This appeal entails application of the governmental immunity statute, MCL 691.1407; MSA 3.996(107), to the operation of an emergency medical services (EMS) unit by a mu *3 nicipal fire department. The trial judge has granted accelerated judgment for the City of Dear-born and Dearborn Fire Department on grounds that such an operation is a "governmental function”. We reverse.
Plaintiffs decedent was injured in an automobile collision. An emergency vehicle from the Dearborn Fire Department was summoned to the scene of the accident to administer first aid and transport victims to the hospital. Plaintiff alleges negligent delay by the vehicle’s attendants in transporting plaintiffs decedent to the hospital caused the decedent’s death. Plaintiff has brought suit against the City of Dearborn and Dearborn Fire Department on a theory of vicarious liability for the attendants’ negligence.
When moving for accelerated judgment, the city and fire department relied extensively on this Court’s decision in
Parvu v Harrison Twp Fire Dep’t,
Since briefs were submitted in this case, the Supreme Court has altered the definition of "governmental function”. The test no longer is whether the operation in question is for the common good, but instead, whether it is "of essence to
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governing”.
Parker v Highland Park,
Applying the "governmental essence” test in
Parker v Highland Park, supra,
a majority of four, composed of Justices Kavanagh, Levin, Fitzgerald and Moody, found the operation of a general hospital by a municipality to be nongovernmental. Thereby, the majority overruled
Nicholson
and, by apparent analogy,
Parvu.
In a companion case,
Perry v Kalamazoo State Hospital,
In both cases, Justices Williams, Coleman and Ryan rejected the "governmental essence” test. They reasoned such a test was contrary to the legislative directive to look to the common law, as it stood at the time of the immunity statute’s enactment, for purpose of defining governmental tort liability. Justice Moody, who provided the swing vote in each case, adopted the "governmental essence” test, but found the operation of a mental hospital had attributes essential to governing. Specifically, he based his distinction between general and mental hospitals on differences in (1) competition between public and private hospitals, (2) financial involvement by the state, (3) state responsibility for the placing of patients, (4) public need for the segregation of patients, and (5) voluntary nature of commitment.
At oral argument in the instant case, the city and fire department responded to
Parker
and
Perry
in two ways. First, defense counsel contended the "governmental essence” test should be given prospective effect only, according to the
*5
principles announced in
Parker v Port Huron Hospital,
We hold the "governmental essence” test is applicable to the present case. If the test was not intended to have present effect, we believe the majority in
Parker v Highland Park, supra,
would have said so. In
Parker v Port Huron Hospital, supra,
and in other cases overruling longstanding precedent,
e.g., Pittman v City of Taylor,
Moreover, even if the "governmental essence” test is to be given prospective effect, an exception should be made for cases, like the one here, that were pending when the test was adopted. In determining whether any rule of law should have retroactive or prospective effect, and to what extent, Justice Edwards has written:
*6 "It is evident that there is no single rule of thumb which can be used to accomplish the maximum of justice in each varying set of circumstances. The involvement of vested property rights, the magnitude of the impact of decision on public bodies taken without warning or a showing of substantial reliance on the old rule may influence the result.” Williams v Detroit, supra, at 266.
No doubt the Supreme Court’s adoption of the "governmental essence” test will have a profound impact on public bodies in this state. The present appellees have not shown (merely asserted) substantial reliance on the old rule, but we can take notice of that probability. Still, the change was not entirely without warning. Courts of this state and other jurisdictions for years have been steadily eroding the doctrine of governmental immunity, especially as to municipalities. See Williams v Detroit, supra. Further, the detriment public bodies may have incurred in reliance on the old test for governmental immunity must be balanced against the injuries suffered by plaintiffs which, according to the most enlightened thinking, should be compensable by governmental agencies. Thus, we find no injustice in applying the "governmental essence” test to cases pending when the test was adopted.
Applying that test to the facts of this case, we hold the operation of the subject EMS unit is not a "governmental function”. Searching for the factors enumerated by Justice Moody in Parker and Perry, we do not find the attributes that would make the operation essentially governmental.
The appellees’ focus on competition between private and public fire departments in their principal operations is misplaced. Clearly, in
Parvu
the panel focused on the precise operation involved,
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rather than overall or principal departmental operations, in applying the then-accepted definition of "governmental”. That focus was correct under prior case law. See
Dohm v Acme Twp,
Thus, we find the Dearborn Fire Department’s operation of the subject EMS unit is more like the operation of a general hospital than a mental hospital. According to Parker and consistent with Perry, therefore, the operation is not protected by the cloak of governmental immunity.
Reversed. No costs, a public question.