GARCIA v CITY OF JACKSON (ON REMAND)
Docket No. 109324
Court of Appeals of Michigan
Submitted June 9, 1988. Decided January 17, 1989.
174 Mich App 373
Leave to appeal granted, 432 Mich ---.
On remand, the Court of Appeals held:
Sincе the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception
Reversed and remanded.
MACKENZIE, J., dissented. She would hold that, while no one view of the scope of the nuisance exception commanded a majority of the Supreme Court, the nature of the nuisance claim pled here would not come within the scope of a nuisance action which a majority of the Supreme Court would hold to be necessary to avoid governmental immunity. She would affirm the trial court‘s grant of summary judgment in favor of defendant.
NUISANCE — INTENTIONAL NUISANCE — GOVERNMENTAL IMMUNITY.
A majority of the Supreme Court has not voted to override prior precedent concerning the intentional nuisance exception to governmental immunity; accordingly, claims of intentional nuisance remain not barred by governmental immunity.
Mark T. Light & Jan Paul Benedict, for plaintiffs.
Stanton, Bullen, Nelson, Moilanen & Klaasen, P.C. (by Charles A. Nelson), for defendant.
ON REMAND
Before: CYNAR, P.J., and MACKENZIE and WAHLS, JJ.
CYNAR, P.J. Plaintiffs appeаled 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.
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 NW2d 739 (1979), and Furness v Public Service Comm, 100 Mich App 365; 299 NW2d 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 NW2d 205 (1988), the application was again considered and, pursuant to
In its original opinion, this Court noted that plaintiffs appealed the trial court‘s finding that plaintiffs had failed to рlead an intentional nuisance. Plaintiffs claimed that defendant intentionally created and maintained a structure that presented a danger to the public. The complaint
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 NW2d 98 (1976); People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987); Li v Wong (On Remand), 170 Mich App 256; 428 NW2d 36 (1988).
Further, the result and the language in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 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.
WAHLS, J., concurred.
MACKENZIE, J. (dissenting). This nuisance action arises out of the drowning of Javier Garcia near the Holton Dam, located in defendant City оf 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 NW2d 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 NW2d 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 NW2d 36 (1988), Hadfield nonetheless stands as persuasive authority. Contrary to the majority opinion, I interpret the Court‘s rеmand 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, beаr 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 NW2d 847 (1986). This may be accomplished by stating a claim which fits intо 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 NW2d 641 (1984). In Hadfield, all participating
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 tresрass 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
I agree with the concurrence to this Court‘s previous opinion that plaintiffs have pled an intentional nuisance in fact, rather thаn 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.