Exceptions to Immunity
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Chapter 6: Exceptions to Immunity
Ronald E. Baylor, Miller Canfield PLC

Defective Highways
Negligent Operation of Government-Owned Vehicles
Dangerous or Defective Conditions in Public Buildings
Proprietary Functions
Government Hospitals/Medical Care Exception
Sewer Overflow or Backup
Other Statutory Exceptions to Immunity
Judge-Made Exceptions: Common-Law Tort Claims

I.   Overview

§6.1   The Governmental Tort Liability Act (GTLA) provides immunity from all tort liability arising from activities where the governmental agency was engaged in the exercise or discharge of a governmental function, “[e]xcept as otherwise provided in this act.” MCL 691.1407(1) (emphasis added). The act contains five statutory exceptions to immunity: (1) the failure to maintain and repair highways, (2) the negligent operation of government-owned vehicles, (3) dangerous or defective conditions in public buildings, (4) the performance of proprietary functions, and (5) the ownership or operation of a government hospital. In 2002, the GTLA was amended to provide that, under certain circumstances, a governmental agency may be liable for property damage or physical injury as a result of a sewer system overflow or backup. While immunity conferred on governmental agencies is broad, the exceptions are “narrowly drawn” and are to be narrowly construed. Ross v Consumers Power Co  (On Rehearing), 420 Mich 567, 618, 363 NW2d 641 (1984); see also the consolidated cases of Nawrocki v Macomb Cty Rd Comm’n and Evens v Shiawassee Cty Rd Comm’rs, 463 Mich 143, 615 NW2d 702 (2000) (highway defect); Maskery v University of Michigan Bd of Regents, 468 Mich 609, 664 NW2d 165 (2003) (public building defect); Vargo v Sauer, 457 Mich 49, 576 NW2d 656 (1998) (operation of public hospital); Coleman v Kootsillas, 456 Mich 615, 575 NW2d 527 (1998) (proprietary function); Stanton v City of Battle Creek, 466 Mich 611, 647 NW2d 508 (2002) (negligent operation of publicly owned motor vehicle). Terms in the statute should be construed according to their plain meaning whenever possible, consistent with traditional rules of statutory construction, to give effect to the intent of the legislature. Scheurman v Department of Transp, 434 Mich 619, 628, 456 NW2d 66 (1990).

The common-law exception to governmental immunity for trespass-nuisance was abrogated, prospectively, for cases brought on or after April 2, 2002. Pohutski v City of Allen Park, 465 Mich 675, 641 NW2d 219 (2002).