Hyde v. University of Michigan Board of Regents

Hyde v Univ REGENTS BOARD OF OF MICHIGAN HYDE v UNIVERSITY MEDICAL CENTER v OAKLAND FAIGENBAUM AUTHORITY HOSPITAL v PEOPLES COMMUNITY POWERS (Calendar 74541, 77213, Argued 77815. March Docket Nos. 6-8). 3, 1986. Decided October Nos. 1976, brought Hyde, a medical in Hyde Marcia P. and James against the Univer- malpractice of Claims in the Court action negligence Regents, alleging Michigan that the sity Board of diagnos- Michigan Hospital University in employees post-surgi- treating in a serious ing resulted Marcia and summary noted that the pretrial filed in 1977 A cal infection. injury allege pleadings that the plaintiffs could amend their performance proprietary Further function. arose out of pending abeyance decision in Parker proceedings were held (1978), Park, Murray Beyer v Highland and 404 Mich 183 v (1980). plaintiffs Hospital, In 409 Mich 217 Memorial alleging complaint, had en- that their amended O’Connell, court, R. gaged proprietary The Paul function. in a the, J., granted judgment on for the defendant accelerated preserved plaintiffs an ex- ground had not made until challenge press defense of Parker, holding of and that the after Parker was decided public general hospitals committed be held liable for torts could operations, applicable. during day-to-day The thus was not (T. Gnus, P.J., Robinson, Appeals, J. M. H. and Court of J. per Burns, J., unpublished opinion dissenting), in an affirmed 69664). (Docket applica- plaintiffs appeal. Their No. The curiam appeal pending at the time Ross for leave to was tion (On (1984), Rehearing), Co 420 Mich 567 Consumers Power issued. incompe- Katz, Faigenbaum, guardian a mental of Anita Neil alleging tent, brought Wayne in the Circuit Court actions References 2d, seq. Hospitals Asylums 20 et Am Jur and § seq. 2d, School, Liability Municipal, 33 et State Tort § Am Jur and seq. 2d, States, Territories, Dependencies et99§ Am Jur and Quick Index under Govern- in the ALR3d/4th See the annotations Privilege. Immunity mental Mich doctors, malpractice products liability against hos- certain pitals, drug companies, against the Court of Claims Valley alleging Oakland Medical Center and Clinton Center damages, arising from the treatment of Ms. Katz. actions trial, were consolidated for trial. Prior to several doctors were dismissed, doctors, plaintiff and the settled with the other the Court, hospitals, drug companies. Wayne and the The Circuit Hood, J., granted summary judgment Valley Harold for Clinton ground governmental immunity, granted on Center the of judgment against plaintiff Center, for the Oakland Medical finding that it could be held liable under Parker because it general only appeal rendered medical care. Oakland’s was pending Appeals in the Court of when Ross was decided. The P.J., Appeals, Bronson, Court of and H. Allen, J. Gims and JJ., reversed, holding that under Ross Oakland Medical Center governmental immunity ground was entitled to on the that the by impliedly expressly medical treatment it or rendered by constitution, statutes, authorized the state and administra- 67356). (Docket regulations plaintiff appeals. tive No. The Powers, personal representative Kathleen for herself and as of Powers, deceased, brought the of Frank estate R. an action in Wayne against Peoples Community Hospital the Circuit Court Authority, Bercu, M.D., Jahan, M.D., alleging Bernard and N. malpractice medical treatment the of Mr. Powers. Settle- prior court, ment was reached with Dr. Bercu to trial. The Colombo, Jr., J., granted partial judgment summary J. Robert hospital authority plaintiff sought for the to the extent that vicariously negligence. hold Dr. liable for Bercu’s Follow- ing court, Teranes, J., granted the decision in Paul S. summary disposition hospital ground authority for the on governmental immunity, finding of the hospital by authority amounted to a func- Supreme granted plaintiff appeal tion. The Court leave prior by Appeals. to decision the Court cases, plaintiffs public In each of the seek to hold a general hospital facility vicariously or medical liable for the diagnoses, treatment, negligent by hospi- or care rendered employees agents. plaintiffs tal’s or maintain such facilities can be held liable in tort under Parker. opinion by joined by In an Cavanagh, Justice Chief Justice and Justices Brickley, Boyle, Riley, the Su- Williams preme held: Court (On The rules articulated in Ross v Consumers Power Co Rehearing), (1984),apply 420 Mich 567 to all commenced cases January 22, 1985, pending after and to those cases either in Michigan Regents v Univ 22, 1985, appellate January trial or courts on in which a immunity properly pre- issue was raised and treatment, diagnosis, To the extent that the served. and care general patients public hospital facility or medical at are expressly impliedly which are mandated or activities author- constitution, statute, law, ized or other facility immunity is entitled to from tort under MCL 3.996(107). 691.1407; High- MSA To the extent that Parker v Park, (1978), land 404 Mich 183 held that such activities do not function, discharge the exercise or constitute Only it was overruled Ross. activities which are primarily purpose producing pecuniary conducted for the profit supported by normally and which are not taxes or fees 691.1413; proprietary can be deemed functions under MCL 3.996(113). MSA 1. Where case law is confused and irreconcilable Supreme prior and new decision of the Court overrules law or statute, application reconstrues a limited retroactive Although given decision is favored. no indication was in Ross as application prospective to whether its should be retroactive or surrounding only, uncertainty govern- because of the the law of decided, given mental at the time it was it is to be effect, only apply limited retroactive as to so cases com- pending menced after the date of decision and to those in trial appellate governmental or courts on that date in which a Thus, cases, immunity preserved. issue was raised and in these applies. Ross holding operation public 2. in Parker the of a general hospital governmental was not a function under the governmental immunity impliedly by act overruled was Ross. Ross, public general hospital facility Under a or medical is engaged discharge governmental in the exercise or of a func- expressly tion whenever its activities are or man- constitution, statute, by dated or authorized or other law. 1986 response PA enacted in codified the definition of governmental act, however, provided function in Ross. The specifically permits imposition liability upon govern- of tort a agency general operates public hospi- mental which owns or a county Thus, facility. tal or medical of in the effect the decision cases, governmental immunity these extension of from tort governmental liability agency operating public general to a a hospital facility, or medical is limited to causes of action 1, 1986, accruing prior July pending January which were on 22, 1985, or commenced on or after that date. In causes accru- 1, 1986, ing July governmental agency may on or after a be operation arising ownership of out of the or held liable for torts facility. county public general hospital aor medical a only imposed upon liability may a tort be 3. Vicarious agent employee governmental agency committed where: the or employment acting and within the in the course of a tort while agent employee the scope authority, the or committed of nongovernmental engaged activity an which was tort in while govern- exception proprietary fell an or which within activity propri- immunity may Before be deemed mental act. an purpose primarily etary, for the of it must have been conducted activity producing pecuniary profit, it must an not a be activity supported by normally fees. An need not taxes or function, generate profit proprietary but tort a to be deemed a only primary purpose liability may imposed the the of where generate pecuniary profit. activity relevant is where is to a Also profit deposited spent. and how it is cases, suggestion employees or there is that the 4. In these no scope agents employment acting of outside the course were alleged authority were In each when the torts committed. case, diagnoses patients were activi- and treatment and, statute, thus, employees implicitly ties authorized discharge engaged were in the exercise or Hyde, passed never on merits In the lower courts function. claim, plaintiffs’ proprietary and their amended function complaint matter to state a cause of action failed as a of law proprietary exception govern- 13 of the function of § within Faigenbaum, proprietary function mental act. In Powers, preserved argument was for review. In conclu- primary purpose the trial that the author- sion of ity court hospitals profit clearly operating not for was not its erroneous. Powers, Hyde and affirmed. Faigenbaum, part, part, re- affirmed reversed in manded. dissenting, Archer, joined Levin, stated Justice Justice governmental agency operating general hospital is that a Park, subject liability Highland to tort where under Parker 1, 1986, July arose the effective date the cause action before of 1986 PA 175. Parker that the held meaning was not a function within Ross Power tort act. v Consumers equivalent counterpart operations without in the held that an private largely by sector funded taxes are and act, "gov- functions within the intendment of defined activity impliedly expressly ernmental function” as an or man- constitution, statute, by other The dated or authorized or law. v Univ governmental agency

question is immune from a whether hospital respect subject in to the to tort presented in Ross. and could not have been decided was not 175, enacting adopted Legislature, both the in 1986 PA in Ross and function articulated definition of governmental agency oper- concept expressed that a in Parker subject liability. In so ating general was to tort imply doing, Ross that believed it did not mean Parker, was that the Ross definition but rather overruled respect public policy with sound and inconsistent with deficient general hospitals. in 1986 PA 175 as the Ross definition The codification of hospitals exception by did become amended 1, provides July no The effective date basis until 1986. effective Ross definition is to that the unamended draw the inference 1, 1986, July for the that it is codified be in effect before 1986, 30, readily January It can as period to June govern- argued application the Ross definition of 1, 1986, Legis- rejected by July was before mental function through lature, application of Parker as that the continued 30, 1986, rejected. June Legislature, Archer, dissenting, in stated that Justice imposed liability may be providing tort 1986 PA 175 that in public operates agency upon that owns or facility, approved county the con- general hospital or medical public general tinuing validity the rule of Parker liability. of the cases hospitals tort None not immune from are Extending governmental Ross involved that issue. in light remedy unjust particularly in these cases is similarly situated provided by the redress afforded Parker and Agency 175. liabil- plaintiffs after PA causes arise whose focusing upon specific act or ity determined should be governmental objective. agency, not its overall omission of the activity or authorized law adds is mandated To state that an required analysis the nature of an to determine little specific responsibilities acts went agency’s whether its public beyond its mandate. (1985) part 303; App affirmed in 373 NW2d 143 Mich part. reversed Park, 183; Highland 273 NW2d 404 Mich Parker v (1978),overruled. Opinion of the Court Agencies. — Immunity Governmental 1. Governmental (On Power Co Rehear- v Consumers in Ross The rules articulated 426 Mich (1984), ing), apply 420 Mich 567 to all cases commenced after 22, January 1985, pending and those cases either in trial or 22, 1985, appellate January governmental courts on which a in immunity properly preserved. issue was raised and — Immunity Hospitals — 2. Governmental Public Governmental — Function Care of Patients. 22, 1985, January invoking In cases commenced after causes of 1, accruing prior July 1986, pending action and cases trial appellate 22,1985, January governmen- or courts on in which a immunity properly preserved, public tal issue was and raised a general hospital facility engaged or medical the exercise discharge governmental or of a function thus immune from liability treatment, diagnosis, in tort extent that the patients expressly care its were activities or man- constitution, (MCL statute, or dated authorized or other law 691.1407; 3.996[107]). MSA Immunity — Agencies Propri- — 3. Governmental Governmental etary Function. agency primarily Activities conducted for the purpose producing pecuniary profit and which are not normally supported by proprietary taxes or fees are functions (MCL apply does not 691.1413; 3.996[113]). MSA — Immunity Hospitals — 4. Governmental Public Governmental Agencies. agents agency employees A and its can be held arising ownership in tort liable for activities out or public general hospital county facility medical (1986 July 1, where a cause of action accrues on after 175, 691.1407[4]; 3.996[107][4]). PA MCL MSA

Dissenting Opinion by Levin, J. Immunity — Hospitals — 5. Governmental Public Governmental Agencies. governmental agency operating A should subject to tort where the cause action arose before (1986 July 691.1401; 3.996[101j). PA MCL MSA Lopatin, Miller, Freedman, Bluestone, Erlich, Shaw) (by plain- Rosen & Bartnick Richard E. for Hyde. tiffs Univ of op Opinion the Court

Fieger Fieger, Geoffrey Fieger), & P.C. N. (by for plaintiff Faigenbaum. Stern, P.C.,

William S. plaintiff Powers. Wagner Kenney, Kitch, Saurbier, Drutchas, & P.C. D. (by Mark Willmarth and James D. Za- zakis), for defendant University Michigan Board of Regents. Kelley, Frank J. Louis J. General, Attorney George McCargar

Caruso, L. General, Solicitor Hoffman, and Alan General, Assistant Attorneys for defendant Oakland Medical Center. Shangle,

Cozadd, Smith & Andrews B. (by Ward Day) Smith R. John for defendant Peoples Hospital Community Authority.

Amici Curiae: Lister), Goodman,

Richard M. P.C. Susan E. (by for Michigan Trial Association. Lawyers Sommers, Schwartz, Schwartz, Silver & P.C. (by Toth). Richard D. Ross v Power Cavanagh, Consumers Co In J. (On Rehearing), 567; 420 Mich 363 NW2d 641 (1984), this Court attempted to clarify parame- ters sovereign, governmental, and individual tort immunity from liability granted by gov- seq.; et act, ernmental tort 691.1401 liability MCL seq., et 3.996(101) MSA and common law. In par- ticular, "governmental we redefined term func- tion,” appears act, 7 of the MCL § 3.996(107), 691.1407; MSA believed the Leg- we Mich 223 op Opinion the Court None be defined.1 intended it to islature involved in Ross decided cases nine consolidated hospital, general public how- of a the tort ever. plaintiffs to hold cases, seek of these

In each facility hospital public general vicari- or medical a diagnosis, negligent treatment, ously for the liable employees hospital’s or rendered or care agents. hospitals can that such maintain Plaintiffs pursuant of action tort cause liable be held Highland Park, 183; 273 NW2d 404 Mich Parker v (1978). presented: questions are common Two 1) only prospective given effect Should Ross retroactive effect? 2) portion overrule Ross Did operation day-to-day held that the Parker which hospital general public is not a function? whether, under what decide must also We public

circumstances, propri- facility constitutes medical etary entitled to function, is not liability act, MCL § 13 of the under tort from 3.996(113). 691.1413; MSA apply in Ross that the rules articulated We hold January 1985, after cases commenced to all opinion issued, those cases and to our was date appellate pending on in trial or courts either governmental January immu- 22, 1985, in which a properly nity was raised preserved._ issue governmental agencies are immune and local Under state § they engaged liability only are a from tort when function: provided, Except all in this act otherwise liability agencies in all cases immune from tort shall be engaged government agency or is in the exercise

wherein discharge function. of a Hyde of v Univ Opinion of the Court extent further hold that We patients diagnosis, treatment, at a and care hospital facility public general medical are or expressly impliedly or man- activities which are by constitution, statute, or dated or authorized hospital facility law, the or is entitled to other immunity § 7. To the from tort under do not Parker held that such activities extent that discharge govern- the exercise or constitute mental function, it overruled govern- light 175, however, PA a Ross. In of 1986 arising agency mental can be held liable torts ownership hospital out of the a facility county the cause of action medical where July 1, after 1986. accrues on or Finally, only hold that activities which are we purpose producing primarily for the conducted pecuniary profit, normally sup- and which are proprietary ported by fees, functions taxes or are governmental agency § under produces 13. The fact that pecuniary profit may be evidence that engaged proprietary agency function, in a is evidence. The focus instead but is not conclusive purpose primary intended should be on governmental activity activity and how normally funded.

I. FACTS A. HYDE Hyde Marcia was treated at the Univer- Plaintiff Michigan Hospital sity July 8, on 1974. On June plaintiffs malpractice 28, 1976, suit filed a medical alleging Claims, in the Court of employees’ negligent diagnoses medical treat- post- develop a serious ment caused Ms. surgical Regents infection. Defendant Board immunity an affirmative asserted 426 Mich Opinion of the Court Following pretrial in confer- defense its answer. pretrial summary ence, was filed on March summary trial court 1977. The indicated that given plaintiffs permission had pleadings to amend their allege injury arisen out that had performance proprietary function.2 proceedings apparently abey- held in Further ance were pending this Court’s decision in Parker. decided, defendant moved for After Parker was Although judgment April, 1979. accelerated public hospitals Parker held that are had argued liability, from tort defendant immune holding given that this should not be retroactive precise rendered, effect. a decision this Before by Murray Beyer Memorial issue was resolved (1980). Hospital, 217; 409 Mich 293 NW2d 341 applied Murray held that Parker was to be to all pending 27, 1978, on cases express challenge December which an immunity had preserved. been made and complaint

Plaintiffs did not file an amended alleging engaged that defendant had been in a proprietary function until 1982. Defen- October again judgment, dant moved for accelerated claim- ing express challenge plaintiffs preserved had not made or an immunity

to its complaint until the amended was filed. Since the filing long decided, occurred after Parker was argued inapplicable. defendant that Parker was expressly they Plaintiffs countered had chal- lenged immunity prior defendant’s to Parker at pretrial following summary contained the statements: Pleadings satisfactory? given right No. Plaintiff is pleadings proprietary

amend his dant. to show the function of Defen- any rule 116? Yes. Governmen- Are there defenses under tal and statute of limitations. Univ Opinion of the Court pretrial challenge conference and the had been preserved pretrial summary. accepted argument

The trial court defendant’s judgment and entered a for defendant in an order February majority 9, filed Appeals 1983. A of the Court of application

affirmed.3 Plaintiffs’ for leave appeal pending in this Court when Ross granted appeal. was issued. We thereafter leave to (1985). 424 Mich 858 B. FAIGENBAUM guardian mother, Plaintiff is the of his Anita long history Katz. Ms. Katz has a of mental illness hospitalized and has been several times. On No- 20, 1976, vember Valley she was admitted to Clinton psychiatric facility, Center, a state exhibit- ing twitching abnormal and movements of her tongue. mouth, face, limbs, and February, 1977, In Ms. Katz was referred to physical Oakland Medical Center for a examina- Depart- tion. The center was administered provided general ment of Mental Health and medi- psychiatric patients. Joseph cal services to Dr. neurologist Chandler, center, at the concluded suffering degenerative that Ms. Katz was from a Huntington’s nerve disease known as Dr. chorea. prescribed Chandler Haldol for the condition. Ms. previously Katz had been treated for her mental neuroleptic drugs, illness with Haldol and other Thorazine, Stelazine, such as and Mellaril. When improve, family Ms. Katz’ condition did not her Valley insisted that the Clinton Center discontinue administering any neuroleptic drugs. However, her improve. substantially condition did not plaintiff hospi- doctors, In sued eleven two 3Unpublished opinion per Appeals, curiam of the Court of decided (Docket 69664). June No. Opinion Court drug companies Wayne tais, in the and three malpractice alleging, alia, Court, inter Circuit products liability. A was also commenced suit against the Medical Claims Oakland Court of alleged Valley Plaintiff Center. Center and Clinton that diagnose and treat had failed doctors dyskinesia, Katz tardive a motion disorder Ms. caused further by neuroleptic drugs such Haldol.4 It was neurologist

alleged psychiatrist that a possible dyskinesia aas should consider tardive diagnosis exhibiting presented patient awith when history bodily has a of who abnormal exposure requires prevent movements drugs. Proper neuroleptic treatment neuroleptic drugs of all discontinuation becoming permanent. from the condition that Ms. Katz had sustained Plaintiff maintained damage permanent and brain irrevers- severe and ible repeated administra- motor disturbances from tions of Haldol. joined for trial. Clinton

The actions were two granted Valley summary judgment on Center was ground immunity.5 of Several the doctors either on

employed center dismissed the were grounds or be- plaintiffs trial that the cause failed to show at responsible A for Ms. Katz’ care. doctors were against the Oakland Medical Cen- contract claim ter was tort claim. Plaintiff plaintiff’s being duplicative of as struck eventually with six settled 4 neuroleptic drug dyskinesia the Tardive occurs late in course of protrusion rolling symptoms and of the treatment. The tongue, chewing include movements, smacking pouting lips, open and cheeks, mouth, eye blinking, ing rocking closing puffing grimacing, and limbs, movements, repeated choreoathetoid movements of suffering swallowing, ington’s plaints respiratory dyskinesia. from Hunt and Persons may display symptoms. Katz’ com chorea similar Ms. chief swallow, muscles, curling inability to tense an neck were nervousness, tongue, rocking, jerky pacing movements. 5 liability Valley tort Center was found to be immune from Clinton 205; Hospital, Perry 404 Mich 273 NW2d under v Kalamazoo State (1978), hospital. psychiatric it was a because state Michigan op Regents v Univ Opinion Court Chandler), (including hospitals, Dr. the two

doctors only drug companies $378,000. The and the remaining proofs was at close defendant keyA issue at trial was Medical Center. Oakland immune from tort the center was whether Hospital, Perry under v Kalamazoo State (1978), the cen- 205; because NW2d patients psychiatric run was ter treated Department of Mental Health. July 27, 1982, court the circuit concluded On held could Medical Center be Oakland gen- only it rendered liable under Parker because The court also concluded eral medical care. failing negligent to to Dr. been Chandler had drug complete history, obtain a medical and possible diagnosis, dyskinesia consider tardive and to potential side himself with familiarize $1,000,000 awarded effects of Haldol. Plaintiff was (less settlements), attorney damages $30,000 in in fees, expert other $15,000 in witness and and over fees. pending appeal Court

The center’s Appeals ini- was decided. Court when Ross tially applied to Ross concluded that should pending appeal on when Ross was those cases "govern- Applying new decided. mental the definition of function,” that center the Court held the immunity the medical was entitled treatment because expressly was rendered constitution, statutes, and authorized the state argu- regulations. rejected It the administrative ment care that facility proprietary is a fee is a function because profit charged for medical services or an incidental generated. argument that Plaintiff’s belated liable for breach of contract center could be held plaintiff rejected had to cross- was because failed appeal The of the contract count. dismissal 236 426 Mich 223 Opinion op the Court judgment plaintiff for was therefore reversed. (1985). granted App 303; Mich plaintiff’s application NW2d We appeal. 424

for leave to (1985). C. POWERS January 10, 1981, On Frank Powers was admit- Annapolis public general hospi- Hospital, ted to tal Hospital Authority operated by Peoples Community defendant diag-

(pcha). Mr. Powers was suffering myocardial nosed as from a infarction. days allegedly later, He died several after his pacemaker malfunctioned. April,

Plaintiff, wife, decedent’s filed suit against physicians, two its pcha alleged Drs. Bercu and Jahan. She that the doctors and staff had failed to monitor and treat dece- properly. dent’s heart condition Plaintiff and Dr. granted $25,000. Bercu partial plaintiff sought for settled The was pcha summary judgment to the extent that vicariously to hold liable for Dr. negligence.6 Bercu’s decided, After Ross was moved pcha

summary disposition ground governmen- on the immunity.7 hearing evidentiary held, tal An primarily to determine whether Mr. Powers’ death pcha unsuccessfully summary The and Dr. Jahan moved for judgment ground accelerated on the the release executed be plaintiff liability. tween and Dr. Bercu also released them of Appeals application appeal Court denied defendants’ for leave to on 21,1985. February pcha 7This was the first time that had raised the "defense” of pcha’s However, immunity. failure to raise the responsive pleading issue in its first Plaintiffs did not waive it. See n 35. complaint, prior filed contained sufficient facts to issue, immunity specifically, raise a or more a lack pcha complaint operated public thereof. The general hospital, liability pursuant indicated that which was not entitled to from tort Moreover, paragraph alleged to Parker. two pcha profit-making allegation was a institution. This was suffi statutory "proprietary exception. cient to invoke the function” 237 Univ op Opinion the Court proprietary during performance the arose evidence showed that undisputed function. The for its medical ser- Hospital charged Annapolis the money twenty- tax from It also received vices. communities Michigan four southeastern pcha. pcha The had amassed participate in the depreciation, in its excess reve- sums substantial However, nue, accounts. and bond and interest been distributed none of these funds had communities, the state, direc- participating the the hospital. pcha tors and officers of Faigenbaum, court con- on circuit Relying Parker, than should be cluded rather It found that applied. function governmental pcha constituted it authorized statute. expressly

because 13 that under of the further concluded The court § act, determine immunity had to rendering of medical care hospital’s whether the purpose primarily for a fee was conducted It found that profit. producing pecuniary Annapolis Hospi- pcha primary purpose surrounding to provide health care tal was summary dis- motion for pcha’s communities. granted.8 was therefore position appeal for leave to application Plaintiff filed an Appeals. sponte This Court sua with the Court of appeal the decision granted prior leave (1985). 858 Appeals. Mich Court II. OF ROSS RETROACTIVITY case law is first is to determine what task Our Parker, the opera- case. Prior to in each applicable considered a general hospital was public tion of a law under both common function act. See 7 of the § against apparently pending. still Dr. Jahan is The suit Opinion op the Court Alpena, Parker, 190-191; 404 Mich Martinson v (1950); 595; Mich NW2d 148 v Nicholson (1902). Detroit, Mich 246; 88 NW 695 Parker rejected this case and con- well-established law public general hospital cluded that a can be held during day-to-day liable for torts committed its operations. Although did Parker not state whether given its new be rule law should retroactive question Murray effect, the was resolved in v Beyer Hospital: Memorial applied of Parker be rule is to to all cases [T]he

pending press challenge on December in which an ex- the defense immunity cases preserved made as as well all after that started date. [409 221.] justified applica- The Court this limited retroactive tion as follows: [hospital] urges Defendant . . . Parker Park,

Highland supra, applied prospectively be from cover opinion the date the was released and not cases pending other on that date. We are satisfied that disposition the adventitious

of abeyance plaintiffs’ application Parker while we held deprive plaintiffs should not of the ben- efit of the rule or make available to defendant a longer defense no we will enforce others. acknowledge We that whenever a new rule of promulgated law is some unfairness who those have relied on the Courts, may old rule be claimed. however, do not alter an rule established thorough law without policy evaluation of the considerations involved. When decision to over- made, precedent rule finally the Court is satis- importance fied that of the result reached outweighs any negatively unfairness those af- Applying ruling fected the decision. pro- spectively the exception with of that case and pending appeal on cases in which the issue was v Univ Opinion op the Court preserved attempt any to limit

raised and is an [Id., pp such unfairness. 222-223.][9] Justice further noted: Williams [U]nfortunately, the law to what state of immunity, fur- without

constitutes ther definition, legislative years has for some been opinions in flux. of this Court have been . . . [T]he might possibly warn who such as should those they protection had either affected that better seek through through legislative redefini- insurance or [Id., p tion. 224.] Parker, Ross did not indicate Like whether Nevertheless, retroactively. should applied that and defini- opinion noted rules repeatedly therein are new10 and that tions articulated "gov- term power to redefine the judiciary has function.” 420 Mich 609-610. ernmental Ross why several reasons present Plaintiffs after only to cases commenced applied should be First, Parker held opinion clearly was issued. liability from tort did not extend immunity that has never public general hospitals. holding This challenged in the courts or seriously been Second, no indication Legislature. there was Parker, the nine Ross would overrule since none of in Ross involved consolidated cases decided hospital. public general Finally, given that other decisions have been plaintiffs note Haskins, See, Putney only. e.g., effect prospective Hav- Tebo v (1982); 181; 414 Mich 324 NW2d 729 lik, 350; 343 181 Mich NW2d (1984)._ 9Although initially applied Murray that Parker should be stated subsequent pending express challenge, all cases which had raised an appeal. language only pending did not to cases on This Court referred appellate distinguish pending at the intend to levels for between cases trial Annapolis applying purposes See Parker. Scudder v (1983). 284-286; App Hospital, 341 NW2d 129 Mich 617, 620-621, 631, 633, 635. 10 420Mich op Opinion the Court arguments unsuccessfully pre- Similar were by public general hospitals Murray sented Court in an effort to limit the effect of Parker. Although public general hospi- the tort may seriously questioned tals not have been after "governmental Parker, the definition of function” vigorously judiciary debated. The has wrestled problem century with this for over a with little guidance Legislature.11 from the We therefore place plaintiffs’ "legislative acqui- little reliance on argument. escence” factually

Furthermore, the consolidation of nine signaled diverse cases should have to the bench reevaluating and bar this Court was "governmental Beginning definition of function.” single adopted Parker, with no definition had been by majority addition, this Court. In the case general law was "confused [and] often irrecon- cilable.” tainty 420 Mich 596. Given the uncer- area, law this the bench and bar prior should have realized that some of our deci- including might sions, Parker, not survive after Ross.

Finally, judicial rule is that deci- given complete sions are to be retroactive effect. application We often have limited the of decisions prior which have overruled law or reconstrued Complete pro- Tebo, statutes. 418 Mich 360-361. spective application generally has been limited to decisions which overrule clear and uncontradicted pp Id., case law. 361-363.12_ Legislature recently has "gov codified the Ross definition of ernmental function.” See 1986 PA discussed at n 16 and accom panying text. example, Haskins, Putney For in interpreted this Court provision (MCL dramshop "name and retain” 436.22; act MSA 18.993) requiring allegedly intoxicated defendant to be retained party throughout as an against interested defendant an action dramshop defendant. 414 Putney Mich 188. Tebo v Havlik held that v Univ Opinion of the Court given

We believe that Ross should the same be given by limited retroactive effect that Parker was Murray. We therefore hold that the rules articu- applied to lated Ross should be all cases com- opinion issued menced after the date our was 1985), pending (January 22, to those cases appellate either in trial or courts on that date preserved governmen- properly which raised and immunity tal issue. complaint prior Hyde,

In the initial was filed to complaint, alleged Parker. The amended Hospital engaged University that the had been proprietary Parker, function, was filed after but complaint filed with before Ross. The amended was permission, the trial court’s and defendant has argued pleading should struck. never plaintiffs’ challenge only Defendant claimed that immunity advantage too take to its came late to accept Parker. if we were to defendant’s Even argument, this case the fact remains that was pending in this Court when Ross was issued.13 plaintiffs preserved properly Since raised and challenge to defendant’s from tort liabil- ity complaint subsequent in their amended appeals, plaintiffs’ malpractice claim should be pursuant decided to Ross. Faigenbaum, plaintiff’s complaint against

In Oakland Medical Center was filed after Parker applied only agreement should be to cases where the settlement with allegedly Putney intoxicated defendant was entered into after was apply Putney retroactively decided. 418 Mich 364. We refused to Appeals permissible, clearly the statute’s effective date because the Court of had consistently held that such settlements were and the justifiably upon precedent. bench and bar had relied this Boss, complaint properly prior Since the amended filed we plaintiffs’ "proprietary need not decide whether function” oral assertion exception conference, pretrial coupled at or before the with knowledge permission to defendant’s amend the defendant’s thereof and the trial court’s complaint, "express challenge” also constituted an immunity. Mich 223 op Opinion the Court argued unsuccessfully was decided. The center engaged governmental it was in a function Perry. appeal pending under The center’s was Appeals the Court of when Ross was decided. Since properly the center nity raised a immu- appeal, Appeals issue in that the Court of correctly concluded that the case should be decided pursuant to Ross. plaintiffs malpractice Powers,

In claim was filed after Parker was decided. the case was still Ross issued while

pending in circuit court. The correctly plaintiffs court concluded that claim pursuant should be decided to Ross.

III. VIABILITYOF PARKER AFTER ROSS Our second task is to determine whether Ross holding op- overruled Parker’s public general hospital gov- eration of a is not a § ernmental function under 7 of the immunity act. opinions

Three Parker, were written each adopting "governmental a different definition of joined by function.” Justice Chief Jus- Fitzgerald, adopted Kavanagh tice and Justice Levin, government” "of test, i.e., narrow essence to activity peculiar must be of such a nature that only performed government. can Justice Fitzgerald concluded that the of a hos- pital essentially regardless business, of who operates agency Therefore, it. engage which decides to in such activities should liability. not be entitled to from tort Mich 194-195. applied Moody concurred,

Justice but governing” broader test, i.e., "essence of the activ- ity effectively must be one which can be accom- plished only by government. Noting large Univ of Opinion of the Court general hospitals gov- private and the

number of agency’s lack in a of direct involvement ernmental hospital’s day-to-day operations, Moody Justice hospitals public general are not concluded that immunity. pp Id., entitled to 200-202. joined by Justices Williams

Justice Ryan, good Applying the "common dissented. Coleman, Ryan test, that the exam- of all” Justice concluded patients diagnosis, ination, of are treatment pro- immunity they to because activities entitled pp public general Id., mote the health. 203-204. in Ross involved None of the cases decided hospital. public general However, a tort of explicitly rejected definitions Ross each "governmental function” in Parker. used function” was redefined 614-619. "Governmental expressly impliedly activity man- is or an by constitution, statute, or dated or authorized other law. p 620.] [Id., noted this definition "is broad and encom- We passes that by govern- of the activities undertaken

most p agencies.” Id., mental 621. public general

Under a or medical discharge facility engaged is or the exercise are function its activities whenever by expressly or authorized mandated statute, constitution, law. To the extent other that held that such activities do not consti Parker function, im tute Parker pliedly by overruled Ross.14_ opinion, de earlier Ross this Court Plaintiffs note that in the Parker.” aspect that the to "this Plaintiffs maintain clined overrule public holding aspect of intended affirm was its Parker we argument hospitals liability. from tort This are immune ignores The immedi in which the statement was made. context preceding has the ately whether this Court discussion focused on 426 Mich 223 Opinion of the Court vehemently argue "unjust” Plaintiffs is deny injured person overrule Parker and right an damages merely to recover because he sought public hospital.15 medical care from a We unsympathetic arguments. are not to these How- parameters sovereign governmen- ever, the governed by duty tal to are statute. Our

interpret statutory language in the manner Legislature intended § which enacted 7 in 1964 and amended it in 1970. controlling "The meaning test as to the statutory provision is always legislative intent fairly

when to But ascertainable. the 'intent’ referred legislature is the one entertained at the passage act, time of the and not the intent expressed by subsequent amendment. In the case, instant interpret subsequent amend- legislature’s ment as an intent original indication of the speculation, would be mere judicial not construction.” Dep’t Edison Co v of Reve- [Detroit nue, 506, 519; 320 Mich (1948).] 31 NW2d 809 People See Gilbert, 191, also 200; 324 (1982). NW2d 834 passed act was in attempts 1964 to halt this Court’s to abolish sover- eign immunity. pp Ross, See operation 603-606. In both 1964 and of a public general hospital govern- was considered a Parker, mental function. 404 Mich 190-191. There indication, is no either in the words of the act or power "governmental function,” to redefine prior or is bound common-law had concluded majority definition. We noted that a of the Parker Court Id., pp that this Court could redefine the term. 609-610. only "aspect” We intended to affirm this of Parker. equal protection Plaintiffs process argu raise several and due questions ments. We do not in, they decide these because were not raised by, noted, however, or decided the lower courts. Ross Legislature’s disparate public private treatment of tortfeasors is totally unjustifiable. Id., pp 618-619. v Univ of Opinion of the Court legislative history, Legislatures these in- abrogate

tended to a public general im- hospital’s from munity tort As in liability. noted Ross: The consensus which produce today our efforts should not be viewed as this Court’s individual or collective determinations of what would be most just public fair or or policy. the best The consensus reflect, however, does Legisla- what we believe the ture [Id., intended the law to in p this area. 596.] suggested

We in Ross that plaintiffs’ arguments would be better Id., addressed to the Legislature. p 621. In response to 1986 PA enacted, 175 was effective July 1986. The Ross definition of "gov- 1(f).16 ernmental function” is However, codified § 7(4) allows tort specifically to be imposed § on agency which owns or operates public general hospital or medical facil- county ity.17 By adopting this exception narrow to the 3.996(101)(f) 691.1401(f); provides: MCL MSA activity expressly "Governmental function” is an which is or constitution, statute, mandated or authorized local ordinance, charter or or other law. 3.996(107)(4) 691.1407(4); provides: MCL MSA grant immunity governmental agency This act does not to a respect ownership

with hospital or or county such subsection: facility agents employees medical care or to the county facility. medical care As used this (a) "County facility” medical care means that term as defined public code, in section 20104 of the health Act No. 368 of the 1978, being Michigan Public Acts of section 333.20104 of the Compiled Laws. (b) "Hospital” facility offering inpatient, overnight means a care, observation, diagnosis, and services for and active treat- medical, obstetric, surgical, ment of an individual with a chronic, requiring daily or rehabilitative condition the direction supervision physician. or of a The term does not include a hospital operated by department owned or the of mental health hospital operated by department or a of corrections. 426 op Opinion the Court granted by immunity codified Ross broad Legislature be- 175, it is clear PA Parker. overruled had that Ross lieved today’s activity, legislative light this recent have In Sovereign gov- holding or effect. limited will liability immunity be will tort from ernmental operating agency governmental a a to extended public facility only hospital or medical accruing involving of action cause a those cases prior ary pending July Janu- 1986, on 1, was which that date.18 1985, on or after 22, or commenced July on or after accrues cause of action Where agency may governmental liable be held 1986, 1, a ownership arising or out of for torts facility. county medical or OF ROSS APPLICATION IV. plaintiffs the defen- case, seek to hold

In each negligence vicariously of its liable for dant agents. employees can tort Vicarious or agency upon imposed only a be where:

1) agent employee tort while committed a or employment during acting course of authority, scope of his within the 2) agent employee the tort committed or nongovern- activity engaged in an while proprietary fell within an or which mental immunity from tests for individual PA 175 also modifies the liability articulated in Ross. tort directly a though plaintiff from is unable to recover a Even arising prior July agency cause of action on a tort remedy. A necessarily that he is without mean this does allege of action plaintiff may falling nontort claim or a cause able to be exceptions within one Furthermore, plaintiff from pp can recover 647-648. act. See injury in certain circum caused the tortfeasor who the individual stances. govern ultimately paid Id., may pp 633-634. Plaintiff officers, agreed indemnify agency its agency if the has mental employees, 3.996(108). Id., 635; 691.1408; p agents. MSA MCL Regents Michigan of v Univ Opinion the of Court exception act. pp 623-625. employees suggestion or that

There is no acting agents the course outside in each case were scope authority employment when of or of alleged prietary "pro- than the committed. Other torts were plaintiffs exception, have not function” exception applicable. alleged any We is other diagnosis, treatment, and first decide whether through hospital, by em- its each care rendered ployees discharge agents, or the exercise constituted function. of a

HYDE alleged employees the Uni- of Plaintiffs diagnosed Hospital negligently versity and treated question Hyde’s is whether The Ms. diagnosis fracture. patients were activities treatment of expressly mandated or were by statute, constitution, or other law. authorized statutorily Michigan University re- department quired of medicine. to maintain expressly Legislature 390.8; 15.908. The MCL MSA operation the construction and authorized through appropriation Hospital University several implicitly operation in- of a acts.19 The patients. diagnosis and treatment of cludes the implicitly authorized Since these activities were statute, engaged employees in the exer- were discharge governmental function when cise or alleged tort was committed.

FAIGENBA UM argues that of defendant Plaintiff 178; 351; See, 96; e.g., 1923 PA 310. PA 1919 PA 1921 PA Shaw, Hospital, University see Uni information on the For further (Ann Survey M versity Michigan: Encyclopedic Arbor: U of An 1951). Press, 426 Mich Opinion of the Court Department Medical Center Oakland unauthorized, ultra vires Mental Health was an diagnosis activity. any Thus, treatment ren- part the center’s Katz as dered to Ms. operations the exercise did not constitute medical discharge governmental function. To evalu- history purpose argument fully, and ate this be detailed. the center must oper- at all times was Medical Center Oakland was established the dmh. The center ated medical-surgical unit of the Clinton (then Hospital). Valley It State the Pontiac Center separate unit within the became a administrative local in 1971. The center was created because dmh to render medical facilities were reluctant medical developmentally mentally ill and treatment to persons residing in state facilities. The disabled primarily treatment to center patients rendered medical Valley Center, other state from Clinton develop- psychiatric facilities, and centers for the community mentally By 1978, several disabled.20 provide hospitals had contracted with the dmh surgical mentally ill and medical and services to patients. developmentally disabled The Oakland operations. Center thereafter discontinued Medical argues no Plaintiff that there is constitutional statutory authority permitted the dmh operate medical care facil- establish Appeals ity. Plaintiff believes that the Court of upon incorrectly § relied 116 of the Mental Health 14.800(116). Code, 330.1116; MCL MSA That stat- occasion, prison On state inmates were treated at the Oakland employees Emergency care was also rendered to Medical Center. the Clinton facts are not relevant authorized to establish and decide whether employees, Center, infrequently. Valley very occurred These but this the dmh was to our determination whether operate the medical We need not center. to treat inmates and the center was authorized patients to treat of mental since the center was authorized facilities, health such as Ms. Katz. v Univ op Opinion the Court permits allegedly only ute the dmh function concerning mental health. areas interpret powers do not the dmh’s We so nar- Legislature expressly The rowly. authorized and operation general medical-surgi- creation dmh through cal unit within the several appropri- See, e.g., 32; acts. 1967 PA ations PA 126. The latter act noted: specifically goal component of the medical services

[program] is to physical restore maintain the well-being hospital patient population medical, providing diagnostic, laboratory, surgical, specialized nursing dental services and infirm care patients. Each resident of mental health must facility given comprehensive physical mental to, after, prior examination or soon admission and be reexamined at must least MCL annually. 14.800(710). 330.1710; Recipients MSA of mental dig health services are entitled to "basic human 330.1704(3); 14.800(704)(3), under MCL MSA nity” which would include to right prompt and general if adequate medical care. Even stat these exist, utes did not and care treatment of persons residing in state mental health facilities an implied responsibility protect include to both and physical well-being. residents’ mental See 641, 643. The dmh pp respon was ultimately ensuring sible for that Ms. Katz received necessary treatment for both her and condi physical mental tions. nothing

There is 116 of the Mental Health § prevent fulfilling Code which would from dmh statutory by operating its duties medical care facility mentally handicapped patients. part: 116 provides pertinent Section Mich 223 op Opinion the Court the consti- article of of to section Pursuant the health of that declares of tution primary is matter the state people of article concern; pursuant to section public 8 of that which declares the constitution treatment, care, or rehabilitation for the services of shall mentally handicapped seriously are those who depart- supported; always fostered be to diligently endeavor continually and ment shall mental appropriate adequate ensure to all citizens are available services health department To this end the throughout the state. powers and following general shall have duties: ill- (a) mental in the areas of may It function retardation, other organic brain and ness, mental alcoholism, disease, or neurological impairment given Priority be to shall abuse. and substance areas illness and mental retardation. of mental priority illness shall of mental the area Within disability. forms such

given to the more severe (b) or nonresi- may provide, on a residential It or client service basis, type patient any dential diagnosis, prevention, not limited including but education, treatment, care, training, and rehabili- tation. (d) through or contrac- may operate directly It necessary arrangement such facilities as are

tual appropriate. or contract, agreement, or (j) may any It enter into nonpublic entity arrangement any public or with necessary appropriate to fulfill those powers those that have stat- duties or exercise ute given department. been

(1) necessary are powers It have such shall fulfill those duties and exercise appropriate given powers that have statute been those pro- department which are not otherwise by law. hibited v Univ of Opinion op the Court (a) specifically permits the dmh to

Subsection organic brain disease and function areas of (Ms. neurological impairment. Katz was referred treat- Medical Center because her to the Oakland neurological problems.) suspected ing psychiatrists (b) provide any dmh authorizes the Subsection including diagnosis, patient type service, treat- requirement ment, that the There is no care. patient’s solely to the must be related services provide these services The dmh can mental health. arrangement through directly, un- contractual (d) (j). Defendant Oakland der subsections was was created because Medical Center dmh surgical provide medical and sufficient unable basis. services on a contractual expressly and the dmh was We conclude secure, in some statute to mandated necessary general manner, medical services those well-being. physical The dmh for Ms. Katz’s provide expressly such statute authorized through directly Medical Oakland services Center. The facility operation of a medical diagnosis implicitly and treatment of includes employees patients. Therefore, defendant discharge engaged in the exercise center were of a occurred. malpractice function when POWERS Annapolis Hospital argues initially Plaintiff from tort entitled to is not "governmental agency.” Section it is not a because 1(d) immunity act, MCL 3.996(101)(d), "govern- 691.1401(d); defines MSA political agency” state, "the subdivi- mental corporations.” municipal These terms sions, and § 1: are also defined 426 Mich 223 op Opinion the Court

(a) city, vil- any "Municipal corporation” means township, any combi- or lage, township or charter thereof, acting jointly. when nation (b) municipal any means subdivision” "Political township, township, charter corporation, county, district, district, metropolitan dis- or port school trict, thereof, acting when any combination or by 1 authority formed any district or jointly, and political more subdivisions. (c) Michigan and its the state of "State” means commissions, and shall departments, and agencies, include state, college the university and of every public a constitutional cor- established as

whether poration or otherwise. in these defini- are not listed

Although hospitals actu- entity the she tions, has overlooked plaintiff Peoples Com- sued the properly Plaintiff ally sued. formed entity an Hospital Authority, munity communities, Michigan southeastern twenty-four including hospitals, community runs five which formed one authority An Annapolis Hospital. included within political or more subdivisions l(b)’s of subdivision.”21 "political definition § is no statute or argues that there

Plaintiff also mandating specific authorizing other law provided by public of routine medical care types misperceived has how hospitals. Plaintiff Ross function” "governmental definition of Regents Similarly, Hyde, plaintiffs sued the Board empowered Michigan, entity specifically University to be sued 390.4; universities are included under MCL within MSA 15.904. Public l(c)’s definition of "state.” § Faigenbaum, plaintiff Medical and Clinton In sued Oakland However, Centers, depart- Valley the dmh was the but not dmh. running responsible Center and will for the Oakland Medical ment ultimately pay any judgment longer entered, especially no since the center is governmental immunity act cannot be cir- in existence. The defendant, naming merely by facility than as the rather cumvented agency operates facility. the state or local l(c)’s department included within definition § Since a of the state is "state,” applicable. immunity act is v Univ of Opinion Court applied. necessary It

should be is not that there be specific statutory provision mandating a rizing or autho- to set bones or deliver babies. interpretation gov- an Such would emasculate the ernmental act and as well proliferation unnecessarily in a result legislation. detailed requires only

Ross there some legal statutory, constitutional, or other basis activity agency in which the engaged alleged when the tort was committed. The governmental immunity interpreted by act, as permits imposition liability upon Ross, of tort a only agency agency the where was engaged activity, activity i.e., in an ultra vires an expressly which is not or mandated or by constitution, statute, authorized or other law. p Ross, 620.

We conclude that the care and treatment of patients Annapolis by Hospital expressly were authority authorized statute. Defendant pursuant joint hospital established the to author- 5.2456(1) ity seq.; seq. act, 331.1 MCL et MSA et townships, cities, This act authorizes two or more villages incorporate hospital authority and in operate construct, own, order to community hospitals. "Hospital” one or more specifically de- building, structure, fined facility the act as a or related ancillary for, incidental, "intended or wounded, the care of sick the or for or of care persons requiring medical . . . :” MCL treatment 331.1(2); 5.2456(1)(2). employees MSA The agents Annapolis Hospital of were en- therefore gaged discharge in the exercise or aof governmen- alleged tal function when torts occurred. "proprietary exception v. function” Although employees agents in each case 426 Mich Opinion of Court discharge engaged or the exercise were they allegedly com- function when defendants tort, not mean that this does mitted a immunity automatically from tort entitled are liability. determined whether It must also be performance activity aof constituted the at issue p proprietary so, If defen- 613. function. See vicariously § 13 of under liable can be held dants the immunity act: apply to shall not state bodily injury property or to recover for actions performance propri damage arising out Proprietary func etary as herein defined. function any activity conducted pecuniary which is tion shall mean producing purpose for primarily state, however, excluding, any activ profit for the normally or fees. No action ity supported taxes against injury brought state for shall be arising out damage property function, except injury or loss suf proprietary 691.1413; July 1965. fered on MSA after [MCL 3.996(113).][22] Although cially judi- only state, § refers Ross statutory "propri- of

extended the definition nonsovereign etary function” to following agencies. pp Id., Thus, the dis- 613-614. exception "proprietary the function” cussion of agen- applies to all and local state cies. hospi- plaintiffs case, the

In maintain that each performing propri- facility tal or medical was charged etary the fee for function because diagnosis, treatment, to its and care rendered Hyde, plaintiffs allegation patients. In raised this only "governmental 22 1986 insofar as PA amended § Thus, throughout agency” for the section. was substituted "state” equally subsequent apply to cases decided under discussion will version of 13. amended § v Univ Opinion op the Court complaint. However, the lower in their amended upon passed never merits of this courts have allegation. enough complete to Nor the record permit full review of this claim. Faigenbaum, "proprietary function” ex-

In ception until after decided was raised Ross was arguments shortly held before oral were Appeals. apparently held, That Court the Court govern- law, a matter of as mental etary "propri- facility care cannot be deemed a charges facility function,” where the even profit. produces an for its services and incidental App precise However, issue 143 Mich 313-314. this fully litigated trial. was not at only a full eviden- Powers is case which findings hearing tiary conducted, has been diagnosis, made, fact and law treatment, pital as to whether Annapolis patients Hos- and care of at proprietary there- function. We constituted a begin analysis "proprietary func- our of the fore tion” undisputed

exception summary with presented evidence in Powers. pro- pcha organized to in 1945

Defendant growing rapidly west- medical vide services pcha Wayne County cur- The ern communities. operates community hospitals, rently five annually. patients approximately 250,000 serve The grown participating has communities number community twenty-four. nine from to Each redeem its levies an assessment on residents return, are In residents construction bonds. charged than a lower fee for medical services charged patients. Most nonresident charged pcha’s generated for from fees revenue is medical services rendered. competes pcha actively health with other providers nonresident both resident and

care patients. response changing needs of

In medical 426 Opinion the Court private competition from and the communities providers, an has created the health care HMO-type pcha outpatient plan, health care built health arrange- into contractual facilities, entered and employ- hospitals and local ments with non-PCHA Currently, gain patients. the ers to well-managed -more pcha fiscally sound and agency. 30, 1983, had the $9.9 of June As pcha operation, maintenance, and receiv- million in its (capi- depreciation ing million in its fund; over $30 expenditures) in its bond fund; million and $8.3 tal redemption addition, In fund.23 interest and revenue over million as of June June excess revenues to

expense contained over $5.5 account

30, 1983, million as and $8.4 never distributed The has 1984.24 pcha participating state, commu- nities, or its board of directors. govern- § 13 of trial court found The 1) was the contains two tests:

mental act primarily question activity purpose for the conducted 2) profit, producing pecuniary supported by activity The taxes or fees? was though had court concluded that even pcha hospitals operate revenues, its it did not excess pecuniary profit. primarily produce Rather, clearly history indicated pcha pcha regula required by The was federal and state statutes and The of reserves in several accounts. tions to maintain a certain level depreciation capital expenditures, such as fund was used to finance purchase equipment building A renovations. the state moratorium on certain larly high of new medical particu expenditures in a had resulted depreciation account. The assessments amount only by participating deposited into the bond levied communities were fully covered the and interest account. Since the assessments never payments, money was withdrawn from certain bond and interest pcha necessary. board other accounts when Two members of pcha the tax assess directors testified that could survive without ments. parties vigorously in the reve whether the amount debated pcha hospi expense "profit,” its nue tals funds in the account since the over nonprofit organizations these and had never distributed were of dividends. form v Univ of 257 Opinion of the Court provide hospital was established to and medical participating to care communities. The court noted that the excess revenues were channeled necessary into other accounts when and were used solely operate hospitals. The fact that competed actively with other health care pcha providers went more to Justice Moody’s "essence governing” test, which the court believed was "ostensibly overruled” Ross. The court also part by noted that the Summary disposition was in funded taxes. pcha granted was pcha hospitals gov- because the of the awas nonproprietary ernmental, function. correctly interpreted

The § trial court 13. Prior immunity to the enactment of the act, of this decisions Court had differed as how any, profit generated much, if incidental could be activity proprietary before an a deemed to be Legislature specifi- However, function.25 has cally "proprietary § defined function” 13 act:

Proprietary function any shall mean activity which is conducted for primarily purpose producing profit state,[26] a pecuniary for the ex cluding, however, any normally activity supported by taxes or fees. "governmental

Unlike the definition of func- "proprietary tion,” the definition of function” is quite specific interpretation. and needs no Before Cooperrider, Court, Legislature, See The liability Michigan, (1973), tort L R 229-237 and cases discussed therein. involving nonsovereign governmental agencies, In cases an activ ity produce primarily pecuniary profit govern conducted a for the agency, state, mental proprietary rather than the could be deemed a interpretation function. This is consistent with the recent amend ments to 13. See n 22. § 426 Mich Opinion of the Court activity proprietary function, a an is deemed satisfy must two tests:

1) primarily activity The must be conducted profit, pecuniary purpose producing a 2) supported by normally activity be cannot taxes fees. requires nothing §in 13 that the

There is activity generate profit actually before it can be availability proprietary If the deemed a function. solely upon examination of turned an ledgers budgets particular activity, the fiscally

responsible governmental agency would liability for its sound man- tort "rewarded” with discourage agement Such a rule could decisions. implementation of cost-efficient measures and en- courage spending. Moreover, the rule would deficit implement inconsistent in its difficult to be operates year, activity If a loss results. an at one profit year, makes the next does the availa- but bility a change? immunity also from tort hospitals operated by the pcha If one of the consis- operates tently granted loss, at a would be fiscally hospital, not the other

to that but hospitals? sound profit not an

The existence of a is irrelevant govern- consideration, fact that a however. The pursues despite agency activity mental tent an consis- may primary losses evidence profit,27 purpose pecuniary is to make a not but Conversely, the fact is that conclusive evidence.28 activity generates profit consistently a may produce profit. a evidence an intent How- permits imposition liability only ever, § 13 of tort (1980), (1973). tan (1975). ^[27] Authority Joe See See Iv den 422 Mich 892 Knapp Davis Bd of Dearborn, v Comm’rs, Detroit, (1985); 98 Mich 49 Mich Smith v Huron-Clinton App App App 705, 711; 18, 25; 280, 283; 296 NW2d 341 212 NW2d 32 NW2d Metropoli Michigan Regents v Univ Opinion of the Court primary purpose produce pecuni-

where the is to a profit. ary penalize It does not agency’s legitimate activity desire to conduct an self-sustaining on a basis.

Another relevant consideration is where the profit generated by activity deposited is spent. profit deposited how it is If the in the governmental agency’s general fund or used to functions, finance unrelated this could indicate activity at issue was intended to be a general revenue-raising device.29If the revenue is only pay long-range expenses used current and operating activity, involved in this could indi- primary purpose activity cate that the produce pecuniary profit.30 not to pri- The trial court concluded that pcha’s mary purpose operating hospitals its was to provide hospital and medical care to area resi- light presented, dents. In of all the evidence this finding clearly is not erroneous.31Even if the funds expense accumulated in the revenue over account "profit,” are deemed this is not conclusive evidence primary purpose produce that the was to pcha’s pecuniary profit. The excess revenues were not participating distributed state, commu- nities, or members of the If other accounts pcha. expenses, were insufficient to meet current were withdrawn from the revenue over funds

expense Thus, account. the § first test of 13 was not satis- fied. Even if we were to conclude that pcha’s

primary purpose produce pecuniary was to a profit, operation hospitals of was in fact 29 example, generated For by the net lottery revenue the state is deposited 18.969(41). 432.41; into the state school aid fund. MCL MSA 30 Davis, supra. See Bullinger Gremore, 31 A similar conclusion was reached in 343 (1955). 559; 72 NW2d 777 426 Mich 223 260 op Opinion the Court charged primarily by for medical fees financed extent, and, taxes to a lesser rendered services by participating Thus, communities.32 levied The trial § 13 was not satisfied. second test of granted properly motion defendant pcha’s court disposition.33 summary "proprietary Legislature func- has defined The unambiguous very narrow, manner. The tion” a purpose primary intended on the focus is activity normally activity funded. is and how the governmen- alleges plaintiff merely that a A who goods agency provides has or for a fee services tal engaged alleged agency sufficiently is not in required by agency proprietary Often, is function. an a charge fee for or other law to statute plaintiff goods Instead, the must its and services.34 purpose activity allege primary is activity produce pecuniary profit and that the normally supported by taxes or fees. is not complaint Hyde, plaintiffs’ amended In ofU stated activity actually sup require that Section 13 does not activity liability. ported tort The taxes or fees to be immune from supported by only normally is taxes or fees. need be one which pcha operation Beyer Hospital by the Plaintiff notes that the proprietary Lykins Peoples Community was deemed a function in v light 1973). (ED Mich, Hospital, Supp 355 F In of Ross and the cases, reasoning longer Lykins much of the used in is no valid. instant agencies Lykins are court believed that all activities state proprietary. dichotomy re either This strict

jected p Although Lykins 613 and n 32. was decided well Parker, essentially adopted before governing” the court the stricter "essence to determining general hospi test in that the governmental agency tal rejected definition of is not a function. Ross Finally, analyze apply this test. the court did not 13’s § "proprietary function.” pcha example, statutorily required charge For sufficient rates to cover the reasonable cost and value of its services. MCL 5.2456(8i). 331.8i; 331.160; (every MSA See also MCL MSA 14.1139 person pauper pay compensation to who is not a shall reasonable rendered); seq.; county public hospitals for services MCL 330.1800 et 14.800(800) seq. (every recipient MSA who is able to et of mental health services received). pay must the dmh for services reimburse Regents Michigan 261 v of Univ Opinion op the Court paid Plaintiff valuable consideration

[t]hat the the her and therefore services rendered to medical proprietary engaged in a were Defendants of the fact that there are by function health care viture [sic] private providers sector sort of services. render the same society who facts pleading Plaintiffs bear the burden finding that which would complaint justify their not barred in their tort cause action recovery Ross, 621, n p act. immunity 532, 527, 540-541; v Kirkeby, Galli 34; 398 (1976).35 5 of Paragraph plain- 149 248 NW2d alleges plain- that tiffs’ complaint merely amended for medical ser- paid University Hospital tiffs med- provided by private routinely vices are allege that did not ical facilities. Plaintiffs treatment, patients at diagnosis, and care of produce pecu- primarily intended state, that this activity for the niary profit fees. taxes or supported was not normally failed, as a matter complaint amended Plaintiffs’ falls law, cause of action which to state tort exception. function” "proprietary within 13’s § in his Faigenbaum, allege In did not plaintiff Medi the Oakland complaint Court of Claims in a function engaged proprietary cal Center was issue Nor was this malpractice when the occurred. in his litigated. argument Plaintiff first raised the supplemental Appeals brief filed with the Court after Ross was decided. We will not con shortly unpreserved argument. untimely sider this Co, 414 Mich 433, 446; v Dow Chemical Swartz See (1982). NW2d contract claim Plaintiff also asks his immunity, sovereign and Unlike other claims of defenses, govern characteristics of are not affirmative but Galli, p liability. supra; prevent imposition of tort ment which 541, 1; 5; Michigan, n 247 NW2d 521 n 398 Mich McCann 2.111(F)(3)(a). (1976). Compare MCR 426 Mich Opinion op the Court against the Oakland Medical Center be reinstated. trial, Prior to the circuit court struck n Count of plaintiffs complaint, and denied his motions for reconsideration, because the contract claim was supposedly duplicative of the tort claim. Plaintiff appeal any decisions, did not of these or raise the cross-appeal. contract claim via a raised before the Court of The issue was

Appeals plaintiffs supplemental brief filed after Ross was decided. The Court refused to consider the issue because properly appealed. had not been substantially The fact that identical facts under- plaintiffs lie a does not tort and nontort causes of action

automatically duplicative. render them pp 647-648. The trial court should have plaintiff properly instead determined whether had pleaded prove and could the elements of a breach Although of contract claim. we do not condone plaintiffs appeal proper failure to this issue in a manner, we remand this case to the trial court for a determination on this issue. Plaintiff raised the complaint viability contract claim in his and its litigation. will determine the outcome of this supra. Swartz,

VI. CONCLUSION Hyde, Appeals In the decision of the Court of grounds. affirmed on different Faigenbaum, In the decision of the Court of Appeals is affirmed insofar as it held that Ross is given to be effect, limited retroactive and that by Parker was overruled Ross. The case Wayne is remanded to Circuit Court for fur- proceedings plaintiffs ther on breach of contract jurisdiction. claim. We do not retain Wayne Powers, In the decision of the Circuit Court is affirmed. v Univ Levin, J. Dissenting Opinion

Williams, C.J., Boyle, Brickley, Riley, JJ., J. Cavanagh, with concurred (dissenting). ruled, In this Court J.

Levin, Highland Park, 183; in Parker v (1978), a NW2d hospital "governmental function” within meaning tort act.1 years later, v Consumers Power Co Six Ross (On Rehearing), 567; 420 Mich 363 NW2d (1984), ruled that the construction this Court juvenile-care facility operations drain, Department operations Services, of facili- of Social persons emotionally by the De- disturbed ties partment operations Health, of a school of Mental dredging permits by district, Department the issuance police Resources, the re- of Natural operations sponse disturbance, of a 911 and to a governmental system, ing, In so rul- functions.2 were "governmental function” as this defined Court 3.996(101). 691.1401; 1 MCL MSA involving Ross, "only p posed supra, issue as 2 1. 637. The Court the governmental agency liability nonsovereign of [district direct a out, contracting super negligence its drain and commissioner] vising, inspecting of a and the construction drain.” Services). (Willis Ross, p Dep’t The Court supra, v of 2. 640 Social partici- allowing question therefore is decedent said pate whether “[t]he supervision swimming outing, of decedent in a and the care and facility], during outing juvenile care constitute the [with governmental discharge nonproprietary, function.” or of a exercise Health). (Siener Ross, Dep’t supra, pp 642-643 v of Mental "We 3. supervision and of determine whether control must emotionally therefore patients by Department of Health Mental disturbed [the during trip employees field is and their in the Hawthorn Center] constitution, by expressly impliedly stat- mandated or authorized or ute, or other law.” Health). (Rocco Ross, p Dep’t supra, v of The Court 646 Mental 4. placement patients inquiry the crucial was "whether said within mental control, care, supervision facility, and health expressly impliedly in-patients, are or man- are activities which of dated constitution, statute, by or other law.” or authorized Ross, (Regulski Murphy). supra, p it The Court said was 5. 649 v supervision of required to "determine whether the instruction class, building provision as well enrolled in trades students 264 426 223 by Dissenting Opinion Levin, J. activity expressly impliedly

"an is which or man- by constitution, statute, dated or authorized or other law . . . .”3 appeal, cases,

In two of these consolidated on held, decided, was operation after Ross was that because the general hospital activity

of a an the defendant entities were autho- by engage pursuant they in, were, rized law to liability.4 Ross, immune from tort argument Court, After in this by tort act amended 1986 PA 175. added, time, There was for the first a definition of measures, safety discharge devices and constitute the or exercise of a nonproprietary, governmental function.” (Trezzi Detroit). Ross, supra, p 6. v The Court said: "We categorizing emergency therefore must whether determine calls by operator dispatch police a 911 and the vehicles in accordance expressly impliedly therewith are activities which are or mandated or constitution, statute, by authorized or other law.” Ross, supra, p (Disappearing Dep’t 7. Lakes Ass’n v of Natural Resources). inquired dredging The Court "whether the issuance of permits extensions, thereto, and activities related are activities expressly impliedly are mandated or authorized constitu tion, statute, or other law.” (Zavala Zinser). supra, p 8. v must "[W]e determine police] request backup whether decision [a officer’s and await expressly assistance is mandated or authorized consti tution, statute, or other law.” 3Ross, supra, p 620. 4Faigenhaum Center, 303; App v Oakland Medical 143 Mich (1985). NW2d Peoples Community Hospital In Authority, Powers v the circuit concluded, Boss, court on the basis that the granted was a function. This Court leave to appeal prior (1985). Appeals. to decision of the Court of 424 Mich 858 (not Michigan officially reported), In a divided Court of Appeals Highland Park, supra, ruled that v apply Parker did not subsequently Murray because this Beyer Court had held in Memo- Hospital, 217, 221; (1980), rial 409 Mich 293 NW2d 341 that "the rule applied of Parker pending is to be to all cases on December express challenge governmental in which an to the defense of immu- nity preserved was made and as well as all cases started after that date,” and, majority, plaintiff in the view of had not made and preserved nity. opinion challenge express an to the defense of immu- disposition unnecessary The express Court’s makes an Hyde correctly by Appeals. whether was decided the Court of of v Univ Levin, J. by Dissenting Opinion adopted the Ross function. Act 175 but stated that function of

definition granted not with from tort hospital ownership respect or Department except hospital a owned Department of Corrections. or the Health Mental The amendments as to causes of are effective July arising 1, 1986. The on after action amendatory pertinent part, language, is as fol- lows: used in this act:

Sec. 1. As

[*] ^{[*] [*]} (f) activity an function” is "Governmental or authorized expressly or mandated ordinance, constitution, statute, or local charter or other law.

Sec. 7. (4) gov- grant immunity to This act does ownership respect to the agency with ernmental county care hospital or medical operation of a employees of such agents facility or to the facility. county As used hospital or medical care this subsection: (a) facility” care means that "County medical public in section 20104

term as defined health code, Acts Act No. Public Michigan 1978, being section 333.20104 of the Compiled Laws. Ob) facility offering inpatient, "Hospital” means observation, care, diag-

overnight nosis, medical, surgical, tive condition and services an individual with a active treatment of obstetric, chronic, or rehabilita- or su- daily term does not include direction

requiring physician. pervision department operated by a mental health owned or hospital operated by de- or a partment of corrections. Dissenting Opinion Levin, J. amendatory Section 2. This act shall take effect 1,

July 1986. (1) 1, 7, Section 3. Sections and 13 of No. 170 Act 1964, of amendatory and 691.1413 of Acts of as Public amended this act, being 691.1401, 691.1407, sections Michigan Laws, Compiled apply shall not to causes action arise 1986.[5] 1, July [Emphasis supplied.] before The Legislature adopted, thereby for causes of 1, 1986, action on and arising July after both the Ross definition of function and the Parker) concept in (expressed that a governmental agency operating general hospital subject to and, tort well, liability concept (expressed in the companion case Perry v Kalamazoo State Hospital, 205; 404 Mich [1978]), NW2d 421 a governmental agency operating a state mental hospital subject was not to tort liability.

Because Act 175 is not effective as to causes of 1, 1986, action arising before July this Court must decide and, whether so, overrule Parker if whether to make overruling such before effective 1, July 1986.

The question is therefore whether governmen- tal agency operating is subject to tort pursuant liability to Parker respect in causes 1, of action arising before the July effective date Act 175. We would hold that it is.

i The question whether a agency immune or subject from tort respect to the operation of a hospital presented was not 3.996(101) amending seq.; 5 1986 PA MCL 691.1401 et MSA et seq. v Univ Opinion by Levin, J. Dissenting in Ross. could not have been decided therefore and We appeal granted consolidated leave to these developed in the rationale to decide whether cases opera- opinion should extended Ross overruled. and Parker hence tion of a question, the could decide that Before this Court general Legislature satisfaction with indicated its Legisla- Perry; Parker, the and results in the ture adopted elimi- 175 the Ross definition in Act governmental nating liability for all lawful tort excepted, operations, Parker, as forth in but set general hospital operation not, as set of a but the forth in hospital. operation Perry, mental of a state the legislative adoption definition of of the Ross Parker/Perry function, the and of respecting qualification distinction hospitals, made effec- were both state mental arising on and after action as to causes of tive July imprimatur place Legislature its not did 1986. The by unmodified definition on the Ross qualification Parker/Perry the distinction and arising July 1, 1986. causes of action before construing legislation, obliged in the in We are liability act, to tort instant case the implement the the intent of search for and seek Legislature. contro- an amendment is enacted after Where concerning versy an of has arisen construction regarded act, has, times, amendment at been legislative expression by of the this Court as an original purpose of the enactment —the view being legislation clarify, the differ- because original opinion, meaning act of the ence change of law. rather than to work substantive Dep’t Revenue, 320 Co Detroit Edison v See Mich amendment (1948). Such an 506, 519-520; 31 NW2d legislative ex- has viewed as a been 426 Levin, J. Dissenting Opinion pression meaning” of the "true construction and change Bailey Clark, in rather than a law. See Wall) (21 (1875). 288; US 22 L Ed 651 expresses legislative judgment, Act public policy state, thus as declared governmental operations all lawful re- shall be garded as functions immune from except, among others, tort general hospital.

ii In none nine cases decided in Ross was provided by government mainly pro- the service private largely vided the same manner sector and funded in provided like services in the private sector. Because Ross did consider the presented Parker, factual situation properly it cannot today said Parker was overruled Ross. Court,

When Ross was decided aware of open question Parker, left of Parker’ s contin- viability recognition impropriety in ued deciding question question it. A before left open to be decided at a later date could not have impliedly been decided when Ross was decided. sure, where, To be there are situations because essentially the facts and context are the same as prop- case, in those an earlier the Court could not erly apply fail to a rule announced in the earlier implied and, hence, case there has an been over- ruling by any the earlier case of still earlier contrary decision. language

This is not such a case. While the governmental the Ross definition of in function distinction, terms left room no for a what was said long-established principles, should, in Ross under in be read context of what was then before the Univ by Dissenting Opinion Levin, J. operations Ross dealt with Court.6 duplicated in that, somewhat while and services the provided private mainly funded sector, and are solely operations by government and services government. by provided funded this not foreclose in Ross could What was said pre- recognizing, issue was when the from Court one between sented, difference and distinction activity difference and another —the activity between and distinction mainly governmental by government provided and a and funded pri- provided activity mainly in the significant by users without funded vate sector governmental subvention. acknowledges opinion the Court cases decided nine consolidated

"[n]one of the public liability of a the tort Ross involved concludes It nevertheless . . . .”7 re- Ross Parker because overruled Ross proffered by justices jected all the definitions in Ross the definition stated and because Parker encompasses of the activities most "is broad and agencies.”8 by governmental That ex- undertaken planation begs question im- Ross whether bootstrapping pliedly on the overruled Parker of Ross. obiter dictum definition embraced

To the extent that the Ross opera- "governmental” sweeping ambit within its private mainly provided in the and services tions sector and mainly user fees—to funded question de- theretofore it dealt with the extent beyond of what the ambit cided in Parker —it went beyond Court for decision was before the authority. judicial appropriate exercise opinion beyond says what in an the Court What 6 (1878). 96, Starkweather, 38 Mich 100 v See Larzelere 7Ante, p 230. 8 Ante, supra, p p quoting 621.

270 426 Mich Levin, J. Dissenting Opinion necessary necessarily is dic- decision obiter rejected case, tum. It can rejected in a later as Ross all the definitions of func- proffered tion in Parker. particular

What the Court does in a case rather says likely than what it is more to stand the test of time. What the Court did in Ross to hold operations Departments schools, that Natural Health,

Resources and Mental police department operations operations without — equivalent counterpart private sector, an operations largely in the govern-

funded taxes —are mental functions within the intendment of the tort act. That is all properly Court did or could do.

hi The view that Ross overruled Parker (i) presupposes meaningful either that there is no tax-supported governmen- difference between such operations police departments, pub- tal and fire state-operated schools, institutions, lic the mental Department Resources, of Natural on the one user-supported government operations hand, and (ii) general hospital, other, on the or that this incapable defining "govern- Court is the term mental function” in a manner both consistent with (as distinguished what what the Court decided from said) recognition and, in Ross govern- difference and distinction between such operations, mental consistent with what was de- Parker/Perry. cided in Supreme Pennsylvania, Courts of North along

Carolina, Kansas, Minnesota,9 with this SE2d 297 Flagiello (1965); (1975); Sides v Cabarrus Memorial Pennsylvania Hospital, Carroll v Kittle, 203 Kan Hospital, 417 Pa 841; 287 NC 457 P2d 21 491-495; 14, 18-19; 208 A2d (1969); 271 Michigan Regents v Univ Dissenting Opinion Levin, J. Parker/Perry, in tax-

Court differentiated between governmental operations supported the and user- operations supported general in hold- general hospital subject ing ity. to tort liabil- that a is recognized the and difference Justice Moody Parker/Perry. By vote, he in his fourth distinction implemented for six the difference distinction years. competence of this Court

It is within the say, recognize the and distinction and to difference example, policy beyond the and intent for is general Legislature excepting from —in government operations liability of tort rule "governmental function” —to ex- that constitute cept from rule of tort general hospital governmental operation be- hospitals, in from cause such contradistinction provide operations, generally other services obtained in the population the state’s most of private largely funded in the sector that are like in the as services obtained same manner private sector. redefine) (or "gov- might

The Court define thus period January 22, 1985 for the ernment function” (the announced), through day June Ross was (the effective), day 175 became before Act government any activity, vires, not ultra other mainly provided popula- than a service the state’s private largely funded, in sector that tion provided public sector, in the in the where same like services manner obtained from same sources as private

in sector. If this Court were these consolidated cases general hospi- recognize the distinction between a government operations, and to so all tal and other Minnesota, (Minn, Regents Univ Stein v 282 NW2d 1979). Dissenting Opinion by Levin, J. define or redefine the result would be the exception same as that enacted in Act 175. The services mainly provided by, largely funded in, the same manner as like services obtained private plainly, sector would because of the con- general hospitals.10 stated, text in which mean IV legislative adoption of the Ross definition way stating was no more than a convenient what could of way in be said another with the same imply Legislature result. Act 175 does not that the overruling impor- Parker, viewed Ross as and most tantly imply the enactment of Act 175 did not that Legislature correctly the viewed Ross as overrul- ing expression legislative Parker and a correct intent.

"By adopting exception this narrow to the broad immunity granted by by Ross and codified 1986 PA Legislature 175, it is clear” 11—not "that the be lieved that Ross had overruled Parker”12 Legislature that —but the that believed the Ross formulation was deficient and inconsistent with public policy general hospitals sound concerned. insofar as are

v July If one focuses on 1, the effective date of argue, correctly 1986, one so, could Legislature did not make the rules announced in by Act 175—the Ross definition modified the Par- appear any governmental It entity does not whether other than Department Department the operates of Mental Health or of Corrections psychiatric hospital. 11Ante, pp 245-246.

[12] Ante, p 246. Regents Michigan Univ by Dissenting Opinion Levin, J. qualification

ker/Perry distinction —effective July 1, It not follow that 1986. does before should, it is to the extent obiter definition Ross July 1986, 1, or that dictum, before be effective superseded Parker/Perry overruled or before are July 1,1986. formu- not that its word Court should insist

This application by rejected one in this lation the govern Legislature, in this decision case. must plan, symmetry grand design, would be No through continuing rule of Parker offended July legisla- 1986, new 1, effective date tion. of the Ross definition effective

The codification exception July 1, 1986, as amended general hospitals, means that codification definition as amended did become Ross repeat, July is, 1, There no until 1986. effective implication July 1, 1986, effective date from formulation to be the unamended Ross July 1, 1986, or that it is codified before effective and written period January 22, for the stone through June 1986. application readily argue that the One can July 1986, 1, of the Ross definition was before rejected application Legislature, by as that the continued the through 30, 1986, June was Parker rejected. question all, when, if the at obiter dictum of

The question separate a Ross becomes effective is Legislature This the left to the courts. Court readily justify delaying the can effective date recog- modifying in the the Ross dictum or dictum impolicy the of creat- nition that is dictum and overruling ing immunity by Parker. a window of July nothing legislatively ordained in the There is against or militates for effective date that result. either by Dissenting Opinion Levin, J.

VI The result of not be Parker should overruled. that is the law for causes action Parker now gov- July 1, Parker on 1986. has arise and after perhaps thousands, hundreds, erned, 1978, in since Parker. or tried on the basis of of lawsuits settled perhaps thousands of cases There are hundreds pending litigants lawyers where and in the courts expended Parker have considerable in reliance of energy awaiting large trial. in cases sums have entered into and Partial nonhospital settlements been not named released defendants in in reliance the rule of Parker from on against govern- expectation day in of a court mental defendant. argument preceden- not

The that Parker was single binding tially definition had because "no adopted ig- by majority Court,”13 of this been nores both the reliance bench bar on that is not rule of Parker and precedentially the Ross definition binding beyond what was before properly then decided. The Court argument Ross and factually "the consolidation of nine that signaled diverse cases should have bench reevaluating bar this Court that ”14 'governmental ignores definition of that function’ properly Court could reevaluate "governmental applied definition function” as general hospital because none of the nine factu- ally diverse cases concerned activities argument litigants general hospital. The that were by judicial dictum warned assumes dictum argument litigants precedent. were inability justices agree warned of four on ignores recognized need, a rationale Tebo 13Ante, p 240.

14Ante, p 240. Regents Michigan of v Univ Dissenting Opinion Levin, J.

Havlik, (1984), 350; NW2d Products, Tubular Gusler v Fairview 412 Mich (1981),15 to 270; of bench and bar 315 NW2d 388 this on the last word from proceed in reliance speaks it more decisively. Court until

VII Parker it Even if Ross overruled if not consequential overruled would not be 1, 1986. The same considera- July effective before Court delay this to prompted tions of fairness that date the new rules announced the effective of least, the effec- Tebo and Gusler at require, of Parker be overruling delayed any tive date of the Ross definition 22, 1985, the until January day dictum) an- (together with the Ross obiter was nounced.

VIII states: of the Court opinion Ross apply rules articulated hold We 22, 1985, the January after cases commenced all issued, opinion and to those cases date our pending was on appellate in trial or courts either 22, 1985, immu in which a January preserved.[16] raised properly was nity issue 35 of opinion states: Footnote immunity, sovereign and other Unlike claims justification for reliance bench Considered in terms of "fairness,” bar, this a decision of in terms and thus considered Court, reversed, agree justices can on four until whether rationale, regarded "clear and uncontra as at least as should 240) Appeals following (ante, p decision the Court dicted” which deny appeal. leave action this Court the sole 16 Ante, p 230. 426 Mich 223 by Dissenting Opinion Levin, J. immunity are not affirmative defen- ses, government pre- but characteristics imposition liability. omit- vent of tort [Citations ted.] governmental hospital appears

It thus that a plead governmental immunity need not as an plead affirmative defense and that an "preserve” the failure to would not affirmative defense be failure to immunity issue. Nev- ertheless, formulation, under the Court’s the issue "properly opinion must be raised.” The does not might by state whether this have been done mo- summary judgment, pretrial tion for in the state- ment,17or otherwise. appears, opinion speaks

It since the of the Court past properly pre- in the tense —"was raised and (emphasis supplied) governmen- served” —that immunity properly tal issue must have been raised preserved by January 22, and correct 1985. If that ais

reading, summary then if a motion for judgment January 22, 1985, were filed after it would be too late. And since the immunity issue need not raised as an be affirma- raising by defense, tive answer on or before January might "properly” 22, 1985, (At "preserve” it.18 least those are some of the arguments one can foresee the trial courts in perhaps hundreds, thousands, of cases affected decision.) today’s what is said in appears,

If, as the window of an- today applies only nounced the Court to cases summary judgment where motions for were filed January 22, on or before the effect of Appeals Hyde judge’s The Court of concluded in state pretrial preserve ment challenge” in the statement did not "raise and plaintiffs’ amending complaint. absent their See n 4. Annapolis Hospital, App 280; But see Scudder v 129 Mich (1983). NW2d 504 v Univ Dissenting Opinion by Archer, J.

decision will indeed be less because there was no reason before this Court’s decision in Ross to file such a motion.

Parker thus is not overruled as to com- cases January 22, menced on or before in which premature the defendant failed to file a summary judgment possibly, and, motion for is not overruled as to hospital also

cases which the defendant superfluous filed a If affirmative defense. say, January on, 15, 1985, case was filed Parker govern probably would because the defendant hos- pital’s January answer not due until after hospital If, however, 1985. the defendant filed a premature summary judgment motion for that was governs despite expenditure denied, Parker energy money preparing the case for trial in presumably reliance on that denial which would predicated have been on Parker. explained adequately why

The Court has not peculiar has reached such a Legislature that result now the the spoken clearly has said that public policy general hospitals of this state is that subject are not immune from and rather are to liability. tort J., J.

Archer, Levin, concurred with (dissenting). J. I While Archer, concur with separately. dissent, Justice I write Levin’s Legislature specifically provided has that liability may imposed upon tort agency hospital operates public general that owns or county facility.

or medical 1986 PA 175.1 3.996(107)(4) 691.1407(4); provides: MCL MSA grant governmental agency This act does not to a respect ownership hospital with or or county facility agents employees medical care or to the or county facility. such medical care As used in this subsection: 426 Dissenting Archer, J. inion Or hospitals public providing cannot In that these Legislature immunity, has claim continuing validity approved of this Court’s Highland Park, 183; 404 Mich in Parker decision 273 (1978). Although the act does NW2d Legisla- apply cases, to the decision these helpful apply future cases is a to ture which will guide. and valuable general public majority Parker, held that

In liability. hospitals from tort None not immune are that nine Ross involved of the issue. The cases decided grant Legislature immu- decided not operate nity governmental agencies that own or provided county hospitals or medical facilities and hospitals agents employees of such liability. were not immune from Legislature decision, the Months after Ross hearings proposals to law in on reform tort held Legislature Although the limited the this state. plaintiffs damages could that some noneconomic malpractice cases, other re- medical recover forms were not retain tort own or Legislature ing Legislature enacted. The decided governmental agencies liability hospitals. operate Since the certain requir- expressed judgment a clear has hospitals public general to remain certain respect judgment. liable, this Court should peo- representatives Legislators the elected of are (a) "County facility” medical care means that term as defined code, public Act of in section 20104 of the health No. 368 the Michigan being of Acts of section 333.20Í04 the Public Compiled Laws. (b) "Hospital” offering inpatient, overnight facility means a observation, care, diagnosis, treat- and services active medical, obstetric, surgical, an ment of chronic, individual with a requiring daily the direction or rehabilitative condition supervision physician. does include a or hospital The term operated by department of owned or the mental health by department operated the of corrections. or a 1,1986. July The act became effective v Univ Archer, J. by Dissenting Opinion particularly pie un- decision is this state. This plaintiffs provides just with a the since Parker specifically pro- Legislature remedy, has and the similarly plaintiffs situ- who are redress for vided happen to arise after of action causes ated whose effect. 1986 PA 175 takes agents duty government a its have people responsibly who in name of the the act especially in true act. This is them to authorize the area of injured public the sick and health where rely especially and must vulnerable are expertise upon professional of their caretakers. the immunity scope expanding the In govern- protecting cases, in the Court is these legal consequences agents from the ment and its negligent acts. liability may from

While absolute required in order to allow in limited instances employees governmental agencies some freedom which the mandate from to exercise their justified people, in this is not such freedom case. government engage authorizing

By hospi- operating public activities, such as certain public tal, time relieved has not at the same government duty care. of its to act with par- correctly in his As Justice observed Levin in Ross: tial dissent expressly or Virtually government activity is all constitu- or authorized mandated tion, statute, perusing the By law. or other focusing specific rather than on statute books complained plaintiff, the Court activity far, immunity too casts the net of enabling expand entity an ordi- immunity by promulgating scope of its relating activities. law to its [Ross

nance or other at 684.] by Archer, J. Opinion Dissenting authority statutory majority here cites public hospitals

empowers in the name to function people the same and then maintains employees agency and its immunizes the statute very responsibilities they breach the when agency’s liabil- created. The answer statute ity focusing upon be determined should citing agency, specific of the act or omission agency. governmental objective the overall The determination whether authority agency still the limits of its acted within interpretation. requires judicial that an To state activity expressly mandated or by constitution, statute, charter or local authorized analysis ordinance, adds little to or other law the re- the nature of must use to determine we spe- agency sponsibilities and whether alleged beyond public mandate. cific acts were ignores precedence majority Because the government Parker, and extends unacceptable degree, I dissent. to an

Case Details

Case Name: Hyde v. University of Michigan Board of Regents

Court Name: Michigan Supreme Court

Date Published: Oct 3, 1986

Citation: 393 N.W.2d 847

Docket Number: Docket Nos. 74541, 77213, 77815, (Calendar Nos. 6-8)

Court Abbreviation: Mich.