Opinion
Docket No. 92143.
Decided February 3, 1987.
Warren H. Siegel, for plaintiff. Charlton Bershad (by Thomas A. Golden), for James Green.
According to plaintiff's allegations, Jason Hyman was a ninth grade student at West Bloomfield High School and his first hour class was physical education. On the morning of October 3, 1983, Jason's physical education instructor, defendant Green, had his students play touch football. During the football game, Jason was tackled and thrown to the ground, sustaining allegedly serious injuries.
Plaintiff thereafter filed a complaint in Oakland Circuit Court, alleging that Green failed to adequately supervise and instruct the class and failed to intervene when the players began to use excessive force. Specifically, plaintiff alleges that Green absented himself from the playing field, reading the morning newspaper rather than supervising the football game. Plaintiff also alleges that proper equipment was not provided and that Green failed to properly attend to Jason's injuries after the incident.
Defendants thereafter moved for summary disposition, under MCR 2.116(C)(7) and (8), for the reason that they were immune from suit as a result of governmental immunity. Plaintiff answered, admitting that defendant West Bloomfield Schools was entitled to immunity, but denying that defendant Green was so entitled. The trial court granted defendants' motion. Plaintiff now appeals from the order of dismissal in regard to James Green and we reverse in regard to James Green.
This case is controlled by Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984). In a companion case to Ross, Regulski v Murphy, the Court considered the immunity of instructors and a school district. Regulski involved a shop class wherein the students engaged in the building of a house. The plaintiff was injured when a nail struck him in the eye. The Supreme Court held that, while the school district was entitled to governmental immunity, the individual defendants were not.
Plaintiff has not alleged that the individual defendants were negligent in offering the class, allowing him to participate, or deciding where and when to conduct the class. Such acts are discretionary-decisional in nature. Instead, plaintiff alleged that defendants were negligent in instructing, warning, and supervising him. Although some decision-making is involved in these activities, it is relatively minor. Instruction and supervision are essentially ministerial-operational activities for which there is no immunity from tort liability. [ Ross, supra at 650-651.]
Similarly, in Bandfield v Wood, 421 Mich. 774; 364 N.W.2d 280 (1985), the Court held that individual employees of the Department of Corrections were not entitled to governmental immunity where they allegedly failed to supervise a prison first-aid room. In Bandfield, an inmate was poisoned after taking cough syrup that had been contaminated. The Court concluded that the individual defendants' supervisory acts were ministerial and not protected by governmental immunity.
In the case at bar, we hold that a physical education instructor's supervision, or nonsupervision, of his students constitutes a ministerial act. Thus, where a student is injured because his instructor failed to adequately supervise the class, the instructor may be held liable in tort and the defense of governmental immunity is not available. Accordingly, the trial court erred in granting summary disposition in favor of defendant Green.
We should, however, point out that Green's liability is not predicated upon his exercise of discretion in choosing touch football as a class exercise. While the issue is not before us, since plaintiff does not predicate liability based upon the decision to have the class play football, it is likely that the decision is discretionary in nature and is protected by governmental immunity. See Ross, supra at 650-651 (decision to offer a class is discretionary-decisional in nature). However, once football was chosen, Green's instruction and supervision of the game was ministerial-operational in nature. Id.
The trial court's order is reversed in regard to James Green and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. Costs to plaintiff.