PICHETTE v MANISTIQUE PUBLIC SCHOOLS
Docket No. 16384
50 Mich App 770
December 6, 1973
OPINION OF THE COURT
1. NEGLIGENCE—GOVERNMENTAL IMMUNITY—WAIVER—LIABILITY—INSURANCE—STATUTES.
Immunity from tort liability for negligence of governmental agencies engaged in the exercise or discharge of a governmental function is not waived by the purchase of general liability insurance (
2. NEGLIGENCE—TORT LIABILITY—GOVERNMENTAL AGENCIES—PUBLIC BUILDING—STATUTES.
A slide on a school playground, even though anchored in concrete, is not a public building within the contemplation of the statute providing that governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building (
REFERENCES FOR POINTS IN HEADNOTES
[1] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 57, 58.
Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability. 68 ALR2d 1437.
[2, 4-7] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 155.
68 Am Jur 2d, Schools §§ 323-325.
Tort liability of public schools and institutions of higher learning for accidents occurring during use of premises and equipment for other than school purposes. 37 ALR3d 712.
Tort liability of public schools and institutions of higher learning for injuries due to condition of grounds, walks, and playgrounds. 37 ALR3d 738.
Tort liability of public schools and institutions of higher learning for accidents due to condition of buildings or equipment. 34 ALR3d 1166.
Tort liability of public schools and institutions of higher learning. 86 ALR2d 489.
[3] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 60.
Municipal immunity from liability for torts, 60 ALR2d 1198.
A school district which maintained a school playground from which it received no corporate benefits and derived no pecuniary profit was engaged in the exercise or discharge of a govеrnmental function and not in a proprietary function and is immune from tort liability by explicit legislative declaration (
Dissent by HOLBROOK, P. J.
4. SCHOOLS AND SCHOOL DISTRICTS—NEGLIGENCE—IMMUNITY—GOVERNMENTAL FUNCTIONS—VACATION PERIODS.
Immunity from tort liability is not available to a school district for an accident and injury on a slide on its playground occurring when it was not operating the school for educational purposes due to the official suspension of the school year for an extended vacation period.
5. SCHOOLS AND SCHOOL DISTRICTS—NEGLIGENCE—IMMUNITY—DEFENSES—GOVERNMENTAL FUNCTIONS—SUMMER VACATIONS.
A child who was injured on a school playground during the summer vacation period when the school was closed should be allowed to show that he was injured during a period when the educational function of the school district had been officially susрended by the appropriate school authority, and if such proof is presented, the defendant school district should thereafter be precluded the claim of governmental immunity as a defense (
6. SCHOOLS AND SCHOOL DISTRICTS—PLAYGROUNDS—PUBLIC BUILDINGS—GOVERNMENTAL IMMUNITY—CONSTITUTIONAL LAW—EQUAL PROTECTION—STATUTES.
Allowing a remedy to an injured victim of a defect in equipment permanently affixed in a public building while not allowing a remedy to an injured victim of a defect in equipment permanently affixed outside the public building but on public land, is a distinction between classes of victims totally without rational foundation and is constitutionally infirm on equal protection grounds; the definition of a public building in the statute providing that governmental agencies are liable for injury and prоperty damage resulting from a dangerous or defective condition of a public building should be expanded to include the immediate outside physical environs owned, controlled and considered a necessary part of the governmental function of the
7. SCHOOLS AND SCHOOL DISTRICTS—GOVERNMENTAL IMMUNITY—CONSTITUTIONAL LAW—EQUAL PROTECTION.
The doctrine of governmental immunity, except in the area of discretionary action by government officials, contradicts the democratic view of the nature of responsible governments, violates the maxim that everyone shall have a remedy for an injury done to his person or property and is questionable from an equal protection standpoint by creating distinctions between persons who are injured by private persons and those injured by agents of the state, and between those entitled to sue the state because of exceptions carved out by the Legislature and those not so entitled; the doctrine has outlived its usefulness, but if it is to be nullified nullification must come from either the Supreme Court or the Legislature (
Appeal from Schoolcraft, William F. Hood, J. Submitted Division 3 October 5, 1973, at Marquette. (Docket No. 16384.) Decided December 6, 1973. Leave to appeal applied for.
Complaint by Louis Pichette for himself and as next friend of Jeffrey Pichette against Mаnistique Public Schools for injuries resulting from negligence. Summary judgment for defendant. Plaintiff appeals. Affirmed.
Nino E. Green, for plaintiff.
Hansley, Neiman, Peterson & Beauchamp, for defendant.
Before: HOLBROOK, P. J., and BASHARA and O‘HARA,* JJ.
* Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to
The case arises out of an injury to a minor plaintiff who was using a slide in the defendant‘s playground which was immediately adjacent to the school proper. The record rests in part upon a stipulation of fact, and in part upon the testimonial record. The child was seriously and painfully injured. It cannot be gainsaid that absent the doctrine of governmental immunity defendant might well have been subject to a summary judgment against it on the question of liability, leaving only the assessment of damages to the jury. Here is what happened.
The minor‘s parents were visiting in Manistique, a charming community in the Upper Peninsula nestled tight on the shore of Lake Michigan. The plaintiff‘s injury occurred on July 17, 1971. The defendant school was closed for the summer vacation. No classes were being conducted. The playground was unattended, unfenced, and completely accessible. The child was not a trespasser. The doctrine of attractive nuisance is inapplicable. Plaintiff was some 11 or 12 years old when injured. He climbed up the slide and slid down in the fashion in which the slide would be expected to be used. The sideboards of the slide were wooden, attesting to its venerable vintage. They were in disrepair, with ragged slivers projecting. Plaintiff sliding down, caught an 11-inch sliver in his thigh. He was rushed to the hospital. Emergency surgery was required to remove the sliver. The treating physician, with commendable and
The trial judge favored us with a terse but comprehensive written opinion. He found first that conducting a school is a governmental function. He pointed out that under the traditional tests the maintenance of the playground by the school was not proprietary in nature because it was not conducted for profit or for the school‘s private advantage or emolument. He held that the purchase of public liability insurance by the school did not constitute a waiver of any of its defenses under the governmental immunity doctrine for the simple reason that the Legislature by statute said so.3 Finally, he found that the slide, though anchored to the realty by concrete, was not a “building” within the contemplation of the statute4 and thus no exception to the shield of governmental immunity. He faced and answered every basis for recovery by plaintiff save one which we will discuss in detail later herein.
The controlling statutory enactment provides:
“Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.”
MCLA 691.1407 ; MSA 3.996(107).
The other applicable statutory excerpt here involved reads:
“The existence of any policy of insurance indemnifying any governmental agency against liability for damages is not a waiver of any defense otherwise available to the governmental agency in the defense of the claim.”
MCLA 691.1409 ; MSA 3.996(109).
We will address ourselves to the grounds of appeal asserted. We do not treat them in the order chosen by plaintiff in his brief because some call for more decisional discussion than others. We note at this point also that there is no useful service to trial bench or bar by launching into an historical analysis of opinions of by-gone days dealing with the turbulent course of governmental immunity in this state. We take the law as we find it today and leave the discussion of “trends” and legal-philosophical preferences to jurisprudential academia and our Supreme Court. Such we think is the proper role of an intermediate appellate court in situations where clear statutоry enactments (not unconstitutional) and decisions of the Supreme Court prevail. This irrespective of our own views to the contrary.
So we take up the specifications of error. The first one we discuss is a two-in-one question. First, says plaintiff, if we hold that the defense of governmental immunity is not waived by the purchase of general liability insurance, then in that event, defendant‘s employees are liable for their own negligent acts dehors the shield of immunity.
It seems to us that the stated question contains a non sequitur. We are unable to relate part one causally or sequentially to part two. We answer thus.
As to part one, no, defendant did not waive any immunity by the purchase of liability insurance because the statute says so in languаge so clear and unequivocal that discussion is not warranted.
We reject plaintiff‘s argument that the slide in question was a “building” within the statutory exemptions. We read this exemption to mean that in the present-day complex relationshiр between citizens and governmental agencies the citizen must of necessity go into public buildings for an infinity of reasons. He must do so to get a permit to put an addition on his house, to license his dog, to pay certain of his tax bills, even in some cases to build a bonfire in his backyard. This, we think, is the reason the Legislature required that public buildings be safely maintained. We do not believe that in the usual commonly accepted sense of the term a slide in a playground, anchored in concrete or not, is a public “building“, statutorily speaking, and we so hold.
Now comes the most complex of the assignments of error and the one most difficult of solution. Plaintiff contends that the operation of a school is undoubtedly a governmental function. However, he argues the maintenance of a playground in vacation periods when no classes are in session and no enrolled students are using the playground as an incident to the regular school curriculum for physical training or recreation, is not. As a subdivision of this argument plaintiff urges that there is nothing sacrosanct about the traditional division of the activities of an agency of the state into
Second, plaintiff asserts that because classes had been suspended completely for the summer vacation, not to resume until fall, the school could not be exercising a governmental function because it was not functioning at all. In support of both contentions plaintiff adverts to statutes, to case law, and to learned law review articles. The argument cannot be taken lightly. In Daszkiewicz v Board of Education, 301 Mich 212, 223; 3 NW 2d 71, 75-76 (1942), the formula for ascertaining whether a particular function is governmental or proprietary is stated thus:
“The test for determining whether a particular activity engaged in by a public corporation is purely a governmentаl function or is proprietary in nature is stated in Gunther v Cheboygan County Road Commissioners, 225 Mich 619, 621; 196 NW 386, 387 (1923), as follows:
“‘The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.‘”5
The test is sound enough. The question is whether it is comprehensive enough. Is there indeed, as plaintiff claims, something in between? The test has two components. One is the presence of the common good of all. The other is the absence of special corporate benefit or pecuniary profit to the governmental agency involved.
It is manifest that defendant school received no corporate benefit from the maintenance of the school playground. It is equally manifest that it derived no pecuniary profit from the operation thereof. By any test of which we are aware, defendant was not engaged in a proprietary function.
What then of the governmental function test. Was the maintenance of the playground for the common good? We think it was. The question plaintiff raises, however, is “common” to and for whom. In this case should it be limited to the Manistique school district, whatever that includes? Or should it include the residents of Ferndale, 400 odd miles away? If the playground was maintained for the common good of Manistique and its environs, how does that “common good” extend to plaintiff in this case?
Because of the legislative-judicial badminton game with governmental immunity as the shuttle-
We think we know what the Legislature meant when it said quite explicitly and clearly “except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental funсtion“.
We think it meant that the defendant school was immune from suits against it for tortious acts as long as it was not doing something for its own corporate benefit or for its pecuniary profit. The defendant was doing neither here.
This is not to say that we don‘t think it is a crying shame that a blameless youngster is seriously injured on a manifestly negligently maintained slide. This the more so because he was using it almost as an invitee and in the manner in
This panel is, however, painfully aware that to permit the suit to be maintained to judgment we would have to strike down two statutes that seem to us to be within the constitutional competence of the Legislature to enact. Otherwise we have to carve out an exception that would be more sympathetic than real. With recorded reluctance we affirm. No costs. The case involves the construction of a statute.
BASHARA, J., concurred.
HOLBROOK, P. J. (dissenting). This writer must dissent. Disagreement with the majority opinion is founded on two bases: (1)
I
Though the doctrine of governmental immunity remains a valid defense to a charge of negligence levied against a governmental agent or agency, the doctrine is not applicable here. Contrary to the opinion of the majority, this writer believes that the statute under which governmental immunity is claimed is by its own language inapplicable to the facts of this case.
“Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
The key words of the statute are “engaged in the exercise or discharge of a governmental function“. These are active words, denoting the actual operation of a governmental agency. The test for the existence of a governmental function was stated in Gunther v Cheboygan County Road Commissioners, 225 Mich 619, 621; 196 NW 386, 387 (1923):
“The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no
liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.‘” (Quoting from Bolster v City of Lawrence, 225 Mass 387; 114 NE 722; LRA 1917B, 1285.) (Emphasis supplied).
See, also, Daszkiewicz v Detroit Board of Education, 301 Mich 212; 3 NW2d 71 (1942). When the school district is not acting, that is, is not operating the school for educational purposes due to the official suspension of the school year for an extended vacation period, the school district is not “exercising or discharging” its governmental function of education. Under this view, plaintiff should be allowed to show that he was injured during a period when the educational function of the schоol district had been officially suspended by the appropriate school authority. If such proof is presented, the defendant should thereafter be precluded the use of governmental immunity as a defense. This writer recognizes that an abrogation of the doctrine of governmental immunity in this way may seem contrived. Perhaps a fictional elaboration of the facts of this case would allay such skepticism. Posit a situation where at the last school district meeting before summer vacation begins the Manistique school board decided to close permanently the school building outside of which the plaintiff received his injury. Were the building locked up in June, and plaintiff injured in July, would it not be reasonable to say that since the grounds had been officially abandoned in June, the school district was no longer engaged in the governmental function of education on the school grounds, and therefore governmental immunity was not a defense to an action in negligence brought by the plaintiffs? What if the school building and grounds were permanently closed in June, but the school district
II
The second ground for dissenting from the majority‘s affirmation of the trial court‘s decision is constitutionally based. Had plaintiff been injured on equipment permanently affixed inside the school building, the defendant could not have used the defense of governmental immunity because of
“Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and рroperty damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.” (Emphasis supplied.)
Defects “of” a building mean defects in equipment permanently affixed “in” the building, according to Green v Department of Corrections, 386 Mich 459;
Therefore, on either the first or second ground enunciated above, this writer would reverse the order of the trial judge granting summary judgment to the defendant and allow plaintiffs to proceed with their suit.
III
Governmental immunity is derivative of the feudal idea that “the king can do no wrong“. Prosser, Torts (3d ed), § 125, p 996. Dean Prosser, in his brief historical analysis of the doctrine of governmental immunity, cogently expresses the anomaly of the doctrine within the American system of jurisprudence, supra, at p 997: “Just how this feudal and monarchistic doctrine ever got itself translated into the law of the new and belligerently democratic republic in America is today a bit hard to understand“. We are no longer a new republic, but still belligerently democratic
Governmental immunity is an affront to the principle that the American government was created for the people. It contradicts the democratic view of the nature of responsible governments:
“‘States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right and wrong inasmuch as they are collections of individuals each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life.‘” 1 Kent‘s Comm 3. 18 McQuillin, Municipal Corporations (3d ed), § 53.01a, p 106.
Moreover, “Immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution,” which care and caution is owed by the government to its people. Rabon v Rowan Memorial Hospital, Inc., 269 NC 1, 13; 152 SE2d 485, 493 (1967). Governmental immunity also violates the common law maxim that everyone shall have a remedy for an injury done to his person or property. See the discussion at 57 ALR 419; but cf. Firemen‘s Ins Co of Newark, NJ v Washburn County, 2 Wis 2d 214; 85 NW2d 840 (1957).
Governmental immunity is also a questionable doctrine from an equal protection standpoint.
“A distinction so based is capricious and represents no policy but an arbitrary attempt to lift state responsibility without reason. In such circumstances the permissible line between reasonable classification or a rational policy, and a denial of equal protection is crossed. This fatally offends the Constitution.”
This writer agrees with the basic principle upon which the Krause decision was rendered. Unfortunately, Krause represents a case with a particularly weak set of facts, since there the governor was charged with negligently calling out the national guard during the Kent State University confrontation which resulted in the death of four Kent State students. Government officials, with impоrtant discretionary functions or duties, could not operate either efficiently or effectively if their discretionary acts were subject to suits on grounds of negligence or otherwise. Thus, while the Krause Court correctly noted that the general doctrine of governmental immunity violated equal protection guarantees, it overextended the principle to abrogate the special freedom from liability enjoyed by government officials when performing discretionary functions. This freedom is not derivative from the common-law doctrine of sovereign immunity, whose historical origin is in non-democratic governmental institutions, but rather is fundamental to the very character of our demoсratic institutions and elective positions, which are made re-
It is notable, in passing, that the distinction that would preserve the defense of governmental immunity in the area of discretionary action by governmental officials has been made part of Federal law.
“The provisions of this chapter and section 1346(b) of this title shall not apply to—
“(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
For recent cases interpreting this statutory distinc-
Of course, there are a number of arguments рut forward as justification for the doctrine of governmental immunity: (1) it protects the state against nuisance suits; (2) it prevents the depletion of the tax fund; (3) it prevents the disruption of financial planning within the state government; and (4) it is a useful doctrine for “public policy” reasons. The availability of insurance at nominal public costs (compared to the expense an individual tort victim must bear when the state is the tortfeasor) undermines the continuing validity of the first three above reasons. In earlier days insurance was as rare as contact with the government, and this perhaps justified the use of governmental immunity as a defense. Insurance, public and private, is now a major part of modern life, as is daily contact with government employees and public property. Correspondingly, the rationale for governmental immunity as a defense has disappeared. The fourth argument made on behalf of the defense of governmental immunity, that of “public policy“, is answered curtly and persuasively by Prosser, supra, at 1001, 1004-1005:
“The immunity is said to rest upon public policy; the absurdity of a wrong committed by an entire people; the idea that whatever the state does must be lawful, which has replaced the king who can do no wrong; the very dubious theory that an agent of the state is always outside of the scope of his authority and employment
when he commits any wrongful act; reluctance to divert public funds to compensate for private injuries; and the inconvenience and embarrassment which would descend upon the government if it should be subject to such liability.
* * *
“Virtually all writers have agreed that no one of these reasons for denying liability is sound, and all of them can be found to have been rejected at one time or another in the decided cases. The current of criticism has been that it is better that the losses due to tortious conduct should fall upon the municipality rather than the injured individual, and that the torts of public employees are properly to be regarded, as in other cases of vicarious liability, as a cost of the administration of government, which should be distributed by taxes to the public.”
Despite this writer‘s belief that the doctrine of governmental immunity has outlived its usefulness and has lost its rationale, if it is to be nullified nullification must come from either the Supreme Court or the Legislature. The judicial history of the doctrine in this state prevents this Court from acting on its own.