Pichette v. Manistique Public Schools

403 Mich 268 268 MANISTIQUE PUBLIC SCHOOLS v PICHETTE 1). (Calendar 6, Argued No. October Docket No. 55472. Decided 30, August 1978. Pichette, Pichette, Jeffrey friend of himself and as next Louis for Jeffrey minor, negligence injuries brought for sus- action adjacent playground the Lincoln Elemen- tained on a slide defendant, Manistique The tary Public Schools. School Hood, J., Court, granted F. sum- William Schoolcraft Circuit mary judgment tort the defendant under for liability of a school act because he found and that the slide was function was a Appeals, "building” Court of statute. The under the not a (D. Holbrook, P.J., O’Hara, dissenting), JJ. E. Bashara and 16384). (Docket appeal. Held: Plaintiffs No. affirmed Appeals reversed and the case of The decision of the Court proceedings. further to the trial court for is remanded slide on the defendant’s attached [4, [4, [4, [4, [5, [6, ^{[7] [8] [11]} [1-3] 57 Am 8] 5] 8] 57 Am Jur 10] 5, 9] 38 et public et 342 et learning seq., 150-155. 58. playgrounds. 37 ALR3d 738. 68. §§ 150-155. 57 Am Jur 57 Am Tort 57 Am Jur Modern 8] Am Jur seq., 42 et 57 Am Jur 150-155. 39 Am Jur Tort seq., Jur seq. schools Jur status of doctrine 62, 2d, liability 2d, 2d, References 2d, Municipal, 2d, seq. 2d, injuries 73 et and Municipal, Municipal, 2d, Highways, Municipal, 2d, Municipal, Municipal, Municipal institutions seq. of due public schools. for Points School, School, School, School, School, to condition School, Streets, schools sovereign School, 86 ALR2d higher and State Tort and State Tort and State and State in Headnotes and State Tort State Tort and institutions and and learning. 489. Bridges grounds, State Tort Tort Tort Liability 33 ALR3d Liability Liability Liability Liability Liability §§ as 103 et walks, applied of Liability § higher §§ §§ §§ §§ 703. §§ seq., and 65- 62, 21, et "public buildings” exception within the comes governmental immunity statute. joined by Kavanagh Justice Chief Justice Levin, Justice wrote: question determining govern- 1. The threshold whether a agency liability particu- whether a ment is immune tort is engaged activity agency one in which the is "in the lar is discharge of exercise or a function”. Since the judicial origin Legislature has used a term of without further definition, upon scope the the Court to define of it is incumbent However, term. this does not mean that with the enact- the liability Legislature ment of the tort statute the governmental immunity it froze for all time state as was then recognized by case law. great expansion governmental activity in 2. With the many provided by years, there are services local and recent agencies essentially governmental state which are not in na- Immunity policy question determining ture. has become a government to act or to remain where the should be able passive compensating adversely by without citizens affected the policy Public dictates a narrow construction of the decision. term, keeping ability government in mind the fact that the govern seriously jeopardized if the to would be exercise governmental policy in the formulation of were discretion However, support exposed liability. not the to tort this does operation governmental agencies conclusion that the would making by them liable for their tortious acts or be undermined operation. omissions in the course of their "governmental immunity 3. The test of function” under the phrased specific statute must be in terms of the nature of the "governmental” function. A function is not in this context particular activity entails is unless the this function having uniquely associated with those activities no common impera- analogy private they the in the sector because reflect right government, implementation tive element in of its the Thus, govern. only duty government to a is immune when which, planning carrying it due to their out duties peculiar nature, government. only be done The deter- can precise allegedly giving to mination is whether the action rise governing. liability generis governmental essence to is sui —of case, providing for the 4. In the instant the defendant was Although playground. the defendant’s decision of a operate protected by would be escape liability immunity, not the defendant should negligent employees operation of acts or omissions of its in the 403 Mich 268 engaged playground. "in The defendant was not the exer- governmental function”. or of a cise The slide located on defendant’s 5. attached "public buildings” within the also comes exception Legisla- statute. The injury by protect general public from ture intended to agencies duty imposing upon governmental maintain public places, they public highways or safe whether are buildings. importance that the was not itself It is of little slide premises public building public building, on of a or was building. Jeffrey would rather than inside the not dangerous condition led to his have encountered the injuries but for the existence of the defendant’s school. To bar premises plaintiffs’ recovery Jeffrey injured on the because public building building rather than inside the would have logic justice. no either in basis purchase policy by govern- 6. The insurance not constitute a waiver of the defense of mental does governmental immunity. position made its on abundantly this issue clear the enactment of a statute so providing. Jr., Moody, agreed Justice Blair that the slide in the instant "public buildings” exception within the of the case comes governmental liability government tort statute and that a agency immunity by purchasing policy does not waive its tort a general liability necessary of insurance. He wrote that it is not question engaged to of defendant in reach the whether the was function, governmental accordingly, a and that the case need not be decided on that basis. agreed Fitzgerald Justice Williams with Justice in the rea- soning and result that the slide in the instant case comes "public governmental buildings” exception

within the of the governmental liability tort statute and does not that a general immunity by purchasing policy its tort waive of However, liability disagreed Fitzger- insurance. he with Justice reasoning ald’s and the en- result on whether defendant was gaged governmental in a function. recognized Ryan, concurring, Justice wrote that case law has operation playground governmental the of a school is a governmental agencies and function because school districts are nature, governmental the their and that functions are operation playground the "common of a school comes within good governmental The of all” definition of function. defendant engaged governmental or the exercise However, operation playground. function in the of its the Legislature, enacting exception by public building the to the act, governmental liability impose duty tort intended on to. governmental agencies repair only public to and maintain not buildings, upon premises but the also all those constructions building, adjacent to whether to the the attached unattached structure, purpose facilitating main which exist for the principal enjoyment duty repair use and edifice. This limited, therefore, and maintenance is and does not to extend "public places”; finding legislative impose all intent to liability upon governmental agencies for their failure to main- public places” necessary tain "safe is not to resolve this case speaks broadly. much A and too slide affixed to a premises adjacent on the to the school building purpose facilitating for the exists the use and enjoyment building public of that and is thus within the building exception. Consequently, may the defendant be liable injuries negligence failing properly for caused its repair and maintain the slide. Coleman, agreed dissenting part, Justice with Justice Fitzgerald purchase liability insurance does not immunity. constitute a waiver of the defense of agreed Ryan But she with Justice that the of a school disagreed is a function. She also with Fitzgerald’s Legislature Justice conclusion that the intended in excepting negligent highways maintenance of and build- ings except "public places” governmental immunity. all from common, "highways” "buildings” The words have histori- meanings apply cal which the intended to in carv- ing assumption statutory governmen- out this immunity. attempted tal The Court has to circumvent statute, effect, or to eliminate it in creating exceptions statute, example by common-law redefining "building”. problem the word is that the Court proposed remodeling statutory does not know where the will lead, may attractive as it be. the Court with The more tinkers present deeper digs immunity, law of it litigation legal itself into the mire of unknown and into employ judicial social hazards. It is time to restraint and encourage Legislature present course of examine and, governmental immunity goal revising towards the at a minimum, clarifying the statutes. 403 Mich 268

Opinion by Fitzgerald, Immunity — — — 1. States Torts Governmental Governmental Function. question determining government The threshold whether a liability particular is immune from tort is whether a activity government agency engaged is one in which a is in the (MCL discharge "governmental exercise or of a function” 691.1407; 3.996[107]). MSA — — Immunity — 2. States Torts Governmental Governmental — Function Common Law. upon It scope "govern- is incumbent the Court to deñne the of a Legislature mental function” where the used that term of judicial origin deñnition; however, without further this does not mean that with the enactment of the tort liabil- ity act froze all time the state (MCL recognized by 691.1407; as it was then case law 3.996[107j). MSA — — Immunity — 3. States Torts Governmental Governmental — Function Words and Phrases. particular activity "Governmental function” means that uniquely having associated with those activities no common analogy private . they impera- in the sector because reflect the government, implementation tive element right of its duty govern; government only is immune when it is planning which, carrying peculiar out duties due to their nature, only by government, i.e., can be done the action is sui (MCL generis governmental 691.1407; 3.996[107j). MSA — Immunity — 4. Schools and School Districts Governmental Playgrounds. — Governmental Function engaged A school district was not in the exercise or meaning function within the of the statute providing operation public playground; for the school escape liability therefore the school district should not for the negligent employees acts or omissions of its in the (MCL 691.1407; 3.996[107J). MSA — Immunity — 5. Schools and School Districts Governmental Buildings. Public A play- attached slide located on a ground public buildings exception comes within the (MCL tort statute 3.996[106]). Immunity — — Highways — — 6. States Torts Governmental Buildings. Public Legislature, providing exceptions general statutory- The in grant governmental immunity, protect gen- intended to public imposing injury by upon governmental eral agen- duty public places, cies the to maintain safe whether such (MCL places public highways public buildings 691.1406, are 691.1407; 3.996[106],3.996[107]). MSA —(cid:127) — Immunity — — 7. States Torts Governmental Waiver Insur- ance. purchase general liability policy by govern- The insurance ment does not constitute waiver of the defense of (MCL governmental immunity 691.1409; 3.996[109]). MSA Concurring Opinion Moody, Jr., Blair J.

See headnotes 5-7.

Concurring Opinion by Williams, J.

See headnotes 5-7.

Concurring Opinion by Ryan, J.

See headnote 7. Immunity — — 8. Schools and School Districts Governmental Playgrounds. — Governmental Function supports finding Case law that a school district is immune from liability operation playground in a school because the nature, functions of school districts are also the of a school comes within the good function”; "governmental "common of all” definition of liability negli- the school district is immune from for its tort gence maintaining playground equipment school unless it public building exception comes within the of the (MCL 691.1406, liability 3.996[106], tort act MSA 3.996[107]). Immunity — — 9. Schools and School Districts Governmental Buildings. — Governmental Function Public public A slide aíñxed to a on the premises adjacent building purpose to the school exists for the facilitating enjoyment building the use and and is of that 403 Mich J. building exception thus within the (MCL691.1406; 3.996[106]). tort act Dissenting Opinion Coleman, Part 7 and 8. See headnotes Immunity — Highways — — — Torts Governmental

10. States Buidings — Words and Phrases. Public excepting negligent highways maintenance of immunity public buildings statutory governmental and from except "public places”; thereby did not intend all the words common, "highways” "buildings" meanings have historical carving Legislature apply in out which the intended to this statutory governmental immunity assumption liability of (MCL 691.1406; 3.996[106]). MSA Immunity — — — — 11. States Torts Governmental Statutes Common Law. encouarge employ judicial The courts should restraint and the governmental present to examine the course and, minimum, goal revising immunity towards at a the statutes, clarifying attempting the rather than to circumvent statute, effect, governmental or to eliminate it in statute, by creating exceptions example common-law for (MCL 691.1406; redeñning "building” the word 3.996[106]). Renner, Green, Weisse, Rettig, Rademacher & Clark plaintiffs. Neiman, Peterson,

Hansley, Beauchamp & Stu- P.C., pak, for defendant. Pichette, J. Jeffrey 12-year-old,

Fitzgerald, 17, 1971, injured was on when he went down July on a of one of defendant’s playground slide schools. The unsupervised unfenced, disrepair. and the slide was in a state Manistique complaint against filed a

Plaintiffs seeking damages. Schools in circuit court Public granted Manistique court Public trial summary judgment, grounded Schools’ motion for Opinionby immunity. Appeals on The Court of affirmed. appeal:

Plaintiffs raise three issues on 1) playground by Whether the during school district summer recess consti- tutes "exercise or purposes immunity.

function” for 2) Whether a attached slide located on a comes within the statutory "public buildings” exception to the doc- immunity. trine of 3) purchase general Whether insurance constitutes a waiver of the defense of immunity. We reverse on the basis of the first and second issues and remand for trial.

I. Facts Michigan, Plaintiffs, Ferndale, residents of were vacationing Manistique July July 1971. On approximately p.m., plaintiff 17, 1971, at 5:30 Jef- frey playing Pichette was on defendant’s Lincoln playground. year School At that time of the the playground, school in was not session. The adjacent immediately school, was to the unat- was completely general tended and public. accessible to the Jeffrey up play- climbed a slide located on the ground and slid down a manner in which slides expected to be are used. The evidence that reveals approximately long the slide was and 10 feet high feet and was embedded in concrete. The slide was constructed with a metal bottom and two wooden siderails.

It is uncontroverted that the slide was old and that the wooden siderails were going Jeffrey, slide, rotten. while down the encoun- tered an 11-inch wooden sliver from siderail the 403 through his and went dislodged

which became hospital the local He rushed to right thigh. was to remove required was emergency surgery where understandably treating physician, the sliver. city the injury, such an summoned disturbed to inform operating room police hospital to the and injury them the circumstances be made inacces- that the slide request it repaired. until could be On sible the request police, at of the two evening, that the the slide. On the employees dismantled the removed to the following remnants were day city dump. 28, Pichette, 1972, plaintiffs Jeffrey April

On friend, minor, Pichette, his next Louis County filed suit in Schoolcraft Louis against Manistique Public Schools Circuit Court ad- resulting negligence. injuries for While mitting negligence permitting physical its failing condition of the slide to deteriorate playground, of the defend- provide supervision 1972, ant, 25, a motion for sum- August on filed with mary judgment in accordance GCR 117.2(1), it engaged based on the claim that thus function and exercise 691.1407; MSA liability. in tort MCL immune 3.996(107). granting summary

In defendant’s motion the trial judgment, judge found function, playground was not come within attached slide did governmen- "public exception of the building” statute, 691.1406; tal 3.996(106), of liabil- purchase and that defendant’s did constitute a waiver ity insurance not A divided immunity. defense of Decern- Appeals affirmed on panel Court Opinion 6, 1973. 50 Mich App ber 213 NW2d 784 (1973). to appeal granted Leave by this Court 1977. February on 399 Mich 840

II. Issues A.

The controlling provision for statutory govern- mental is contained in immunity 691.1407; MCL 3.996(107). MSA This section reads: "Except provided, in this govern- as act otherwise all agencies mental shall be immune from tort liability in government agency engaged all cases wherein the is the exercise or function. Except herein, provided as otherwise this act shall not modifying restricting be construed as immunity heretofore, state from tort as it existed added.) (Emphasis immunity is affirmed.” general This grant immunity "arising does not apply per- actions out of the function”, formance of a proprietary which is de- fined as "any activity which is conducted primarily purpose for the of producing profit pecuniary state, however, excluding, any activity nor- mally supported 691.1413; taxes or fees”. MCL 3.996(113). MSA The governmental stat- ute also exceptions general contains certain grant of immunity.1 then, question determining threshold

whether is immune agency tort liability, is whether or not a case is particular one in government which a "engaged exceptions following: 691.1402; These include the MCL MSA 3.996(102), keep travel; highways failure to fit safe for MCL 691.1405; 3.996(105), vehicles; negligent operation MSA of motor 3.996(106), buildings. dangerous and defective 403 Mich 268 Fitzgerald, J. discharge governmental or

the exercise func- tion”. "proprietary

However, unlike the term func- "governmental tion”, the term function” is no- where defined in the statute. As Justice Williams explained Dep’t Highways, in Thomas v of State (1976), 1, 9; 398 Mich 247 NW2d " 'Governmental function’ is a term of art which by has been used the courts of this state to de- government scribe those activities of which due to give their nature should not rise to at common law”. Legislature judicial

Since the has used a term of origin definition, without further we find that it is upon scope incumbent this Court to define the governmental "in the exercise or accept function”. We cannot the notion that with governmental immunity the enactment of the stat- Legislature ute, "froze” for all time state immunity recognized as it was then by case law.2 past, analysis question

In the of whether particular governmental activity is immune fol- assumption engaged activity lowed that an by governmental is either an immune "governmental "propri- function” or a nonimmune etary depending activity function”, on whether the Kavanagh Thomas, supra, 17, In fn Chief Justice and I stated: not, however, "We do construe this sentence second sentence of [the 3.996(107)] to be an 'affirmation’ of case-law precedent preserving immunity for all time state here- recognized by tofore to assume that of of it case law. To read it in such a manner would be recognize failed to the evolution precedent exclusively judicial case-law committed to the branch government. We rather find that the last sentence of the section immunity was intended that act was not to be alter, way by express construed in such a as to unless so indicated statutory provision, immunity recognized by state as precedent existing precedent case-law at the time of enactment. Such longer light City no has force in of our decision in Pittman v (1976).” Taylor, 41; 398 Mich 247 NW2d 512 Opinion is for the "common good” special corporate benefit or pecuniary profit.3 See Gunther v Cheboy gan County Commissioners, Road 196 NW 386

However, a review of the case law Michigan reveals that except to the extent has statute, been waived by all virtually activities engaged in by governmental agencies have been "governmental” considered unless pretense some could be labeling found for an activity "proprie- tary”.4 Following this analysis, an injured party’s right of would recovery depend on the solely iden- tortfeasor, tity rather than on the nature of being function performed. We cannot accept such a broad definition of "exercise or governmental function” —a definition which for all practical purposes has no substantive meaning. great With the expansion in activity recent years, there are many provided services by agencies local and state which are not essentially nature. agree

We with Professor Cooperrider’s analysis that:

" 'Immunity,’ longer logical no a necessity, has be- 3 Culp [governmental Professor Kenneth Davis notes that "[t]he proprietary] probably unsatisfactory distinction is one of the most law, only among known to the for it has caused confusion not jurisdictions always jurisdiction”. various Davis, but almost within each 3 Treatise, 25.07, p Lykins Administrative Law 460. See v § Peoples (ED Community Mich, Hospital, Supp 1973); Spencer 355 F 52 Columbia, 48; Hospital App v General of Dist’ of 138 DC 425 F2d US (1969); Elgin Columbia, 116; App 479 F2d v Dist’ of 119 US DC 337 (1964). 4 Hodgins (1909), Bay City, In 156 Mich 121 NW 274 this negligence unfortunate maintaining distinction led this Court to find that lighting city wires for made homes defendant liable but negligence maintaining lighting public wires streets build ings city maintaining did not. That a could be liable for one set of pole wires but not another set of wires on the same is illustrative of legal inevitably confusion to which this distinction leads. 403 'governmental policy question,

come a function’ designation may properly as a for situa- be understood government tions where the should be able to act or to passive compensating remain adversely without citizens species privilege affected the decision —a extend- ing policy to those instances where there are sound nonliability despite reasons for the existence of circum- subject nongovernmental stances that would ant defend- Court, liability.” Cooperrider, Legisla- The Michigan, Immunity ture and Governmental Tort LMich Rev we find that Accordingly, policy dictates a "in narrow construction the exercise or dis- charge function” contained in 3.996(107). We are mindful of government the fact ability govern seriously would be if the exercise of jeopardized discretion in the formulation pol- Indeed, were to tort icy exposed liability. as Profes- Culp sor Kenneth Davis has noted: city "A damage should not be liable for done ordinance, zoning necessarily reduces value property. of some Nor should the state be liable drug seller of a harmful prohibit- if it enacts a statute ing further drug, thereby destroying sale of the profitable Davis, business.” 3 Administrative Law Trea- tise, 25.11, p 484. § Nevertheless, we do not believe that the of agencies by would be undermined making those governmental agencies liable for their tortious acts or in the course omissions done of their operation. We reiterate Chief Justice what Kavanagh I, and with the of Justice Concurrence Highway Dep’t, Thomas v State said in Levin, supra, p 21: then, pur- 'governmental

"The test function’ for of Manistique Opinionby statute, phrased be poses terms clude context of the must specific the function. We con- of the nature of 'governmental’ a not this that function is particular activity the that this function unless with activities hav- uniquely is those entails ing associated private in the because analogy 'no common sector imperative government, element in the they reflect the Thus, duty implementation government carrying can governmental right govern’. of and to a its only planning when it and is immune is which, nature, peculiar due to their out duties by government. The mere fact only be done doing does a certain act not private 'governmental if a act a function’ make such corporation may undertake the same act. person or ques- Thus, by is not 'governmental function’ delineated activity or scope by of an undertaken of the broad tions may or insurance considerations which be financial governmental undertaking, by but rather indicative viewing ity, governmental allegedly giving rise to liabil- precise action generis sui determining whether such action is governing. Supervision to essence —of (as making opposed to decisions hospitals road construction as to whether road), operation to build a (as deciding opposed planning to or what and schools teach), subject opera- health services to offer or what tion and pools playgrounds within this definition. On pects to swimming supervision playgrounds (as opposed deciding operate whether such pools) or are not functions hand, the other certain as- executive, legislative, of the exercise of or very are judicial powers by their nature necessarily functions and removed from the undertak- omitted.) (Footnotes ings private of the sector.” foregoing, we in the instant In view find not Public Schools was "en- case gaged in the exercise meaning

function,” within the 3.996(107), opera- merely providing playground. decision to tion of While defendant’s upon Jeffrey operate Pi- protected govern- injured would be chette 403 Mich 268 Fitzgerald, Opinion by J. escape not defendant should immunity, mental of its acts or omissions negligent for the playground. in the of that employees operation B. even if in the alternative argue

Plaintiffs did of a school defendant’s govern- exercise or "the constitute immunity, purposes mental function” slide located on defendant’s attached "public build- comes with school immunity of the exception ings” 3.996(106). 691.1406; agree. We MCL MSA statute. 3.996(106) provides, per- part, as follows: tinent obligation repair agencies have

"Governmental buildings under their control when public and maintain public. Governmental by members of the open for use property bodily injury and dam- agencies are liable for resulting dangerous or defective condition age from a * * building *.” public of MCL concerning scope

Previous cases 3.996(106) provide us with 691.1406; MSA do not perma- determining whether guidance clear play- on a attached slide nently excep- buildings” the "public comes within ground A statute. tion to be door was found lock on a commode broken public building maintenance the defective Dist, App 14 Mich School v Clintondale Smith (1968). Likewise, door a defective 165 NW2d held to be within closing mechanism statutory exception in Jackson v Detroit Board of App 73; Education, 18 Mich NW2d Dep’t Corrections, 459; In v of 386 Mich 192 Green (1971), planing permanently 491 a installed NW2d parties apparently machine, which all conceded part defective, was considered was to be building purposes "public statutory of the buildings” exception. "mini-trampo However, a public building, way line” in a but in no attached alleged plaintiffs improp it, never to which to be erly negligently danger manufactured, erected, or ously maintained, was held not to be within the exception Cody Southfield-Lathrup in v School App Dist, 33; 25 Mich 181 NW2d 81 Lockaby Wayne App County, In both v 63 Mich (1975), gtd 185; 234 444 lv NW2d 400 Mich 814 (1977), Taylor, App 545; and 70 Mich Zawadzki (1976), Appeals the Court 246 NW2d held that, cases, on the facts of those the absence of equipment safety devices or did not constitute dangerous buildings or defective conditions of the Following analysis, this involved.5 Court of Appeals Schools, concluded Bush v Oscoda Area (1976), App gtd 72 Mich 250 NW2d 759 lv (1977), plaintiffs allegation Mich that that statutory duty defendant violated its to maintain repair public buildings properly and dismissed injury because resulted not from the absence 5 Lockaby plaintiff, jailed having In who had been and evaluated as problem”, segregated jail a "mental designed was confined in a in the ward problems allegedly for inmates with such and sustained injuries running majority serious into a wall. The Court provide padded a concluded that the failure cell did not create a dangerous meaning "public buildings” condition within the of the Zawadzki, exception immunity plain of the statute. In eye injury gymnasium in a tiff suffered an tennis ball hit rejected plaintiff’s argument screening when struck a adjacent defendant from the tennis court. The Court netting that the absence of or other dangerous between the courts constituted a or defective condition. 403 Mich but from the use to equipment devices or safety put.6 the classroom was case would have us find

Defendant the instant plaintiffs’ injuries it is not liable for under buildings” exception governmen- of the "public statute, since a at- tal is not itself building "according tached slide usage language”.7 approved common agreed with this Appeals analysis The Court of the statute: commonly the usual

"We do not believe playground, accepted sense of the term slide not, public 'building’, in concrete or is a anchored speaking, App so hold.” 50 statutorily 776. support argument

Further for defendant’s can Twp, found in Stanton v Garfield App be case, In 537; 255 NW2d 675 that the Court its Appeals, majority opinion on relying Pichette, argument rejected plaintiff’s danger to a premises adjacent public building ous should "public buildings” exception come within the statute. immunity the However, we find that such a construc- narrow "public buildings” exception tion of the conflicts 6 Bush, plaintiff injured by explosion an In was a classroom being laboratory wrote that which was used work. The Court "[rjather stating indicating inherently dangerous than facts an condi use, building contemplated complaint alleges tion of the for the the a even in a dangerous of classroom conduct which would be course properly equipped laboratory”. (opinion App by 72 Mich 699-700 J.). Peterson, 2.212(1) 8.3a; provides following MSA for the rule of statu tory construction: phrases construed and understood accord- "All words and shall be usage language; ing approved but technical to the common and acquired peculiar phrases, may as have a words and and such law, meaning appropriate according in the shall be construed and understood meaning.” peculiar appropriate to such Pichette Opinionby perceive purpose with what we to be the of MCL 3.996(106). pro- 691.1406; MSA We believe that viding exceptions general for the three grant contained in MCL 3.996(107), pro- the intended to general public injury by imposing tect upon governmental agencies duty maintain public places, places safe highways whether such are public buildings.

or Accordingly, importance it of we find little upon plaintiff in the slide the instant case injured public building was not itself or was premises public building on the of a rather than building. Jeffrey sure, inside the To be dangerous would not have encountered the condi- injuries tion which led to his but for the existence plaintiff recovery of defendant’s school. To bar injured by because he was a defective condition on premises public buiding, which were un- governmental entity, der the control of the rather building, than inside the would have no basis logic justice. either That such a narrow "public buildings” exception construction of the amply has no rational basis is demonstrated case at bar.

C. urge adopt Plaintiffs this Court to the rule that purchase general liability policy of insur- ance constitutes immunity. waiver of the defense of Regents Plaintiffs cite Christie v Board of of Michigan, University of 364 111 Mich NW2d (1961), 30 in which Justice Black wrote that purchase liability policy by gov- a insurance agency ernmental a of should constitute waiver coverage. immunity to the extent of the insurance 268 403 Mich 286 dissenting However, concurring jus and two three rule. this Since adopt refused to specifically tices Christie, Court and this decided this issue held a consistently have Appeals of the Court not its does waive agency insur general liability of policy by purchasing Fractional, 1, Dist No v School Sayers ance. See Branum v (1962); 217; 114 Mich NW2d Michigan, of Regents University of Board of Cody (1966); 134; 145 NW2d App Dist, supra. School Southfield-Lathrup has growing minority jurisdictions While plaintiffs,8 Legis- the rule advanced adopted abundantly on this issue position made its lature 170, 1964 PA 9. MCL the enactment clear with § 3.996(109) pertinent provides, 691.1409; MSA as follows: part, indemnify- any policy of insurance "The existence against liability for dam-

ing any governmental ages available any defense otherwise not a waiver is in the defense of the governmental agency claim.” we do not feel free foregoing,

In view "enlight- as the has been characterized adopt what view, us do. plaintiffs as would have ened” the bases for partially rejected we have Because judg- summary defendant’s motion for granting are and trial court ment, Appeals the Court of 1448, 1437, 4, p notes: the annotator See 68 ALR2d where § (which jurisdictions have taken the view "In a few the courts enlightened) that a worthy to the extent of characterization as against policy protects tort unit insurance otherwise-existing immunity liability, of the unit is removed.” Delaware, minority” present, "visibly growing consists At this Minnesota, Montana, Indiana, Florida, Illinois, Kentucky, Georgia, Vermont, Tennessee, Carolina, Ohio, Mexico, Nebraska, North New 1437, 4, p and Later Wyoming. See 68 ALR2d § Wisconsin Case Service. 287 Separate Opinions

reversed. We remand the matter to the trial court proceedings for further opinion. in accordance with this public question being costs, a No involved. C.J., Levin, J., Kavanagh, concurred with J. (concurring). agree Moody, Jr., J. I with Blair part the result and in concur sections B and C of opinion. Specifically, Fitzgerald’s II of Justice agree I (B) analysis with his "the play- attached slide located on defendant’s school ground 'public buildings’ excep- comes within the governmental immunity statute”, tion of the (C) 3.996(106), govern- 691.1406; MSA and that "a immunity by mental does not waive its purchasing general policy insurance”. necessary question

It is not to reach the operation playground by whether the of a a school during district the summer recess constitutes the "exercise or function” purposes immunity. Accordingly, this case need not be decided on that basis. (concurring part; dissenting J.

Williams, part). Fitzgerald’s I concur with Justice result reasoning parts opinion. II-B and II-C of his agree reasoning I do not with either the result or part opinion. my opinion II-A of his See Dep’t Highways, Thomas v of State 398 Mich NW2d Ryan, (concurring). agree J. I the trial granting court erred in defendant’s motion for summary judgment on the basis of immunity. premises on the Opinion Ryan, building to a school

adjacent However, a slide that is permanently function. the "pub- comes within affixed to that exception building” lic

A. Governmental Function determining governmen- The to whether the key tal defense of immunity 3.996(107) in given in a case lies applicable is ascertaining governmental whether engaged in the exercise was of State Dep’t function. Thomas v governmental 530 Highways, 9; 398 247 NW2d Mich recognized Legislature, by decision that That "governmen- define the term statutorily to failing tal must have intended the courts to function” guidance determining in look to common law for in applicable was governmental whether we must turn to Michi- Consequently, each case. operation to determine whether gan case law a function. of a school playground 1, Fractional, District Sayers v School No In (1962), justices, 114 NW2d 191 five that a school district signing opinions, agreed two was immune from a suit to recover liability on the playing suffered a child while injuries this im- grounds. opinions recognized school Both govern- are munity existed because school districts agencies govern- mental and their functions are mental nature.

The also comes school good within the "common of all” definition Mich- function” cited "governmental frequently Road County courts. Gunther v Cheboygan igan Commissioners, 619, 621; 225 Mich 196 NW Lawrence, City Bolster v (1923), Mass citing v Michi- (1917). See, also, McCann 387; 114 NE Ryan, (1976) gan, (opin- 65, 79; 247 398 Mich NW2d 521 J.), opinions ion of cited therein. Ryan, Michigan supports finding Thus case law engaged in the exercise or defendant charge dis- opera- function in the playground. tion of its alleged specific activity tortious the com-

plaint negligent properly is defendant’s failure to repair equip- and maintain its school activity ment. That comes within the ambit operating play- function of a school ground. Defendant is immune from for its negligence performing function unless a slide which is playground affixed "public statutory comes within building” exception immunity. Building Exception B. Public agree Fitzgerald I do not with Justice that the exceptions statutory general grant several to the immunity,1 including public the building exception,2 legislative evidence a intent to impose liability upon governmental agencies for public places”. their failure to maintain "safe This finding necessary is not to resolve the case before speaks broadly. us and much too Writing separately Wayne County in Tilford v Hospital (post), 403 269 153 General Mich NW2d (1978), legislative I concluded that the intent in enacting pose public building exception the was to im- duty governmental agencies repair on public buildings, only and maintain not but also upon premises adja- "all those constructions the building, cent whether attached or unat- MCL 691.1407; MSA 3.996(106). 3.996(107). Opinion J. Coleman, structure, exist for the to the main tached enjoyment the use and facilitating purpose repair This duty the edifice”. principal not, limited, therefore, in and does is maintenance "public places”. view, to all extend my affixed to a school However, slide to the school premises adjacent on facilitating purpose exists for the building building and is thus of that enjoyment use and exception. Conse- building within injuries liable for may be the defendant quently, failing properly negligence its caused this slide. and maintain repair Liability C. Insurance general purchase I agree agency does aby of insurance policy govern- defense of a waiver of the not constitute supra, and MCL Sayers, See immunity. mental 3.996(109). 691.1409; MSA defendant’s granting erred The trial court on govern- based judgment for summary motion immunity. mental and remanded.

Reversed dissenting (affirming part, Coleman, II, C of Justice part). Although agree I with Part II, Fitzgerald’s agree I not with Part opinion, do B. A or I find that

To the would contrary, function of a school Ryan’s Justice Part A of and so concur with opinion. Fitzgerald’s conclu- Justice disagree with also

I maintenance negligent excepting sion Coleman, highways public buildings and from Legislature immunity, thereby intended except places”. "public all "highways” "buildings”

The and have words meanings common, historical I believe the Legislature apply carving intended to out this assumption statutory governmen- immunity. tal problem it,

As I see our derives from a desire circumvent statute— end, or eliminate it in effect. To this the Court has by-paths (e.gsome contrived to establish theories respondeat superior, "gov- of nuisance and novel interpretations and, now, ernmental function” "building”). redefinition of persuasion personal concerned, So far as is Jus- problem Ryan’s tice The solution is attractive. that we do not know where it will lead. It is not social) (and legal engi- difficult to envision future neering problems proposed a result of as this statutory remodeling, may attractive as it be. prefaces my

As one of brothers sometimes Legis- remark, God”, "If I were I would cause the together representatives lature to call of school agencies districts, law and various enforcement government charge units and and other levels experts, them to meet with financial and tax insur- lawyers members, ance association knowledge and others with experience bearing upon the sub- ject public liability. people These then would recommend to the what liabilities people precisely should be assumed what and who should be immune. plus public recommendations, hear-

From these Legisla- ings accessible to and other devices precise presented. ture, a act could be more prior route California to the enact- followed 403 Mich Coleman, Opinion immunity act is ment of its detailed commendable.1 present law

The more the Court tinkers with deeper dig immunity, we litigation un- the mire of and into ourselves into legal or and social hazards. Seven four—or known change significantly us can the law even three —of suspect there, it here but I or bend little and problems than more we have that we have made resolved. myth addition, can

In there is a insurance any no kind of matter how be obtained for costly. true, However, has to be if it this ceased possible or not costs ever was. We do know what necessary will now reserves or added taxes be even opinions. do of our recent We to cover the results impact upon schools com- not know the small and impact We not know munities counties. do upon public parks and areas cen- recreation hospitals swimming pools, courts, ters, tennis mind-expanding resources, list of other some necessary than others. more know, I Because is so much that we do not there employ judicial re- conclude that it is time to encourage straint and to to exam- present ine course minimally, goal revising and, clari-

towards the fying the statutes.

I affirm. would Sovereign Kennedy Lynch, See Some Without & Problems Immunity, 36 S Cal L Rev

Case Details

Case Name: Pichette v. Manistique Public Schools

Court Name: Michigan Supreme Court

Date Published: Aug 30, 1978

Citation: 269 N.W.2d 143

Docket Number: 55472, (Calendar No. 1)

Court Abbreviation: Mich.