Pichette v. Manistique Public Schools

Ryan, J.

(concurring). I agree that the trial court erred in granting defendant’s motion for summary judgment on the basis of governmental immunity.

The operation of a playground on the premises *288adjacent to a school building is a governmental function. However, a slide that is permanently affixed to that playground comes within the "public building” exception to governmental immunity

A. Governmental Function

The key to determining whether the governmental immunity defense of MCL 691.1407; MSA 3.996(107) is applicable in a given case lies in ascertaining whether the governmental agency was engaged in the exercise or discharge of a governmental function. Thomas v Dep’t of State Highways, 398 Mich 1, 9; 247 NW2d 530 (1976). That decision recognized that the Legislature, by failing to statutorily define the term "governmental function” must have intended the courts to look to common law for guidance in determining whether governmental immunity was applicable in each case. Consequently, we must turn to Michigan case law to determine whether the operation of a school playground is a governmental function.

In Sayers v School District No 1, Fractional, 366 Mich 217; 114 NW2d 191 (1962), five justices, signing two opinions, agreed that a school district was immune from liability in a suit to recover for injuries suffered by a child while playing on the school grounds. Both opinions recognized this immunity existed because school districts are governmental agencies and their functions are governmental in nature.

The operation of a school playground also comes within the "common good of all” definition of "governmental function” frequently cited by Michigan courts. Gunther v Cheboygan County Road Commissioners, 225 Mich 619, 621; 196 NW 386 (1923), citing Bolster v City of Lawrence, 225 Mass 387; 114 NE 722 (1917). See, also, McCann v Michi*289gan, 398 Mich 65, 79; 247 NW2d 521 (1976) (opinion of Ryan, J.), and opinions cited therein.

Thus Michigan case law supports a finding that defendant was engaged in the exercise or discharge of a governmental function in the operation of its playground.

The specific tortious activity alleged in the complaint is defendant’s negligent failure to properly repair and maintain its school playground equipment. That activity comes within the ambit of the governmental function of operating a school playground. Defendant is immune from liability for its negligence in performing that function unless a slide which is permanently affixed to a school playground comes within the statutory "public building” exception to governmental immunity.

B. Public Building Exception

I do not agree with Justice Fitzgerald that the several statutory exceptions to the general grant of governmental immunity,1 including the public building exception,2 evidence a legislative intent to impose liability upon governmental agencies for their failure to maintain "safe public places”. This finding is not necessary to resolve the case before us and speaks much too broadly.

Writing separately in Tilford v Wayne County General Hospital (post), 403 Mich 293; 269 NW2d 153 (1978), I concluded that the legislative intent in enacting the public building exception was to impose a duty on governmental agencies to repair and maintain not only public buildings, but also "all those constructions upon the premises adjacent to the building, whether attached or unat*290tached to the main structure, which exist for the purpose of facilitating the use and enjoyment of the principal edifice”. This duty of repair and maintenance is limited, therefore, and does not, in my view, extend to all "public places”.

However, a slide permanently affixed to a school playground on the premises adjacent to the school building exists for the purpose of facilitating the use and enjoyment of that building and is thus within the public building exception. Consequently, the defendant may be liable for injuries caused by its negligence in failing to properly repair and maintain this slide.

C. Liability Insurance

I agree that the purchase of a general liability policy of insurance by a governmental agency does not constitute a waiver of the defense of governmental immunity. See Sayers, supra, and MCL 691.1409; MSA 3.996(109).

The trial court erred in granting defendant’s motion for summary judgment based on governmental immunity.

Reversed and remanded.

MCL 691.1407; MSA 3.996(107).

MCL 691.1406; MSA 3.996(106).