Opinion
No. 128511.
November 9, 2005.
Summary Dispositions.
SC: 128511, COA: 259706.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. Among the issues to be considered, the Court of Appeals shall consider whether Pohutski v. City of Allen Park, 465 Mich 675 (2002), affects the class certification issue in this case. Pohutski held that § 7 of the governmental tort liability act, MCL 691.1407, does not permit a trespass-nuisance exception to governmental immunity, but ruled that this holding would be applied only to cases brought on or after April 2, 2002. In light of Pohutski, are issues relating to putative plaintiffs unnamed as of April 2, 2002, sufficiently disparate from issues relating to plaintiffs who were named as of April 2, 2002, to the extent that certification of a single class containing both groups of plaintiffs would be inappropriate under MCR 3.501(A)(1)? We do not retain jurisdiction.
KELLY, J. I would deny leave to appeal.