*1 122 YOUNG ROBIN v ROBIN CARY 1982, 1, Rapids.— July Grand at Nos. 58763-58765.Submitted Docket 24, 1982. Decided November Young Cary and V. were killed Rosella and Eldrid Kenneth R. injured Young Cary when the automobile Elmer and riding a truck which collided with rear of parked lane of 1-69 shoulder of the southbound projecting into traffic lane. The of the truck parked position to in that in order ascertain truck driver had any to two state he could render assistance whether trying while to over in the median who had become stuck Rosella and Elmer automobile. individually Cary, administratrix and administrator and as respectively of Kenneth and Eldrid V. estates truck, Cary, brought driver of the an action Robin, employer, and the truck driver’s W. brought Inc. The defendants troopers, the two state Rodney Olney. The state moved for Robert Glaser summary judgment on the that the state court denied the motion basis governmental immunity issue with factual Third- of wilful and wanton misconduct. party Held: defendant state test for of whether a protected by act. longer no standard is so-called clearly engaged applicable. ain Since the state troopers’ cannot be said function and actions [2] [1] 57 Am 57 Am Jur seq. 89. Jur 2d, 2d, References Municipal, Municipal, for Points School, School, and State Tort in Headnotes State Tort Liability Liability § §§ 45 et 88, Young v Robin nuisance, protected by govern- to amount to are Reversed. Kelly, P.J., only. He, however, result concurred
would hold that the standard remains legal a valid standard. Immunity Negligence — — 1. Governmental Torts. government of test protected by governmental employee immunity tort from scope was of act; if (MCL so, 691.1407; 3.996[107]). be cannot held liable MSA by M. J. Immunity Employees Discretionary — — 2. Governmental Public —Acts Ministerial Acts. performed Discretionary by public employee carrying acts in scope govern- out a function are within the of performed by tort while ministerial acts public are not within the of Lilly & Domeny, (by Jeffrey Gwillim), P.C. E. W. Robin and Inc.
Frank J. Kelley, General, Louis Attorney Caruso, General, Solicitor and Ronald W. Emery, Assistant General, Attorney for Robert Glaser and Rodney Olney.
Before: Kelly, P.J., and R. M. Maher Tahvonen,* R. L. JJ.
Per Curiam. a.m., two Shortly before Michi- gan in observed a vehicle the southbound troop- lane of 1-69. Since the state lane, ers were in the attempted northbound * judge, sitting assignment. Appeals by Circuit on the Court of App 84 op Opinion the Court to order strip median car, stuck however, got police
speeder. thereafter, stopped driver a truck Shortly median. with the had conversation extracting car. of method the best about his vehicle on parking ended up truck driver lane, it where southbound shoulder feet into the six traveled extended words, In other lane. southbound road, it partly truck was although the blocking not the road. their station called
Although officers stuck, they did ask car report out flares did set They for a wrecker. also passed them truck. A number vehicles a.m., However, around vehi- difficulty. apf traveling containing four cle into the 61 miles hour smashed proximately *3 braking. of the Two back truck We died, severely injured. in the car were or parties to these henceforth refer will representatives plaintiffs. the respective as the instant the filed Plaintiffs trucking for which company truck driver and filed These defendants works. complaint at the present who had troopers been two state
scene. The state filed motion sum- governmental judgment mary state ruled that immunity. court The trial immu- moreover, a factual and, there existed nity that the state with to whether issue guilty misconduct. wilful wanton thereupon application filed an state Court, to this that contend appeal, On 87 v Robin M. P.J. Kelly, in ruling trial court erred that were entitled to We agree. immunity. of their accident, at the time of the and their ultra vires. negligent acts were not See Ga- is dead. standard Becker, ston v 692; 111 Mich 314 App NW2d 728 (1981) , and v Shwary Corp, Cranetrol 119 Mich (1982). 736; App NW2d The state troopers engaged clearly Moreover, fuction. we cannot agree plaintiffs the alleged that failure of the state troopers to scene of disabled vehicle governmen- amounts to a nuisance avoidance tal
For the foregoing reasons we reverse and re- mand to the trial court with instructions to dis- miss as to officers. We need not address the defendants’ contention that court erred in finding genuine issue of fact as to whether the state misconduct, of wilful and wanton since conduct falling short wrongful of an act intentionally is not exception
Reversed. Costs to defendants.
(concurring).
I concur in result
I
only.
do not
find the ministerial-discretionary
Nienow,
See,
standard to
e.g., Willis v
be dead.
(1982)
App 30;