Opinion
Docket No. 109324.
Decided January 17, 1989. Leave to appeal granted, granted, 432 Mich. ___.
Mark T. Light Jan Paul Benedict, for plaintiffs.
Stanton, Bullen, Nelson, Moilanen Klaasen, P.C. (by Charles A. Nelson), for defendant.
Before: CYNAR, P.J., and MacKENZIE and WAHLS, JJ.
ON REMAND
Plaintiffs appealed as of right from an April 12, 1985, judgment of the circuit court granting the defendant's motion for summary judgment based on governmental immunity.
The Court of Appeals in its opinion of June 2, 1986, concluded that the plaintiffs had stated a claim upon which relief could be granted and reversed the grant of summary judgment in favor of defendant. This Court concluded that plaintiffs had stated a claim of intentional nuisance which avoided the defense of governmental immunity. Additionally, this Court concluded that plaintiffs' allegations of wilful and wanton misconduct were sufficient to remove this case from the scope of the recreational use act. This Court remanded the case for further proceedings consistent with its opinion. Garcia v City of Jackson, 152 Mich. App. 254; 393 N.W.2d 599 (1986). Defendant filed an application for leave to appeal with the Supreme Court.
The Supreme Court, in its order of August 25, 1986, stated that it had considered the certification by the Court of Appeals pursuant to Administrative Order 1984-2 that the decision in the instant case is in conflict with its decisions in Ford v Detroit, 91 Mich. App. 333; 283 N.W.2d 739 (1979), and Furness v Public Service Comm, 100 Mich. App. 365; 299 N.W.2d 35 (1980), but ordered that the accompanying application for leave to appeal was held in abeyance pending the decision in Rushing v Wayne Co (Docket No. 74724), Hadfield v Oakland Co Drain Comm'r (Docket No. 75494), Veeneman v State of Michigan, (Docket No. 76815), Landry v Detroit (Docket No. 77011), and McCaul v Village of Lake Odessa (Docket No. 78233). The decisions in those cases having been issued on March 29, 1988, in Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139; 422 N.W.2d 205 (1988), the application was again considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the judgment of the Court of Appeals was vacated and the case was remanded to this Court for reconsideration in light of Hadfield. 430 Mich. 877 (1988).
In its original opinion, this Court noted that plaintiffs appealed the trial court's finding that plaintiffs had failed to plead an intentional nuisance. Plaintiffs claimed that defendant intentionally created and maintained a structure that presented a danger to the public. The complaint further alleged that defendant knew of the specific danger since another boy had previously drowned in the vicinity of the box section and members of the public petitioned defendant to improve the dam. Plaintiffs cited several omissions on the part of defendant, including the failure to erect a grating over the conduit's opening, to provide proper warnings, and to implement safety regulations. The Court of Appeals concluded that the elements of intentional nuisance were sufficiently stated by the plaintiffs to avoid the defense of governmental immunity. Further, plaintiffs' allegations of wilful and wanton misconduct, if proved, would remove this case from the scope of the recreational use act.
Before BRONSON, P.J., and R.B. BURNS and R.C. KAUFMAN, JJ.
It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadfield, which is the last word on the matter, the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception to governmental immunity so as to establish any new binding precedent for future cases. There was a majority for the result only. Negri v Slotkin, 397 Mich. 105; 244 N.W.2d 98 (1976); People v Mitchell, 428 Mich. 364; 408 N.W.2d 798 (1987); Li v Wong (On Remand), 170 Mich. App. 256; 428 N.W.2d 36 (1988).
Further, the result and the language in Burnett v City of Adrian, 414 Mich. 448; 326 N.W.2d 810 (1982), are strongly supportive of the conclusion that a case of wilful and wanton misconduct has been made out under the alleged facts in the case before us.
After much consideration, we reverse the trial court's dismissal of the intentional nuisance and wilful and wanton misconduct claims and remand to the trial court for further proceedings.
Reversed and remanded.
WAHLS, J., concurred.
This nuisance action arises out of the drowning of Javier Garcia near the Holton Dam, located in defendant City of Jackson. In a previous opinion, this Court held that plaintiff's claim was not barred by governmental immunity. Garcia v City of Jackson, 152 Mich. App. 254; 393 N.W.2d 599 (1986). The case is now on remand to this Court for reconsideration in light of Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139; 422 N.W.2d 205 (1988). While the Hadfield Court failed to produce a majority opinion binding on this Court, see Li v Wong (On Remand), 170 Mich. App. 256; 428 N.W.2d 36 (1988), Hadfield nonetheless stands as persuasive authority. Contrary to the majority opinion, I interpret the Court's remand order as an express directive to this Court to consider this case in light of the Hadfield plurality views. Furthermore, I conclude that, under Hadfield, plaintiffs' nuisance claim is barred by governmental immunity.
Plaintiffs, in bringing a tort action against a governmental agency, bear the burden of pleading facts in their complaint which would justify a finding that recovery is not barred by the governmental immunity act. Hyde v University of Michigan Regents, 426 Mich. 223, 261; 393 N.W.2d 847 (1986). This may be accomplished by stating a claim which fits into one of the four statutory exceptions included within the act, or by pleading facts which demonstrate that the tort occurred during the exercise or discharge of a nongovernmental or proprietary function. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 621, n 34; 363 N.W.2d 641 (1984). In Hadfield, all participating justices agreed that pleading in avoidance of immunity may also be accomplished by stating a claim which falls within the judicially created nuisance exception to governmental immunity, although they disagreed upon the scope of the nuisance exception. See generally 430 Mich. 145 (opinion of BRICKLEY, J., RILEY, C.J., and CAVANAGH, J., concurring), 430 Mich. 204-205 (opinion of BOYLE, J.), 430 Mich. 209 (opinion of LEVIN, J.), and 430 Mich. 213 (opinion of ARCHER, J.). In this case, having failed to plead a governmental activity falling within one of the statutory exceptions or which is proprietary or nongovernmental, plaintiffs must have pled a proper nuisance claim in order to survive summary disposition.
In Hadfield, supra, a plurality of the Court concluded that the scope of the nuisance exception to governmental immunity is limited to instances of "trespass-nuisance." Trespass-nuisance is defined as "trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage." 430 Mich. 169 (opinion of BRICKLEY, J.).
Plaintiffs in the instant case have clearly failed to plead trespass-nuisance. Plaintiffs' claim is that defendant failed to erect a grating over the dam's "box section" conduit opening, failed to provide proper warnings, and failed to implement safety regulations, which omissions created a structure dangerous to the public. Certainly, no trespass or intruding nuisance was pled. There is no allegation of physical invasion of private property, nor was there alleged interference with the use and enjoyment of plaintiffs' or plaintiffs' decedent's land.
Another Hadfield plurality concluded that the scope of the nuisance exception to governmental immunity includes nuisances per se. See 430 Mich. 207 (opinion of BOYLE, J.), 430 Mich. 209 (opinion of LEVIN, J.), and 430 Mich. 213 (opinion of ARCHER, J.). Nuisance per se is defined as an activity or condition which constitutes a nuisance without regard to the care with which it is conducted or the circumstances under which it exists. See Bluemer v Saginaw Central Oil Gas Service, Inc, 356 Mich. 399, 411; 97 N.W.2d 90 (1959), cited at 430 Mich. 207 (opinion of BOYLE, J.). Nuisances per se do not arise out of negligent conduct, but from inherent danger even under the best of care. See 430 Mich. 208 (opinion of BOYLE, J.)
I agree with the concurrence to this Court's previous opinion that plaintiffs have pled an intentional nuisance in fact, rather than a nuisance per se. 152 Mich. App. 273 (opinion of R.C. KAUFMAN, J.). In this case, the alleged nuisance is predicated on defendant's want of care in maintaining the dam, not a claim that the structure was unreasonable by its very nature.
Because, under either Hadfield plurality view, plaintiffs have failed to plead a nuisance falling within the nuisance exception to governmental immunity, I would affirm the trial court's grant of summary disposition in favor of defendant.