Schmit v. City of Detroit

88 Mich. App. 22 (1979) 276 N.W.2d 506

SCHMIT
v.
CITY OF DETROIT

Docket No. 77-4594.

Michigan Court of Appeals.

Decided January 3, 1979.

Norbach, Cheatham & MacArthur (by Stephen J. Smith), for plaintiff.

Roger E. Craig, Corporation Counsel, William Dietrich and Gregory E. Snow, Assistants Corporation Counsel, for defendant.

Before: BRONSON, P.J., and M.J. KELLY and D.C. RILEY, JJ.

PER CURIAM.

Plaintiff appeals an order granting defendant's motion for summary judgment based on the defense of governmental immunity. MCL 691.1407; MSA 3.996(107).

Plaintiff was injured while climbing a ladder between the first and second levels of a diving platform at an outdoor swimming pool owned by defendant city. He claimed that the injuries arose because the city failed to maintain the pool in a safe condition due to its negligent installation of anti-skid pads on the steps of the ladder. Defendant claimed governmental immunity. Plaintiff argued that the defense was not applicable because defendant charged a nominal 75 cents admission charge, thereby making the operation of the pool a proprietary function instead of a governmental function. In the alternative, plaintiff claimed that even if the pool was a governmental function it came within the public building exception to the doctrine of governmental immunity. MCL 691.1406; MSA 3.996(106). The trial court agreed with defendant and held the defense of governmental immunity applicable.

We need not address plaintiff's first argument because assuming arguendo that the operation of the pool in question was a governmental function^[1] the case comes within the public building exception and the defense of governmental immunity is not applicable.

In Pichette v Manistique Public Schools, 403 Mich. 268; 269 NW2d 143 (1978), the Michigan Supreme Court held that the public building exception applied to a slide located on a public playground and for this reason governmental immunity did not bar a suit for damages caused by the negligent maintenance of the slide. In so holding, the Court refused to narrowly construe the exception so as to limit its application solely to buildings. Instead, the Court held that in enacting the exception, "the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public places".^[2]Pichette at 285.

Since the pool and its ladder is just as much a public place as was the playground and slide in Pichette, the public building exception applies and governmental immunity is not an available defense.

Reversed.

NOTES

[1] But see Berger v City of Berkley, 87 Mich. App. 361; 275 NW2d 2 (1978) (BRONSON, J., concurring), which would hold that the defense of governmental immunity should only be applied to those activities of a governmental unit which could be considered planning or policy making functions and not to cases such as the present when the activity involved is merely an operational activity of the governmental unit.

[2] This quotation was taken from the principal opinion authored by Justice FITZGERALD and concurred in by Chief Justice KAVANAGH and Justice LEVIN. In a separate opinion Justice WILLIAMS states that he agrees with the result and reasoning of this part of the principal opinion. Therefore a majority of the Court has adopted this position.