(dissenting). I agree with the majority that as to Count I defendants are protected by governmental immunity. I cannot agree that Count II sets forth a claim of implied contract, thus removing plaintiffs’ action from the defense of governmental immunity.
In my opinion, Count II is merely a restatement of Count I. I find nothing pled which makes Count II different than Count I, except to call negligence a contract. The alleged wrongful acts of the hospital and its medical personnel are identical. To give identical conduct immunity in one count and to deny it in another count doesn’t make sense. It makes a mockery out of Perry v Kalamazoo State Hospital, 404 Mich 205, 212; 273 NW2d 421 (1978), app dis 444 US 804 (1979). Under the majority opinion, all one need do to circumvent immunity conferred upon state mental hospitals by the Legislature is to plead implied contract.
As was stated by Judge Timothy Quinn in Raines v City of Flint, 80 Mich App 293, 295; 263 NW2d 54 (1977):
"It is apparent that whether the action is negligence *802or contract, the claimed liability rests on the alleged failure of medical personnel to exercise due care. Under the reasoning of Howell v Outer Drive Hospital, 66 Mich App 142; 238 NW2d 553 (1975), Count II is redundant and does not qualify as an exception to the doctrine of governmental immunity.”
See also Howell v Outer Drive Hospital, 66 Mich App 142; 238 NW2d 553 (1975). I would affirm.