Freeman v. Secretary of State , 132 Mich. App. 186 ( 1984 )

132 Mich. App. 186 (1984) 347 N.W.2d 20

FREEMAN
v.
SECRETARY OF STATE

Docket No. 68773.

Michigan Court of Appeals.

Decided February 8, 1984.

Goodman, Eden, Millender & Bedrosian (by William H. Goodman), for plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Arthur E. D'Hondt, Assistant Attorney General, for defendant.

Before: HOOD, P.J., and R.B. BURNS and R.M. SHUSTER,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from the December, 1982, order of the Court of Claims granting defendant's motion for summary judgment.

On July 16, 1979, plaintiff's decedent was crushed between a truck parked on a roadside and a car driven by Eric Laur. Plaintiff filed this action alleging that the defendant negligently issued a driver's license to Mr. Laur. Defendant moved for summary judgment arguing that plaintiff failed to state a claim that avoided defendant's statutory immunity from tort liability. MCL 691.1407; MSA 3.996(107). The trial court agreed and granted the motion.

The governmental immunity statute provides immunity from tort liability to governmental agencies when the action complained of is in the discharge of a governmental function. A plaintiff who complains that a state agency was negligent must plead facts that avoid immunity in order to state an actionable claim. McCann v Michigan, 398 Mich. 65, 77; 247 NW2d 521 (1976).

Defendant argued successfully below that the act of issuing drivers' licenses is a discharge of a governmental function. Plaintiff claims otherwise in this appeal.

The Legislature did not define "governmental function" by statute. The Supreme Court has not yet reached majority consensus on a definition of that phrase. See Parker v Highland Park, 404 Mich. 183; 273 NW2d 413 (1978), and Ross v Consumers Power Co, 415 Mich. 1; 327 NW2d 293 (1982), reh gtd 417 Mich. 1113 (1983). Instead, three justices adhered to a sui generis definition: actions that are of the essence of governing are governmental functions. Three other justices stated that acts done for the "common good of all" were governmental functions. Justice MOODY modified the essence of governing test and stated the question is whether the activity complained of, either due to its character or governmental mandate, can be effectively accomplished only by the government. Parker, supra, p 200.

We find that the defendant's issuance of drivers' licenses is a governmental function within the meaning of all the above definitions of the term "governmental function". The Michigan Vehicle Code provides that a person may not drive upon state highways without an appropriate operator's license, MCL 257.301; MSA 9.2001. The defendant is the exclusive state agency with the authority to issue driver's licenses. MCL 257.202; MSA 9.1902. No similar entity in the private sector may issue drivers' licenses. Thus, the regulation of motor vehicle operators, of which licensing is a fundamental part, is an activity that is of the essence of governing. Furthermore, we find that defendant's responsibility to license drivers is carried out for the "common good of all".

However, plaintiff argued below and again in this appeal that this Court's opinion in Keenan v Secretary of State, 103 Mich. App. 82; 302 NW2d 602 (1981), is dispositive. In that case this Court held that the administration of driver's examinations prior to licensing was not a governmental function because the state could delegate such administrative or testing functions to private agencies. Keenan, p 88.

Keenan is not dispositive in this case. Plaintiff's complaint does not allege that defendant breached his duty to properly administer Mr. Laur's driver's license test. Rather, plaintiff only alleges that defendant breached his duty of due care by the act of licensing Mr. Laur. In granting this GCR 1963, 117.2(1) motion, the lower court properly noted this distinction.

Nevertheless, in her brief on appeal plaintiff argues that it is highly probable that defendant's field officer responsible for administering Mr. Laur's driver's license test sometime prior to the accident failed to exercise due care in the administration of the test. To support this speculation plaintiff states facts not alleged in her complaint and arising from events occurring after the accident. These facts are irrelevant to our review of this motion for summary judgment for failure to state a claim. We do note that, despite her reliance on Keenan, plaintiff did not move to amend her complaint.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.