*1 213 Mich CLOVERLEAF PHILLIPS CAR COMPANY PETROLEUM COMPANY 8, 1994, Docket No. Rapids. 165252. Submitted November at Grand 1, 1995, September Decided at 9:25 a.m. Company Judy Cloverleaf Car Hambley brought and Arthur and Allegan against action in the Circuit Court Petro- Company Wykstra Company, leum seeking damages Oil for plaintiffs’ contamination of prop- water under the erty, gasoline which is located across the street from a station by Wykstra. plaintiffs pleaded owned The sounding claims in negligence, nuisance, trespass, liability, strict and violation of protection several environmental statutes. had in- underground gasoline stalled the tanks located at the station when it selling had owned the station before it to 1988, Wykstra gasoline 1975. In discovered a leak and hired a replace underground contractor to remove and tanks. Dur- ing process, gasoline spurted the excavation exposed from an line, allegedly having as the by result of the line been run over court, Harry Beach, J., a backhoe. The granted A. summary Phillips. plaintiffs appealed, claiming The error negligence, nuisance, in the dismissal of claims. Appeals The Court of held: public 1. A nuisance is an unreasonable interference with a right enjoyed by general common public. citizen may bring public only upon an action for a suffering nuisance harm different general from that public. suffered Be- plaintiff Hambly cause Arthur claimed that his mental health problems incident, plaintiffs resulted from this were enti- bring tled to their claim for a nuisance. 2. A defendant is liable for a nuisance where the defendant nuisance, created the the defendant owned or controlled the arose, land from which the nuisance employed or the defendant person to do work from which the defendant knew a _another References 2d, Am Jur Nuisances §§ See ALR Immunity Index under Privilege; Governmental Nui- sances. Car v Although undisputed likely it is would arise. unreasonably the tank interfered released from health, pleaded public’s neither nor have responsible the leak. Because shown faulty was the of a connector the leak result claims *2 initially by Phillips occurred while the leak installed speculation Phillips property mere and because owned the were Wyks- Phillips to sell to the mere fact that continued liability by Phillips, court for the tra did not create a basis Phillips respect summary disposition properly granted for with the claim of a nuisance. to nontrespas- private there is 3. A nuisance is shown where a private sory in the use and invasion of another’s interests presented enjoyment plaintiffs no of Because have land. the Phillips’ in the conduct resulted invasion evidence private enjoyment property, plaintiffs’ the use and of disposition Phillips properly granted summary with for court respect to the of a nuisance. property the en- 4. Because from which contamination the of was not within the exclusive control tered water years, Phillips, for and had not been within its control thirteen loquitur applicable respect ipsa with the doctrine of res is Phillips. against to the claims no violated 5. Because there is evidence act, provisions 323.1 et commission MCL the water resources negli- seq., presumption seq.; MSA 3.521 no of nuisance et granted summary Accordingly, properly gence arose. the court respect disposition Phillips with claim. for allegation intended 6. Because there was property even if intrusion spill, pleaded, action has not been caused properly granted summary respect to that claim. Affirmed. J., dissenting, genuine were issues White, stated that there by concerning the leak the backhoe and whether was caused still occurred while tanks were whether contamination by negligent as installation of the tanks
buried and a result Phillips. jury could conclude that contamination negligent of the tanks as a result of installation occurred granting summary disposition Phillips, the erred in trial court Phillips. — — Control. Abatement Nuisance Nuisance relinquishes ownership and in a commercial transaction A seller 213 Opinion op the Court and, products accordingly, lacking legal right control of its products to may pose society, abate whatever hazards the to may products not be held liable if those thereafter constitute a nuisance. — 2. Nuisance Intrusive Nuisance.
An trespass-nuisance intrusive nuisance ais misnomer for the exception governmental immunity only to and is relevant governments. state and local (by Jr.), Ford Kriekard, & P.C. Staton, Arthur plaintiffs. for the
Miller, (by Canñeld, Paddock & Stone Michael B. Ortega Robb), and James D. for the defendant. Before: C.J., and White and A. L. Doctoroff, * J J. Garbrecht, appeal right C.J. Plaintiffs as of
Doctoroff, May Allegan from a 1993, order- of the Circuit *3 granting Court pany’s defendant Petroleum Com- summary disposition
motion for and dis- missing plaintiffs’ negligence, claims of nuisance, trespass ground and for the contamination of the plaintiffs’ property. water under trial court’s nuisance and We affirm the grant summary disposition of of the pursuant claims to MCR 2.116(0(10) pursuant and the to 2.116(C)(8). MCR property directly Plaintiffs own across the street gasoline from station. When defendant gasoline owned the station, it installed a flexible neoprene gasoline hose to connect the tanks to the dispensing supply gasoline pumps. lines that 1975, In sold the station to defendant Wykstra. Phillips supply gasoline continued to the to the station. Wykstra gasoline 1988,
In discovered a leak at * judge, sitting Circuit Appeals on by assignment. the Court of Car ‘ op Opinion the Court by Wykstra A was the hired station. contractor replacing gasoline This the tanks. contractor old dislodged them the tanks and lines and left buried ground. pro- During lying the this excavation gasoline cess, ran over a line with the contractor pump the The next time a customer used backhoe. gasoline spurted line, into the connected air. immediately turned off the line Department The of Resources.
called the Natural ground representative determined the dnr might tank have been contami- water below the gasoline. private consulting by the com- nated ground pany verified that water contamination had occurred. dispute concerning
There is some the cause representative affidavit, the leak. In his a dnr from flexible the leak came indicated by Phillips. Wykstra testified connector installed ran over line with that when contractor backhoe, flexible it stretched the connector. (cid:127) time to leak next This caused the connector pump. report used the The someone consulting company stated environmental gasoline any prior at leak there was no evidence per- tightness tests had been this station. Tank investigation com- in 1986. After formed pleted, Wykstra disposed tanks, the old of the old lines, connector. flexible financing attempted to secure
In company, located which was for their car rental directly station. across the street from contamination, water Because financing *4 against filed Plaintiffs suit was available. alleging negligence, Phillips, nui- and liability, trespass, and violation sance, strict protection Wyks- statutes. several environmental App 190 213 Mich 186 Opinion op the Court tra reached a settlement with and is not party appeal. to this Phillips brought summary disposi- a motion for 2.116(C)(8) (10). tion under MCR and The trial granted summary disposition respect against to all Plaintiffs the counts it. appeal negligence, the dismissal of the nuisance, and counts. plaintiffs argue
First, the trial court erred dismissing public private nuisance granted summary disposi- claims. The trial court pursuant 2.116(0(10) tion question to MCR because no regarding of material fact existed Phil- lips’ liability. agree We with the decision of the trial court. summary disposition pursuant A motion for 2.116(0(10)
MCR
tests the factual basis of the
reviewing
claim. A court
the motion must consider
pleadings,
depositions,
affidavits,
admissions,
documentary
other
evidence in favor of
nonmoving party. Manning
the
Mich
v
Park,
Hazel
202
(1993).
App 685,
689;
In even stemming damages the are liable for not all actors e.g., Torts, See, 4 the 834, Restatement from condition. p is for a nui- 2d, § defendant liable (1) the nui- the defendant created where sance (2) the sance, defendant owned or controlled the (3) arose, or the from the nuisance land which person employed to do another work defendant knew nuisance would which the defendant from likely Sciences, Inc v Dow Chemical arise. Gelman App Co, 250, 252; 508 142 202 NW2d Mich spread the from tank the
While unreasonably system the water did into public’s health, there is no the interfere with evidence that Phillips responsible the leak. although words, nuisance did In other question regard- exist, ing Phillips’ of material fact there is liability that nuisance. the nui- maintain that created
Plaintiffs by installing flexible connector that the sance allegedly representa- Although leaked. dnr probably inspection that the leak tive’s revealed neoprene connector, came from flexible There is no cause of leak is unknown. exact evidence improperly that installed required that it not connector or standards. Plaintiffs did meet argue the installation 71 of State the flexible connector violated Rule regulations, Liquids AC, 1979 R Flammable Police suggests piping be 28.671. rule While piping types brass, iron, steel, it allows other comply American Standards Associa- that tion Code. Id. with provided any
Plaintiffs have not neoprene did rubber connectors evidence that comply the American Standards Associa- op Opinion the Court disposed tion nector, con- Code. Because inspection longer possible. is no allege question Plaintiffs also that a of material initially fact whether the leak oc- existed about curred when owned the land. sold the station in 1975. The leak was discovered report years 1988, thirteen later. The of the envi- consulting company ronmental indicated *6 there was no evidence of leak before tightness performed Further, tank tests in 1986 any problems. not did reveal that, Plaintiffs claim even if the leak occurred Wykstra purchased station, after was gasoline Wykstra. liable because it sold the If to a involved, commercial transaction is nuisance at control injury required. time of the is in Because a quishes ownership seller commercial transaction relin- products control its they legal right sold, when are it lacks to products may pose. abate whatever hazards its supra Sciences, Gelman at 252. Because happened gasoline had control over what to the liability delivered, after it it was cannot incur as supplier gasoline. any gasoline There was no indication of leak years thirteen only after sold station. The any problem 1988, evidence of occurred in Wyks- when a tra testified ran backhoe over the line. this incident con- stretched the nector and caused the leak. Plaintiffs have presented any evidence to show that some other problem caused the leak. regarding
Plaintiffs’ theories a defect in the connector, incident, or a leak before this mere are speculation. party opposing a motion for sum- mary disposition present conjec- must more than speculation provid- ture and to meet its burden of ing evidentiary proof establishing genuine issue 193 Car v Opinion of the Court Plastics, Inc Chubb fact. material Libralter Group 482, Cos, 486; of Ins 199 Mich (1993). NW2d plaintiffs alleged nui
Second, a claim parties’ trial and the sance. We note that doc under the consideration of this issue court’s misplaced. An nuisance” is trine of "intrusive for the tres is a misnomer "intrusive nuisance” pass-nuisance exception governmental immu to governments. only nity to and local and is relevant state Comm’r, 430 Drain field v Oakland Co Had 154; 422 NW2d Mich Phillips claiming government entity im is not a apply munity, here. this does not doctrine agree the trial Nevertheless, we proper. summary An of this actor is private nuisance for a non-
subject trespassory private has use or liability interest in the of another’s invasion (a) if the other enjoyment use of land privileges respect property rights and (b) with, enjoyment the invasion interfered *7 harm, (c) significant in legal the actor’s conduct results (d) invasion, and the of is the invasion is either cause (i) unreasonable, intentional (ii) un- and otherwise actionable or der unintentional liability negligent, governing rules reckless, [Adkins, supra or ultrahazardous conduct. at 304.] provided any plaintiffs above, have not
As stated
Phillips’
in the
conduct resulted
that
evidence
plaintiffs’ property.
of
invasion
allege
plaintiffs
trial
erred
Next,
that
negligence
dismissing
summarily
claim.
ipsa loqui-
of res
that
doctrine
assert
Plaintiffs
major purpose
apply.
the doc-
of
The
tor should
ipsa loquitur
at least an
is to create
res
trine of
App
186
Mich
op
Opinion
the Court
negligence
plaintiff
of
where the
is un-
inference
prove
negligent
occurrence
a
able
of
act. To
doctrine,
avail
themselves
must
(1)
ordinarily
show that
the event would
occur
(2)
negligence,
it
in the absence of
must be caused
agency
instrumentality
or
within the exclu-
(3)
defendant,
sive control of
it
must not
any voluntary
have been due to
or
action
contribu-
part
plaintiffs.
of
Porretta,
tion
428 Mich
Jones v
(1987).
132, 150-151;
While
the water re-
seq.-,
act,
sources commission
MCL 323.1 et
MSA
seq.,
private right
3.521 et
does not authorize a
of
they argue
Phillips’
action,
violation of this
presumption
statute constituted both a rebuttable
prima
public
and a
facie
case
323.6;
nuisance. MCL
MSA 3.526. It is true that
pre-
violation of a statute creates a rebuttable
sumption
negligence.
Party
Johnson Bobbie’s
Store,
661;
the intrusion was due to abnormally by or an accident caused trespass dangerous condition, is not an action (5th ed), pp proper. Keeton, 13, § & Torts Prosser allege Although plaintiffs 73-74. spill water, into the to
caused they this claim that intended did not summary grant dis- The trial court’s intrusion. position proper under claim was 2.116(C)(8). MCR prove attempted summary, plaintiffs have
In gasoline spill was liable *9 213 by White, J. Dissent providing Phillips that owned the station evidence years any thirteen leak was discovered and before that only The installed the flexible connector. problem
evidence of would indicate that damaged connector was when the contractor ran over the line the backhoe. Because question produce this not mate- evidence does regarding Phillips’ liability, rial fact the trial court plaintiffs’ negli- properly dismissed and 2.116(0(10). gence pursuant claims plaintiffs to MCR Be- plead cause did not that in- upon property, tended to intrude trial properly plaintiffs’ trespass court pursuant dismissed 2.116(C)(8).
to MCR Affirmed. J.,
A. L. Garbrecht, concurred. (dissenting). respectfully J. I White, dissent. genuine There was a issue whether the leak was operator. oper- caused The backhoe backhoe knowledge striking piping ator denied experience, that, stated and the basis of his he inspector would have had it known occurred. An Department from the of Natural Resources denied seeing anything pip- indicated connector ing during had been struck excavation and denied being Wykstra gave so informed. Defendant incon- sistent accounts incident and the condition piping. Further, of the connector the contamina- appeared quite beyond tion to be extensive and might expected what be from a leak that was immediately tightness redressed. While tank tests performed appar- had been 1986, these tests ently only integrity tested the of the tanks Lastly, the connectors. Phillips designed there was evidence that system
and installed the Car v by White, J. Dissent asphalt or concrete and it with then covered the replacement activity.
system until the tank undisturbed remained short, evidence
In there was jury could conclude which a from connector, remained which the flexible installed undisturbed and tion of causing leaked, contamina- which property.1 plaintiffs’ there was jury could conclude which a evidence from Phillips leak, that led the condition created inappro- summary I conclude that priate. p Torts, 2d, § 276; 4 2 Restatement p *10 840A, I Torts, 2d, § 168. would Restatement regard to the nuisance and reverse claims._ designed Further, system was indication that there was some meshing and the actual with metal
to have a flexible connector drawings system rely for the had none. Plaintiffs connector support drawings may interpreted, such be so this claim. While interpretation is not manifest.