329 N.W.2d 430 | Mich. Ct. App. | 1982
YOUNG
v.
ROBIN
CARY
v.
ROBIN
Michigan Court of Appeals.
Lilly & Domeny, P.C. (by Jeffrey E. Gwillim), for Stanley W. Robin and United Trucking Service, Inc.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Ronald W. Emery, Assistant Attorney General, for Robert Glaser and Rodney Olney.
Before: M.J. KELLY, P.J., and R.M. MAHER and R.L. TAHVONEN,[*] JJ.
PER CURIAM.
Shortly before 7 a.m., two Michigan state troopers observed a vehicle speeding in the southbound lane of I-69. Since the state troopers were in the northbound lane, they attempted *86 to cross the median strip in order to pursue the speeder. The police car, however, got stuck in the median. Shortly thereafter, a truck driver stopped and had a conversation with the state troopers about the best method of extracting the police car. The truck driver ended up parking his vehicle on the left shoulder of the southbound lane, where it extended from two to six feet into the traveled portion of the southbound lane. In other words, although the truck was partly on the road, it was not blocking the road.
Although the police officers called their station to report that their car was stuck, they did not ask for a wrecker. They also did not set out flares by the truck. A number of vehicles passed them without difficulty. However, around 7 a.m., a vehicle containing four passengers and traveling approximately 61 miles an hour smashed into the back of the truck without braking. Two passengers in the car died, and two were severely injured. We will henceforth refer to these parties or their respective representatives as the plaintiffs.
Plaintiffs filed the instant action against the truck driver and the trucking company for which he works. These defendants filed a third-party complaint against the Michigan State Police and the two state troopers who had been present at the scene. The state troopers filed a motion for summary judgment on the ground of governmental immunity. The trial court ruled that the state troopers were not entitled to governmental immunity and, moreover, that there existed a factual issue with respect to whether the state troopers were guilty of wilful and wanton misconduct. The state troopers thereupon filed an application for leave to appeal to this Court, which was granted.
On appeal, the state troopers contend that the *87 trial court erred in ruling that they were not entitled to governmental immunity. We agree. The state troopers were acting within the scope of their employment at the time of the accident, and their allegedly negligent acts were not ultra vires. The ministerial-discretionary standard is dead. See Gaston v Becker, 111 Mich. App. 692; 314 NW2d 728 (1981), and Shwary v Cranetrol Corp, 119 Mich. App. 736; 326 NW2d 627 (1982).
The state troopers were clearly engaged in a governmental fuction. Moreover, we cannot agree with plaintiffs that the alleged failure of the state troopers to police the scene of the disabled vehicle amounts to a nuisance in avoidance of governmental immunity.
For the foregoing reasons we reverse and remand to the trial court with instructions to dismiss as to the police officers. We need not address the defendants' contention that the trial court erred in finding that there existed a genuine issue of fact as to whether the state troopers were guilty of wilful and wanton misconduct, since conduct falling short of an intentionally wrongful act is not an exception to governmental immunity.
Reversed. Costs to defendants.
M.J. KELLY, P.J. (concurring).
I concur in result only. I do not find the ministerial-discretionary standard to be dead. See, e.g., Willis v Nienow, 113 Mich. App. 30; 317 NW2d 273 (1982) and Young v Ann Arbor, 119 Mich. App. 512; 326 NW2d 547 (1982).
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
