Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp. , 75 Mich. App. 677 ( 1977 )

Bashara, J.

(dissenting). I respectfully dissent.

I am not convinced the case law cited in support of the majority’s decision requires a finding that the roller rink was operated as a proprietary function. Matthews v Detroit, 291 Mich 161; 289 NW 115 (1939), was decided by an equally divided Court, and hence is of limited precedential value. The more recent opinion from this Court, Smith v Board of Commissioners of the Huron-Clinton Metropolitan Authority, 49 Mich App 280; 212 NW2d 32 (1973), is factually similar to the case at bar.

The majority argues that the roller rink is proprietary because it could exist separate from the park. It is true that the operation of the rink does not solely depend upon the other available facilities. On the other hand, the economics of the rink shows that it functions in direct relation to its locale.

It was undisputed at the trial that the roller rink charges fees substantially less than those in effect at privately owned rinks. There was no evidence showing that the rink fees covered its costs, let alone produced any profit for the defendant. The rink is just one of the many attractions in the overall park.

The unique cost structure and need to control the users of such an attraction necessitate the charging of a small fee. However, I do not believe that in the instant case and in Smith, supra, the function thereby becomes proprietary in nature. In the absence of any clear showing of even an intent for profit, the consistently-applied doctrine of governmental immunity for the operation of municipal parks should not be waived.

I would affirm.