Perry v. Kalamazoo State Hospital 404 Mich. 205

Ryan, J.

We are asked in this case to decide whether the operation of the Kalamazoo State Hospital constitutes the exercise or discharge of a governmental function for purposes of the statutory grant of immunity to the state from tort liability found in MCL 691.1407; MSA 3.996(107). We hold that it does and affirm the trial court’s grant of defendant’s motion for summary judgment.

I

James Herschel Perry was a resident of Kalamazoo State Hospital on November 14, 1972. On that day, a hospital attendant, in the course of performing his routine duties, found it necessary to restrain Mr. Perry. In so doing, the attendant rendered Mr. Perry unconscious. The attendant then laid Mr. Perry on his back which caused the aspiration of his stomach contents and resulted in his death.

Plaintiff, administratrix of the estate of James Herschel Perry, filed a complaint in the Court of *210Claims alleging that defendant breached its duty to provide for the care, treatment and custody of Mr. Perry.1

Defendant moved for summary judgment on the basis that it was immune from liability under the governmental immunity statute, MCL 691.1407; MSA 3.996(107).

Following argument, the trial court granted defendant’s motion for summary judgment. The Court of Appeals affirmed in a memorandum opinion.

We granted leave to appeal. 399 Mich 894 (1977). We affirm.

II

The governmental immunity statute provides:

"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. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” MCL 691.1407; MSA 3.996(107).

The historical context in which this statute was *211enacted suggests that the Legislature’s intent in adopting this act was to codify the existing common-law or judge-made immunity of the state. Thomas v Dep’t of State Highways, 398 Mich 1, 10; 247 NW2d 530 (1976).

The phrase "governmental function” was a term of art at common law. It was used to both describe the nature and define the limits of the state’s immunity from tort liability. By utilizing that same term of art in creating statutory immunity, the Legislature has directed the courts to look to the common law for guidance when faced with determining whether the state may invoke the protection of the statute in any given case.

A review of the case law of governmental immunity that existed prior to the legislative affirmation of the state’s immunity provides guidance to this Court in two respects. First, the factual questions resolved in those decisions provide concrete examples of the specific activities contemplated by the Legislature when employing the term "governmental function”. Second, that case law provides a definition of the term "governmental function”.2

Reference to the pre-statutory immunity cases reveals that this Court has held that the operation of a public hospital to promote the general public health is a governmental function. Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950).

Furthermore, the operation of a public hospital *212comes clearly within the frequently cited "common good of all” definition of governmental function.3

This leads to the conclusion, therefore, that the operation of a public hospital was a "governmental function” at common law in Michigan and consequently is a governmental function for purposes of the immunity statute. Defendant’s operation as a state mental hospital is generally within the statute’s immunity because its operation is in the "exercise or discharge of a governmental function”.4

Ill

The remaining question in our analysis is whether plaintiff has alleged tortious activity by defendant which falls within the scope of its immunity.

Plaintiff’s complaint alleges that defendant negligently breached its duty to provide for the care, treatment and custody of its patient, Mr. Perry. *213The facts as pled and explained in oral argument allege that this breach occurred when a hospital attendant improperly restrained Mr. Perry.

The care, treatment and custody of mental patients at a public hospital are activities intended to promote the general public health and are exercised for "the common good of all”. The restraint and control of certain patients in a mental ward is required at certain times in the exercise of the care, treatment and custody of those patients. Consequently, the alleged tortious activity of defendant is within the governmental function of operating a public mental hospital. The defendant is immune from liability for its negligence, if any, in performing that function, by reason of MCL 691.1407; MSA 3.996(107).

The trial court was correct in dismissing the action. GCR 1963, 117.2(1).

Affirmed. No costs, a public question being involved.

Williams and Coleman, JJ., concurred with Ryan, J.

Blair Moody, Jr., J.

(concurring). I concur with Justice Ryan that the activities conducted by the Kalamazoo State Hospital, a public mental hospital, are governmental functions and, therefore, are immune from tort liability. The opposite conclusion was reached relative to general hospitals in Parker v Highland Park, ante, 404 Mich 183; 273 NW2d 413 (1978), also decided today. Accordingly, it may be gleaned that my rationale for retaining immunity in this case differs from my colleagues but is consistent with Parker.

Government plays a pervasive role in the area of mental health. This state’s annual budget includes a substantial appropriation in this field. See, e.g., *2141978 PA 407. Our Legislature has declared as public policy, "that services for the care, treatment, or rehabilitation of those who are seriously mentally handicapped shall always be fostered and supported”. MCL 330.1116; MSA 14.800(116). See also Const 1963, art 8, § 8.

Furthermore, to advance this public policy the Legislature has mandated the courts to provide for proper civil and criminal disposition of persons who have serious mental disease. See MCL 330.1400 et seq.; MSA 14.800(400) et seqMCL 330.2050; MSA 14.800(1050). Access to public mental hospitals is essential to effectively process probate and circuit court commitment proceedings. Clearly, the number of private mental hospitals available to the judiciary to deal with the substantial institutional needs Of the public is inadequate.

The day-to-day care by an attendant, physician or other employee on the staff of a mental hospital represents a governmental function furthering the public need to segregate, treat and rehabilitate citizens suffering from mental disease who cannot otherwise care for themselves and who often are committed voluntarily or involuntarily through governmental action.

Accordingly, as public mental hospitals perform an essentially unique activity mandated by legislative action, immunity must be extended as a governmental function under the statute. The proper planning and carrying out of this function can effectively be accomplished only by the government. The function is essentially governmental.

It is recognized that an analytical demarcation between general and mental hospitals is far from perfect in this imperfect world. However, the rationale is an attempt to evolve a just application of the term governmental function within the confines of the present statute.

*215The Legislature has left the interpretation of governmental function to the courts. Of necessity, until this term is definitively refined, it is our responsibility to come to grips with the issue on a case-by-case basis.

The Court of Appeals decision is aifirmed.

Kavanagh, C.J.

(for reversal). The issue here is whether the operation of a state mental hospital is a "governmental function”, rendering the state immune from tort liability under MCL 691.1407; MSA 3.996(107). For the reasons stated by Justice Fitzgerald in Parker v Highland Park, ante, 404 Mich 183; 273 NW2d 413 (1978), we hold that it is not.

The statute provides:

"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. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” MCL 691.1407; MSA 3.996(107).

In order to constitute a "governmental function” under the statute, the activity must be "sui generis governmental — of essence to governing”. Parker, 193. Because the operation of a mental hospital is not an activity which can be done only by the government, it is not a "governmental function” and there is no statutory immunity from tort liability.

Levin and Fitzgerald, JJ., concurred with Kavanagh, C.J.