This is an appeal by plaintiff Honore Watson, administratrix of the estate of Carolyn Honore Watson, deceased, from a
judgment non obstante veredicto in favor of the defendant school district of the city of Bay City, a jury having rendered a verdict in favor of plaintiff for $10,000.
On the evening of October 26, 1945, decedent, then 15 years old and a student at the T.L. Handy Junior High School in Bay City, in company with her younger brother and another boy, attended a football game between the Midland High School and the Bay City Central High School in the latter's stadium. She paid an admission charge in order to attend this game. While there she met a girl friend, Joan Downer, who had accompanied her friend, James Dobson, a member of the high school band. Carolyn was invited to ride home with them. Upon leaving the stadium "about 10 minutes before the game was completely over," the two girls walked to a parking lot on the west side of the school premises, where they waited in Dobson's car for him. The parking lot was not lighted, although there were two street lights in the vicinity, and the Kleig lights in the nearby stadium threw a diffused light over the area. This lot has a black cinder top and there is a ramp about 80 feet long, 15 1/2 feet wide, and over 11 feet in depth at the deepest end, running from the basement of the warehouse building of the high school up to the ground level. A low concrete wall, which is level with the parking surface at the entrance to this ramp, extends on either side towards the building, with an average height of about 18 inches. The testimony shows that the ramp is protected by 8 or 10 posts made of 6-inch tubes filled with concrete. "They are in front of the ramp and along the west side, connecting with the wall, and their purpose is to prevent anybody from driving down there." The testimony, however, does not indicate that there is any rail above the retaining wall to protect pedestrians. Dobson's car was parked with its front wheels
against the west side wall of the ramp with other cars parked closely on either side.
When the game ended, there was considerable cheering and Carolyn, who was a cheer leader in the Handy Junior High School, suggested to Joan that they get out of the car and help the boys cheer. Because of the proximity of other cars the door to the Dobson car would not open wide and Carolyn, while stepping out and attempting to walk around the car, fell into the concrete ramp and suffered an injury to her spinal column. She never recovered from the total paralysis that followed and, after a lingering and painful illness, died some 8 months later.
Carolyn's administratrix based her right to recover against the school district on its negligence in failing to properly light and safeguard the ramp, the maintenance of a dangerous nuisance upon its premises, and the breach of its implied contract in failing to provide Carolyn with a "safe place to travel" while she was a paid attendant at the football contest upon defendant's premises.
The school district asserted its immunity from liability under each of the three counts of plaintiff's declaration, on the ground that it is a quasi municipal corporation and an agency of the State; that there was no evidence of its negligence or that of its employees; that Carolyn was guilty of contributory negligence as a matter of law; and that the parking lot upon which she was injured, although on the school premises, is not connected with nor a part of the athletic field to which Carolyn and other members of the public had been invited.
The trial court held that Carolyn's contributory negligence, if any, was a question of fact for the jury, and that defendant's immunity from liability was solely a question of law. The remaining issues were submitted to the jury, with decision reserved on defendant's
motion for a directed verdict at the close of the proofs.
The following questions were submitted to the jury:
"1. Did the defendant know the condition of its parking lot located on the northwest portion of its premises?
"Answer: Yes.
"2. Did the defendant have the area of its parking lot in the northwest portion of its premises in a reasonably fit and proper condition for the use to which it was put on October 26, 1945?
"Answer: No."
Defendant is a third-class school district and its powers and duties are enumerated in section 15 of chapter 6 of part 1 of Act No. 319, Pub. Acts 1927, as amended* (2 Comp. Laws 1929, § 7233 [Comp. Laws Supp. 1940, § 7233, Stat. Ann. 1946 Cum. Supp. § 15.195]). Such a school district is given power to "locate, acquire, purchase or lease, in the name of the district, such site or sites * * * for * * * athletic fields and playgrounds as may be necessary; to purchase, lease, acquire, erect or build and equip such buildings for * * * athletic fields and playgrounds as may be necessary."
Section 5 of chapter 20 of the school code8224 (2 Comp. Laws 1929, § 7566 [Stat. Ann. § 15.606]) places the control of interscholastic athletic activities in the superintendent of public instruction. Such activities are conducted under rules promulgated by the State superintendent in a handbook entitled, "Michigan High School Athletic Association," a copy of which was produced as an exhibit.
The testimony shows that athletic contests, particularly football games, cannot be conducted without
limitation upon attendance by means of an admission charge, the proceeds of which are used to defray the expenses of visiting teams as well as home teams; surpluses if any over the expense of operation of football contests are used to promote other school athletic activities.
The general public was invited to the football game in question through newspaper and other advertising, and everyone in attendance, except the participants, school employees and members of the school band were required to pay for their admissions. A Federal amusement tax was paid on such receipts. Guards patrolled the athletic field to prevent entrance by anyone other than those having tickets; teachers were employed as ticket takers and athletic assistants, for which they were given additional pay; football coaches, scouts, and business managers were employed, and if otherwise used by the school district, were paid additional sums for such services.
The Midland-Bay City game produced a total of cash receipts amounting to $1,225.79, direct costs were $275.01, and the surplus of about $950 was deposited in the general fund of the school district. Defendant contends that such athletic enterprises are primarily a part of the physical education program of the school and that admission charges are only incidental thereto, and that such football contests are not, therefore, commercial in nature. Plaintiff argues that those who are not students or otherwise connected with the school, such as this decedent, are not benefited by its physical education program and that their only interest is to attend a football contest; and she argues that the facts of the case show a commercial operation for profit which wholly removes the school district while engaged in such operation from the protection of the defense of governmental immunity.
This highly debated and controversial question of governmental immunity has been the subject of much litigation. 160 A.L.R., beginning at page 7, contains more than several hundred pages of annotated cases on the subject of the tort liability of public schools and institutions of higher learning.
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This is an appeal by plaintiff Honore Watson, administratrix of the estate of Carolyn Honore Watson, deceased, from a
judgment non obstante veredicto in favor of the defendant school district of the city of Bay City, a jury having rendered a verdict in favor of plaintiff for $10,000.
On the evening of October 26, 1945, decedent, then 15 years old and a student at the T.L. Handy Junior High School in Bay City, in company with her younger brother and another boy, attended a football game between the Midland High School and the Bay City Central High School in the latter's stadium. She paid an admission charge in order to attend this game. While there she met a girl friend, Joan Downer, who had accompanied her friend, James Dobson, a member of the high school band. Carolyn was invited to ride home with them. Upon leaving the stadium "about 10 minutes before the game was completely over," the two girls walked to a parking lot on the west side of the school premises, where they waited in Dobson's car for him. The parking lot was not lighted, although there were two street lights in the vicinity, and the Kleig lights in the nearby stadium threw a diffused light over the area. This lot has a black cinder top and there is a ramp about 80 feet long, 15 1/2 feet wide, and over 11 feet in depth at the deepest end, running from the basement of the warehouse building of the high school up to the ground level. A low concrete wall, which is level with the parking surface at the entrance to this ramp, extends on either side towards the building, with an average height of about 18 inches. The testimony shows that the ramp is protected by 8 or 10 posts made of 6-inch tubes filled with concrete. "They are in front of the ramp and along the west side, connecting with the wall, and their purpose is to prevent anybody from driving down there." The testimony, however, does not indicate that there is any rail above the retaining wall to protect pedestrians. Dobson's car was parked with its front wheels
against the west side wall of the ramp with other cars parked closely on either side.
When the game ended, there was considerable cheering and Carolyn, who was a cheer leader in the Handy Junior High School, suggested to Joan that they get out of the car and help the boys cheer. Because of the proximity of other cars the door to the Dobson car would not open wide and Carolyn, while stepping out and attempting to walk around the car, fell into the concrete ramp and suffered an injury to her spinal column. She never recovered from the total paralysis that followed and, after a lingering and painful illness, died some 8 months later.
Carolyn's administratrix based her right to recover against the school district on its negligence in failing to properly light and safeguard the ramp, the maintenance of a dangerous nuisance upon its premises, and the breach of its implied contract in failing to provide Carolyn with a "safe place to travel" while she was a paid attendant at the football contest upon defendant's premises.
The school district asserted its immunity from liability under each of the three counts of plaintiff's declaration, on the ground that it is a quasi municipal corporation and an agency of the State; that there was no evidence of its negligence or that of its employees; that Carolyn was guilty of contributory negligence as a matter of law; and that the parking lot upon which she was injured, although on the school premises, is not connected with nor a part of the athletic field to which Carolyn and other members of the public had been invited.
The trial court held that Carolyn's contributory negligence, if any, was a question of fact for the jury, and that defendant's immunity from liability was solely a question of law. The remaining issues were submitted to the jury, with decision reserved on defendant's
motion for a directed verdict at the close of the proofs.
The following questions were submitted to the jury:
"1. Did the defendant know the condition of its parking lot located on the northwest portion of its premises?
"Answer: Yes.
"2. Did the defendant have the area of its parking lot in the northwest portion of its premises in a reasonably fit and proper condition for the use to which it was put on October 26, 1945?
"Answer: No."
Defendant is a third-class school district and its powers and duties are enumerated in section 15 of chapter 6 of part 1 of Act No. 319, Pub. Acts 1927, as amended* (2 Comp. Laws 1929, § 7233 [Comp. Laws Supp. 1940, § 7233, Stat. Ann. 1946 Cum. Supp. § 15.195]). Such a school district is given power to "locate, acquire, purchase or lease, in the name of the district, such site or sites * * * for * * * athletic fields and playgrounds as may be necessary; to purchase, lease, acquire, erect or build and equip such buildings for * * * athletic fields and playgrounds as may be necessary."
Section 5 of chapter 20 of the school code8224 (2 Comp. Laws 1929, § 7566 [Stat. Ann. § 15.606]) places the control of interscholastic athletic activities in the superintendent of public instruction. Such activities are conducted under rules promulgated by the State superintendent in a handbook entitled, "Michigan High School Athletic Association," a copy of which was produced as an exhibit.
The testimony shows that athletic contests, particularly football games, cannot be conducted without
limitation upon attendance by means of an admission charge, the proceeds of which are used to defray the expenses of visiting teams as well as home teams; surpluses if any over the expense of operation of football contests are used to promote other school athletic activities.
The general public was invited to the football game in question through newspaper and other advertising, and everyone in attendance, except the participants, school employees and members of the school band were required to pay for their admissions. A Federal amusement tax was paid on such receipts. Guards patrolled the athletic field to prevent entrance by anyone other than those having tickets; teachers were employed as ticket takers and athletic assistants, for which they were given additional pay; football coaches, scouts, and business managers were employed, and if otherwise used by the school district, were paid additional sums for such services.
The Midland-Bay City game produced a total of cash receipts amounting to $1,225.79, direct costs were $275.01, and the surplus of about $950 was deposited in the general fund of the school district. Defendant contends that such athletic enterprises are primarily a part of the physical education program of the school and that admission charges are only incidental thereto, and that such football contests are not, therefore, commercial in nature. Plaintiff argues that those who are not students or otherwise connected with the school, such as this decedent, are not benefited by its physical education program and that their only interest is to attend a football contest; and she argues that the facts of the case show a commercial operation for profit which wholly removes the school district while engaged in such operation from the protection of the defense of governmental immunity.
This highly debated and controversial question of governmental immunity has been the subject of much litigation. 160 A.L.R., beginning at page 7, contains more than several hundred pages of annotated cases on the subject of the tort liability of public schools and institutions of higher learning. There follow almost 100 pages more of annotations on the subject of the tort liability of private schools and institutions of higher learning.
This Court has spoken on the subject in a number of instances, of which the following are representative: Daniels v. Board ofEducation of the City of Grand Rapids, 191 Mich. 339
(L.R.A. 1916F, 468), and Daszkiewicz v. Detroit Board ofEducation, 301 Mich. 212.
Throwing light on the subject of governmental immunity are decisions of this Court with respect to municipalities, counties and other governmental agencies, such as: Hodgins v. BayCity, 156 Mich. 687 (132 Am. St. Rep. 546); Gunther v. Boardof County Road Commissioners of Cheboygan County, 225 Mich. 619;Foss v. City of Lansing, 237 Mich. 633 (52 A.L.R. 185);Matthews v. City of Detroit, 291 Mich. 161; and Mead v.Michigan Public Service Commission, 303 Mich. 168.
The precise question involved in the instant case is controlled by Foss v. City of Lansing, supra. Plaintiff in that case was injured by a city garbage truck, which she claimed, while being operated in a negligent manner, ran into her automobile, resulting in her injury. The cost of collecting and disposing of garbage in the city of Lansing was paid from the general fund, but the then city ordinance required the city to provide garbage cans or other containers for which the superintendent of garbage collected in advance from the users of such cans $1 per fiscal year. Garbage so collected was conveyed to a farm
where it was fed to pigs which were fattened and sold by the city at a profit.
The city defended on the ground that, in performing this governmental function, it was not liable for the negligent acts of its servants. The trial judge agreed with this view and directed a verdict for the city.
On appeal, judgment was reversed and a new trial granted, under the authority of Hodgins v. Bay City, supra, the Court saying:
"Whatever the holdings may be elsewhere, we are of the opinion that the rule in Michigan is that, if a municipality is engaged in a governmental work with an incidental profit, it is liable the same as a private corporation would be."
This rule was applied in City of Bay City v. State Board ofTax Administration, 292 Mich. 241, 251. See, also, Miller v.Manistee County Board of Road Commissioners, 297 Mich. 487, 499
(136 A.L.R. 575), overruled in Mead v. Michigan Public ServiceCommission, supra.
Defendant argues that it is a statutory State agency possessing only governmental powers, and that, on the contrary, municipalities possess both governmental and proprietary powers. It also argues that, in any event, the receipt by it of paid admissions incidental to athletic contests is not the exercise of proprietary powers, and, hence, the Foss Case is not applicable to school districts. The weakness in defendant's argument is that in the Foss Case the city, while performing a governmental function, received incidental profits in connection therewith. In the instant case, admitting for the sake of argument that the school district was performing a governmental function as prescribed by statute and the regulations of the State superintendent of public instruction, nevertheless it, too, received an incidental profit from
the exercise of such powers. Both were performing governmental functions, and, hence, the rule in the Foss Case, where a municipality was involved, should be held equally applicable in the instant case where a school district is involved. Therefore, we hold that such a rule pertaining to municipalities is also applicable to school districts.
The judgment entered non obstante veredicto should be reversed and one should be entered in accordance with the verdict of the jury.
We do not deem it necessary to elaborate on questions of negligence. In the absence of governmental immunity, such questions, under the circumstances in this case, are ones of fact for the jury. We agree with the trial judge that the question of "nuisance" is not involved.
The judgment should be reversed and the cause be remanded for entry of a judgment in accordance with the verdict of the jury, with costs of both courts to plaintiff.
SHARPE, C.J., and BOYLES and REID, JJ., concurred with BUSHNELL, J.
* See 2 Comp. Laws 1948, § 346.15. — REPORTER.
8224 2 Comp. Laws 1948, § 370.5. — REPORTER.