Boulet v. Brunswick Corp.

T. M. Burns, P.J.

(dissenting). Football is a governmental activity? Were defendants Kaye and Anderson making a governmental decision when they decided to send plaintiff David Boulet into a junior varsity high school football game? Does Detroit Lions head coach Monte Clark make a quasi-governmental decision when he decides to put a reserve into a game? For some reason that I *245cannot fathom, the majority in this case along with the majority in Churilla v East Detroit School Dist, 105 Mich App 32; 306 NW2d 381 (1981), and the panel in Grames v King, 123 Mich App 573; 332 NW2d 615 (1983),1 seem to think so. Because it stretches governmental immunity to absurd lengths, I cannot join the majority opinion.

On December 14, 1981, the trial court issued an order granting defendants Lawrence Kaye and Mel Anderson’s motion for summary judgment. GCR 1963, 117.2(1). Plaintiffs appeal as of right.

This marks the third time this case appears before this Court. The first appeal concerned venue. 107 Mich App 589; 309 NW2d 680 (1981). The second appeal concerned plaintiffs’ motion to amend the complaint to add the Warren Woods School District and Schutt Manufacturing Company as parties defendant. This Court issued an order granting the motion to amend on January 22, 1982. This appeal deals with the following facts.

Plaintiff David Boulet received a serious neck injury rendering him a quadriplegic on October 19, 1978, while participating in a junior varsity football game for Warren Woods High School. Defendant Lawrence Kaye was the head coach at the time; defendant Mel Anderson was the assistant coach. Defendant Brunswick Corporation had manufactured the helmet worn by David when he was injured.

Eventually, plaintiffs sued Kaye and Anderson alleging that they had failed to properly supervise, instruct, and train David Boulet to participate in the football program and that such failure proximately caused the injury. The trial judge granted *246the summary judgment motion ruling that Kaye and Anderson were protected from tort liability by governmental immunity. MCL 691.1407; MSA 3.996(107).

Under the present test for determining whether or not governmental immunity protects an individual or an entity, we ask first whether or not the particular activity is a governmental function and then whether or not the activity falls within the exercise or discharge of that governmental function. McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976). The definition of what constitutes a governmental function has changed a number of times over the last several decades. In the past few years, however, the starting point has been Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). There, three justices adopted the traditional common-law "common good” definition for determining what is a governmental function. Three other justices applied a far more restrictive "essence of governing” test. Because of this split, this Court has used the late Justice Moody’s middle approach:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” 404 Mich 200.

Presently, the law in this state recognizes that a *247public school’s operations constitute a governmental function. Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979); Lee v Highland Park School Dist, 118 Mich App 305; 324 NW2d 632 (1982); Belmont v Forest Hills Public Schools, 114 Mich App 692; 319 NW2d 386 (1982); Bokano v Wayne-Westland Community Schools, 114 Mich App 79; 318 NW2d 613 (1982); Everhard v Roseville Community Schools Bd of Ed, 108 Mich App 218; 310 NW2d 338 (1981). But even if the school district itself is usually immune, we must still focus on the relevant particular activity to determine whether or not it is a governmental function protected by governmental immunity: "We are of the opinion that every activity carried out by a school system would not automatically be entitled to governmental immunity”. Cobb v Fox, 113 Mich App 249, 255; 317 NW2d 583, 586 (1982). Furtherore, this Court noted in Weaver v Duff Norton Co, 115 Mich App 286, 292; 320 NW2d 248 (1982): "In determining whether a particular governmental activity is a governmental function, this Court is constrained to focus on the precise activity giving rise to a plaintiffs claim, rather than overall or principal departmental operations”.

I simply cannot believe that the operation of an extracurricular football program by a public high school fits within Justice Moody’s "effectively accomplished only by the government” test for governmental immunity. Football is not a part of education qua education. See Gaston v Becker, 111 Mich App 692, 697; 314 NW2d 728 (1981). Football itself is by no means essential to a school’s operation. Numerous schools do not have football programs. In fact, extracurricular activities like football often seem to be among the first budget cutbacks whenever a school district loses a millage *248election. Furthermore, we note that many private schools have football programs.

Actually, Grames dealt with an injury sustained during a fight in a locker room after a girl’s high school basketball game.