Churilla v. School District for East Detroit , 105 Mich. App. 32 ( 1981 )

Bashara, J.

This appeal involves the sole issue of whether the day-to-day operation of a public school, including the administration and supervision of a football program, is a governmental function and, therefore, entitled to immunity. We hold that a public school in the operation of its athletic program is entitled to immunity, and so affirm the order of the trial judge granting the school district’s motion for summary judgment.

John Lawrence Churilla was a student at Oak-wood Junior High School within the defendant school district. He was participating in a practice session of the school’s football program when he allegedly made contact with an oncoming team member, sustaining injury.

Our Supreme Court appears to have determined that the operation of a public school is a governmental function. In Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), Justice Levin reiterated the position of Justices Kavanagh, Fitzgerald, and himself that the day-to-day operation of a school is not a governmental function. See Galli v Kirkeby, 398 Mich 527, 531; 248 NW2d 149 (1976). He conceded that his position did not command the concurrence of a majority of the Court. Bush, 727-728.

In Bush, the remaining four justices agreed with Justice Levin’s assessment that the "Kavanagh— Levin — Fitzgerald view” did not claim a majority of the Court.

The case of Deaner v Utica Community School Dist, 99 Mich App 103; 297 NW2d 625 (1980), presents facts similar to the case at bar. The minor in that matter was enrolled in a combative sports course and suffered severe injuries while engaged in a wrestling match in class.

The Deaner Court analyzed Justice Moody’s position on governmental immunity in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), and applied it as follows:

"Operation of a public school presents factors similar to those relied on by Justice Moody to distinguish mental hospitals from general hospitals. The government plays a pervasive role in the area of education, appropriating substantial state funds to that field and declaring education as a public policy. See Const 1963, art 8, §§ 1 & 2. The number of private schools is inadequate to meet the educational needs of the public. Finally, while private schools exist to educate some students, the provision of a free and universal education is a uniquely governmental function. Therefore, we would find that the trial court was correct in granting summary judgment to the school district based on governmental immunity.” 99 Mich App 108.

See, also, Smith v Mimnaugh, 105 Mich App 209 306 NW2d 454 (1981).

In Lovitt v Concord School Dist, 58 Mich App 593; 228 NW2d 479 (1975), plaintiffs decedent died of heat prostration during a particularly severe football practice session. Concluding that a school district is immune from tort liability under such circumstances, the Court cited McDonnell v Brozo, 285 Mich 38; 280 NW 100 (1938), and Cody v Southfield-Lathrup School Dist, 25 Mich App 33; 181 NW2d 81 (1970), for the proposition that physical education activities have been held to constitute a governmental and not a proprietary function.

The Lovitt Court quoted with approval from Justice Dethmer’s opinion in Watson v Bay City School Dist, 324 Mich 1, 11; 36 NW2d 195 (1949):

"Here the football game was part of the school’s physical education program. The function is inherently educational, a governmental function without doubt.”

Finally, in Richards v Birmingham School Dist, 348 Mich 490, 509-510; 83 NW2d 643 (1957), the Court stated:

"The football game played on November 25, 1948, must be considered as a part of the athletic activities of the school rather than as an independent contest. * * * Rather, the entire department is operated as a part of the school facilities and in furtherance of the objectives to be attained in educational lines. It may not be said that defendant district, in allowing athletic competition with other schools, is thereby engaging in a function proprietary in nature. On the contrary, it is performing a governmental function vested in it by law.”

Affirmed.

V. J. Brennan, P.J., concurred.