Boulet v. Brunswick Corp.

126 Mich. App. 240 (1983) 336 N.W.2d 904 BOULET v. BRUNSWICK CORPORATION Docket No. 61773. Michigan Court of Appeals. Decided June 6, 1983. Frimet, Bellamy, Gilchrist & Lites, P.C. (by Frederick B. Bellamy and Dan Ellis Champney), for plaintiffs. Ogne, Jinks, Ecclestone & Alberts, P.C. (by Wayne L. Ogne and Bryan Cermak), for Lawrence Kaye and Mel Anderson. Before: T.M. BURNS, P.J., and V.J. BRENNAN and WAHLS, JJ. Leave to appeal applied for. V.J. BRENNAN, J. The facts are set forth in the dissenting opinion. The sole issue for our consideration is whether the trial court erred in granting defendants Lawrence Kaye and Mel Anderson's motion for summary judgment on the basis that they were immune from suit because of governmental immunity. MCL 691.1407; MSA 3.996(107). We find no error on the part of the trial court. A public school in the operation of its athletic program, including the administration and supervision of a football program, is entitled to governmental immunity. Churilla v East Detroit School Dist, 105 Mich App 32; 306 NW2d 381 (1981). Further, teachers and supervisors of the programs are entitled to governmental immunity when they have performed their duties within the scope of their employment. Regulski v Murphy, 119 Mich App 418; 326 NW2d 528 (1982). A physical education *244 program, as part of the general curriculum or as an extracurricular activity, is in furtherance of and an integral part of the total public education provided to students. While we recognize that there are football programs that exist through private organizations, we find that this fact alone does not preclude a finding that a public school or its teachers are entitled to governmental immunity in cases such as the present one where a football program is offered by a school that is otherwise entitled to governmental immunity where other programs are involved. In Parker v Highland Park, 404 Mich 183, 200; 273 NW2d 413 (1978), Justice MOODY noted that, "it would be incongrous to find that the operational activities of some public agencies are other than governmental. Likewise, conceivably there could be essential governmental activity which would have some common analogy in the private sector." We find that even though a football program could be administered and provided for by the private sector, when these programs are provided as part of a public school education, the school, teachers, and supervisors are entitled to governmental immunity. Grames v King, 123 Mich App 573; 332 NW2d 615 (1983). Affirmed. WAHLS, J., concurred. T.M. BURNS, P.J. (dissenting). Football is a governmental activity? Were defendants Kaye and Anderson making a governmental decision when they decided to send plaintiff David Boulet into a junior varsity high school football game? Does Detroit Lions head coach Monte Clark make a quasi-governmental decision when he decides to put a reserve into a game? For some reason that I *245 cannot fathom, the majority in this case along with the majority in Churilla v East Detroit School Dist, 105 Mich App 32; 306 NW2d 381 (1981), and the panel in Grames v King, 123 Mich App 573; 332 NW2d 615 (1983),[1] seem to think so. Because it stretches governmental immunity to absurd lengths, I cannot join the majority opinion. On December 14, 1981, the trial court issued an order granting defendants Lawrence Kaye and Mel Anderson's motion for summary judgment. GCR 1963, 117.2(1). Plaintiffs appeal as of right. This marks the third time this case appears before this Court. The first appeal concerned venue. 107 Mich App 589; 309 NW2d 680 (1981). The second appeal concerned plaintiffs' motion to amend the complaint to add the Warren Woods School District and Schutt Manufacturing Company as parties defendant. This Court issued an order granting the motion to amend on January 22, 1982. This appeal deals with the following facts. Plaintiff David Boulet received a serious neck injury rendering him a quadriplegic on October 19, 1978, while participating in a junior varsity football game for Warren Woods High School. Defendant Lawrence Kaye was the head coach at the time; defendant Mel Anderson was the assistant coach. Defendant Brunswick Corporation had manufactured the helmet worn by David when he was injured. Eventually, plaintiffs sued Kaye and Anderson alleging that they had failed to properly supervise, instruct, and train David Boulet to participate in the football program and that such failure proximately caused the injury. The trial judge granted *246 the summary judgment motion ruling that Kaye and Anderson were protected from tort liability by governmental immunity. MCL 691.1407; MSA 3.996(107). Under the present test for determining whether or not governmental immunity protects an individual or an entity, we ask first whether or not the particular activity is a governmental function and then whether or not the activity falls within the exercise or discharge of that governmental function. McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976). The definition of what constitutes a governmental function has changed a number of times over the last several decades. In the past few years, however, the starting point has been Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). There, three justices adopted the traditional common-law "common good" definition for determining what is a governmental function. Three other justices applied a far more restrictive "essence of governing" test. Because of this split, this Court has used the late Justice MOODY'S middle approach: "To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government's ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune." 404 Mich 200. Presently, the law in this state recognizes that a *247 public school's operations constitute a governmental function. Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979); Lee v Highland Park School Dist, 118 Mich App 305; 324 NW2d 632 (1982); Belmont v Forest Hills Public Schools, 114 Mich App 692; 319 NW2d 386 (1982); Bokano v Wayne-Westland Community Schools, 114 Mich App 79; 318 NW2d 613 (1982); Everhard v Roseville Community Schools Bd of Ed, 108 Mich App 218; 310 NW2d 338 (1981). But even if the school district itself is usually immune, we must still focus on the relevant particular activity to determine whether or not it is a governmental function protected by governmental immunity: "We are of the opinion that every activity carried out by a school system would not automatically be entitled to governmental immunity". Cobb v Fox, 113 Mich App 249, 255; 317 NW2d 583, 586 (1982). Furthermore, this Court noted in Weaver v Duff Norton Co, 115 Mich App 286, 292; 320 NW2d 248 (1982): "In determining whether a particular governmental activity is a governmental function, this Court is constrained to focus on the precise activity giving rise to a plaintiff's claim, rather than overall or principal departmental operations". I simply cannot believe that the operation of an extracurricular football program by a public high school fits within Justice MOODY'S "effectively accomplished only by the government" test for governmental immunity. Football is not a part of education qua education. See Gaston v Becker, 111 Mich App 692, 697; 314 NW2d 728 (1981). Football itself is by no means essential to a school's operation. Numerous schools do not have football programs. In fact, extracurricular activities like football often seem to be among the first budget cutbacks whenever a school district loses a millage *248 election. Furthermore, we note that many private schools have football programs. Judge BRONSON, dissenting in Churilla, supra, found that an extracurricular football program is not "of the essence of government" as defined by Justice MOODY: "I believe that an extracurricular football program is simply not of a uniquely governmental character or precipitated by governmental mandate. While MCL 380.1502; MSA 15.41502 mandates `health and physical education' in the public schools, it does not require the maintenance of extracurricular athletic activities.[[2]] There is nothing uniquely governmental in the function of staging competitive athletic events. I also reject the idea that holding school districts liable for the negligent operation of a football program constitutes `an unacceptable interference with government's ability to govern'. "Nor do I believe a football program like the one in question here can only be accomplished through the government. It is true that the majority of football programs for high-school-aged participants are run through schools, and that Justice MOODY considered the fact that private general hospitals exceeded governmental ones significant in holding that governmentally run general hospitals were not entitled to immunity. However, this factor is not dispositive and does not even clearly cut against the no-immunity view in this case. First, a number of extracurricular football programs are associated with private schools. Other football programs exist through private organizations and churches. Thus, there is an analogy to a similar function in the private sector. Second, if this factor were dispositive, I believe the result could be an anomalous situation in which school football programs would be entitled to immunity, but school baseball programs — *249 because of the greater number of private leagues — would not be exempt." 105 Mich App 37-38. The majority in Churilla relied on four cases. However, neither Bush, supra, nor Deaner v Utica Community School Dist, 99 Mich App 103; 297 NW2d 625 (1980), dealt with an extracurricular football program. Common sense and cases like Weaver, supra, and Cobb, supra, instruct us to look at the particular activity involved. Furthermore, both Richards v Birmingham School Dist, 348 Mich 490; 83 NW2d 643 (1957), overruled on other grounds, Williams v Detroit, 364 Mich 231, 252; 111 NW2d 1 (1961), and Lovitt v Concord School Dist, 58 Mich App 593; 228 NW2d 479 (1975), overruled on other grounds, Galli v Kirkeby, 398 Mich 527, 536; 248 NW2d 149 (1976), used the now discarded governmental/proprietary test. The difficulty in formulating and applying principles for governmental immunity is that the reasons justifying it remain unclear in the face of its apparent lack of fairness.[3] Under governmental immunity, the negligent appear to go free while the innocent suffer.[4] However, many believe that a government cannot function or afford to provide the services desired by the taxpayers when the government itself is liable for the negligent acts of individual governmental employees. The myriad attempts by Michigan courts to develop a standard to apply governmental immunity have arisen from the need to meet these competing demands. *250 Because few of us can agree on the particular balance to be struck, we have been unable to articulate a workable standard. The Supreme Court's latest attempt to delineate standards ended in a 3-3 deadlock. Ross v Consumers Power Co, 415 Mich 1; 327 NW2d 293 (1982). In the face of this confusion, I believe that governmental immunity should not be applied when the "governmental function" involved is clearly tangential to government itself. Government's essential purpose is to promote public justice. Providing public education furthers this goal. A high school junior varsity football program, however, only tenuously relates to this purpose. Ruling that governmental immunity does not apply in this case would not impair either the school's or the government's ability to provide public justice. Furthermore, other methods of assuring that such football programs continue are fairer than this blanket application of a doctrine which reasonably might be assumed by the public not to apply in this case. An example is found in California where some school districts have responded to the abolition of governmental immunity[5] by requiring voluntary participants in extracurricular activities to sign written waivers of their right to sue and to obtain insurance to protect against the costs of injuries. This approach not only protects a student financially for his injuries but also informs him of the risks involved. Not only is David Boulet uncompensated for someone else's alleged negligence but I seriously doubt that he ever considered the doctrine of governmental immunity when he decided to play high school football. What approach *251 would be fairer in the present case? The majority's approach which leaves a quadriplegic uncompensated for these injuries allegedly due to someone else's negligence or an approach that forces the student to realize the risks ahead of time but compensates him through insurance? I would reverse in this case. NOTES [1] Actually, Grames dealt with an injury sustained during a fight in a locker room after a girl's high school basketball game. [2] In Weaver, supra, this Court emphasized the fact that MCL 380.1287(1); MSA 15.41287(1) authorizes a school district to offer vocational education when it found that the vocational education program involved was a governmental function. [3] Although governmental immunity is constitutional, Thomas v Dep't of State Highways, 398 Mich 1; 247 NW2d 530 (1976), as exemplified in this case, it can still be unfair. [4] Moreover, those injured while attending public school are left uncompensated while those attending even a financially strapped private school are not. [5] California abolished governmental immunity in Muskopf v Corning Hospital Dist, 55 Cal 2d 211; 11 Cal Rptr 89; 359 P2d 457 (1961).