The Court, The Legislature, and Governmental Tort Liability in Michigan

In 1961, when Justice Edwards of the Michigan supreme court said, “From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan,” he went on to say that he was eliminating from the law of Michigan “an ancient rule inherited from the days of absolute monarchy,” a “whim of long-dead kings.” Justice Carr, dissenting, agreed that the doctrine in question “came to us as a part of the common law,” for which reason he thought it was protected by the reception clause of the Constitution of 1850 from the overruling action of the court. If the learned justices had looked more closely, they would have discovered that their statements were not historically accurate. 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 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. The instruments with which the justices of the Michigan supreme court in its salad days operated upon problems of municipal tort liability were products of their own environment and experience, bore little resemblance to the blunt instrument of later years–“governmental function”– and had almost nothing to do with the divine right of kings.