Premises liability, gross negligence, & nuisance claims against a county; Governmental immunity; The Governmental Tort Liability Act (GTLA); Whether operation of a festival was a “governmental function” (MCL 691.1401(b)); Ross v Consumers Power Co; Herman v Detroit; Authorization for counties to “operate a system of public recreation” & “maintain land, buildings, or other recreational facilities” (MCL 123.51); Comparing Richardson v Jackson Cnty; Effect of a claim a governmental agency was grossly negligent; Yoches v City of Dearborn

Holding that defendant-county “was engaged in a governmental function by operating the Jazz on the River event” and that no exception to governmental immunity applied, the court reversed the order denying defendant summary disposition based on governmental immunity, and remanded. Plaintiff was injured at the Jazz on the River festival, and asserted premises liability, gross negligence, and nuisance claims against defendant. In denying summary disposition, “the trial court ruled that defendant was not immune from plaintiff’s claims because operating Jazz on the River did not constitute a governmental function.” The court disagreed, finding that the trial court applied an incorrect legal test. In Ross, the Michigan Supreme Court held that “‘a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.’” The court noted that this “language is mirrored in the current GTLA.” Applying that definition, it held that “the Jazz on the River event was a governmental function, because it was authorized under Michigan law. ‘A determination of whether an activity was a governmental function must focus on the general activity and not the specific conduct involved at the time of the tort.’” The court noted that “MCL 123.51 authorizes counties to ‘operate a system of public recreation’ and ‘equip and maintain land, buildings, or other recreational facilities.’” And the Supreme Court in Richardson “relied on the same authorization to hold a county immune from a negligence claim after the decedent drowned in a public swimming area.” The court concluded that, as in that case, because “MCL 123.51 authorizes defendant to operate recreational events such as Jazz on the River, that event was a governmental function.” It rejected plaintiff’s assertion that, “even if the operation of Jazz on the River constitutes a governmental function, defendant is not immune from liability for its gross negligence.” Pursuant to Yoches, under the unambiguous language of MCL 691.1407(1), “a plaintiff does not eliminate a governmental agency’s immunity by claiming the agency was grossly negligent.” Plaintiff failed to name any of defendant’s employees “and did not allege that certain employees were grossly negligent. [Her] challenge to defendant’s immunity based on its alleged gross negligence lacks merit.”