Picard v. Greisinger

2 Mich. App. 96 (1965) 138 N.W.2d 508

PICARD
v.
GREISINGER.

Docket Nos. 24, 25.

Michigan Court of Appeals.

Decided December 20, 1965.

Sugar & Schwartz (David M. Tyler and Lawrence Warren, of counsel), for plaintiffs.

Harry F. Vellmure and Victor T. Mitea, for defendants school board and school district.

QUINN, J.

Plaintiffs filed their actions to recover for injuries allegedly sustained by the minor plaintiff while watching a gym class at the school he attended. Defendant Greisinger was a teacher at that school and part of his duties was to conduct, instruct, and supervise gym classes. The school was in defendant school district and was governed by defendant board of education. Plaintiffs alleged the minor was injured as the result of being struck in the head by a basketball thrown at him intentionally and forcibly by Greisinger at a time when the latter knew, or should have known, the minor was unprepared to catch it. Plaintiffs further alleged that Greisinger refused to allow the minor to seek medical treatment and required him to remain in the gym class in spite of the injuries. Plaintiffs pleaded that Greisinger's negligence was imputed to the district and board; that they retained Greisinger in employment even though they knew, or should have known, he was of violent disposition and that he had and was likely to cause harm to students; and that the district and board were negligent in failing to provide adequate supervision for students. In their answers, the district and board pleaded affirmatively the defense of governmental immunity. By replies, plaintiffs pleaded this defense did not preclude the district and board from liability for their own tortious acts or those of their agents, servants, and employees. The trial court granted the motion of the district and board for summary judgment on the authority of Sayers v. School District No. 1, Fractional (1962), 366 Mich. 217. Plaintiffs appeal from this action by the trial court.

Plaintiffs raise two questions on this appeal, namely:

1. Are school districts and boards of education immune from liability for injuries sustained as a result of the tortious conduct of their employees acting within the course and scope of their employment?

2. Are school districts and boards of education immune from liability for injuries sustained as a result of their own tortious conduct?

The facts pertinent to decision have been recited from plaintiffs' pleadings earlier in this opinion.

Contrary to apparent expectations,^[*] the doctrine of governmental immunity in tort actions arising from the performance of a governmental function is still with us. How virile it remains depends on whom you read and what case. See McDowell v. State Highway Commissioner (1961), 365 Mich. 268; Stevens v. City of St. Clair Shores (1962), 366 Mich. 341; Lewis v. Genesee County (1963), 370 Mich. 110; Myers v. Genesee County Auditor (1965), 375 Mich. 1. However, Sayers, supra, is subject to only one interpretation. A clear majority of the Supreme Court there said a school district is clothed with immunity by the doctrine while in the exercise of a governmental function. It does not except the tortious conduct of employees acting within the course and scope of their employment, nor does it except the tortious conduct of the district and board from the protection of the doctrine. Sayers has not been overruled and it is authority for the action of the lower court in this case.

Affirmed, with costs to appellees.

LESINSKI, C.J., and WATTS, J., concurred.

NOTES

[*] "From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan." EDWARDS, J. in Williams v. City of Detroit (1961), 364 Mich. 231, 250; concurred in by three other justices.