Opinion
Docket No. 78049.
Decided May 21, 1985. Leave to appeal applied for.
Bockoff Zamler, P.C. (by Glen Hirshberg and John J. Futchko), for plaintiff.
Brenda M. Miller, Assistant Corporation Counsel, for defendant.
Before: BRONSON, P.J., and HOOD and SHEPHERD, JJ.
Plaintiff appeals as of right from the trial court's April 18, 1984, order granting defendant's motion for summary judgment and dismissing plaintiff's action.
Plaintiff alleged that she was sexually assaulted on March 3, 1979, in an abandoned factory building owned by defendant. Her assailant took her to that location. Plaintiff further alleged:
"5. That it was then and there that the duty and responsibility of the Defendant to maintain their premises in such a manner and in such a condition so as to not endanger the Plaintiff's and similarly situated person's [sic] health, safety, and welfare.
"6. That the City of Detroit, its agents, servants or employees, knew or should have known that the building was vacant and accessible for criminal activity and that it constituted an inherently dangerous condition, but the City of Detroit neglected, failed and refused to adequately secure the building, failed to demolish the empty abandoned building, failed to patrol or guard said premises or take any steps whatsoever, to remove, repair or eliminate this inherently dangerous condition.
"7. That the Defendant, CITY OF DETROIT, had reasonable notice that abandoned buildings were used for the purpose of perpetrating activities such as that which the Plaintiff was subjected to; and that Defendant had notice that the aforesaid premises also constituted such a danger; and it knew or should have known that assailants seek places away from the public sight to take their victims, and further, that the aforesaid abandoned building was a nuisance in fact and created an extremely dangerous and hazardous condition for the public, but the Defendant negligently failed and refused to take any steps whatsoever to secure the building, to patrol or guard said premises, or to employ any other means to safeguard the premises from the danger which was the proximate cause of the injuries suffered by the Plaintiff, MARY SANFORD.
"8. The Defendant is liable for the injuries of the Plaintiff as it intentionally created the nuisance in fact which resulted in injuries to the Plaintiff."
In its motion for summary judgment, which defendant stated it brought pursuant to GCR 1963, 117.2(1) and (3), defendant argued that plaintiff's complaint sounded in both negligence and intentional nuisance. Defendant argued that it could not be held liable for negligence under plaintiff's allegations because its acts or omissions were not the proximate cause of plaintiff's injuries. Moreover, defendant asserted that it had not created an intentional nuisance by allegedly failing to secure and maintain the building in which plaintiff was attacked. Finally, defendant argued that plaintiff failed to allege facts supporting any finding that defendant owed a duty of care to plaintiff.
At the hearing on defendant's motion the trial court recognized plaintiff's responsive argument that she only intended to complain of defendant's alleged intentional nuisance, not negligence. Defendant's counsel then presented her argument. In response, plaintiff's counsel briefly argued that proximate cause was not an issue in an intentional nuisance action. Plaintiff's counsel also briefly reiterated some of the allegations in the complaint.
The trial court granted defendant's motion. Plaintiff's counsel asked if there was an explanation. The trial court responded:
"Sure. As a matter of law, there is no possible cause for a lawsuit. If I'm wrong, the Court of Appeals will tell me."
We reverse.
It is clear from the trial court's comments that this motion was granted under GCR 1963, 117.2(1), failure to state a cause of action. In considering such a motion, the test is whether, on the pleadings alone, plaintiff's claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Armstrong v Ross Twp, 82 Mich. App. 77, 81-82; 266 N.W.2d 674 (1978).
An intentional nuisance, or a nuisance in fact, is one which becomes a nuisance "by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property". Rosario v City of Lansing, 403 Mich. 124, 133; 268 N.W.2d 230 (1978), quoting 66 CJS, Nuisances, § 3, pp 733-734; McKee v Dep't of Transportation, 132 Mich. App. 714, 725; 349 N.W.2d 798 (1984). The knowledge of the actor at the time he or she acted or failed to act determines whether the invasion resulting from the actor's conduct is intentional or unintentional. The actor must realize, or should realize, that his or her conduct involves a serious risk or likelihood of causing the invasion and must either act for the purpose of causing it or know that it is resulting or substantially certain to result from the conduct. 4 Restatement Torts, 2d, § 825, Comment C, p 118; Keiswetter v City of Petoskey, 124 Mich. App. 590, 597-598; 335 N.W.2d 94 (1983).
In 4 Restatement Torts, 2d, § 821B, p 87, the American Law Institute defines a public nuisance as follows:
"(1) A public nuisance is an unreasonable interference with a right common to the general public.
"(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
"(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
"(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
"(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public rights". (Emphasis added.)
Furthermore, the possessor of land is subject to liability for a nuisance for an abatable artificial condition on the land if,
"(a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, and
"(b) he knows or should know that it exists without the consent of those affected by it, and
"(c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it". 4 Restatement Torts, 2d, § 839, p 161.
Plaintiff alleged that defendant had notice that abandoned buildings were used for crimes such as the one that occurred to plaintiff and knew that the building at issue posed such a danger, yet failed or refused to secure the building or to guard it or to take any steps at all to safeguard the premises from such known criminal activity. These facts sufficiently allege a building that interferes with the public safety and that defendant failed to take reasonable steps to abate the conditions causing the building to be a threat to public safety. Therefore, we find that plaintiff sufficiently pled an intentional nuisance to withstand this GCR 1963, 117.2(1) motion for summary judgment.
Reversed and remanded.
Plaintiff alleges that she was raped in a vacant building owned by defendant, that defendant "knew or should have known" that such buildings are used for criminal activity, including assaults such as plaintiff allegedly experienced, that defendant "neglected, failed and refused" to secure, demolish or guard the premises, and that defendant had reasonable notice that such buildings are used by criminals as sites to inflict harm "away from the public sight". The majority conclude "that plaintiff pled an intentional nuisance sufficient to withstand defendant's motion for summary judgment". I disagree with this conclusion. Plaintiff's complaint sounds in negligence rather than nuisance. The majority's holding constitutes a vast expansion of the "nuisance" exception to governmental immunity. Moreover, it would subject virtually any landowner (public or private) to potential liability whenever the landowner's premises are the site of an assaultive offense. This, also, marks a huge enlargement of the landowner's duty to guard against such activity on the premises, an enlargement facilitated by the majority's application of nuisance doctrine.
"Nuisance is a condition and not an act or failure to act." 58 Am Jur 2d, Nuisances, § 3, p 557. As noted by the majority, nuisances in fact "are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property". 66 CJS, Nuisances, § 3, pp 733-734; Rosario v City of Lansing, 403 Mich. 124, 133; 268 N.W.2d 230 (1978); Bluemer v Saginaw Central Oil Gas Service, Inc, 356 Mich. 399, 411; 97 N.W.2d 90 (1959). Heretofore, the courts of this state have found a nuisance only where the injury was inflicted, not by a third party, but as a result of some condition of, or the owner's activity on, the property itself. For example, the nuisance in Rosario was an open sewer drain; in Bluemer, a trap door in a service station; in McKee v Dep't of Transportation, 132 Mich. App. 714; 349 N.W.2d 798 (1984), the design of a highway shoulder and the placement of a light pole proximate thereto; and in Keiswetter v City of Petoskey, 124 Mich. App. 590; 335 N.W.2d 94 (1983), the operation of a fire training facility tower.
In this case there was no natural tendency of the building to create the danger. The danger was created and the injury inflicted by the assailant. The building itself posed no danger to plaintiff's life or health and, therefore, did not constitute a nuisance. The entity which created the danger to plaintiff's life and health was the assailant, not the building in which plaintiff was attacked.
The nuisance exception to the doctrine of governmental immunity "is a word chosen by courts to avoid the harshness of some legal principles without really casting those principles out". Disappearing Lakes Ass'n v Dep't of Natural Resources, 121 Mich. App. 61, 65; 328 N.W.2d 570 (1982), aff'd 420 Mich. 567; 363 N.W.2d 641 (1984). Despite plaintiff's protestations to the contrary in circuit court, she is advancing a negligence claim, but simply calling it a "nuisance" claim to avoid a possible immunity defense. We should not rewrite or reinterpret the complaint to match the intent requirement for an intentional nuisance. The majority state that plaintiff alleged that defendant had notice that its abandoned buildings were used for crimes such as the one that occurred to plaintiff. Actually, plaintiff alleged that defendant had notice that abandoned buildings generally were used for criminal purposes, not that defendant had notice with respect to the buildings in question. This discrepancy aside, nowhere in her complaint does plaintiff allege that defendant either acted for the purpose of causing the harm or knew the harm was "substantially certain" to follow. Keiswetter, supra. This is a negligence claim, pure and simple. Accepting plaintiff's allegations as true, defendant was negligent in not securing the premises despite a known danger. However, even aside from the question of governmental immunity, I would hold that defendant cannot be held liable for the alleged failure to secure the building in this case.
At oral argument, defense counsel conceded its ownership of the building as a result of donation was a "proprietary" rather than a governmental function, MCL 691.1407; MSA 3.996(107), and that the city has the same liability as a private landowner. After oral argument the Supreme Court released its decision in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984), in which it defined "propriety function" as "any activity conducted primarily for pecuniary profit". 420 Mich. 591. In any event, the issue is not presented by this appeal.
The record shows that the city had been warned by one of its departments that the building should be made secure. However, the warning related to the danger of people injuring themselves on the premises — not the danger of third parties perpetrating assaults. Nor was there any evidence that the structure had been used as a crime site.
We should not inflate the nuisance exception to a previously inconceivable volume, nor should we overlook the effect this holding will have on the potential liability of private landowners. We should not forget that anything said in a decision in a "nuisance" case with a governmental defendant may, indeed will, be applied to nongovernmental defendants as well. In Michigan, the landowner is liable, in limited circumstances, for foreseeable harm to persons on his premises from assaults committed by third parties. Samson v Saginaw Professional Building, Inc, 393 Mich. 393; 224 N.W.2d 843 (1975); Askew v Parry, 131 Mich. App. 276; 345 N.W.2d 686 (1983). Nevertheless, the duty to prevent the harm hinges upon the existence of a special relationship between the landowner and the plaintiff, such as a landlord/tenant or invitor/invitee relationship. Samson, supra, p 406; Askew, supra, p 279. See, also, Blake v Consolidated Rail Corp, 129 Mich. App. 535; 342 N.W.2d 599 (1983); Aisner v Lafayette Towers, 129 Mich. App. 642; 341 N.W.2d 852 (1983), lv den 419 Mich. 871 (1984).
There is no special relationship between plaintiff and defendant herein. By its application of nuisance doctrine the majority, in effect, create a duty where none previously existed. Apparently, a landowner will now have a duty to the general public to protect against foreseeable assaults perpetrated by a third party. Since the issue of "[w]hether the care exercised was reasonable under the circumstances is for the jury to determine", Samson, supra, p 407, landowners will face full trials in many such cases. This will occur even though no previous assaults might have occurred on a given premises, Aisner, supra, pp 646-647, and even though the defendant has taken some action to secure the premises. The reasonableness and adequacy of the measures taken by the landowner would be submitted to a jury. Moning v Alfono, 400 Mich. 425, 438; 254 N.W.2d 759 (1977).
As previously noted, there is no principled basis for restriction of the majority's holding to large vacant buildings owned by a municipality or even restricting it to buildings, as opposed to undeveloped land. Any unguarded premises used as a site for an assault could give rise to a suit against the owner. A homeowner who leaves for a vacation or a hospital stay might be sued if some brigand or rapist observes the owner's departure, breaks in, then forces some passerby onto the premises. This, even though the owner locks the doors. As indicated, the reasonableness of such measures would be for the jury.
The existence of a duty is ordinarily a question of law. Moning, supra, p 438. Summary judgment is appropriate when the question is resolved adversely to the plaintiff. Cook v Bennett, 94 Mich. App. 93, 98; 288 N.W.2d 609 (1979). In my view, "overriding considerations of public policy" require affirmance of the trial court's decision in this case. Moning, supra, p 450. The problem of compensating victims of crime is a societal problem better dealt with on a larger scale than case-by-case adjudication. The underlying question presented by this case is who will have the financial responsibility to compensate victims of crime. Most perpetrators of assaultive offenses do not have the means of compensating their victims. The Legislature has created a scheme whereby some victims are partly compensated. MCL 18.351 et seq.; MSA 3.372(1) et seq.; see, Jerome v Crime Victims Compensation Board, 419 Mich. 161; 350 N.W.2d 239 (1984). The adequacy of this scheme is a legislative matter. The court should not apply an ad hoc remedy based upon fortuitous circumstances, such as the occurrence of an offense at an unguarded building.
Criminals will always seek and find places where they can commit offenses in covert fashion; in plaintiff's words, "places away from the public's sight to take victims". In all instances, someone owns the land where the offense occurred. It serves no useful purpose for judges to assign the task of victim compensation to the owners of the premises who themselves may thus become victims of crime. I can visualize the plight of homeowners of modest means who are accused in a civil suit of failing to adequately secure a residence in a high-crime area. If they are to lose their homes and all of their savings to the victim of a rapist, I would want the Legislature to declare by law that this is a desirable way for society to address the break-down of law and order. Moreover, I cannot agree that the owners of such places owe a duty to the general public to prevent crimes for which they are not truly responsible in any traditional sense. Therefore, I must respectfully dissent.