HARRIS v UNIVERSITY OF MICHIGAN BOARD OF REGENTS
Docket No. 177036
Court of Appeals of Michigan
Submitted January 10, 1996. Decided November 5, 1996.
219 MICH APP 679
Leave to appeal sought.
The Court of Appeals held:
Intercollegiate athletics is a governmental function of a public university that entitles it to governmental immunity. The proprietary funсtion exception to governmental immunity does not apply under the facts of this case.
1. The plaintiff failed to produce evidence that created a genuine issue of fact whether the athletic program was a proprietary function. The record supports the conclusion that profit is not the primary motive for the athletic program and that intercollegiate athletics is normally supported by taxes. The court properly determined that the university‘s operation of its athletic program was not a proprietary function and that the university was entitled to governmental immunity. Summary disposition for the Board of Regents in the Court of Claims action was appropriate.
2. The trial court properly granted summary disposition for the two individual defendants in the Court of Claims action on the basis that the plaintiff failed to allege any facts that could establish
Affirmed.
- GOVERNMENTAL IMMUNITY — INTERCOLLEGIATE ATHLETICS.
Intercollegiate athletics is a governmental function of a state university that entitles it to governmental immunity (
- GOVERNMENTAL IMMUNITY — PROPRIETARY FUNCTION EXCEPTION.
An activity must be conducted by a governmental entity primarily for the purpose of producing a pecuniary profit and not normally be supported by taxes or fees to be considered a proprietary function not subject to governmental immunity; whether an activity is proprietary does not depend on whether it actually generates a profit; a governmental agency may conduct an activity on a self-sustaining basis without being subject to the proрrietary function exception (
- GOVERNMENTAL IMMUNITY — GOVERNMENTAL EMPLOYEES — GROSS NEGLIGENCE — SUMMARY DISPOSITION.
A governmental employee is entitled to summary disposition on the basis of statutory governmental immunity in a jury action where it is uncontroverted that the employee was acting within the scope of authority while in the exercise or discharge of a governmental function and the court finds that, on the pleaded facts, reasonable jurors could not conclude that the defendant‘s conduct had been so reckless as to demonstrate a substantial lack of conсern for whether an injury would result (
Kantner and Associates (by Veronique Lerner), for the plaintiff.
C. J. Hurbis and Mary F. Clinton, for the defendants.
Before: NEFF, P.J., and SAAD and MARKEY, JJ.
SAAD, J.
NATURE OF THE CASE
This case raises two interrelated legal questions of first impression and of particular importance to intercollegiate athletics in Michigan. First, is intercollegiate athletics a governmental function of a public university so as to immunize the university from tort liability? Second, if so, does the proprietary function exception to governmental immunity apply under the facts of this case? For reasons stated in this opinion, we hold that intercollegiate athletics is a governmental function of a state university that entitles it to governmental immunity and that, on the record presented here, the proprietary function exception does not apply.
II
FACTS AND PROCEEDINGS BELOW
Plaintiff, a student member of the University of Michigan men‘s intercollegiate gymnastics team, sued the University of Michigan Board of Regents, the university president (James J. Duderstadt), the director of athletics (Jack Weidenbach), and the gymnastics coach (Robert K. Darden, II) for injuries that he sustained during a team visit to Colorado for a gymnastics compеtition. The trial court denied Darden‘s motion for summary disposition, but granted summary disposition for the Board of Regents, Duderstadt, and Weidenbach, on the basis of governmental immunity. Plaintiff now appeals from the grant of summary disposition.
On March 7, 1990, plaintiff was in Colorado with the University of Michigan‘s gymnastics team. The gymnastics team is operated by the university‘s
Plaintiff filed two lawsuits. Plaintiff first filed suit in the Court of Claims against defendants Board of Regents, Duderstadt, and Weidenbach and alleged that because the athletic department‘s activities were conducted primarily to produce a profit, they are proprietary and therefore not sheltered by governmental immunity. Pursuant to stipulation, this case was consolidated with a case in the Washtenaw Circuit Court in which plaintiff sued Darden for negligence.
After consolidation, all defendants moved for summary disposition on the basis of governmental immunity under
The trial court found that the “operation of a program of intercollegiate athletics is a legitimate function of an educational institution and [has] certainly traditionally been so.” As such, the trial court found that athletic programs at state universities are “‘expressly or impliedly mandated or authorized by constitution, statute . . . or other law’ and are there-
Affidavits submitted by the University, as well as audits submitted by the plaintiff, conclusively establish that only football and basketball at the University produce revenues which exceed expenses and that all other sports, including men‘s gymnastics, operate at a loss and are supported by football and basketball net revenuеs. It is abundantly clear that the nonrevenue sports, including the one at issue here are not conducted primarily for profit. Nor does the submitted material suggest that the athletic program as a whole is a proprietary function.
Therefore, the trial court granted summary disposition to the Board of Regents, Duderstadt, and Weidenbach in the Court of Claims action. Plaintiff now appeals.
III
ANALYSIS
A. GOVERNMENTAL FUNCTION
The University of Michigan (and its governing board, the Board of Regents) is one of the governmental units to which Michigan‘s governmental immunity statute applies.
Except as otherwise provided in this act, 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 in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
“Governmental function” is broadly defined by the Legislature as “an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.”
First, plaintiff argues that the university was not engaged in a governmental function in operating the
Numerous Michigan cases have held that physical education activities provided by a public high school constitute a governmental function. See, е.g., Cody v Southfield-Lathrup School Dist, 25 Mich App 33; 181 NW2d 81 (1970) (high school physical education activities, and gymnastics in particular, constitute a governmental and not a proprietary function); Lovitt v Concord School Dist, 58 Mich App 593; 228 NW2d 479 (1975) (despite the fact that admission was charged to football games, the administration of a high school football program is a governmental, not a proprietary, function); Churilla v East Detroit School Dist, 105 Mich App 32; 306 NW2d 381 (1981) (the administration of a high school football program is a governmental function).
The rationale for these decisions is equally applicable to intercollegiate athletics: (1) team sports and competitions are properly a part of a school‘s overall physical education program, (2) the function of a physical education and related sports program is
Although no Michigan case has squarely and expressly extended this analysis from the high school physical education program to the university intercollegiate context, this extension is fully warranted. Hutchins v Michigan State Univ Bd of Trustees, 595 F Supp 862 (WD Mich, 1984). In Hutchins, several members of the MSU women‘s basketball team alleged sex discrimination, pointing to the difference between the funds provided the male and female basketball teams for lodging and meal allowances while on the road. The court еventually held that, as a matter of federal law, MSU was protected from any monetary judgment by immunity granted under the Eleventh Amendment. In reaching this conclusion, however, the court noted that Michigan law was one factor that was properly considered. Id. at 866. In discussing Michigan law on this point, the court reasoned:
MSU is pursuing a traditional governmental function by providing for higher education. Its physical education program is a part of the overall educational program of the University. Plaintiffs have not argued that, by sponsoring a program of intercollegiate athletic competition, MSU has undertaken a proprietary activity. Although it is clear that the University makes money from the ticket receipts of basketball, football and baseball, Assistant Vice-President Terry testified that the revenues from these sports are used to support a program of “non-revenue” intercollegiate sports for men and women. Thus, the Court does not find that the
University is pursuing a proprietary function in this case. [Id. Citation omitted and emphasis added.]
Thus, in Hutchins, the federal court clеarly considered MSU‘s operation of its intercollegiate women‘s basketball program to be a governmental, not a proprietary, function.
We find further support for this conclusion and expressly adopt the reasoning from federal and state courts that have analyzed the importance of intercollegiate athletics to higher education. For example, in Greenhill v Carpenter, 718 SW2d 268, 271 (Tenn App, 1986), the court stated:
[F]or well over one hundred years athletic programs have been an integral part of the educational process in colleges and universities throughout this country, not only in football, but baseball, basketball, and other sports too numerous to mention. The development of a student‘s physical body, team work, and sportsmanship have all been part of the college and university educational process, notwithstanding the fact that in recent years big-time college athletics have at times taken on a tinge of commercialism.
Again, stressing the important role of intercollegiate athletics to higher educatiоn, the court in Cohen v Brown Univ, 991 F2d 888, 891 (CA 1, 1993), reasoned:
For college students, athletics offers an opportunity to exacuate [sic] leadership skills, learn teamwork, build self-confidence, and perfect self-discipline. In addition, for many student-athletes, physical skills are a passport to college admissions and scholarships, allowing them to attend otherwise inaccessible schools. These opportunities, and the lessons learned on the playing fields, are invaluable in attaining career and life successes in and out of prоfessional sports.
However, for the [governmental immunity] provision to be operative, the particular function involved must be governmental rather than proprietary. The defendant Board of Regents unquestionably meets this test, for it is elemental that education, which is its business, is a governmental function of the state and, of course, the carrying on of an athletic program is an important and necessary elеment in the educational process, especially at institutions of higher learning. [Citations omitted and emphasis added.]
Moreover, the Michigan Legislature and Congress have implicitly recognized that intercollegiate athletics is an appropriate governmental function that deserves legislative support. In the Higher Education Facilities Authority Act,
All these factors and considerations, including analogous case law and relevant state and federal legislation, compel the conclusion that intercollegiate athletics should properly be regarded as a governmental function for governmental immunity purposes. Yet, plaintiff argues that this activity is proprietary, not governmental. So, before we finally conclude that intercollegiate athletics is entitled to governmental immunity, we must examine whether such activity could fall within the proprietary function exception to such immunity.
B. PROPRIETARY FUNCTION EXCEPTION
There are five major statutory exceptions to the broad sweep of governmental immunity. See
The immunity of the governmental agency shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as defined in this section. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees. [Emphasis added.]
To be a proprietary function, an activity must be conducted primarily for the purpose of producing a pecuniary profit and not normally be supported by taxes or fees. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 97; 494 NW2d 791 (1992). Whether an activity is proprietary does not depend on whether the activity actually generates a profit, although the existence of a profit is relevаnt to the intent of the governmental entity. Id. at 97-98. A governmental agency may conduct an activity on a self-sustaining basis without being subject to the proprietary function exception. Id. at 98.2
Here, plaintiff argues that there are sufficient facts for the jury to determine whether the university‘s athletics program was a proprietary function. In particular, he relies on financial statements that show that the athletics program generated a surplus in 1991 and
After carefully reviewing the evidence properly before the trial court, it is obvious that many, if not most, of the sports programs at defendant university lose money. Indeed, as is no doubt common knowledge, the men‘s football and basketball programs are usually the only sports programs that generate net revenue, and plaintiff has provided no evidence to the contrary. Obviously then, if the primary motive of the athletic department were to produce a profit, sports such as gymnastics that are not profitable would be dropped from the program. The fact that the university has not done so is strong evidence that the athletic program is not conducted primarily for profit.
With regard to the other part of the proprietary function exception, we have already noted in our analysis of “governmental function” that the Legislature has a long history of financial support for our public universities, including their athletic programs. It is therefore apparent, and indeed not seriously disputed by plaintiff, that such activities are normally supported by taxes.
When viewed logically, the proprietary function exception is not so much an “exception” to the broad sweep of governmental immunity (such as the government vehicle exception,
Yet, here, the case is clear—once we conclude as we have that intercollegiate athletics is a governmental function, the predicate for rejecting a proprietary function exception argument has been established. We therefore conclude that plaintiff has failed to produce evidence that created a genuine issue of fact regarding whether the university‘s athletic program was a proprietary function. Plaintiff was unable to establish that profit was the university‘s primary motive in operating its athletic program or that intercollegiate athletics was not normally supported by taxes. To the contrary, the record supports the conclusion that profit is not the primary motive and that intercollegiate athletics is normally supported by taxes. The trial court correctly determined that the
Plaintiff separately argues that the trial court erred in granting summary disposition to Duderstadt and Weidenbach on the basis of governmental immunity. The governmental immunity afforded to individual employees or officers is set forth in
(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency . . . shall be immune from tort liability for injuries to persons or damages to property caused by thе officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer‘s, employee‘s, member‘s, or volunteer‘s сonduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this
subdivision, “gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
Here, the trial court properly granted summary disposition to Duderstadt and Weidenbach, because it reasoned that plaintiff had not alleged any facts that could establish that Duderstadt and Weidenbach were grossly negligent. We agree. The statute defines “gross negligеnce” as “conduct [which was] so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
Affirmed.
MARKEY, J., concurred.
NEFF, P.J. I concur in the result only.
Notes
The regents of the University of Michigan and their successors in office shall constitute a body corporate known as the Regents of the University of Michigan. . . . Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution‘s funds.