DUNCAN v CITY OF DETROIT
Docket No. 27729
Court of Appeals of Michigan
September 21, 1977
78 Mich App 632
Submitted May 4, 1977. Leave to appeal applied for.
1. Torts —Governmental Immunity —Statutes—Common-Law Immunity.
Immunity from tort liability under the governmental immunity statute in cases wherein a governmental agency is engaged in the exercise or discharge of a governmental function includes those governmental activities which were immune from liability at common law at the time of the enactment of the statute (
2. Hospitals —Torts—Community Owned Hospitals —Governmental Functions —Governmental Immunity —Statutes.
The operation of a community owned hospital is a governmental function, and the treatment and diagnosis of an injury by the hospital personnel is an activity within the exercise or discharge of that governmental function and is therefore immune from tort liability because of the governmental immunity statute (
Dissent by T. M. BURNS, P. J.
3. Hospitals —Torts—Governmental Functions —Governmental Immunity —Statutes.
A hospital should not be granted immunity from tort liability under the governmental immunity statute where hospital personnel sewed gauze into a laceration in a plaintiff’s scalp and failed to discover the error on subsequent examinations because sewing gauze into a wound and subsequently failing to discover the error is not a governmental function (
References for Points in Headnotes
[1] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 27, 32.
[2] 40 Am Jur 2d, Hospitals and Asylums § 22.
[3] 40 Am Jur 2d, Hospitals and Asylums §§ 18, 24.
Complaint by Jane Duncan against the City of Detroit for damages for negligent diagnosis and treatment at Detroit General Hospital. Summary judgment for defendant. Plaintiff appeals. Affirmed.
Clark, Hardy, Lewis & Fine, P. C. (by Jerome H. Solomon), for plaintiff.
Kitch & Suhrheinrich, P. C. (by Gregory Drutchas), for defendant.
Before: T. M. BURNS, P. J., and BRONSON and C. W. SIMON,* JJ.
PER CURIAM. Plaintiff sued to recover damages allegedly caused by negligent diagnosis and treatment of a scalp laceration at Detroit General Hospital. Upon defendant’s motion, summary judgment was granted for defendant on the basis of governmental immunity.
That governmental immunity statute provides:
“Sec. 7. 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.”
A long, unbroken line of cases have held that the operation of a community owned hospital is a governmental function. See, e.g., Snow v Freeman, 55 Mich App 84; 222 NW2d 43 (1974), White v Detroit, supra. That is not the end of our inquiry, however, because we must examine the specific complained-of activity and determine whether it is within “the exercise or discharge of a governmental function”. See Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976) (WILLIAMS, J.). In the instant case, the complained-of activity is the treatment and diagnosis of plaintiff’s injury. This is within “the exercise or discharge of a governmental function”, White v Detroit, supra, just as, for example, tunneling was in Thomas, or hiring and firing employees was in Galli.
It is also implicit within the recent Michigan Supreme Court cases that the governmental immunity statute does not violate the equal protection or due process clauses of the United States or Michigan Constitutions. White v Detroit, supra. See Thomas v Department of State Highways, supra.
Summary judgment for defendant is affirmed. Costs to appellee.
T. M. BURNS, P. J. (dissenting). In her complaint, plaintiff alleged that she fell and suffered a laceration of the scalp. She went to the hospital and was
I would reverse the trial court order granting summary judgment for the defendants.