Opinion
Docket No. 26758.
Decided March 29, 1977.
Appeal from Saginaw, Joseph R. McDonald, J. Submitted February 2, 1977, at Lansing. (Docket No. 26758.) Decided March 29, 1977.
Complaint by James J. Wojtasinski, administrator of the estate of Leo Wojtasinski, deceased, against the City of Saginaw for damages for wrongful death arising out of the operation of the city jail. Summary judgment for defendant. Plaintiff appeals. Affirmed.
Brisbois, Sturtz Rousseau, for plaintiff.
Otto W. Brandt, Jr., Assistant City Attorney, for defendant.
Before: D.C. RILEY, P.J., and T.M. BURNS and BEASLEY, JJ.
On August 11, 1972, Leo Wojtasinski was incarcerated in the Saginaw city jail with Clarence Emmel. Wojtasinski was later found dead, having been severely beaten by Emmel. The administrator of Wojtasinski's estate brought this suit against the city alleging negligence and maintenance of a nuisance in the operation of the jail. Summary judgment was granted the city on the basis of MCLA 691.1407; MSA 3.996(107) which grants immunity from tort liability to all governmental agencies when they are engaged in the exercise and discharge of a governmental function. The plaintiff appeals.
Plaintiff first argues that the immunity statute is violative of the due process and equal protection clauses of the U.S. and Michigan Constitutions. This Court has consistently rejected the argument. Knight v Tecumseh, 63 Mich. App. 215, 220; 234 N.W.2d 457 (1975). While we tend to agree that the statute is violative of the equal protection clause "insofar as it purports to confer immunity on the state and other units of government for tortious acts committed in the performance of functions that have a counterpart in the private sector and for which private persons are subject to such liability", we cannot so hold in this case. Generally, the operation and maintenance of a jail is a governmental function. Green v Department of Corrections, 30 Mich. App. 648; 186 N.W.2d 792 (1971). See 63 CJS, Municipal Corporations, § 904 p. 309. The alleged tortious conduct in this case concerned the failure of city employees to properly care for and supervise prisoners. The conduct certainly was within the scope of the performance of a uniquely governmental function.
Thomas v Department of State Highways, 398 Mich. 1, 26; 247 N.W.2d 530 (1976), LEVIN, J., dissenting.
Plaintiff further contends that by alleging that the city jail was a nuisance his complaint states a cause of action which survives the defense of governmental immunity. See Buckeye Union Fire Insurance Co v Michigan, 383 Mich. 630; 178 N.W.2d 476 (1970). While it is conceivable that, under the proper facts, the operation of a city jail might constitute a nuisance, it is clear that in the case at bar the defendant was not maintaining a nuisance per se or a highly dangerous condition resulting from grossly negligent conduct. See Buddy v Department of Natural Resources, 59 Mich. App. 598; 229 N.W.2d 865 (1975). Cf. Gerzeski v Department of State Highways, 68 Mich. App. 91; 241 N.W.2d 771 (1976).
We find no error in the trial court's order of summary judgment based upon statutory governmental immunity. The judgment is, therefore, affirmed. No costs.