Rifkin v. University of Michigan Hospital

159 Mich. App. 254 (1986) 406 N.W.2d 202

RIFKIN
v.
UNIVERSITY OF MICHIGAN HOSPITAL

Docket No. 86991.

Michigan Court of Appeals.

Decided December 30, 1986.

Rifkin & Kingsley, P.C. (by David K. Whipple), for plaintiffs.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by D.J. Watters and Christine D. Oldani), for defendant.

Before: M.J. KELLY, P.J., and D.E. HOLBROOK, JR., and T.M. GREEN,^[*] JJ.

PER CURIAM.

The issue presented in this case is whether defendant University of Michigan Hospital is immune from tort liability under the doctrine of governmental immunity announced in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). On August 7, 1985, the Michigan Court of Claims ruled in favor of immunity and granted summary disposition for defendant pursuant to MCR 2.116(C)(8). Appellate oral argument was conducted in June of 1986. On October 3, 1986, the Michigan Supreme Court released its decision in Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), directly addressing the issue presented here. On the basis of that opinion, we reverse the lower court's order of summary disposition.

In Hyde v University of Michigan, a majority of justices of the Supreme Court decided the extent to which its opinion in Ross should be applied retroactively. 426 Mich 241, 246. Since the instant case was pending in the trial court when the decision in Ross was issued, the definition of governmental immunity announced therein applies only if defendant had properly raised the defense of governmental immunity at that time. We have thoroughly reviewed the trial court record. Defendant in this case failed to assert the defense of governmental immunity until April 11, 1985, when it filed a motion for summary disposition based on the Ross decision. Thus, in accordance with the Supreme Court's opinion in Hyde, supra, the definition of governmental immunity announced in Ross does not apply to the defendant's activities in this case. Under former case law, defendant is not entitled to governmental immunity. Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978).

While the result reached in this case may initially seem a technical fluke, Justice CAVANAGH noted in Hyde v University of Michigan, that the Legislature has enacted 1986 PA 175, effective July 1, 1986, which specifically abrogates governmental immunity "with respect to the ownership or operation of a hospital or a county medical care facility." MCL 691.1407; MSA 3.996(107), as amended. Thus, the result here is consistent with case law prior to January 22, 1985, and statutory law after July 1, 1986, and accurately reflects the intent of the Legislature as now stated.

Reversed and remanded.

NOTES

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