Bragg v. City of Kalamazoo

86 Mich. App. 700 (1978) 273 N.W.2d 530

BRAGG
v.
CITY OF KALAMAZOO

Docket No. 77-2437.

Michigan Court of Appeals.

Decided November 6, 1978.

Don M. Schmidt, City Attorney, and William S. Baird, Assistant City Attorney, for defendant.

Before: D.F. WALSH, P.J., and T.M. BURNS and C.J. BYRNS,^[*] JJ.

D.F. WALSH, P.J.

Defendant appeals from the denial of its motion for summary judgment, GCR 1963, 117.2(1). The trial court rejected defendant's claim that governmental immunity barred plaintiff's action.

On August 4, 1975, Mary Bragg, next friend of Raymond Bragg, a minor, filed a complaint against the City of Kalamazoo. Plaintiff sought damages for injuries sustained by the minor when he fell from a rope swing in a park owned by defendant.

Defendant moved for summary judgment claiming, inter alia, that it was immune from liability. MCL 691.1407; MSA 3.996(107). In denying the motion the trial judge ruled that the portion of the governmental immunity act upon which defendant relied was unconstitutional as violative of the title-object clause of the Michigan Constitution:

"No law shall embrace more than one object, which shall be expressed in its title." Const 1963, art 4, § 24.

The purpose of the title-object clause is to assure fair notice to legislators and the public of a statute's content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). In effectuating these purposes, courts must construe an act's title reasonably, not in a narrow and technical sense. Bankhead v Mayor of River Rouge, 387 Mich 610, 614; 198 NW2d 414 (1972), City of Gaylord v Gaylord City Clerk, 378 Mich 273, 288; 144 NW2d 460 (1966).

The title of the governmental immunity act (MCL 691.1401 et seq.; MSA 3.996[101] et seq.) provides in part:

"AN ACT to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons." (Emphasis added.)

Section 7 of the act (MCL 691.1407; MSA 3.996[107]), provides in part:

"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." (Emphasis added.)

The trial court ruled that "tort" was broader than "injuries to property and persons" and that § 7 was, therefore, unconstitutional. It was the trial court's opinion that "injuries to property and persons" means injury to tangible physical property and injury to the body of a person.

In Maki v City of East Tawas, 385 Mich 151; 188 NW2d 593 (1971), the Supreme Court held that § 7 of the governmental immunity act was unconstitutional as violative of the title-object clause. At the time of that decision, the title of the act granted immunity to governmental units from liability "for injuries to property and persons caused by negligence". (Emphasis added.) 1964 PA 170. The Court held that the "tort" immunity granted in § 7 was broader than the "negligence" immunity granted in the act's title.

The Legislature responded by reenacting the immunity statute under an amended title. The "caused by negligence" language was deleted. 1970 PA 155, § 1.

In interpreting statutes we are guided by MCL 8.3a; MSA 2.212(1):

"All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning."

The trial court erroneously concluded that "injuries to property and persons" had acquired a peculiar meaning in the law. He relied on Sweet v Shreve, 262 Mich 432; 247 NW 711 (1933), where the Supreme Court held that an action for fraud was governed by the general six-year statute of limitations instead of the three-year statute governing injuries to persons or property. The Supreme Court went on to state that the three-year limitation applied only to actions involving specific property. As noted in Krum v Sheppard, 255 F Supp 994 (WD Mich, 1966), aff'd 407 F2d 490 (CA 6, 1967), this statement was not necessary to the decision and was merely obiter dictum.

In other contexts, the phrase "injuries to property and persons" has been interpreted more broadly; injury to specific tangible property or injury to the body of a person has not always been required. See, e.g., Krum v Sheppard, supra, Probst v Jones, 262 Mich 678; 247 NW 779 (1933), Stringer v Sparrow Hospital Bd of Trustees, 62 Mich App 696; 233 NW2d 698(1975), lv den 395 Mich 768 (1975), Anno: What constitutes "injury in person or property" within civil damage or dram shop act, 6 ALR2d 798.

We are not willing to adopt the trial court's restrictive interpretation of the phrase "injuries to property and persons". As currently worded, the title of the governmental immunity act gives fair and adequate notice of the act's purpose and content. If we read the phrase "according to common and approved usage" we must decline to limit it to physical injuries. Stringer v Sparrow Hospital Bd of Trustees, supra at 702.^[1] Our holding is limited to the narrow issue raised on appeal. We express no opinion as to the merits of the governmental immunity defense raised by defendant.^[2]

The trial court's ruling that § 7 of the governmental immunity act is unconstitutional is reversed. The cause is remanded for further proceedings.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Our holding accords with dicta in several cases where Supreme Court Justices have indicated that the Legislature's response to the Maki decision cured the title object defect in § 7. See e.g., Thomas v Dept of State Highways, 398 Mich 1, 15, fn 2; 247 NW2d 530 (1976), Pittman v City of Taylor, 398 Mich 41, 46, 53; 247 NW2d 512 (1976), Peters v Dept of State Highways, 400 Mich 50, 56, fn 5; 252 NW2d 799 (1977), Rosario v Lansing, 403 Mich 124, 130; 268 NW2d 230 (1978), Gerzeski v Dept of State Highways, 403 Mich 149, 165; 268 NW2d 525 (1978). See also Miller v Oakland County Road Comm, 43 Mich App 215, 221; 204 NW2d 141 (1972), Bennett v Attorney General, 65 Mich App 203, 205, fn 1; 237 NW2d 250 (1975).

[2] Plaintiff alleged defendant's responsibility for creation of an "inherently dangerous condition". Two theories of recovery were mentioned: negligence and attractive nuisance. The Supreme Court has recently discussed the availability of the defense of governmental immunity in an action where the injured party relies upon a nuisance in fact or attractive nuisance theory. We refer the parties to Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dept of State Highways, 403 Mich 149; 268 NW2d 525 (1978).