Ross v. Consumers Power Co.

(On Ross Consumers v 1984] (ON REHEARING) COMPANY ROSS v CONSUMERS POWER WILLIS v NIENOW v OF WILLIS DEPARTMENT SOCIAL SERVICES v DEPARTMENT OF MENTAL SIENER HEALTH v OF DEPARTMENT MENTAL HEALTH ROCCO v

REGULSKI MURPHY TREZZI DETROIT v LAKES ASSOCIATIONv OF DISAPPEARING DEPARTMENT NATURAL RESOURCES v

ZAVALA ZINSER Nos, 64241, 69672, 68861, 68885, 70177, 70246, 70456, 70598, Docket 1-9). (Calendar 16, Argued August 71266. Nos. Decided 28, Rehearing January 1984. Released . December de- Zavala, 421 Mich 1202. nied in Ross, mother, brought his Michael and an Ross Ruth action against Company Consumers Power in the Jackson Circuit damages injuries suffered Michael Ross in the Court employment his of the a to be course of drain construction incorporated Drainage the Saines District Project into John machinery near when came contact construction him into with line, causing electric him electrical burns. Consumers’ severe a brought against third-party drainage Consumers a action Gee, County district and A. Jackson Com- Wendell Drain missioner, alleging negligence notify failing it of the impending failing arrangements construction and in make safeguard court, the construction workers. The circuit Charles Falahee, J., granted third-party J. defendants’ motions for summary judgment ground governmental immunity. on the of Brennan, appealed, Appeals, Consumers and the Court of J-V- P.J., JJ., Cynar, Bronson reversed and remanded court, holding upon application case to the circuit governing” drainage "essence of im- test district (Docket 78-2140). judgment from tort mune No. of Appeals equally was affirmed divided Su- an Court (1982). preme rehearing drainage Court. 415 Mich 1 On appeals. district Willis, Mary Willis, Jeffrey O. administratrix of the estate 420 Mich 567 Muskegon Court deceased, brought Circuit actions in the Nienow, facility juvenile a against care director Dennis Knox, Services, Department operated by Social Erma intern, Hunt, facility, Cyndi student at the counselor against Department Social Ser- of Claims Court vices, Jeffrey negligence alleging death of Willis in the swimming outing supervised by Knox and drowning on a while J., Court, Daniels, granted Muskegon R. Max Hunt. Circuit The Nienow, Knox, Hunt, the Court summary judgment for and and Warren, J., Claims, granted summary judgment for of Jack W. Services, ground Department of both on the the of Social Walsh, Appeals, immunity. of D. F. The Court Ernst, JJ.,

P.J., judgment of affirmed the MacKenzie and and Claims, judgment the of the circuit but reversed the Court of 52848). (Docket appeal and The defendants court Nos. plaintiff cross-appeals. the Siener, Jr., brought Wayne in the Circuit Court Russell an action injuries against Department for he re- of Mental Health the Center, patient health at Hawthorn a mental ceived while a children, facility emotionally an as a result of for disturbed trip, negli- patient during alleging a field assault another group patients gence supervision to in control of the of the and court, Brown, assigned. The L. which Siener had been Thomas J., summary judgment for on the denied the defendant’s motion ground immunity. Appeals, of The Court of JJ., Danhof, Wahls, C.J., R. B. vacated the order and Burns and denying proceedings and for the motion remanded further 56406). (Docket plaintiff appeals. The No. Rocco, personal representative James R. himself the of for and as Rocco, Rocco, deceased, Lynne the estate of Daniel and Judith brought against Depart- in the of Claims the an action Court Health, Services, Department ment of the and Mental of Social Ypsilanti Regional Psychiatric Hospital damages arising the for killing patient out of of a the Daniel Rocco while at hospital patient, alleging negligence supervi- another duty protect of sion the assailant and breach of contractual court, Warren, J., granted the decedent. The W. Jack summary judgment ground defendants’ motion for of on the governmental immunity. Appeals, Kelly Court of J. and The M. (Allen, P.J., Kelley, concurring part dissenting J. J. JJ. in part), judgment in affirmed the the Court with of Claims respect claim, negligence respect to the but reversed with (Docket 55334). appeal the contract claim The No. defendants plaintiff cross-appeals. and the Regulski brought Wayne James an in action Circuit Court (On Reh) Ross v Consumers 1984] against District, Wayne-Westland Murphy, School William building program, director of the district’s vocational trades Hansen, building class, and Leo teacher of the trades for injuries during part received the construction of a house as program, alleging negligence failing supervise plaintiff. court, J., Reilly, granted The P. Maureen the defen- summary judgment ground dants’ motion govern- on the immunity. Appeals, Brennan, P.J., mental The Court of V. J. Riley JJ., Payant, opinion D. C. per affirmed in an (Docket 57956). plaintiff appeals. curiam No. Trezzi, Elvera Brigolin, administratrix of the estates of Rosa deceased, Brigolin, deceased, brought and Gino an action in the Wayne against Detroit, City Torbit, Circuit Philip Court police dispatcher, city emergency unidentified "911” operators, damages arising assistance from the deaths of Brigolin, alleging negligence Rosa and assigning Gino low priority requests Brigolin for assistance at the residence injuries which allowed time for intruders to inflict on the Brigolins court, resulted their deaths. The Charles Kaufman, J., granted city summary judgment on the ground settled, immunity. Torbit and the against operators claim Ap- was dismissed. The Court of Danhof, peals, C.J., Ernst, (Bronson, J., concurring and J. in (Docket part 58039). dissenting part), and in affirmed No. The plaintiff appeals. Disappearing Lakes Association property and other associations of Square in owners the of Square vicinities Lake and Little Lake County brought in Oakland actions in the Court of Claims against Department the of Natural Resources and in the Oak- against land Circuit Township, Court Orion the Oakland County Planning Commission, others, damages and for to their property resulting drops from in the water levels of the lakes department permitted after the dredging the of canals in the - area. The actions were consolidated in the Court of Claims. The court, Ziem, J., granted Frederick summary judgment C. for ground

the governmental defendant on the immunity. of The Appeals, Allen, P.J., Martin, Court J., of (Cynar, and J. concur- ring (Docket only), 59640). in the result affirmed Nos. plaintiffs appeal. The Jose B. Zavala brought and Maria Wayne Zavala an action in the against City Detroit, Circuit Court the of Andrea Zinser and Harris, police officers, Freída Y. persons Detroit and involved in fight a damages outside a resulting Detroit bar for from a gunshot that during fight. wounded Jose plain- Zavala The alleged police tiffs that the negligent failing officershad been Mich shooting failing prevent Jose fight to of stop the and in J., court, granted city’s Reilly, P. and Maureen Zavala. The summary ground judgment on of motion the officers’ for Riley, Appeals, immunity. D. The Court of C. (N. J., Kaufman, Walsh, dissenting), af- P.J., J. F. J. D. plaintiffs firmed, permit to make a record remanded to but allege complaint discrimina- motion amend their on their (Docket No. by in violation of 42 USC the defendants tion 59195). plaintiffs appeal. Williams, curiam, per signed by opinion Chief Justice In an Cavanagh, Boyle, Ryan, Brickley, the Su- Justices and preme held: Court 1) governmental agencies All state local a) liability act for tort liable under the are keep highways injuries arising in reason- out of the failure government-owned operation repair, negligent for able a officer, agent, employee agency, vehicle an or motor public buildings dangerous defective conditions and for or control; agency’s under b) perfor- injuries arising out of are liable tort for function, i.e., any activity proprietary a conducted mance of normally pecuniary excluding primarily profit, for activities fees; supported by taxes or c) injuries arising liability out are immune from non-proprietary, or the exercise function, i.e., impliedly any expressly activity which is or statute, constitution, law or other mandated or authorized (an agency’s ultra not entitled to vires activities are therefore immunity); d) vicariously operation govern- negligent are liable for officers, employees, ment-owned motor their vehicles (vicarious agents liability may imposed all be on other torts officer, governmental agency only employee, its when

agent, acting during employment the course his and within authority, of his tort while in an commits a activity non-governmental proprietary, which or which exception); statutory falls within a 2) legislators, highest Judges, and the executive officials of all government absolutely levels of are immune all tort from acting judicial, legisla- whenever within their tive, authority; officers, employees, and executive level lower agents liability only they and are from tort immune when are a) acting during employment the course of and are their acting, they acting, reasonably scope or believe are within the authority; of their b) acting good faith; and 1984] Ross v Consumers (On Reh) c) acts, i.e., performing discretionary-decisional those which significant decision-making personal involve that entails delib- eration, judgment, opposed ministerial-opera- decision and acts, i.e., implemen-

tional those which involve execution or decision-making; tation of a decision and entail minor 3) officer, agent, employee acting If the or within the employment authority, course of his and the of his for, governmental agency may pay engage, or furnish an attor- officer, ney; represent agent, action; employee or and settle, compromise, pay, indemnify judgments or claims or officer, against agent, action, however, employee. Such impose liability upon governmental agency. does not tort liability 1. catego- tort act sets forth four activity liability may imposed. ries of for which tort be All governmental agencies, statutorily both state and local are bodily injury property damage arising liable for and out of the keep highways repair; negli- failure to their in reasonable gent operation government-owned of a motor vehicle officer, agency’s agent, employee; dangerous or defective public buildings agency’s conditions in under the control. In addition, agencies, departments, the state and its and commis- engaged sions are proprietary liable when in a function. The provides heart of the act is which broad from governmental agencies whenever in the exercise or func- tion. The agency provide legal act allows a assistance judgments to and reimbursement of settlements and against officers, agents, levied employees its under certain However, circumstances. the act does not define under what officers, agents, employees circumstances such may be held liable for their specifically tortious acts. Nor does it address the question governmental agency may whether a be held vicari- ously liable theory for such respondeat supe- torts under a rior. Sovereign immunity 2. concept is an ancient common-law "sovereign” which stated that the was immune from suit unless (the he consented to sovereign king) the action because the law, either was somehow "divine” or above the could commit wrong, was, therefore, no sued, properly never or was superior to the courts which he had created and vested with a portion power. forward, of his From Michigan juris- statehood prudence recognized (the state) sovereign that the was immune suits, including from all injuries suits for tortious which it had sovereign caused. The rationale was never grounded in Rather, a belief wrong. that the state could do no 420 Mich state, Michigan sovereign immunity the in because existed courts, jurisdic- subject to their them or creator of the was not Thus, original Michigan held that the state was rule tion. the except extent it consented to suits to the immune from all however, not, immunity Sovereign was an be sued in its courts. state; recovery against Legislature could the absolute bar Legislature created the and did to suits. In consent Claims, jurisdiction giving it to hear and exclusive Court any against the state and all claims and demands determine creating jurisdiction agencies. By with over the its a court state, destroyed Legislature for sover- the theoretical basis However, sovereign eign Legislature immunity. retained immunity liability Claims Act. in 24 of Court of § from immunity between from Case law made clear distinction subsequently emphasized immunity liability from and suit and sovereign immunity from tort that the common-law doctrine of abrogated except by liability statute. In could not be waived or addition, sovereign liability recognized immunity from tort was engaged only the exercise or as a when state was in defense discharge governmental Legislature function. The thereaf- of a immunity acknowledged enjoyed impliedly ter the state engaged discharge only the exercise of a when it was

governmental function. immunity municipalities governmental 3. Common-law for Detroit, (1961), was 364 Mich 231 and abolished Williams v counties, anticipation immunity of a similar demise of townships, villages, Legislature govern- enacted the liability mental tort act. The first sentence of 7 was intended § governmental immunity non-sovereign only to not restore governmental agencies, provide treatment but to uniform Furthermore, agencies. state and local the aflirmance of com- sovereign immunity mon-law in the second sentence of was § a clear that this directive Court henceforth could not further sovereign judicially abrogate extend Williams the state’s Therefore, immunity. enacted, at the time was the state was liability engaged immune from tort it when was in the exercise function, discharge governmental statutory of a a unless exception applicable. This same is reiterated the first and second 7. sentences of § governmental Sovereign 4. from tort governmental agencies engaged exist when Although governmental exercise or function. act, function is not defined in it is a term of art which been used has the courts this state to describe government public those activities of which of their because (On 1984] Ross Consumers v give liability at common law. Previous nature should not rise to proved function have difficult tests of what is a apply. provides govern- "proprietary function” test that since benefit, equal security, protection instituted for the ment is people, governmental agency its cannot claim that it is activity function when the in a makes private profit for or for individuals. Decisions of the itself however, much, differed, Supreme any, if Court have as to how generated activity profit be before an is deemed incidental can proprietary. By enacting governmental to be 13 of the tort § act, adopted propri- liability Legislature the common-law the test, etary it activities which function but made clear that generate profit may govern- an incidental still be considered governmental immunity act in- mental functions. The was provide liability immunity uniform and to state tended to both governmental agencies. satisfactory local There is rea- no governmental agencies non-sovereign son to treat state and Moreover, differently. proprietary exception to function governmental immunity well at common-law established Legislature the time 13 was enacted. If the had wished to § non-sovereign governmental agencies, abolish this rule as to it Therefore, explicit language. would have done so in more exception governmental proprietary common-law function to reaffirmed, immunity statutory from tort is and the proprietary applicable govern- definition of function is to all agencies, short, although mental state and local. In 13 of the § governmental immunity applies governmental act to state agencies, principles the same terms and embodied therein must applied judicially non-sovereign governmental agencies. be to good amorphous The "common of all” is rather test apply government activity difficult to because almost all inis Nevertheless, public good. some sense directed toward the it is particular activity every rare when a benefits member of the equally. application good state Because of the common of all immunity liability depending upon test could result in either viewpoint particular decision-maker, it cannot be incorporated governmental into the definition of function. governing” represent attempts The "essence to/of tests to pinpoint uniquely describe and those activities which are generally government. Relatively associated with few activities qualify immunity governing can under the essence to test they analogy private since must have no common to the sector. Moreover, governmental appear unique activities which at the particular may time a case is decided not be so in the future. flexibility provides because governing more test The essence effectively activity be accom- can on whether it focuses approach Unfortunately, by government. this plished only may companies example, private construction flawed. For also construct, engineer, more effec- and maintain drains be able to Nevertheless, drainage the drain- tively district. the local than responsible providing statutorily an efficient age district safeguard public drainage system health systematic engage may enterprise also decline Private and welfare. public good activity because which benefits abandon an effectively sufficiently profitable, because it cannot it is not agency accomplish activity. thereafter If a provide responsibility or continue to in order to assumes the services, liability. necessary public it risks make available precisely activity specify Finally, what must tests fail to both be evaluated. good problem all” with the "common 5. The fundamental governing” func- definitions and "essence to/of judgments require judiciary make value tion is that engage government should be allowed as to which activities consequences being responsible thereof. held for the in without legitimate inquiry necessarily type subjective results in

This contrast, opinion. from tort differences of expressed possible liability provided by 7 is in the broadest agencies language to all extends —it engaged liability in the exercise for all tort whenever grant discharge governmental function. This broad of or of a coupled narrowly immunity, drawn statu- when with the four Legislature tory exceptions, suggests that the intended that the interpreted "governmental term be in a broad man- function” sovereign Legislature’s completely The ner. refusal abolish governmental immunity, despite this Court’s recent at- so, tempts legislative judgment to do evidences a clear public private differently. tortfeasors should be treated governmental activity Therefore a function an which is is constitution, expressly impliedly or mandated or authorized statute, engages governmental agency or other law. When a activities, mandated or authorized it is immune from tort liability, activity proprietary unless the is in nature or falls exceptions governmen- statutory within one of to the the other governmental agency engages in tal act. Whenever a activity expressly impliedly an or mandated or which is not constitution, statute, (i.e., authorized or other law an ultra activity), engaging discharge vires it is not in the exercise or Ross v Consumers (On 1984] agency any injuries governmental function. The is liable damages tortious conduct. incurred as a result its or prem- liability governmental agency can be The of a 6. plaintiff may allege theories. The that the ised on two distinct act, acted, agency itself or failed to in a tortious manner. In situations, agency directly liable for such the will be held its engaged activity in which it was constituted a non- torts if the function, proprietary governmental or or fell within the statu- vehicle,” building” "highway,” "public excep- tory "motor or allege plaintiff may also tions. The officers, vicariously employ- agency is liable for the torts of its agents. liability premised is on ees and This vicarious principal-agent relationship employer-employee or which exists agency and the individual tortfeasor. between Allegations liability generally of vicarious tort arise where employment relationship an exists between the agency Respondeat superior and the individual tortfeasor. lia- imposed bility generally only where the individual can be during employment acted the course of and within tortfeasor met, scope authority. If either of these conditions is not governmental agency vicariously cannot be held liable. Even during employee’s when the tort is committed course of employment scope authority, govern- and was within the agency automatically mental liable. Where individual acting employer, on his the focus tortfeasor is behalf of should engaged activity be on the which the individual was in at the governmental agency time the tort was committed. A can be officer, vicariously employee, agent, held liable when its or acting during employment the course of and within the authority, activity commits a tort in an while which is non-governmental proprietary, or which falls within a statu- tory exception. agency vicariously liable in situa- these furthering tions it is in because effect its own interest or performing statutorily activities for which has been However, imposed. activity if the in which the tortfeasor was engaged at the time the tort was committed constituted the (i.e., exercise or function activity expressly impliedly mandated or authorized constitution, statute, law), agency pursu- or other is immune governmental immunity ant to 7 of the act. governmental immunity 7. The act does not whether address officers, agents employees, or when individual are immune liability. merely governmental agencies from tort It authorizes defend, indemnify, employees and insure and who officers negligent during have committed torts the course of their 420 Mich scope acting author- of their employment within and while legislators, persuaded judges, Supreme ity. Court government highest all levels of officials of executive and they liability are absolutely whenever from all tort immune are legislative, respective judicial, and executive acting their within officials, agents employees, are authority. and level Lower only they liability when are from tort immune 1) acting, employment acting during the course of their scope acting, of their reasonably within the believe are or authority; 2) faith; good acting in ministerial, 3) discretionary, opposed acts. performing test, immunity exists for ultra vires this no individual Under activities. discretionary and ministerial acts is The distinction between decision-making, significant while the that the former involves might entail of a decision and involves the execution latter "opera- decision-making. clarity, For the word minor some operative term would be "minis- be added so the tional” should Many persons given terial-operational” some measure acts. perform discretionary authority duties in order to their Therefore, effectively. the existence and of a to determine situation, liability particular person’s immunity from tort in a of, general specific complained rather than the nature acts goal activity, The ultimate is to afford must be examined. officer, agent enough employee, decide the or freedom to duties, ensuring carrying while that the method of out his best goal in a manner. is realized conscientious immunity extended to individuals is far It is obvious that the governmental agencies, a result in- less than that afforded personal liability Legislature. The threat of tended executing engaging tortiously in ultra vires activities or one’s deterring improper may way duties be most effective However, governmental statutorily agency autho- conduct. officers, agents indemnify employees, rized to defend its statutory in its discretion under certain circumstances. This agreement authorization could be the basis for a contractual representation and indemnification. Ross, correctly drainage 8. In the trial court found that the liability. district is immune from tort Ross involves non-sovereign governmental agency direct its out, negligence contracting supervising, inspecting inquiry construction of a drain. The crucial is whether these activities, arose, injuries from the exercise which the constitute non-proprietary, governmental function. (On Ross v Consumers 1984] allegation any were con- of these activities is no There Legis- pecuniary profit. primarily by the district for ducted protection promotion required provide and for the to lature is Drain public natural resources. The health and the state’s of governing comprehensive of the establishment act Code is a drainage drainage A of drains. dis- districts and construction power commissioner is to contract and the drain trict has the contracts under specifically to let out construction authorized Furthermore, commissioner, a prescribed circumstances. inspect approve designatee, required competent to and all supervise Any right construc- the actual work. construction general impliedly authorized the district’s of a drain is tion construction, establishment, and maintenance power over of drains. cases, Department and the of Social 9. In the Willis the state liability sovereign form tort are entitled to Services employees they injuries their were arose while and since the discharge engaged func- the exercise or of a addition, plaintiff failed to state a claim of inten- tion. In sugges- against any There is no of the defendants. tional during supervision of children recreational activi- tion that the employment during of defendants’ ties was not the course allegation authority. There is no within the of their to, authority Assuming that defendant had the bad faith. each did, participate outing, who would and in fact decide conducted, these were and where it would be well as when However, immunity. discretionary-decisional acts entitled to decisions, included the care and the execution of these which children, ministerial-oper- supervision participating were decision-making. minor As to ational acts entailed Nienow, Hunt defendant the decision to hire Knox and discretionary-decisional immunity. is no act entitled to There allegation swimming outing primarily that the was conducted profit. Furthermore, pecuniary activities recreational for delinquent neglected residing and children in state facilities are impliedly authorized Act re- statute. The Social Welfare quires operate halfway regional the DSS to houses and deten- goal program providing tion with the an facilities effective important out-of-home care. Recreational activities can be an part program. Implicit authority of such a to conduct participate authority such activities is the to decide who will Finally, expressly required by them. statute to care DSS supervise residing for and children in state facilities. The super- requires Youth Rehabilitation Services Act the DSS to operate proper programs vise and state for the facilities delinquent neglected care Even if this statute children. 420 Mich 567 exist, implies responsibil- the care of resident children did prevent, practica- ity supervise them in order to as far as is ble, injury. any unnecessary Siener, sovereign 10. immu- defendants entitled injury nity from tort because the arose while employees their were in the exercise or trips function. Educational and recreational field emotionally in-patient impliedly disturbed children are Department by constitution and and the authorized statute expressly Mental Health and the Hawthorn Center are required impliedly adequately super- statute control and in-patients Implicit vise of mental health facilities. caring emotionally patients notion of for disturbed is the re- sponsibility supervise prevent, to control and them to far as practicable, any unnecessary injury. is The Mental Health Code rights possessed by recipients enumerates certain of mental purpose patients health services. The statute’s is to ensure that privacy are treated in a humane manner and that their is duty The maintained. statute focuses on the of the health care facility patients. towards its the None of sections discusses the rights responsibilities patients. pri- and between The statute’s mary purpose patient protect is to the from certain abuses facility purpose the mental health or its staff. When this is code, provision read into 722 of the it § is clear that this was prevent facility meant to the staff of a mental health care from abusing patients in its care. It the intention of the Legislature governmental immunity to abolish in those cases patient where one attacks another. Rocco, sovereign immunity 11. In defendants are entitled to liability injuries from tort they because the arose while employees engaged discharge their were in the exercise or of a Siener, argument function. As in that 722§ exception is an rejected. to the act is suggestion There is employees no that defendants’ were not acting during employment the course of their or within the authority. Although plaintiffs paid their for the care hospital, allegation rendered to decedent there is no that hospital provided primarily pecuniary profit. such care for specifically The Mental Health Code limits the total financial liability recipient of a of mental health services to the cost the services rendered. Department Health, DSS, The of Mental and a mental facility express implied health responsibility have an for, control, supervise care residents of state facilities. The (On Ross Consumers Power v 1984] patients upon periodically evaluation of admission and thereaf- expressly is mandated the code. ter plaintiffs’ contract claim should not be dismissed. The agreed plaintiffs alleged that contracted and with defen- treatment, they paid dants for decedent’s care and valu- care, for able consideration decedent’s and that the defendants plaintiffs their breached contractual duties to the and the allegations decedent. These are sufficient to withstand defen- summary judgment. plaintiff successfully dants’ motion for If a pleads and a non-tort action establishes cause of 7 will not simply recovery underlying bar because the facts could have also established tort cause of action. Regulski, operation building 12. In trades class was proprietary injuries not a function. Since the arose while the employees district and its were in the exercise or function, the district is entitled to governmental immunity liability. Summary judgment from defendants, however, for the individual must be reversed supervision the case for remanded trial. Instruction and essentially ministerial-operational activities which there liability. allegation no from tort As to the of inade- measures, quate safety any responsible if defendants were establishing type policy eye protec- school’s as to the students, provided type tive devices would be to the site, supplies building aid first to have at the and what emer- gency transportation provided, measures would be that defen- dant from tort immune these are because discretion- ary-decisional However, they failing acts. can be held liable for comply safety policy to with the School Code and the school’s provision eye protective devices, because the actual aid first supplies, emergency transportation and involves ministe- rial-operational acts. Trezzi, city 13. governmental In the immunity is entitled to liability from injuries city’s because the while arose the employees engaged discharge were in the exercise or of a governmental suggestion function. is employ- There no that the acting during ees were not employment the course of their or scope authority. within the allegation their no There is that emergency system operated the 911 primarily pecuni- was for ary profit. emergency system police The 911 assistance and the dispatch system, including procedures determining internal for vehicles, dispatching the impliedly seriousness of calls and by constitution, statute, authorized city and charter. Disappearing Ass’n, 14. In Lakes and the state the DNR are sovereign immunity entitled liability from tort since the Mich 567 engaged employees were in injuries and their arose while discharge function. There is exercise the acting employees dur- suggestion were no that defendants’ scope employment the of their ing or within of their the course any allegation the authority. that issuance of is there Nor pecuniary profit. primarily permits dredging was conducted permits dredging statutorily required once issue is The DNR there to revoke them if are met and certain conditions permit determining should be In whether a sufficient cause. issued, revoked, impliedly the DNR is authorized renewed or dredging inspect proposed current and the and conduct studies sites, required. although DNR is are not such actions dredging impose the expressly conditions on authorized to consequences. order to avoid adverse environmental Appeals plaintiffs had insuffi- conclusion The Court of clearly pleaded errone- ciently of action is not a nuisance cause only negligence essentially a claim. asserted ous. Plaintiffs Zavala, govern- city are entitled to and the officers 15. injuries because arose mental from tort engaged employees city’s exercise while the were officers, especially function. Police situation, dangerous potentially must be faced with a when determining given degree type of of discretion in what a wide safety will individuals involved action best ensure conduct, general public, the of unlawful and the cessation wrongdoers. apprehension of The determination of what the type discretionary-decisional to take act entitled of action made, however, immunity. that decision has been Once performed proper in a manner. Since execution thereof must be alleged plaintiffs merely negligent performance of a discretion- act, ary-decisional summary judgment for the individual officers properly granted. acting during the officers were Because employment the course of their and within their authority, employees allegation city is no there its primarily pecuniary were in activities conducted profit, request backup and the decision to assistance await constitution, statute, impliedly city is ter, authorized char- city is entitled to from tort liability. Ross, part. reversed Willis, affirmed. Siener, affirmed.

Rocco, affirmed.

Regulski, part. reversed in Trezzi, affirmed. Lakes,

Disappearing affirmed. Zavala, affirmed. (On Reh) Ross 1984] v Consumers Levin, dissenting part, would hold that under the Justice act, governmental liability 7 of sentence of tort § second Michigan departments absolutely of its State immune except liability Legislature to the from tort extent has sovereign immunity waived the of the state. Under the first non-sovereign political sentence which immunizes units § govern- engaged discharge when in the or exercise function, given, determining consideration should be mental non-sovereign political engaged gov- in a whether the unit was function, specific complained activity to whether the ernmental of: 1) policy quasi-judicial or involved either formulation decision-

making; 2) represented prevent harm a failure from a source not governmental control; subject to

3) analogy private is without a common sector. governmental liability provide tort The act does not immu- liability public nity employees. from tort or officers Courts by public should decide claims asserted officers or employees traditionally on the basis factors considered at law, i.e., employee: or common whether officer 1) function; acted within the his official 2) faith; good acted in 3) quasi-judicial policy-making discretionary exercised au-

thority. question agencies, prior The 1. whether the state or its to the act, liability subject liability tort was for torts discharge non-governmental committed in the exercise or of a activity had never been settled. The apparent assumption act was drafted under state agencies enjoyed sovereign its a total from tort liability. sovereign The view that the state’s common-law im- munity arising limited torts out func- tions would render both second sentence of 7 and all of § superfluous. 13 of the act § second sentence of affirms § sovereign immunity agen- the common-law of the state and its sovereign immunity cies as it existed. If the state’s common-law governmental functions, it existed was limited to this sen- wholly unnecessary would tence have been because the first provides statutory immunity of 7 sentence to the and its state agencies govern- when exercise mental function. provides

Section 13 that the shall state not be immune in Mich proprietary arising performance of a out of the tort suits common-law sover- in the If the state’s defined act. function as functions, governmental eign immunity to had been limited wholly immunity statutory would have been waiver this immunity to unnecessary there have been no because would waive; have immune proprietary not been functions would governmental they functions. were not because Legislature of 7 and § did not the second sentence The intend surplusage. the state’s mere The view that 13 of act to be the § governmen- sovereign immunity extended to common-law statutory provisions superfluous and two tal renders functions greater apparent legislative to intent affirm frustrates the immunity being provided in immunity the state than the for government. units of the act other for governmental Supreme the doctrine of 2. Court abolished The however, municipal corporations; de- immunity the Court for sovereign immunity for the the doctrine of clined to abolish governmental Subsequently, Legislature the the enacted state. act, appears primary purpose have liability the of which non-sovereign governmental immunity units. been to restore Legislature provided purpose, the first To achieve this the provided, "[e]xcept as in this act otherwise sentence of 7§ agencies liability governmental be immune from tort all shall government agency engaged the in the in all cases wherein discharge governmental of a function.” The act exercise or statutory immunity govern- thereby uniform on all conferred non-sovereign political the state and mental entities —both engaged discharge units the exercise or of a alike—when that, governmental by restoring To function. make clear governmental municipal corporations immunity for functions making immunity the uniform of all entities governmental functions, waiving thereby for it was not sovereign non-gov- immunity state’s common-law absolute functions, provided Legislature ernmental in the second herein, "[e]xcept provided sentence of 7 that as otherwise this § modifying restricting act shall not be construed as immunity liability of the state it from tort existed hereto- fore, immunity which is affirmed.” The "which sovereign codified affirmed” clause the state’s common-law immunity except from tort absolute —an Legislature. it extent is waived unit, non-sovereign political engaged 3. A when in the exer- governmental function, statutory cise or has governmental immunity under the first sentence of 7. When 1984] Ross v Consumers (On function, in a it is not immune. defining emerged "governmental Three tests have func- tion”: 1) good common test: whether the is for the The all act good special corporate common of all without element of pecuniary profit;

benefit or 2) governing limiting "govern- essence of test: the term The generis governmen- mental function” to activities that are sui sector; analogy private tal in that have no common 3) governing upon inquiry essence test: founded purpose, planning, carrying activity, whether out of mandate, unique because of its character can effectively accomplished only by government. be the however, phrase "governmental cannot, The function” be single, readily applied Representative a reduced to test. factors deciding non-sovereign political to be considered in whether a engaged "governmental applied unit is in a function” to be specific activity plaintiffs to the that constitutes the a basis of complaint up and not be counted or tallied to a result reach are: 1) specific complained activity policy Did the of involve either quasi-judicial decision-making? formulation or 2) specific complained activity represent Did of a failure prevent subject governmental harm from not a source control? 3) specific activity complained Is the of a common without private analogy in the sector? importance vary The of each these of considerations will case, proper weight given from case to and the to each be independently light particu- factor must be evaluated in of activity plaintiff complains. lar about which the immunity public per- 4. employee The of a officer or from liability scope sonal tort for within actions of official au- thority performance and in the immunity of official an duties is separate sovereign governmental and distinct from immu- provision any nities. governmental Neither nor other § of the liability provides protection tort public act officers or em- ployees. apparent public It is immunity employ- that whatever provided by ees in have this state is the common law. When a immunity by public common-law claim of is asserted a officer or employee, generally factors considered are whether the officer employee: or 1) acting scope function; was within of his official Mich 2) faith; acting good was 3) policy-making quasi-judicial discretion- exercising or authority. ary employee public immunity granted scope officer or The specific any given character of act turns on situation of, job. general complained of the Accord- on the nature not employee ingly, that or has the officer it is determinative complained authority general discretionary if the act some discretionary properly deci- as ministerial. The characterized immunity protected are those intended to be official sions quasi-judi- policy are involve formulation and those that that legislators scope judges nature. acted within cial in If function, they absolutely immune. Other official are of their possess only public employees if official officers or function, they they their acted acted within the official faith, and, complained good specific activity byof when the upon, they quasi-judicial plaintiff is exercised focused discretionary authority. policy-making "govern- opinion phrase 5. Court states that the mental function” be construed in a "broad manner” should governmental agencies all because extends § liability they engaged exercise tort are all whenever discharge language function. The however, might just readily providing be a more read as immunity, absolving agencies all from limited all when in the exercise or agreed function. It can be Legislature legislative judgment has evidenced a clear public private differently. tortfeasors treated should be however, suggest, Legislature That does not that the intended governmental by to immunize of the most activities undertaken agencies. agreed mandating people, by It can also be that the or authorizing activities, government engage the to in certain governmental have determined that these activities are follow, however, mandating by nature. It does not or activities, authorizing government engage the to in certain the people government have determined that the should be im- every performance mune for each and act the connected with activity. government Virtually activity expressly of that all impliedly constitution, by or or mandated authorized the a statute, By perusing or other law. the books rather than statute focusing specific complained plaintiff, activity on the the far, governmental immunity the Court casts the net of too enabling governmental entity scope expand to the of its own (On Ross v Consumers Power 1984] immunity by promulgating relating an ordinance or other law to its activities. Ross, specific complained activity 6. In the of does not consti- "governmental weighing against tute a function.” The factors first, immunity involved, policy are: no formulation is nor is the activity quasi-judicial happens in nature. That the defendant not, itself, entity inject any be a does in and of degree policy Supervision activity. formulation into the and inspection generally of construction work has been held to be Second, operational warn, supervise, in nature. the failures to inspect respect specific to a construction site where a project progress construction was in did not represent prevent subject failure harm from a not source Third, activity control. the has a common analogy private sector; activity primarily it is not an performed accomplished by government. Thus, allegedly permitting district is not immune under §7 employees company of a construction hired the district to power construct the drain to work too close to Consumers’ lines Consumers, notifying warning without without the workers danger, supervising inspecting about the and without prevent addition, work so as to the accident that occurred. In hiring district is not immune under 7 for § a contractor properly competent. that was not licensed and I, public 7. In employees Willis officers or are not im- liability specific mune activity from for the that forms the basis plaintiffs First, complaint. all three defendants acted within scope Second, of their official function. the defendants were exercising quasi-judicial policy-making discretionary au- thority, performing but rather were a ministerial act. This unnecessary conclusion renders it to consider whether public employees good Knox, officersor Although acted in faith. Hunt, acting scope Nienow were within the of their official function, they specific are not activity immune because the complained permitting dangerous Willis to swim under of— circumstances —was not done in quasi-judicial discretionary the exercise of policy-making authority. II, 8. In Willis the defendants are immune. The state has statutory sovereign immunity liability pursuant from tort the second sentence of 7. statutory sovereign The except is absolute to the extent it has been Legislature. waived Legislature has not waived the state’s for torts committed connection with the operation state-operated juvenile facility. care Siener, 9. In the defendants are immune. The state and its agencies sovereign immunity have absolute from tort immunity of 7 pursuant second sentence unless § to the Legislature Legislature. the by The waived the been has waived respect immunity mental health centers with to state’s any recipient by providing mental of Mental Health Code sexually, shall physically, abused otherwise health services injunctive appropriate pursue other civil right have a to language Although this section be the of can relief. read any patient provide right who civil relief for mental health a abused, by Health inflicted a Mental that abuse is whether patient, underlying Department employee by another the purpose is to set standards Mental Health Code certain requirements recipients of of mental for the treatment employees by health of mental health services staff and legislative suggests a intent to facilities. The statute nowhere government injuries by impose liability inflicted on Legislature patients. not the state’s other has waived alleges sovereign complaint injuries immunity inflicted where a facility. by patient in a health another mental Siener, Rocco, although the Mental Health Code 10. provide complained injury where the does a cause action patient, by health nor does the of was inflicted another mental legislative constitute a waiver of Mental Health Code sovereign immunity provided by the state’s second sentence 7, speaks only language immunity of 7 from § § liability; grant immunity from contract claims. The it does not Nothing subject state is to action on contract in § claims. suggests statutory sovereign an intent to establish a relating plaintiffs for causes of action to contracts. Because the alleged separate legally have a distinct cause of action contract, implied breach an the cause should be remanded alleged for consideration of the merits of the breach of an implied contract. Regulski, 11. In neither the district nor the individual defen- dants are immune. School districts have the governmental agencies provided the first sen- sovereign immunity tence rather than absolute provided to the state the second sentence. The state and political separate pur- are subdivision and distinct entities for poses subdivision,” turn, of the act. "Political defined as including Accordingly, district. a school is a school district political with, synonymous and is subdivision therefore not but from, is rather distinct None of com- state. the activities plained plaintiff All the functions. weigh against Allowing immunity. plaintiff factors to work building project supervi- on a trades class construction no when present, adequate concerning sor was without instruction (On Ross v Consumers Power 1984] dangers proper work, doing involved and the methods for the safety goggles glasses, adequate without or and without emer- gency supplies mishap and facilities available in case a should occur, policy quasi-judicial neither involve formulation or are directly in nature. While the school district did not inflict the injury, adequately supervise the failure of teachers to teach or Regulski represented prevent a failure to harm from a source subject governmental addition, teaching to control. In has a sector, analogy private common in the and construction work involving generally performed by persons wood is or concerns government. other than The immunity individual defendants also do not have ofiicial against plaintiffs allegations. the Both the teacher of the class building program and the director of the vocational trades were acting respect within the of their ofiicial functions with to instruction, supervision, conduct, emergency prepara- the not, however, exercising tions of the course. The officers were quasi-judicial policy-making discretionary authority or with respect alleged. supervision to the activities The of classroom activities discretionary does not involve the exercise author- ity immunity to which ofiicial attaches. Trezzi, City engaged 12. In the of Detroit in the exercise of a function and therefore is im- pursuant mune to the first sentence of 7. The § determination priority given incoming assistance, to be to an call for light manpower of available and other demands for assistance time, policy regarding at the constitutes a decision the most police Assuming effective utilization of that emer- resources. gency operators guided by preexisting priority designa- a system, not, city tion adopting guidelines, change the did the nature of statutory the decision or immunity diminish its from liability. complaint The fact that the basis of the is that the government prevent failed subject to harm from a source not to weighs control immunity. Finally, favor the police classification of calls for assistance does not have a analogy private common in the sector. The coordination of requests police emergency assistance afforded the emer- gency system performed accomplished uniquely by government. Lakes, Disappearing 13. In agencies possess state and its sovereign immunity pursuant absolute to the second sentence of 7 unless that Legisla- has been waived Legislature The ture. has not waived for decisions granting denying dredging permits. Zavala, 14. In an officer’s decision to call and wait for back- Mich up in a disturbance consti- than to intervene assistance rather First, regarding how a decision a function. tutes peace not involve breach of the does to handle an observed nature, weighing quasi-judicial in policy formulation and not police immunity. complaint against that the officers failed shooting plaintiff injury supports prevent caused archetyp- immunity. presents perhaps finding This case a complaint relating government example to what the ical government should the claimant. A decision that did do for degree personal greater burdens of misfortune assume a arising individual citizens from harm- from its failure shield belongs political to the rather ful occurrences such as crime Third, back-up process. judicial a decision to await than immediately up distur- than act break assistance rather analogy private sector. bance not have a common does breaking up arresting fight those The task of concerning num- disorderly the decision conduct—and thus perform uniquely required safely that task ber of officers —is weighs performed accomplished by government. This factor and balance, immunity in the decision to in favor of this case. On request back-up rather immedi- and await assistance than act fight "governmental ately up function” for break City which of Detroit is immune under first sentence §7. acting scope of The individual defendants were within the fight function. The to intervene in a occur- their official failure ring away not evidence or a few feet does recklessness corruption purpose malicious did act where officers officers, however, requesting back-up assistance. The were quasi-judicial discretionary exercising policy-making author- ity. immunity. do not have officers official (1979) 687; App part. 93 287 NW2d 319 Mich reversed (1982) 30; App 113 Mich 317 NW2d 273 affirmed. (1982) App 179; 117 Mich 642 NW2d affirmed. (1982) 792; App 114 Mich 319 NW2d 674 affirmed. (1982) 418; App part. 119 Mich 326 NW2d 528 reversed (1982) 506; App 120 Mich 328 NW2d 70 affirmed. (1982) 61; App Mich NW2d 570 affirmed. (1983) 352; App 333 NW2d 278 affirmed. Viglione W.E. Wisner Dennis L. for Con- sumers Power. Matyjaszek,

Parker, Adams, Mazur & P.C. (by * (On Ross Consumers v 1984] Adams), James D. for John Saines Project Drain- age District. Ross:

Amici Curiae Pailen, Donald A. and Wil- Counsel, Corporation Abigail Dietrich, Woodard, liam Elias, William L. Counsel, Corporation City Assistant for of Detroit. Lang,

Bauckham, Reed, Travis, Schaefer & P.C. Travis), F. Robert (by Michigan for Townships Association. Fredericks, II, H.

Robert for the Oakland County Drain Commissioner and the Michigan Associa- tion of County Drain Commissioners. Cooney, Stanczyk

Plunkett, Watters, Rutt, & Joseph Pedersen, Walker, P.C. (by V. John P. Oldani), Jacobs, and Christine D. for the State Bar of Michigan, Public Corporation Law Section. Stephen Baxter & Hammond (by D. Turner Lipak) Robert S. O. Willis. Mary Kelley, Frank J. Attorney General, Louis J. Caruso, K. General, William Ba- Solicitor singer Casey, and Thomas L. Assistant Attorneys General, Nienow, Knox, defendants and the F. Department Alan Hoff- of Social Services and Casey, man and Thomas L. Assistant Attorneys General Department Health, for the of Mental Department Services, of Social Ypsilanti and Re- gional Psychiatric Hospital E. Theodore and Hughes Casey, and Thomas L. Attorneys Assistant General, for the Department of Natural Resources. Cholette, Perkins & Buchanan Edward D. (by Wells) for defendant Hunt. Willis:

Amici Curiae Eden, Wil- Goodman, Millender & Bedrosian (by Goodman), Mogill, Posner, & Weiss liam H. Cohen Cohen), Marjory Mogill M. B. Kenneth and (by Magid, Bush, Jody & Neal Bush Bennett P.C. (by and Lewitter), Goodman, Richard M. P.C. (by I. Lister), Harper, Hurwitz, & LaBelle E. Susan and Hurwitz) Michigan H. Law- Julie for Trial (by Stacey yers Association. Eugene Barris, Sott, & Denn Driker Driker (by Witus) Morley City Troy. for the Busch) Gary

Grant & Busch M. (by for Russell Siener, Jr. Christensen, Archer,

Charfoos, Gilbert & P.C. Southgate), for G. (by Adrienne L. Rocco. James Harry Whinham, Hirsch, Jr., E. R. D. counsel, Regulski. for James Cooper

Garan, Miller, Seward, Becker, Lucow, & Becker, Jr., Roch- P.C. kind), (by Millard Rosalind H. Hansen, defendants for Murphy, Wayne-Westland School District.

Lopatin, Miller, Erlich, Freedman, Bluestone, Silverman) Rosen & G. Bartnick Steven for (by Elvera Trezzi.

Marston, Sachs, Kates, Nunn, & Kadushin Larin), O’Hare, P.C. Elizabeth J. Disappear- (by ing Lakes Association and others. (Gagleard, Addis, Schwartz

Howard Imbrunone Gagleard, Gagleard, counsel) & by Michael A. plaintiffs Zavala. 1984] Ross v (On Consumers Opinion of the Court require Per Curiam. These nine cases us to tort reexamine from liabil- extent ity liability act, which the tort MCL 3.996(101) seq.; seq., et et and 691.1401 common law MSA

provide agencies, state and its non-sovereign governmental agencies, and the offi- agents, employees cers, and and these state local governmental agencies. hold: We

1) (state local) agencies and All statutorily injuries arising are liable for out of the keep highways repair failure to reasonable (MCL 3.996[102]), negligent opera- 691.1402; MSA government-owned tion of motor vehicle an (MCL agent, employee officer, 3.996[105]), 691.1405; or MSA dangerous or

and conditions defective buildings public agency’s control under (MCL 3.996[106]). 691.1406; MSA 2) (state local) governmental agencies All liability injuries arising have performance for out proprietary "Propri- function. etary any activity function” is con- defined primarily profit, excluding pecuniary ducted (see normally supported by activities taxes or fees 3.996[113]). 691.1413; MCL MSA 3) (state local) governmental agencies All injuries arising are immune from tort non-propri- out of the exercise or of etary, function. "Governmental any activity function” is defined as is ex- which pressly impliedly mandated or authorized agency’s constitution, statute, or other law. An ultra vires activities therefore not are entitled to immunity.

4) (state local) governmental agencies All vicariously negligent operation liable for the government-owned officers, motor vehicles their (MCL employees, 3.996[105]). agents 691.1405; MSA liability for all

Vicarious other torts Mich op the Court governmental agency imposed may on a be during acting agent, employee, officer, when its scope employment the and within the course of his engaged authority, in a tort while his commits non-governmental propri- activity or which is an etary, exception. statutory a within or which falls 5) highest legislators, Judges, executive and the government absolutely are of all levels of officials they liability are whenever from all tort immune acting legislative, respective judicial, their within authority. officers, em- Lower level and executive agents liability ployees, immune from and are they are when a) during employment and acting course of their the reasonably acting, are within acting, are or believe authority; scope the of their b) good faith; acting in and c) performing discretionary-decisional, opposed as ministerial-operational, acts. "Discretionary-decisional” which acts those decision-making significant that entails involve personal judgment. deliberation, decision, and "Ministerial-operational” acts involve the execu- implementation tion or entail decision and decision-making. only minor 6) acting agent, employee officer, If the or employment within the course of his and the authority, governmental agency may his pay engage, attorney; represent for, or furnish an agent, .employee officer, action; or compromise, pay, indemnify settle, or or claims judgments against agent, employee. officer, impose action, however, Such ity does not tort liabil (MCL upon governmental agency 691.1408; 3.996[108]). MSA (On Ross v Consumers

1984] Opinion of the Court Act I. The Governmental Tort Liability The causes of action each of these cases arose after statute was ena act, amended,2 cted.1 The title states it is liability uniform of municipal "AN ACT to make subdivisions, state, corporations, political agencies its departments, engaged when the exer- function, inju- cise ries to for persons; property to define and limit this liability; liability to define and limit of the state function; proprietary when authorize purchase protect against insurance to to arising liability; provide out defending loss certain claims of this against public paying made officers and them; damages sought the provide against provide or awarded legal public employees; defense of officers and public for of officers reimbursement and em- legal ployees expenses; repeal for certain to and certain parts acts and of acts.” governmental The act sets forth four categories activity for which liability tort may imposed. governmental be All agencies, both state and local3 are statutorily liable for bodily injury damage and property arising out of the failure 1 1964 PA 170. by 2 1964 PA 170 was amended 1970 PA 155 and 1978 PA 141. 3 governmental liability Section 1 of the act contains the following definitions: "(a) 'Municipal corporation’ any village, township city, means or township, thereof, any acting jointly. charter or combination when "(b) any municipal corporation, 'Political county, subdivision’ means township, township, district, district, port metropoli- charter school or district, any thereof, acting jointly, any tan district or or combination when and authority by political 1 formed or more subdivisions. "(c) Michigan agencies, depart- 'State’ means state of the its and ments, commissions, every public university and and shall include state, college and of the whether as a established constitutional corporation or otherwise. "(d) agency’ state, subdivisions, political 'Governmental means the municipal corporations 691.1401; and as herein defined.” MCL MSA 3.996(101). 567 420 Mich Court repair,4 highways

keep in reasonable their government-owned operation motor negligent aof agent, employee,5 agency’s by officer, or vehicle public dangerous conditions or defective and agency’s addition, buildings control.6 under the departments, agencies, and com its and the state proprietary in a when liable missions function. 3.996(102) part: provides 691.1402; in relevant MSA MCL any highway having jurisdiction agency over "Each repair that it is reason- highway so in reasonable the convenient shall maintain ably sustaining Any person public travel. for safe and any damage property reason of failure injury

bodily governmental reasonable to his jurisdiction highway keep any its agency under travel, reasonably and fit for repair, safe in condition and damages him from such may suffered recover county remedy under liability, procedure as to roads and agency. The provided in county be as jurisdiction road commission shall the section amended, duty maintain improved portion shall not outside travel.” 1909, 21, as chapter Public Acts of No. 283 of the 4 of Act Compiled being Laws of 1948. 224.21 of the section repair county and road commissions state and of the therefor, to the highways, extend shall and designed highway vehicular travel of the sidewalks, any other installation crosswalks or include highway designed portion for vehicular improved 3.996(105)provides: 691.1405;MSA MCL bodily injury prop- agencies shall be liable "Governmental officer, operation by any negligent damage resulting erty from the governmental agency, employee of a motor vehicle of in Act No. 300 of agent, which the the Public Acts of of the owner, agency as defined amended, being 257.1 to 257.923 sections Compiled Laws of 1948. 3.996(106) 691.1406; provides part: MSA in relevant MCL obligation repair agencies maintain "Governmental have open public buildings the members of under their control when for use agencies bodily injury public. are liable for Governmental resulting dangerous property damage a tive ing knowledge, reasonably necessary Knowledge condition of from a or defective governmental agency public building had actual or construc- if the and, acquir- knowledge for a reasonable time after of the defect remedy to the condition to take action failed or against protect public the condition. to public dangerous of the and defective condition repair conclusively presumed building to the same shall and time be apparent ordinary readily so as to be to an when such defect existed longer injury person period days before the observant for a of 90 or place.” took 3.996(113) 691.1413; provides: MSA MCL (On 1984] Ross Consumers v op the Court provides 7, broad §is heart the act which liability immunity to from tort agencies in the exer- are whenever discharge governmental function: cise or govern- "Except provided, all as in this act otherwise agencies liability shall immune from tort mental be government engaged in agency all cases wherein the exercise or a function. herein, Except provided as shall not otherwise this act modifying restricting immunity be or construed as heretofore, liability of the state from tort it as existed immunity 691.1407; which is affirmed.” MCL MSA 3.996(107). problems readily apparent interpret- Two ing provision. First, this the second sentence statu- (state) torily sovereign affirms the law of from tort it existed at the time the Thus, statute was enacted. Court this must exam- history sovereign immunity ine the to deter- parameters mine the exact of the state’s immu- "governmental nity. Second, function” is not de- struggled fined the act. This Court has for more century than a to reach a consensus on this term’s application myriad definition and in a of factual situations.

Finally, governmental agency act allows provide legal assistance and reimbursement of judgments against settlements and levied its offi- agents, employees cers, under certain circum- "The apply of the state shall not actions recover bodily injury property damage arising performance out of the aof proprietary function as Proprietary herein defined. function shall any activity mean which primarily purpose is conducted for the producing pecuniary profit state, however, excluding, any for the activity normally supported by taxes or fees. No action shall be brought against injury property the state for damage arising out of operation function, proprietary except injury or loss suf- July fered on or after 1965.” 420 Mich the Court of under However, not define the act does stances.8 agents, officers, and em such circumstances what may ployees for their tortious acts. liable be held question specifically of address the it Nor does agency may be held vi whether cariously theory under a of for such torts liable again superior. respondeat must resort an We parame analysis law to determine common liability. ters official presented by questions resolving act, this goal cohesive, uniform, to create a has been

our readily will define set of rules which and workable rights injured party’s and the agency’s recognize liability. that our case law We questions confused, irreconcilable, often on these guidance and to the bench bar. We and of little prior great to reexamine our have made collective and individual views efforts subject on this approach which is faithful to formulate an order legislative language statutory intent. and to the possible necessary, we have reaf- Wherever firmed prior our decisions. The consensus which produce today should not be viewed as our efforts this Court’s individual or collective determinations just what would be most fair or or the best public policy. reflect, however, The consensus does Legislature what we believe the intended law be in this area. (State) Sovereign Immunity II.

Although concepts "sovereign immunity” "governmental immunity” they related, origins have distinct and histories: " '[Sovereign’ 'governmental’ immu- True, nity synonymous. are not have been over decisions, years interchangeably used but a delin- 3.996(108). 691.1408; MSA MCL 1984] Ross v Consumers (On Opinion op the Court may helpful. Sovereign immunity specific eation be is a term application limited in its and to the State departments, commissions; boards, institutions, in- strumentalities is the State. The reason State only sovereignty government, the system in our except as part implicit the States their delegated sovereignty government. to the Federal construction, years, by judicial "Over the this 'sover- eign’ immunity transmogrified 'govern- has been into mental’ immunity applicable to the made 'inferior’ districts, government, i.e., divisions of townships, school cities, counties, villages, important but an with government distinction. enjoyed These subdivisions of the immunity when engaged 'governmental’ in as distinguished 'proprietary’ from Myers functions.” v Auditor, County Genesee 1, 6, 8-9; 375 Mich NW2d 133 (1965) J.) (opinion by (emphasis O’Hara, in the original). Sovereign immunity an ancient common-law concept predates Michigan that the statehood sovereign immunity centuries. The rule stated "sovereign” the that was immune suit unless from years, lawyers he consented the action. Over the judges have articulated two for bases this rule. developed perception first rationale from the (the sovereign king) the was somehow "di- king vine” or such, above the law. As the could wrong prop- was, no therefore, commit never erly explanation sued. The second was that king superior was to the courts which he had portion power. created and vested with a of his As sovereign wrong, such, while the could do there entity power judgment no was with to enter against sovereign. Only by sovereign’s (essentially, judgment) consent a self-inflicted party injury a could sovereign. recover for an caused rule, rationale,

This with its dual was Mich Court sovereigns in the all rule for the common-law century.9 nineteenth early forward, jurisprudence Michigan From statehood state) (the im- sovereign was recognized that suits, suits tortious mune from all including The rationale it caused. which had injuries be- never grounded sovereign immunity Rather, wrong. do no lief the state could Michigan because existed sovereign immunity courts, subject was not state, creator of Supreme As the or their jurisdiction. to them Hastings, State Bank v Michigan Court stated 1844): (Mich, 225, 236 Doug that, may while state principle "The is well settled courts, unless, indeed, sue, own it be sued in its cannot * * * jurisdiction. it to submit itself their consents legislature, conferring jurisdiction upon act of [A]n the courts case, particular usual is the mode rights the to submit its to which the state consents judiciary.” judgment of the Thus, Michigan rule held that the original the the except from all suits to state was immune it to be in its courts. extent consented sued however, not, Sovereign an abso As against lute bar to the state. noted recovery Hastings, Legislature did to could and consent 9See, Borchard, Tort, e.g., Responsibility in L Governmental 36 Yale 1, (5th (1926); Holdsworth, ed), History English pp J 17-41 3 Law 458-469; Jaife, Against Sovereign Suits Government Officers: (4th 1, 3-4, Prosser, ed), (1963); Immunity, 77 Harv L Rev 19-20 Torts 131, pp 970-971. non-sovereign Michigan, In the basis Supreme sovereign immunity. the state’s common-law As the Court explained Detroit, 246; 258; in Nicholson v Mich 88 NW 695 (1902): theory township represents city "The true the State or done, causing things State, enjoys in immunity these it to be and like * * * responsibility injury from in case of to individuals [because, imparting powers, portion imparts of its State also in] immunity.” own its 1984] Ross v Consumers Power (On Reh) Opinion of the Court by legislative In suits. the difficulties caused disposition against every claim led the state to the creation of the Board of State Auditors. The Legislature authorized board to hear and de against effect, state.10In cide claims of State Auditors exercised the the Board

"sovereign” legisla power sovereign tive to suit to consent or assert immunity. However, when the board chose appealable "suit,” consent to the issue was not Supreme As the state courts. Court stated in People Ayres Auditors, ex rel v Board of State (1880): 422, 427-428; Mich NW could, against claim the State under the old "[N]o Constitution, except Legislature. be allowed never, since, State has before allowed itself to be * * own *. sued its courts "* * * providing for a different method of deter State, mining proper against claims it was not deemed * * judicial power to include it within the *.”11 general 1920’s, In the most of this claims func tion was transferred to the State Administrative Among matters, Board. other the board was statu torily inquire pay into, settle, authorized injuries employees claims for incurred state during employment,12 the course of their and to pay damages arising entertain and claims for out negligent improvement, construction, highways.13 maintenance of state trunk line In. discretionary power addition, it had the to hear against arising and determine claims the state "negligence, from the malfeasance or misfeasance 12; 1850, 8, 4; 10 1842PA 1843 PA 74. also See Const art 1851 PA § 142; 1908, 6, Const art 20.§ 11 People Auditors, Dewey ex rel v Bd of State See also 32 Mich 191 (1875); People General, County ex rel Gratiot Treasurer v Auditor 38 (1878). Mich 746 12 1927PA 133. 131925 PA 374. 420 Mich 567 the Court commission, depart officer, employe, any state board, institution, or other

ment, * * *.”14 division Court of 1939, created the Legislature the In 135, was The Court Claims PA 2. Claims. § hear deter- given jurisdiction exclusive "[t]o demands, and un- liquidated all mine claims delicto, the against ex ex contractu and liquidated, commissions, departments, its any state §8(1). boards, institutions, agencies.” By arms state, over the jurisdiction with creating a court the basis for destroyed theoretical Legislature the entity was now an sovereign immunity. There state, against power hear cases with longer required. to suit no individual consent sovereign retained im- However, Legislature 24: from tort munity enlarg- be construed as in no manner "This act shall any present of its liabilities of state and ing departments, agencies.” boards, institutions, commissions, arms from suit and immunity The distinction between from clear in Manion liability was made Comm’r, 1, 19-21; v State Highway (1942). There, plaintiff injuries sued for NW2d employed while the State Highway received state to dis- successfully Commission. The moved on grounds miss suit were injuries the maintenance during highway, sustained determin- which was a function. ing Legislature what had exactly enacting majority 1939 PA waived wrote: 259. PA (On Ross Consumers Power 601 v

1984] Opinion of the Court State, sovereign, is immune from suit "The save as sued, any relinquishment it consents to be of ** interpreted sovereign immunity strictly must be *. sovereign immunity "There a distinction between sovereign immunity from liability. suit from sovereign engaged govern- latter exists when the in a may function. The mental former be waived without a of 24 waiver the latter. of court of claims Section * * * act reads: " enlarg- 'This act shall no manner be construed as ing present liabilities of any of State its departments, commissions, boards, institutions, arms or agencies.’

"I construe this mean the State’s liability from is enlarge while in a function preserved because the waiver of this defense would 'present liabilities the State.’ "The State is not liable in this instance because its sovereign immunity a liability performance from not function and because of its sover- added.) eign immunity (Emphasis from suit.”

Subsequent emphasized decisions the com- mon-law of sovereign doctrine immunity from tort could be waived or abrogated except by statute. Mead Michigan Comm, v Public Service 168, 173; 303 Mich 5 (1942); NW2d 740 v McNair State Highway Dep’t, 181, 187; 305 Mich 9 NW2d (1943). 52 addition, In sovereign from tort liability was recognized as a defense only when the state was engaged in the exercise of a governmental See, eg., function. Ed, Daszkiewicz v 212, 220; Detroit Bd of 301 Mich (1942); 3 NW2d 71 Mead, supra, 171; p Thomas v Dep’t 1, 11, State Highways, 5; 398 Mich fn 247 (1976); NW2d 530 v Bofysil Dep’t High- of State ways, 118, 126; (1972), App 222 NW2d Mich op the Court (1973).15 Mich

lv den 389 significant Legislature abolished sovereign immunity portion liability by from the state’s amending PA 135. The § 24 of 1939 injuries by the caused now liable state was misfeasance ployees employment. negligence em of its officers and acting of their within the while 237, § However, 1943 24.16 1943 PA 15 recognized injuries impliedly that had also Earlier decisions discharge agency’s occurring governmental troit of a of exercise a result a state as See, compensable. e.g., v De not Ferris function were (1899); Ed, 315; NW 98 Whitehead v Detroit Bd 122 Mich 81 of 490; (1905); Rapids Ed, v NW 1028 Daniels Grand Bd of Bd of 139 Mich 102 Ed, 339; (1916); 23 Robinson v Washtenaw Mich 158 NW 191 Brozo, (1924); 225; Judge, NW McDonnell v 228 Mich 199 618 Circuit Dist, (1938). City v 372 398 Mich See Pound Garden School 285 Mich Mich 38 also (1964); Michigan, 499; of McCann v State 127 NW2d 390 (1976). 65; Although several of these cases 521 247 NW2d education, governmental agencies have tradi of such involved boards tionally purposes. agencies liability state for been classified as 639, 644; Lowrey, Attorney 92 NW rel v 131 Mich ex Kies General (1905); (1902), 233; 27; 26 S Ct 50 L 167 289 199 US Ed aff'd 494; 1, Fractional, Whitehead, supra, p Sayers 366 v Dist No School Taylor, 217, 219; (1962); City Mich NW2d Pittman v of 398 Mich 41, 55-59; 114 191 J.), (1976) opinion Coleman, (dissenting of 247 NW2d 512 therein; Dep’t Highways, Bofysil 44 Mich v State and cases cited App of (1972). 118, 125; NW2d 205 222 Auditor, 1, 9; Myers County Mich 133 NW2d 190 v Genesee 375 (1965), nity sovereign immu- that common-law Justice O’Hara concluded statute, i.e., except provided by no was for there is absolute "governmental requirement. only function” was this erroneous Not (only county hospi- of a conclusion dicta tal was Furthermore, the issue), joined justice. opinion by at but the was one other opinion any supporting authority and the failed to cite any contrary. of to did not mention Finally, this basis of the aforementioned cases the any proposition never been decision of this has cited other distinguished Appeals was twice of on the Court and in the Court 96, 98-99; supra. Greisinger, Sayers, App See Picard v v 2 Mich (1965); #3, Primary 138 508 Green NW2d Williams School Dist 468, (1966). Twp, App 473; 142 NW2d 894 provided: 1943 PA 24§ 1, 1943, "Upon happening any subsequent the event to November action, gives hereby which immunity to a its rise cause the state waives liability employees from for the torts its officers and consents to have its for such torts determined in accordance apply court with against liability same rules of law as to action in the circuit an corporation, hereby an individual or the state assumes acts, upon jurisdiction hereby for such conferred (On Ross v Consumers 1984] Opinion op Court repealed PA PA 237 was soon thereafter resurrecting previous 87, 2,§ thus com state’s sovereign immunity liability. from tort mon-law 87, § 1, however, 1945 PA created a limited statu exception tory to this common-law —the damages arising state negligent out of the was liable

operation of a motor state-owned vehicle employee. fact a state The state was engaged at function the time of Legisla injury Thus, not a was defense.17 acknowledged impliedly ture the state en joyed immunity only it when was exercise or function. sovereign viability of the doctrine of immu- nity seriously not assailed until Williams v (1961). Detroit, There, 231; 111 Mich NW2d against court of claims to hear and determine all claims the state damages injuries property personal injury recover or for caused negligence employees the misfeasance or officers or acting employee. state while as such officer or Such claim must be pursuant procedural provisions submitted act. The injury of the court of claims (a) provisions apply any this act shall claim for prisoner, to or death or services rendered while an (b) penal institution; arising any injury inmate or aof claim out of the any an death of inmate of state institution in connection with the (c) surgical treatment; any property rendition of medical or claim for personal damage injury by Michigan troops or caused the state and/ guard or the national when called into the of service the state.” provided: 17 1945 87 PA "AN ACT to of abolish defense in function brought against Michigan; repeal certain actions the state of and to 1939, by section 24 of Act No. 135 of the Public Acts of as amended Act No. of 237 the Public Acts of 1943. brought "Section 1. In against all actions in the court claims of Michigan damages resulting state of negligent to recover from the operation by officer, agent employee Michigan an of of state a Michigan motor by vehicle of which state of is owner as defined 1915, amended, Act No. state of 302 Acts Public of as the fact that the Michigan ownership operation was in the of such motor vehicle, engaged governmental function, in a shall not be a defense Provided, however, to such action: That this act shall not be construed impose upon by provisions other owners of motor vehicles 1915, Act No. 302 the Public Acts of as amended. 1939, 2. "Section Section 24 Act No. 135 of the Acts of Public amended repealed.” hereby Act No. 237 of the Public Acts Mich Opinion of the Court in shaft an fell down elevator decedent plaintiffs of city furniture out moving building while city im- was city held that The majority offices. was in- injury because liability mune from govern- performing was city while the curred however, future, this In the function. mental Jus- joined not be so. Justice would Edwards, wrote: Smith, T. M. tices Souris, Kavanagh, judicial doctrine of this forward "From date longer no preceding immunity ordinary from torts case, Michigan. this we overrule exists Williams, supra, p contrary.” law court-made 250. However, concurring opinion Justice Black’s be from would held not for the state and municipalities, abolished its subdivisions: considering today opinions of

"We are not the—as suggest Brothers doctrine of both —'the purview That its immunity.’ the State institutions, ing are are doctrine includes within commissions, boards, departments, 'its * * * agencies.’ are consider- arms or We municipal corporations the common-law rule that immune liability. corporations’ 'Municipal from tort * * * distinctively definable and care should be Id., today’s p taken 278 decision confined thereto.”

(emphasis original). Thus, vote, a 4-4 sovereign was reaf position firmed. Justice Black’s thereafter Comm’r, McDowell v State Highway adopted (1961).18 268, 270-271; NW2d 18The McDowell Court wrote: " legislature received, considered, upon 'The has and acted such past, by in recommendations PA acts the as is the enactment of demonstrated 237, 1943, 1945, By by No and the enactment of PA No 87. these sovereign immunity the defense of and then first abolished 1984] Ross v Consumers (On Opinion of the Court of common- In reaction to this Court’s abolition municipalities governmental immunity for in law anticipation Williams, of a similar demise townships, villages,19 immunity counties, governmental Legislature the immu the enacted nity in 1964. The first of 7 was act sentence immu intended to not restore non-sovereign governmental agencies, nity to but provide uniform treatment for state and local agencies.20 Furthermore, affirmance of the corn- except upon negligent operation restored of State-owned motor vehicles. eign immunity obsolete, pattern form, as to causes of action based * * * However, the doctrine of sover- archaic, presently Michigan which exists the 1066, "king wrong” can do no edition of but consists of a legislative present of deliberate choices which achieved its concerned, by so far as the State itself is the enactment of PA * * * 87, 1960, by PA 33. No fact that the the amendment thereof No legislature amends a statute 1960 does show [T]he that the to, legislature giving continuing acting consideration to, respect sovereign immunity. express with the doctrine of If the sovereign immunity by legisla- re-establishments doctrine of obsolete, harsh, cruel, cetera, illogical, ture in 1945 is et then the legislature upon modify should be called abolish the doctrine. " concerned, sovereign 'So far as the State itself is the doctrine of immunity legislature. presently Michigan as it exists in is a creature of the by legislature, The doctrine has been modified abol- legislature, legislature, ished re-established and further legislature.’ modified * * * judiciary right power repeal no has statutes. [T]he "The legislature immune from present has willed that defendants be and remain plaintiffs alleged. for torts such as these have stand, legally, legislature There must until wills to the McDowell, contrary.” supra, 365 Mich 270-271. Sayers, supra; County, 110; See also NW2d 417 Lewis v Genesee (1963). counties, townships, common-law villages Auditor, and Mich Mich Myers County was abolished in v Genesee 375 377 1; (1965), Midland, County 133 NW2d 190 and Keenan v (1966).- 57; NW2d 20City Attorney Oak, Royal Michigan, Allen G. Hertler of a mem- special ber of the committee that drafted the act, stated: lobbying legislation, proponents "In heavily this its traded on paradoxical existing state of law which found State and its agencies, including districts, enjoying gov- school still the defense of immunity, municipal corporations longer ernmental while could no 606 420 Mich Opinion the Court of sovereign immunity in sen- the second mon-law tence of this Court

§ 7 a clear directive was not further extend Williams could henceforth immunity. sovereign abrogate judicially the state’s supra, Thomas, 398 Mich 10. See enacted, § Therefore, time 7 was state at the it en- when was was immune from gaged governmen- in the exercise exception ap- statutory function, was tal plicable. unless a immunity is reiterated This same §of 7. first and second sentences Subsequent of this Court did not decisions sovereign change parameters statutory im of munity. Tawas, 151; 188 In v East 385 Mich Maki (1971), the Court of NW2d 593 this Court affirmed Appeals § 7 was unconstitu determination title-object it clause of tional because violated the During pendency 1963, 4, § 24.21 Const art Legisla Court, however, the case this before immu ture amended the title of the nity problem. remedy act the constitutional It any significant respect.22 modify § did not 7 in Such Legislature action indicates that the did not intend change statutory sovereign gov to ernmental original

immunity from that intended in* the § 1964 version of 7._ employ sought legislation put this defense. We to achieve that would ** * government puts agencies all of on the same basis. This statute all government footing regard liability.” on the same with to tort Abels, Report Liability, Municipal of Committee on Tort L NIMLO 432, (1965). Rev 463-464 granted Section 7 was found unconstitutional because it immu- contrast, nity immunity liability. from all tort the title of the immunity injuries by negligence act created caused negligence tort, species alone. Since ally one 7 unconstitution- § conferred much broader than the title allowed. Section independent 7 was deemed from the remainder of act and was Maki, supra, severed. 385 Mich 158-159. defect, Legislature merely To cure the constitutional omitted negligence the reference to in the act’s title. See 1970 PA 1.§ changes merely stylistic. in 7 were (On Ross v Consumers . 1984] op the Court of Maki that statutory The net effect sover- eign did not exist 1, 1970, until the effective date of August ,of Legislature’s amendment the act’s title. Causes arising governed action before this date were Court’s common-law decisions. Pittman v City this (1976) 41, 46; Taylor, 247 NW2d 512 (opinion of C.J.). Kavanagh,

Pittman abolished subsequently common-law sovereign immunity as to case and those cases (the date Pitt 23, pending as of November 1976 decided) man was which had raised an express (i.e., challenge "governmental” to common-law sov ********************23 Id., However, ereign) 50.23 immunity. p the lead opinion specifically holding noted that its abol- determining authority In this Court had the to abolish sovereign immunity, opinion common-law lead the stated: reaching "In this result we reexamined the case of McDowell v Commissioner, (1961). Highway 268; State McDowell, 365 Mich 112 NW2d 491 In majority the of the Court concluded that 1945 PA 87 granted statutory immunity conclusion, tort to the state.' This we believe, Legislature was erroneous. The in 1945 PA 87 did not statutorily grant repealed governmental immunity. Rather, to the state tort it statutory immunity the waiver of in 1943 PA found 237 and immunity enjoyed prior returned the state to the common-law to the 1943 amendment. This conclusion was it had correctly explained by dissenting Justice Edwards in McDowell: " 'By 87], legislature 1939, repealed this statute PA [1945 PA 135, 24, 1943, 237, by No being as amended PA § No the amendment legislative grant right maintaining against tort actions By statute, legislature State. enactment of this moved to abolish judicial governmental immunity. the statute, statutory provision Mich By repealing doctrine of this legislature prior posture returned to its which was no ” subject Pittman, supra, on the whatsoever.’ 46-47, fn 1. 18, supra. Cf. fn majority given believed that the reasons Williams abolishing immunity municipalities common-law equally applicable addition, sovereign were no immunity. In there was good non-sovereign governmental reason to treat state and units Id., differently. p Pittman, however, applicability. Only 48. has limited pending 23, 1976, those involving cases or filed as of November causes (the arising August effective), of action before date 7 became § advantage sovereign could take of the demise of immu- common-law nity. Opinion of the Court statutory immunity; ished immunity common-law immu- conferred nity given effect, it was unless act had to be p 49, 8. Since Id., fn so. unconstitutional do Legislature long Pittman decided after was act, relevant it is not enacted and amended the determining legislative the sec- intent behind § ond sentence of 7. summary, enacted at the time 7 was enjoyed effective, from

became the state liability it was whenever at common law govern- engaged in the exercise or exception statutory function, mental unless a sovereign immunity applicable. This common-law § 7. The was codified the second sentence granted sen- the first to the state essentially this §7 with tence of coextensive interpre- immunity. note that this common-law We Legislature’s intent to create tation furthers non- for state and uniform standards sovereign governmental

agencies. Function” III. Definition of "Governmental Sovereign immunity from tort governmental agencies liability exist when "engaged of a in the exercise or are Although "govern- governmental § function.” 7. act, defined in the it "is a mental function” is not term of art which has been used by the courts govern- this state to describe those activities of public their nature should not ment which due to give v at common law.” Thomas rise Dep’t Highways, 1, 9; 398 247 of State Mich NW2d (1976). body a of case law 530 There is substantial question defining must term. The initial which this phrase "governmental whether the be resolved is light present- interpreted in to be function” is Legis- governmental day activities, or whether the (On 1984] Ross v Consumers Opinion op the Court meaning, have, § 7 to as its fixed lature intended definition which existed at the common-law § time 7 became effective. supra, pp majority 9-11, Thomas, a of the

In concluded that we were bound the com Court holding However, this mon-law definition.24 Highland Park, v overruled Parker (1978). holding 183; 273 In NW2d operation general hospital by city not a of a is joined function, Justice Fitzgerald, Kavanagh Justice Chief Justice Levin, wrote: Legislature believe that intended "[W]e [do not] operation today hospital

that we must hold the be a function because we did so in 1902 Kavanagh-Fitzgerald and 1950. As was stated in the dissenting opinion Dep’t High in Thomas v of State 1, 17, 4; (1976), ways, 398 Mich fn NW2d 691.1407; read second sentence of MCL MSA 3.996(107) 'preserving governmen for all time state recognized by tal heretofore case-law’ would Legislature recognize be to 'assume that failed to precedent the evolution of case law exclusively judicial government.’ committed to the branch of "Determining whether or not a activity certain is or 'governmental is not a interpretation. statutory function’ is a matter of legislative absence definition term, statutory interpretation is a function com- mitted to the judiciary. 'governmental The term func- tion’ particularly subject judicial interpretation phrase Id., because the judicial origin.” p is of 192._ majority phrases reasoned that words and which have ac- quired meaning interpreted a common-law in the same manner dealing subject when used in statutes with the same matter. The Legislature, using "governmental the term function” to describe governmental immunity, the limits of intended that activities which were considered functions when the statute was en- enjoy statutory acted immunity. should also This conclusion was bolstered the second sentence of which affirmed the case law precedent concerning sovereign immunity. 420 Mich Opinion op the Court Moody

Justice reached a similar conclusion in Id., his concurring opinion. pp 197-199.25 We decline this opportunity to overrule this aspect of Parker. We Legislature note that was certainly aware of our conflicting "morass” of case law concerning "governmental definition of function” when it enacted Legislature 7. The § could have statutorily term, defined the as it did with "proprietary 13, function” in but it has not Furthermore, done so. judicial development refinement of the concept func- tion allows us to keep abreast changing activities and needs government people. and its A. Prior Deñnitions of "Governmental Function” 1976,

Prior gener decisions of this Court ally fell into categories. two A governmental agency could not assert sovereign defense of from tort if it in a "proprietary” function26 or did not act for the good 1976, "common of all.”27 In 25Subsequent decisions of this Court did not overrule Parker on point. Perry 205; Hospital, this NW2d 421 In v Kalamazoo State 404 Mich (1978), Parker, day which was decided the same Justice joined by again expressed Ryan, Coleman, Justices Williams phrase "governmental their view that the function” must be defined Id., Moody by mentioned his remaining precedent. pp briefly common-law 210-212. Justice concurrence, id., contrary 215, p view in his but the However, three members of the Court did not. since these justices espoused Parker, position same four had the "anti-freeze” they Perry. it is clear that intended the same result in 1; Co, (1982), vRoss Consumers Power 327 NW2d 293 again expressed Ryan, Williams, Justices and Coleman their views. Id., pp Kavanagh’s opinion, joined by 14-15. Justice Chief Justice Fitzgerald issue, Levin, and Justice did not mention the but there is prior no indication that had abandoned their views. The late Moody part Thus, Justice took no in the decision. Parker was af- point firmed on this because of the 3-3 decision. Cooperrider, Court, Legislature, See The and Governmental (1973), Liability Michigan, Tort 72 Mich L Rev 229-237 cases discussed therein. Cooperrider, supra, pp See 219-229 and discussed cases therein. good recently The "common of all” test has been reaffirmed (On Reh) Ross v Consumers 611 1984] op the Court governing” by test was articulated "essence test, Under this a Thomas dissent. function is not particular governmental activity unless the in governing in volved is essential that it has no analogy private Thomas, common to the sector. supra, p (Kavanagh, C.J., J., and Fitzgerald, dissenting).28 governing” A similar "of essence to "governmental members of this Court as the several function.” See Tilford v sole definition of Wayne County Hospital, General 403 Mich (1978) 293, 301-302; (Ryan, J., concurring); Parker, 269 NW2d 153 supra, p (opinion J.), pp fn 3 of Fitzgerald, and (Ryan, 203-204 J., dissenting); 211-212; Perry, supra, pp Schools, Bush v Oscoda Area 716, 735, (1979) 2; (Ryan, J., 405 Mich fn dissenting); NW2d 268 J.). Ross, supra, pp (opinion Ryan, 6-8 of Sovereign governmental immunity and from tort has also governmental agency been denied at common law where the created types trespasses Cooperrider, supra, certain of or pp nuisances. See 238-249, and cases City discussed therein. See also Rosario v of Lansing, State 124; (1978), 403 Mich Dep’t 268 NW2d 230 and Gerzeski v Highways, 149; (1978), 403 Mich thorough NW2d 525 for a types trespasses. discussion of the different light nuisances and Lakes, Disappearing infra, of our resolution of at this time whether this we need not determine exception remains viable. 28The Thomas dissent wrote: then, 'governmental "The test purposes function’ for of the statute, phrased must be in terms of the nature of the specific function. 'governmental’ We conclude that a function is not particular this context activity unless the that this function entails is uniquely having associated with those activities analogy 'no common private sector imperative because reflect the element in to government, implementation right duty govern.’ this Thus, government only planning immune when it is carrying which, out peculiar duties nature, due to their by can be done government. governmental The mere fact that a agency doing a function’ if a certain act 'governmental does not make such act a private person corporation may Thus, undertake the same act. 'governmental function’ is by questions not delineated of the broad scope ations which activity of an undertaken or financial or insurance consider- may governmental be indicative of a undertaking, but by viewing rather precise allegedly action giving liability, rise to determining generis whether such governmental action is sui —of * * * governing. essence [Cjertain aspects of the exercise of the executive, legislative, judicial powers very their nature necessarily functions and removed from the undertak- * * * ings private sector. parameter "The 'governmental function’ will most often run along the line of distinction between planning aspects decisional and Opinion of the Court Moody, late Justice Blair created test was have activity that requiring than Jr. Rather Moody Justice believed analogy, no common "the show must agency activity, out of the carrying planning and purpose, man character or unique to its due accomplished only by date, effectively can be Parker, supra, p 200.29 government.” proved has of these tests each Unfortunately, to apply. difficult Function” Test. government Since

"Proprietary benefit, security, equal is instituted for the agency a governmental people,30 of its protection in a governmental it claim that cannot profit a for itself activity the makes when function this Court individuals. Decisions private or for much, if however, any, how differed, as to have before an activ generated can profit incidental be 13 By enacting to be proprietary.31 is deemed ity § act, Legislature governmental function” "proprietary adopted common-law gener it clear that activities which test but made be considered profit ate incidental still may an governmental functions: apply not to actions immunity of the state shall "The damage arising bodily injury property for recover performance proprietary out function any mean Proprietary herein function shall defined. hand, aspects governmental operational

of the duties on the one on Thomas, supra, pp 21-22. other.” Fitzgerald, J.); Parker, supra, p (opinion Perry, See also 193 (Kavanagh, C.J., supra, p dissenting). 215 test, activity question if the this Even did meet governmental liability agency could tort still be found immune from unacceptable liability govern- if such "would be an interference with * * Parker, ability govern supra, p Perry, ment’s 200. See also supra, p 214. 1835, 1, 2; 1908, 2, 1963, 1, 1; art 1.§ Const art Const art Const § § 229-237, Cooperrider, supra, pp See and cases discussed therein. (On Reh) Ross Consumers Power v 1984] Opinion of the Court primarily purpose activity which is conducted producing a state, pecuniary profit excluding, for the however, activity normally supported by any taxes or fees.”

However, 13 presents the enactment two § First, argued it if propri- can be problems. functions have been considered non- etary always nature, there would have been no 13. need to enact the first sentence of Stated § way, statutory another waiver of immunity proprietary from functions would been totally unnecessary have because such func- immunity. tions have never enjoyed We do not believe that is mere surplusage. § As with the second sentence of the Legislature "proprietary wished to function” codify test parameters and to define clearly thereof prevent this Court from further modifying Nevertheless, common-law test. in order to avoid rendering surplusage, the first sentence no we will longer "governmental define function” with refer ence function.” "proprietary question particular activity whether in nature involves proprietary separate inquir two ies. A agency performs which proprietary function is not immune from tort lia pursuant to bility 13; however, the converse is § true. An necessarily activity may generate no (i.e., profit be nonproprietary), but still may be nongovernmental nature, defined, as hereinafter and thus subject to tort liability pursuant 7.32 §

The problem second applies 13 only to § 32 interpretation recurring Such an satisfies the concern that proprietary/governmental dichotomy prem- function rests on a false ise, i.e., activity if an category, does not fall into the first it necessar- ily p Cooperrider, Parker, supra, p 282; falls into the supra, latter. See (opinion J.); McCann, and fn Fitzgerald, supra, (opinion Thomas, J.); Ryan, supra, (Kavanagh, 398 Mich 19 C.J., J., dissenting). Fitzgerald, Mich op the Court departments agencies, and com- its

the state gov- non-sovereign to include The failure missions. interpreted agencies as bestow- be could ernmental propri- immunity upon governmental ing their etary § 13 in such to read We decline activities. Legislature do not believe we manner because a result. intended such governmental act intended was

provide to both uniform agencies. governmental A strict and local state reading "expressio alterius” exclusio unius est uniformity. destroy As noted this § 13 would satisfactory supra, p 48, rea- Pittman, there is no non-sovereign governmental state and son to treat agencies "proprietary differently. Moreover, governmental exception to common-law function” immunity § 13 at the time was well established Legislature had wished to If the enacted. non-sovereign governmental this rule as abolish agencies, language. explicit done so in more it would have "propri- Therefore, reaffirm the common-law we etary exception to immu- function” nity liability, conclude that from tort and we statutory "proprietary function” is definition governmental agencies, applicable to all State and although governmental governmental short, 13 of local. immunity agencies, applies only act to state principles

the same terms and embodied judicially applied non-sovereign therein will be governmental agencies. aptly

"Common Good of All” Test. This test was supra, p Ryan Ross, summarized Justice 7: "common expression good "The all” has been used discussing century for more than a half in cases immunity. Originally, doctrine of it was distinguish activity intended to between (On Reh) 615 Ross v Consumers 1984] of Court exclusively public purpose opposed has an which special corporate pecuniary which is benefit or that 'of Lawrence, 387; profit.’ City See v of 225 Bolster Mass (1917). expression employed The was first in NE concerning jurisprudence in cases the immu our state’s nity municipal corporations to liability distinguish of 'governmental’ 'proprietary’ municipal between Comm’rs, Cheboygan County v Road functions. Gunther 225 Mich (1923). 619, 621; 196 NW 386 See also Martin Alpena, cited 595; (1950), son v NW2d recently expression cases therein. More has in governmental interpreting been used cases 3.996(107) 691.1407; MSA MCL describe standard activity agency an which judged to be a function and therefore immune from at the common law.” proponents to governing” "essence test have good criticized the "common of all” test. argue They agencies often en- gage in which activities contribute arguably Nevertheless, common good. these same activities accomplished are often non-governmental enti- ties which do enjoy from tort liabil- ity. The fact a governmental mere agency an engages activity such does not convert activity into a governmental Ross, function. supra, pp (opinion Kavanagh, 29-30 J.); Parker, supra, J.). pp 194-195 (opinion Fitzgerald, criticisms, Aside from these we also note that. the "common good all” test is rather amorphous and difficult to apply. Almost all government activ- ity is some sense directed toward the public good. Nevertheless, it is rare a particular when activity benefits every member state equally. For example, a hospital, state mental such as that involved Perry, theoretically open member every of the state who requires psychiat- ric practice, treatment. however, a small percentage of the state population uses actually 420 Mich 567 Opinion of the Court municipal hospital, Similarly, facility. such the. only generally open Parker, is that involved though public it is a facil- local even

to residents although Finally, ity. constructed the drain designed, planned, constructed, and main- Ross was compre- pursuant Code’s to Drain the state tained hensive directly management system control, it of water County only land- the Jackson benefited applica- drained. Because land was owners whose tion of the "common in either viewpoint good could result of all” test upon immunity liability depending particular decision-maker, we incorporate this test into definition to decline "governmental function.” Governing” tests Tests. These "Essence to/of attempts pinpoint represent those describe and uniquely generally associ- and activities which Relatively government. few activities ated with qualify the "essence of under can governing” no have common test since must analogy private sector. As the Thomas to the grant generally noted, their test would dissent legislative, judicial immunity decision-making executive, planning execution of —the susceptible these would be tort liabil- decisions supra, govern- ity. pp Moreover, Thomas, 21-22. appear unique mental a which at the time activities particular may case is decided not be so in the enterprise future. Private has ventured into such "unique” providing private security activities as establishing jail forces facilities. Some activi- governmental agency required by ties which a provide public, law to undertake and to the consistently which have from tort been afforded liability, private have common sector e.g., counterparts, public mental schools and state health facilities. Moody’s governing” pro- Justice "essence test (On Ross v Consumers 1984] Opinion of the Court flexibility it vides more because focuses on activity effectively whether can be accom- plished government. Unfortunately, only by this example, approach is also flawed. For as noted in J.), supra, (opinion pp many Ross, 23-24 Ryan, privately storm drains in the state are financed require and built individual landowners who companies may them. Private construction to be able engineer, construct, and maintain drains more effectively drainage than the local district. Never- drainage theless, the fact remains that the district statutorily responsible providing an efficient systematic drainage system safeguard public enterprise may health and welfare. Private engage activity also decline to in or abandon an public good (e.g., hospital which benefits the facility) sufficiently health care profitable, because it is not effectively not because it cannot accom- plish governmental activity. agency If a there- responsibility provide after assumes the in order to necessary public or continue to make available liability. services, it risks tort Finally, specify precisely both tests fail to what activity must be Ross, evaluated. As noted in supra, pp (opinion J.), 22-23 if the actual Ryan, physical drain, sewer, construction of a or other public project activity is the which must be evalu- immunity gov- ated, will never be afforded to the agency ernmental which undertakes the construc- private itself, tion since the sector often under- projects. takes similar This would be true even project where the is mandated statute.

B. New Deñnition of "Governmental Function” problem

The fundamental with the "common good governing” of all” and "essence to/of defini- "governmental they tions of quire function” is that re- judiciary judgments to make value as to 420 Mich 567 op , the Court government allowed to should be activities which being responsible engage for the held in without type consequences This thereof. unfortunate subjective legitimate necessarily inquiry results opinion. contrast, difference expressed provided by liability 7 from tort language possible immu- extends broadest —it agencies governmental nity all tort liabil- to all ity discharge in the exercise or are whenever governmental This function. broad coupled grant immunity, the four when with suggests exceptions, statutory narrowly drawn "gov- Legislature that the term intended interpreted in a broad function” be ernmental manner. completely Legislature’s to abolish

The refusal immunity, despite sovereign governmental attempts so, evidences a recent to do this Court’s clear legislative public private judgment differently. treated This dis- tortfeasors should be parate totally unjustifiable. treatment Commission, after an extensive and California Law careful study problems presented by sover- eign immunity, concluded: problems drawing "The standards involved merely difficulty. immense Government cannot be private persons public liable as fundamentally persons and revoke occupations. persons are for entities are private persons.

different from Private persons do not make laws. Private do not issue engage professions licenses to in various persons quarantine Private do not sick mentally persons and do not commit disturbed involuntary persons confinement. do not Private prosecute and incarcerate violators of law or admin- prison systems. Only public required ister entities are streets, to build and maintain thousands of miles of highways. many private persons, sidewalks and a Unlike public entity potential often cannot reduce its risk of (On 1984] Ross v Consumers Opinion op the Court engage particular refusing activity, liability by govern required continue to and is government must provided adequately be services that cannot to furnish Moreover, system gov- in our agency. other by any ernment, decision-making among has been allocated government legislative, executive three branches of — many cases made judicial decisions —and subject not be legislative and executive branches should damages, this would take in tort suits for to review the ultimate those who are decisions.” Recommendations & decision-making authority away from making responsible politically for Reports, Law Revision Comm California (1963). Studies, p 810 objective therefore must be to devise an Our task "governmental function” which definition of will judgment. legislative further this simple, 1, § 1 art sets forth a funda- Const concept government. mental people. political power "All is inherent Govern- benefit, equal security their ment protection.” is instituted for organized society, people, through In our they state constitution have ratified and the laws representatives elected, enacted have re- quire government perform or authorize their People certain activities in their behalf. allow government variety to handle these for a matters group people Often, of reasons. cannot an individual or accomplish activity project an because financing required, of, e.g., amount of involved, tremendous risks the or the size or project activity. Regardless reason, people delegated however, the fact that have responsibilities government these belief that a which the their indicates

particular activity or function is one government must or can undertake to meet their individual and collective needs. 420 Mich op the Court mandating people, by authoriz- words, or

other ing engage government activities, in certain govern- these activities determined have mental in nature.

Conversely, or are not mandated activities which the govern- people deemed cannot be authorized engages governmental agency in a mental. When acting itself, activities, it rather than is such people. situations, In these on behalf of the agency private same as a be treated the should tortfeasor. governmental that a

We therefore conclude activity expressly or im function is an pliedly which is constitution, or authorized mandated governmental statute, agency a or other law. When engages or authorized activi mandated liability, ties, it immune from tort unless the 13) (as activity proprietary §in in nature defined statutory excep or falls within one of the other governmental tions to the act. When governmental agency engages activity in an ever a impliedly expressly which is not or mandated or by constitution, statute, authorized or other law (i.e., engaging activity), an ultra vires it is not exercise or a func any injuries agency tion. is therefore liable for damages incurred as a result of its tortious conduct.33

We realize that the definition we have formu- decision, today’s The dissent states that under entity expand immunity by promulgating can of its an ordinance or other law. If the agency activities which the expressly when the tort was committed were not impliedly constitution, statute, mandated or authorized or other (i.e., vires), pass law the activities ultra were it cannot thereafter retroactively possibility law which would authorize the activities. The governmental agencies requiring will now enact laws or authoriz- ing merely against activities to immunize themselves future unknown suggestion is remote. The of such devious motivation is unwarranted. (On Ross v Consumers 1984] Opinion of the Court encompasses today most of is broad lated agencies. by governmental undertaken activities approach adopted believe because we this haveWe enactors of the envisioned this is the result that note, governmental how- act. We the statutorily may modi- be ever, our definition that accurately and the desires more fied to reflect public. needs Agencies Liability of Governmental Vicarious

IV. Employees, Officers, and for the Torts Agents Their agency governmental liability can The tort plaintiff premised The theories.34 on two distinct be agency allege acted, may failed to itself or the that situations, manner.35 such act, in a tortious directly agency its torts if liable for held will be activity a it constituted in which was proprietary non-governmental function, or fell or "highway,” statutory vehicle,” "motor within the building” exceptions. "public or govern- allege plaintiff may also The vicariously agency torts of liable for the is mental agents. employees, officers, This vicarious and its premised employer-employee liability or on 34 527, 532, 540-541; Kirkeby, 149 Mich 248 NW2d In Galli v plead (1976), plaintiffs held that must four members of this Court i.e., they complaint immunity, must in their in avoidance of facts alleged justify finding allege tort does which would a facts sovereign governmental immunity. concept of or not fall within the stating may accomplished by one of a claim which fits within This be pleading statutory exceptions that the or facts demonstrate the tort which non-governmental during discharge of the exercise or occurred Ryan, McCann, supra, p (opinion proprietary or function. See J.). Sovereign governmental immunity are not affirmative defen ses, prevent imposition government which but characteristics of 541, Galli, 5; supra, p liability upon governmental agency. fn McCann, supra, p fn 1. course, through agency its can "act” Of however, entities, officers, corporate employees, agents. with As itself, agency rather than some acts are deemed to be done an individual. 420 Mich

Opinion of the Court relationship principal-agent which exists between agency the individual tortfeasor. Plaintiffs impose liability though even often seek to governmental agency played part tort, no nothing encourage it, did may whatsoever to aid possible stop everything

have done it. See (4th ed), p Prosser, 69,§ Torts 458.

Unfortunately, plaintiffs clearly often do not differentiate between direct and vicarious pleadings. problem theories part their lies with the act. The act primarily upon agency focuses itself. The only the actions of the exception vehicle” in 5

"motor is the agency instance where a explicitly vicariously negligent held for the liable agents. employees, officers, actions of its Sec agency attorney 8 an tion authorizes to furnish an appear pay judg on behalf of or claims and against employee ments rendered negligently an officer or who injuries causes while the course of employment acting scope and within while authority.36 agency permitted his or her An is also 36 691.1408; 3.996(108), amended, provides: MCL MSA "(1) Whenever a claim is made or a civil action is commenced against employee governmental agency injuries an officer or of a persons property by negligence employee or caused of the officer or employment acting scope while in the course of and while within the authority, governmental for, agency may pay engage, of his or her attorney or furnish employee the services of an to advise the officer or appear represent as to the claim and to for and the officer or employee governmental agency may compromise, in the action. The settle, pay and the claim before or after the commencement aof civil judgment damages action. officer action for or against Whenever a is awarded an employee governmental agency or of a as a result of a civil personal injuries property damage or caused the officer employee employment acting while in the course of and while scope within authority, governmental agency of his or her the or may idemnify mise the settle, employee pay, compro- the officer or [sic] or judgment. "(2) against When a criminal action is commenced an officer or employee officer or governmental agency upon based the conduct of the employee employment, employee in the course of if the believing acting officer had a reasonable basis for that he or she was (On Reh) Ross v Consumers Power 623 1984] Opinion of the Court purchase liability § to insurance in order under to indemnify protect officers, and itself and/or its employees, agents.37 agency However, if the any action, to take of the aforementioned decides impose any liability on the such action does not 8(3), agency. §§ 9.

Despite general the. act’s silence as to if or when upon liability may imposed vicarious governmental be impliedly agency, this ac Court knowledged the continued existence of common- respondeat superior recovery law theories Lockaby Wayne County, 65; 527; v 406 Mich 276 NW2d (1979), Kirkeby, Galli v 398 Mich 248 NW2d (1976), Michigan, v 65; McCann (1976). Nevertheless, NW2d courts must destroy agency’s immunity by be careful not to an indiscriminately imposing liability vicarious when employees, agents officers, ever individual personally held for their liable torts. Allegations liability generally of vicarious tort employment relationship arise an where exists governmental agency between the and the individ- authority alleged within the conduct, of his or her at time of the for, agency may engage, pay or furnish the attorney employee services of an action, to advise the officer as to the in the appear represent employee and to for and the officer or employee legal action. December expenses An officer or who has incurred after prescribed may 1975 for conduct in this subsection expenses obtain reimbursement for those this under subsection. "(3) impose any liability This section shall not on a agency.” 3.996(109) 691.1409; provides: 37MCL MSA purchase indemnify protect "The insurance to governmental agencies against protect agen- loss or to officers, agents, employees cies and some or all on any against of its loss it, any judgment them, against arising account of secured or out of personal injury damage claim property for or such caused officers, authorized, agency, employees, its or and all governmental agencies premiums pay are authorized to insur- the any ance out policy of current funds. The existence of of insurance indemnifying any governmental agency against liability damages any is not tal governmen- a waiver of defense otherwise available to the agency in the defense of the claim.” the Court of gener liability superior Respondeat tortfeasor. ual imposed individual the ally where be can during or her her of his course the acted tortfeasor employment scope his or of the within met, is not authority.38 conditions these If either of vicariously agency held be cannot a liable: under municipality liability of a the question of "The subject, ordinar- superior respondeat of the doctrine any liability of govern the rules ily, to the same Thus, appear it must corporation or individual. other scope of acting the within agent servant was that an complained of injury the the time authority at his occurred. corporation is not, municipal If he was must Also, agent or servant of the the act not liable. * * * employment. in the course have been done * * * unau- liable for corporation is municipal not] [A employees officers and of its and unlawful acts thorized which are outside although authority, scope of their it corporation; on the behalf purported to be done expressly persons were appear that such must further the acts government to do municipal by the authorized pursuance of, they done in complained or that were municipality, on authority to act for general corporation municipal A subject related. which unautho- however, unlawful and liable for an may, rized act of one of be agents if the act was its officers or employment, duty his in the course of official done and Jur 57 Am scope authority.” his general within the School, 2d, Liability, Municipal, and State Tort 88, pp 99-100. during the the tort is committed Even when employee’s scope employment and is within the course of governmen- employee’s authority, tort, an individual tortfeasor’s status as The existence of a contractor, etc., question employee, agent, independent whether acting during employment and within the tortfeasor was the the course govern- authority, corresponding extent of the and the generally agency’s determined vicarious tort will be mental with reference agency principles. to common-law tort and (On Ross Consumers v 1984] op the Court automatically agency liable. Where is tal acting of an on behalf tortfeasor individual employer, activity on the focus should be engaged in time at the was the individual which governmental agency A committed. tort was vicariously officer, when its liable be held can employee, during acting agent, the course or scope authority, employment within and activity engaged which in an tort while commits is proprietary, nongovernmental or which falls agency exception. statutory is vicari- within a ously it is in because in these situations liable performing furthering interests or its own effect activities for which statutorily

liability has been activity imposed. However, in which the if the engaged tort was the time the was at tortfeasor discharge of exercise or committed constituted (i.e., activity governmental function a expressly impliedly or authorized mandated law), agency is constitution, statute, or other governmental pursuant im- § 7 of immune munity to Hirych Comm, 376 State Fair act. See v (1965), 384, 391-393; 136 NW2d Mich City, 48, 50; 130 Sherbutte v Marine (1964) vicariously (city held cannot be NW2d liable for torts of its

police officers committed during because the officers the course of an arrest govern- engaged police activity, were which is immunity). mental function entitled type require plaintiffs analysis This will plead precision precisely. more Such their causes action necessary to ensure that agencies retain the full extent of from Legislature liability which the intended. Immunity V. Individual immunity, sovereign

Like granted scope from tort 420 Mich Opinion of the Court employees, agents officers, agency presently

is not clear. Prior to offi- agents employees, cers, were immune when discretionary, opposed ministerial, acts which were within the ity. (1867), of their author- Trumbull, In Wall v 235-238 explained Cooley Justice that the members township of a authorizing board could not be held liable for allegedly illegal

an tax: determining "In whether the members of the town- liable, ship voting board the allowance are the first is, question which arises whether the nature of their judicial, duties is liability or only; ministerial for the rule of altogether different the two cases. A ministerial officer has a line of conduct marked out for him, it; nothing and has to do but to follow and he must any be held liable for failure do so which results in officer, injury judicial the hand, another. A on the other powers has certain confided to him to be exer- according discretion; judgment cised to his and the oppressive compel law would be which should him in every correctly peril. case to decide at his It is accord- ingly lie very great antiquity a rule of that no action will against judicial any officer for act done him in functions, act, judicial provided the exercise of his though mistakenly, done were within the of his jurisdiction[.] principle pro- This [Citations omitted.] record, tection is not applies confined courts of but it * * jurisdictions as well to inferior *. Nor does rule depend upon not; whether the tribunal is a court or it is performed the nature of the duties to be that deter- application. mines its "[0]fficers, judicial ministerial,-have as well as been * * * acting held liable when rule of jurisdiction. without exemption depends upon

official in these cases jurisdiction; appears but wherever that and is not ex- ceeded, protection complete. "The jurisdiction board then had to determine not, whether the claim within the law or and their (On Ross v Consumers Power 1984] Opinion of the Court claim, record, showing presentation of the would affirmatively jurisdiction. show pass upon claims liberty "If at these we were record, ourselves, appearing in I upon the evidence this correctly to think the board decided should be inclined claims, as to others. But as to nothing of the and erred some apparent injustice of be more than the could against them in reviewing their decision a suit particular claim was within trespass. whether each For not, depend upon proof as to the law or would upon the money whether the was advanced credit showing point township; might very on this be and the board, different and in the circuit court. To before responsible hold members of the board in such a case, we must not hold them bound to decide correctly them, peril, upon presented their at the evidence peril they

but we must also hold that at their legality must come to the the as to same conclusion judge claim which the circuit will afterwards arrive at on hearing, may another when testimony be either upon, more less than acted and when even story. may the same witnesses told have a different proposition

The mere statement of a such seems to me sufficient to refute it.”39

The doctrine of individual immunity even sur- vived the abolition governmental of common-law immunity. Justice in his in opinion Edwards, Williams, supra, 261-262, 364 Mich wrote: are and will "[T]here continue to be many situations in relation to which real or grievances fancied exist where freedom persist from will 39 Other decisions which have followed this rule include Gordon v Farrar, Doug (Mich, 1847); Raynsford 2 411 342, Phelps, v 43 Mich 344-345; (1880); Amperse Winslow, 5 234, NW 403 244-245; v 75 Mich (1889); 42 Jenks, NW 823 275, v 276-277; Pawlowski 115 Mich 73 NW (1897); Detroit, 238 246, Nicholson 255; v 129 (1902); Mich 88 695 NW Black, 281, v 292; Stevens 212 Mich (1920); People 180 NW 503 v O’Connell, 410, 414-415; 214 Mich (1921); 183 195 NW Sherbutte v City, 48, 54; (1964). Marine 130 NW2d 920 See also Little- john DeMars, & Immunity Governmental Perry: After Parker and The King Wrong, 1, Can Do Some 1982 Det C L Rev 34-35. Mich 567 Opinion of the Court bodies, ex- Legislative for grounds. wholly on different types right many of decisions to make ample, have Subsequent history may harm to some. may do which were of some those decisions demonstrate that clearly wrong. long right to be So implies the wrong. Discretion in vested are within discretion decisions as those the clearly neither breach body, there is legislative case, damages. The instant right to duty nor a action, the fact that any in manner alter does not or decisions executive, legislative, judi- actions cial character scope performed within which are body or officer concerned authority of the liability. from enjoy freedom continue to making in great powers decision people place "The discre government. exercise of the tionary their hands of governmental duty runs the benefit of power, to It is to public, rather than

the whole individuals. importance this function of demo great that crucial unhampered by litigation.* making be cratic decision "* negligent performance of liable for the officials are 'Government ** * discretionary for not liable their their ministerial duties acts within the but are * * * alleged authority, it is even if of their * ** designed maliciously. to Such acted possible practice protect guilty, such "if it confine were recovery. deny complaints guilty, The it is be monstrous to the would impossible justification doing it know whether the so tried, until case has been and that to submit claim is well founded officials, guilty, as the to the burden of trial all the innocent well outcome, danger dampen its would the ardor and to the inevitable of all resolute, irresponsible, unflinch- the most most but * * * ing discharge it has of their duties. In this instance been wrongs thought in the end better to leave unredressed the done try duty subject dishonest officers than to those who to do their Hand, J., Biddle, Gregoire constant dread of retaliation.” Learned v 579, District, 2,1949].’ Muskopf Corning Hospital v 177 F2d [CA 211, (11 95, 89, 94, Rptr [1961]).” Cal Cal 2d 359 P2d 457 act does not ad- employ- officers, dress whether or when individual agents liability. ees, It immune from tort agencies merely governmental authorizes to de- indemnify, employees fend, and insure officers and negligent during who have committed torts acting employment of their course and while (On Ross Consumers 1984] v - the Court authority. Thus, §§ 9. of their within immunity scope of individual existence judicial decision-mak- to be creature continues ing.

Unfortunately, decisions of this Court two recent precise parameters of individ- have obfuscated immunity. Schools, 405 Bush v Oscoda Area ual (1979), plaintiffs sued a 716; 275 NW2d 268 Mich principal, superintendent, district, its school a teacher dent concerning injuries a stu- incurred explosion. during Three a science classroom summarily Court concluded that members of the against complaint a claim the individ- the ual stated J.). (opinion p Id., defendants. Levin, joined by Justice Chief Justice Moody, Coleman, superintendent, principal, wrote that teacher were immune from nary

liability for their ordi- negligence performing they because "were primarily discretionary activities that are of es- government” public sence to and which were p Id., nature. only 734. Justice believed Williams public employees vires ultra activities of protected are not be- discharge cause the exercise or function is not that school district and of a Ryan Id. involved. Justice stated applicable defense was if the in the employees engaged were exercise or function. pp Id., 734-735. The end result was that the indi- employees vidual officials and were from immune unless had been in ultra opinions vires activities. None of the mentioned "discretionary/ministerial” the traditional test. Lockaby Wayne County, v 65; (1979), NW2d added to the There, confusion. an brought against Wayne action was County inter alios county Sheriff and the administrator of the jail for the intentional assaults and mistreatment Mich the Court of jail personnel. Justice unidentified

of inmate an Fitzger- Kavanagh joined Justices Levin, although sheriff could concluded that ald, deputies by responsible acts of his for the be held responsible for his own acts statute, he was employees negligence who tortious acts of and the pursuant deputies the common-law were not superior. Similarly, jail respondeat doctrine negli- responsible his own administrator recognized Although gence. Justice Levin immunity government at limited officials have immunity law, the as to whether common actually decision Id., until after trial. deferred existed was pp 77-78. county Moody officers

Justice wrote that acting scope employees, of their while within (i.e., maintaining operating employment a public performing jail), primarily essential were immune from tort liabil- duties and therefore were ity negligent and selection of for their actions plaintiff allege personnel. addition, had failed or or administrator had committed sheriff p any Id., acts. 84. The re- condoned intentional agreed maining reasoning. justices essentially with this three pp 79, However, Id., 82. Justice Wil- may pro- liams noted that intentional torts be long governmental immunity they as as tected do not constitute ultra vires activities and are scope a within the exercise and pp Id., function. 82-83. tendency this Court to define individual immunity respect "governmental with function” blurring separate inquiri has criticized as been two immunity Williams, es.40 As noted individual may sovereign exist where immu example, nity agency does not. For 40See, e.g., supra, pp DeMars, Littlejohn & 37-38. (On Reh) Ross v Consumers Power

1984] Opinion op the Court statutorily which runs mandated authorized activity proprietary that is nature would not be However, entitled officials decisions as to how the under those 13. employees required who are to make

proprietary activity must be carried out should be entitled to as long acting within the their of employ- authority during and the course of their immunity ment. Individual exists to ensure that a free decision-maker is to devise best overall particular problem, solution to a the undeterred people injured by fear those few who are bring will suit. We decision therefore will no longer parameters define the of immu- individual nity with reference to whether the tortfeasor was engaged govern- in the exercise or mental function.

The "ultra vires” element of the im- individual munity By definition, test has also its drawbacks. ultra vires activities are those are which unautho- scope employment. rized and outside the of Offi- engage employees cials and who in such activities liability, have never been immune from tort even "discretionary/ministerial” under the traditional present However, test. under the of formulation immunity test, the "ultra vires” is extended to every public employee, agent official, and when- they engage including ever acts, authorized merely those which are ministerial. Such broad justified immunity prior individual is not either present-day case law The realities. mere fact employed that agency individuals are responsibility does not relieve them of the perform properly their duties and conscien- tiously.

Michigan’s "discretionary/ministe- traditional approach immunity rial” to individual is some- jurisdictions. what different than other 420 Mich op the Court immunity all absolute law affords Michigan case for both officials, agents employees, public are they whenever torts negligent intentional acts within in discretionary engaged contrast, jurisdictions other authority. their de- levels different have extended officer. Absolute upon the function pending granted judges, liability immunity from officials all highest executive legislators, acts, as for malicious government, even levels of respective within their acting long are Lower legislative, authority. and executive judicial, officers, are extended agents employees, level This exists immunity. only qualified discretionary the individual when An em- faith. performed good which acts per- negligently therefore risks ployee acts, good faith. regardless ministerial formed 987-990, 132, and cases cited Prosser, pp supra, § Im- DeMars, & Governmental therein; Littlejohn King Can Do Perry: Parker and After munity L Wrong, Some 1982 Det C Rev 25-27. based treatment of individuals disparate This justified function has been upon their official follows: through grant immunity "It assumed the broad is and, public employees officials

to certain therefore, these governmental agencies, will not be their discharge public in intimidated nor timid duties. of their Although immunity may necessary be absolute governmental decision-making, courts unfettered reluctant, pro- its understandably, have been to extend public beyond tection gated select who are dele- employees powers. policy-making "* ** policy provides limited only The which officials, immunity to lower level executive unlike the recogni- justifications immunity, for absolute reflects a 1984] Ross v Consumers (On Opinion of the Court that official should not shield tion malicious intentionally or unlawful behavior when the actor is broad, essential decision- Holding public making. these servants liable does not hamper or intimidate them the faithful they responding their duties administrative are since to established guidelines, regulations pol- and informal assumed, therefore, icy. It that an unreasonable an system burden does not fall on administrative when courts hold employees lower level executive liable for performed Littlejohn their acts in bad faith.” & De- Mars, supra, pp 27-28. persuaded areWe that a similar scheme adopted individual should be Michi- gan. judges, legislators, We therefore hold that highest gov- executive all officials of levels of absolutely ernment are immune from all tort lia- bility acting they judi- whenever are within their legislative, authority. cial, or executive Lower level employees, agents officials, are immune from they when are 1) acting during employment the course of their acting, or reasonably believe acting, within the scope of authority;41 their

2) good faith; acting in and_ requirement act, The reasonably that the individual he or believe acting, scope authority within the his satisfies the concern some liable who commentators believe that an individual should not be held merely it because is later determined that he acted an under unconstitutional statute or authority. otherwise had no actual As noted, how, when, Dean Prosser has an officer’s decision as necessarily discretionary where to act nation that 991. This 228, judicial involves determi- authority Prosser, supra, p he has the to so act. used in Wall v reasoning impliedly Trumbull, (1867), township 237-238 where it was stated that the board had jurisdiction to determine whether a claim was lawful and act accordingly. requirement during that the individual act the course of his employment language and parallels authority and within the of his 8, governmental agency of § which authorizes a to defend indemnify employees. its officers and 567 420 Mich the Court

3) to discretionary, opposed ministerial performing acts. test, exists no individual this

Under activities. ultra vires defining "discretionary” problem is

The final longstand acts. Because "ministerial” and ing difficulty differentiating accurately between discretionary acts, some writers and ministerial suggested be the distinction abandoned.42 have We tionary/ministerial” opportunity to "discre this do so. The decline long common-law

test has only grants immunity history to individuals guarantee necessary to unfettered deci the extent sion-making.

"Discretionary” been defined as those acts have personal require deliberation, decision, and which supra, p judgment. 132, Prosser, 988. This defini pol quasi-judicial encompasses more than tion icy-making granted authority, typically which pros tribunals, of administrative members higher However, ecutors, level executives.43 it encompass every decision, trivial such as does not driving may nail,”44 be "the of a which involved activity. clarity, performing we add an For would operative "decisional” so the term would word "discretionary-decisional” acts. be acts have been defined as those

"Ministerial” merely which constitute an obedience to orders performance duty which individual or no We this has little choice. Id. believe sufficiently is not An definition who decides whether broad. individual engage particular in a activity carry engages and how best it out Prosser, 991, supra, p See cited and authorities therein. DeMars, supra, Littlejohn p & See 26. Prosser, supra, quoting Angeles County, p See Ham v Los (1920). 148, 162; App Cal 189 P 462 (On Reh) Ross v Consumers Power 1984] Opinion op the Court discretionary activity. However, the actual execu- tion of this decision the same individual is a performed act, ministerial which must be in a non- nutshell, tortious manner. In a the distinction "discretionary” between and "ministerial” acts is significant that the former involves decision-mak- ing, while the latter involves the execution of a might decision and entail some minor decision- making. clarity, too, Here we would add the "operational” operative word so the term would be "ministerial-operational” acts.

Many given individuals are some measure of discretionary authority perform in order to their effectively. Therefore, duties to determine the exis- tence and of the individual’s from liability particular specific situation, a complained general of, acts rather than the nature activity, must be examined. The ultimate goal employee, agent is to officer, afford the enough freedom to decide the best method of car- rying ensuring duties, out his or her while goal is realized in a conscientious manner. today,

Under the rules set forth it is obvious extended to individuals is far governmental agencies. less than that afforded We believe that this was the result intended Legislature. personal The threat of engaging in ultra tortiously vires activities or executing may one’s duties be the most effective way deterring improper note, conduct. We how- ever, agency that a statutorily indemnify authorized to defend or officers, its em- ployees, agents in its discretion under certain statutory circumstances. This authorization could agreement be repre- the basis for a contractual sentation and indemnification. 420 Mich op the Court Application Cases Law to

VI. Co Power Consumers Ross v Drainage Project I Appellant, Saines the John of a drain the construction District, contracted portion of the Dunigan Brothers, Inc. Since property owned on to be constructed drain appellee, Company, Consumers Consumers County. Au- granted gust On to Jackson an easement Dunigan employee, Ross, 1971, Michael he injured which in or near a vehicle when was was tric working elec- overhead in contact with came by power Consumers. lines maintained was eventu- and the action Consumers Ross sued third- ally party filed an amended Consumers settled. against complaint and drain the district alleging and in contract commissioner, two counts Appeals summa- in tort. The Court one count rized the allegations claim as in the tort contained follows: essentials, against tort claim Consumers’ "In its failure to negligence arising out of a alleges District being undertaken that work was notify Consumers lines, a failure to make power interfere with could safeguard workers arrangements Consumers with lines, to instruct and a failure from contact with lines, concerning a failure to

warn its contractors contractor, and competent and properly hire a a failure in such a manner occurring.” (1979). licensed supervise inspect project adequately from prevent the accident as to 687, 697; App 287 NW2d 93 Mich granted and commis- The trial court the district summary judgment as to all sioner’s motion for three counts. Consumers judg-

appealed only Appeals re- for the The Court of ment district. § 7 of versed as to the two contract counts because the grant act does liability. Applying Justice from contract (On Ross v Consumers Power 1984] Opinion of the Court governing” test, Moody’s "essence of the Court concluded that the district was also not immune liability from tort because the construction of a governing. drain not of the essence of appealed only concerning district the decision equally tort claim. This Court affirmed an (1982), Court, divided 1; 415 Mich 327 NW2d 293 granted subsequently rehearing. but (1983). appeal

This involves the direct of a non-sovereign governmental agency negli- for its gence contracting supervising, inspect- out, ing inquiry the construction of a drain. The crucial injuries activities, whether these from which the arose, constitute the exercise or non-proprietary, governmental function. There is allegation any no conducted of these activities were primarily pecuniary the district profit. We therefore must determine whether the contracting supervision, inspection out, construction were activities which the district was expressly impliedly mandated or authorized , perform. constitution, statute, or other law to require 1963, Const art §§ 51 and 52 Legislature provide protection pro- for the public motion of health and the state’s natural resources. The Drain Code of MCL 280.1 et seq.; seq., comprehensive MSA 11.1001 et is a act governing drainage the establishment of districts drainage and construction of A drains. district has power § 5, contract under and the drain specifically commissioner is authorized to let out prescribed construction contracts under circum- e.g., See, stances. §§ 151,154, 221-223, 471. Further- more, competent designa- commissioner, or a required inspect tee, approve „and all con- Any right supervise struction work. 241. actual impliedly construction of a drain is author- 420 Mich Opinion of the Court over the estab- general power

ized the district’s construction, of drains. lishment, and maintenance the district found that correctly The trial court liability. immune from Willis v Nienow Dep’t v of Social Services

Willis Appeals summarized the facts of The Court of these cases as follows: incident and were

"These cases arose out of the same appeal. is the administratrix of consolidated on Plaintiff 16, 1978, August 16- Jeffrey Willis. On Estate House, resident of Harbor year-old Jeffrey was a neglected juvenile facility delinquent care Department youths operated by defendant of Social House, Services. At Harbor defendant Dennis Nienow director, Erma Knox was a coun- was the selor, defendant Cindy and defendant Hunt was a student-intern. Jeffrey and other Harbor House residents were taken swimming outing Michigan for a supervision on Lake under Jeffrey of Knox and Hunt. drowned outing. course of the brought against "Plaintiff actions defendants State of Michigan Department of Social Services in the defendants Nienow, Knox, against court of claims and and Hunt complaints alleged in circuit court. Plaintiff’s Jeffrey that marginal and Knox could not swim or were of swimming ability, that neither Knox nor lifesaving training, Hunt had there were no life guards duty question, on at the Jeffrey time other Harbor House residents were allowed swim areas, designated swimming areas not and that and the other residents were allowed to swim Jeffrey under dangerous weather conditions. In each case the granted trial court based on summary judgment for defendants * * App *.” 113 Mich 30, 32-33; NW2d 273 (1982).45 alleged negligence, gross negligence, Plaintiff claims bhsed on wilful, conduct, fiduciary duty, wanton and reckless breach of implied claims, breach of contract. As to the latter two the circuit (On Ross Consumers v 1984] Opinion op the Court Appeals, applying Moody’s Justice The Court operation reasoning Perry, in concluded that facility governmen- juvenile constitutes a care tal function and that recreational activities are program caring directly to an effective related Using the traditional for the children. "discretion- ary/ministerial” immunity, test for individual hiring that defendant Nienow’s Court concluded discretionary decisions involved acts which were immunity, in entitled to but the manner which swimming outing was conducted involved ministe- Finally, plaintiff rial acts. the Court held that had to state a cause of action for intentional failed judgment Thus, tort. for the state and DSS was affirmed, but reversed as to the individual defen- dants. alleges essentially Nienow, Knox,

Plaintiff negligent allowing and Hunt were reckless participate swimming outing decedent failing adequately supervise care for and deciding him. In whether these defendants are immunity, entitled to we must determine whether 1) acting during they were the course of their employment scope and within the of their author- 2) 3) ity; acting good performing faith; discretionary-decisional acts. suggestion supervision

There is no during children recreational activities was not during employment the course of defendants’ authority. within the of their There is no allegation Assuming of bad faith. that each defen- complaint significant court found that did not state additional fiduciary facts relationship which would establish a or the terms of any merely attempting contract. Plaintiff was to avoid immunity. The Court of sepa- Claims did not discuss these counts rately. plaintiff specifically challenge Since did not the circuit court’s Appeals Court, conclusion in either the Court of or this we need not summary judgment properly granted determine whether defendants as to these two counts. 420 Mich Opinion Court authority to, did, dant had the fact decide participate outing, who would when and where would be as well as conducted,

it we hold discretionary-decisional were that these acts enti- immunity. However, tled to decisions, the execution of these supervision included the

which care and participating ministerial-op- children, of the erational acts that entailed making. were minor decision- plaintiff alleged Nienow, As to defendant that he negligent hiring and Hunt. was Knox There is hiring personnel suggestion no was employment outside the course of Nienow’s scope authority. beyond the of his Nor is bad faith alleged. agree Appeals We with the Court of the decision to hire Knox and Hunt was a discre- tionary-decisional immunity. act entitled to against complaint

The state and the DSS clearly does not differentiate between direct and alleg- vicarious theories. It can be read as ing adequately that defendants did not themselves supervise decedent, care for and or that are vicariously employees’ negligent for their liable supervision. Assuming care and that a vicarious liability theory pleaded, already we have as- employees acting during sumed that the were employment course of their and within the authority. question of their therefore allowing participate whether decedent in a swimming outing, supervision and the care and during outing, decedent constitute the exercise non-proprietary, or function. allegation swimming outing

There is no that the primarily pecuniary profit. was conducted Fur- delinquent thermore, recreational activities neglected residing children in state facilities impliedly authorized statute. The Social (On 1984] Ross v Consumers op the Court seq.; 16.401 et MSA Act, 400.1 et MCL Welfare through seq., requires of chil- DSS, the office operate halfway youth services, dren and houses, goal regional facilities, etc., with detention program providing out-of- "an effective 115(a). can be activities Recreational home care.” Implicit program. part important of such an authority activities is such to conduct participate authority in them. who will to decide required by expressly Finally, statute the DSS is residing supervise in state children to care for 4(1) Youth Rehabil- Sections facilities. seq.; Act, et MSA MCL 803.301 Services itation 25.399(51) supervise seq., require the DSS et programs operate for the facilities and and proper state neglected delinquent children. care exist, the care of if did not Even this statute super- implies responsibility to a resident children practica- prevent, as far as is vise them in order to any unnecessary injury. therefore con- ble, We are entitled to and the DSS clude that sovereign immunity state since the from tort employees they injuries were and their arose while govern- discharge in the exercise or function. mental plaintiff

We also that failed to state conclude against any claim of intentional dants for the reasons stated of the defen- Ap- the Court of peals. Dep’t

Siener v of Mental Health in-patient Siener, Jr., Plaintiff Russell an at was Center, the Hawthorn a state mental health facil- ity July emotionally 8, disturbed children. On plaintiff patients and several other were trip personnel taken the center’s on a field Village Michigan. Dearborn, Greenfield Plaintiff supervisor permitted maintained that a had five Mich 567 Opinion op the Court boys, including group himself, to leave the without supervision. Subsequently, boys one of the seri- ously plaintiff striking injured him in the face pot with a cast iron lid. brought negligence against

Plaintiff action the and the Department state, Health, of Mental alleging Hawthorn Center that had failed to properly supervise patients. and control the The Court of Claims denied defendants’ motion for summary judgment plaintiff pled because had facts immunity. in avoidance of The Appeals App Court of reversed. 117 179; Mich (1982). NW2d 642 The Court found that under Perry, operation of a state mental health facility for children is a function. trip directly Furthermore, the field related to emotionally the effective care of dren. The Court disturbed chil- rejected plaintiff’s argument 14.800(722) statutory 330.1722; MCL MSA is a exception to the act. complaint alleging could be read as directly defendants are liable because of their provide adequate supervision failure to and control plaintiff patients, over and the other or that defen- vicariously employees’ dants are liable for their (Plaintiff negligent supervision. apparently has not against commenced an action the individual em- ployees.) argue trip Plaintiff does not that the field should not conducted, have been or that he should participate. Assuming not have been allowed to liability theory pleaded, that a vicarious is no there suggestion employees super- who patients during trip vised the the field were acting during employment the course of their or authority. within Furthermore, of their allegation trip there is no that the was conducted primarily pecuniary profit. We must therefore supervision determine whether the control and (On 1984] Ross v Consumers Opinion of the Court emotionally patients by defendants and disturbed during trip expressly employees a or field their impliedly constitution, or authorized mandated statute, law. or other trips and recreational field in-patient for emo-

Educational tionally disturbed, children im- pliedly by constitution and statute. authorized programs 8, § Const art 8 states that care, treatment, education, services for reha- mentally seriously bilitation of the or otherwise handicapped ported. always sup- shall be fostered and Code,

Section Mental Health 14.800(1) seq.; seq., MCL 330.1001 et MSA et au- Department pro- thorizes Mental Health to directly, through arrangement, vide contractual patient any type of service related to the treat- training, ment, care, education, and rehabilitation mentally addition, of the ill or retarded. child facility who resides a mental health is entitled § to an education. 738. Department

Finally, the of Mental Health and expressly impliedly the Hawthorn Center are required by adequately statute to control and su- pervise in-patients of mental health facilities. All sanitary, safe, residents are entitled living governing humane environment. 708. The body facility responsible of a mental health operation facility, the medical the selection of the quality

staff, and the of care rendered. Implicit caring § 143. in the notion for emotion- ally patients responsibility disturbed is the supervise prevent, control them to as far as is practicable, any unnecessary injury. We therefore sovereign conclude that defendants are entitled to injury from tort since the arose employees while and their were the exercise or tion. func- 567 644 Mich 420 op the Court are neverthe the defendants maintains Plaintiff Health Mental 722 of the liable because less exception §7 to is an Code46 part provides in that if act. Section physically recipient is health services of mental a or right recipient to abused, has a otherwise appropriate injunctive pursue civil re other and argument plaintiffs disagree for the with We lief. Dep’t Health, of Mental in Rocco v stated reasons (1982): App 798-799; 319 NW2d Mich 14.800(700) seq.; seq., et MSA 330.1700 et "MCL by recipients of rights possessed enumerates certain is purpose The statute’s mental health services. ensure that and in a humane manner patients are treated The fo- privacy is maintained. statute their facility towards its duty the health care cuses on the patients. rights discusses of the sections None patients. primary The statute’s responsibilities between patient from certain abuses purpose protect the is to pur- facility its When this health staff. the mental 14.800(722), 330.1722; it is into MCL MSA pose read prevent provision meant staff clear that of a mental health care this was pa- abusing the facility from It intention of the tients its care. governmental, immunity in those Legislature to abolish patient cases where one attacks another.”_ 14.800(722) 330.1722; provides: MCL MSA "(1) physically, recipient of not be A mental health services shall sexually, or otherwise abused. "(2) facility adopt policies governing body of each written shall designed procedures protect recipients and vices policies of mental health ser- prevent shall more repetition from abuse and to of acts of abuse. The abuse, procedures particularly define shall discovering provide a mechanism instances abuse abuse, reviewing disciplinary charges appropriate all ensure firm shall abuse, against engaged those action taken who have provisions appropriate by and shall contain those additional deemed governing body. "(3) facility cooperate prosecution appropriate A shall charges against criminal those have abuse. who unlawful "(4) Any sexually, recipient physically, mental health services pursue injunctive right otherwise abused shall have a and other appropriate civil relief.” (On Ross v Consumers 1984] Opinion of the Court of Mental Health Dep’t Rocco v Appeals the of of summarized facts The Court this case follows: 7, 1980, decedent, plaintiffs’ Daniel January "On Rocco, Regional patient Ypsilanti a of the was resident night, Psychiatric Hospital (hospital). That while he bed, hospital sleeping in his Rocco was murdered was patient. Higgin- by another The murderer was Andrew

botham, patient history a of who had violence and assaultive behavior. complaint filed the Court of "Plaintiffs Claims (the against agencies Department two state of Social Health) Department and the of Mental of the which Services supervise hospital, the administration and the agencies

hospital. hospital The state are hereinaf- complaint ter referred as defendants. The consisted alleged negligence of two I counts. Count that defen- steps protect dants failed to take attack the from decedent by patients hospital. violent Specifically, plaintiffs alleged duty that defendants breached their of care aware of cies, malpractice and committed in that they were Higginbotham’s violent and criminal tenden- placed yet unsupervised him unrestrained alleged same ward with the decedent. Count II contract, implied breach averring plaintiffs that agreed to and in fact pay did for the care treatment of the decedent but defendants breached their duty failing protect contractual the decedent from harm and abuse patients other hospital.” at Rocco, supra, pp 794-795. granted judgment summary

Defendants were on Appeals both counts. The Court of affirmed the judgment concluding opera- I, as to Count that the hospital tion of a state mental is a function and that 722 of the Mental Health Code exception immunity. not an As majority II, to Count held that breach implied an merely contract claim was not a re- governmen- statement the tort claim. Since the Mich op the Court claims, contract not bar does act tal judgment reversed. for defendants alleges di- that defendants tort claim

The vicariously the vicarious rectly liability As to liable. suggestion theory, that defen- no there is during acting employees were dants’ employment or within their course paid Although plaintiffs authority. for the their hospital, there is to decedent rendered care no primarily provided hospital allegation care súch profit. pecuniary fact, § 808 of specifically limits the total Code Mental Health recipient health of mental financial services rendered. to the cost services placement inquiry whether the therefore is crucial of facility, patients and the health a mental within in-patients, supervision are care, control, and impliedly expressly man- or are which activities dated other law. statute, constitution, or or authorized upon patients and admission The evaluation expressly periodically mandated is thereafter may patient A be Health Code. § 710 of the Mental restricted freedom of movement or his secluded prevent necessary only such action insofar as harming physically patient or himself from the damage. causing property others, substantial 742(2), governing body of a mental §§ 744. The required facility the maxi- to establish health length may last, how often mum of time seclusion patient any examined, and other must be 742(6). Finally, appropriate regulations. have § we pp supra, previously Siener, in concluded Willis and Department Health, 638-644, of Mental that facility DSS, have an ex- and a mental health press implied responsibility control, for, to care supervise there- residents of state facilities. We sovereign defendants are entitled to fore hold that (On 1984] Ross v Consumers Opinion of the Court injuries from because employees en- while and their were arose governmen- gaged exercise reject plaintiffs’ Siener, we tal function. As exception govern- argument 722§ that is an to the immunity act. mental recognize that the im-

Defendants grants immunity munity ity, act from tort liabil- plaintiffs’ that but maintain contract claim merely it be because should allegations agree. dismissed restates contained their tort count. dis-We brought their motion sum- Defendants 117.2(1). mary judgment under GCR Such legal complaint, motions test basis factually supported. Accepting it whether as true a can be plaintiff’s allegations, any conclu- reasonably may therefrom, sions that be drawn the motion must be denied unless the claim is so clearly unenforceable as a matter of law that no development right justify factual cover. could to re- Although allegations most contained I II identical, Counts the latter count alleges plaintiffs agreed also contracted and with treatment; defendants decedent’s care and plaintiffs paid valuable consideration for dece- care; dent’s and defendants their breached contrac- plaintiffs allega- tual duties and decedent. These tions are sufficient to withstand chal- defendants’ lenge. recognize plaintiffs

We have and will at- tempt 7 avoid of by basing

act their causes of on action theories appellate other than tort. Trial and courts routinely determining faced with the task particular whether the essential elements of a pleaded properly cause of action have been and proved. plaintiff successfully pleads If a and estab- lishes a action, non-tort cause of 7§ will bar Mich op the Court underlying simply

recovery could facts because of action. a tort cause have also established Regulski Murphy v attending high seventeen-year-old

Plaintiff, a Wayne-Westland Dis- School in defendant school building class, trades which trict, in a was enrolled part edu- school’s vocational offered as was Participating program. re- students were cation quired house, was then sold to which build private buyer. 10, On October the district to a injured attempted plaintiff he to when was piece Apparently, of wood. a nail into hammer causing up angle, fly it an he hit nail at eye. him in the strike district, the director

Plaintiff sued school building program, trades the vocational complaint, the class. In his amended instructor of plaintiff engaged alleged in a that the was district proprietary and that all of the defendants function failing negligent properly instruct, were warn, plaintiff. supervise addition, defen- provide glasses, adequate safety had dants failed supplies transportation site, at the first-aid emergencies. completed, discovery defen-

After granted judg- summary dants for and were moved concluding Appeals affirmed, The ment. that governmental Court operation building is a trades class function which entitled the district immunity. to defendants Since the individual in a func-

were App tion, 418; too were immune. Mich (1982). 326 NW2d 528 against of action cause school district alleges liability. both direct and vicarious As sugges- theory, the vicarious tion that ing there no the individual defendants were not act- during employment the course of their 1984] Ross v Consumers Power (On op Opinion the Court authority. within the of their We therefore must determine whether pervision the instruction and su- building

of students enrolled a trades provision safety class, as well as the of devices and measures, constitute the exercise or non-proprietary, governmental function. alleged

Plaintiff that the district built and sold purpose producing pecuni- the house "for the ary a profit.” disagreed The district and offered evi- showing designed dence the class was not profit-making abe venture and that the district in money fact lost on the sale of the house. We need governmental agency not decide whether a must actually profit pecuniary realize a from the chal- lenged activity before 13 of the recovery, act will allow a tort genuine whether there was no issue or material point. During arguments fact on this tion for on the mo- summary judgment, plaintiff’s counsel primar- admitted that the class was not conducted ily pecuniary profit. argued Instead, he below seeking and here that the of remuneration and the possibility any profit incidental is sufficient proprietary Although evidence of function. at any profit generated one time incidental an activity agency’s was sufficient to defeat an claim immunity, Legislature § in 13 has modified require activity this rule to be conducted primarily pecuniary profit. On the basis of operation facts, these we conclude that of the building proprietary trades class was not func- tion. required board of a school district is under § 1282 School Code MCL 380.1 et

seq.; seq., MSA carry 15.4001 et to establish and departments on necessary it deems or desira- ble, study pursued, determine the courses of to be pupils taught and cause depart- its to be the Court expressly expedient. The board it deems ments equip, establish, and main § 1287 authorized tain vocational programs and facilities. education partic pupil requires specifically each Section arts ipating and industrial in certain vocational protective eye Further devices.47 to wear classes regulations reasonable must make more, the board proper necessary concerning anything es for the management, car maintenance, tablishment, including regulations public rying concerning schools, on safety in atten while of children from school. to and school, or en route at dance expressly authorized Thus, the district was 1300. § building ex and was trades course to offer the pressly through employ required impliedly its supervise students, warn, instruct, ees to as well as equipment provide safety and mea unnecessary any prevent harm sures, in order to injuries while the arose Since to the students. engaged employees were its district and function, or exercise is entitled to the district liability. from tort defendants, the individual to the

As acting they already that were have assumed we during employment and within the course of their allegation authority. is no of their There the that therefore is whether question acting they faith. The were in bad in discre- were tionary-decisional acts. alleged individual has not that

Plaintiff offering negligent class, in defendants were may violated 1288 of The dissent notes that the district have § eye protective requiring each student to wear the School Code devices that he is entitled to relief because of this alleged argued during plaintiff never or the class. Since has violation, statutory we recovery of dam- need not whether 1288 authorizes the determine § spite ages from a in 7 of the school district immunity act. 1984] Ross (On v Consumers Opinion of the Court allowing participate, deciding him to where and Such are when conduct class. acts discre- plaintiff tionary-decisional Instead, in nature. al- leged negligent in that defendants were instruct- ing, decision-making supervising Although warning, and him. some activities,

is in it involved these is relatively supervision minor. Instruction essentially ministerial-operational activities liability. there is no from tort which allegation inadequate safety As to the mea- previously sures, we noted have school statutorily required provide board particular, provide safety and, its students protective eye participating devices to those potentially dangerous certain It un- activities. plaintiff alleged clear whether the individual negligent establishing type defendants were safety merely measures, and extent of provide failed to required by that which was statute and any policy. respon- school If of the defendants were establishing policy sible for type the school’s as to the eye protective pro- devices that be would type supplies students, vided to the of first-aid building emergency site, to have at the transportation and what provided,

measures would be that defendant is immune from tort because discretionary-decisional these are However, acts. failing the comply can individuals be held liable for safety policy §with 1288 and the school’s provision protective eye since the devices, actual supplies, emergency transportation first-aid involves

only ministerial-operational acts. Sum- mary judgment for the individual defendants is therefore reversed and the case remanded trial. City Trezzi v of Detroit April plaintiff’s parents 23, 1978,

On were at- forcibly tacked an unknown assailant who had 420 Mich op the Court plaintiff their Detroit home. When walked entered refrigerator house, that a door he noticed lights ajar no on in the was and that there were emergency called Detroit’s 911 house. Plaintiff help. system six times for Unknown 911 assistance operators assigned rating low-priority to the police dispatcher. passed them on to a calls and dispatcher police approximately The sent a vehicle plaintiff’s one-half hours after first call. one and brought against City Plaintiff an action dispatcher, operators Detroit, alleging and the 911 parents injuries that his sustained fatal response. delayed city a result of the When the plaintiff summary judgment, moved his tional tort. The amended complaint allege negligent both and inten- granted

city summary judg- was dispatcher eventually plain- ment, the settled with against operators tiff, and the suit the unknown city dismissed. The refused to defend or in- demnify dispatcher judgment, for the which apparently remains unsatisfied. Appeals majority

A of the Court of affirmed judgment city. App 506; for the (1982). panel agreed NW2d 70 The entire governing” opera- test, under the "essence to tion of a 911 emergency system would not consti- although function, tute a it would good Applying under the "common of all” test. governing” Moody’s Justice test, "essence majority system concluded that the 911 was an indispensable part department operation police analogy pri-

with no common panel agreed plaintiff’s vate sector. inten- actually alleged tional tort claim no more than gross negligence. challenge Plaintiff does not this holding latter in this Court. explained Appeals dissenting

As in the Court of opinion, system emergency the Detroit 911 handles (On Consumers Power Ross v 1984] Opinion op the Court fire, It and medical assistance. police, calls for who rank by employees city, staffed civilian fire, police, calls and contact the seriousness of the designed to dispatchers. system medical The and assistance more effective free- emergency make personnel enabling and fire and ing up police three request help by dialing easily citizens acts as digits. system essentially remembered for calls. clearinghouse emergency a involves the vicarious appeal This for its non-sovereign agency aof no negligence. suggestion There is employees’ acting the course of during were not employees their or within the of their employment allegation the 911 There is no authority. operated system primarily pecuniary We therefore must determine whether profit. operator calls a 911 categorizing emergency vehicles in accordance dispatch police and the expressly therewith are activities which are constitution, mandated or authorized impliedly statute, or other law. 1963, 7, gives

Const art the electors of each § city power adopt to frame and charter. city addition, In power adopt has the resolu- city relating municipal tions and ordinances to its concerns, government. and Since Detroit property, is a home-rule city, provide its charter must health, public peace, persons and safety property. 117.3(j); MCL MSA Pursuant 5.2073(j). these constitutional De- statutory provisions, Charter, 11, troit art ch 7-1101 establishes police department -which is required preserve public crime, offenders, peace, prevent arrest order, protect rights persons, preserve enforce laws and ordinances. Section 7-1103 autho- rizes the police board of commissioners to establish rules, policies, regulations. order to accom- 420 Mich 567 op the Court department necessarily police plish duties, its accepting, process- system needs some sort police ing, Thus, acting upon calls for assistance. and system emergency assistance and the 911 including police dispatch system, their internal determining procedures the seriousness of calls impliedly dispatching vehicles, authorized are city by constitution, statute, Since the charter. city’s employees injuries engaged were arose while govern- in the exercise governmen- city function, mental is entitled liability. immunity from tort tal Dep’t Disappearing Ass’n v of Natural Re- Lakes sources adjoining property owners of land

Plaintiffs Square Square County. Little Lake in Oakland Lake and Michigan Depart- 1976, From 1966 to successor, the De- ment of Conservation and its partment permits Resources, of Natural issued private developer to a land for the extensions dredging diately south of Lake and imme- of canals Orion plaintiffs’ property. 1977, north of Square began drop water level of the Lakes precipitously. pur- aesthetic The recreational and poses eventually destroyed. of the lakes were Stud- ies indicate that the water loss was caused flow, interference with the subsurface water which dredged. occurred when the canals were against Plaintiffs filed suit in 1979 state seeking damages the for nuisance and DNR the Court of Claims negligence. A similar action was against commenced in circuit court Orion Town- ship, County, municipal Oakland and several eventually boards and individuals. The suits were granted consolidated. In the circuit court summary judg- state and the DNR’s motion for ground immunity. ment on the Appeals holding affirmed, The Court of 1984] Ross v Consumers (On Reh) Opinion of the Court regardless applied, of which test was the issuance dredging permits by the DNR constituted a examining function. After numerous cases, the Court concluded that a agency cannot be held liable in nuisance it unless actually project controlled the which created the dredging permits nuisance. Issuance of alone was not sufficient evidence of control. Plaintiffs’ claims property that the state had taken their without process law, due that the DNR had acted out- scope authority, plaintiffs side the of its and that equitable rejected were entitled to relief were because these claims had not been raised before App the 61; trial court. 121 Mich 328 570 NW2d (1982). plaintiffs’ complaint essentially Count II of al leges directly that the state and the DNR are and vicariously negligently issuing permits liable for adhering statutory guidelines without or con ducting proper failing studies, to warn of the possible dredging, failing adverse effects of and permits.48 revoke the As to the vicarious theory, suggestion there is no that defendants’ employees acting during were not the course employment their or within the of their authority. any allegation Nor is there the dredging permits pri issuance of was conducted marily profit. pecuniary Therefore, we must dredging per determine whether the issuance of extensions, mits and thereto, activities related expressly impliedly are activities which are or mandated or constitution, authorized statute, other law. requires Legislature 1963, 4,

Const § art plaintiffs’ 1, We assume August cause of action accrued after 1970, the effective date of 7 of the § act. alleged holding Plaintiffs have Taylor never that the of Pittman v applicable to the accompanying facts of this case. See fn 23 and text. 420 Mich Court provide protection of the state’s waters impairment, pollution, and destruction. In

from Legislature 1965, first enacted Inland 291, Act. See 1965 PA Lakes Streams seq.; 7, 1968 PA MCL 281.731 et MSA amended seq. repealed replaced 11.451 et This act was substantially in 1972 similar act. See PA 11.475(1) seq.; seq. MSA MCL 281.951 et et purpose regula primary of both acts was the protection tion and of the state’s inland lakes and streams.49 person dredge any act,

Under the who wishes to required permit canals is DNR. project riparian rights. making to obtain from the must be issued if the permit 3,§§ 5. A public adversely will not affect the trust or determination, this possible DNR must consider proposed project effects upon lakes, streams, inland impact waters, recreational, on their as well as permit aesthetic, and other uses. No can be issued project unlawfully impair destroy any if the will issued, waters or other natural resources. 7. Once permit term, the revoked for mit effective its stated unless may per-

cause, be renewed. The may specify the term and conditions under which the work is to 8. be carried out. statutorily required Thus, the DNR is to issue dredging permits once certain conditions are met and to if revoke them there is sufficient cause. determining permit issued, whether a should be impliedly renewed, revoked, the DNR is autho- inspect proposed to rized and current conduct studies dredging although sites, actions such required. expressly are The DNR is authorized impose dredging to conditions on the in order to statutory provisions Since the relevant of both acts are suffi- discussion, ciently purposes statutory only similar for of this current provisions will be cited. (On Ross Consumers v 1984] Opinion of the Court consequences. Such adverse environmental avoid warning permittee a to the to serve as conditions dredging in a careful manner. We conduct its the DNR are that the state and therefore conclude sovereign immunity from tort entitled since the ployees injuries arose while and their em- were in the exercise function. Appeals plaintiffs The Court of conclusion that insufficiently pleaded a nuisance cause of had clearly is not erroneous. Plaintiffs essen- action tially negligence asserted claim. dam- age may sufficiently the lakes have been severe taking private an unconstitutional to constitute property compensation just or warrant without injunctive plaintiffs however, relief; did not raise arguments court these not before the trial and have pursued appeal to this Court. them on Zavala v Zinser Appeals

The Court summarized the facts of this case as follows: controversy shooting plain-

"This arose out of the tiff morning the people early Jose Zavala outside a Detroit bar Mr. hours of November 1975. As Zavala left morning, large group bar he encountered a building; in front people, some of the brother, including Mr. fighting. Zavala’s were After shouting stop at his fighting, brother Mr. Zavala was seriously injured by participants shot and the one of the fight. incident, At the time of the Zinser defendants Harris, officers, City police sitting of Detroit were nearby police in their marked vehicle. participants "Plaintiffs sued several of the fight. They granted permission were later to amend complaint Zinser, Harris, their to add defendants City They alleged of Detroit. that defendants Zinser negligent failing stop and Harris had been fight, failing stop to Mr. from Zavala’s assailant 420 Mich 567 op the Court him, shooting enforce generally failing and in uphold to alleged They 'special the law. a relationship’ between Mr. Zavala police and defendant giving officers to duty rise of due care toward him. Plaintiffs further alleged the liability vicarious City defendant of De- negligent troit for the employees. conduct of its Zinser, Harris, "Defendants City and the of Detroit summary judgment 1963, moved for under GCR 117.2(1). plaintiffs’ The court against ruled that claims city defendant and that this case had were barred immunity, any police duties owed defendant officers public been owed to the generally and not Mr. individually. to Zavala The motion summary was, therefore, judgment granted.” App (1983). 354-355; 333 NW2d 278 A majority of the Court of Appeals agreed that if police officer preserve breaches his to duty peace, the officer is public. liable to the Since plaintiffs allege failed to sufficiently that the offi- cers owed some other duty particular, them judgment the officers was Judgment affirmed. for the city also affirmed on the grounds that operation of a police department is a govern- mental function and a claim of intentional However, had not been alleged’ the case was re- manded for further fact-finding concerning denial of plaintiffs’ motion to amend their com- plaint to allege a cause of action under USC 1983.

The dissent maintained judgment for the officers was improper because they had "a ministe- rial duty perform some minimum pre- acts to statute, serve the peace” pursuant city charter, police department Further- policy. more, plaintiffs’ allegation "special relation- ship” give was sufficient rise duty to a of due care and a question of fact as to whether officers had acted reasonably. officers,

As to the of the individual we (On Reh) Ross 1984] v Consumers Power op Opinion the Court "public/individual” duty issue need not decide the relationship” "special allegations or whether the legally sufficient, since were we conclude that the from officers are entitled individual liability. ¶ in their Plaintiffs admitted 39 of complaint, second amended and the trial court during summary judgment, found the motion for acting during that the officers were the course of employment their and within their authority. allegations The of bad-faith con appeared plaintiffs’ proposed duct in Count VIII of complaint.50 However, third amended the trial plaintiffs court did not allow to add this count. remaining only question Thus, the is whether the dealing actions, thereof, lack in officers’ with fight discretionary-decisional were nature. parties agree that The the officers did not sit fight idly by while the occurred. The de- officers cided not to deal with the disturbance alone immediately backup assistance, which called minutes arrived six ten later. Plaintiffs do not allege long delayed request- that the officers too ing gave wrong assistance, address, In- etc. plaintiffs stead, maintain officers did not type plaintiffs take action which believe appropriate. would been have especially officers, Police faced a a when with potentially dangerous given situation, must be degree determining type wide of discretion in what safety of action will best ensure the of the individ- general public, uals involved and the the cessation apprehension conduct, of unlawful and the wrongdoers. type determination what take, e.g., arrest, action to make an immediate alleged stop Plaintiffs VIII Count the officers failed to fight gender. on account of Jose Zavala’s race and is a Zavala female; Mexican-American male. Both officers are one is black the other white. op the Court backup warning, suspect,

pursue await issue discretionary-decisional act assistance, etc., is a immunity. has been that decision Once entitled made, performed must be however, thereof the execution e.g., proper manner, the arrest in a pursuit force, the excessive made without must be negligently, suspect not be done must of the request reasonably must include assistance plaintiffs merely information, etc. Since accurate alleged discretionary negligent performance summary judgment for the individ act, decisional granted.51 properly ual officers city alleges against vicari- the claim Plaintiffs’ negligence. previ- As for the officers’ ous ously acting during noted, were the officers scope employment and within of their course of city allegation authority. that There is no their engaged employees in activities its were and pecuniary profit. primarily Thus, we conducted must determine an officer’s decision to whether expressly request backup assistance is and await impliedly or authorized constitu- mandated statute, tion, or other law._ 48, 54-55; City, v 130 NW2d 920 In Sherbutte Marine (1964), police allegedly plaintiff brought against a officer for an action using effectuating reversed excessive force in his arrest. This Court officer, stating: summary judgment for the 'discretionary’ "Appellee’s theory is that because Williams excluded acts, arrest, police and that since a officer has discretion as to whom he will made, for what the arrest will be and how much force reason used, 'discretionary’ theory be action is a one. The is untena- will his ble. police making "The action of a officer in an arrest cannot be considered within the broad government of the discretion allowed a free executive, legislative, judicial in its branch.” holding necessarily today. This is not in conflict with our decision Sherbutte, plaintiff allege In did not the officer’s decision to improper, arrest him was arrest properly alleged but the officer had effectuated the case, plaintiff in a tortious manner. Unlike the instant there negligent performance ministerial-opera- of a activity liability. tional for which there is no from tort 1984] Ross v Consumers (On Opinion of the Court supra, city expressly Trezzi,

As noted in is required city constitution, statute, and charter provide public peace, safety health, for the persons property. of partment The Detroit Police De- police charged

and its officers are with preserving responsibility public peace preventing protecting order, crime, and rights persons. accomplish In order to these department necessarily duties, the allows its offi- judgment cers to exercise some and discretion as when, where, Thus, and how to act. the decision request backup to pliedly and await assistance is im- city constitution, statute,

authorized injuries city’s charter. Since the employees arose while the were in the exercise or dis- charge city function, is entitled to from tort lia- bility.

VII. Conclusion Appeals Ross,

In the decision of the Court of part. reversed Appeals Willis, the decision of the Court of

affirmed. Appeals Siener,

In the decision of the Court of is affirmed. Rocco, Appeals

In the decision of the Court of is affirmed. Regulski, Appeals

In the decision of the Court part. is in reversed

In Appeals Trezzi, the decision of the Court of is affirmed. Disappearing

In Lakes, the decision of the Court Appeals is affirmed. Appeals Zavala, the decision of the Court of affirmed. ‘ Mich 567 420

662 Levin, J. Cavanagh, Brickley, Ryan, Williams, C.J., and Boyle, JJ., concurred. and nine cases1 (dissenting part). These J. Levin, imm official and governmental,2 sovereign, concern liability from tort and the unity,3 provides act4 7 of § units, (ii) (i) non-sovereign political state, (iii) No constitu employees. officers and public this party presented has been issue tional litigation.5 7 provides:

Section govern- provided, all in this act otherwise "Except as liability in from tort be immune agencies shall mental all cases wherein agency government 1 Lakes, Disappearing plaintiffs except suf- cases In all these might be physical injury; considerations other factors and fered determinative where physical injury. alleged does not cause tortious conduct 2" 'governmental’ immunity '[Sovereign’ immunity are not interchange- True, years used synonymous. ably nity departments, of the State. system implicit sovereignty County over the have been Sovereign decisions, helpful. may immu- be but a delineation application specific to the State and to limited in its is a term institutions, commissions, boards, instrumentalities sovereignty in our The is the State is reason delegated part government, except of their as the States government.” Myers v Genesee to the federal (1965) Auditor, 1, 6; (opinion of 190 375 Mich 133 NW2d James, J.) Harper (emphasis original). O’Hara, & See also DeMars, Immunity Torts, 29.1; Littlejohn After & Governmental § King Wrong, Perry: 1982 Det C L Rev Can Do Some Parker and The 1, 3. have, another, part at one time or been a These three immunities state, see, Against every e.g., State Govern- the law of Civil Actions 1982). (Winborne ed, highly traditional immu- formalistic ment doctrines, however, nity apply and ran counter to were difficult to wrongdoers goals system deterrence of of the tort as a whole: Smith, Municipal Liability, compensation Tort of victims. See result, criticized the traditional L Rev 41. As a tort scholars (4th Prosser, ed), p had 984. That criticism doctrines. See its 50. Torts id., See, e.g., pp 984-985 & fn effect in the courts in recent decades. 3.996(107). 691.1407; MCL MSA 1, 30; Dep’t Highways, 398 Mich 247 NW2d See Thomas v of State J.). (1976) (Levin, Réh) (On 1984] Ross v Consumers Levin, J. discharge governmental or the exercise Except of function. herein, provided shall as otherwise this act restricting modifying or be construed heretofore, liability from as it of the state tort existed immunity is affirmed.” which that,

I would hold under the second sentence of Michigan departments6 7,§ the of State and its absolutely liability except immune from tort to the Legislature extent that the has waived the sover eign immunity of the state. § 7, of

Under first sentence which immunizes political non-sovereign (e.g., counties, units town- municipal corporations) ships, "engaged only when exercise or following relating function,” the factors to the specific activity that constitutes the basis plaintiffs complaint should be considered deter- mining non-sovereign political whether unit "governmental in a function”:

1) specific activity complained whether policy quasi-judicial involved either formulation or decision-making;

2) specific activity complained whether represented prevent a failure to harm from a subject source not control;_ Section 1 act forth sets following definitions: "(a) 'Municipal corporation’ any city, village, township means or township, thereof, any acting charter or jointly. combination when "(b) any municipal corporation, 'Political county, subdivision’ means township, district, township, port district, metropoli- charter school district, any thereof, tan acting jointly, combination any when and authority political district or formed 1 or more subdivisions. "(c) Michigan 'State’ agencies, depart- means the state of its ments, commissions, every public university shall include college state, whether established as a constitutional corporation or otherwise. "(d) agency’ state, subdivisions, political 'Governmental means municipal corporations 691.1401; and 3.996(101). as herein defined.” MCL MSA Levin, J. of is complained

3) activity specific whether sector. private analogy a common without act does liability tort 'governmental The public liability from tort immunity provide decide claims should Courts employees. or officers employ- or officers public asserted consid- traditionally the factors basis of on the ees law: common ered at

1) acting within employee or the officer Was function? his official scope of in acting good 2) employee or the officer Was faith?

3) exercising quasi- employee officer or theWas discretionary authority? policy-making or judicial Immunity Sovereign I.

A that at common asserts of the Court opinion The was liability from tort law, "sovereign the state was when a defense recognized as discharge govern of a in the exercise ” The ques- (Emphasis supplied.)7 function mental 7 sovereign immunity appears to have Historically, the doctrine King English "the can do no origins belief that in the ancient its wrong” the courts. Yale L J 1 both necessarily it was a contradiction in the notion that right sovereignty in his own King’s him to be sued as of to allow Tort, Borchard, Responsibility See, 36 e.g., in Governmental (5th ed), Holdsworth, pp (1926); History English Law 458-469. clearly monarchistic doctrine understood how this It has never been democracy. adopted Actions the American See Civil to be in came 2.5, sug- Government, p supra, Against 17. Some have fn § State during precarious gested of the states that the financial condition played part immediately years adoption the doctrine’s after Revolution 131, 975, 48; Prosser, p supra, fn See fn 3 § states. Government, Schenck, Against Federal & Tort Actions Gelhorn 47 (1947). Davis, Culp on the other L Rev 722 Professor Kenneth Col hand, adoption in the United States Law has termed the of the doctrine 25.01, Treatise, Davis, "misunderstanding.” Administrative 1821, gave pp when he declared no reason 434-439. In Chief Justice John Marshall against brought the United that no action could be (On Reh) Ross v Consumers Power 1984] Opinion by Levin, J. agencies, prior tion governmental or its whether the state to the liability subject act, liability for torts committed in the exercise non-governmental activity was, how question ever, "a never had been settled.” Cooperrider, Legislature, Court, The and Gov Michigan, Liability ernmental Tort 72 Mich L (1973).8 Rev Cooperrider governmen Professor notes that the ap tal tort was "[d]rafted act under the parent assumption agencies state its enjoyed sovereign immunity a total from tort lia ** supra, bility Cooperrider, p *.” 277. This Court may sue, has said that "while a sued in its own it state cannot be courts, unless, indeed, it consents itself submit to their jurisdiction.”9_ (6 Wheat) Virginia, 264, States without its consent. Cohens v 19 US (1821). 411-412;5 L Ed 257 8 agencies Some cases assumed that the state its were immune See, engaged governmental e.g., when Service in a 303 Mich function. Mead v Public Comm, 168, 171; (1942); 5 NW2d 740 Manion v State Comm’r, Highway 19; (1942); 303 Mich 5 NW2d 527 Robinson v (1924). 225; Judge, Washtenaw Circuit 228 Mich 199 618 NW None of cases, though, agencies these held or said that state and its were non-governmental not function; immune when in a question never arose because the in Court each case held that a governmental Court, Cooperrider, function did indeed exist. See The Legislature, The Liability Michigan, Governmental Tort 72 187, 278, Mich L Rev 281. Ed, 315; (1899), v Ferris Detroit ofBd 122 Mich 81 NW 98 City Dist, 499; Pound v Garden School 372 Mich 127 NW2d 390 (1964), building school districts were held liable where school designed way was in such a as to cause ice and snow to fall off of the thereby injury roof and cause outside the limits of the school’s premises. (resting districts have been Dist, City supra, See Pound v p Garden School 502 exclusively precedent). decision Although on the Ferris school agencies” purposes, they deemed "state for some generally governmental have been held to have immunity of non- sovereign political sovereign units rather immunity than the of state. See fn 55. Neither Ferris nor Pound considered the cases holding absolutely state legislative immune from action absent immunity. waiver of accompanying See fn 9 and text. 9Michigan (1844). Hastings, Doug 225, State Bank v also See Comm, 168, 173; Mead v Myers (1942); Public Service 303 Mich 5 NW2d 740 Auditor, 1, 6-9; County v Genesee 375 Mich 133 NW2d 190 (1965) (opinion J.); Littlejohn DeMars, O’Hara, of supra, p & fn 2 3. Opinion by Levin, J. sovereign the state’s common-law The view that gov- arising immunity of out limited to torts both the second render functions would ernmental superflu- § 13 of act § 7 and all of sentence ous. common-law its common-law heretofore was § 7 "affirm[s]” The sentence second sovereign immunity of the state agencies If the state’s it heretofore.” "as existed

sovereign immunity it existed functions,

limited to wholly unnecessary would have been this sentence provides statutory §of 7 the first sentence because agencies immunity "en- its when to the state and governmen- gaged the exercise tal function.” provides state not be shall

Section "arising perfor- out of the immune in tort actions proprietary de- function as herein mance of a sovereign immu- If common-law fined.” nity the state’s functions, had limited to been statutory would also have this waiver wholly unnecessary because there would been proprietary waive; func- have been no immune not have been because tions would not functions. were Legislature did intend the sen second surplus- § 13 of be tence of 7 and the act to mere age. provisions "[T]he courts must construe the together, provision a statute and not isolate it refer under consideration and construe without ence to the rest of the enactment.”10 that

The view sovereign immunity the state’s tended ex common-law to governmental two functions renders statutory superfluous provisions frustrates 10 Statutes, 95, Practice, Michigan p 21 also Law and 100. See County Levenburg, Wayne Prosecuting Attorney State ex rel v 406 (On 455; Corp (1979); Motors Erves General v Mich 280 NW2d 810 Rehearing), Muir, 241; (1976); v Hartwick 399 Mich 249 41 338 NW2d General, 624; (1954); Taylor Auditor v Mich 62 596 360 Mich NW2d (1960). 146; 103 NW2d 769 (On Ross 667 v Consumers 1984] Opinion by Levin, J. to affirm immu apparent legislative greater intent immunity being for the state than the nity pro government.11 vided the act for other units of

B Detroit, In Williams v 231; 111 364 Mich NW2d (1961) J.), 1 of Edwards, (opinion the trial court plaintiffs complaint alleging had dismissed that City properly protect of Detroit had failed plaintiffs and enclose an elevator shaft which had to his death. decedent fallen Four members Court, following eight-member the then the lead of Florida,12 Illinois,13 California,14 an signed opin sovereign ion that would have abolished both governmental Three immunity. members Court voted to retain both sovereign govern J.). Id. immunity. mental Al Carr, (opinion though separate Justice in his Black, opinion, agreed

non-sovereign municipal corporation at issue Williams abolished, be distinguished should he of the sovereign state and refused 11 65; Michigan, In McCann v State of 398 Mich 247 NW2d 521 (1976), employees hospital it was held a mental not were in the exercise or aof function when they encouraged customers and advertisers to refuse do business plaintiff’s newspaper. Accordingly, statutorily with the state was not pursuant appar immune ently to the first sentence of 7.§ The defendants question did not raise—and the Court did not consider—the whether, even if function involved was function, agencies pursuant its state and were immune to the sovereign immunity of common-law "as it "aflirm[ance]” existed here tofore” in the consideration of this analysis second sentence of Nor was there §7. question summary disposition in this Court’s Michigan, 891; (1979), citing Wavro v 407 Mich 284 NW2d 125 McCann, supra, involving county, Lockaby Wayne and a case v (1979). County, 65; 276 NW2d 1 1957). Hargrove (Fla, Beach, v Town of Cocoa 96 So 2d 130 Community 11; v Molitor Kaneland Unit Dist No Ill 2d (1959). 163 NE2d 89 14Muskopf Coming Hospital Dist, 211; 89; v Rptr 55 Cal 2d 11 Cal (1961). P2d

668 567 420 Mich by Opinion Levin, J. doctrine immunity the abolition extend Thus, 5-3 a corporations. municipal beyond govern vote, the doctrine the Court abolished corporations; by municipal for immunity mental vote, however, declined to abolish the Court 4-4 for the state.15 sovereign immunity the doctrine of the later, enacted Legislature the years Three pur The liability primary act.16 governmental act,17 aby special "was drafted pose of the which 15 Comm’r, 268; Highway 365 Mich 112 130 State See McDowell v 48, 52-53; (1961); City, 374 Mich 491 Sherbutte v Marine NW2d NW2d 920 (1964). decision, following years said that a the Williams this Court In the agency of the State clothed with the State’s school district "as an immunity Mich [is] 1, Fractional, liability.” Sayers v School Dist No 366 from (1962). 217, 219; See fn 55. 114 NW2d 191 Auditor, 1; Myers County 133 190 v 375 Mich NW2d In Genesee (1965), (1966), 57; County, 377 Mich 759 and Keenan v Midland this Court abolished NW2d governmental immunity of counties. (1963) 110; County, But (county v 121 NW2d see Lewis Genesee can, effect, agency and therefore clothed with in be state sovereign immunity). 3.996(101) 170, seq.; seq. 1964 PA MCL 691.1401 et MSA et part as follows: The title of the act stated relevant municipal corporations, liability "AN ACT make uniform subdivisions, state, agencies departments, political when and the its function, engaged governmental injuries property in a * * added.) persons by negligence (Emphasis caused 1970, argument Legislature the title to amended address originally that fall Const 7 as enacted was unconstitutional because it did not § object required by within embraced the title the act as 1963, 4, potential infirmity art constitutional arose §24. purpose granting because the title of the act limited act’s governmental immunity injuries by negligence” "caused where a function, entity engaged in a but the granted immunity liability first sentence of 7 cases” where a function. Since the first sentence of 7 nity torts, from tort "in all § governmental entity in a provided governmental immu- by negligence (e.g., for torts other than those caused- reckless torts, torts), intentional and strict it created a broader and more inclusive was stated in the title. than broadening Confronted with the choice of either the title or narrow- ing immunity, Legislature opted title to broaden the encompass governmental for torts other than those DeMars, by negligence. Littlejohn supra, pp caused See & fn 2 5-6 and act, fn 66. The title of the as amended 1970 PA now reads pertinent part as follows: (On 1984] Ross v Consumers Levin, J. Michigan committee of pal Attorneys Association of Munici through legislature and lobbied backing strong par that with association’s organization, Michigan League,” Municipal ent appears immunity to have been to restore to non- sovereign governmental units.18 purpose, Legislature pro-

To achieve this "[e]xcept § 7 vided the first sentence of as provided, governmental in agencies all this act otherwise liability immune from tort in all shall be government engaged agency cases wherein the discharge governmental exercise thereby function.” The act conferred uniform stat- utory immunity governmental on all entities— non-sovereign political both the state and units engaged discharge alike —when the exercise or "governmental of a function.” restoring municipal that, To make clear corporations immunity governmental for functions making immunity govern and uniform the of all governmental functions, mental entities for it was thereby waiving the state’s common-law abso sovereign non-governmental immunity lute Legislature provided functions,19the in the second "[e]xcept provided § sentence of 7 as otherwise liability municipal corporations, "AN ACT to make uniform the political subdivisions, state, agencies departments, and the its when tion, in the exercise or func- * * injuries property persons year Legislature acted, One after the this Court declared 7 uncon- § title/object stitutional because inconsistency. City Maki v Tawas, (1971). 151; Maki, however, East 385 Mich 188 NW2d 593 had effect; statutory immunity a limited it made the of 7 unavail- able to involving injuries entities in actions suffered 1, 1970, August before title. the effective date of the amendment of the 18Cooperrider, supra, p Dep’t fn 8 268. See also Thomas v of State Highways, 10; (1976); Tawas, 398 Mich 247 530 NW2d Maki v East supra, (Williams, J., p DeMars, fn dissenting); Littlejohn 13 164 & fn supra, p 5. accompanying See fn 9 and text. Levin, J. modify as

herein, ing not be construed this act shall immunity restricting of the state from liability heretofore, immu which it existed tort nity as is af The "which

is affirmed.”20 common-law codified the state’s firmed” clause sovereign immunity abso from tort —an except it to the extent is waived lute Legislature.21_ "[e]xcept fall within the of the statute that Those sections Legislature proviso, by provided waived which the otherwise the state’s 3.996(102), political herein” 691.1402; immunity, sovereign MSA include MCL non-sovereign sovereign state and all which renders the keep damages arising the failure to out of units liable for reasonably repair” highways "in condition safe in "reasonable 3.996(105), travel”; 691.1405; MSA which renders the and fit for sovereign MCL non-sovereign political bodily "for units liable state and all negligent operation damage resulting injury property from * * * owner”; agency of a motor vehicle of which the 691.1406; 3.996(106), sovereign which renders the state and MCL all dangerous 691.1413; immunity arising defined. ducted MSA damages "resulting non-sovereign political from a units liable for building”; public and MCL or defective condition of a 3.996(113), sovereign provides MSA which that the state’s * * * damage apply "shall not to actions to recover proprietary performance of a function as herein out of the Proprietary any activity which is con- function shall mean producing pecuniary profit primarily purpose for the of a state, however, excluding, any activity normally supported by the taxes fees.” (1976), 41; City Taylor, v 247 NW2d 512 Pittman of sovereign immunity. Pittman a this Court abolished common-law was negligence tion, against municipal corporation, action a a board of educa- injuries April on 1969. others for suffered Because injuries were suffered before the effective date of the amendment of act, governmental liability supra, the title of the claim was Because school districts had been held to be state see fn 17 common-law, subject statutory, immunity. than rather agencies, see fn 15 J., supra; City Taylor, supra, pp (Coleman, Pittman v 51-64 therein, dissenting), and cases cited the Pittman case involved the sov- ereign immunity governmental immunity of the state rather than the Pittman, non-sovereign political of mon-law units. In this Court abolished com- sovereign immunity: judge-made immunity hold that the traditional common-law "[W]e enjoyed that the state and its instrumentalities heretofore from its hereby abrogated. torts should be and it is holding today prospective, exception "The we announce is with the any pending express of the instant case and cases now in which an challenge governmental immunity to the common-law defense of had Id., preserved.” pp been made and 49-50. 1984] Ross v Consumers (On Reh) Levin, J. Immunity II. Governmental non-sovereign political engaged a unit When is "governmental in the exercise or governmental statutory function,”22 it has immu nity pursuant § first sentence of 7.23When engaged governmental function, not in it is not immune. thereby power change The Court exercised its the common-law rule, Mead, (see 9), Hastings, Myers set forth fn that the state absolutely liability Legislature was waived that immune from tort unless the sovereign immunity. Myers County See v Genesee Audi- tor, supra, p fn 15 7. particular activity govern- Whether a was an immune function of may depended ment at common law characteristics of the court have less on the intrinsic activity policy than on the inclinations' of the rendering written, the decision. As Dean Prosser has is "[t]here exist, except they little that can be said about such distinctions artificial, they highly great that sense. and that make no amount of Obviously sought this an area which the law has in vain logical compromise, for some reasonable and and has ended with a pile jackstraws.” Prosser, supra, p fn 3 982. governmental A government, unit in a function of immune, particular activity and was not if the Sheldon v constituted a nuisance See, trespass. e.g., Village Kalamazoo, or (1872); 24 Mich 383 (1860). Pennoyer Saginaw, logical v 8 Mich 534 Taken to its conclusion, however, governmental such a doctrine would hold that a entity always scope authority outside of the of its whenever it scope governmental commits a liability tortious act. The for should, trespass

tortious nuisance or arguably, a tortious be no from, say, different for a tortious written, assault. As Dean that that merely say Prosser has seems "[i]t reasonable to argument itself, there is no sound behind the distinction concept resort to the more or less undefined of nuisance is one method which the courts have retreated from munici- pal nonliability.” Prosser, supra, 131, p fn 3 983. interpretation emergence A Michigan critical jurispru- dence of doctrine—and its Michigan jurisprudence function test—in by was offered Professor Cooperrider, supra, p fn 8 187: 'governmental immunity,’ "The doctrine of as it has been known in is, years recent from tort the rule that entities are immune —that liability employees for the injury- acts of their whenever the causing activity 'governmental’ perfor- in nature or involves the 'governmental not, mance of a Michigan function’—is so far as the law of concerned, 'ancient.’ It did not exist in 1850 and therefore scarcely part can inheritance from 'have by come to us as of the common law’ or monarchs, absolute or otherwise. Rather it was 420 Mich 567 Levin, J. struggle nine-year details of this Court’s The particular activity is a "determin[e] whether a meaning function within Consumers Power statute” are set forth Co, Ross v (1982) (opin- 1, 6-11; 415 Mich 327 NW2d 293 J.), repeated It and need not be here. ion of Ryan, emerged to note that three tests have is sufficient "governmental defining function”: " 1) good "common of all” test. 'The under lying the act is for the common test is whether special corpo good of all without the element of ” profit.’ pecuniary rate Gunther v Che benefit boygan County Comm’rs, 619, 621; Road (1923), citing City Bolster v of Law NW (1917). rence, 387; 225 Mass 114 NE 722 This is pressed upon the test most often us non-sover eign political units.24 imported Michigan into the law the first two decades of the century by generation judges lawyers twentieth easier corporations who found it Judge municipal read about law in Dillon’s treatise on legal heritage.” than to track down their own By century, though, Michigan the late nineteenth courts were

holding non-sovereign political units to be immune to the extent that they performed "governmental functions”: "Thus, law, day as of this decision under settled State and its integral parts, enjoy liability immediate absolute from tort negligent agents, reason of the acts or omissions of its servants except statutorily years, as that has been modified. Over the construction, by judicial grified 'sovereign’ immunity this has been transmo- 'governmental’ immunity applicable into and made to the government, i.e., districts, townships, 'inferior’ divisions of school villages, cities, counties, important but with an distinction. These government enjoyed subdivisions in when 'governmental’ distinguished 'proprietary’ from functions.” Myers Auditor, County supra, pp v Genesee fn 15 8-9. adoption by For a discussion of the other states of the distinction “governmental” "proprietary” functions, generally between see Barnett, The Foundations of the Distinction Between Public and Respect Liability Private Functions in to the Common-Law Tort Municipal (1937). Corporations, 16 Or L Rev 250 24Historically, very government premised establishment of government performs on the notion that functions that are in the "public Rousseau, good interest” and for the "common of all.” See (On Ross v Consumers 673 1984] Opinion Levin, J. 2) governing” This test The "essence of test. "governmental function” would limit the term generis governmental” in activities that are "sui private analogy "no common have Dep’t Highways, 398 sector.” Thomas v of State (1976) 1, 21; C.J., Mich NW2d 530 (Kavanagh, dissenting). J., This is the test Fitzgerald, pressed upon persons seeking most often us non-sovereign political from units. recover 3) governing” Justice "essence of test. Moody’s "[T]he [this] [is] crux of essence test upon purpose, inquiry founded planning whether carrying activity, out of the due to unique governmental mandate, its character or accomplished effectively only by govern- can be Highland Park, ment.” Parker v 200; (1978) concurring). J., 273 NW2d 413 (Moody, applied by This is the test most often Appeals the Court of years; although espoused by in recent single Court, a member this this test represented "swing vote” at a time when the evenly Court was otherwise divided between the other two tests. apparent phrase "governmen

It is now that the single, readily tal function” cannot be reduced to a applied following test.25The factors are offered as a (Cranston translation) (Middlesex: Penguin Social Contract Books, 1968); Wood, Republic, The Creation of the American 1776- (New 1969). Co., view, York: W. W. Norton & In that good immunizing "common of all” test would have the effect of all government activity government activity because all is in some sense "public good.” directed recently, pluralist toward the More theorists argued specific government have that no action is for the "common , good See, specific groups. of all” all since decisions benefit interest e.g., Linblom, Politics, Economics, Dahl (Chicago: & and Welfare 1976). Press, Chicago view, Univ. of good In that the "common of all” eliminating governmental test would have the effect of government activity truly because no good.” "public directed toward the Moody perceived ago: This years Justice six complete "To delineate a and balanced definition of 420 Mich Levin, J. exclusive, to be though list representative, non-sovereign deciding whether considered "governmental func- unit political tion.” applied specific to the

These factors should be plaintiffs the basis of the activity that constitutes Dep’t High of State complaint.26 See Thomas v Court), 21p supra, p 12 of the and ways, (opinion Michigan, McCann v C.J.); of (opinion Kavanagh, (1976) 65, 80; (opinion 247 521 of 398 Mich NW2d J.), J.); 83 of p (opinion Ryan, Fitzgerald, Galli v 527, 536; 149 Kirkeby, 248 NW2d J.).27 (1976) These factors (opinion of Williams, simplistic presumptuous.” Parker function within a format would be J., Park, Highland supra, p concurring). (Moody, v 200 26 question specific activity every case is whether the com- constitutes, below, plained light of of the factors discussed "governmental Cooperrider function.” Professor observed: departmental in a "The word 'function’ has been used sense: The 'governmental’ usually encompasses 'function’ that is characterized as police departments, road-building, all the activities of parks, involved itself in an isolated not] omission that would cast and fire schools, except department to the extent that a has * * * profit-making usage action. [This necessary. why particular The search now is for reasons act or liability upon entity another should governmental have that effect if a unit is the defendant. It would seem the answer should be found in the nature of the act or omission, public governmental objec- rather than in the over-all department for, employed, tives of the which the actor is as Justice pointed District, Birmingham out in Richards v School Edwards [348 490, 521; (1957) (Edwards, J., dissenting),] Mich sense 83 NW2d 643 in one performed governmental all functions units ” 'governmental.’ Cooperrider, supra, pp (emphasis fn 8 282-283 in the original). 27 then, 'governmental purposes "The test of of the in terms of the nature of the function’ for immunity statute, phrased must be specifc Dep’t Highways, supra, p function." Thomas v of State (Kavanagh, C.J., added). J., dissenting) (emphasis Fitzgerald, pleaded complaint "We look to the facts to determine specifc activity alleged against whether the tortious the state or its agencies protection is within the of the doctrine.” McCann J.) added). Michigan, supra, p (opinion Ryan, (emphasis v agree question governmental immunity "We that the should not complained-of activity be considered because the does not fall within ” 'the exercise or or a function.’ McCann v J.) added). Michigan, supra, p (opinion Fitzgerald, (emphasis 1984] Ross v Consumers (On Levin, J. simply up

should not be counted or tallied to reach importance a result. The of each of these consider- vary proper case, ations will from case to and the weight given indepen- to be to each factor must be light dently particular activity evaluated in plaintiff complains. about which the 1) specific complained activity Did the of involve policy quasi-judicial either aking?28 formulation or decision-m parameter [this consideration] "The will most along run often the line of distinction between planning aspects decisional and operational hand, duties on terial] [or the one minis- aspects supra, p Thomas, on the other.” dissenting). policy C.J., Thus the for- (Kavanagh, example, in, mulation inherent decisions short, governmental agency "In the test of whether a can claim speciñc activity alleged under the statute is whether against defendant falls within 'the exercise or ” Kirkeby, supra, p function.’ Galli v 536 J.) added). Williams, (opinion (emphasis 28 every jurisdiction judicial legislative Almost has held that and See, absolutely e.g., Supreme activities are Virginia immune. Court of Union, 719; 1967; v Consumers 446 US 100 S Ct 64 L Ed 2d 641 (1980); Pachtman, 409; 984; Imbler v 424 US 96 S Ct 47 L Ed 2d 128 (1976); Ray, 547; 1213; Pierson v 386 US 87 S Ct 18 L Ed 2d 288 (1967); (1951). Brandhove, Tenney 367; 783; v 341 US 71 S Ct L95 Ed 1019 respect judicial activities, 2d, With to see also 63A Am Jur Public Employees, Officers and 358. respect legislative activities, Tate, With to see also Russell v 52 Ark 541; (1890); Cook, 316; 13 SW 130 North Atlanta v 219 Ga 133 SE2d (1963); Sneer, McHenry 649; 585 (1881); v City 56 Iowa 10 NW 234 Newport McLane, Kenneday, 803; Ky (1934); v 77 SW2d 27 Commonwealth v Ky 618; (1904); Coffin, 82 SW 237 Coffin v 4 Mass 1 (1808); Jenks, 275; (1897); Pawlowski v 115 Mich 73 NW 238 Jones v Loving, (1877); 55 Miss 109 Nix, State ex rel Oklahoma Bar Ass’n v 1956). (Okla, 295 P2d 286 legislative The judicial reasons for First, and are twofold. litigation might the burden Second, optimal and risk of decision-making. deter virtually impossible it is to formulate standards for evaluat- ing legislative judicial decisions. reasoning justifies immunity The same policy-making quasi- and judicial public activities employees. undertaken other officers or Supreme Virginia Union, See supra. Court of v Consumers 420 Mich Levin, J. road, health what and where to build whether teach, offer, to and subjects what school services playgrounds where to build whether of immu- weigh would in favor swimming pools, of such decisions. complaining in tort actions nity of, hand, nature operational say, the other On construction, and the day-to-day road supervising schools, playgrounds, functioning hospitals, in tort ac- weigh against pools, would id., pp 21- arising tions out of these activities. See 22.

2) specific complained repre activity Did from a prevent a failure harm source not sent control?29 subject This consideration in effect asks whether to the claim- did government claim relates to what it did not do for him. See Cooperri- ant or what Court, Legislature, The The Governmen- der, Michigan, tal Tort in Liability L Rev (1973). Cooperrider expressed Professor has for this consideration: justification [immunity], there no such there would an be "[W]ere unpredictable essentially exposure to miscellaneous ac- ubiquity cusations of nonfeasance. Government’s vulnerable, legal modern life it makes milieu plausible wherein the search for a didly that are in no real sense the loss-bearer is can- recognized, to blame for individual misfortunes product enterprise. of its its principle government pay way should could shade imperceptibly principle into a it pay should our way. principle may Such a appropriate well be given Perhaps government circumstances. modern should absorb, greater degree does, to a than it personal arising burdens of misfortune from its failure occurrences, to shield individual citizens from harmful flood, such as crime and poor that citizens in a signal adoption 29 This factor does not of the common-law distinc passive negligence tion between' active and as relevant to a resolution "governmental question. of the function” (On Ross v Consumers Power 1984] Opinion by Levin, J.

position lay ways, to avoid or to off in other but that type belongs political of decision to the rather than to Id., process.” judicial pp (Emphasis the 285-286. in the original.) consideration, then, This in weigh would favor of cases where has injury occurred be cause, say, police department the prevent failed to Id., crime. p 286.30

3) specific Is the activity complained of without a common analogy private the sector?

Merely because there is an analogy pri vate sector does not indicate specific the activity complained of is not a governmental func lost, tion. Before specific activity complained of must have a common analogy private sector.31 For example, although there are private security forces that have power, under circumstances, certain to detain question person, arrest and questioning persons sus pected engaging in criminal are com activity performed monly and accomplished only by the government (i.e., police).

III. Officer Employee Immunity The immunity of public officer or employee32 30 many might such instances a duty court find that no of care by government government owed and thus would not be liable in Cooperrider tort. Professor stated: governmental-function "If the ques- defense did not foreclose these tions, remaining judicial control manipulation would lie in duty question, which would mean that in those instances in which he permitted go jury, claim to judge to the frequently would be permitting jury judgment concerning substitute its the extent public deployment services and their political for that of the administrative judgments authorities to belong.” whom such Cooperri- der, supra, p 286. Moody Justice defined a activity function as an that, unique "due to its governmental mandate, character or can be effectively accomplished only by government” added). (emphasis Highland Park, supra (Moody, Parker v J., concurring). 32Traditionally, the law drew public no distinction between officers

678 Mich 567 420 by Opinion Levin, J. personal for actions within tort from scope perfor authority and in the of his official immunity sepa an his official duties is mance of sovereign and distinct from rate and provision any § 7 nor other immunities.33 Neither governmental provides liability act of the protection employees. public Section officers or for "governmental statutory immunity to 7 limits 1(d) agencies].”34 of the act defines that Section non-sovereign include both the state and term to political units, not include individuals. but does provide public legislative not to

The intention immunity employees statutory with is officers or manifested §8(1) recognizes by act, which person injured may action maintain an that an against employee of a an officer by negligence agency injuries for caused of the employ employee officer or while the course acting within the of his or ment and while provides authority, and that the her unit indemnify employee.35 may It is the officer employees ordinary determining liability for citizens when Government, Against tortious conduct. See Civil Actions State fn 3 6.2, however, supra, p Recently, an 230. courts have moved towards § Davis, immunity public employees. increased for officers and See fn 7 supra, 26.01. § 33 485; 78; (1970); Cooper, Smith v 475 P2d 45 ALR3d 857 Or Wisconsin, Regents University Lister v Board of 72 Wis 2d (1976). 282; 240 NW2d immunity public policy. Official is on founded considerations of See Lister, Davis, supra; 26.01; Prosser, supra, supra, p fn 7 fn 3 § § variously 987. "These considerations have been as follows: identified in the cases (1) danger influencing public perfor- The officers in the (2) lawsuit; by mance of their functions effect which the threat of are caused the threat of the deterrent personal liability might have on those who (3) considering entering public service; the drain on valuable time (4) actions; subjecting such the unfairness of officials to (5) personal liability subordinates; feeling acts of their procedures appropriate that the of ballot removal are more methods Lister, dealing public supra, p with misconduct in office.” 299. ante, pp The text of 7 is set forth 662-663. (1) "Sec. 8. Whenever a claim is made or a civil action com- against employee governmental agency menced an officer or (On Ross v Consumers Power 1984] Levin, J.

apparent public that whatever employ provided ees have in this state is by the common law.36 following factors generally considered

when a common-law claim of asserted public officer or employee:

(1) Was the officer or employee acting within the scope of his official function?

A public officer or employee can claim only if he is performing his official function. officer, course, "No is absolved from for private his and personal torts merely because he is officer, an and the question arises only where he performs, or purports perform, his official funct ions.”37 injuries persons property negligence by or caused of the officer or employee employment acting while in the course of and while within scope authority, governmental agency may the of his or pay her the for, engage, attorney or furnish the services of an to advise the officer employee appear represent or officer or compromise, settle, as to the claim and to for and employee governmental agency in the action. may The pay the claim before or after the commence- judgment ment of against a civil officer acting damages a civil action. Whenever a for is awarded employee governmental agency an officer or as a result of personal injuries property damage action for by or caused employee employment or while in the course of and while scope authority, within the of his or her agency may idemnify settle, employee pay, the officer or [sic] or or compromise judgment. "(2) against When a criminal action is commenced an officer or employee officer or officer agency upon based the conduct of the employee employment, employee the course of if the or believing had a reasonable basis acting that he or she was

within the authority of his or her alleged at the time of the conduct, governmental agency may pay for, engage, or furnish the attorney services of an action, employee to advise the officer or as to the appear represent and to employee for and the officer or action. December obtain employee An officer legal or expenses who has incurred after prescribed 1975 for conduct may in this subsection expenses reimbursement for those under this subsection. "(3) impose This section any liability shall not on a agency.” 3.996(108). 691.1408; MCL MSA generally Schools, See 716; Bush v Oscoda Area (1979). NW2d 268 37Prosser, supra, 132, p fn 3 987. 420 Mich Levin, J.

(2) acting good employee or Was the officer faith? legislators absolutely

Judges immune.38 highest federal and executive officers of the governments traditionally also were held to state long absolutely immune, so did not be clearly the discretion in them exceed vested governor recently, however, law.39More other executive officers of a state have been lim qualified immunity. Qualified ited to a can public employee attach when a officer or acting good faith.40 (3) exercising employee quasi- Was officer judicial policy-making discretionary authority?

38See fn 28. public policy, every jurisdiction This rule is based on and almost has reached this result: judges always complete "On this basis have been accorded immu- nity even when their conduct is judicial jurisdiction justice, for their acts within the of courts of corrupt, or malicious and intended to do injury. who made this corrupt, preserving though cynic might forgiven pointing just Even be out rule, protect the reason is of course not a desire to official, misbehaving necessity malicious or but rather the independent judiciary, an who will not be deterred personal liability, together fear of vexatious suits and with the placing any position manifest unfairness man in a his where judgment required, holding responsible and at the same time him according judgment protection as well as to the of others. The same absolute legislatures, extends to members of the state and national * * bodies, legislative municipal Prosser, inferior such as councils 132, (and therein). supra, pp fn 3 987-988 cases cited § today prosecutors The Court immune. does not decide to what extent 39Prosser, 132, supra, pp fn 3 987-988. Against Government, 6.14, See Civil supra, Actions State fn 3 §§ 6.19, 246-248,255-256, pp and cases cited therein. majority A of courts have held that all members of the executive corrupt branch are liable for acts undertaken with a or malicious purpose, wanton, willful, See, or in e.g., or reckless manner. Shell- bume, Roberts, (Del Super, 1967); Heald, Inc v 238 A2d 331 Simon v (Del, 1976); Webb, Hennessy 329; 359 A2d 666 v 245 Ga 264 SE2d 878 (Hawaii (1980); Kajiya Dep’t Supply, App, v of Water 629 P2d 635 1981); Crews, (Iowa, 1973); Vander Linden v 205 NW2d 686 vNeal Donahue, (Okla, 1980); Roth, 357; 611 P2d 1125 Yotvat v 95 Wis 2d (1980). 290 NW2d 524 (On Ross v Consumers 1984] Levin, J. qualified

The public afforded to offi cers and employees generally varies with scope of their discretion specific as to the in quest act ion:41 " legislative, executive, decisions '[AJctions

judicial performed character which are scope within the authority of the body or officer con- * * * enjoy cerned liability. freedom from people place great powers "The making decision government. the hands of their In the exercise of discre- tionary power, governmental duty runs to the benefit of public, the whole great rather than to individuals. It is of importance that this crucial function of demo- ” cratic making decision unhampered be by litigation.’ (Emphasis in Sherbutte v Marine City, original.) 48, 54; Mich (1964), Wil- quoting NW2d Detroit, liams v (1961). 231; 111 NW2d 1 Public officers or are, however, employees liable negligent performance of ministerial acts. Id., 54, p fn 2. of immunity granted a public officer

or employee in any given situation turns on the specific character complained of, act not on general nature job.42 his it Accordingly, not determinative the officer or employee has general some discretionary if authority the act complained of is properly characterized as ministe rial.

It is often difficult to distinguish between discre- tionary and ministerial activities: "It impossible seems almost any draw clear and line, definite most distinction, since exists, if it can be at degree. one of would be difficult to ’[I]t conceive of 41See, e.g., Rhodes, 232; Scheuer 1683; v 416 US 94 S Ct 40 L Ed 2d (1974); Saalfeld, (CA 90 Curry, 9, Mosher 1978); v 589 F2d 438 Slavin v (CA 1978). 574 F2d 1256 42See, e.g., States, (ND 1980). Supp Ga, Miree v United 490 F 420 Mich Opinion Levin, J. ministerial, act, directly how official no matter any in the manner of its of some discretion did not admit driving of a if it involved performance, even ” 990, Prosser, 132, p quoting Ham v Los supra, nail.’ § (1920). 148, 162; 189 P 462 App 46 Cal

Angeles County, pro intended to be discretionary The decisions are those that involve immunity official tected quasi-judi and those that are formulation43 policy City, supra, In v Marine cial in nature. Sherbutte 54-55, immunity said that official this Court pp making,” namely, "democratic decision protects executive, legislative, "actions or decisions original.) The (Emphasis character.” judicial police held that a officer or Court Sherbutte alleging not immune from an action employee was during the course of an excessive use of force expatiate think it on unnecessary arrest: "We making action of a officer in point. police The an arrest cannot be considered within the broad government of the discretion a free scope allowed executive, legislative, judicial its branch.” sum, if judges legislators acting are function, scope they within their official are immune. absolutely public Other officers or em- possess official if are ployees only they acting function, within the of their official faith, and, they acting good are focusing upon specific activity complained plaintiff, exercising quasi-judicial or policy-making discretionary authority.

IV. The Court opinion the Court states that the phrase "governmental function” should be construed in a "broad manner” because "extends 43See, e.g., Independent Larson v Braham School Dist No 1980). (Minn, NW2d 112 (On Ross v Consumers 1984] by Opinion Levin, J. governmental agencies for all tort all engaged they in the exercise or are whenever discharge governmental p Ante, of a function.” (Emphasis original.) language 7, in just The 618. might readily provid- however, be read as absolving govern- ing immunity, limited all a more agencies liability only tort from all when mental in the exercise or governmental function. agree Legislature

All that has "evi- can legislative judgment public dence^] a clear that private and ently.” tortfeasors should be treated differ- p suggest,

Ante, 618. That does not how- Legislature ever, intended to immunize governmen- by "most of the activities undertaken agencies.” p agree Ante, tal people, by 621. All can that "the

mandating govern- authorizing or engage activities, ment mined that these activities are to certain have deter- in nat- p Ante, follow, however, ure.” that 620. It does not by mandating authorizing government or engage people activities, to in certain have government determined that im- should be every mune for each and performance act connected with the activity. of that opinion example, Court, of the concludes right supervise that a the construction of a impliedly by drain is authorized the Drain Code of seq.; seq., 1956, MCL 280.1 et MSA 11.1001 et grants drainage power which a district over the establishment, construction, and maintenance of a pp. drainage Ante, view, drain. 637-638. Under this a employee district or board would be immune if an operating helicopter supervise a drain construc- person damages tion flies too low and strikes a or property. history nothing language There is in the or liability act,

of the nor anything language history is there 420 Mich Levin, J. Legislature suggest in- Code, Drain "gov- operating an immune aircraft be tended that government Virtually all ac- function.” ernmental impliedly tivity expressly mandated or autho- constitution, statute, or other law. rized By perusing focusing rather than

the statute books complained plain- specific activity on the immu- iff, nity the net of the Court casts enabling governmental entity far, too promul- immunity by expand the of its own relating gating ordinance or other law to its an activities. defining "governmen- difficulty in

The inherent by scanning the statute books is tal function” treatment of the Willis illustrated in the Court’s argues opinion the Court the case. The , Department statutory duty imposed on the of So- residing in state cial Services to care for children "implies responsibility supervise facilities them in order to

prevent, practicable, as far as p any unnecessary injury.” Ante, 641. Yet statutory duty Court then relies on that same as a immunizing department when reason one employees statutory duty of its breaches that prevent injury. analysis, then, Under the Court’s responsibility the same statute that creates the supervise prevent injury children to also immu- department employees nizes when one of its very responsibility. breaches that Application V. Cases Instant application The detailed the factors Appendix. individual cases is set forth in the II, Siener, Rocco, Four of these cases—Willis Disappearing against Lakes —are actions the state departments. Legislature and its has affirmed sovereign immunity cases, in these and therefore 1984] Ross v Consumers (On Levin, J. liability by from

the defendants are absolved sovereign immunity provided by the second sen- plaintiff alleges § Rocco, 7. In also tence of claim, and that should contract for trial. claim be remanded Regulski, Ross, Trezzi, Four and Zavala— cases— against non-sovereign political are actions units. application of an On the basis cussed above and set forth the factors dis- Appen- detail in the Regul- dix, the entities in Ross ski were not exercise or "governmental function,” and therefore are pursuant §7; not immune in to the first sentence of Trezzi and Zavala entities are immune under the first sentence of 7. Regulski, teaching supervision

In neither nor providing goggles safety emergency supplies building and facilities in a for students trades class "governmental Regulski functions.” In non-sovereign political Ross, units are not immune respect operation with to the conduct and of con- city Zavala, struction work. Trezzi and police immune from responses for the manner of requests for assistance. Regulski, I, Three cases—Willis and Zavala —are against public or include actions officers or em- ployees. application On basis of an of the above, common-law factors discussed the individ- ual defendants in these cases are not immune. teaching Thus, official does not attach supervising (Regulski), supervising students juvenile facility residents of a care on a recre- (Willis I), outing police ational or the decision of regarding respond request officers how to to a (Zavala). opinion expressed assistance No police any officers, whether the or indeed subject prin- defendants, are under tort ciples; opinion sepa- this is addressed to the 420 Mich Opinion by Levin, J. governmental, and offi- question sovereign,

rate employee immunity. cer or

Appendix Application Detailed the Factors Instant Cases

Ross In connection with the construction of a drain on owned Consumers Power property Company, I Project Drainage pro- the John Saines District Consumers with an easement. The vided district the drain Duni- contracted construction Brothers, Ross, gan Dunigan Inc. Michael em- was when a vehicle ployee, injured construction near which he with working was came contact power electric lines maintained over property Consumers. against Consumers, Ross commenced an action and the action settled. eventually Consumers had filed a action third-party against district. The Court Appeals allegations summarized the complaint Consumers’ amended as follows: essentials, "In its against Consumers’ tort claim alleges negligence arising District out of a failure to notify Consumers being that work was undertaken that lines, could arrangements power interfere with the a failure to make safeguard with Consumers workers lines, from contact with the a failure to instruct and concerning lines, warn its contractors a failure to hire a properly competent contractor, licensed and a failure to adequately supervise inspect project in occurring.”44 prevent such a manner as to the accident from The heart of complaint Consumers’ is that Co, 687, 697; App Ross v Consumers Power 287 NW2d (1979). (On Ross Consumers Power v 1984] Levin, J. to close to

district allowed its contractors work too power notifying Consumers’ lines without Consum- danger, warning explicitly without ers adequately lines, without workers about and supervising inspecting prevent the work to question power with the lines. The contact specific activity complained of whether this consti- light tutes, above, in of the factors discussed "governmental function.” It does not. specific activity complained First, does policy quasi-judi formulation,

not involve cial in nature. of construction lines without nor is it

Consumers’ claim is the conduct power work too close electric proper warnings to the workers and proper power without notice to the owner of the happens lines.45 That the defendant here to be a governmental entity not, itself, does in and of inject any degree activity. Supervision policy formulation into the inspection of construction generally operational work has been held be weighs against immunity. nature. This factor specific activity complained Second, the of—fail- supervise, inspect respect warn, ures to to a specific site where a construction project progress represent was in a fail- —did prevent subject ure to harm from a source not weighs against control. This factor present case. specific activity complained

Third, the of has a analogy private common sector; it is not an activity performed primarily accomplished by government. Conceding the occurs that drain-construction

primarily pursuant Code, to the Drain analogy there is nevertheless a common in private analogy sector. The obtains whenever con- permitted struction workers are to work close to express opinion We no duty whether the district owed a general principles. Consumers under 420 Mich Opinion Levin, J. power of notice to the owner lines without

electric warnings specific power and lines, without adequate workers, without and instructions supervision inspection of the construction analogy private more common is even work. recognized issues the same it is when con- is hired to do a contractor whenever arise any hazard; the anal- near kind of work struction ogy power hazard of electric limited to the is not complained specific activity Because lines. proj- private analogy many in construction has an weighs against immunity in the ects, this factor present case. conclusion, immune under the district is not Dunigan employ- permitting allegedly

§7 for power lines to Consumers’ to work too close ees warning notifying Consumers, without without supervising danger, and without workers about inspecting the work. alleges complaint also the dis Consumers’ negligent hiring in a contractor that was trict was competent. Evaluating properly licensed and light specific independently activity this above,46 the district is not immune factors set forth hiring Dunigan § its Brothers as under drain. contractor for this 46First, hiring policy decision does not involve formulation and readily quasi-judicial

is not nature. Traditional tort standards are applicable negligence hiring to determine there was in the whether given hiring operational activity contractor. The in nature and Second, weighs against immunity. of a thus this factor district’s prevent the nature hiring activity represent a failure to is such that it does not subject harm from a source not control. Third, hiring analogy private decision has a common in the Hiring general, hiring sector. decisions in and the of contractors for private particular, frequently construction work occur sector; they primarily performed accomplished by the are not hiring government. The district is not immune under 7 for its Dunigan Brothers. 1984] Ross v (On Consumers Levin, J.

WillisI Plaintiff is the administratrix of the estate of Jeffrey Willis, was a of Harbor who resident juvenile facility delinquent House, neglected youths operated care Department

by the Social Services. Willis and other Harbor House swimming outing were for a on residents Lake taken Michigan supervision coun- under the Cyndi selor, Knox, student-intern, Erma and a Hunt. Willis entered the water and drowned. brought

Plaintiff this action in the circuit court against Knox, Hunt, and of Harbor the director claiming against House, negligent outings. Nienow, Dennis all three supervision conduct and of recreational Appeals The Court of summarized the allegations complaint as follows: complaints alleged "Plaintiff’s Jeffrey that and Knox marginal could that swim swimming ability, not or were lifesaving training, neither Knox Hunt nor had lifeguards that duty there were no on at the time question, Jeffrey that and other Harbor House residents designated were allowed to swim in areas not as swim areas, ming Jeffrey and that and the other residents dangerous were allowed to swim under ions.”47 weather condit question public is whether or these officers employees spe- are immune from for the activity plaintiff’s cific forms the basis complaint. They are not.

First, all three defendants acted within the scope appears of their It official function. that at outings recreational were standard activities facility such as Harbor House. The func- official Knox, Hunt, tions of and Nienow include the supervision conduct and out- such recreational 47 Nienow, (1982). vWillis App 32-33; Mich NW2d 273 Mich Levin, J.

ings. these defendants Thus, made the decisions swimming outing respect were made to this with scope function. of their official within exercising not Second, were the defendants discretionary policy-making quasi-judicial au or performing thority, a ministerial but rather were permitting Jeffrey Although swim in Willis to act. they existed circumstances under the the lake requiring the defen was a decision at the time require judgment, it did not their dants to use policy-making quasi-judicial discre exercise of tionary authority att official to which aches.48 public em- officers or these

The conclusion type exercising ployees of discretion- were protected by ary authority ren- official they unnecessary acted whether it to consider ders Although good Knox, Hunt, and Nienow faith. acting official func- of their were within specific tion, are not immune because complained permitting activity to swim Willis of— dangerous not done circumstances —was under pol- quasi-judicial discretionary the exercise icy-making authority.

Willis II drowning out of the same This action arises the in Willis I. In addition to incident circuit court action dants, Knox, Hunt, involved against the individual defen- plaintiff brought Nienow, against the State an action the Court Claims Michigan Department and the of Social Ser- parallel liability those vices. The theories of here against pled that were the individual defendants. acting scope within the of their Because all three officers were reimbursement, pursu- employment, they may eligible agency be 8(1). ant to See fn 35. § 1984] (On Ross v Consumers Opinion by Levin, J. sovereign statutory immunity

The state has pursuant liability from tort the second sentence statutory sovereign § of 7. The of the immu- except nity absolute the that extent it has Legislature. been waived Legislature im- has not waived the state’s munity for torts committed connection with the operation state-operated juvenile facility. care immune. The defendants are

Siener in-patient Jr., Siener, an Russell at state-operated Center, Hawthorn mental health facility emotionally disturbed children. Siener personnel center, was taken patients, trip company of on other a field to Green- Village. supervisor permitted there, field five While including

boys, group Siener, to leave the supervision. During unsupervised without this di- boys by striking injured. version one of the Siener pot him in the face with a cast iron lid. Siener brought against an action the Court of Claims Michigan, Department the State of of Mental alleging Health, Center, the Hawthorn supervise properly the defendants failed to group patients control to which Siener had assigned. been agencies

The state and its have absolute sover eign immunity pursuant from tort second sentence of 7 unless that has Legislature. argues been waived Siener Legislature waived the state’s with respect to mental health centers in the Mental Specifically, Health Code.49 Siener claims that provision following constitutes such a waiver: 14.800(700) seq.; seq. MCL 330.1700 et MSA et 567 420 Mich 692 by Opinion Levin, J. not be services shall

"(1) health of mental recipient A abused. sexually, or otherwise physically, physi health services "(4) mental recipient of Any right shall have a abused otherwise sexually, or cally, rel appropriate civil other injunctive and pursue ief.”50 sure, language can, be to be this section

The any right provide relief for to civil read patient abused, whether that iswho health mental Department by Health a Mental inflicted abuse is employee determining patient. by another underlying section, legislative this how light intent the ever, provision statutory we must view accomplished sought general purpose to be by sought the statute to be remedied evil or the Arbor, 562; Mich 406 v Ann White a whole. (1979). purpose underlying The 281 NW2d to set certain standards Code is the Mental Health recipients requirements the treatment employ by the staff health services of mental The statute no health facilities. ees of mental impose suggests legislative liabil intent to where by injuries government ity inflicted on the Legislature patients.51 has not waived other the state’s complaint sovereign immunity where a 14.800(722). 330.1722; MCL MSA Appeals agree in Rocco v the conclusion of the Court of We with Health, 792, 798-799; App Dep’t 319 NW2d of Mental (1982), companion today: one of the cases decided duty care Health focuses on the of the health "The [Mental Code] patients. rights facility its None of the sections discusses towards responsibilities patients. primary purpose between The statute’s and is patient protect health from certain abuses the mental 330.1722; purpose facility or its When is read into MCL staff. this 14.800(722), provision prevent it is clear that was meant MSA abusing patients facility from the staff of a mental health care Legislature to abolish its care. It was not the intention patient immunity in where one attacks those cases another.” (On 1984] Ross v Consumers Levin, J.

alleges injuries patient inflicted another in a facility.52 mental health The defendants in this case are immune.

Rocco state-oper- Daniel Rocco was a resident of the Ypsilanti Regional Psychiatric Hospital ated when by patient. he was murdered another Plaintiffs complaint filed a two-count in the Court of Claims against Department of Social Services and the Department alleged of Mental Health. Count I negligently placed that defendants decedent’s as- patient sailant, who was a known to have a his- tory of behavior, violent and assaultive in an unsupervised unrestrained and unit with the dece- longer required in-patient dent, who no care and awaiting halfway was transfer ato house. Count II complaint alleged plaintiffs paid of the that for the care and treatment decedent,, and that implied defendants breached their contractual duty protect to the decedent from harm and abuse patients hospital. other at the companion

For the reasons stated case of provide Siener, the Mental Health Code does not injury complained cause of action where the patient, inflicted another mental health nor does the Mental Health Code constitute a legislative sovereign waiver of the state’s immu- nity provided by the second sentence of 7. language speaks only § 7, however, to liability; grant from tort it does not immunity from contract claims. The state is sub- that a sovereign immunity MCL health of a mental No 330.1722(4); patients by recipient opinion health of mental health the staff of a mental health MSA expressed facility for torts 14.800(722)(d), is entitled to whether allegedly services who is abused thereby committed "appropriate Legislature, facility. waived the state’s against by providing civil the staff mental relief,” 420 Mich 567 Opinion by Levin, J. Nothing §in ject contract claims.53 to action on statutory suggests sover an establish intent relating eign of action for causes con be remanded The cause should contracts. alleging II breach merits Count sideration of implied contract. of an argue of the of the the contract count

Defendants allegations complaint merely restates the permit the claim count, contract and that tort to immu the tort heard would be circumvent be allegations Although provided by nity § 7. all the repeated complaint I of the contained in Count count, II the criti Count contains in the contract agreed pay allegations plaintiffs did to and cal defendants for Daniel Rocco. housing, care, and treatment plaintiffs In Count II the have beyond action the statement of a cause of moved alleged separate legally have a in implied of an of action for breach distinct cause contract.54

Regulski Regulski 17-year high T. school James was a old building He enrolled in a trades class. senior. was part high regular The class as the was offered a school curriculum of defendant district. the school 53 333, 339; Highway Dep’t, Hersey See Gravel Co v State 305 Mich 186, (1943); Knapp Highway Dep’t, 567 9 NW2d WH Co v 311 Mich 188; (1945); 285, Zynda Comm, 18 NW2d 421 v Aeronautics Mich 372 (1964). 287; 125 858 NW2d 54Denying immunity by for breach of contract entity plaintiffs generally impact by will not to avoid of 7 enable the complaints simply labeling implied An their "contract” rather than "tort.” may engages accepts found contract be where one compensation customarily beneficial services of another which Stevens, 626, 632; actually anticipated. made Miller v 224 Mich (1923). compensation requested, 195 NW 481 Where has been neither to, agreed provided government, nor for services to be rendered generally implied be no there will cause of action for breach of contract. 1984] Ross Consumers Power (On 695 v Levin, J. during The students this class erect a house semester, course which then sold private buyer. to a school district working Regulski house, on While in- attempted jured he when to drive a nail into a piece Regulski nail, wood. When struck the it bounced free the wood struck him eye. Regulski brought against left an action building district, school the teacher of the trades class, Hansen, Leo and the director of the voca- building program tional trades for the school dis- Murphy, alleging trict, William the defen- negligent failing dants were to dismiss the class job allowing when teacher left the site and Regulski working supervision. to continue without

Although law, it has been said that at common agency "as school district an of the [is] State liability,” clothed with the State’s from Sayers 1, Fractional, v School No Dist 366 Mich (1962), 217, 219; 114 191 NW2d school districts generally governmen have tal cities, immunity been held to have the non-sovereign political (e.g., units

counties), sovereign rather than the absolute events, state.55 all the common- 55 accompanying fn See 15 and text. Early involving this decisions of Court school districts treated them See, municipal corporations. e.g., Twp Marathon School Dist 4No Gage, (1878); Ed, Seeley v v Bd of Mich Burr, (1876); 1; (1889). Belles v Mich NW 24 The first case to consider the of a school district’s tort Ed, case, supra. was Ferris v was school plaintiff Detroit Bd of fn 8 In that injured slipped he when on ice and snow that had a fallen off finding tort, roof. that the school board was liable in the municipal corporation, Court agent treated it as a not as an state: plaintiff municipal corporations "It is conceded counsel for that liable, law, generally are not held negligent under the common for injuries public arising plans to individuals from defective of of construction keep repair; works or failure to the it same in but is contended that, injury trespass where the is the result of the direct act or the of liable, municipality, acting public it is no matter whether in a or private capacity. right plaintiff areWe satisfied that for counsel are 420 567 Mich 696 Opinion by Levin, J. abrogated by was districts of school immunity

law Taylor, v of 398 Mich City in Pittman Court this * * * many times in this court It has held contention. been in this that a of, invade, right city cause invasion the no more has added.) Id., p (Emphasis private property, 318. than an individual.” Ed, 490; NW 1028 Bd 139 Mich 102 Detroit of In Whitehead v (1905), personal injuries plaintiffs suffered the action recover employed by dismissed the school district was he was defendant while by municipal Michigan of "in the State the trial court because negligence of when corporations liable for the their servants are not governmental capacity the in connection with in the exercise of duties of added.) Id., (Emphasis p corporation, 492. unless made so statute.” the Detroit, judge his on Nicholson v The based decision trial (1902), 246; city successfully an demurred to where a Mich NW city’s arising negligent of health. board out of conduct action judge’s his trial result and affirmed the This Court in Whitehead distinguished principle "could not be that Whitehead conclusion from the case of Nicholson * * Ed, v Bd of Whitehead Detroit p supra, 494. Ed, 339; Rapids 158 NW Bd of In Daniels v Grand (1916), rejected the that a school this conclusion Whitehead Court municipal corporation purposes of a treated as district should be immunity municipal district, held, liability. a A is not from tort school Court corporation”: "quasi corporation but rather a "Although corporate to more with certain characteristics invested created, purpose efficiently tricts are are dis- for which school serve sense, municipalities, corporations public not nor in the full very powers distinguished because restricted but of their Id., (Emphasis origi- corporations.” p recognized quasi 347. nal.) noted, however, question a The Court in Daniels school district should corporation nity whether corporation municipal quasi be labeled case, important immu- in that because the same from attached to each. municipali- immunity School districts thus had non-sovereign political ties and other units rather the absolute than sovereign school district is a appears concept immunity of the state. It that a agency, Sayers v No state found School Dist Fractional, supra, Attorney be v can traced to General ex rel Kies (1902). 639; case, however, Lowrey, 131 Mich NW 289 That was a quo hold the office of trustee of a Court’s statement that proceeding challenging right persons warranto certain newly created school district. agency school district is a "[t]he State [and] legislative provided creation” a rationale for its that the conclusion fix, Id., Legislature change, pp on may school district boundaries. Lowrey bearing 644-647. was not thus a tort action had no and, so, governmental immunity whether school districts have if non-sovereign political sovereign units or Ferris, Whitehead, Daniels, supra, supra, supra. the state. See 1984] Ross v Consumers (On Reh) Opinion Levin, J. (1976).56 41, 49-50; 247 NW2d The current immunity is school districts derived not from 7; the common but § law rather from school dis immunity provided tricts have the "governmental agencies” by the first sentence of sovereign immunity 7,§ rather than the absolute provided to the "state” the second sentence. provides

The first sentence of 7 "governmental agencies.” The act "governmental agency” polit state, defines as "the municipal corporations subdivisions, ical and "political herein defined.”57Thus the "state” and a separate subdivision” are and distinct entities for purposes subdivision,” of the act. "Political including turn, is defined as a "school district.”58 Accordingly, "political a "school district” is a sub synonymous division” and with, is therefore not from, but rather distinct the "state.”59 Since a school district is within the first rather question § 7, than the second sentence of specific complained whether the activities of con- light stitute, of the above, factors discussed "governmental, Regulski’s complaint functions.” alleges the defendants allowed him to work 1) project: supervisor on the construction when no 2) present; adequate without instruction con- cerning dangers proper involved and the meth-

56See fn 21.

57See fn 6.

58See fn 6. 59The act defines term "state”: " Michigan 'State’ means the agencies, departments, state of and its commissions, and college every public university and shall include and state, corpora- whether established as a constitutional tion otherwise.” fn See 6. "every public The within university college inclusion of the state” statutory suggests definition of "state” also that school operating public districts within the elementary secondary schools are not statutory definition of "state.” Mich Levin, J. 3) safety goggles doing work; without ods for 4) sup- adequate emergency glasses; without mishap plies in case facilities available "govern- are these activities None of should occur. mental functions.” policy for- neither involve First, these activities pre- quasi-judicial in nature. As are nor mulation viously supervision is of work noted, construction operational activity. Policy formulation simi- an larly instructing about students involved permitting to work without work, students the protection failing provide eyes, to

for their supplies. emergency The decisions sufficient offer this vocational ski to made, Regul- program allow having program participate in the been ap- readily are standards traditional allegations negligence plied of these to evaluate policy. implementation factor This the weighs of against these as to all four of allegations. directly did not

Second, district while the school permitting injury Regulski suffered inflict the building class him in the trades without to work protection supervision, eyes, instruction, for his supplies emergency facilities, and sufficient and the direct source of through hammering, Regulski, his own injury, specific

his own of—the failure complained activity of teachers supervise Regulski repre- adequately to teach or — prevent sented failure harm from a source subject This factor control. weighs against immunity. teaching analogy

Third, in the has a common private private many sector. schools There part with as a their vocational courses offered educating youths curriculum. While is an children and performed by activity today primarily government, significant number students 1984] Ross v (On Reh) Consumers Levin, J. large private

are educated in a number schools analogy sufficient to constitute a common private weighs against immunity sector. This factor respect allegations negligent with to the instruc- negligent supervision teaching tion and process. private regarding provision analogy goggles safety preparedness emergency ex- beyond private tends schools to include all in- carpentry stances of construction and work. When- people wood, ever work with identical tort issues regarding safety goggles emergency pre- arise paredness. involving

Because construction work generally performed by persons wood is or con- government, weighs cerns other than this factor against immunity respect allega- with to these two tions. weigh against case,

In this all factors immu nity. The school district is not immune for these § activities under 7.60

The individual defendants also do not have offi- against immunity allegations cial in this com- plaint. Hansen, Both class, as teacher of the and Murphy, building as director of the vocational program, acting trades were within the of respect supervi- their official functions with to the 60Regulski argues that because the school district sells houses by building constructed in a value, engaged trades class at market it is proprietary function for which is waived 13 of § (MCL 691.Í413; act 3.996[113]). MSA immunity, This waiver of how- ever, applies only to the state: "The apply the state shall not to actions to recover for bodily injury property damage or arising performance out of the of a proprietary added.) function (Emphasis as herein defined.” Nevertheless, (see since a agency school district is not a state fns 15 text), and 55 accompanying government and other units of are immune mental not a when in the govern- exercise or function, 13 is not proprietary determinative. A function is events, function. teaching In all super- since function, vision is not a Regulski’s cause does not depend characterizing on activity proprietary as a function. Levin, J. emergency prepara- conduct, instruction, sion, alleged Regulski has not course, and tions that rupt Murphy cor- with a acted or either Hansen purpose The faith. bad or malicious exercising quasi-judicial however, not, officers were or spect authority discretionary re- policy-making with complaint. alleged to the activities regarding voca- what not decisions Whether prerequisites offer, to estab- what tional courses lish, eligible participate which students authority, policy-making the exercise involve supervision class does and conduct This is exercise of such discretion. true with involve particularly allegation respect to the permitted Regulski inade- with was work Indepen- quate supervision. Braham In Larson v (Minn, 289 NW2d dent School Dist No 1980), Supreme held that Court the Minnesota gym class nor the school the teacher of a neither principal immune from to a student was negli- injuries allegedly a result of for gent spotting suffered as supervi- gymnastic exercise. not involve sion of classroom activities does authority discretionary official to which exercise immunity attaches.

Trezzi seeing walking past parents’ After his house and through refrigerator door their window that ajar, sought emergency Trezzi assistance calling operator 911 six times. The 911 attached a rating passed low-priority to those calls and them police dispatcher, Philip Torbit, on to the who dispatch any police then failed to vehicles for approximately one and one-half hours after receiv- ing During emergency the first call for assistance. period, parents by an this Trezzi’s were attacked 1984] Ross (On Reh) v Consumers Power Opinion by Levin, J. forcibly unknown assailant who had entered their premises; they injuries. died as a result of their

Applying City above, the factors set forth Detroit the exercise or "governmental city function,” a and therefore the pursuant is immune to the first sentence of 7. complaint opera The crux of Trezzi’s that a assigned improperly low-priority tor a classifica dispatcher delayed tion to his call and that unnecessarily permitting police some offi —even sending, cers to take a lunch break —before a unit respond to his call.61 specific complained activities of—the classi incoming police dispatch fication of calls and the degree policy a vehicles—involve sufficient for weigh mulation for the first immunity. factor favor of opera This case does not involve the implementation system. tional of 911 The deter priority given incoming mination of the to be to an light manpower assistance, call for of available and other time, demands for assistance at policy regarding constitutes a decision the most police effective utilization of resources. Even a decision to send certain units to lunch before responding given requires priority to a call a low policy-making judgment regarding the exercise of the utilization of

police point, who, officers at some Assuming, opera must eat. contends, as Trezzi guided preexisting priority designa tors are system, city by adopting guide tion lines, not, did

change the nature of the decision or dimin statutory immunity ish its from therefor.62 alleges Trezzi also properly carry the defendants failed "to inspection, counseling out its safety regard measures in to '911’ calls,” system complete upon the 911 constitutes "a fraud public.” concerning guidelines Tort preexisting cases failures to follow analogous. 567 420 Mich 702 Levin, J. weigh policy of im- in favor determinations

Such munity these facts. on complaint

Second, the basis because prevent government from harm failed to that a source not subject control, this immunity. weighs in factor favor police assis- Third, of calls for the classification analogy in the a common does not have tance private private security Although there are sector. engage general they generally do not forces, emergency system. may analogous public to a assistance although private ambulance services And designation system priority simi- maintain a system, employed such ambu- lar to that analogous sufficiently be- are not lance services cause protection. provide police do not requests police emergency assis- coordination of system performed tance afforded accomplished uniquely by a 911 government. This weighs in this case. factor favor dispatch The classification of 911 calls and the ing police respond to such calls are vehicles "governmental City functions,” and therefore of Detroit is immune when in these activi ties under the 7.63 first sentence of Disappearing Lakes request private developer, At the land (the Michigan Department prede- of Conservation operator taking This is not a case in which a 911 erred in down caller, an address from the or in which the address is recorded correctly dispatcher police but the nevertheless sends a vehicle to the which, wrong say, paramedic properly location. Nor is this a case in dispatched through system negligently the 911 treats the sick or injured DeLong 376; County, victim. Cf. v Erie 89 AD2d 455 NYS2d (1982) (operator wrote down "219 Victoria” when 911 caller had given Victoria,” dispatcher police address as "319 sent vehicle to "Victoria Avenue” in Buffalo when caller was located on "Victoria Kenmore). Boulevard” in the suburb of 1984] Ross v Consumers (On Reh) Opinion by Levin, J. Resources) Department cessor of the of Natural permit dredging issued a for the of canals or extending channels in an area from Lake Orion dredging, southwestward. After the the water lev- Square Square els of Lake Lake, and Little both just dropped precipi- Orion, located south of Lake tously. Studies indicate that water loss in the interference with the Square by Lakes was caused subsurface water dredged. flow when the canals were Square

The use of the Lakes for recre- purposes destroyed, ational and aesthetic plaintiffs, adjoining Square who own land brought claiming damage Lakes, an action property. health and agencies possess

The state and its absolute sov ereign immunity pursuant to the second sentence §of 7 by unless that has been waived Legislature. Legislature the immunity ing permits.64 The has not waived granting denying dredg

for decisions Zavala Jose Zavala was shot in front of El Taurino Lounge. fight erupted A had and, outside the bar period after a short by time, Zavala was shot participants fight. one of the initially After bringing against an action several of those in- fight, volved complaint Zavala amended his Sergeant to add as defendants Zinser, Andrea Officer Zavala City Harris, Freida and of Detroit. alleged that at the incident, time of the. sitting just Zinser and Harris away were a few feet police they a fight car, marked that saw the 64 The Court in Highway Dep’t, 149; Gerzeski v 403 Mich 268 NW2d (1978), appear did not rule, to have considered the common-law "affirmed” the second sentence absolutely the state is immune been liability except from tort the extent has Legislature. waived Levin, J. requesting them to act to individuals

indicated that that police action, they but effective would take presence known make their failed to up fighting failed to break who were those disturbance, choosing to call and wait instead back-up assistance. respect presented question to the com- with City

plaint against is whether an of Detroit back-up assis- to call and wait decision officer’s in a disturbance to intervene tance rather than light above, discussed constitutes, in of the factors "governmental I hold that it would function.” does. regarding an

First, how to handle a decision peace does involve breach observed policy quasi-judicial and is not formulation weighs against immunity factor, then, This nature. in the present case. finding supports immu-

The second factor police complaining nity. that the officers Zavala shooting prevent him that caused failed to injury. presents perhaps archetypical This case gov- example complaint relating to what the the claimant. Professor ernment did not do for Cooperrider respect prevention in to the observed government crime, that a that should of assume "a decision greater degree per- [of] the burdens of arising from failure to shield sonal misfortune its occurrences, individual citizens from harmful such * * * belongs political as crime and flood to the process.” Cooperrider, judicial rather than to the added.) supra, p (Emphasis 286. back-up Third, a decision to await assistance up immediately rather than act a distur- break analogy does not bance have a common private security require Although private sector. there are some responsibilities

forces, their do often stop fight among them to a a number of 1984] Ross v Consumers (On Reh) Opinion by Levin, J. breaking up events,

individuals. all the task of fight arresting disorderly those concerning conduct—and thus the decision required perform number of officers task safely performed uniquely accomplished —is by government. weighs This factor therefore favor of in this case. request balance,

On the decision to and await back-up immediately assistance rather than act up fight "governmental break was a function” City, for which the of Detroit is immune under the first sentence of 7. respect

With defendants, to the individual Ser- geant acting Zinser and Officer Harris were within scope responsi- of their official function. Their bility police law, officers was to enforce the quell by seeking a decision to the disturbance back-up assistance from their fellow officers was scope well within the of that function.

The next consideration is whether Zinser and acting good Harris were faith. The failure to fight occurring away intervene in a a few feet does corrupt not evidence recklessness or malicious purpose by requesting where the officers did act back-up assistance. The record as it now stands allegations part contains no of bad faith on officers Zinser and Harris.65 case, officers in this however, were not jn65 granting the summary judgment, officers’ motion for the trial judge allegations concluded "that there were good no as to breach of faith; allegation there tort; was no of intentional there was no allegation duties; police acting officers outside the of their official nor that acted in bad faith.” sought Zavala complaint allege to amend his the officers up fight refused to break because Zavala is a Mexican man. One of the two women officers is white judge and the other is black. The amendment; did not allow the Appeals the Court of remanded the supplementation case for lying findings of the record to disclose the under- ruling. Zinser, this 352; App Zavala v 333 NW2d 278 (1983). Our decision Appeals should affirm regard. the Court of in that 420 Mich Levin, J. policy-making

exercising quasi-judicial discre authority. that al tionary has held This Court requires effecting though the exercise an arrest police in an judgment, immune is not officer during alleging arrest. an force excessive action Similarly, City, supra. deci v Marine Sherbutte regarding to whether and Harris Zinser sions necessary officers number of arrest or the make an required accomplish the exercise arrest an require judgment, professional did not but their «decision-making quasi-judicial policy-making Har Zinser and attaches. which official opinion immunity. The have official ris do not question, duty does not reach the Court expressed opinion thereon.66 no therefore part in the decision of J., no took Kavanagh, cases. these immune, Appeals Harris were that Zinser and The Court of found essence, alleged than that no more [Zavala] but added "[i]n duty preserve the police their officers had breached defendant * * * case, pleaded duty- peace. which showed a In this no facts were Zinser, (Empha- supra, p plaintiffs.” 356. fn 65 to these Zavala v owed sis duty supplied.) opinion of the Court does not address Since the police question question, express opinion a assaulted officer on the whether I no and, being protect person duty observed has a tort law for failure to fn 45. subject liability. duty, also to tort See

Case Details

Case Name: Ross v. Consumers Power Co.

Court Name: Michigan Supreme Court

Date Published: Jan 22, 1985

Citation: 363 N.W.2d 641

Docket Number: Docket Nos. 64241, 68861, 68885, 69672, 70177, 70246, 70456, 70598, 71266. (Calendar Nos. 1-9)

Court Abbreviation: Mich.