rule of governmental immunity in Michigan

1966On March 1, 1965, one day before oral argument in this case, in Myers v. Genesee County Auditor, 375 Mich 1 , this Court, with seven members sitting, by reversing and remanding for trial, decided by a clear majority of those participating to abrogate the rule of governmental immunity as to counties, thus overruling Lewis v. Genesee County, 370 Mich 110 , and also held that said abrogation was applicable to “pending and future cases.” Inasmuch as this case was pending at the time of decision in Myers , the application of the rule of governmental immunity is no longer valid.

1966On March 1, 1965, one day before oral argument in this case, in Myers v. Genesee County Auditor, 375 Mich 1 , this Court, with seven members sitting, by reversing and remanding for trial, decided by a clear majority of those participating to abrogate the rule of governmental immunity as to counties, thus overruling Lewis v. Genesee County, 370 Mich 110 , and also held that said abrogation was applicable to "pending and future cases." Inasmuch as this case was pending at the time of decision in Myers , the application of the rule of governmental immunity is no longer valid.

1966Plaintiffs raise one question on this appeal: “Is a primary school district immune from suit for wrongful death of a 6-year-old child fatally injured during a school recess while playing unsupervised on a piece of school playground equipment, specifically alleged to be patently dangerous and of especial peril to children in such age brackets?” Plaintiffs in their answer to the motion for summary judgment asserted that by the decision of Myers v. Genesee County Auditor (1965), 375 Mich 1 , the rule of governmental immunity as to all political subdivisions of government was abrogated as well as

1966On March 1, 1965, one day before oral argument in this case, in Myers v. Genesee County Auditor, 375 Mich 1 , this Court, with seven members sitting, by reversing and remanding for trial, decided by a clear majority of those participating to abrogate the rule of governmental immunity as to counties, thus overruling Lewis v. Genesee County, 370 Mich 110 , and also held that said abrogation was applicable to “pending and future cases.” Inasmuch as this case was pending at the time of decision in Myers , the application of the rule of governmental immunity is no longer valid.

1970Since the Supreme Court has definitely made a distinction between nuisance based on negligence and other kinds of nuisance when the defense of contributory negligence was involved (Denny, Dahl, Young, supra), it is reasonable and consistent to make such a distinction between nuisance arising out of negligence and other types of nuisance when making exceptions to the rule of governmental immunity.

1970Since the Supreme Court has definitely made a distinction between nuisance based on negligence and other kinds of nuisance when the defense of contributory negligence was involved ( Danny, Dahl, Young, supra ), it is reasonable and consistent to make such a distinction between nuisance arising out of negligence and other types of nuisance when making exceptions to the rule of governmental immunity.

1961Hargrove v. Town of Cocoa Beach, supra; Molitor v. Kaneland Community Unit District No. 302, supra; Muskopf v. Corning Hospital District, supra. ■ In the most recent of these cases, the California supreme court said: “After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust. * * # The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia. * * * Only the vestigial remains of such governmental immunity have survived; its requiem has lon

1961The order of the lower-court dismissing the action as to the defendant board of regents is affirmed.” By analogy the above cited cases sustaining the-majority rule are in accord with the holding of this Court in DeGroot v. The Edison Institute, 306 Mich 339 .

1961The order of the lower court dismissing the action as to the defendant board of regents is affirmed." By analogy the above cited cases sustaining the majority rule are in accord with the holding of this Court in DeGroot v. The Edison Institute, 306 Mich 339 .

1961I conceive then that waiver, being contractual in its nature, can be no more effective as a bar than an express agreement or contract, and cannot arise from a transaction between parties in respect to a matter about which their express contract would be invalid as against public policy.” See, also, with reference to lack of authority to waive or abrogate the right to rely on the rule of governmental immunity in tort actions for damages, based on alleged negligence, the decision of this Court in McNair v. State Highway Department, 305 Mich 181, 187 , where it was said: “Moreover, the failure to

1961I conceive then that waiver, being contractual in its nature, *220 can be no more effective as a bar than an express agreement or contract, and cannot arise from a transaction between parties in respect to a matter about which their express contract would be invalid as against public policy." See, also, with reference to lack of authority to waive or abrogate the right to rely on the rule of governmental immunity in tort actions for damages, based on alleged negligence, the decision of this Court in McNair v. State Highway Department, 305 Mich 181, 187 , where it was said: "Moreover, the failu

1961Hargrove v. Town of Cocoa Beach, supra; Molitor v. Kaneland Community Unit District No. 302, supra; Muskopf v. Corning Hospital District, supra. ■ In the most recent of these cases, the California supreme court said: “After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust. * * # The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia. * * * Only the vestigial remains of such governmental immunity have survived; its requiem has lon