The opinion
Mackenzie, P.J.
(dissenting). I respectfully dissent. The motion for summary judgment pursuant to GCR 1963, 117.2(1) at issue in this interlocutory appeal by defendant City of Detroit should only have been granted if, accepting as true all wellpled facts in plaintiffs complaint, plaintiffs claim was so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery; however, plaintiff had the burden of pleading facts in avoidance of governmental immunity. Furness v Public Service Comm, 100 Mich App 365, 368 ; 299 NW2d 35 (1980). The majority here holds that it was unnecessary for plaintiff to plead such facts because governmental immunity was inapplicable as a matter of law. In so holding, the majority has gone beyond reviewing the circuit court’s resolution of the city’s motion for summary judgment and has, in effect, granted partial summary judgment for plaintiff pursuant to GCR 1963, 117.2(2) on the issue of governmental immunity on the theory that no factual development could possibly establish governmental immunity as a defense.
The majority’s decision is premised on such unpled "facts” as the following:
"Private persons or organizations could and regularly do inspect one- and two-family residential structures offered for sale or transfer to achieve a variety of objectives not the least of which is to determine the presence of termites. Further, such pre-purchase hous *337 ing inspections have historically been totally within the prerogative of the residential home buyer.”
It would seem that evidence could be produced to contradict the foregoing. MRE 201(b) provides:
"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
The "facts” relied upon by the majority fall within neither of these categories.
Had the majority opinion merely affirmed the decision of the trial court, I would still disagree. The generally recognized test of governmental immunity is that stated in Parker v Highland Park, 404 Mich 183, 200 ; 273 NW2d 413 (1978) (Moody, J., concurring):
"[T]he crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.”
In Central Advertising Co v Novi, 91 Mich App 303, 317 ; 283 NW2d 730 (1979), the Court held that adoption and enforcement of a regulatory sign ordinance was within the scope of governmental immunity under the foregoing test. In Hoeppner v Dep’t of Labor, 104 Mich App 334, 338 ; *338 304 NW2d 841 (1981), the Court held that performance of a safety inspection under the Michigan Occupational Safety and Health Act was a governmental function under the foregoing test. The Court reasoned that, while safety inspections are sometimes performed in the private sector, only government inspections could meet the statutory goal of ensuring a safe workplace for all employees in the state.
See also Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389, 395 ; 283 NW2d 749 (1979), in which the Court held that a police and fire department investigation of arson aimed at a subsequent criminal prosecution was a governmental function. I would conclude that enforcement of regulatory ordinances is a governmental function. Due to its unique character and governmental mandate, such enforcement can be effectively accomplished only by government. The Central Advertising Co, Hoeppner and Antikiewicz decisions support such a conclusion.
The inspection performed here by the city appears on its face to have been performed in the course of enforcing a regulatory ordinance. Plaintiff has pled no facts in avoidance of such a conclusion. While such inspections may have analogues in the private sector, they are within the scope of immunity here because they were performed in the exercise or discharge of a governmental function. See MCL 691.1407; MSA 3.996(107); Duncan v Detroit, 78 Mich App 632, 634 ; 261 NW2d 26 (1977); Cronin v Hazel Park, 88 Mich App 488, 491 ; 276 NW2d 922 (1979) and Antkiewicz, supra, p 395 .
That the city charges a fee for performing an inspection makes no difference. See, for example, MCL 691.1413; MSA 3.996(113). Plaintiff has not *339 pled any facts which suggest that the city is in the business of performing safety inspections for profit to meet the needs of individual buyers.
I would reverse and remand for further proceedings, including the entry of an appropriate order of summary judgment.