
    SZABO v METROPOLITAN REGIONAL PSYCHIATRIC HOSPITAL
    Docket No. 100600.
    Submitted April 8, 1988, at Detroit.
    Decided August 31, 1988.
    Edward Szabo, individually and as administrator of the estate of Josephine Szabo, brought in Wayne Circuit Court a negligence and malpractice action against Wayne County General Hospital, Metropolitan Regional Psychiatric Hospital and H. Sanders. In his September, 1979, complaint, plaintiff averred that defendant Wayne County General Hospital "was both owned and operated by Wayne County, at all pertinent times herein.” Subsequent to the January 22, 1985, decisional date of Ross v Consumers Power Co (On Rehearing), 420 Mich 567 (1984), defendant Wayne County General Hospital moved for summary disposition on the basis of governmental immunity. Plaintiff argued that the failure of the county hospital to raise governmental immunity prior to the decisional date of Ross precluded any subsequent raising of governmental immunity. The trial court, Richard C. Kaufman, J., denied defendant county hospital’s motion. Defendant Wayne County General Hospital appealed on leave granted.
    The Court of Appeals held:
    
    Governmental immunity of a governmental entity is not an affirmative defense which must be raised in the first responsive pleading. Since plaintiff acknowledged in his complaint that defendant Wayne County General Hospital was owned and operated by Wayne County and pled no facts in avoidance of governmental immunity, defendant county hospital properly could seek summary disposition on the basis of governmental immunity at any time, the issue of governmental immunity having already been raised by plaintiff’s complaint.
    Reversed.
    References
    Am Jur 2d, Hospitals and Asylums § 2.
    Am Jur 2d, Municipal, County, School, and State Tort Liability §§ 87, 661 et seq.
    
    Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital. 25 ALR2d 203.
    
      Governmental Immunity — Pleading — Hospitals.
    The failure of a publicly owned hospital to raise the issue of governmental immunity prior to the decisional date of Ross v Consumers Power Co (On Rehearing), 420 Mich 567 (1984), does not preclude such hospital from moving for summary disposition on the basis of governmental immunity where the plaintiff in the complaint acknowledged the hospital’s status as a public entity and failed to plead facts in avoidance of governmental immunity.
    
      Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw), for plaintiffs.
    
      Samuel A. Turner, Corporation Counsel, and Glen H. Downs, Deputy Corporation Counsel, for Wayne County General Hospital.
    Before: Holbrook, Jr., P.J., and Mackenzie and N. A. Baguley, JJ.
    
      
      
         Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

Defendant Wayne County General Hospital (hereinafter defendant) appeals by leave for delayed appeal granted from an order denying its motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). We reverse.

Plaintiffs decedent died at defendant hospital in 1979. In September, 1979, plaintiff filed a complaint against defendant and others alleging that the death was, in relevant part, "a result of the negligence and/or malpractice of Defendant . . . by and through its agents, servants and/or employees”. The complaint also alleged that "the Defendant herein, Wayne County General Hospital, was both owned and operated by Wayne County, at all pertinent times herein.”

Defendant in 1986 moved for summary disposition, claiming that it was immune from liability under Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), and Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986). Plaintiff, on the other hand, maintained that, because defendant had not raised the issue of governmental immunity prior to January 22, 1985, the date of the Ross decision, under Hyde governmental immunity was not available to defendant. Ultimately the trial court agreed with plaintiff and denied defendant’s motion, apparently for the reason that defendant failed to raise the governmental immunity defense in a timely fashion.

The parties seem to agree that defendant would be protected by governmental immunity under Ross if, under the rules of retroactivity enunciated in Hyde, Ross is applicable to this case. In Hyde, the Supreme Court stated:

We hold that the rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved. [426 Mich at 230.]

Later, in clarification, when discussing the facts of one of the consolidated cases the Hyde Court noted:

This [a post-Ross motion for summary disposition] was the first time that the pcha had raised the "defense” of governmental immunity. However, the pcha’s failure to raise the issue in its first responsive pleading did not waive it. See n 35. Plaintiffs complaint, filed prior to Ross, contained sufficient facts to raise a governmental immunity issue, or more specifically, a lack thereof. The complaint indicated that the pcha operated a public general hospital, which was not entitled to immunity from tort liability pursuant to Parker. Moreover, paragraph two alleged that the pcha was a profit-making institution. This allegation was sufficient to invoke the statutory "proprietary function” exception. [426 Mich 236, n 7.]

Applying an analogous analysis to the present case, defendant claims that plaintiffs complaint, in stating that "defendant, Wayne County General Hospital, was both owned and operated by Wayne County, at all pertinent times herein,” sufficiently raised the issue of governmental immunity and that defendant need not have pled governmental immunity in its answer. Plaintiff, in opposition, argues that defendant must have claimed governmental immunity or an affirmative challenge to the applicability of governmental immunity must be raised by plaintiff in order to properly "raise and preserve the issue.”

We agree with defendant. The clear import of Hyde, footnote 7, is that defendant’s failure to raise the governmental immunity "defense” in a pre-Ross pleading did not constitute a waiver, since plaintiffs complaint alleged sufficient facts to raise the issue. Immunity of a governmental entity is not an affirmative defense, so that defendant was not constrained to raise the issue in its first responsive pleading. See Canon v Thumudo, 430 Mich 326, 344-345; 422 NW2d 688 (1988). Plaintiffs pre-Ross complaint acknowledged defendant’s status as a governmental entity. The fact that plaintiff acknowledged defendant’s status as a public general hospital in its pleadings and failed to plead facts in avoidance of governmental immunity, entitled defendant to summary disposition on the basis that it was protected by governmental immunity.

Reversed.  