Gobert v. City of Wyoming

127 Mich. App. 591 (1983) 339 N.W.2d 491

GOBERT
v.
CITY OF WYOMING

Docket No. 59971.

Michigan Court of Appeals.

Decided August 1, 1983.

Rominger & DeWitt (by Thomas W. DeWitt), for plaintiff.

Jack R. Sluiter, Deputy City Attorney, for defendant.

Before: MacKENZIE, P.J., and R.M. MAHER and C.W. SIMON,^[*] JJ.

MacKENZIE, P.J.

Defendant City of Wyoming appeals as of right from a judgment rendered in favor of plaintiff after a jury trial held in Kent County Circuit Court.

On February 12, 1980, plaintiff injured his shoulder in a sledding accident at Pinery Park, which is owned and operated by defendant. At trial, after the presentation of plaintiff's proofs, defendant moved for summary judgment, relying on the defense of governmental immunity. The trial court denied defendant's motion. The jury returned a special verdict finding defendant negligent and that defendant's negligence was a proximate cause of plaintiff's injury. The jury set plaintiff's damages at $70,000. However, the jury also found that plaintiff was 85% negligent, and a judgment for $10,500 was entered.

On appeal, defendant contends that the trial court erred by denying its motion for summary judgment. We must decide, therefore, whether defendant is entitled to such immunity.

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."

The statute quoted above shows that, rather than determine simply whether the activity is a governmental function, we must determine whether the governmental agency in question performed that activity in the exercise or discharge of a governmental function. See Duncan v Detroit, 78 Mich. App. 632, 634; 261 NW2d 26 (1977); Cronin v Hazel Park, 88 Mich. App. 488, 491; 276 NW2d 922 (1979); Antkiewicz v Motorists Mutual Ins Co, 91 Mich. App. 389, 395; 283 NW2d 749 (1979); Weaver v Duff Norton Co, 115 Mich. App. 286, 292; 320 NW2d 248 (1982). See also Brand v Hartman, 122 Mich. App. 326; 332 NW2d 479 (1983) (MacKENZIE, J., dissenting). For example, operation of a mental hospital is a governmental function but operation of a general hospital is not. Compare Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 NW2d 421 (1978), with Parker v Highland Park, 404 Mich. 183; 273 NW2d 413 (1978). Yet undoubtedly many of the same activities are involved in the operation of both types of hospitals. Driving a car is not inherently a governmental function, but in Trommater v Michigan, 112 Mich. App. 459; 316 NW2d 459 (1982), the car was being driven in the discharge of the governmental function of implementing the Social Welfare Act, and immunity therefore applied. Conducting a swimming outing is not inherently a governmental function, but in Willis v Nienow, 113 Mich. App. 30; 317 NW2d 273 (1982), the swimming outing was being conducted in the discharge of the governmental function of providing an effective program of out-of-home care for delinquent or neglected children placed in the custody of the Department of Social Services, and immunity therefore applied.

In the present case, defendant was operating a sledding hill as part of a free public park. Unfortunately, the Supreme Court has not yet been able to agree on a single standard for determining when an activity by a government agency is in the exercise or discharge of a governmental function; instead, three theories have emerged which were surveyed by the Supreme Court in Ross v Consumers Power Co, 415 Mich. 1; 327 NW2d 293 (1982). Nevertheless, two decisions of this Court involving a similar factual setting provide guidance. In Daugherty v Michigan, 91 Mich. App. 658; 283 NW2d 825 (1979), and, more recently, in Feliciano v Dep't of Natural Resources, 97 Mich. App. 101; 293 NW2d 732 (1980), we found that the state's operation of a public swimming area was not protected by governmental immunity. We likewise conclude in the present case that defendant's operation of a free public sledding hill was not an activity entitled to governmental immunity, and therefore the trial court properly denied defendant's motion for summary judgment. However, we do not rule out the possibility that in another context a governmental agency might be found to be engaged in the exercise or discharge of a governmental function when it operates a sledding hill.

Defendant's remaining contention on appeal is that the jury's verdict finding defendant 15% negligent was against the great weight of the evidence. Only where a party moves for a new trial before the trial court on the ground that the verdict is against the great weight of the evidence is this issue preserved for appellate review. Armstrong v Woodland Mutual Fire Ins Co, 342 Mich. 666, 671-672; 70 NW2d 786 (1955); Murphy v Sobel, 66 Mich. App. 122, 127; 238 NW2d 547 (1975); Walls v Transamerican Freight Lines, 37 Mich. App. 307, 309; 194 NW2d 422 (1971). Defendant failed to make such a motion, and consequently we decline to review this claim.

Affirmed. Plaintiff may tax costs.

C.W. SIMON, J., concurred.

R.M. MAHER, J., concurred in the result only.

NOTES

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