Berkowski v. Hall , 91 Mich. App. 1 ( 1979 )

91 Mich. App. 1 (1979) 282 N.W.2d 813

BERKOWSKI
v.
HALL

Docket No. 78-950.

Michigan Court of Appeals.

Decided June 20, 1979.

James F. Finn and Stanley T. Bartnicki, for plaintiff.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, for defendants.

Before: DANHOF, C.J., and J.H. GILLIS and N.J. KAUFMAN, JJ.

DANHOF, C.J.

This appeal entails application of the governmental immunity statute, MCL 691.1407; MSA 3.996(107), to the operation of an emergency medical services (EMS) unit by a municipal fire department. The trial judge has granted accelerated judgment for the City of Dearborn and Dearborn Fire Department on grounds that such an operation is a "governmental function". We reverse.

Plaintiff's decedent was injured in an automobile collision. An emergency vehicle from the Dearborn Fire Department was summoned to the scene of the accident to administer first aid and transport victims to the hospital. Plaintiff alleges negligent delay by the vehicle's attendants in transporting plaintiff's decedent to the hospital caused the decedent's death. Plaintiff has brought suit against the City of Dearborn and Dearborn Fire Department on a theory of vicarious liability for the attendants' negligence.

When moving for accelerated judgment, the city and fire department relied extensively on this Court's decision in Parvu v Harrison Twp Fire Dep't, 75 Mich. App. 484; 255 NW2d 655 (1977). In Parvu, we specifically held the operation of an EMS unit is a "governmental function" under the "common good of all" test formulated in Gunther v Cheboygan County Road Comm'rs, 225 Mich. 619; 196 N.W. 386 (1923). The Parvu panel analogized the operation of an EMS unit to the operation of a public hospital, which had been held to be governmental in several cases under the "common good of all" test. See e.g., Nicholson v Detroit, 129 Mich. 246; 88 N.W. 695 (1902). In their brief on appeal, the defendants city and fire department again relied on Parvu.

Since briefs were submitted in this case, the Supreme Court has altered the definition of "governmental function". The test no longer is whether the operation in question is for the common good, but instead, whether it is "of essence to governing". Parker v Highland Park, 404 Mich. 183; 273 NW2d 413 (1978).

Applying the "governmental essence" test in Parker v Highland Park, supra, a majority of four, composed of Justices KAVANAGH, LEVIN, FITZGERALD and MOODY, found the operation of a general hospital by a municipality to be nongovernmental. Thereby, the majority overruled Nicholson and, by apparent analogy, Parvu. In a companion case, Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 NW2d 421 (1978), a different majority of four, composed of Justices WILLIAMS, COLEMAN, RYAN and MOODY, found the operation of a mental hospital to be governmental.

In both cases, Justices WILLIAMS, COLEMAN and RYAN rejected the "governmental essence" test. They reasoned such a test was contrary to the legislative directive to look to the common law, as it stood at the time of the immunity statute's enactment, for purpose of defining governmental tort liability. Justice MOODY, who provided the swing vote in each case, adopted the "governmental essence" test, but found the operation of a mental hospital had attributes essential to governing. Specifically, he based his distinction between general and mental hospitals on differences in (1) competition between public and private hospitals, (2) financial involvement by the state, (3) state responsibility for the placing of patients, (4) public need for the segregation of patients, and (5) voluntary nature of commitment.

At oral argument in the instant case, the city and fire department responded to Parker and Perry in two ways. First, defense counsel contended the "governmental essence" test should be given prospective effect only, according to the principles announced in Parker v Port Huron Hospital, 361 Mich. 1; 105 NW2d 1 (1960). Defense counsel asserted public bodies have substantially relied on the old rule, and have failed to protect themselves by purchasing available insurance. Therefore, counsel maintained, the operation of an EMS unit for purposes of this cause of action is governmental under the "common good of all" test as applied in Parvu. Secondly, the city and fire department claimed, even if the "governmental essence" test is given present effect, operation of the EMS unit in question here is governmental. Defense counsel argued the operation is more like the operation of a mental hospital than a general hospital, since it is part and parcel of a public fire department and since public fire departments are not in significant competition with private fire departments.

We hold the "governmental essence" test is applicable to the present case. If the test was not intended to have present effect, we believe the majority in Parker v Highland Park, supra, would have said so. In Parker v Port Huron Hospital, supra, and in other cases overruling longstanding precedent, e.g., Pittman v City of Taylor, 398 Mich. 41; 247 NW2d 512 (1976), Williams v Detroit, 364 Mich. 231; 111 NW2d 1 (1961), Bricker v Green, 313 Mich. 218; 21 NW2d 105 (1946), the Supreme Court has expressly delimited the effective dates of decision.

Moreover, even if the "governmental essence" test is to be given prospective effect, an exception should be made for cases, like the one here, that were pending when the test was adopted. In determining whether any rule of law should have retroactive or prospective effect and to what extent, Justice EDWARDS has written:

"It is evident that there is no single rule of thumb which can be used to accomplish the maximum of justice in each varying set of circumstances. The involvement of vested property rights, the magnitude of the impact of decision on public bodies taken without warning or a showing of substantial reliance on the old rule may influence the result." Williams v Detroit, supra, at 266.

No doubt the Supreme Court's adoption of the "governmental essence" test will have a profound impact on public bodies in this state. The present appellees have not shown (merely asserted) substantial reliance on the old rule, but we can take notice of that probability. Still, the change was not entirely without warning. Courts of this state and other jurisdictions for years have been steadily eroding the doctrine of governmental immunity, especially as to municipalities. See Williams v Detroit, supra. Further, the detriment public bodies may have incurred in reliance on the old test for governmental immunity must be balanced against the injuries suffered by plaintiffs which, according to the most enlightened thinking, should be compensable by governmental agencies. Thus, we find no injustice in applying the "governmental essence" test to cases pending when the test was adopted.

Applying that test to the facts of this case, we hold the operation of the subject EMS unit is not a "governmental function". Searching for the factors enumerated by Justice MOODY in Parker and Perry, we do not find the attributes that would make the operation essentially governmental.

The appellees' focus on competition between private and public fire departments in their principal operations is misplaced. Clearly, in Parvu the panel focused on the precise operation involved, rather than overall or principal departmental operations, in applying the then-accepted definition of "governmental". That focus was correct under prior case law. See Dohm v Acme Twp, 354 Mich. 447; 93 NW2d 323 (1958). The only relevant change in the law since Parvu has been in the definition of "governmental".

Thus, we find the Dearborn Fire Department's operation of the subject EMS unit is more like the operation of a general hospital than a mental hospital. According to Parker and consistent with Perry, therefore, the operation is not protected by the cloak of governmental immunity.

Reversed. No costs, a public question.