Opinion
No. CIV-2-80-121.
March 5, 1981.
Edward G. Youmans, Dearborn, Mich., for plaintiffs.
Laurel McGiffert, Asst. Corp. Counsel, Law Dept., Detroit, Mich., for defendants.
MEMORANDUM OPINION
Defendant, City of Detroit, filed a Motion for Summary Judgment with the Court on February 22, 1985, shortly after the Michigan Supreme Court announced its decision in Ross v. Consumers Power, 420 Mich. 567, 363 N.W.2d 641 (1985). In Ross, the Michigan Supreme Court thoroughly reviewed the governmental immunity doctrine, announcing comprehensive guidelines to assist the courts in construing governmental immunity issues. The disposition of this matter requires the Court to examine the Ross opinion with reference to the precise facts in this case.
This action arose out of an incident at the Detroit Zoological Park where plaintiff's two year old son fell into an ostrich pit. Plaintiffs' brought this action essentially alleging that the City was negligent, grossly negligent and guilty of willful and wanton misconduct in connection with the maintenance and design of the ostrich pit and in rendering assistance to plaintiff's son after his injury was incurred. Defendants resist liability on the basis that the City is immune from suit based upon the doctrine of governmental immunity. The City argues that the operation and maintenance of a zoo is a governmental function.
Plaintiffs offer two primary theories in opposition to the City's Motion for Summary Judgment. First, plaintiffs assert that the City was engaged in a proprietary function, rather than a governmental function in operating the zoo and was, therefore, not immune from liability. Secondly, plaintiffs argue that the ostrich pit falls within the "public buildings exception" to the immunity statute. M.C.L.A. § 691.1406. Each theory is discussed below.
The State's Governmental Tort Liability Act confers immunity upon governmental agencies engaged in the exercise or discharge of a "governmental function."
Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.
M.C.L.A. § 691.1407 (emphasis added).
The courts have struggled with the precise definition of activities which constitute a governmental function. As such, a substantial body of case law has evolved relative to the interpretation of this provision. "This Court has struggled for more than a century to reach a consensus on this term's definition and application in a myriad of factual situations." Ross v. Consumers Power, 420 Mich. at 595, 363 N.W.2d 641. In Ross, the court formulated a definition for the term governmental function which imparts broad immunity for "most activities" undertaken by governmental agencies. Id. at 621, 363 N.W.2d 641. The Michigan Supreme Court, in Ross, announced its "new" definition of the term governmental function.
We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability unless the activity is proprietary in nature or falls within one of the other statutory exceptions to the governmental immunity act. . . .Id. at 620-21, 363 N.W.2d 641.
The Ross court acknowledged the broad grant of immunity afforded to governmental agencies under its revised definition.
We realize that the definition we have formulated is broad and encompasses most of the activities undertaken by governmental agencies. We have adopted this approach because we believe that this is the result envisioned by the enactors of the governmental immunity act.Id. at 621, 363 N.W.2d 641.
The Court's task here, therefore, is to determine if the operation and maintenance
Accordingly, as to the claims of the plaintiffs asserted in counts III, IV and V only, the motion of the defendant hereby is GRANTED, and such claims hereby are
DISMISSED for the failure of the plaintiffs to state a claim in those respects on which relief can be granted.