Opinion
Docket Nos. 77-1227, 77-4428.
Decided November 6, 1978. Leave to appeal applied for.
Wisti Jaaskelainen, for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso and Francis J. Carrier, Assistants Attorney General, for defendant State of Michigan.
Brouillette Brouillette, for defendant Dickinson County Road Commission.
Before: V.J. BRENNAN, P.J., and R.B. BURNS and M.J. KELLY, JJ.
Plaintiff Clarence St. Vincent brought suit both in the Michigan State Court of Claims and Dickinson County Circuit Court, seeking damages for personal injuries allegedly suffered due to the negligent acts of the State of Michigan, the Michigan State Highway Commission, Department of Highways and Transportation, and the Dickinson County Road Commission. The Court of Claims granted accelerated judgment to the state defendants pursuant to GCR 1963, 116.1(5). The Dickinson County Circuit Court granted county defendants' motion for summary judgment on the basis of governmental immunity and nonliability pursuant to a maintenance contract existing between defendant county and defendant State Highway Department. GCR 1963, 117.2(1). Plaintiff appeals as of right under GCR 1963, 806.1.
Plaintiff brought suit against defendants on May 26, 1976, alleging injury which occurred in 1935 in a Michigan state highway park located north of M-69, near Hardwood in Dickinson County. Plaintiff stated that he was an invitee, that the premises were under the ownership and control of defendants, that defendants breached their duty of care by failing to erect signs warning of dangerously shallow waters, that he was injured upon diving into those waters, that defendants' breach of duty was the direct and proximate cause of those injuries and that such injuries caused mental derangement which prevented him from instituting legal action prior to this time.
With regard to the state defendants, on July 19, 1976, the Dickinson County Circuit Court granted their motion for accelerated judgment on the ground that plaintiff's claim against them was cognizable only in the Court of Claims. Similarly, the Court of Claims, holding plaintiff's claim for naught, on August 13, 1976, granted the state defendants' motion for accelerated and summary judgment. Although the court's decision does not so indicate and the record is silent on the matter, judgment for state defendants was apparently based upon their claim that plaintiff was barred by the doctrine of sovereign immunity.
With regard to the county defendant, on October 27, 1976, the Court of Claims granted its motion for accelerated judgment on the basis that such claim was cognizable only in Dickinson County Circuit Court. Finally, on March 18, 1977, the circuit court granted defendants' motion for summary judgment on grounds of governmental immunity and nonliability premised upon a contract between Dickinson County and the Michigan State Highway Commission.
Plaintiff raises several allegations of error. We will comment only briefly on them.
The Court of Claims properly granted summary judgment to state defendants. GCR 1963, 117.2(1). See White v Detroit, 74 Mich. App. 545, 547; 254 N.W.2d 572 (1977), McCann v Michigan, 398 Mich. 65, 77; 247 N.W.2d 521, 523-524 (1976) (opinion of RYAN, J.), Galli v Kirkeby, 398 Mich. 527; 248 N.W.2d 149 (1976) (opinion of WILLIAMS, J.). Recently, the Michigan Supreme Court abrogated the common-law doctrine of sovereign immunity as applied to the state and its agencies. Pittman v City of Taylor, 398 Mich. 41; 247 N.W.2d 512 (1976). However, because plaintiff was not directly challenging the concept of common-law sovereign immunity in his reply to state defendants' claim of immunity, but only contesting its application to plaintiff's particular suit, we find plaintiff's action is not governed by Pittman, despite the fact the suit was pending when Pittman was released. The Court stated there:
"This ruling is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of state governmental immunity has been made and preserved." Pittman v City of Taylor, supra, at 45.
Consequently, state defendants properly availed themselves of the immunity defense, and the Court of Claims correctly granted their motion for summary judgment. See Myers v Genesee County Auditor, 375 Mich. 1; 133 N.W.2d 190 (1965).
Concerning county defendant, we find no basis for liability on account of charged negligent maintenance when the county simply maintained a contract with the state for such maintenance. See Moyer v Wayne County Road Comm, 52 Mich. App. 285; 217 N.W.2d 53 (1974), Bennett v Lansing, 52 Mich. App. 289; 217 N.W.2d 54 (1974). Therefore, defendant county was properly granted summary judgment when they affirmatively presented to the court every fact necessary for a complete defense. Bloss v Williams, 15 Mich. App. 228; 166 N.W.2d 520 (1968).
Having reviewed plaintiff's remaining claims of error and finding none meritorious, we sustain the Court of Claims and Dickinson County Circuit Court.
Affirmed.