Ross v. Consumers Power Co.

Levin, J.

(dissenting in part). These nine cases 1 concern sovereign, governmental, 2 and official immunity, 3 and the immunity from tort liability that § 7 of the governmental tort liability act 4 provides to (i) the state, (ii) non-sovereign political units, and (iii) public officers and employees. No constitutional issue has been presented by a party to this litigation. 5

Section 7 provides:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in *663 the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”

I would hold that, under the second sentence of § 7, the State of Michigan and its departments 6 are absolutely immune from tort liability except to the extent that the Legislature has waived the sovereign immunity of the state.

Under the first sentence of § 7, which immunizes non-sovereign political units (e.g., counties, townships, municipal corporations) only when "engaged in the exercise or discharge of a governmental function,” the following factors relating to the specific activity that constitutes the basis of the plaintiffs complaint should be considered in determining whether the non-sovereign political unit was engaged in a "governmental function”:

1) whether the specific activity complained of involved either policy formulation or quasi-judicial decision-making;

2) whether the specific activity complained of represented a failure to prevent harm from a source not subject to governmental control;_

*664 3) whether the specific activity complained of is without a common analogy in the private sector.

The 'governmental tort liability act does not provide immunity from tort liability to public officers or employees. Courts should decide claims of immunity asserted by public officers or employees on the basis of the factors traditionally considered at common law:

1) Was the officer or employee acting within the scope of his official function?

2) Was the officer or employee acting in good faith?

3) Was the officer or employee exercising quasi-judicial or policy-making discretionary authority?

I. Sovereign Immunity

A

The opinion of the Court asserts that at common law, "sovereign immunity from tort liability was recognized as a defense only when the state was engaged in the exercise or discharge of a governmental function ” (Emphasis supplied.) 7 The ques-

*665 tion whether the state or its agencies, prior to the governmental tort liability act, was subject to liability for torts committed in the exercise or discharge of a non-governmental activity was, however, "a question that had never been settled.” Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 278 (1973). 8

Professor Cooperrider notes that the governmental tort liability act was "[d]rafted under the apparent assumption that the state and its agencies enjoyed a total sovereign immunity from tort liability * * *.” Cooperrider, supra, p 277. This Court has said that "while a state may sue, it cannot be sued in its own courts, unless, indeed, it consents to submit itself to their jurisdiction.” 9 _

*666 The view that the state’s common-law sovereign immunity was limited to torts arising out of governmental functions would render both the second sentence of § 7 and all of § 13 of the act superfluous. The second sentence of § 7 "affirm[s]” the common-law sovereign immunity of the state and its agencies "as it existed heretofore.” If the state’s common-law sovereign immunity as it existed heretofore was limited to governmental functions, this sentence would have been wholly unnecessary because the first sentence of § 7 provides statutory immunity to the state and its agencies when "engaged in the exercise or discharge of a governmental function.”

Section 13 provides that the state shall not be immune in tort actions "arising out of the performance of a proprietary function as herein defined.” If the state’s common-law sovereign immunity had been limited to governmental functions, this statutory waiver of immunity would also have been wholly unnecessary because there would have been no immunity to waive; proprietary functions would not have been immune because they were not governmental functions.

The Legislature did not intend the second sentence of § 7 and § 13 of the act to be mere surplus-age. "[T]he courts must construe the provisions of a statute together, and not isolate the provision under consideration and construe it without reference to the rest of the enactment.” 10 The view that the state’s common-law sovereign immunity extended only to governmental functions renders two statutory provisions superfluous and frustrates the *667 apparent legislative intent to affirm greater immunity for the state than the immunity being provided in the act for other units of government. 11

B

In Williams v Detroit, 364 Mich 231 ; 111 NW2d 1 (1961) (opinion of Edwards, J.), the trial court had dismissed plaintiffs complaint alleging that the City of Detroit had failed properly to protect and enclose an elevator shaft in which plaintiffs decedent had fallen to his death. Four members of the then eight-member Court, following the lead of Florida, 12 Illinois, 13 and California, 14 signed an opinion that would have abolished both sovereign and governmental immunity. Three members of the Court voted to retain both sovereign and governmental immunity. Id. (opinion of Carr, J.). Although Justice Black, in his separate opinion, agreed that the governmental immunity of the non-sovereign municipal corporation at issue in Williams should be abolished, he distinguished the immunity of the sovereign state and refused to *668 extend the abolition of the immunity doctrine beyond municipal corporations. Thus, by a 5-3 vote, the Court abolished the doctrine of governmental immunity for municipal corporations; by a 4-4 vote, however, the Court declined to abolish the doctrine of sovereign immunity for the state. 15

Three years later, the Legislature enacted the governmental tort liability act. 16 The primary purpose of the act, 17 which "was drafted by a special *669 committee of the Michigan Association of Municipal Attorneys and lobbied through the legislature with the strong backing of that association’s parent organization, the Michigan Municipal League,” appears to have been to restore immunity to non-sovereign governmental units. 18

To achieve this purpose, the Legislature provided in the first sentence of § 7 that "[e]xcept as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” The act thereby conferred uniform statutory immunity on all governmental entities— both the state and non-sovereign political units alike — when engaged in the exercise or discharge of a "governmental function.”

To make clear that, by restoring to municipal corporations immunity for governmental functions and making uniform the immunity of all governmental entities for governmental functions, it was not thereby waiving the state’s common-law absolute sovereign immunity for non-governmental functions, 19 the Legislature provided in the second sentence of § 7 that "[e]xcept as otherwise provided *670 herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” 20 The "which immunity is affirmed” clause codified the state’s common-law sovereign immunity from tort liability — an absolute immunity except to the extent it is waived by the Legislature. 21 _

*671 II. Governmental Immunity

When a non-sovereign political unit is engaged in the exercise or discharge of a "governmental function,” 22 it has statutory governmental immunity pursuant to the first sentence of § 7. 23 When not engaged in a governmental function, it is not immune.

*672 The details of this Court’s nine-year struggle to "determin[e] whether a particular activity is a governmental function within the meaning of the statute” are set forth in Ross v Consumers Power Co, 415 Mich 1, 6-11 ; 327 NW2d 293 (1982) (opinion of Ryan, J.), and need not be repeated here. It is sufficient to note that three tests have emerged for defining "governmental function”:

1) The "common good of all” test. " 'The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit.’ ” Gunther v Cheboygan County Road Comm’rs, 225 Mich 619, 621 ; 196 NW 386 (1923), citing Bolster v City of Lawrence, 225 Mass 387; 114 NE 722 (1917). This is the test most often pressed upon us by non-sovereign political units. 24

*673 2) The "essence of governing” test. This test would limit the term "governmental function” to activities that are "sui generis governmental” in that they have "no common analogy in the private sector.” Thomas v Dep’t of State Highways, 398 Mich 1, 21 ; 247 NW2d 530 (1976) (Kavanagh, C.J., and Fitzgerald, J., dissenting). This is the test most often pressed upon us by persons seeking to recover from non-sovereign political units.

3) Justice Moody’s "essence of governing” test. "[T]he crux of [this] governmental essence test [is] 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.” Parker v Highland Park, 404 Mich 183, 200 ; 273 NW2d 413 (1978) (Moody, J., concurring). This is the test most often applied by the Court of Appeals in recent years; although espoused by only a single member of this Court, this test represented the "swing vote” at a time when the Court was otherwise evenly divided between the other two tests.

It is now apparent that the phrase "governmental function” cannot be reduced to a single, readily applied test. 25 The following factors are offered as a *674 representative, though not exclusive, list to be considered in deciding whether a non-sovereign political unit is engaged in a "governmental function.”

These factors should be applied to the specific activity that constitutes the basis of the plaintiffs complaint. 26 See Thomas v Dep’t of State Highways, supra, p 12 (opinion of the Court), and p 21 (opinion of Kavanagh, C.J.); McCann v Michigan, 398 Mich 65, 80 ; 247 NW2d 521 (1976) (opinion of Ryan, J.), and p 83 (opinion of Fitzgerald, J.); Galli v Kirkeby, 398 Mich 527, 536 ; 248 NW2d 149 (1976) (opinion of Williams, J.). 27 These factors *675 should not be simply counted up or tallied to reach a result. The importance of each of these considerations will vary from case to case, and the proper weight to be given to each factor must be independently evaluated in light of the particular activity about which the plaintiff complains.

1) Did the specific activity complained of involve either policy formulation or quasi-judicial decision-making? 28

"The parameter of [this consideration] will most often run along the line of distinction between decisional and planning aspects of governmental duties on the one hand, and operational [or ministerial] aspects on the other.” Thomas, supra, p 22 (Kavanagh, C.J., dissenting). Thus the policy formulation inherent in, for example, decisions *676 whether and where to build a road, what health services to offer, what school subjects to teach, and whether and where to build playgrounds and swimming pools, would weigh in favor of immunity in tort actions complaining of such decisions. On the other hand, the operational nature of, say, supervising road construction, and the day-to-day functioning of hospitals, schools, playgrounds, and pools, would weigh against immunity in tort actions arising out of these activities. See id., pp 21-22.

2) Did the specific activity complained of represent a failure to prevent harm from a source not subject to governmental control? 29

This consideration in effect asks whether the claim relates to what government did to the claimant or to what it did not do for him. See Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 285 (1973). Professor Cooperrider has expressed the justification for this consideration: *677 position to avoid or to lay off in other ways, but that type of decision belongs to the political rather than to the judicial process.” Id., pp 285-286. (Emphasis in the original.)

*676 "[W]ere there no such [immunity], there would be an essentially unpredictable exposure to miscellaneous accusations of nonfeasance. Government’s ubiquity in modern life makes it vulnerable, in a legal milieu wherein the search for a plausible loss-bearer is candidly recognized, to blame for individual misfortunes that are in no real sense the product of its enterprise. The principle that government should pay its way could shade imperceptibly into a principle that it should pay our way. Such a principle may well be appropriate in given circumstances. Perhaps modern government should absorb, to a greater degree than it does, the burdens of personal misfortune arising from its failure to shield individual citizens from harmful occurrences, such as crime and flood, that citizens are in a poor

*677 This consideration, then, would weigh in favor of immunity in cases where injury has occurred because, say, the police department failed to prevent crime. Id., p 286. 30

3) Is the specific activity complained of without a common analogy in the private sector?

Merely because there is an analogy in the private sector does not indicate that the specific activity complained of is not a governmental function. Before immunity is lost, the specific activity complained of must have a common analogy in the private sector. 31 For example, although there are private security forces that have the power, under certain circumstances, to detain and question a person, arrest and questioning of persons suspected of engaging in criminal activity are commonly performed and accomplished only by the government (i.e., the police).

III. Officer and Employee Immunity

The immunity of a public officer or employee 32 *678 from personal tort liability for actions within the scope of his official authority and in the performance of his official duties is an immunity separate and distinct from sovereign and governmental immunities. 33 Neither § 7 nor any other provision of the governmental tort liability act provides protection for public officers or employees. Section 7 limits statutory immunity to "governmental agencies].” 34 Section 1(d) of the act defines that term to include both the state and non-sovereign political units, but does not include individuals.

The legislative intention not to provide public officers or employees with statutory immunity is manifested by §8(1) of the act, which recognizes that an injured person may maintain an action against an officer or employee of a governmental agency for injuries caused by negligence of the officer or employee while in the course of employment and while acting within the scope of his or her authority, and provides that the governmental unit may indemnify the officer or employee. 35 It is *679 apparent that whatever immunity public employees have in this state is provided by the common law. 36

The following factors are generally considered when a common-law claim of immunity is asserted by a public officer or employee:

(1) Was the officer or employee acting within the scope of his official function?

A public officer or employee can only claim immunity if he is performing his official function. "No officer, of course, is absolved from liability for his private and personal torts merely because he is an officer, and the question arises only where he performs, or purports to perform, his official functions.” 37

*680 (2) Was the officer or employee acting in good faith?

Judges and legislators are absolutely immune. 38 The highest executive officers of the federal and state governments also were traditionally held to be absolutely immune, so long as they did not clearly exceed the discretion vested in them by law. 39 More recently, however, the governor and other executive officers of a state have been limited to a qualified immunity. Qualified immunity can only attach when a public officer or employee is acting in good faith. 40

(3) Was the officer or employee exercising quasi-judicial or policy-making discretionary authority?

*681 The qualified immunity afforded to public officers and employees generally varies with the scope of their discretion as to the specific act in question: 41

" '[AJctions or decisions of a legislative, executive, or judicial character which are performed within the scope of authority of the governmental body or officer concerned * * * enjoy freedom from liability.

"The people place great powers of decision making in the hands of their government. In the exercise of discretionary power, governmental duty runs to the benefit of the whole public, rather than to individuals. It is of great importance that this crucial function of democratic decision making be unhampered by litigation.’ ” (Emphasis in the original.) Sherbutte v Marine City, 374 Mich 48, 54 ; 130 NW2d 920 (1964), quoting Williams v Detroit, 364 Mich 231 ; 111 NW2d 1 (1961).

Public officers or employees are, however, liable for the negligent performance of ministerial acts. Id., p 54, fn 2.

The scope of immunity granted a public officer or employee in any given situation turns on the specific character of the act complained of, not on the general nature of his job. 42 Accordingly, it is not determinative that the officer or employee has some general discretionary authority if the act complained of is properly characterized as ministerial.

It is often difficult to distinguish between discretionary and ministerial activities: *682 any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.’ ” Prosser, supra, § 132, p 990, quoting Ham v Los Angeles County, 46 Cal App 148, 162; 189 P 462 (1920).

*681 "It seems almost impossible to draw any clear and definite line, since the distinction, if it exists, can be at most one of degree. ’[I]t would be difficult to conceive of

*682 The discretionary decisions intended to be protected by official immunity are those that involve policy formulation 43 and those that are quasi-judicial in nature. In Sherbutte v Marine City, supra, pp 54-55, this Court said that official immunity protects "democratic decision making,” namely, "actions or decisions of a legislative, executive, or judicial character.” (Emphasis in the original.) The Court in Sherbutte held that a police officer or employee was not immune from an action alleging excessive use of force during the course of an arrest: "We think it unnecessary to expatiate on the point. The action of a police officer in making an arrest cannot be considered within the broad scope of the discretion allowed a free government in its legislative, executive, or judicial branch.”

In sum, if judges and legislators are acting within the scope of their official function, they are absolutely immune. Other public officers or employees only possess official immunity if they are acting within the scope of their official function, they are acting in good faith, and, focusing upon the specific activity complained of by the plaintiff, they are exercising quasi-judicial or policy-making discretionary authority.

IV. The Opinion of the Court

The opinion of the Court states that the phrase "governmental function” should be construed in a "broad manner” because § 7 "extends immunity to *683 all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function.” Ante, p 618. (Emphasis in original.) The language of § 7, however, might just as readily be read as providing a more limited immunity, absolving all governmental agencies from all tort liability only when they are engaged in the exercise or discharge of a governmental function.

All can agree that the Legislature has "evidence^] a clear legislative judgment that public and private tortfeasors should be treated differently.” Ante, p 618. That does not suggest, however, that the Legislature intended to immunize "most of the activities undertaken by governmental agencies.” Ante, p 621. All can agree that "the people, by mandating or authorizing the government to engage in certain activities, have determined that these activities are governmental in nature.” Ante, p 620. It does not follow, however, that by mandating or authorizing the government to engage in certain activities, the people have determined that the government should be immune for each and every act connected with the performance of that activity.

The opinion of the Court, for example, concludes that a right to supervise the construction of a drain is impliedly authorized by the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., which grants a drainage district power over the establishment, construction, and maintenance of a drain. Ante, pp. 637-638. Under this view, a drainage district or board would be immune if an employee operating a helicopter to supervise drain construction flies too low and strikes a person or damages property. There is nothing in the language or history of the governmental tort liability act, nor is there anything in the language or history of the *684 Drain Code, to suggest that the Legislature intended that operating aircraft be an immune "governmental function.” Virtually all government activity is expressly or impliedly mandated or authorized by the constitution, a statute, or other law. By perusing the statute books rather than focusing on the specific activity complained of by the plainiff, the Court casts the net of governmental immunity too far, enabling a governmental entity to expand the scope of its own immunity by promulgating an ordinance or other law relating to its activities.

The inherent difficulty in defining "governmental function” by scanning the statute books is illustrated in the Court’s treatment of the Willis case. The opinion of the Court argues that the statutory duty , imposed on the Department of Social Services to care for children residing in state facilities "implies a responsibility to supervise them in order to prevent, as far as is practicable, any unnecessary injury.” Ante, p 641. Yet the Court then relies on that same statutory duty as a reason for immunizing the department when one of its employees breaches that statutory duty to prevent injury. Under the Court’s analysis, then, the same statute that creates the responsibility to supervise children to prevent injury also immunizes the department when one of its employees breaches that very responsibility.

V. Application in the Instant Cases

The detailed application of the factors in the individual cases is set forth in the Appendix.

Four of these cases — Willis II, Siener, Rocco, and Disappearing Lakes — are actions against the state and its departments. The Legislature has affirmed sovereign immunity in these cases, and therefore *685 the defendants are absolved from liability by the sovereign immunity provided by the second sentence of § 7. In Rocco, the plaintiff also alleges a contract claim, and that claim should be remanded for trial.

Four cases — Ross, Regulski, Trezzi, and Zavala— are actions against non-sovereign political units. On the basis of an application of the factors discussed above and set forth in detail in the Appendix, the governmental entities in Ross and Regulski were not engaged in the exercise or discharge of a "governmental function,” and therefore are not immune pursuant to the first sentence of §7; in Trezzi and Zavala the governmental entities are immune under the first sentence of § 7.

In Regulski, neither teaching or supervision nor providing safety goggles and emergency supplies and facilities for students in a building trades class are "governmental functions.” In Regulski and Ross , non-sovereign political units are not immune with respect to the conduct and operation of construction work. In Trezzi and Zavala, the city is immune from liability for the manner of police responses to requests for assistance.

Three cases — Willis I, Regulski, and Zavala — are or include actions against public officers or employees. On the basis of an application of the common-law factors discussed above, the individual defendants in these cases are not immune. Thus, official immunity does not attach to teaching and supervising students (Regulski), supervising residents of a juvenile care facility on a recreational outing (Willis I), or the decision of police officers regarding how to respond to a request for assistance (Zavala). No opinion is expressed whether the police officers, or indeed any of the defendants, are subject to liability under tort principles; this opinion is addressed only to the sepa *686 rate question of sovereign, governmental, and officer or employee immunity.

Appendix

Detailed Application of the Factors in the Instant Cases

Ross

In connection with the construction of a drain on property owned by Consumers Power Company, the John Saines Project I Drainage District provided Consumers with an easement. The district contracted the construction of the drain to Dunigan Brothers, Inc. Michael Ross, a Dunigan employee, was injured when a construction vehicle near which he was working came in contact with electric power lines maintained over the property by Consumers.

Ross commenced an action against Consumers, and the action was eventually settled. Consumers had filed a third-party action against the district. The Court of Appeals summarized the allegations of Consumers’ amended complaint as follows:

"In its essentials, Consumers’ tort claim against the District alleges negligence arising out of a failure to notify Consumers that work was being undertaken that could interfere with the power lines, a failure to make arrangements with Consumers to safeguard workers from contact with the lines, a failure to instruct and warn its contractors concerning the lines, a failure to hire a properly licensed and competent contractor, and a failure to adequately supervise and inspect the project in such a manner as to prevent the accident from occurring.” 44

The heart of Consumers’ complaint is that the *687 district allowed its contractors to work too close to Consumers’ power lines without notifying Consumers of the danger, without explicitly warning the workers about the lines, and without adequately supervising and inspecting the work to prevent contact with the power lines. The question is whether this specific activity complained of constitutes, in light of the factors discussed above, a "governmental function.” It does not.

First, the specific activity complained of does not involve policy formulation, nor is it quasi-judicial in nature. Consumers’ claim is for the conduct of construction work too close to electric power lines without proper warnings to the workers and without proper notice to the owner of the power lines. 45 That the defendant here happens to be a governmental entity does not, in and of itself, inject any degree of policy formulation into the activity. Supervision and inspection of construction work has generally been held to be operational in nature. This factor weighs against immunity.

Second, the specific activity complained of — failures to warn, supervise, and inspect in respect to a specific site where a governmental construction project was in progress — did not represent a failure to prevent harm from a source not subject to governmental control. This factor weighs against immunity in the present case.

Third, the specific activity complained of has a common analogy in the private sector; it is not an activity primarily performed and accomplished by the government. Conceding that drain-construction occurs primarily pursuant to the Drain Code, there is nevertheless a common analogy in the private sector. The analogy obtains whenever construction workers are permitted to work close to *688 electric power lines without notice to the owner of the power lines, without specific warnings and instructions to the workers, and without adequate supervision and inspection of the construction work. The private analogy is even more common when it is recognized that the same tort issues arise whenever a contractor is hired to do construction work near any kind of hazard; the analogy is not limited to the hazard of electric power lines. Because the specific activity complained of has an analogy in many private construction projects, this factor weighs against immunity in the present case.

In conclusion, the district is not immune under §7 for allegedly permitting the Dunigan employees to work too close to Consumers’ power lines without notifying Consumers, without warning the workers about the danger, and without supervising and inspecting the work.

Consumers’ complaint also alleges that the district was negligent in hiring a contractor that was not properly licensed and competent. Evaluating this specific activity independently in light of the factors set forth above, 46 the district is not immune under § 7 for its hiring of Dunigan Brothers as the contractor for this drain.

*689

Willis I

Plaintiff is the administratrix of the estate of Jeffrey Willis, who was a resident of Harbor House, a juvenile care facility for delinquent and neglected youths operated by the Department of Social Services. Willis and other Harbor House residents were taken for a swimming outing on Lake Michigan under the supervision of a counselor, Erma Knox, and a student-intern, Cyndi Hunt. Willis entered the water and drowned.

Plaintiff brought this action in the circuit court against Knox, Hunt, and the director of Harbor House, Dennis Nienow, claiming against all three negligent conduct and supervision of recreational outings. The Court of Appeals summarized the allegations of the complaint as follows:

"Plaintiff’s complaints alleged that Jeffrey and Knox could not swim or were of marginal swimming ability, that neither Knox nor Hunt had lifesaving training, that there were no lifeguards on duty at the time in question, that Jeffrey and other Harbor House residents were allowed to swim in areas not designated as swimming areas, and that Jeffrey and the other residents were allowed to swim under dangerous weather conditions.” 47

The question is whether these public officers or employees are immune from liability for the specific activity that forms the basis of plaintiff’s complaint. They are not.

First, all three defendants acted within the scope of their official function. It appears that recreational outings were standard activities at a facility such as Harbor House. The official functions of Knox, Hunt, and Nienow include the conduct and supervision of such recreational out *690 ings. Thus, the decisions made by these defendants with respect to this swimming outing were made within the scope of their official function.

Second, the defendants were not exercising quasi-judicial or policy-making discretionary authority, but rather were performing a ministerial act. Although permitting Jeffrey Willis to swim in the lake under the circumstances as they existed at the time was a decision requiring the defendants to use their judgment, it did not require the exercise of quasi-judicial or policy-making discretionary authority to which official immunity attaches. 48

The conclusion that these public officers or employees were not exercising the type of discretionary authority protected by official immunity renders it unnecessary to consider whether they acted in good faith. Although Knox, Hunt, and Nienow were acting within the scope of their official function, they are not immune because the specific activity complained of — permitting Willis to swim under dangerous circumstances — was not done in the exercise of discretionary quasi-judicial or policy-making authority.

Willis II

This action arises out of the same drowning incident involved in Willis I. In addition to the circuit court action against the individual defendants, Knox, Hunt, and Nienow, plaintiff brought an action in the Court of Claims against the State of Michigan and the Department of Social Services. The theories of liability here parallel those that were pled against the individual defendants.

*691 The state has statutory sovereign immunity from tort liability pursuant to the second sentence of § 7. The scope of the statutory sovereign immunity is absolute except to the extent that it has been waived by the Legislature.

The Legislature has not waived the state’s immunity for torts committed in connection with the operation of a state-operated juvenile care facility. The defendants are immune.

Siener

Russell Siener, Jr., was an in-patient at the Hawthorn Center, a state-operated mental health facility for emotionally disturbed children. Siener was taken by personnel of the center, in the company of other patients, on a field trip to Greenfield Village. While there, the supervisor permitted five boys, including Siener, to leave the group without supervision. During this unsupervised diversion one of the boys injured. Siener by striking him in the face with a cast iron pot lid. Siener brought an action in the Court of Claims against the State of Michigan, the Department of Mental Health, and the Hawthorn Center, alleging that the defendants failed to properly supervise and control the group of patients to which Siener had been assigned.

The state and its agencies have absolute sovereign immunity from tort liability pursuant to the second sentence of § 7 unless that immunity has been waived by the Legislature. Siener argues that the Legislature waived the state’s immunity with respect to mental health centers in the Mental Health Code. 49 Specifically, Siener claims that the following provision constitutes such a waiver:

*692 "(1) A recipient of mental health services shall not be physically, sexually, or otherwise abused.

"(4) Any recipient of mental health services physically, sexually, or otherwise abused shall have a right to pursue injunctive and other appropriate civil relief.” 50

The language of this section can, to be sure, be read to provide a right to civil relief for any mental health patient who is abused, whether that abuse is inflicted by a Mental Health Department employee or by another patient. In determining the legislative intent underlying this section, however, we must view the statutory provision in light of the general purpose sought to be accomplished or the evil sought to be remedied by the statute as a whole. White v Ann Arbor, 406 Mich 554, 562 ; 281 NW2d 283 (1979). The underlying purpose of the Mental Health Code is to set certain standards and requirements for the treatment of recipients of mental health services by the staff and employees of mental health facilities. The statute nowhere suggests a legislative intent to impose liability on the government for injuries inflicted by other patients. 51 The Legislature has not waived the state’s sovereign immunity where a complaint *693 alleges injuries inflicted by another patient in a mental health facility. 52 The defendants in this case are immune.

Rocco

Daniel Rocco was a resident of the state-operated Ypsilanti Regional Psychiatric Hospital when he was murdered by another patient. Plaintiffs filed a two-count complaint in the Court of Claims against the Department of Social Services and the Department of Mental Health. Count I alleged that defendants negligently placed decedent’s assailant, who was a patient known to have a history of violent and assaultive behavior, in an unrestrained and unsupervised unit with the decedent, who no longer required in-patient care and was awaiting transfer to a halfway house. Count II of the complaint alleged that plaintiffs paid for the care and treatment of the decedent,, and that the defendants breached their implied contractual duty to protect the decedent from harm and abuse by other patients at the hospital.

For the reasons stated in the companion case of Siener, the Mental Health Code does not provide a cause of action where the injury complained of was inflicted by another mental health patient, nor does the Mental Health Code constitute a legislative waiver of the state’s sovereign immunity provided by the second sentence of § 7.

The language of § 7, however, speaks only to immunity from tort liability; it does not grant immunity from contract claims. The state is sub *694 ject to action on contract claims. 53 Nothing in § 7 suggests an intent to establish a statutory sovereign immunity for causes of action relating to contracts. The cause should be remanded for consideration of the merits of Count II alleging breach of an implied contract.

Defendants argue that the contract count of the complaint merely restates the allegations of the tort count, and that to permit the contract claim to be heard would be to circumvent the tort immunity provided by § 7. Although all the allegations contained in Count I of the complaint are repeated in the contract count, Count II contains the critical allegations that plaintiffs agreed to and did pay defendants for the housing, care, and treatment of Daniel Rocco. In Count II the plaintiffs have moved beyond the statement of a cause of action in tort and have alleged a separate and legally distinct cause of action for breach of an implied contract. 54

Regulski

James T. Regulski was a 17-year old high school senior. He was enrolled in a building trades class. The class was offered as a regular part of the high school curriculum of the defendant school district. *695 The students in this class erect a house during the course of the semester, which is then sold by the school district to a private buyer.

While working on the house, Regulski was injured when he attempted to drive a nail into a piece of wood. When Regulski struck the nail, it bounced free of the wood and struck him in the left eye. Regulski brought an action against the school district, the teacher of the building trades class, Leo Hansen, and the director of the vocational building trades program for the school district, William Murphy, alleging that the defendants were negligent in failing to dismiss the class when the teacher left the job site and in allowing Regulski to continue working without supervision.

Although it has been said that at common law, a school district "as an agency of the State [is] clothed with the State’s immunity from liability,” Sayers v School Dist No 1, Fractional, 366 Mich 217, 219 ; 114 NW2d 191 (1962), school districts have generally been held to have the governmental immunity of non-sovereign political units (e.g., cities, counties), rather than the absolute sovereign immunity of the state. 55 In all events, the common- *696 law immunity of school districts was abrogated by this Court in Pittman v City of Taylor, 398 Mich *697 41, 49-50 ; 247 NW2d 512 (1976). 56 The current immunity of school districts is derived not from the common law but rather from § 7; school districts have the governmental immunity provided to "governmental agencies” by the first sentence of § 7, rather than the absolute sovereign immunity provided to the "state” by the second sentence.

The first sentence of § 7 provides governmental immunity to "governmental agencies.” The act defines "governmental agency” as "the state, political subdivisions, and municipal corporations as herein defined.” 57 Thus the "state” and a "political subdivision” are separate and distinct entities for purposes of the act. "Political subdivision,” in turn, is defined as including a "school district.” 58 Accordingly, a "school district” is a "political subdivision” and is therefore not synonymous with, but is rather distinct from, the "state.” 59

Since a school district is within the first rather than the second sentence of § 7, the question is whether the specific activities complained of constitute, in light of the factors discussed above, "governmental, functions.” Regulski’s complaint alleges that the defendants allowed him to work on the construction project: 1) when no supervisor was present; 2) without adequate instruction concerning the dangers involved and the proper meth *698 ods for doing the work; 3) without safety goggles or glasses; and 4) without adequate emergency supplies and facilities available in case a mishap should occur. None of these activities are "governmental functions.”

First, these activities neither involve policy formulation nor are quasi-judicial in nature. As previously noted, supervision of construction work is an operational activity. Policy formulation similarly is not involved in instructing students about the work, permitting students to work without protection for their eyes, or failing to provide sufficient emergency supplies. The decisions to offer this vocational program and to allow Regulski to participate in the program having been made, traditional tort standards are readily applied to evaluate these allegations of negligence in the implementation of the policy. This factor weighs against immunity as to all four of these allegations.

Second, while the school district did not directly inflict the injury Regulski suffered by permitting him to work in the building trades class without supervision, instruction, protection for his eyes, and sufficient emergency supplies and facilities, and Regulski, through his own hammering, was the direct source of his own injury, the specific activity complained of — the failure of teachers adequately to teach or supervise Regulski — represented a failure to prevent harm from a source subject to governmental control. This factor weighs against immunity.

Third, teaching has a common analogy in the private sector. There are many private schools with vocational courses offered as a part of their curriculum. While educating children and youths is an activity that today is primarily performed by the government, a significant number of students *699 are educated in a large number of private schools sufficient to constitute a common analogy in the private sector. This factor weighs against immunity with respect to the allegations of negligent instruction and negligent supervision of the teaching process.

The private analogy regarding the provision of safety goggles and emergency preparedness extends beyond private schools to include all instances of construction and carpentry work. Whenever people work with wood, identical tort issues arise regarding safety goggles and emergency preparedness. Because construction work involving wood is generally performed by persons or concerns other than government, this factor weighs against immunity with respect to these two allegations.

In this case, all the factors weigh against immunity. The school district is not immune for these activities under § 7. 60

The individual defendants also do not have official immunity against the allegations in this complaint. Both Hansen, as teacher of the class, and Murphy, as director of the vocational building trades program, were acting within the scope of their official functions with respect to the supervi *700 sion, instruction, conduct, and emergency preparations of the course, and Regulski has not alleged that either Hansen or Murphy acted with a corrupt or malicious purpose or in bad faith. The officers were not, however, exercising quasi-judicial or policy-making discretionary authority with respect to the activities alleged in the complaint.

Whether or not decisions regarding what vocational courses to offer, what prerequisites to establish, and which students are eligible to participate involve the exercise of policy-making authority, the supervision and conduct of a class does not involve the exercise of such discretion. This is particularly true with respect to the allegation that Regulski was permitted to work with inadequate supervision. In Larson v Braham Independent School Dist No 314, 289 NW2d 112 (Minn, 1980), the Minnesota Supreme Court held that neither the teacher of a gym class nor the school principal was immune from liability to a student for injuries allegedly suffered as a result of negligent spotting of a gymnastic exercise. The supervision of classroom activities does not involve the exercise of discretionary authority to which official immunity attaches.

Trezzi

After walking past his parents’ house and seeing through their window that the refrigerator door was ajar, Trezzi sought emergency assistance by calling 911 six times. The 911 operator attached a low-priority rating to those calls and passed them on to the police dispatcher, Philip Torbit, who then failed to dispatch any police vehicles for approximately one and one-half hours after receiving the first call for emergency assistance. During this period, Trezzi’s parents were attacked by an *701 unknown assailant who had forcibly entered their premises; they died as a result of their injuries.

Applying the factors set forth above, the City of Detroit was engaged in the exercise or discharge of a "governmental function,” and therefore the city is immune pursuant to the first sentence of § 7. The crux of Trezzi’s complaint is that a 911 operator improperly assigned a low-priority classification to his call and that the dispatcher delayed unnecessarily — even permitting some police officers to take a lunch break — before sending, a unit to respond to his call. 61

The specific activities complained of — the classification of incoming calls and the dispatch of police vehicles — involve a sufficient degree of policy formulation for the first factor to weigh in favor of immunity. This case does not involve the operational implementation of a 911 system. The determination of the priority to be given to an incoming call for assistance, in light of available manpower and other demands for assistance at the time, constitutes a policy decision regarding the most effective utilization of police resources. Even a decision to send certain units to lunch before responding to a call given a low priority requires the exercise of policy-making judgment regarding the utilization of police officers who, at some point, must eat. Assuming, as Trezzi contends, 911 operators are guided by a preexisting priority designation system, the city did not, by adopting guidelines, change the nature of the decision or diminish its statutory immunity from liability therefor. 62 *702 Such policy determinations weigh in favor of immunity on these facts.

Second, because the basis of the complaint is that the government failed to prevent harm from a source not subject to governmental control, this factor weighs in favor of immunity.

Third, the classification of calls for police assistance does not have a common analogy in the private sector. Although there are private security forces, they generally do not engage in general emergency assistance analogous to a public 911 system. And although private ambulance services may maintain a priority designation system similar to that employed by a 911 system, such ambulance services are not sufficiently analogous because they do not provide police protection. The coordination of requests for police emergency assistance afforded by a 911 system is performed and accomplished uniquely by the government. This factor weighs in favor of immunity in this case.

The classification of 911 calls and the dispatching of police vehicles to respond to such calls are "governmental functions,” and therefore the City of Detroit is immune when engaged in these activities under the first sentence of § 7. 63

Disappearing Lakes

At the request of a private land developer, the Michigan Department of Conservation (the prede *703 cessor of the Department of Natural Resources) issued a permit for the dredging of canals or channels in an area extending from Lake Orion southwestward. After the dredging, the water levels of Square Lake and Little Square Lake, both located just south of Lake Orion, dropped precipitously. Studies indicate that water loss in the Square Lakes was caused by interference with the subsurface water flow when the canals were dredged. The use of the Square Lakes for recreational and aesthetic purposes was destroyed, and plaintiffs, who own land adjoining the Square Lakes, brought an action claiming damage to health and property.

The state and its agencies possess absolute sovereign immunity pursuant to the second sentence of § 7 unless that immunity has been waived by the Legislature. The Legislature has not waived immunity for decisions granting or denying dredging permits. 64

Zavala

Jose Zavala was shot in front of the El Taurino Lounge. A fight had erupted outside the bar and, after a short period of time, Zavala was shot by one of the participants in the fight. After initially bringing an action against several of those involved in the fight, Zavala amended his complaint to add as defendants Sergeant Andrea Zinser, Officer Freida Harris, and the City of Detroit. Zavala alleged that at the time of the. incident, Zinser and Harris were sitting just a few feet away in a marked police car, that they saw the fight and *704 indicated to individuals requesting them to act that they would take effective police action, but that they failed to make their presence known to those who were fighting and failed to break up the disturbance, choosing instead to call and wait for back-up assistance.

The question presented with respect to the complaint against the City of Detroit is whether an officer’s decision to call and wait for back-up assistance rather than to intervene in a disturbance constitutes, in light of the factors discussed above, a "governmental function.” I would hold that it does.

First, a decision regarding how to handle an observed breach of the peace does not involve policy formulation and is not quasi-judicial in nature. This factor, then, weighs against immunity in the present case.

The second factor supports a finding of immunity. Zavala is complaining that the police officers failed to prevent the shooting that caused him injury. This case presents perhaps the archetypical example of a complaint relating to what the government did not do for the claimant. Professor Cooperrider observed in respect to the prevention of crime, that a decision that government should assume "a greater degree [of] the burdens of personal misfortune arising from its failure to shield individual citizens from harmful occurrences, such as crime and flood * * * belongs to the political rather than to the judicial process.” Cooperrider, supra, p 286. (Emphasis added.)

Third, a decision to await back-up assistance rather than act immediately to break up a disturbance does not have a common analogy in the private sector. Although there are some private security forces, their responsibilities do not often require them to stop a fight among a number of *705 individuals. In all events, the task of breaking up a fight and arresting those engaged in disorderly conduct — and thus the decision concerning the number of officers required to perform that task safely — is uniquely performed and accomplished by government. This factor therefore weighs in favor of immunity in this case.

On balance, the decision to request and await back-up assistance rather than act immediately to break up the fight was a "governmental function” for which the City, of Detroit is immune under the first sentence of § 7.

With respect to the individual defendants, Sergeant Zinser and Officer Harris were acting within the scope of their official function. Their responsibility as police officers was to enforce the law, and a decision to quell the disturbance by seeking back-up assistance from their fellow officers was well within the scope of that function.

The next consideration is whether Zinser and Harris were acting in good faith. The failure to intervene in a fight occurring a few feet away does not evidence recklessness or a corrupt or malicious purpose where the officers did act by requesting back-up assistance. The record as it now stands contains no allegations of bad faith on the part of officers Zinser and Harris. 65

The officers in this case, however, were not *706 exercising quasi-judicial or policy-making discretionary authority. This Court has held that although effecting an arrest requires the exercise of judgment, a police officer is not immune in an action alleging excessive force during an arrest. Sherbutte v Marine City, supra. Similarly, decisions by Zinser and Harris regarding whether to make an arrest or the number of officers necessary to accomplish an arrest required the exercise of their professional judgment, but did not require policy-making or quasi-judicial «decision-making to which official immunity attaches. Zinser and Harris do not have official immunity. The opinion of the Court does not reach the duty question, and therefore no opinion is expressed thereon. 66

Kavanagh, J., took no part in the decision of these cases.

In all these cases except Disappearing Lakes, the plaintiffs suffered a physical injury; other factors and considerations might be determinative where the alleged tortious conduct does not cause physical injury.

" '[Sovereign’ immunity and 'governmental’ immunity are not synonymous. True, they have been over the years used interchangeably in decisions, but a delineation may be helpful. Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State. The reason is the State is the only sovereignty in our system of government, except as the States delegated part of their implicit sovereignty to the federal government.” Myers v Genesee County Auditor, 375 Mich 1, 6 ; 133 NW2d 190 (1965) (opinion of O’Hara, J.) (emphasis in the original). See also 2 Harper & James, Torts, § 29.1; Littlejohn & DeMars, Governmental Immunity After Parker and Perry: The King Can Do Some Wrong, 1982 Det C L Rev 1, 3.

These three immunities have, at one time or another, been a part of the law of every state, see, e.g., Civil Actions Against State Government (Winborne ed, 1982). The highly formalistic traditional immunity doctrines, however, were difficult to apply and ran counter to the goals of the tort system as a whole: deterrence of wrongdoers and compensation of victims. See Smith, Municipal Tort Liability, 48 Mich L Rev 41. As a result, tort scholars criticized the traditional immunity doctrines. See Prosser, Torts (4th ed), § 131, p 984. That criticism had its effect in the courts in recent decades. See, e.g., id., pp 984-985 & fn 50.

MCL 691.1407; MSA 3.996(107).

See Thomas v Dep’t of State Highways, 398 Mich 1, 30 ; 247 NW2d 530 (1976) (Levin, J.).

Section 1 of the governmental tort liability act sets forth the following definitions:

"(a) 'Municipal corporation’ means any city, village, township or charter township, or any combination thereof, when acting jointly.

"(b) 'Political subdivision’ means any municipal corporation, county, township, charter township, school district, port district, or metropolitan district, or any combination thereof, when acting jointly, and any district or authority formed by 1 or more political subdivisions.

"(c) 'State’ means the state of Michigan and its agencies, departments, and commissions, and shall include every public university and college of the state, whether established as a constitutional corporation or otherwise.

"(d) 'Governmental agency’ means the state, political subdivisions, and municipal corporations as herein defined.” MCL 691.1401; MSA 3.996(101).

Historically, the doctrine of sovereign immunity appears to have its origins both in the ancient English belief that "the King can do no wrong” and in the notion that it was necessarily a contradiction of the King’s sovereignty to allow him to be sued as of right in his own courts. See, e.g., Borchard, Governmental Responsibility in Tort, 36 Yale L J 1 (1926); 3 Holdsworth, History of English Law (5th ed), pp 458-469.

It has never been clearly understood how this monarchistic doctrine came to be adopted in the American democracy. See Civil Actions Against State Government, fn 3 supra, § 2.5, p 17. Some have suggested that the precarious financial condition of the states during the years immediately after the Revolution played a part in the doctrine’s adoption in the states. See Prosser, fn 3 supra, § 131, p 975, fn 48; Gelhorn & Schenck, Tort Actions Against the Federal Government, 47 Col L Rev 722 (1947). Professor Kenneth Culp Davis, on the other hand, has termed the adoption of the doctrine in the United States a "misunderstanding.” 3 Davis, Administrative Law Treatise, § 25.01, pp 434-439. In 1821, Chief Justice John Marshall gave no reason when he declared that no action could be brought against the United *665 States without its consent. Cohens v Virginia, 19 (6 Wheat) US 264, 411-412; 5 L Ed 257 (1821).

Some cases assumed that the state and its agencies were immune when engaged in a governmental function. See, e.g., Mead v Public Service Comm, 303 Mich 168, 171 ; 5 NW2d 740 (1942); Manion v State Highway Comm’r, 303 Mich 1, 19 ; 5 NW2d 527 (1942); Robinson v Washtenaw Circuit Judge, 228 Mich 225 ; 199 NW 618 (1924). None of these cases, though, held or said that the state and its agencies were not immune when engaged in a non-governmental function; that question never arose because the Court in each case held that a governmental function did indeed exist. See Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 278, 281.

In Ferris v Detroit Bd of Ed, 122 Mich 315 ; 81 NW 98 (1899), and Pound v Garden City School Dist, 372 Mich 499 ; 127 NW2d 390 (1964) , school districts were held liable in tort where a school building was designed in such a way as to cause ice and snow to fall off of the roof and thereby cause injury outside the limits of the school’s premises. See Pound v Garden City School Dist, supra, p 502 (resting decision exclusively on the Ferris precedent). Although school districts have been deemed "state agencies” for some purposes, they have generally been held to have the governmental immunity of non-sovereign political units rather than the sovereign immunity of the state. See fn 55. Neither Ferris nor Pound considered the cases holding the state absolutely immune from action absent legislative waiver of immunity. See fn 9 and accompanying text.

Michigan State Bank v Hastings, 1 Doug 225, 236 (1844). See also Mead v Public Service Comm, 303 Mich 168, 173 ; 5 NW2d 740 (1942); Myers v Genesee County Auditor, 375 Mich 1, 6-9 ; 133 NW2d 190 (1965) (opinion of O’Hara, J.); Littlejohn & DeMars, fn 2 supra, p 3.

21 Michigan Law and Practice, Statutes, § 95, p 100. See also State ex rel Wayne County Prosecuting Attorney v Levenburg, 406 Mich 455 ; 280 NW2d 810 (1979); General Motors Corp v Erves (On Rehearing), 399 Mich 241 ; 249 NW2d 41 (1976); Hartwick v Muir, 338 Mich 624 ; 62 NW2d 596 (1954); Taylor v Auditor General, 360 Mich 146 ; 103 NW2d 769 (1960).

In McCann v State of Michigan, 398 Mich 65 ; 247 NW2d 521 (1976), it was held that employees of a mental hospital were not engaged in the exercise or discharge of a governmental function when they encouraged customers and advertisers to refuse to do business with plaintiff’s newspaper. Accordingly, the state was not statutorily immune pursuant to the first sentence of § 7. The defendants apparently did not raise — and the Court did not consider — the question whether, even if the function involved was not a governmental function, the state and its agencies were immune pursuant to the "aflirm[ance]” of common-law sovereign immunity "as it existed heretofore” in the second sentence of §7. Nor was there analysis or consideration of this question in this Court’s summary disposition of Wavro v Michigan, 407 Mich 891 ; 284 NW2d 125 (1979), citing McCann, supra, and a case involving a county, Lockaby v Wayne County, 406 Mich 65 ; 276 NW2d 1 (1979).

Hargrove v Town of Cocoa Beach, 96 So 2d 130 (Fla, 1957).

Molitor v Kaneland Community Unit Dist No 302, 18 Ill 2d 11; 163 NE2d 89 (1959).

Muskopf v Coming Hospital Dist, 55 Cal 2d 211; 11 Cal Rptr 89; 359 P2d 457 (1961).

See McDowell v State Highway Comm’r, 365 Mich 268 ; 112 NW2d 491 (1961); Sherbutte v Marine City, 374 Mich 48, 52-53 ; 130 NW2d 920 (1964).

In the years following the Williams decision, this Court said that a school district "as an agency of the State [is] clothed with the State’s immunity from liability.” Sayers v School Dist No 1, Fractional, 366 Mich 217, 219 ; 114 NW2d 191 (1962). See fn 55.

In Myers v Genesee County Auditor, 375 Mich 1 ; 133 NW2d 190 (1965) , and Keenan v Midland County, 377 Mich 57 ; 138 NW2d 759 (1966) , this Court abolished the governmental immunity of counties. But see Lewis v Genesee County, 370 Mich 110 ; 121 NW2d 417 (1963) (county can, in effect, be a state agency and therefore clothed with sovereign immunity).

1964 PA 170 , MCL 691.1401 et seq.; MSA 3.996(101) et seq.

The title of the act stated in relevant part as follows:

"AN ACT to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence * * (Emphasis added.)

In 1970, the Legislature amended the title to address the argument that § 7 as originally enacted was unconstitutional because it did not fall within the object embraced in the title of the act as required by Const 1963, art 4, §24. The potential constitutional infirmity arose because the title of the act limited the act’s purpose to granting governmental immunity for injuries "caused by negligence” where a governmental entity is engaged in a governmental function, but the first sentence of § 7 granted immunity from tort liability "in all cases” where a governmental entity is engaged in a governmental function. Since the first sentence of § 7 provided governmental immunity for torts other than those caused- by negligence (e.g., reckless torts, intentional torts, and strict liability torts), it created a broader and more inclusive immunity than was stated in the title.

Confronted with the choice of either broadening the title or narrowing the scope of immunity, the Legislature opted to broaden the title to encompass governmental immunity for torts other than those caused by negligence. See Littlejohn & DeMars, fn 2 supra, pp 5-6 and fn 66. The title of the act, as amended by 1970 PA 155 , now reads in pertinent part as follows:

*669 "AN ACT to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons * *

One year after the Legislature acted, this Court declared § 7 unconstitutional because of the title/object inconsistency. Maki v City of East Tawas, 385 Mich 151 ; 188 NW2d 593 (1971). Maki , however, had only a limited effect; it made the statutory immunity of § 7 unavailable to governmental entities in actions involving injuries suffered before August 1, 1970, the effective date of the amendment of the title.

Cooperrider, fn 8 supra, p 268. See also Thomas v Dep’t of State Highways, 398 Mich 1, 10 ; 247 NW2d 530 (1976); Maki v East Tawas, fn 13 supra, p 164 (Williams, J., dissenting); Littlejohn & DeMars, fn 2 supra, p 5.

See fn 9 and accompanying text.

Those sections of the statute that fall within the "[e]xcept as otherwise provided herein” proviso, by which the Legislature waived the state’s sovereign immunity, include MCL 691.1402; MSA 3.996(102), which renders the sovereign state and all non-sovereign political units liable for damages arising out of the failure to keep highways in "reasonable repair” and "in condition reasonably safe and fit for travel”; MCL 691.1405; MSA 3.996(105), which renders the sovereign state and all non-sovereign political units liable "for bodily injury and property damage resulting from the negligent operation * * * of a motor vehicle of which the governmental agency is owner”; MCL 691.1406; MSA 3.996(106), which renders the sovereign state and all non-sovereign political units liable for damages "resulting from a dangerous or defective condition of a public building”; and MCL 691.1413; MSA 3.996(113), which provides that the state’s sovereign immunity "shall not apply to actions to recover for * * * damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees.”

In Pittman v City of Taylor, 398 Mich 41 ; 247 NW2d 512 (1976), this Court abolished common-law sovereign immunity. Pittman was a negligence action against a municipal corporation, a board of education, and others for injuries suffered on April 24, 1969. Because the injuries were suffered before the effective date of the amendment of the title of the governmental tort liability act, see fn 17 supra, the claim was subject to common-law, rather than statutory, immunity. Because school districts had been held to be state agencies, see fn 15 supra; Pittman v City of Taylor, supra, pp 51-64 (Coleman, J., dissenting), and cases cited therein, the Pittman case involved the sovereign immunity of the state rather than the governmental immunity of non-sovereign political units. In Pittman , this Court abolished common-law sovereign immunity:

"[W]e hold that the traditional common-law judge-made immunity that the state and its instrumentalities heretofore enjoyed from its torts should be and it hereby is abrogated.

"The holding we announce today 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 governmental immunity had been made and preserved.” Id., pp 49-50.

*671 The Court thereby exercised its power to change the common-law rule, set forth in Hastings, Mead, and Myers (see fn 9), that the state was absolutely immune from tort liability unless the Legislature waived that sovereign immunity. See Myers v Genesee County Auditor, fn 15 supra, p 7.

Whether a particular activity was an immune function of government at common law may have depended less on the intrinsic characteristics of the activity than on the policy inclinations' of the court rendering the decision. As Dean Prosser has written, "[t]here is little that can be said about such distinctions except that they exist, that they are highly artificial, and that they make no great amount of sense. Obviously this is an area in which the law has sought in vain for some reasonable and logical compromise, and has ended with a pile of jackstraws.” Prosser, fn 3 supra, p 982.

A governmental unit was not engaged in a function of government, and was not immune, if the particular activity constituted a nuisance or trespass. See, e.g., Sheldon v Village of Kalamazoo, 24 Mich 383 (1872); Pennoyer v Saginaw, 8 Mich 534 (1860). Taken to its logical conclusion, however, such a doctrine would hold that a governmental entity is always outside of the scope of its authority whenever it commits a tortious act. The scope of governmental liability for a tortious nuisance or a tortious trespass should, arguably, be no different from, say, the scope of governmental liability for a tortious assault. As Dean Prosser has written, "[i]t seems reasonable to say that there is no sound argument behind the distinction itself, and that resort to the more or less undefined concept of nuisance is merely one method by which the courts have retreated from municipal nonliability.” Prosser, fn 3 supra, § 131, p 983.

A critical interpretation of the emergence in Michigan jurisprudence of the governmental immunity doctrine — and its governmental function test — in Michigan jurisprudence was offered by Professor Cooperrider, fn 8 supra, p 187:

"The doctrine of 'governmental immunity,’ as it has been known in recent years — that is, the rule that governmental entities are immune from tort liability for the acts of their employees whenever the injury-causing activity is 'governmental’ in nature or involves the performance of a 'governmental function’ — is not, so far as the law of Michigan is concerned, 'ancient.’ It did not exist in 1850 and therefore can scarcely 'have come to us as part of the common law’ or by inheritance from monarchs, absolute or otherwise. Rather it was *672 imported into the law of Michigan in the first two decades of the twentieth century by a generation of judges and lawyers who found it easier to read about the law in Judge Dillon’s treatise on municipal corporations than to track down their own legal heritage.”

By the late nineteenth century, though, Michigan courts were holding non-sovereign political units to be immune to the extent that they performed "governmental functions”:

"Thus, as of this decision day under settled law, the State and its immediate integral parts, enjoy absolute immunity from tort liability by reason of the negligent acts or omissions of its servants or agents, except as that liability has been statutorily modified. Over the years, by judicial construction, this 'sovereign’ immunity has been transmogrified into 'governmental’ immunity and made applicable to the 'inferior’ divisions of government, i.e., townships, school districts, villages, cities, and counties, but with an important distinction. These subdivisions of government enjoyed the immunity only when engaged in 'governmental’ as distinguished from 'proprietary’ functions.” Myers v Genesee County Auditor, fn 15 supra, pp 8-9.

For a discussion of the adoption by other states of the distinction between “governmental” and "proprietary” functions, see generally Barnett, The Foundations of the Distinction Between Public and Private Functions in Respect to the Common-Law Tort Liability of Municipal Corporations, 16 Or L Rev 250 (1937).

Historically, the very establishment of government was premised on the notion that government performs functions that are in the "public interest” and for the "common good of all.” See Rousseau, *673 The Social Contract (Cranston translation) (Middlesex: Penguin Books, 1968); Wood, The Creation of the American Republic, 1776-1787 (New York: W. W. Norton & Co., 1969). In that view, the "common good of all” test would have the effect of immunizing all government activity because all government activity is in some sense directed toward the "public good.” More recently, pluralist theorists have argued that no specific government action is for the "common good of all” since all decisions benefit specific , interest groups. See, e.g., Dahl & Linblom, Politics, Economics, and Welfare (Chicago: Univ. of Chicago Press, 1976). In that view, the "common good of all” test would have the effect of eliminating governmental immunity because no government activity is truly directed toward the "public good.”

This Justice Moody perceived six years ago:

"To delineate a complete and balanced definition of governmental *674 function within a simplistic format would be presumptuous.” Parker v Highland Park, supra, p 200 (Moody, J., concurring).

The question in every case is whether the specific activity complained of constitutes, in light of the factors discussed below, a "governmental function.” Professor Cooperrider observed:

"The word 'function’ has been used in a departmental sense: The 'function’ that is characterized as 'governmental’ usually encompasses all the activities of the police and fire departments, road-building, parks, and schools, except to the extent that a department has involved itself in an isolated profit-making action. * * * [This usage is not] necessary. The search now is for reasons why a particular act or omission that would cast liability upon another entity should not have that effect if a governmental unit is the defendant. It would seem that the answer should be found in the nature of the act or omission, rather than in the over-all public or governmental objectives of the department by which the actor is employed, for, as Justice Edwards pointed out in Richards v Birmingham School District, [ 348 Mich 490, 521 ; 83 NW2d 643 (1957) (Edwards, J., dissenting),] in one sense all functions performed by governmental units are 'governmental.’ ” Cooperrider, fn 8 supra, pp 282-283 (emphasis in the original).

"The test then, of 'governmental function’ for purposes of the immunity statute, must be phrased in terms of the nature of the specifc function." Thomas v Dep’t of State Highways, supra, p 21 (Kavanagh, C.J., and Fitzgerald, J., dissenting) (emphasis added).

"We look to the facts pleaded in the complaint to determine whether the specifc tortious activity alleged against the state or its agencies is within the protection of the immunity doctrine.” McCann v Michigan, supra, p 80 (opinion of Ryan, J.) (emphasis added).

"We agree that the question of governmental immunity should not be considered because the complained-of activity does not fall within 'the exercise or discharge or a governmental function.’ ” McCann v Michigan, supra, p 83 (opinion of Fitzgerald, J.) (emphasis added).

*675 "In short, the test of whether a governmental agency can claim immunity under the statute is whether the speciñc activity alleged against the governmental defendant falls within 'the exercise or discharge of a governmental function.’ ” Galli v Kirkeby, supra, p 536 (opinion of Williams, J.) (emphasis added).

Almost every jurisdiction has held that judicial and legislative activities are absolutely immune. See, e.g., Supreme Court of Virginia v Consumers Union, 446 US 719 ; 100 S Ct 1967 ; 64 L Ed 2d 641 (1980); Imbler v Pachtman, 424 US 409 ; 96 S Ct 984 ; 47 L Ed 2d 128 (1976); Pierson v Ray, 386 US 547 ; 87 S Ct 1213 ; 18 L Ed 2d 288 (1967); Tenney v Brandhove, 341 US 367 ; 71 S Ct 783 ; 95 L Ed 1019 (1951).

With respect to judicial activities, see also 63A Am Jur 2d, Public Officers and Employees, § 358.

With respect to legislative activities, see also Russell v Tate, 52 Ark 541 ; 13 SW 130 (1890); North Atlanta v Cook, 219 Ga 316; 133 SE2d 585 (1963); McHenry v Sneer, 56 Iowa 649 ; 10 NW 234 (1881); City of Newport v McLane, 256 Ky 803; 77 SW2d 27 (1934); Commonwealth v Kenneday, 118 Ky 618; 82 SW 237 (1904); Coffin v Coffin, 4 Mass 1 (1808); Pawlowski v Jenks, 115 Mich 275 ; 73 NW 238 (1897); Jones v Loving, 55 Miss 109 (1877); State ex rel Oklahoma Bar Ass’n v Nix, 295 P2d 286 (Okla, 1956).

The reasons for legislative and judicial immunity are twofold. First, the burden and risk of litigation might deter optimal decision-making. Second, it is virtually impossible to formulate standards for evaluating legislative or judicial decisions.

The same reasoning justifies immunity for policy-making and quasi-judicial activities undertaken by other public officers or employees. See Supreme Court of Virginia v Consumers Union, supra.

This factor does not signal adoption of the common-law distinction between' active and passive negligence as relevant to a resolution of the "governmental function” question.

In many such instances a court might find that no duty of care was owed by government and thus government would not be liable in tort. Professor Cooperrider stated:

"If the governmental-function defense did not foreclose these questions, the remaining control would lie in judicial manipulation of the duty question, which would mean that in those instances in which he permitted the claim to go to the jury, the judge would frequently be permitting the jury to substitute its judgment concerning the extent of public services and their deployment for that of the political and administrative authorities to whom such judgments belong.” Cooperrider, supra, p 286.

Justice Moody defined a governmental function as an activity that, "due to its unique character or governmental mandate, can be effectively accomplished only by the government” (emphasis added). Parker v Highland Park, supra (Moody, J., concurring).

Traditionally, the law drew no distinction between public officers *678 and employees and ordinary citizens when determining liability for tortious conduct. See Civil Actions Against State Government, fn 3 supra, § 6.2, p 230. Recently, however, courts have moved towards an increased immunity for public officers and employees. See Davis, fn 7 supra, § 26.01.

Smith v Cooper, 256 Or 485 ; 475 P2d 78 ; 45 ALR3d 857 (1970); Lister v Board of Regents of the University of Wisconsin, 72 Wis 2d 282 ; 240 NW2d 610 (1976).

Official immunity is founded on considerations of public policy. See Lister, supra; Davis, fn 7 supra, § 26.01; Prosser, fn 3 supra, § 132, p 987. "These considerations have been variously identified in the cases as follows: (1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office.” Lister, supra, p 299 .

The text of § 7 is set forth ante, pp 662-663.

"Sec. 8. (1) Whenever a claim is made or a civil action is commenced against an officer or employee of a governmental agency for *679 injuries to persons or property caused by negligence of the officer or employee while in the course of employment and while acting within the scope of his or her authority, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer or employee as to the claim and to appear for and represent the officer or employee in the action. The governmental agency may compromise, settle, and pay the claim before or after the commencement of a civil action. Whenever a judgment for damages is awarded against an officer or employee of a governmental agency as a result of a civil action for personal injuries or property damage caused by the officer or employee while in the course of employment and while acting within the scope of his or her authority, the governmental agency may idemnify [sic] the officer or employee or pay, settle, or compromise the judgment.

"(2) When a criminal action is commenced against an officer or employee of a governmental agency based upon the conduct of the officer or employee in the course of employment, if the employee or officer had a reasonable basis for believing that he or she was acting within the scope of his or her authority at the time of the alleged conduct, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer or employee as to the action, and to appear for and represent the officer or employee in the action. An officer or employee who has incurred legal expenses after December 31, 1975 for conduct prescribed in this subsection may obtain reimbursement for those expenses under this subsection.

"(3) This section shall not impose any liability on a governmental agency.” MCL 691.1408; MSA 3.996(108).

See generally Bush v Oscoda Area Schools, 405 Mich 716 ; 275 NW2d 268 (1979).

Prosser, fn 3 supra, § 132, p 987.

See fn 28.

This rule is based on public policy, and almost every jurisdiction has reached this result:

"On this basis judges always have been accorded complete immunity for their judicial acts within the jurisdiction of courts of justice, even when their conduct is corrupt, or malicious and intended to do injury. Even though a cynic might be forgiven for pointing out just who made this rule, the reason is of course not a desire to protect the corrupt, malicious or misbehaving official, but rather the necessity of preserving an independent judiciary, who will not be deterred by the fear of vexatious suits and personal liability, together with the manifest unfairness of placing any man in a position where his judgment is required, and at the same time holding him responsible according to the judgment of others. The same absolute protection extends to members of the state and national legislatures, as well as inferior legislative bodies, such as municipal councils * * Prosser, fn 3 supra, § 132, pp 987-988 (and cases cited therein).

The Court today does not decide to what extent prosecutors are immune.

Prosser, fn 3 supra, § 132, pp 987-988.

See Civil Actions Against State Government, fn 3 supra, §§ 6.14, 6.19, pp 246-248, 255-256, and cases cited therein.

A majority of courts have held that all members of the executive branch are liable for acts undertaken with a corrupt or malicious purpose, or in a wanton, willful, or reckless manner. See, e.g., Shellbume, Inc v Roberts, 238 A2d 331 (Del Super, 1967); Simon v Heald, 359 A2d 666 (Del, 1976); Hennessy v Webb, 245 Ga 329; 264 SE2d 878 (1980); Kajiya v Dep’t of Water Supply, 629 P2d 635 (Hawaii App, 1981); Vander Linden v Crews, 205 NW2d 686 (Iowa, 1973); Neal v Donahue, 611 P2d 1125 (Okla, 1980); Yotvat v Roth, 95 Wis 2d 357 ; 290 NW2d 524 (1980).

See, e.g., Scheuer v Rhodes, 416 US 232 ; 94 S Ct 1683 ; 40 L Ed 2d 90 (1974); Mosher v Saalfeld, 589 F2d 438 (CA 9, 1978); Slavin v Curry, 574 F2d 1256 (CA 5, 1978).

See, e.g., Miree v United States, 490 F Supp 768 (ND Ga, 1980).

See, e.g., Larson v Braham Independent School Dist No 314, 289 NW2d 112 (Minn, 1980).

Ross v Consumers Power Co, 93 Mich App 687, 697 ; 287 NW2d 319 (1979).

We express no opinion whether the district owed a duty to Consumers under general tort principles.

First, the hiring decision does not involve policy formulation and is not quasi-judicial in nature. Traditional tort standards are readily applicable to determine whether there was negligence in the hiring of a given contractor. The hiring activity is operational in nature and thus this factor weighs against immunity. Second, the nature of a district’s hiring activity is such that it does not represent a failure to prevent harm from a source not subject to governmental control. Third, the hiring decision has a common analogy in the private sector. Hiring decisions in general, and the hiring of contractors for construction work in particular, occur frequently in the private sector; they are not primarily performed and accomplished by the government. The district is not immune under § 7 for its hiring of Dunigan Brothers.

Willis v Nienow, 113 Mich App 30, 32-33 ; 317 NW2d 273 (1982).

Because all three officers were acting within the scope of their employment, they may be eligible for agency reimbursement, pursuant to § 8(1). See fn 35.

MCL 330.1700 et seq.; MSA 14.800(700) et seq.

MCL 330.1722; MSA 14.800(722).

We agree with the conclusion of the Court of Appeals in Rocco v Dep’t of Mental Health, 114 Mich App 792, 798-799 ; 319 NW2d 674 (1982), one of the companion cases decided today:

"The [Mental Health Code] focuses on the duty of the health care facility towards its patients. None of the sections discusses the rights and responsibilities between patients. The statute’s primary purpose is to protect the patient from certain abuses by the mental health facility or its staff. When this purpose is read into MCL 330.1722; MSA 14.800(722), it is clear that the provision was meant to prevent the staff of a mental health care facility from abusing the patients in its care. It was not the intention of the Legislature to abolish governmental immunity in those cases where one patient attacks another.”

No opinion is expressed whether the Legislature, by providing that a recipient of mental health services who is abused by the staff of a mental health facility is entitled to "appropriate civil relief,” MCL 330.1722(4); MSA 14.800(722)(d), thereby waived the state’s sovereign immunity for torts allegedly committed against mental health patients by the staff of a mental health facility.

See Hersey Gravel Co v State Highway Dep’t, 305 Mich 333, 339 ; 9 NW2d 567 (1943); WH Knapp Co v Highway Dep’t, 311 Mich 186, 188 ; 18 NW2d 421 (1945); Zynda v Aeronautics Comm, 372 Mich 285, 287 ; 125 NW2d 858 (1964).

Denying immunity for breach of contract by a governmental entity will not enable plaintiffs generally to avoid the impact of § 7 by simply labeling their complaints "contract” rather than "tort.” An implied contract may be found where one engages or accepts the beneficial services of another for which compensation is customarily made and actually anticipated. Miller v Stevens, 224 Mich 626, 632 ; 195 NW 481 (1923). Where compensation has been neither requested, agreed to, nor provided for services to be rendered by the government, generally there will be no cause of action for breach of implied contract.

See fn 15 and accompanying text.

Early decisions of this Court involving school districts treated them as municipal corporations. See, e.g., Marathon Twp School Dist No 4 v Gage, 39 Mich 484, 486 (1878); Seeley v Bd of Ed, 39 Mich 486 (1876); Belles v Burr, 76 Mich 1 ; 43 NW 24 (1889).

The first case to consider the scope of a school district’s tort liability was Ferris v Detroit Bd of Ed, fn 8 supra. In that case, the plaintiff was injured when he slipped on ice and snow that had fallen off a school roof. In finding that the school board was liable in tort, the Court treated it as a municipal corporation, not as an agent of the state:

"It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right *696 in this contention. * * * It has been many times held in this court that a city has no more right to invade, or cause the invasion of, private property, than an individual.” Id., p 318. (Emphasis added.)

In Whitehead v Detroit Bd of Ed, 139 Mich 490 ; 102 NW 1028 (1905), the plaintiffs action to recover for personal injuries suffered while he was employed by the defendant school district was dismissed by the trial court because "in the State of Michigan municipal corporations are not liable for the negligence of their servants when in the exercise of duties in connection with the governmental capacity of the corporation, unless made so by statute.” Id., p 492. (Emphasis added.) The trial judge based his decision on Nicholson v Detroit, 129 Mich 246 ; 88 NW 695 (1902), where a city successfully demurred to an action arising out of negligent conduct by the city’s board of health. This Court in Whitehead affirmed the trial judge’s result and his conclusion that Whitehead "could not be distinguished in principle from the case of Nicholson * * Whitehead v Detroit Bd of Ed, supra, p 494.

In Daniels v Grand Rapids Bd of Ed, 191 Mich 339 ; 158 NW 23 (1916), this Court rejected the conclusion in Whitehead that a school district should be treated as a municipal corporation for purposes of immunity from tort liability. A school district, the Court held, is not a municipal corporation but rather a "quasi corporation”:

"Although invested with certain corporate characteristics to more efficiently serve the purpose for which they are created, school districts are not municipalities, nor public corporations in the full sense, but because of their very restricted powers are distinguished and recognized as quasi corporations.” Id., p 347. (Emphasis in the original.)

The Court in Daniels noted, however, that the question whether a school district should be labeled a quasi corporation or a municipal corporation was not important in that case, because the same immunity from tort liability attached to each.

School districts thus had the governmental immunity of municipalities and other non-sovereign political units rather than the absolute sovereign immunity of the state. It appears that the concept that a school district is a state agency, found in Sayers v School Dist No 1, Fractional, supra, can be traced to Attorney General ex rel Kies v Lowrey, 131 Mich 639 ; 92 NW 289 (1902). That case, however, was a quo warranto proceeding challenging the right of certain persons to hold the office of trustee of a newly created school district. The Court’s statement that "[t]he school district is a State agency [and] is of legislative creation” provided a rationale for its conclusion that the Legislature may fix, and change, school district boundaries. Id., pp 644-647. Lowrey thus was not a tort action and had no bearing on whether school districts have governmental immunity and, if so, the immunity of non-sovereign political units or the sovereign immunity of the state. See Ferris, supra, Whitehead, supra, and Daniels, supra.

See fn 21.

See fn 6.

See fn 6.

The act defines the term "state”:

" 'State’ means the state of Michigan and its agencies, departments, and commissions, and shall include every public university and college of the state, whether established as a constitutional corporation or otherwise.” See fn 6.

The inclusion of "every public university and college of the state” within the statutory definition of "state” also suggests that school districts operating public elementary and secondary schools are not within the statutory definition of "state.”

Regulski argues that because the school district sells houses constructed by the building trades class at market value, it is engaged in a proprietary function for which immunity is waived by § 13 of the act (MCL 691.Í413; MSA 3.996[113]). This waiver of immunity, however, applies only to the state:

"The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined.” (Emphasis added.)

Nevertheless, since a school district is not a state agency (see fns 15 and 55 and accompanying text), and other units of government are immune only when engaged in the exercise or discharge of a governmental function, § 13 is not determinative. A proprietary function is not a governmental function. In all events, since teaching and supervision is not a governmental function, Regulski’s cause does not depend on characterizing the activity as a proprietary function.

Trezzi also alleges that the defendants failed "to properly carry out its inspection, counseling and safety measures in regard to '911’ calls,” and that the 911 system constitutes "a complete fraud upon the public.”

Tort cases concerning failures to follow preexisting guidelines are not analogous.

This is not a case in which a 911 operator erred in taking down an address from the caller, or in which the address is recorded correctly but the dispatcher nevertheless sends a police vehicle to the wrong location. Nor is this a case in which, say, a paramedic properly dispatched through the 911 system negligently treats the sick or injured victim. Cf. DeLong v Erie County, 89 AD2d 376 ; 455 NYS2d 887 (1982) (operator wrote down "219 Victoria” when 911 caller had given address as "319 Victoria,” and dispatcher sent police vehicle to "Victoria Avenue” in Buffalo when caller was located on "Victoria Boulevard” in the suburb of Kenmore).

The Court in Gerzeski v Highway Dep’t, 403 Mich 149 ; 268 NW2d 525 (1978), did not appear to have considered the common-law rule, "affirmed” by the second sentence of § 7, that the state is absolutely immune from tort liability except to the extent that immunity has been waived by the Legislature.

jn granting the officers’ motion for summary judgment, the trial judge concluded "that there were no allegations as to breach of good faith; there was no allegation of intentional tort; there was no allegation of police officers acting outside the scope of their official duties; nor that they acted in bad faith.”

Zavala sought to amend his complaint to allege that the officers refused to break up the fight because Zavala is a Mexican man. One of the two women officers is white and the other is black. The judge did not allow the amendment; the Court of Appeals remanded the case for supplementation of the record to disclose the findings underlying this ruling. Zavala v Zinser, 123 Mich App 352 ; 333 NW2d 278 (1983). Our decision should affirm the Court of Appeals in that regard.

The Court of Appeals found that Zinser and Harris were immune, but added that "[i]n essence, [Zavala] alleged no more than that defendant police officers had breached their duty to preserve the peace. * * * In this case, no facts were pleaded which showed a duty-owed to these plaintiffs.” Zavala v Zinser, fn 65 supra, p 356. (Emphasis supplied.) Since the opinion of the Court does not address the duty question, I express no opinion on the question whether a police officer has a tort law duty to protect a person observed being assaulted and, for failure to discharge that duty, is subject to tort liability. See also fn 45.