*1 57 KEENAN v. COUNTY OF MIDLAND.
Decision Court. Beach—Summary Swimming at 1. of- Minor Counties—Death Judgment. county’s judg- summary granting defendant motion for Order and others for death of child at ment action owned, operated, swimming and staffed defendants beach remanded for trial. reversed and cause is Separate Opinion. J., JJ. Smith, O’Hara, and Kavanagh, M. C. and
T. Immunity—Death Counties—Abrogation Governmental 2. Swimming at Beach. Minor governmental immunity Abrogation to counties in rule abrogation applied pending time tort cases damages case, an action to recover instant from for operated swimming 5-year-old beach child at a death of abrogation. appeal county, pending on at tvrne Liability. Immunity from Tort 3. States—Governmental districts, including agencies, have re- school its The State abrogation liability since the tort immune mained from [5, 9,11] 20 Am Jur [1, 2, [4] [6,10] [12] [3] . Municipal mental 55 5 102. 49 Am 7,13] Am ALR2d 1434. Am Jur Am Jur Jur, 39 Am Jur operation of 2d, Appeal References proprietary 2d, States, 2d, Jur, Constitutional Courts 2d, Parks, Territories and bathing beach or Courts for Points -function, §§ Error 1009. Squares, and 233-236. §§ Law 210 in Headnotes Dependencies 195. purposes swimming pool as Dlaygrounds 39. et- seq. of tort §§ § 91, 96, liability. govern- 100- pertaining j political the statute subdivisions as to the rule negli- agencies liability the State (FA 1964, controlling date gence its from effective 170). *2 4. Costs—Death—Counties. summary judgment appeal allowed on No costs are from for by county estate in action administrator of of defendant drowning swimming 5-year-old arising beach. child out a of
Separate Opinion. Weight Necessary Courts—Majority to Give Precedential 5. to Decision. precedential Supreme Court does not A decision attain of agrees unless a on a rationale Court force of full decision. for 6. Same—Precedents—Ex Post Pacto Effect. give Supreme precedential pre- to a The Court cannot force viously precedential rendered decision that was without force decided, give may at the time it was but precedential prospectively. force Counties—Negligence—Abrogation of 7. Doctrine of Govern- Immunity. mental negligent injury a are limited to Claims for period commencing years prior abrogation to date of of Supreme governmental immunity by doctrine of terminating upon herein in the decision rendered liability governmental pertaining date statute effective agencies, of of counties, negligent injuries (CLS inclusive for of 170). 609.13; 600.5805; FA No CLS
Dissenting Opinion.
Black, 8. Courts—Precedents. Language opinion an subscribed to less than a precedent appellate an court does not constitute a guidance. future Same—Precedents—Majority. point appellate an comt where the law is established by majority unanimously vote reach a decision or members by majority, agree reasoning cannot, but even on the therefor. 1966'] ok Midland. Cases—Prospective Basis. 10. Same—Overruled wholly Overruling prospective on a a case should be basis. 11. Same—Precedents. 8-man Five unrestricted indorsements Supreme necessary precedent Court are to constitute even though participating in there be but the case.
Dissenting Opinion. Kelly, Dethmers JJ. Immunity—Separation 12. Constitutional Law—Governmental op Powers. power extend, modify, abrogate gov- or the doctrine of immunity wholly legislative ernmental in character and judiciary. is not vested in the Counties—Swimming Beaoi-i—Drowning—Governmental Im- munity prom Liability por Torts. The common-law doctrine lia- from bility agents employees municipal torts cor- poration, abrogated legis- not been modified *3 engaged operating beach, lature swimming as to counties may properly ground granting county’s be made the motion summary judgment in action administrator 5-year-old estate child who drowned at the beach. from Appeal Midland; Holbrook (Donald E.), Submitted March 2, 1965. (Calendar No. Docket No. 50,573.) Decided 5, 1966. January Declaration by Francis Keenan, administrator ‘ the estate of Kimberly Keenan, against county of Midland, township Jerome, William A. Fran- cis and K. Mary Francis, doing business as Francis Beach, Grove Duane Valerio, and Vernon M. Meier for the death wrongful of Kimberly Keenan, who drowned at a beach that was owned, operated, staffed by defendants. Summary judgment for de- fendant county. Proceedings stayed pending out- come of appeal by plaintiff. Reversed and re- manded. Mich Harrigan (Peter Majoros Mossner,
Cicinelli, & Eugene counsel), Mossner, D. F. Cicinelli and for plaintiff. Taylor, (John
Stanton,
&
McGraw
Collison
county.
counsel),
Davidson, of
for defendant
lawsuit
from
This
results
the drown
5-year-old
ing
July,
aof
child. Death
occurred
swimming
county.
at a
beach in Midland
For
purposes
summary judg
on motion for
acknowledged
the beach
ment,
was
have been
to
operated by
county
of Midland. Defendant was
granted
summary judgment,
the trial court rea
prior
soning that, under
Court,
decisions of
this
engaged
governmental
in a
Midland was
function. The court also reasoned that since the
alleged
prior
tort occurred
to decision of this Court
City
Detroit,
in Williams v.
Inasmuch
was
application
time
Myers,
of decision
of the rule of
*4
immunity
governmental
longer
is no
valid. The
case is
the trial court for
remanded
vacation of
granting
judgment
summary
the order
as to de-
See GCR
1983,
117.—Reporter.
County
v.
Opinion by
J.
such,
county
fendant
and for
Midland
further
may
proceedings
appropriate.
as
he
(until
July
abolished
date,
effective
1,
170)
govern
1964,
of PA
1965,
defense of
political
mental
as to all
subdivisions of
government not theretofore abolished. The State
agencies, including
and its
districts,
school
remained
liability.
immune from tort
v.
McDowell
State
Highway
Sayers
Commissioner,
268;
School District No.
Fractional,
No costs.
T. M. Kavanagh, C.
and Smith J.,
O’Hara,
JJ., concurred with Adams, (concurring
reversal).
again,
in
Once
(1965),
inas
v. Genesee
Auditor
my
1, 12, 13, cast
vote to overrule
Lewis
County join
Genesee
Myers joined in our decision to reverse and remand Myers, judge’s only the trial decision in four us planted upon abrogation our decision the rule applied immunity to tort actions counties, Mr. Justice Black curred in the Mr. result of Justice O’Hara’s opinion. question becomes, then, whether the partici- the four out of seven abrogate pating Myers, im- rule *5 377 Mich 57.
Opinion by Souris, precedential weight munity actions, to tort carries including at the case bar. There for other like cases authority Michigan apparent in that does, it that participating Justices, of a made of a decision the than full less even when preceden- regarded thereafter as of be Court, shall Dolph doctrine of stare decisis. force under the tial (1909), I acknowl- 158 Mich While v. Norton appears Dolph edge read, can be that the Case (1911), 164 Mich in Scott v. Sullivan to have been adding weight support the stare decisis 467, in participating four out seven Jus- to a decision eight-member Court, I do not believe that tices of an analysis. reading careful such a survives question Dolph arose whether v. Norton the In by the Court’s in that case was controlled decision Weller v. Wheelock in decision first Weller Case was submitted Mich 698. The January Before 10, on the Court resigned from the Mr. Justice therein, Carpenter, replacement, September 1908, his on Court November, Mr. not elected until Justice was Brooke, meantime, In on October Mich iii. the 1908. 154 reargued Court, v. to the Weller Wheeloch was only consisting Justices. Court’s then seven in was November decision Weller announced on Court, 1908. It was a four-to-three division of at which consisted seven reargued in In fol time the case was October. Boughner City (1909), Bay lowing year, v. upon the cast the Court doubt precedential weight given its earlier decision be in that received Weller, the decision case approval five less than Justices. 198,199. eight Dolph Norton, v. seven Jus-
Then, Dolph signed tices v. Opinion by ceding weight to Weller of stare decisis 422) language (p following : in the Wheelock being “All the time but there Justices, participated of Weller the decision seven, declaring ground good find Wheelock. *6 majority not shall be of a the decision in a case such establishing law, not decisis, the as as stare received particular only like for cases. for the case but other duty right to course, and the the remains, There of to be erroneous.” decisions found overrule quoted a discussion This statement followed short practice, by the its then current sanctioned Court of (PA 250), sitting by of for the statute panels of in five Justices and transaction of business calling for to the full Court resubmission of cases of origi- the whom the case whenever five Justices to nally practice resulting agree, the submitted were unable stated
(p 422)
expediting
“in
the business
securing,
desirable,
in
of the
what
the
Court and
majority
Judges.”
concurring opinion of a
of the
Dolph
majority’s
Norton,
the
v.
Thus,
pertinent,
than
insofar as here
for more
stands
majority
by a
a
reached
of
this:
decision is
When
Court,
the
of the
as the Court is constituted
decision, that
at the time the case is submitted for
decision
preceden-
be
thereafter is to
considered of
majority.
weight
by
the
decided
tial
as to
issues
Dolph
Arguably,
v. Norton could
be read mean
majority
by
a
that a decision made
majority
a
full
whether
the
Court
Justices,
by
weight
precedential
virtue of the doc-
not, is of
appears
the
decisis,
stare
to have been
trine of
Dolph
by
reading
v.
Norton
the Court
Scott
Furthermore, to be achieved decisis—stability doctrine stare law predictability—are more its concomitant tain far cer- achievement when full binding- itself to a of law Court commits on all other courts statement subject change in the State and upon by majority action thereafter further people Court, of the full themselves by legis- cases, stitutional in some amendment, or, relatively On lative action. those few occasionswhen upon agrees less than a of the full Court decision, the rationale for it seems desirable to me to question any by majority leave of law not resolved open Appeals Court of our our impression, trial courts to decide matter of as a first opinions discussions issue our divisive hopefully, providing, intellectual stimulus to our Similarly, bench and bar the lower courts. new appellate trial and court decisions on different but involving appealed issue, similar facts the same when *7 provide membership Court, to this would our an- opportunity contemplation other and, of the issue hopefully, majority for ultimate accord in its process, That resolution. it seems to conforms me, body whereby our common-law with tradition judicial developed case-by-case law is on a basis whereby and no issue resolved for the future until majority only long a court’s accord reaches and so majority as that court’s maintains that accord. foregoing agree considered, The views with Jus- majority eight- tice Black that while of this joined member Court Myers to reach decisional accord in County v. Genesee Auditor distinguished a of this Court, from a agree of the Justices, did not upon and, therefore, rationale'for decision de- our regarded preceden- be cision cannot as of tial force this case Keenan. Opinion by Souris,
Nor Iam able to agree that the Court now can give post ex Myers, facto, that precedential force which it did not achieve when we announced our decision in Myers in March of 1965. The effect of our de cision and opinions case Keenan, Ias understand them, is, therefore, while that, minority Justices would regard Lewis as been overruled as March of a ma M. jority (T. J.,C. and Kavanagh, Smith, that JJ.) agrees Lewis is over O’Hara, ruled at least as our decision today. The signifi cance this distinction in the fact that, lies in addi tion to all cases, only pending those claims counties for negligent injury which after arose commencement three-year limitat statutory1 ional period preceding our decision today to July 1,1965, the effective of PA date 170,2 rather than which those arose within the three-year to our period prior Myers, March of will be freed from the common-law defense of actions negligent injury, which defense we abrogate today by overruling Ijewis. {dissenting). When this case of Keenan Black, up 2d,
*8 came for discussion on March following oral that day, submission the writer suggested nature bootless of stalemated v. Genesee County Auditor, (signed released day Keenan) before submission of called for an order to rehear on motion of the Myers, Court, prior of more divisive for Keenan. resumption writing April was followed suggestion up, during in CLS currently, [101] [2] [1] CL etseq.). limitational CLS § 691.1401 et 609.13 period applicable § 600.5805 (Stat seq. Ann (Stat (Stat 1959 Cum Ann Ann [1965] ease 1962 Rev Supp Cum § 27.605). Supp § 27A.5805). is found 3.996 See, 377 Mich
Dissenting Opinion by Black, entry a formal session, motion for majority agree, A order. of the Justices did not however, so trifarious confronts the yet Court as some unknown tries now find some recordable reason for some result Keenan’s case. high profession
It is time that the be informed as why to how and these occasional aberrations opin- do occur. When two or more discordant proposed, minority ions for one case are and some- times a of our have members idea, get respecting signature can no information, in- tention of other members the Court. The Court by long proceeds play—on opinion day— tradition poker game. a sort of showdown knows, one as separate opinions passed are our around signature, principle ference table for is to totted what cause or prevail principle due to and what or cause is due respective signatures fail. And when the are up signed opinions and the are sent to the opinions (Myers regularly clerk, those an ex- ample) profession wondering leave members of the they whether or Court have members become lightheaded. As for the result, stands, inexorable rehearing death taxes, unless a is ordered. Myers.
Look at Of the Court’s mem bership two Justices (O’Hara and T. M. Kavanagh) voted immunity cluding, extension of the Williams rule2 of non- political all
“to not in subdivisions,” departments, however, “The its State, agen commissions, boards, institutions, arms, supported cies.” No other Justice that. Two more finding Justices (Souris and Adams), themselves un [Justice able “subscribe his O’Hara’s] of the different because we take of views the recent 13.—Reporter. Justice Smith did not Williams City Detroit, participate in the 231.—-Reporter. Case, 375 Mich *9 67 County v. Black, Dissenting Opinion by joined “in cited,” the herein this decisions saying that the Justice reached result O’Hara,” Lewis v. was “to overrule Genesee “result” supported 110.” No other Justice Mich 370 more Justices that. Two (Dethmers Kelly) participant unreservedly. The seventh dissented result, He the writer. concurred the was opinion. That only, result-— of Justice O’Hara’s mountain’s be no other result the could there mighty groan summary in labor—was vacation judgment for the defendant entered proceedings.”3 “for further the case remand of two of more than want of concurrence For controlling point any the law, decided on only. Co. in Huron Land v. As said result above Baldwin, of Wait v. 60 Davison, 131 Mich 622: Mich only, the result concurred in but “Two Justices questioned they point or some other is this
whether not shown. Such opinions conclusive, not are unless opinions points justices concur, in what show upon they It evident that on dissent. is and some divided. what justices evenly points of the were not, therefore, feel bound We do 4 opinion.”; language Groening McCambridge, v. 282 and later Wright (23 170 v. 99 Mich LRA 135, 140, Wright, 5 196): authority language is not because it was “This by only by a and not ma- curred in two Justices upon our act of It remains here divided J., Justices.—Reporter. in an [4] [3] wrote In (December without opinion signed by Montgomery, Wright as follows: Michigan Supreme pending in separate concurring opinion; affecting vacating Wright, 1965) Long, J., the Genesee any : The the mentioned vested 5-member Court was joined by right circuit and Case Michigan summary judgment. J.—Reporter. while then has McGrath, action taken in Hooker, not composed Supreme open yet C. J., J.; Grant, been tried. Court was rehearing dissented relianee [Jam Mich by Black,
Dissenting Opinion jority Trombly, Buhler v. 139 Mich Court. Elder, 138.” 557, 568; Westbrook rule, I, The true which mean to least, follow, appears pp Am 2d, in 20 531: Courts, Jur equally “A decision court divided does not required precedent establish followed under to be decisis doctrine. And where the members stare *10 unanimously by majority of the or court vote reach by majority, agree a but even a on cannot, reasoning point the by is therefor, of established law precedent the decision and it cannot be covered by the stare decisis rule.” reheard, rewritten, should be and decided present anew to decision of the case. Since stubbornly question that is out the now, of allude support significance of to of affirmance two events which have occurred since was decided and present point up the case was submitted. Both developing prospective the need effect of a rule judiciary of law the decided to make has effective place existing concededly the and stead of and being settled of rule law; situation one where specificlitigant litigants upon of or class has relied litigant gone the former rule as such or class has pertinent legal equal about its affairs,6 or, conse quence, upon correspondingly has relied settled litigant gone rule of law as such or class has about prosecuting defending rights its our trial courts.
The first of these events was the enactment, and July (CL effect 1, 1965, 1964, of PA No 170 6 quotation City (Williams Detroit, See and comment 364 280, 281, 282) Mich at respect with paper of and to Justice Attorney then Michigan, General of wrote in 1960 for Michigan subject School Board Journal. The was insurance against could be upon 6, liability tort units, public whether funds expended acquire it, necessity to and the for reliance (Michigan defense Board School Journal [vol September Nos October, 1960). and 8] oe'Midland. Dissenting Opinion by Black, J." seq. [Stat Supp et Ann 1965 691.1401 Cum seg.]). 3.996(101) et title of the act reads: liability municipal uniform “An act to make corporations, political and subdivisions, State, engaged agencies departments, gov- when in a and its injuries property per- to function, ernmental sons caused by negligence; to define and limit such liability; liability and limit the to define State proprietary engaged function; in a to authorize when liability protect against purchase insurance the loss fending liability; provide arising for de- of such .out against public made claims officers certain sought damages paying or awarded and them; repeal parts certain acts acts.” Supreme is the United States Court’s
The second (June 1965), Walker Linkletter v. 2d 601), removing (85 14 L all ed S Ct US eminently when a decision to better, it is that doubt overrule agreed upon, that overrulement be' prospectively. made effective City Detroit, Mich accom- Williams v. may plished all have overlooked of us much *11 literally in 1961. That case thereof since decision respect legislature in- to act with to the drove justice governmental and unrestricted of unlimited liability, immunity and thus was Dean from tort moving plea legislative action F. Smith’s Allan fulfilled (48 plea, long That written in 1949 last. at 41), quoted length Williams, at L Eev Mich quot- siopra, Dean Smith’s conclusion is postulate emphasis again that, ed comprehensively having legislature this acted lawmaking, policy both and State of State field governed law as should be and Keenan Act No 170: date of said to the effective it stood only by “Adequate be achieved can reformation incinerator, Legislation, legislation. efficient like Dissenting Opinion J. by Black, destroy completely the decisions the effect of can immunity. perpetuate It the doctrine of which now ap- legislation the basic shift must be which will general problem; proach instead of exceptions, governmental general ceptions certain with responsibility limited ex- with exceptions are he de- Those is needed. dogma an outmoded termined not reference wrong,’ king reference to do no but ‘The can by granting im- be which will served social interests munity.” unwilling val- to reconsider our Since the Court writings prior to Case, ueless for the judg- to affirm the circuit court’s I case, vote the defendant ment as entered favor of cause county of Midland. {dissenting). For reasons stated Dethmers, opinion Myers
my dissenting v. Genesee and favor also dissent here Auditor, 375 Mich summary judgment for defendant affirmance of the in the court entered below. concurred with J., Dethmers,
Kelly,