be dismissed because it merely restates the allegations contained in their tort count. We disagree. Defendants brought their motion for summary judgment under GCR 1963, 117.2(1). Such motions test the legal basis of the complaint, not whether it can be factually supported. Accepting as true a plaintiff’s allegations, and any conclusions that may reasonably be drawn therefrom, the motion must be denied unless the claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recover. Although most of the allegations contained in Counts I and II are identical, the latter count also alleges that plaintiffs contracted and agreed with defendants for decedent’s care and treatment; plaintiffs paid valuable consideration for decedent’s care; and defendants breached their contractual duties to plaintiffs and decedent. These allegations are sufficient to withstand defendants’ challenge.

We recognize that plaintiffs have and will attempt to avoid § 7 of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and proved. If a plaintiff successfully pleads and establishes a non-tort cause of action, § 7 will not bar recovery simply because the underlying facts could have also established a tort cause of action.

Regulski v Murphy

Plaintiff, a seventeen-year-old attending high school in defendant Wayne-Westland School District, was enrolled in a building trades class, which was offered as part of the school’s vocational education program. Participating students were required to build a house, which was then sold by the district to a private buyer. On October 10, 1975, plaintiff was injured when he attempted to hammer a nail into a piece of wood. Apparently, he hit the nail at an angle, causing it to fly up and strike him in the eye.

Plaintiff sued the school district, the director of the vocational building trades program, and the instructor of the class. In his amended complaint, plaintiff alleged that the district was engaged in a proprietary function and that all of the defendants were negligent in failing to properly instruct, warn, and supervise plaintiff. In addition, defendants had failed to provide safety glasses, adequate first-aid supplies at the site, and transportation for emergencies. After discovery was completed, defendants moved for and were granted summary judgment. The Court of Appeals affirmed, concluding that the operation of a building trades class is a governmental function which entitled the district to governmental immunity. Since the individual defendants were engaged in a governmental function, they too were immune. 119 Mich App 418; 326 NW2d 528 (1982).

The cause of action against the school district alleges both direct and vicarious liability. As to the vicarious liability theory, there is no suggestion that the individual defendants were not acting during the course of their employment or within the scope of their authority. We therefore must determine whether the instruction and supervision of students enrolled in a building trades class, as well as the provision of safety devices and measures, constitute the exercise or discharge of a non-proprietary, governmental function.

Plaintiff alleged that the district built and sold the house "for the purpose of producing a pecuniary profit.” The district disagreed and offered evidence showing that the class was not designed to be a profit-making venture and that the district in fact lost money on the sale of the house. We need not decide whether a governmental agency must actually realize a pecuniary profit from the challenged activity before § 13 of the governmental immunity act will allow a tort recovery, or whether there was no genuine issue or material fact on this point. During arguments on the motion for summary judgment, plaintiff’s counsel admitted that the class was not conducted primarily for pecuniary profit. Instead, he argued below and here that the seeking of remuneration and the possibility of any incidental profit is sufficient evidence of a proprietary function. Although at one time any incidental profit generated by an activity was sufficient to defeat an agency’s claim of immunity, the Legislature in § 13 has modified this rule to require that the activity be conducted primarily for pecuniary profit. On the basis of these facts, we conclude that the operation of the building trades class was not a proprietary function.

The board of a school district is required under § 1282 of the School Code of 1976, MCL 380.1 et seq.; MSA 15.4001 et seq., to establish and carry on the departments it deems necessary or desirable, determine the courses of study to be pursued, and cause its pupils to be taught in the departments it deems expedient. The board is expressly authorized by § 1287 to establish, equip, and maintain vocational education programs and facilities. Section 1288 specifically requires each pupil participating in certain vocational and industrial arts classes to wear eye protective devices.⁴⁷ Furthermore, the board must make reasonable regulations concerning anything necessary for the proper establishment, maintenance, management, and carrying on of public schools, including regulations concerning the safety of children while in attendance at school, or en route to and from school. § 1300. Thus, the district was expressly authorized to offer the building trades course and was expressly and impliedly required through its employees to instruct, warn, and supervise the students, as well as to provide safety equipment and measures, in order to prevent any unnecessary harm to the students. Since the injuries arose while the district and its employees were engaged in the exercise or discharge of a governmental function, the district is entitled to governmental immunity from tort liability.

As to the liability of the individual defendants, we have already assumed that they were acting during the course of their employment and within the scope of their authority. There is no allegation that they were acting in bad faith. The question therefore is whether they were engaged in discretionary-decisional acts.

Plaintiff has not alleged that the individual defendants were negligent in offering the class, allowing him to participate, or deciding where and when to conduct the class. Such acts are discretionary-decisional in nature. Instead, plaintiff alleged that defendants were negligent in instructing, warning, and supervising him. Although some decision-making is involved in these activities, it is relatively minor. Instruction and supervision are essentially ministerial-operational activities for which there is no immunity from tort liability.

As to the allegation of inadequate safety measures, we have previously noted that a school board is statutorily required to provide for the safety of its students and, in particular, to provide eye protective devices to those participating in certain potentially dangerous activities. It is unclear whether plaintiff alleged that the individual defendants were negligent in establishing the type and extent of safety measures, or merely failed to provide that which was required by statute and school policy. If any of the defendants were responsible for establishing the school’s policy as to the type of eye protective devices that would be provided to the students, the type of first-aid supplies to have at the building site, and what emergency transportation measures would be provided, that defendant is immune from tort liability because these are discretionary-decisional acts. However, the individuals can be held liable for failing to comply with § 1288 and the school’s safety policy since the actual provision of eye protective devices, first-aid supplies, and emergency transportation involves only ministerial-operational acts. Summary judgment for the individual defendants is therefore reversed and the case remanded for trial.

Trezzi v City of Detroit

On April 23, 1978, plaintiff’s parents were attacked by an unknown assailant who had forcibly entered their Detroit home. When plaintiff walked by the house, he noticed that a refrigerator door was ajar and that there were no lights on in the house. Plaintiff called Detroit’s 911 emergency assistance system six times for help. Unknown 911 operators assigned a low-priority rating to the calls and passed them on to a police dispatcher. The dispatcher sent a police vehicle approximately one and one-half hours after plaintiff’s first call.

Plaintiff brought an action against the City of Detroit, the dispatcher, and the 911 operators alleging that his parents sustained fatal injuries as a result of the delayed response. When the city moved for summary judgment, plaintiff amended his complaint to allege both negligent and intentional tort. The city was granted summary judgment, the dispatcher eventually settled with plaintiff, and the suit against the unknown operators was dismissed. The city refused to defend or indemnify the dispatcher for the judgment, which apparently remains unsatisfied.

A majority of the Court of Appeals affirmed the judgment for the city. 120 Mich App 506; 328 NW2d 70 (1982). The entire panel agreed that under the "essence to governing” test, the operation of a 911 emergency system would not constitute a governmental function, although it would under the "common good of all” test. Applying Justice Moody’s "essence of governing” test, the majority concluded that the 911 system was an indispensable part of the operation of a police department with no common analogy in the private sector. The panel agreed that plaintiff’s intentional tort claim actually alleged no more than gross negligence. Plaintiff does not challenge this latter holding in this Court.

As explained in the Court of Appeals dissenting opinion, the Detroit 911 system handles emergency calls for police, fire, and medical assistance. It is staffed by civilian employees of the city, who rank the seriousness of the calls and contact police, fire, and medical dispatchers. The system is designed to make emergency assistance more effective by freeing up police and fire personnel and enabling citizens to request help by dialing three easily remembered digits. The system essentially acts as a clearinghouse for emergency calls.

This appeal involves only the vicarious liability of a non-sovereign governmental agency for its employees’ negligence. There is no suggestion that the employees were not acting during the course of their employment or within the scope of their authority. There is no allegation that the 911 system was operated primarily for pecuniary profit. We therefore must determine whether the categorizing of emergency calls by a 911 operator and the dispatch of police vehicles in accordance therewith are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law.

Const 1963, art 7, § 22 gives the electors of each city the power to frame and adopt a city charter. In addition, the city has the power to adopt resolutions and ordinances relating to its municipal concerns, property, and government. Since Detroit is a home-rule city, its charter must provide for the public peace, health, and safety of persons and property. MCL 117.3(j); MSA 5.2073(j). Pursuant to these constitutional and statutory provisions, Detroit Charter, art 7, ch 11, § 7-1101 establishes a police department -which is required to preserve the public peace, prevent crime, arrest offenders, protect the rights of persons, preserve order, and enforce laws and ordinances. Section 7-1103 authorizes the board of police commissioners to establish policies, rules, and regulations. In order to accomplish its duties, the police department necessarily needs some sort of system for accepting, processing, and acting upon calls for police assistance. Thus, the 911 emergency assistance system and the police dispatch system, including their internal procedures for determining the seriousness of calls and dispatching vehicles, are impliedly authorized by constitution, statute, and city charter. Since the injuries arose while the city’s employees were engaged in the exercise or discharge of a governmental function, the city is entitled to governmental immunity from tort liability.

Disappearing Lakes Ass’n v Dep’t of Natural Resources

Plaintiffs are property owners of land adjoining Square Lake and Little Square Lake in Oakland County. From 1966 to 1976, the Michigan Department of Conservation and its successor, the Department of Natural Resources, issued permits and extensions to a private land developer for the dredging of canals south of Lake Orion and immediately north of plaintiffs’ property. In 1977, the water level of the Square Lakes began to drop precipitously. The recreational and aesthetic purposes of the lakes were eventually destroyed. Studies indicate that the water loss was caused by interference with the subsurface water flow, which occurred when the canals were dredged.

Plaintiffs filed suit in 1979 against the state and the DNR in the Court of Claims seeking damages for nuisance and negligence. A similar action was commenced in circuit court against Orion Township, Oakland County, and several municipal boards and individuals. The suits were eventually consolidated. In 1981, the circuit court granted the state and the DNR’s motion for summary judgment on the ground of governmental immunity.

The Court of Appeals affirmed, holding that regardless of which test was applied, the issuance of dredging permits by the DNR constituted a governmental function. After examining numerous cases, the Court concluded that a governmental agency cannot be held liable in nuisance unless it actually controlled the project which created the nuisance. Issuance of dredging permits alone was not sufficient evidence of control. Plaintiffs’ claims that the state had taken their property without due process of law, that the DNR had acted outside the scope of its authority, and that plaintiffs were entitled to equitable relief were rejected because these claims had not been raised before the trial court. 121 Mich App 61; 328 NW2d 570 (1982).

Count II of plaintiffs’ complaint essentially alleges that the state and the DNR are directly and vicariously liable for negligently issuing permits without adhering to statutory guidelines or conducting proper studies, failing to warn of the possible adverse effects of dredging, and failing to revoke the permits.⁴⁸ As to the vicarious liability theory, there is no suggestion that defendants’ employees were not acting during the course of their employment or within the scope of their authority. Nor is there any allegation that the issuance of dredging permits was conducted primarily for pecuniary profit. Therefore, we must determine whether the issuance of dredging permits and extensions, and activities related thereto, are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law.

Const 1963, art 4, § 52 requires the Legislature to provide for the protection of the state’s waters from pollution, impairment, and destruction. In 1965, the Legislature first enacted the Inland Lakes and Streams Act. See 1965 PA 291, as amended by 1968 PA 7, MCL 281.731 et seq.; MSA 11.451 et seq. This act was repealed and replaced in 1972 by a substantially similar act. See 1972 PA 346, MCL 281.951 et seq.; MSA 11.475(1) et seq. The primary purpose of both acts was the regulation and protection of the state’s inland lakes and streams.⁴⁹

Under the act, any person who wishes to dredge canals is required to obtain a permit from the DNR. §§ 3, 5. A permit must be issued if the project will not adversely affect the public trust or riparian rights. In making this determination, the DNR must consider the possible effects of the proposed project upon inland lakes, streams, and waters, as well as the impact on their recreational, aesthetic, and other uses. No permit can be issued if the project will unlawfully impair or destroy any waters or other natural resources. § 7. Once issued, the permit is effective for its stated term, unless revoked for cause, and may be renewed. The permit may specify the term and conditions under which the work is to be carried out. § 8.

Thus, the DNR is statutorily required to issue dredging permits once certain conditions are met and to revoke them if there is sufficient cause. In determining whether a permit should be issued, renewed, or revoked, the DNR is impliedly authorized to conduct studies and inspect the proposed and current dredging sites, although such actions are not required. The DNR is expressly authorized to impose conditions on the dredging in order to avoid adverse environmental consequences. Such conditions serve as a warning to the permittee to conduct its dredging in a careful manner. We therefore conclude that the state and the DNR are entitled to sovereign immunity from tort liability since the injuries arose while they and their employees were engaged in the exercise or discharge of a governmental function.

The Court of Appeals conclusion that plaintiffs had insufficiently pleaded a nuisance cause of action is not clearly erroneous. Plaintiffs essentially asserted only a negligence claim. The damage to the lakes may have been sufficiently severe to constitute an unconstitutional taking of private property without just compensation or warrant injunctive relief; however, plaintiffs did not raise these arguments before the trial court and have not pursued them on appeal to this Court.

Zavala v Zinser

The Court of Appeals summarized the facts of this case as follows:

"This controversy arose out of the shooting of plaintiff Jose Zavala outside a Detroit bar in the early morning hours of November 2, 1975. As Mr. Zavala left the bar that morning, he encountered a large group of people in front of the building; some of the people, including Mr. Zavala’s brother, were fighting. After shouting at his brother to stop fighting, Mr. Zavala was shot and seriously injured by one of the participants in the fight. At the time of the incident, defendants Zinser and Harris, City of Detroit police officers, were sitting nearby in their marked police vehicle.

"Plaintiffs sued several of the participants in the fight. They were later granted permission to amend their complaint to add defendants Zinser, Harris, and the City of Detroit. They alleged that defendants Zinser and Harris had been negligent in failing to stop the fight, in failing to stop Mr. Zavala’s assailant from shooting him, and in generally failing to uphold or enforce the law. They alleged a 'special relationship’ between Mr. Zavala and defendant police officers giving rise to a duty of due care toward him. Plaintiffs further alleged the vicarious liability of defendant City of Detroit for the negligent conduct of its employees.

"Defendants Zinser, Harris, and the City of Detroit moved for summary judgment under GCR 1963, 117.2(1). The court ruled that plaintiffs’ claims against defendant city were barred by governmental immunity, and that any duties owed by defendant police officers in this case had been owed to the public generally and not to Mr. Zavala individually. The motion for summary judgment was, therefore, granted.” 123 Mich App 352, 354-355; 333 NW2d 278 (1983).

A majority of the Court of Appeals agreed that if a police officer breaches his duty to preserve the peace, the officer is liable only to the public. Since plaintiffs failed to allege sufficiently that the officers owed some other duty to them in particular, judgment for the officers was affirmed. Judgment for the city was also affirmed on the grounds that the operation of a police department is a governmental function and a claim of intentional tort had not been alleged’ However, the case was remanded for further fact-finding concerning the denial of plaintiffs’ motion to amend their complaint to allege a cause of action under 42 USC 1983.

The dissent maintained that judgment for the officers was improper because they had "a ministerial duty to perform some minimum acts to preserve the peace” pursuant to statute, the city charter, and police department policy. Furthermore, plaintiffs’ allegation of a "special relationship” was sufficient to give rise to a duty of due care and a question of fact as to whether the officers had acted reasonably.

As to the liability of the individual officers, we need not decide the "public/individual” duty issue or whether the "special relationship” allegations were legally sufficient, since we conclude that the officers are entitled to individual immunity from tort liability. Plaintiffs admitted in ¶ 39 of their second amended complaint, and the trial court found during the motion for summary judgment, that the officers were acting during the course of their employment and within the scope of their authority. The only allegations of bad-faith conduct appeared in Count VIII of plaintiffs’ proposed third amended complaint.⁵⁰ However, the trial court did not allow plaintiffs to add this count. Thus, the only question remaining is whether the officers’ actions, or lack thereof, in dealing with the fight were discretionary-decisional in nature.

The parties agree that the officers did not sit idly by while the fight occurred. The officers decided not to deal with the disturbance alone and immediately called for backup assistance, which arrived six to ten minutes later. Plaintiffs do not allege that the officers delayed too long in requesting assistance, gave the wrong address, etc. Instead, plaintiffs maintain that the officers did not take the type of action which plaintiffs believe would have been appropriate.

Police officers, especially when faced with a potentially dangerous situation, must be given a wide degree of discretion in determining what type of action will best ensure the safety of the individuals involved and the general public, the cessation of unlawful conduct, and the apprehension of wrongdoers. The determination of what type of action to take, e.g., make an immediate arrest, pursue a suspect, issue a warning, await backup assistance, etc., is a discretionary-decisional act entitled to immunity. Once that decision has been made, however, the execution thereof must be performed in a proper manner, e.g., the arrest must be made without excessive force, the pursuit of the suspect must not be done negligently, the request for assistance must include reasonably accurate information, etc. Since plaintiffs merely alleged negligent performance of a discretionarydecisional act, summary judgment for the individual officers was properly granted.⁵¹

Plaintiffs’ claim against the city alleges vicarious liability for the officers’ negligence. As previously noted, the officers were acting during the course of their employment and within the scope of their authority. There is no allegation that the city and its employees were engaged in activities conducted primarily for pecuniary profit. Thus, we must determine whether an officer’s decision to request and await backup assistance is expressly or impliedly mandated or authorized by constitution, statute, or other law._

As noted in Trezzi, supra, the city is expressly required by constitution, statute, and city charter to provide for the public peace, health, and safety of persons and property. The Detroit Police Department and its police officers are charged with the responsibility of preserving the public peace and order, preventing crime, and protecting the rights of persons. In order to accomplish these duties, the department necessarily allows its officers to exercise some judgment and discretion as to when, where, and how to act. Thus, the decision to request and await backup assistance is impliedly authorized by constitution, statute, and city charter. Since the injuries arose while the city’s employees were engaged in the exercise or discharge of a governmental function, the city is entitled to governmental immunity from tort liability.

VII. Conclusion

In Ross, the decision of the Court of Appeals is reversed in part.

In Willis, the decision of the Court of Appeals is affirmed.

In Siener, the decision of the Court of Appeals is affirmed.

In Rocco, the decision of the Court of Appeals is affirmed.

In Regulski, the decision of the Court of Appeals is reversed in part.

In Trezzi, the decision of the Court of Appeals is affirmed.

In Disappearing Lakes, the decision of the Court of Appeals is affirmed.

In Zavala, the decision of the Court of Appeals is affirmed.

Williams, C.J., and Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred.

1 1964 PA 170.

2 1964 PA 170 was amended by 1970 PA 155 and 1978 PA 141.

3 Section 1 of the governmental tort liability act contains the following definitions:

"(a) 'Municipal corporation’ means any city, village, township or charter township, or any combination thereof, when acting jointly.

"(b) 'Political subdivision’ means any municipal corporation, county, township, charter township, school district, port district, or metropolitan district, or any combination thereof, when acting jointly, and any district or authority formed by 1 or more political subdivisions.

"(c) 'State’ means the state of Michigan and its agencies, departments, and commissions, and shall include every public university and college of the state, whether established as a constitutional corporation or otherwise.

"(d) 'Governmental agency’ means the state, political subdivisions, and municipal corporations as herein defined.” MCL 691.1401; MSA 3.996(101).

4 MCL 691.1402; MSA 3.996(102) provides in relevant part:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.”

5 MCL 691.1405; MSA 3.996(105) provides:

"Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.

6 MCL 691.1406; MSA 3.996(106) provides in relevant part:

"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 if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.”

7 MCL 691.1413; MSA 3.996(113) provides:

"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.”

8 MCL 691.1408; MSA 3.996(108).

9 See, e.g., Borchard, Governmental Responsibility in Tort, 36 Yale L J 1, 17-41 (1926); 3 Holdsworth, History of English Law (5th ed), pp 458-469; Jaife, Suits Against Government and Officers: Sovereign Immunity, 77 Harv L Rev 1, 3-4, 19-20 (1963); Prosser, Torts (4th ed), § 131, pp 970-971.

In Michigan, the basis for non-sovereign governmental immunity is the state’s common-law sovereign immunity. As the Supreme Court explained in Nicholson v Detroit, 129 Mich 246; 258; 88 NW 695 (1902):

"The true theory is that the township or city represents the State in causing these things to be done, and like the State, it enjoys immunity from responsibility in case of injury to individuals * * * [because, in] imparting a portion of its powers, the State also imparts its own immunity.”

10 1842 PA 12; 1843 PA 74. See also Const 1850, art 8, § 4; 1851 PA 142; Const 1908, art 6, § 20.

11 See also People ex rel Dewey v Bd of State Auditors, 32 Mich 191 (1875); People ex rel Gratiot County Treasurer v Auditor General, 38 Mich 746 (1878).

12 1927 PA 133.

13 1925 PA 374.

14 1929 PA 259.

15 Earlier decisions had also impliedly recognized that injuries occurring as a result of a state agency’s exercise or discharge of a governmental function were not compensable. See, e.g., Ferris v Detroit Bd of Ed, 122 Mich 315; 81 NW 98 (1899); Whitehead v Detroit Bd of Ed, 139 Mich 490; 102 NW 1028 (1905); Daniels v Grand Rapids Bd of Ed, 191 Mich 339; 158 NW 23 (1916); Robinson v Washtenaw Circuit Judge, 228 Mich 225; 199 NW 618 (1924); McDonnell v Brozo, 285 Mich 38 (1938). See also Pound v Garden City School Dist, 372 Mich 499; 127 NW2d 390 (1964); McCann v State of Michigan, 398 Mich 65; 247 NW2d 521 (1976). Although several of these cases involved boards of education, such governmental agencies have traditionally been classified as state agencies for tort liability purposes. Attorney General ex rel Kies v Lowrey, 131 Mich 639, 644; 92 NW 289 (1902), aff'd 199 US 233; 26 S Ct 27; 50 L Ed 167 (1905); Whitehead, supra, p 494; Sayers v School Dist No 1, Fractional, 366 Mich 217, 219; 114 NW2d 191 (1962); Pittman v City of Taylor, 398 Mich 41, 55-59; 247 NW2d 512 (1976) (dissenting opinion of Coleman, J.), and cases cited therein; Bofysil v Dep’t of State Highways, 44 Mich App 118, 125; 205 NW2d 222 (1972).

In Myers v Genesee County Auditor, 375 Mich 1, 9; 133 NW2d 190 (1965), Justice O’Hara concluded that common-law sovereign immunity was absolute except as provided for by statute, i.e., there is no "governmental function” requirement. Not only was this erroneous conclusion dicta (only the governmental immunity of a county hospital was at issue), but the opinion was joined by only one other justice. Furthermore, the opinion failed to cite any supporting authority and did not mention any of the aforementioned cases to the contrary. Finally, this proposition has never been cited in any other decision of this Court and was distinguished twice in the Court of Appeals on the basis of Sayers, supra. See Picard v Greisinger, 2 Mich App 96, 98-99; 138 NW2d 508 (1965); Williams v Primary School Dist #3, Green Twp, 3 Mich App 468, 473; 142 NW2d 894 (1966).

16 1943 PA 237, § 24 provided:

"Upon the happening of any event subsequent to November 1, 1943, which gives rise to a cause of action, the state hereby waives its immunity from liability for the torts of its officers and employees and consents to have its liability for such torts determined in accordance with the same rules of law as apply to an action in the circuit court against an individual or a corporation, and the state hereby assumes liability for such acts, and jurisdiction is hereby conferred upon the court of claims to hear and determine all claims against the state to recover damages for injuries to property or for personal injury caused by the misfeasance or negligence of the officers or employees of the state while acting as such officer or employee. Such claim must be submitted pursuant to procedural provisions of the court of claims act. The provisions of this act shall not apply to (a) any claim for injury to or death of a prisoner, or for services rendered while an inmate of a penal institution; (b) any claim arising out of the injury to or death of an inmate of any state institution in connection with the rendition of medical or surgical treatment; (c) any claim for property damage or personal injury caused by the Michigan state troops and/ or the national guard when called into the service of the state.”

17 1945 PA 87 provided:

"AN ACT to abolish the defense of governmental function in certain actions brought against the state of Michigan; and to repeal section 24 of Act No. 135 of the Public Acts of 1939, as amended by Act No. 237 of the Public Acts of 1943.

"Section 1. In all actions brought in the court of claims against the state of Michigan to recover damages resulting from the negligent operation by an officer, agent or employee of the state of Michigan of a motor vehicle of which the state of Michigan is owner as defined by Act No. 302 of the Public Acts of 1915, as amended, the fact that the state of Michigan was in the ownership or operation of such motor vehicle, engaged in a governmental function, shall not be a defense to such action: Provided, however, That this act shall not be construed to impose upon other owners of motor vehicles by the provisions of Act No. 302 of the Public Acts of 1915, as amended.

"Section 2. Section 24 of Act No. 135 of the Public Acts of 1939, as amended by Act No. 237 of the Public Acts of 1943, is hereby repealed.”

18 The McDowell Court wrote:

" 'The legislature has received, considered, and acted upon such recommendations in the past, as is demonstrated by the enactment of PA 1943, No 237, and by the enactment of PA 1945, No 87. By these acts the defense of sovereign immunity was first abolished and then restored except as to causes of action based upon negligent operation of State-owned motor vehicles. * * * However, the doctrine of sovereign immunity which presently exists in Michigan is not the archaic, obsolete, "king can do no wrong” edition of 1066, but consists of a pattern of deliberate legislative choices which achieved its present form, so far as the State itself is concerned, by the enactment of PA 1945, No 87, and the amendment thereof by PA 1960, No 33. * * * [T]he fact that the legislature amends a statute in 1960 does show that the legislature is giving continuing consideration to, and acting with respect to, the doctrine of sovereign immunity. If the express re-establishments of the doctrine of sovereign immunity by the legislature in 1945 is obsolete, illogical, harsh, cruel, et cetera, then the legislature should be called upon to modify or abolish the doctrine.

" 'So far as the State itself is concerned, the doctrine of sovereign immunity as it presently exists in Michigan is a creature of the legislature. The doctrine has been modified by the legislature, abolished by the legislature, re-established by the legislature, and further modified by the legislature.’

"The judiciary has no right or power to repeal statutes. * * * [T]he legislature has willed that the present defendants be and remain immune from liability for torts such as these plaintiffs have alleged. There they must stand, legally, until the legislature wills to the contrary.” McDowell, supra, 365 Mich 270-271.

See also Sayers, supra; Lewis v Genesee County, 370 Mich 110; 121 NW2d 417 (1963).

19 The common-law governmental immunity of counties, townships, and villages was abolished in Myers v Genesee County Auditor, 375 Mich 1; 133 NW2d 190 (1965), and Keenan v County of Midland, 377 Mich 57; 138 NW2d 759 (1966).-

20 City Attorney Allen G. Hertler of Royal Oak, Michigan, a member of the special committee that drafted the governmental immunity act, stated:

"In lobbying for this legislation, its proponents traded heavily on the paradoxical state of existing law which found the State and its agencies, including school districts, still enjoying the defense of governmental immunity, while municipal corporations could no longer employ this defense. We sought to achieve legislation that would put all government on the same basis. * * * This statute puts all agencies of government on the same footing with regard to tort liability.” Abels, Report of Committee on Tort Liability, 28 NIMLO Municipal L Rev 432, 463-464 (1965).

21 Section 7 was found unconstitutional because it granted immunity from all tort liability. In contrast, the title of the governmental immunity act created immunity for injuries caused by negligence alone. Since negligence is only one species of tort, § 7 unconstitutionally conferred much broader immunity than the title allowed. Section 7 was deemed independent from the remainder of the act and was severed. Maki, supra, 385 Mich 158-159.

22 To cure the constitutional defect, the Legislature merely omitted the reference to negligence in the act’s title. See 1970 PA 155, § 1. The changes in § 7 were merely stylistic.

23 In determining that this Court had the authority to abolish common-law sovereign immunity, the lead opinion stated:

"In reaching this result we reexamined the case of McDowell v State Highway Commissioner, 365 Mich 268; 112 NW2d 491 (1961). In McDowell, the majority of the Court concluded that 1945 PA 87 granted statutory tort immunity to the state.' This conclusion, we believe, was erroneous. The Legislature in 1945 PA 87 did not statutorily grant to the state governmental tort immunity. Rather, it repealed the statutory waiver of immunity found in 1943 PA 237 and returned the state to the common-law immunity it had enjoyed prior to the 1943 amendment. This conclusion was correctly explained by Justice Edwards dissenting in McDowell:

" 'By this statute [1945 PA 87], the legislature repealed PA 1939, No 135, § 24, as amended by PA 1943, No 237, the amendment being a legislative grant of the right of maintaining tort actions against the State. By enactment of this statute, the legislature moved to abolish the judicial doctrine of governmental immunity. By repealing this statute, the legislature returned to its prior posture which was no statutory provision on the subject whatsoever.’ ” Pittman, supra, 398 Mich 46-47, fn 1.

Cf. fn 18, supra.

The majority believed that the reasons given in Williams for abolishing common-law governmental immunity for municipalities were equally applicable to sovereign immunity. In addition, there was no good reason to treat state and non-sovereign governmental units differently. Id., p 48. Pittman, however, has limited applicability. Only those cases pending or filed as of November 23, 1976, involving causes of action arising before August 1, 1970 (the date § 7 became effective), could take advantage of the demise of common-law sovereign immunity.

24 The majority reasoned that words and phrases which have acquired a common-law meaning are interpreted in the same manner when used in statutes dealing with the same subject matter. The Legislature, in using the term "governmental function” to describe the limits of governmental immunity, intended that activities which were considered governmental functions when the statute was enacted should also enjoy statutory immunity. This conclusion was bolstered by the second sentence of § 7, which affirmed the case law precedent concerning sovereign immunity.

25 Subsequent decisions of this Court did not overrule Parker on this point. In Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), which was decided the same day as Parker, Justice Ryan, joined by Justices Williams and Coleman, again expressed their view that the phrase "governmental function” must be defined by common-law precedent. Id., pp 210-212. Justice Moody briefly mentioned his contrary view in his concurrence, id., p 215, but the remaining three members of the Court did not. However, since these same four justices had espoused the "anti-freeze” position in Parker, it is clear that they intended the same result in Perry.

In Ross v Consumers Power Co, 415 Mich 1; 327 NW2d 293 (1982), Justices Ryan, Williams, and Coleman again expressed their views. Id., pp 14-15. Justice Kavanagh’s opinion, joined by Chief Justice Fitzgerald and Justice Levin, did not mention the issue, but there is no indication that they had abandoned their prior views. The late Justice Moody took no part in the decision. Thus, Parker was affirmed on this point because of the 3-3 decision.

26 See Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 229-237 (1973), and cases discussed therein.

27 See Cooperrider, supra, pp 219-229 and cases discussed therein. The "common good of all” test has been recently reaffirmed by several members of this Court as the sole definition of "governmental function.” See Tilford v Wayne County General Hospital, 403 Mich 293, 301-302; 269 NW2d 153 (1978) (Ryan, J., concurring); Parker, supra, p 191, fn 3 (opinion of Fitzgerald, J.), and pp 203-204 (Ryan, J., dissenting); Perry, supra, pp 211-212; Bush v Oscoda Area Schools, 405 Mich 716, 735, fn 2; 275 NW2d 268 (1979) (Ryan, J., dissenting); Ross, supra, pp 6-8 (opinion of Ryan, J.).

Sovereign and governmental immunity from tort liability has also been denied at common law where the governmental agency created certain types of trespasses or nuisances. See Cooperrider, supra, pp 238-249, and cases discussed therein. See also Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), for a thorough discussion of the different types of nuisances and trespasses. In light of our resolution of Disappearing Lakes, infra, we need not determine at this time whether this exception remains viable.

28 The Thomas dissent wrote:

"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 this 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. * * * [Cjertain 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. * * *

"The parameter 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.” Thomas, supra, pp 21-22.

See also Parker, supra, p 193 (opinion of Fitzgerald, J.); Perry, supra, p 215 (Kavanagh, C.J., dissenting).

29 Even if the activity in question did not meet this test, the governmental agency could still be found immune from tort liability if such liability "would be an unacceptable interference with government’s ability to govern * * Parker, supra, p 200. See also Perry, supra, p 214.

30 Const 1835, art 1, § 2; Const 1908, art 2, § 1; Const 1963, art 1, § 1.

31 See Cooperrider, supra, pp 229-237, and cases discussed therein.

32 Such an interpretation satisfies the recurring concern that the proprietary/governmental function dichotomy rests on a false premise, i.e., if an activity does not fall into the first category, it necessarily falls into the latter. See Cooperrider, supra, p 282; Parker, supra, p 193, and fn 8 (opinion of Fitzgerald, J.); McCann, supra, 398 Mich 79 (opinion of Ryan, J.); Thomas, supra, 398 Mich 19 (Kavanagh, C.J., and Fitzgerald, J., dissenting).

33 The dissent states that under today’s decision, a governmental entity can expand the scope of its immunity by promulgating an ordinance or other law. If the activities in which the governmental agency was engaged when the tort was committed were not expressly or impliedly mandated or authorized by constitution, statute, or other law (i.e., the activities were ultra vires), it cannot thereafter pass a law which would retroactively authorize the activities. The possibility that governmental agencies will now enact laws requiring or authorizing activities merely to immunize themselves against future unknown tort liability is remote. The suggestion of such devious motivation is unwarranted.

34 In Galli v Kirkeby, 398 Mich 527, 532, 540-541; 248 NW2d 149 (1976), four members of this Court held that plaintiffs must plead facts in their complaint in avoidance of immunity, i.e., they must allege facts which would justify a finding that the alleged tort does not fall within the concept of sovereign or governmental immunity. This may be accomplished by stating a claim which fits within one of the statutory exceptions or pleading facts which demonstrate that the tort occurred during the exercise or discharge of a non-governmental or proprietary function. See McCann, supra, p 77 (opinion of Ryan, J.). Sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability upon the governmental agency. Galli, supra, p 541, fn 5; McCann, supra, p 77, fn 1.

35 Of course, a governmental agency can only "act” through its officers, employees, and agents. As with corporate entities, however, some acts are deemed to be done by the agency itself, rather than by an individual.

36 MCL 691.1408; MSA 3.996(108), as amended, provides:

"(1) Whenever a claim is made or a civil action is commenced against an officer or employee of a governmental agency for injuries to persons or property caused by negligence of the officer or employee while in the course of employment and while acting within the scope of his or her authority, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer or employee as to the claim and to appear for and represent the officer or employee in the action. The governmental agency may compromise, settle, and pay the claim before or after the commencement of a civil action. Whenever a judgment for damages is awarded against an officer or employee of a governmental agency as a result of a civil action for personal injuries or property damage caused by the officer or employee while in the course of employment and while acting within the scope of his or her authority, the governmental agency may idemnify [sic] the officer or employee or pay, settle, or compromise the judgment.

"(2) When a criminal action is commenced against an officer or employee of a governmental agency based upon the conduct of the officer or employee in the course of employment, if the employee or officer had a reasonable basis for believing that he or she was acting within the scope of his or her authority at the time of the alleged conduct, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer or employee as to the action, and to appear for and represent the officer or employee in the action. An officer or employee who has incurred legal expenses after December 31, 1975 for conduct prescribed in this subsection may obtain reimbursement for those expenses under this subsection.

"(3) This section shall not impose any liability on a governmental agency.”

37 MCL 691.1409; MSA 3.996(109) provides:

"The purchase of liability insurance to indemnify and protect governmental agencies against loss or to protect governmental agencies and some or all of its agents, officers, and employees against loss on account of any judgment secured against it, or them, arising out of any claim for personal injury or property damage caused by such governmental agency, its officers, or employees, is authorized, and all governmental agencies are authorized to pay premiums for the insurance out of current funds. 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.”

38 The existence of a tort, the individual tortfeasor’s status as an employee, agent, independent contractor, etc., the question whether the tortfeasor was acting during the course of employment and within the scope of authority, and the corresponding extent of the governmental agency’s vicarious tort liability will generally be determined with reference to common-law tort and agency principles.

39 Other decisions which have followed this rule include Gordon v Farrar, 2 Doug 411 (Mich, 1847); Raynsford v Phelps, 43 Mich 342, 344-345; 5 NW 403 (1880); Amperse v Winslow, 75 Mich 234, 244-245; 42 NW 823 (1889); Pawlowski v Jenks, 115 Mich 275, 276-277; 73 NW 238 (1897); Nicholson v Detroit, 129 Mich 246, 255; 88 NW 695 (1902); Stevens v Black, 212 Mich 281, 292; 180 NW 503 (1920); People v O’Connell, 214 Mich 410, 414-415; 183 NW 195 (1921); Sherbutte v Marine City, 374 Mich 48, 54; 130 NW2d 920 (1964). See also Little-john & DeMars, Governmental Immunity After Parker and Perry: The King Can Do Some Wrong, 1982 Det C L Rev 1, 34-35.

"* 'Government officials are liable for the negligent performance of their ministerial duties * * * but are not liable for their discretionary acts within the scope of their authority, * * * even if it is alleged that they acted maliciously. * * * Such immunity is not designed to protect the guilty, for "if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. * * * In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Learned Hand, J., in Gregoire v Biddle, 177 F2d 579, 581 [CA 2,1949].’ Muskopf v Corning Hospital District, 55 Cal 2d 211, 220, 221 (11 Cal Rptr 89, 94, 95, 359 P2d 457 [1961]).”

40 See, e.g., Littlejohn & DeMars, supra, pp 37-38.

41 The requirement that the individual act, or reasonably believe he is acting, within the scope of his authority satisfies the concern of some commentators who believe that an individual should not be held liable merely because it is later determined that he acted under an unconstitutional statute or otherwise had no actual authority. As Dean Prosser has noted, an officer’s decision as to how, when, or where to act necessarily involves a discretionary or judicial determination that he has the authority to so act. Prosser, supra, § 132, p 991. This reasoning was impliedly used in Wall v Trumbull, 16 Mich 228, 237-238 (1867), where it was stated that the township board had jurisdiction to determine whether a claim was lawful and to act accordingly.

The requirement that the individual act during the course of his employment and within the scope of his authority parallels the language of § 8, which authorizes a governmental agency to defend and indemnify its officers and employees.

42 See Prosser, supra, p 991, and authorities cited therein.

43 See Littlejohn & DeMars, supra, p 26.

44 See Prosser, supra, p 990, quoting Ham v Los Angeles County, 46 Cal App 148, 162; 189 P 462 (1920).

45 Plaintiff alleged claims bhsed on negligence, gross negligence, wilful, wanton and reckless conduct, breach of fiduciary duty, and breach of implied contract. As to the latter two claims, the circuit court found that the complaint did not state additional significant facts which would establish a fiduciary relationship or the terms of any contract. Plaintiff was merely attempting to avoid governmental immunity. The Court of Claims did not discuss these counts separately. Since plaintiff did not specifically challenge the circuit court’s conclusion in either the Court of Appeals or this Court, we need not determine whether summary judgment was properly granted for defendants as to these two counts.

46 MCL 330.1722; MSA 14.800(722) provides:

"(1) A recipient of mental health services shall not be physically, sexually, or otherwise abused.

"(2) The governing body of each facility shall adopt written policies and procedures designed to protect recipients of mental health services from abuse and to prevent the repetition of acts of abuse. The policies and procedures shall more particularly define abuse, shall provide a mechanism for discovering instances of abuse and for reviewing all charges of abuse, shall ensure that firm and appropriate disciplinary action is taken against those who have engaged in abuse, and shall contain those additional provisions deemed appropriate by the governing body.

"(3) A facility shall cooperate in the prosecution of appropriate criminal charges against those who have engaged in unlawful abuse.

"(4) Any recipient of mental health services physically, sexually, or otherwise abused shall have a right to pursue injunctive and other appropriate civil relief.”

47 The dissent notes that the district may have violated § 1288 of the School Code by not requiring each student to wear eye protective devices during the class. Since plaintiff has never alleged or argued that he is entitled to relief because of this statutory violation, we need not determine whether § 1288 authorizes the recovery of damages from a school district in spite of § 7 of the governmental immunity act.

48 We assume that plaintiffs’ cause of action accrued after August 1, 1970, the effective date of § 7 of the governmental immunity act. Plaintiffs have never alleged that the holding of Pittman v Taylor is applicable to the facts of this case. See fn 23 and accompanying text.

49 Since the relevant statutory provisions of both acts are sufficiently similar for purposes of this discussion, only current statutory provisions will be cited.

50 Plaintiffs alleged in Count VIII that the officers failed to stop the fight on account of Jose Zavala’s race and gender. Zavala is a Mexican-American male. Both officers are female; one is black and the other white.

51 In Sherbutte v Marine City, 374 Mich 48, 54-55; 130 NW2d 920 (1964), plaintiff brought an action against a police officer for allegedly using excessive force in effectuating his arrest. This Court reversed summary judgment for the officer, stating:

"Appellee’s theory is that because Williams excluded 'discretionary’ acts, and that since a police officer has discretion as to whom he will arrest, for what reason the arrest will be made, and how much force will be used, his action is a 'discretionary’ one. The theory is untenable.

"The action of a police officer in making an arrest cannot be considered within the broad scope of the discretion allowed a free government in its legislative, executive, or judicial branch.”

This holding is not necessarily in conflict with our decision today. In Sherbutte, plaintiff did not allege that the officer’s decision to arrest him was improper, but that the officer had effectuated the arrest in a tortious manner. Unlike the instant case, plaintiff there properly alleged the negligent performance of a ministerial-operational activity for which there is no immunity from tort liability.