*1 v Brown 1975] BROTHERS, ANDERSON v BROWN INC. D. E. Appeal Judges—Findings Negligence- 1. and Error — of Fact —
Clear Error. findings judge sitting of fact and conclusions law of trial gross negligence as the trier of fact in a civil action for will not - appeal clearly be overturned on where not erroneous. Property Immunity 2. Statutes —Torts—Recreational — Specific Swimming Owner — Uses —Similar and Uses — Div- ing. Swimming diving are activities which are included within property the recreational statute as similar specifically outdoor recreational to the uses other activities (MCLA300.201). named Statutes—Multiple Interpreta- 3. Torts — Statutes —Consistent Property tion —State Law —Recreational —Govern- Immunity Summary Judgment. mental — duty Appeals It of the Court of to read two statutes together light to reach a consistent result in of the state of the law when the statutes were enacted where both deal with a therefore, subject; similar the recreational statute, passed which was after a more inclusive statute, governmental immunity Legis- was not intended apply by municipal corporations lature to owned governmental function; govern- and used in a and where the subsequently mental statute was declared unconsti- against municipal corporation tutional tort and a action arose landowner before a constitutional was ree- nacted, brought properly an action on the tort was and was [1] [2-5, [6, 58 Am Jur [9] 73 Am Jur 5 Am Jur seq. 8, 10, 11] 2d; Appeal 2d, 59 Am Jur References 2d,-Nuisances Statutes and Error 839. 2d, Parks, § 122. § Points 141. § Squares, in Headnotes Playgrounds § 38 et App summary judgment grant error for a trial court to immunity. grounds defendant on Property 4. —Statutes—Recrea- Landlord and Tenant —Real *2 Immunity Property Immunity of Owner — of Lessee tional — —Municipalities. by municipality a owned and used A tenant or lessee of lands enjoys governmental greater engaged function no in a while property immunity protection owners from recreational municipality. enjoyed by the statute than that Opinion O’Hara, of Immunity Immunity—Governmental —Recreational 5. Torts — Property Immunity —Exclusion—Statutes. Owners gives governmental immunity immunity which The statute from agencies ordinary negligence should to all not be specific interpreted cities from the from to exclude given ordinary negligence all landowners under the recrea- (MCLA 691.1407, statute tional owners 300.201). Negligence—Condition—Tortious 6. Nuisance — Ques- Conduct — Summary Judgment Ap- of Fact — — tion of Question Law — peal and Error. condition, predicated primarily liability is not a Nuisance through part or inaction on the of on tortious conduct action therefore, condition; responsible properly those pleaded properly disposed not action for nuisance was summary judgment question of as a law where under the plaintiff pleadings question and the of fact was raised was not put proofs. allowed to in his Danhóf, P. J. Allegations Summary Pleading Judg- — 7. —Labels—Nature Nuisance—Negligence—Recreational Property ment — Immunity. Owners correctly may a label to A court look behind determine therefore, allegation; properly of an a trial court nature granted summary judgment for the in an action defendant alleged negligence ordinary but which nuisance where labeled negligence the defendant was immune from suit for under (MCLA 300.201). v Brown Property Immunity 8. Statutes —Recreational — Owners —In- Legislature tent of —Codification of Common-Law —Pro- Municipalities. tected Class — Legislature enacting The prop- intent of the recreational erty codify statute was to the common-law land, liabilities of the owners of and since cities could be held law, liable in tort as owners of land under the common Legislature among protected intended to include them class. Interpretation—Multiple 9. Statutes — Statutes —Same Class— Defeating Purpose. Legislature may validly enact two statutes that deal with the purpose, same class or which have a similar and one of these strictly statutes should not be read so as to defeat the main purpose of the other. Interpretation—Intent Presump- 10. Statutes — — Torts—Immunity—Protected tions —Effect of Statutes — Municipalities—Governmental Immunity Class — —Recrea- Property Immunity. tional Owners construing presumed In Legisla- a statute it will not be that the *3 thing possible ture intended to do every part a useless and if of given effect; therefore, long statute must be city as a possesses sought characteristics of the class the protect, where it cannot invoke tort under the statute, protection it still deserves as a landowner under the recreational (MCLA 300.201). 691.1407, 11. Landlord Property and Tenant —Real —Torts—Recreational Property Immunity Municipalities—Lessees. Owners — municipality A lessee of a which is liability immune from tort under the statute is (MCLA also 300.201). wording immune under the clear of the statute ' Appeal from Ingham, Salmon, Marvin J. J. Sub- 14, 1975, (Docket mitted March at Lansing. No. 19023.) 12, Decided November 1975. ap- Leave to peal applied for.
Complaint by H. C. Anderson for himself and as next friend of Donald J. Anderson against Brown Brothers, Inc., City Lansing, Glen T. Che- ney, Rahfeldt, Albert W. and Value Builders 65 Jr., Holbrook, of D. E.
damages swimming accident resulting from in stone quarry. Judgment for defendants. Plaintiffs appeal. part Reversed in and remanded. (Anderson, Carr,
Jesse D. Parks Street & Horn- bach, counsel) for plaintiffs.
Foster, Lindemer, Swift & Collins John L. (by Schmedlen) Collins and Michael J. for defendant Inc. George H Denñeld for the City Lansing. J., Before: P. and D. E. Danhof, Holbrook, Jr. and JJ. O’Hara,* D. E. 10, 1968, J. June Donald Anderson, aged group and a of friends went swimming in the gravel pit lake of a adjacent Lansing’s Scott Woods Park. When arrived they at the lake there were approximately 50 or 60 people swimming diving around the lake. They noticed there was a diving board and a raft in the lake. From appearances, they assumed part of the park since trails led from the park to the lake and did not they any notice fence warning signs. or
After swimming diving part one awhile, lake for Donald Anderson and his friends to a area moved new approximately feet away when the area the lake were they swimming in became crowded. At that point the bank rose approximately First, feet out of the water. they *4 depth checked the water around the bank at they which intended to dive to make sure diving. was safe for Discovering that the bottom * Justice, Supreme sitting Appeals by Former Court on the Court of 1963, assignment pursuant to Const art 23 as § amended in 1968. of D. E. bank, four feet from the dropped off sharply about one of his friends to Donald Anderson asked mark standing edge. at He drop-off then by for a preparation in dive. As he climbed the bank crumbled beneath began his dive bank him causing spring jump, him to lose the his and he fell head first into the shallow water. result,
As a Donald Anderson fractured several from totally paralyzed vertebrae and is almost constant nearly physical neck down. He suffers of his family distress but with the assistance and to attend some college friends he has been able although virtually helpless classes he is as far as taking care of his needs. personal in 1966 began
Construction of the lake when Rahfeldt, then of the Cheney and question, contracted with Brown Brothers gravel. City Lansing sought the removal of injunction claiming injury public an to a street. By 6, 1966, court Cheney order dated December Rahfeldt to the conveyed city. The granted order and Rahfeldt Cheney right gravel prop- contract the removal of from the erty City create a man-made lake for the Lansing years. Paragraph within five 8 of that provided: order ORDERED,
"IT Cheney IS FURTHER that Glen T. and Albert W. Rahfeldt and their contractor shall erect type type and maintain a farm fence of a to make climbing difficult around the excavation and to erect a gate, specifications all under determined the Parks Department Lansing. This fence shall be completed and installed before excavation is done below point any any any level at or water water collects point on the property.” excavated according The fence was erected but to testi- *5 65 Mich Holbrook, Opinion of E.D. June, 1968, mony, by fence had broken the down. gate There that testimony was also the was not closed, was always kept when there no even exca- being Neighbors vation work done. testified that they complained had all the to defendants con- cerning use of as a swimming the the lake area. However, no remedial was taken action before the accident.
The
filed a three
count
complaint
against
Count
alleged
the defendants.
one
nui-
sance;
alleged gross negligence
count
two
or wilful
misconduct;
and
wanton
count
three alleged
simple
of
negligence.
City
Lansing
The
and Brown
Brothers,
Inc., moved for summary judgment
on
counts one
the authority
and three on
of MCLA
300.201;
City
Lansing
MSA 13.1485.1 The
of
also
moved for summary judgment on count
two on the
grounds
of
The
immunity.
trial
granted
court
the motion on counts one and three
defendants,
as to all
but denied the
of
Lans-
ing’s
judgment
motion
summary
on count
two
Tawas,
because of Maki v East
App 109;
(1969), affirmed,
gence or wilful and wanton misconduct count September, waiving after trial. At jury the plaintiff’s close of proofs granted trial court defendants’ motion judgment for a no cause of action on count two. The trial court found no 300.201; provided MSA 13.1485 before a 1974 amendment: injuries any person "No cause of action shall arise for who is on paying person lands of another without to such other a valuable purpose fishing, hunting, trapping, camping, consideration hiking, sightseeing, use, or other similar outdoor recreational with or owner, permission, against tenant, without premises or lessee of said injuries gross negligence unless were caused or owner, tenant, wilful and wanton misconduct (Emphasis supplied.) or lessee.” Anderson Jr., J. E. of D. wilful or wanton gross negligence evidence defendants were not It that concluded misconduct. Donald would required to foresee that would crumble a bank to dive off attempt failure by the It also found him. underneath pit the gravel others out keep defendants *6 and wilful wanton to constitute not so reckless as appeal right. as of Plaintiffs misconduct. trial in that the court erred argue
Plaintiffs summary judg- motion defendants’ granting 13.1485, 300.201; MSA of MCLA ment on the básis apply not intended to this the statute was argue that Alternatively, of case. type as a violation of due is the statute unconstitutional 4, 24 protection, and article of the equal process, § our disposition of Michigan Constitution. Given this not issue. the first issue we do reach the trial court erred in argue Plaintiffs also that judgment of no cause of awarding defendants negligence my count. From gross on the action record, however, I say cannot that review findings fact and conclusions of judge’s the trial I erroneous. therefore law would clearly were on of no cause of action the judgment affirm the 1963, 517.1. Rueme- negligence count. GCR gross Stores, Inc, 648; napp Food v National 189 NW2d
I. not within the argue they first are Plaintiffs statute, 13.1485, 300.201; MSA as the acts that i.e., diving swimming, and are injury, caused the Mathews, Taylor the In not statute. within merely 198 NW2d App diving was within the statute since assumed trial court’s application affirmed they of D. E. however, court, statute. in opinion The trial its granting judgment summary the motions case, present stated very logically the reason for including "swimming” "diving” within the words "similar outdoor recreational use”.
"It opinion is the swimming of this court that is the type of recreation that is a natural extension of many of the and, specifically activities enumerated in the statute any absence reason to contrary, category should fall into 'similar outdoor recreational’ To activity. construe the statute otherwise say would be to that a man who out in wades another’s lake to fish no cause of for injuries, has action but he is changes not barred from suit if goes he his mind and swimming, injured. is Equally untenable would be person to bar from recovery injuries who sustains merely sightseeing hiking while he or across the land yet trespasser of another and to allow the same get should, into court if hike, pause he course his swim, for a if purposely go or he should onto Defend- *7 property go swimming, ants’ injuries.” sustain (Citation omitted.) However, to say the activity of Donald Anderson is within the statute does not necessarily make the statute applicable. Defendants also must come within statute.
II. It is undisputed that City Lansing is the legal owner land on gravel which the pit is 691.1407; 3.996(107) located. While MCLA MSA (1964 170, 7), PA gave the City of Lansing § com- plete immunity from its negligence governmen- functions, tal such was declared unconstitutional 417 v of D. Jr., J. E. supra, Tawas, because of a viola- in Maki v East Michigan 4, §24, of the Constitu- tion article tion.2 supra, Tawas, eliminated
Because Maki v East immunity, governmental the defense of Lansing rely the recreational on must both Because statutes statute. subject matter, i.e., awith deal similar duty liability, of this Court it is to from tort together to reach a these statutes consist- read two Michigan, 521, 284 Mich result. v ent Rathbun (1938), People Martin, 59 545; 280 35 v Mich NW (1975). reading App In 471; 809 statutes 229 NW2d necessary together, general rule, to it is look as a the second the law when at the state of Pipeline Dehn, Co v 340 Lakehead was enacted. 25, Brown v De- 134; 64 903 NW2d App partment State, 322, 325; 206 45 (1973). However, case it this NW2d necessary state of the law when the look passed statute, the second since first statute governmental statute, was enacted overruling response of common law to the Depart- governmental immunity.3 Brown v See supra. State, ment of immu-
When the
passed
nity
1953,
there was still
statute was
municipal corporations
immunity common law
liability.
Detroit, 364 Mich
Williams v
from tort
(1961). Although
doctrine
231; 111 NW2d
statute was enacted in
This
validA
Campbell
litigation
this
the outcome of
however.
does not affect
Detroit,
NW2d
Detroit,
governmen
supra,
r
voided common law
Williams
While
right
*8
immunity,
to
had the
enact
tal
an
amendment
was 1964
it did state that
Legislature
did with
was under attack at the time academic4 and judicial5 circles, continued had doctrine vitality Alpena, Martinson v in 1953. 328 Mich 595; 44 (1950). NW2d 148
It
is
statutory
also a rule of
construction
that
this Court
presume
Legislature
will not
Klopfenstein
intended
to do a useless
act.
Rohlfing,
197,
202;
(1959),
356 Mich
Shortly Legislature before the amended the rec- reational property owners immunity put statute to in the form that case, is relevant to this Legislature enacted the 1964 governmental immu- 4 Smith, Municipal Liability, Tort LMich Rev 41 Season good, Municipal Corporations: Objections to the Governmental or Proprietary Tests, (1936), see, Anderson, 22 Va L Rev 910 Claims Against States, (1954), Synposium, 7 Vand L Rev Governmental Liability, Contemp (1942), Borchard, Tort 9 Law & Prob 179-370 Tort, Responsibility Governmental LYale J 1039 5Although judges had not 1953 made a frontal on assault immunity, proprietary-governmental di function chotomy, Judges was in full flower. tended to stretch definition of proprietary what a function was in order to allow defendants Accord, Detroit, recover. (1939). Matthews v NW express opinion 6 I not an do on whether the intended 300.201; apply municipal corporation MSA 13.1485 to when a exercising is a defendant function. proprietary over land on which it *9 419 v J. E. of D. nity times before statute. at both this case Thus Legislature the that the considered recrea- arose tional property statute owners there Legislature governmental immunity. The did was property consider owners im- not munity the recreational governmental back-up statute a govern- immunity. In law rule of 1953 the common alive and mental was still there subject. It a new on the was not within power Legislature to foresee the the 1969 supra, Tawas, Maki v East decisions holding governmental law unconsti- presumed tutional since it is passes only Township constitutional acts. Clarence Dickinson, 272; 115 NW fortuity Lansing It is a mere governmental immunity in cannot invoke this case.
III. Since the recreational immu- designed nity apply statute was not or intended to municipality municipality to lands of is while engaged governmental in a I function conceive why no valid reason a tenant or lessee of lands municipality greater by enjoy any owned should enjoyed by from the statute than those benefits municipality.
Hence, I would hold that a tenant or lessee of municipality by lands owned and used while engaged enjoys in a function no greater protection from the enjoyed by statute than that municipality, which is none. unnecessary
It therefore becomes to determine remaining parties are in whether fact defendant since, tenants or lessees under the circum- O’Hara, Concurrence stances, they protection do not fall within the afforded by the statute. The court therefore erred in granting summary judgment on the nuisance and negligence counts as to all defendants.
I would part affirm in and reverse in part. I would remand for trial on plaintiffs’ counts one and three as all defendants. I vote to award no costs since neither or defendants have *10 prevailed in Further, full. public question and interpretation of a statute are involved. op O’Hara, J.
O’Hara, (concurring in part). J. agree I with Judge Danhof the trial court properly dis- posed of count three based on ordinary negligence by entry of summary judgment.
I agree also with both my colleagues finding of the judge trial that neither gross negli- gence nor wilful and wanton misconduct, pleaded in two,' count was established was not clearly erroneous and is not to be by disturbed us.
I agree do not with Judge Danhof in his pro- posed disposition of count one alleging nuisance.
First, I think it plead does an actionable nui- sance and is not merely so labeled.
Granted the nuances of definition of the term
"nuisance”,
its categories
and subcategories,
I
stand by what
this Court’s majority said in In re
Estate,
Woods
True the Woods supra, is inapposite to a O’Hara, by Concurrence because Woods degree question whether established, nuisance, would vitiate if the de- negligence. of contributory fense determining test type Nonetheless Supreme stands undisturbed our Court. by Given premise plaintiff this should have been allowed to put proofs theory. his on that issue should by summary judgment. not have been disposed I feel fortified in this conclusion by the language the distinguished late Chief Justice Carr Service, Bluemer v & Saginaw Central Oil Gas case, In that writing NW2d Court, Mr. unanimous Justice Carr quoted CJS, approval Nuisances, with from 66 pp § 733-734: per necessarily "The number of nuisances se lim-
ited, greater far the number nuisances are per For this nuisances accidens. reason whether or not particular thing or act is a nuisance is generally a question of (Emphasis supplied.) fact”. Mich at 411. *11 pleaded
If in this state nuisance is indistin- upon gross action guishable negli- from an based misconduct, gence or wilful and wanton I am true, If unaware of it. it is it should be said so with It judicial clarity finality. seems to me the Court has said there is a Supreme difference as Union Fire In- Buckeye possible as in succinctly 630, 636; Michigan, Co v 383 178 surance Mich quoted by very NW2d 476 as recent Michigan, 598, Buddy v 603; 59 case of (1975). 229 NW2d Liability nuisance is a condition. is not
"Primarily, predicated through on tortious conduct action or inac- responsible part of those for the condition. tion on App 409 65 Mich by Danhof, P. J. Dissent (like Nuisance of due care may result from want a hole highway), may dangerous, in a exist as a but still offensive, or hazardous condition even with the best of care.” judgment
I vote to the summary vacate entered in favor of all count the defendants on one alleg- ing a nuisance and to remand this issue to the trial court for such proceedings may there properly ensue.
I costs; vote to no party having award no pre- vailed in full. (dissenting part, P. concurring in
Danhof, part). Judge Holbrook has accurately stated the opinion facts his and I concur in his affirmance of the trial granting court’s decision defendants’ motion for judgment of no cause of action on count two. Count complaint one of the in the instant nuisance, case is labeled and count alleges three ordinary negligence. The granted trial court defendants’ motion for summary judgment as to three, counts one and and for the reasons hereinaf- ter stated this decision should be affirmed.
Count
However,
one is labeled nuisance.
a court
may look behind the label
to correctly determine
the nature
Young Groenendal,
allegation.
456,
(1969).
462;
intended among to include cities the class of own- ers of 300.201; land it enacted MCLA when MSA 13.1485. Legislature
The
may validly enact
two statutes
that deal with
same class or
which have a
similar
purpose.
Michigan
Detroit
v
Bell Tele
Co,
phone
Based upon the principles, aforementioned enactment 691.1407; of MCLA 3.996(107), MSA gives which immunity from ordinary negligence to all agencies, should be not inter- to preted exclude cities from specific from ordinary negligence given all landowners 300.201; under MCLA MSA 13.1485. The two stat- utes Rather, are not in conflict. each seeks to protect a certain class from liability for ordinary negligence. As long city possesses the charac- teristics of the class Legislature sought protect, the city is entitled to immunity under either statute. Where city cannot invoke immu- nity under 691.1407; MCLA 3.996(107), MSA protection still deserves as a landowner under 300.201; MCLA MSA 13.1485. It is precisely this latter situation that reinforces the rule that it will J.P. Dissent Danhof, intended do a presumed be
not thing. useless time the first alleged have plaintiffs
The is unconstitutional 13.1485 300.201; MSA Court does not This reasons. number for the first raised when allegations such consider been de- however, this issue on has. appeal, time v Con- in Thomas to the adversely cided Co, supra. Power sumers immune from Lansing is defendant *14 and three: As one counts suit under plaintiffs’ immune are also lessees, defendants the other 300.201; MSA of MCLA wording the clear under 13.1485.
Affirmed, to the defendants. costs