*1 App 240 v BOULET BRUNSWICK CORPORATION 1982, at Detroit. Decided
Docket 61773. Submitted October No. 6, 1983. applied appeal June Leave to for. Boulet, Boulet, individually and as friend of next David Laurent Corporation, against brought Law- an action Brunswick Anderson, others, damages injuries Kaye, Mel and for for rence high game which left David in a school football sustained prior appeal quadriplegic. In a to Court venue Boulet a lie Court. was determined to in the Macomb Circuit this action (1981). Thereafter, the Macomb Circuit granted Lawrence and Mel Anderson’s Court defendants summary judgment on the basis that as the head motion for they public school assistant coaches of David Boulet’s team and immune from suit because of were court, George appeal alleging that the R. Denew- trial Plaintiffs eth, J., granting judgment. the motion and Held: erred granting summary not err in 1. The trial court did public judgment. immu- school is entitled to including program, nity its of athletic supervision program. of a football Teachers administration and supervisors and of the are entitled performed have their duties within scope employment. their of general part of 2. A education as activity, is in curriculum or as an extracurricular furtherance integral provided public of of the total students. though 3. Even be administered and a football could school, teáchers,
provided sector the References for Points in Headnotes 3, 8, [1, 2d, School, Liability Municipal, 57 Am Jur and State Tort 9] [2] [4-9] Modern status 68 Am Jur §12. 68 Am Jur Am Jur schools and 2d, 2d, 2d, Schools Schools 283. Schools 5. doctrine of institutions § § 319 et § seq. sivereign higher learning. 33 ALR3d v Brunswick supervisors governmental immunity are entitled to when such program provided of a school education.
Affirmed. Burns, P.J., dissented and would hold: *2 present determining 1. Under the test for whether or not governmental immunity protects entity an or an individual particular activity courts ask first whether or not the is a governmental activity function and then whether or not the discharge within falls the exercise or of that function. operation program 2. The by of an extracurricular football a Moody’s public high school does fit not within Justice "effec- tively accomplished only by government” govern- the test for mental part qua 3. Football is not a of education education and is operation. no means essential to a school’s immunity 4. Governmental should not be when the governmental tangential clearly govern- function involved is ment itself. operation public high of a school foot- program only tenuously government’s ball relates to the essen- purpose promoting public justice tial ruling and a governmental immunity apply does not in this case would not impair government’s ability either the pro- school’s or the public justice. vide He would reverse.
Opinion op the Court — Programs — — 1. Schools Athletic Torts Governmental Immu- nity. public A governmental school is entitled to operation program, including of its athletic the administration supervision program; supervisors of a football teachers and governmental of the are entitled to performed have scope their duties within the of their employment. — Programs. 2. Schools Athletic A general education of the curriculum or as activity, an extracurricular is in furtherance of and an integral part public provided of the total to students. — Programs Programs — — 3. Schools Athletic Gov- Immunity. ernmental supervisors school and its teachers and are entitled to governmental immunity resulting in cases from the provided program of a
of a football though adminis- a football could be education even provided sector. the tered and Burns, Immunity — — Functions. Test Governmental 4. Governmental courts, determining governmental Michigan’s or whether not immunity protects entity, an individual or an ask ñrst particular activity func- whether or not activity within whether falls tion and then or discharge function. exercise or — Immunity — Test. Governmental Functions 5. Governmental govern- constitutes The determination of whether upon inquiry whether mental function should be founded activity, planning, carrying purpose, out of the due to mandate, unique effective- or can be its character liability only by government; ly accomplished would unless government’s ability unacceptable with be an interference perimeter, although govern, that fall outside agency, performed by are not *3 liability. immune from functions and therefore not Immunity — Public Schools. Governmental function, operations public A constitute a school’s system however, every activity not carried out a school automatically and thus entitled to particular activity deter- on the to courts are to focus relevant protected mine not it is function whether or a governmental immunity. Immunity — — Extracurricular 7. Governmental Public Schools Programs. operation program by public football of extracurricular high may effectively accom- is not an which school plished government; only by of football is not a qua is not essential to a school’s education and operation. Immunity Tangential — to Govern- 8. Governmental Functions ment. govern- not be Governmental should tangential government clearly to mental function involved is itself. v Brunswick Opinion op the Court Purpose — Immunity — Essential Government’s
9. Governmental — — Schools Extracurricular Foot- Justice Public Public Programs. ball promote public justice; purpose is to The essential however, goal, providing education furthers this program only tenuously high school and, therefore, purpose deny a decision to relates operation immunity to the of such a government’s ability impair school’s or the either the would provide public justice. Lites, Frimet, Gilchrist & P.C. Bellamy, (by Champney), B. and Dan Ellis Bellamy Frederick plaintiffs. for Alberts, Jinks, Ecclestone & P.C.
Ogne, (by Cermak), Ogne Bryan L. Wayne and Lawrence and Mel Anderson. Kaye P.J., and V. J. Brennan
Before: Wahls, JJ. Brennan, The facts are set forth in the V. J. J. our dissenting The sole issue for consider- opinion. in granting is whether the trial court erred ation and Mel Anderson’s defendants Lawrence on the summary judgment motion for basis govern- were immune from suit because of 3.996(107). 691.1407; mental MCL MSA immunity. We find no error on the of the trial court. pro- of its athletic gram, including supervi- the administration govern- sion of a is entitled Churilla Detroit School v East mental *4 Further, supervisors programs teachers and of the are entitled to when performed scope have their duties within the of Regulski v Murphy, their employment. (1982). educa-
App App 126 240 T.M. Burns, general tion curriculum or activity, as an extracurricular is furtherance integral part and an of the total provided recognize to students. While we that are programs through there football exist private organizations, we find that fact alone preclude finding does that a school or its teachers are entitled to immu in cases such as the nity present one where a program is offered a school otherwise entitled Parker v other are involved. In programs
where Park, Highland 183, 200; NW2d Moody (1978), that, Justice noted "it would be incongrous operational to find that activities of public agencies governmental. some are other than Likewise, conceivably there could gov be essential ernmental which would have some com analogy private mon sector.” We find that though even a football could be adminis sector, tered and provided these are provided of a public education, school, teachers, supervi sors are entitled to governmental King, Grames v NW2d 615 Affirmed. J., concurred.
Wahls,
P.J. (dissenting). is a gov-
ernmental
activity? Were defendants
Anderson making
decision when
they decided to
plaintiff
send
David
into a
junior varsity high school
game?
Does
Detroit Lions head coach Monte Clark make a
quasi-governmental
decision when
he decides
put a
game?
reserve into a
For some reason that
*5
245
Brunswick
Boulet v
by
Burns,
M.
P.J.
T.
Dissent
fathom,
along
in this case
majority
the
cannot
Detroit
in Churilla v East
majority
with the
32;
absurd 14, 1981, the trial court issued December On and Mel Kaye defendants Lawrence granting order GCR summary judgment. Anderson’s motion 117.2(1). 1963, right. appeal Plaintiffs appears time this case This marks the third appeal this Court. The first concerned before 309 NW2d venue. motion to appeal plaintiffs’
The second concerned to add the Warren Woods complaint amend the Manufacturing Com- School District and Schutt This Court issued an parties defendant. pany on January the motion to amend granting order 22, appeal following 1982. This deals with facts. a serious neck
Plaintiff David Boulet received 19, quadriplegic him a on October injury rendering in a foot- participating while High School. Defen- game ball for Warren Woods dant was the head coach at Kaye Lawrence time; defendant Mel Anderson was the assistant man- Corporation coach. Defendant Brunswick had the helmet worn David when he was ufactured injured. and Anderson
Eventually, plaintiffs Kaye sued supervise, alleging properly had failed instruct, participate and train David Boulet proxi- and that such failure the football judge granted The trial mately injury. caused during fight Actually, injury dealt with an sustained Grames girl’s high game. basketball locker room after App 240 ruling motion summary judgment from tort protected liability Anderson were 691.1407; MSA immunity. MCL 3.996(107). determining whether present test for
Under
individ-
protects an
or not
whether or not
entity,
ual or an
we ask first
*6
governmental
is a
function
particular
activity
falls within the
activity
then whether or not
discharge
governmental
of that
func-
exercise or
Michigan, 398 Mich
65;
tion. McCann v
247 NW2d
(1976).
of what constitutes
a
521
The definition
changed
function has
a number of
governmental
past
In the
few
times over the last several decades.
has been Parker
however,
starting point
years,
Park,
183;
Highland
v
404 Mich
"To delineate a and balanced governmental be simplistic function within a format would However, presumptuous. guideline, as a basic governmental the crux essence test should be upon inquiry purpose, plan- founded whether ning character or accomplished only by carrying activity, unique out of the to its due mandate, effectively can be government. liability Unless govern- unacceptable would be an ment’s with interference ability govern, that fall outside this perimeter, although performed by agency, are not functions and therefore not immune.” 404 Mich that a
Presently,
recognizes
the law
this state
Boulet v Brunswick
247
operations
school’s
constitute
governmen-
Schools,
tal
function. Bush v Oscoda Area
405
716;
(1979);
Mich
I cannot believe simply that the of an extracurricular football program by public high school fits within Justice Moody’s ac- "effectively complished only government” gov- the by test for ernmental immunity. Football is not a Becker, education qua education. See Gaston v Mich App 697; 314 NW2d itself is no means essential to a school’s opera- tion. Numerous pro- schools do not have football fact, In grams. extracurricular like foot- ball often seem among budget to be the first cutbacks millage whenever a school loses a district App 126 Burns, Furthermore, many private we note that
election. programs. have football schools Churilla, supra, dissenting in Bronson, Judge is program found that an extracurricular football government” not "of the essence of as defined Moody: Justice program
"I that extracurricular is believe uniquely governmental character or simply not of precipitated by governmental mandate. While MCL 380.1502; MSA 15.41502 mandates 'health and schools, require it does not education’ activities.[2] athletic maintenance There is of extracurricular nothing uniquely governmental in the function staging competitive reject athletic events. I also of idea that operation negligent holding school districts liable for the program constitutes 'an
of a football unac ceptable government’s ability gov interference with ern’.
"Nor do believe a football like the one in accomplished through question only here can government. majority It true that of football programs high-school-aged participants are run schools, Moody through and that Justice considered the private general hospitals governmen- fact that exceeded significant holding tal governmentally ones run general hospitals were not entitled to How- ever, dispositive this factor is not and does not even clearly First, against cut no-immunity view in this case. programs
a number of extracurricular private pro- are associated with schools. Other football grams through private organizations exist Thus, analogy churches. there is an to a similar func- Second, tion in the sector. if this factor were dispositive, I believe the result could be an anomalous situation in which school football would be immunity, programs— entitled to but school baseball 2 Weaver, supra, emphasized In Court the fact MCL 15.41287(1) 380.1287(1); MSA authorizes a school district to offer *8 vocational education program it found that the vocational education involved was a function. v Brunswick greater because of the private leagues— number of exempt.” would not 105 Mich 37-38. Churilla relied on four cases.
The
majority
Bush, supra,
However,
nor Deaner v Utica
neither
Dist,
School
Community
103;
99 Mich App
(1980),
NW2d 625
dealt with an extracurricular
program.
Common sense and cases like
Weaver, supra,
Cobb,
supra,
instruct
us to
particular
look at
activity involved. Further-
more, both Richards v Birmingham
Dist,
School
490;
(1957),
NW2d 643
overruled on
grounds,
Detroit,
other
Williams v
231,
252; 111
and Lovitt v Concord
(1961),
NW2d 1
School
593;
58 Mich App
ciples immunity is that the rea- sons it justifying remain unclear in the face of its apparent lack of fairness.3 Under governmental immunity, negligent appear go free while the innocent However, suffer.4 many believe that a government cannot function or provide afford to the services desired by the taxpayers when the itself is liable for the negligent acts of individual employees. The myriad attempts by Michigan courts to develop a standard to apply governmental immunity have arisen from the need to meet these competing demands._ 3Although governmental constitutional, Thomas v Dep’t Highways, (1976), State exemplified case, in this it can still be unfair. 4Moreover, injured attending public those while school are left uncompensated attending while financially strapped those even a private school are not. *9 App 240 Burns, T. M. P.J. Dissent particular on the agree us can
Because few of
struck,
unable
to
we have been
to be
balance
Supreme
standard.
a workable
articulate
standards
to delineate
attempt
latest
Court’s
v Consumers Power
3-3 deadlock. Ross
ended in a
(1982). In the face
Co,
1;
Furthermore, assuring other methods of continue are fairer than such of a doctrine which rea- application this blanket not to might be assumed sonably example in this case. An is found Califor- apply responded districts have to nia where some school re- immunity5 by the abolition of quiring participants in extracurricular voluntary sign right written waivers of their protect against sue and to obtain insurance approach protects costs of This injuries. only informs injuries student for his but also financially him of David Boulet only the risks involved. Not alleged negli- uncompensated someone else’s gence but I doubt that he ever considered seriously he doctrine of high ap- decided to football. What play Muskopf v Corn California abolished ing Hospital Rptr 55 Cal 2d 11 Cal 359 P2d Boulet v Brunswick present proach case? The would be fairer approach quadriplegic majority’s which leaves injuries allegedly uncompensated for these due to negligence approach or an someone else’s to realize the risks ahead of forces the student compensates through him insurance? time but reverse in this case. would