In Rubino v Sterling Heights, 94 Mich. App. 494; 290 N.W.2d 43 (1979), this Court held that the operation of a municipal water system is not a governmental function.Summary of this case from Mitts v. Fowlerville
Docket No. 78-2482.
Decided November 13, 1979. Leave to appeal applied for.
Marston, Sachs, Nunn, Kates, Kadushin O'Hare, P.C. (by Barry P. Waldman), for plaintiffs.
Kerr, Wattles Russell (by C. Kenneth Perry, Jr.), for defendant.
Before: T.M. BURNS, P.J., and M.F. CAVANAGH and MacKENZIE, JJ.
Marco Rubino was injured on February 9, 1972, while working on a water main construction project for defendant City of Sterling Heights when a pipe plug he was removing exploded and hit his leg. Subsequently, Marco Rubino and Anna Rubino, his wife, brought an action for damages against the City of Sterling Heights. On August 4, 1977, the defendant moved for summary judgment on the ground of governmental immunity. Plaintiffs made a motion seeking to amend their complaint to include counts alleging nuisance and breach of contract. Plaintiffs appeal as of right the granting of summary judgment in favor of defendant and the denial of their motion to amend.
Plaintiffs contend that the trial court erred in granting summary judgment in favor of defendant on the ground of governmental immunity. When reviewing the granting of a motion for summary judgment under GCR 1963, 117.2(1), we assume as true the plaintiff's factual allegations as well as any conclusions reasonably drawn therefrom. We then determine whether the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can permit recovery. Antkiewicz v Motorists Mutual Insurance Co, 91 Mich. App. 389; 283 N.W.2d 749 (1979).
Tort liability of a governmental agency is dealt with in MCL 691.1407; MSA 3.996(107), which provides in part:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function." In Parker v Highland Park, 404 Mich. 183; 273 N.W.2d 413 (1978), the Michigan Supreme Court dealt with the construction of the term "governmental function". Justices FITZGERALD, KAVANAGH, and LEVIN stated that the term was limited to activities that are "of essence to governing". In a separate opinion, Justice MOODY reached the following conclusion:
"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." (Emphasis supplied.) 404 Mich at 200.
We conclude that, under Parker, the operation of a municipal water system is not a governmental function. Since the government is not the only entity involved in supplying the public with drinking water, it is not an operation that can be effectively accomplished only by the government. The public's demand for water is additionally met by various privately owned companies, property owners' associations, and other entities. The existence of privately run water distribution systems indicates that their maintenance does not necessarily require tax funding; such systems can be supported by the fees charged to users.
Further, it is significant that citizen participation in a government operated water system is not mandatory. A property owner already receiving water from a private well is not required to hook up to an available public water supply.
Finally, tort liability does not result in an impermissible interference with the government's ability to govern. A water distribution system is of such nature that potential liability may be taken into consideration as a cost of doing business. Thus, because the operation of a water distribution system is not a governmental function, the trial court erred in granting summary judgment in favor of defendant on the ground of governmental immunity.
Plaintiffs' other contention is that the trial court erred in failing to grant their motion to amend their complaint to include the counts of nuisance and breach of contract. We agree.
GCR 1963, 118.1 permits a party to amend its pleading by leave of court, which "shall be freely given when justice so requires". Although the decision whether to allow amendment is within the trial court's discretion, Leahy v Henry Ford Hospital, 84 Mich. App. 719, 722; 271 N.W.2d 34 (1978), as a general rule, leave should be granted absent unfair prejudice to the opposing party. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 71 Mich. App. 177; 247 N.W.2d 589 (1976), rev'd on other grounds, 400 Mich. 184; 253 N.W.2d 646 (1977). When denying a motion to amend, the court should state specific reasons why justice would not be served by granting the amendment. Goldsmith v Moskowitz, 74 Mich. App. 506; 254 N.W.2d 561 (1977).
In the instant case, the trial court made no specific findings as to why justice required denial of the motion to amend. Our only clue as to possible reasons are statements by defendant's attorney that the counts sought to be added lack merit and that the motion is made at a late date. Neither of these reasons sufficiently supports denial of the motion. A judge may deny a motion to amend based on the merits only if the complaint is "legally insufficient on its face". Ben P Fyke Sons v Gunter Co, 390 Mich. 649, 660; 213 N.W.2d 134 (1973). This is not the case here, as the counts of nuisance and breach of contract are legally sufficient.
Mere lateness in moving to amend is an insufficient reason to deny the motion, absent unfair prejudice to the opposing party. Spartan Asphalt v Mobile Home Park, supra. In the instant case, defendant is not prejudiced by the addition to the complaint of the counts of nuisance and breach of contract. Discovery is not precluded merely because a pretrial conference has occurred. GCR 1963, 301.7 permits the court to order subsequent discovery "on written notice for good cause shown". Nor does sufficient prejudice exist because the added counts involve complex legal and factual issues.
Because justice is not served by denying plaintiffs' motion to amend, the motion is hereby granted pursuant to GCR 1963, 820.1(7).
Reversed and remanded.