Lead Opinion
In Thomas v Department of State Highways,
In the instant case, we are called upon to examine the common-law doctrine of state governmental immunity. We hold that the common-law doctrine of state governmental immunity is abrogated. This ruling is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of state governmental immunity has been made and preserved.
I.
According to plaintiffs’ complaint, Paul Pittman, then a 16-year-old student in the Taylor Public Schools, was provided with chemicals by the individually named teachers to construct a rocket as a science project. On April 24, 1969, Paul began to mix the chemicals at his home. An explosion resulted and he was severely injured.
On April 20, 1972, suit was filed against the City of Taylor, the Taylor Board of Education, the individual teachers and the chemical manufacturer.
The City of Taylor moved for summary judgment arguing that the Taylor Board of Education
The Taylor Board of Education moved for summary judgment on grounds of state governmental immunity. Summary judgment for the board was granted on July 17, 1972. It is that judgment which we are called upon to review.
II.
Unlike Thomas, supra, which raised issues of immunity under the terms of the governmental immunity act, MCLA 691.1401 et seq.; MSA 3.996(101) et seq., this case must be resolved according to common-law governmental tort immunity extant in 1969.
The governmental immunity act was originally enacted in 1964. The specific section granting immunity,
We acknowledge that on April 24, 1969, the state, including school boards, enjoyed immunity from tort liability under common-law principles. Sayers v School District No 1, Fractional,
However, we are now persuaded that those principles should no longer be given effect.
An examination of the origins of common-law governmental immunity in this country would show that the importation of the principle was the product of an unfortunate "misunderstanding”
In Michigan, the doctrine of governmental immunity was shaped in its early days by the "experience and environment” of our esteemed forebears on the bench. In later days the courts all too often applied the outmoded forms of the past.
Government "instituted for [the] equal benefit, security and protection [of the peoplе]”
The reasons given by this Court for abolishing the common-law defense of governmental immunity for municipal corporations are equally relevant in this situation.
"The rule of governmental immunity has as legal defense only the argument that age has lent weight to the unjust whim of long-dead kings. It is hard to say why the courts of America have adhered to this relic of
"[I]n relation to the doctrine of governmental immunity, 'the application of the rule is more harmful than helpful and results in more injustice than it prevents.’ ”
Williams v Detroit,
The Court was faced with a related situation in Parker v Port Huron Hospital,
"The doctrine of governmental immunity is an historical anachronism which manifests an inefficient public policy and works injustice upon everyone concerned.” Brown v Wichita State University, 217 Kan 279, 297;
Accordingly, we hold that the traditional common-law judge-made immunity that the state and its instrumentalities heretofore enjoyed from its torts should be and it hereby is abrogated.
"[t]he doctrine of sovereign immunity is an exception to the fundamental concept of tort law that liability follows tortious conduct and that individuals and corporations are resрonsible for the acts of their employees acting in the course of their employment. We are aware of no substantial reasons, and none have been called to our attention, which support the continuation of this exception to the well-established principles of tort law. And we will certainly not retain the doctrine on the basis of stare decisis alone.
" ' * * * [W]hen a rule, after it has been tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there shоuld be less hesitation in frank avowal and full abandonment.’ Cardozo, Selected Writings of Benjamin Nathan Cardozo, pp 107, 152 (1947).
"The reasons for the creation of the state’s tort immunity are now obscured. * * * Because no compelling reasons have been presented in support of its continued existence, we have concluded that the time has come for the abandonment of the rule.” Nieting v Blondell,—Minn—;235 NW2d 597 , 601 (1975).
As we said in Williams: "We eliminate from the case law of Michigan an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in our courts”. Williams v Detroit,
The holding we announce today is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity had been made and preserved. See Bricker v Green,
The Wayne County Circuit Court order of July 17, 1972, granting summary judgment in favor of
No costs, a public question.
Notes
In reaching this result we reexamined the case of McDowell v State Highway Commissioner,
"By this statute [1945 PA 87 ], the legislature repealed PA 1939, No 135, § 24, as amended by PA 1943, No 237, the amendment being a legislative grant of the right of maintaining tort actions against the State. By enactment of this statute, the legislature moved to abolish the judicial doctrine of governmental immunity. By repealing this statute, the legislature returnеd to its prior posture which was no statutory provision on the subject whatsoever.
"It is now proposed that the citizens of this State should be held to be barred from maintaining tort actions against the State by 2 statutory enactments which achieved utter negation. The undersigned cannot agree to such logic.”365 Mich 268 , 272-273.
See also, Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 262-263 (1973).
For an exhaustive review of those cases, see Cooperrider, fn 1 supra.
The term "misunderstanding” is employed by Professor Kenneth Culp Davis in his analysis of the origin of the doctrine in United States jurisprudence. 3 Davis, Administrative Law Treatise, § 25.01, pp 435-439.
Cooperrider, supra, p 188.
Const 1963, art 1, § 1.
As was stated in Williams, supra, "We deal in this case with a declaration which would clearly state an ordinary tort claim against a private individual or a private corporation. Our holding herein is limited to the statement that there is no longer any judicial doctrine of governmental immunity as to such a claim. "
All except 13 states have abolished or limited the governmental immunity defense of the state. See Note, Governmental Tort Immunity in Massachusetts: The Present Need for Change and Prospects For the Future, 10 Suff U L Rev 521, 524, fn 13 (1976).
We reiterate that our holding in this case abolishes common-law governmental immunity. Such immunity was judicially created and, when it becomes clear that it works an injustice, it may be judicially abrogated. In Thomas v Department of State Highways,
Concurrence Opinion
I concur with my brother the Chief Justice as follows:
1) Maki terminated existing statutory governmental immunity.
2) This Court was therefore free under common-law principles to continue or abrogate common-law governmental immunity. I agree with the abrogation of common-law immunity for this case, pending cases in which the point was made and preserved, and prospectively from this decision as to common-law governmental immunity.
Whether, however, there should be any governmental immunity and, if so, to what extent, is in the jurisdictiоn of the Legislature. The Legislature in its wisdom may or may not find that certain areas of governmental immunity are in the public interest. See my opinion in Thomas v Department of State Highways,
On April 24, 1969, plaintiff Charles Pittman’s son was injured by a chemical explosion in his home. The chemicals allegedly were supplied by employee-teachers of defendant board of
We would hold that the trial court did not err.
1.
On April 20, 1972, suit was filed against the board of education, the City of Taylor, the chemical manufacturer and the employees for damages of $1,100,000 plus interest and costs. The board of education sought summary judgment on the basis that it was a state agency and therefore immune.
The city sought summary judgment claiming that it had no control over the board because it "is an agency and arm of the state” and the boаrd was at all times performing the functions which were consistent with the immunity granted by the courts of the state.
Plaintiffs appealed only the order dismissing the action against the board of education. The Court of Appeals denied plaintiffs’ application for leave to appeal.
We agree that the case must be decided by the law extant in 1969 when the alleged injury was incurred. Because of the decision in Maki v East Tawas,
The problem is that our colleagues would now reach back seven years to abolish all the law by which the trial court would have been bound in 1969 after the Maki court abolished the immunity statute.
This peremptory erasing of the slate of time while a valid amended statute still stands must be considered as a means to one of two ends.
It is either a measure to reach the desired result in one case or it is intended to lay the groundwork for another attack on statutory governmеntal immunity with total abolition the objective. If a majority of participating Justices agree to declare the statute unconstitutional,
This case, therefore, carries broad implications.
We would hold that the trial court did not err.
2.
In Maki, the Court declared that a section of the governmental immunity statute (made effective in 1965) "exceeds the scope of its title and is therefore unconstitutional and invalid”. The section had provided immunity from tort liability for all governmental agencies including school districts while engaged in governmentаl functions. The asserted constitutional defect was eliminated by the Legislature prior to the Maki decision. The amendment became effective August 1, 1970. The claim in this case arose in 1969.
Prior to Williams v Detroit,
In Williams, four members subscribed to the declaration that "[f]rom this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan”. With an eight-member court, four for affirmance and four for reversal did not establish a rule of law.
The key opinion was Justice Black’s. He specifically did not consider the general topic of governmental immunity:
"We are considering the common-law rule that municipal corporations are immune from tort liability. Municipal corporations’ are distinctively definable (see Hall v Ira Township,348 Mich 402 [83 NW2d 443 (1957)], and Bacon v Kent-Ottawa Metropolitan Water Authority,354 Mich 159 [92 NW2d 492 (1958)]), and care should be taken that today’s decision is confinеd thereto. No lawyer should be left to wonder whether other public bodies are included within the scope of what we do in this case of Williams.”
Although he agreed that judicially created immunity should be eliminated, Justice Black would have provided that the decision be wholly prospective and limited to municipal corporations. See Wardlow v Detroit,
In Sayers v School District No 1, Fractional,
"asked to reverse the trial court by holding the doctrine of governmental immunity is no longer available to a school district. To do so we would have to reverse a number of decisions of our Court dealing with the doctrine of governmental immunity as applied to school districts. Under our decisions the school district as an agency of the State has been clothed with the State’s immunity from liability. Whitehead v Detroit Board of Education,139 Mich 490 [102 NW 1028 (1905)]; Daniels v Board of Education of Grand Rapids,191 Mich 339 (LRA 1916F, 468) [158 NW 23 (1916)]; Richards v Birmingham School District,348 Mich 490 [83 NW2d 643 (1957)].”
These justices concluded that the case concerned not "governmental immunity established by courts” but the legislative "intent to re-establish the doctrine by statute”. See McDowell, supra. Three other justices believed the trial court’s ruling was correct:
" 'This court believes that liability should be determined either оn a statutory requirement or should be based on the law as established by case decisions of a court of final jurisdiction. In our State the Supreme Court has indicated rather clearly in its majority opinions that a school district has immunity from tort liability as a result of an injury such as alleged in this case. It is not disputed by the plaintiff that playground activities have a proper place in the physical and*56 mental development of students. Therefore, it would come under the classification of a usual and proper governmental function оf a school district.’ ”
One defendant in Stevens v St Clair Shores,
"The motions submitted in the trial court asserted the defense of governmental immunity in support of the claims made that the plaintiffs’ amended declarations did not state causes of action that plaintiffs were entitled to prosecute. It is apparent that the trial judge, in granting the motions to dismiss, determined the question in favor of defendants. For reasons set forth in our opinions in Christie v Board of Regents of University of Michigan,364 Mich 202 , 213 [111 NW2d 30 (1961)], and Williams v Detroit,364 Mich 231 , which need not be here repeated, the orders of dismissal should be affirmed.”
The incident occurred prior to the date of Williams.
The plaintiff in Lewis v Genesee County,
"The holding of the circuit judge that defendants are immune from liability for the negligent acts of their agents and employees in the instant case is in accord with decisions of this Court in a number of cases, among which may be cited: Maffei v Berrien County,293 Mich 92 [291 NW 234 (1940)]; McDowell v State Highway Commissioner,365 Mich 268 ; Sayers v School District No 1, Fractional,366 Mich 217 ; and Stevens v St Clair Shores,366 Mich 341 . It clearly appearing that*57 the defendants in the performance of the functions involved in the instant case were acting as State agencies, they were entitled tо claim immunity from liability based on alleged negligence of employees.”
This incident occurred after Williams.
In Myers v Genesee County Auditor,
"[A]s of today the State and its agencies are absolutely immune (except as legislatively excepted) from tort liability; subdivisions of government, except municipal corporations, are immune from functioning 'govern-mentally,’ but not 'proprietarily,’ and municipal corporations are without any governmental immunity, аs to tort liability.”
They define municipal corporations as being all political subdivisions, including school districts. Justice Black concurred in this opinion’s result only.
Two justices concurred saying Myers overruled Lewis v Genesee County. Municipal corporations included "incorporated villages, fourth-class cities, special charter cities, home-rule cities, charter townships and school districts”.
In Keenan v Midland County,
"Myers abolished * * * the defense of governmental immunity as to all political subdivisions of government not theretofore abolished. The State and its agencies,*58 including school districts, remained immune from tort liability. McDowell v State Highway Commissioner,365 Mich 268 ; Sayers v School District No 1, Fractional,366 Mich 217 .”
Schoоl districts were now considered state agencies by a majority of the Court.
Decisions since that time have been consistent at least to the point that a school district is a state agency.
In Picard v Greisinger, 2 Mich App 96;
The panel in Williams v Primary School District No 3, Green Twp, 3 Mich App 468;
The plaintiff in Meredith v Melvindale,
The panel in Cody v Southfield-Lathrup School Dist,
In Nichols v Zera,
4.
The common law of Michigan in April, 1969 was that school districts, because they are state agencies, were immune from tort liability if engaged in a governmental function. Working with students on science projects is a normal school function coming within the proper scope of a school system.
We believe that the question of governmental immunity with all its implications is properly for legislative determination. The topic raises questions which that body can better resolve: e.g., by what taxes or other means would the state and its agencies such as school boards raise annually the hundreds of millions of dollars probably necessary to cover all such liabilities? With no control over thousands of jury and bench trials, how could the Legislature knowledgably appropriate or control state indebtedness?
Further, we believe it to be both unwise policy and contrary to legislative intent to abolish all historic immunities.
The Legislature spoke prior to the decision in Maki and mandated:
"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. ” (Emphasis added.)
With the voiding of prior legislation by Maki, this statute has no meaning unless it aрplies to the common law.
The Legislature is presumed to be cognizant of the common law at the time a statute is enacted. In MCLA 691.1407; MSA 3.996(107), it expressly preserved "immunity of the state from tort liabil
Today, however, our colleagues would "abrogate” all the immunity legislatively "affirmed” in that proviso. They would make this retroactive clean-sweep of all common law immunity (as affirmed by the Legislature) applicable as to some cases between April 24, 1969 and August 1, 1970 and to all such future immunity matters from which the Court may carve away present legislatively enacted immunity.
There is an insistence that government immunity in this country, including Michigan, is based upon the concept that "the king can do no wrong”. This is a misleading concept inapplicable to American jurisprudence, which flows from our American form of democracy.
As Justice Brennan explained in his dissent in Smith v Ginther
"In a government whose power to borrow money is constitutionally circumscribedit is thought to
Therefore, we the people, speaking through our representatives, have carved from our historic and almost complete governmental immunity, those areas in which the people are to assume liability and provide the financial means with which to meet it. The Legislature recognized that concept of governmental immunity in Michigan and expressly "affirmed” all such immunity with specific exceptions which it provided by statute.
To abrogate all immunity from which the exceptions were carved is contrary to sound public policy as well as to honored concepts of law. If our Court later finds the statute unconstitutional, a void could remain and the state and its agencies may be thrown into financial chaоs.
We can only speculate as to what financial or legal effect such a finding as proposed by our colleagues would have upon the "state and its instrumentalities”. Because of reliance upon governmental immunity, most school districts and other governmental units may not have been adequately covered by insurance. In reliance on the law, they would not have set aside adequate independent resources to cover past unknown and unforeseen liabilities. Not many (if any) school boards have an exсess of $1,000,000 or more available. Fairness prevents retroactive effect (backwards to the date of the 1969 injury) of this proposed rule of law. All governmental agencies could be affected by the hiatus created by this Court — not only school boards.
There is no way this Court can assess the overall repercussions of such an extraordinary imposition of liability over the mandates of a still valid statute.
The law in 1969 was that a school district was a state agency and so was immune from tort liability while engaged in a governmental function. Tо afford plaintiff relief, we would have to reach back and strip from the state and its instrumentalities, including school districts, all common-law immunity backward in time, leaving the defendants and others exposed to who knows what mischief. This would be an unusual, unfair and unwise exercise of judicial power, particularly in the face of a valid statute preserving all immunity existing at the time of its effective date in 1970.
Plaintiff’s complaint alleged that the teachers distributed the chemicals "within the scope and course of their employment”. The board was said tо have failed to hire competent personnel or adequately instruct them.
In the brief supporting its motion for summary judgment, the board said it was immune if "conducting a governmental and not a proprietary function”. Plaintiff’s opposing memorandum said "case law abolished immunity for 'Municipal Corporations’ and 'political subdivisions’ and school districts fall within the definition of both terms”.
As we have shown, plaintiff’s analysis of the case law is in error. School districts have had an immunity which the trial court correctly determined was applicable in this casе and which the statute specifically retains. Accepting plaintiff’s allegations of fact as true, the complaint does not state a cause of action against the board.
However, the implications of this decision do not rest with resolving the matter of Paul and Charles Pittman, but could lead to avenues without limits or light, if our colleagues’ opinion prevails.
Therefore, both as a matter of law and of policy, we would affirm the trial court.
Justice Williams’ dissent in Maki interpreted the section in a manner which did not "judicially defeat” the "obvious legislative purpose” of establishing governmental immunity for torts arising out of negligent conduct. It said "the legislature has spoken in an area where it properly has jurisdiction and the legislative intent should prevail”.
Negri v Slotkin,
Compare Justice Souris’ dissent in Sayers.
Compare Sherbutte v Marine City,
Compare Smith v Clintondale School Dist,
See
Similar is McNees v Scholley,
The summary judgment presumes plaintiiFs version of the incident. Another version is that the chemicals were taken without permission or knowledge of the teacher(s).
The matter turned upon the issue of whether municipalities enjoyеd governmental immunity.
"When fire rages, when the dam breaks, when the enemy attacks, the people, through their government, must act”, Justice Brennan explained. Other services deemed necessary to the safety and well-being of all of us are analogous. As the Justice said, "It is not for judges, serene in their robes and far removed by time and space” to decide whether the people should be further taxed to pay compensatory damages to those who chance to be injured while the state or its agencies is performing its duties. The decision is for the Legislature.