*1
REMAND)
(AFTER
LI v FELDT
REMAND)
(AFTER
GARCIAv CITY OF JACKSON
(Calendar
Argued
November
Nos.
Docket Nos.
4-5).
30, 1990.
April
Decided
Li, passenger of an automobile involved in an automobile
Chen
Arbor, brought
in Ann
an action in the Washtenaw
accident
alios,
against,
City Ann
and
Circuit Court
inter
Arbor
Robbins, alleging
engineers,
two of its
Kenneth Feldt and John
timing
signals along
negligence in
the road on
of the traffic
court,
Jr.,
Ager,
The
William F.
which the accident occurred.
J., granted
disposition
summary
for the defendants on the
ground
respect
that the
of limitation had run with
statute
asserting
negligence
complaint
inten-
claim. An amended
ground
merely
dismissed on the
tional nuisance was
negligence
Appeals,
Sawyer,
claim. The Court of
restated the
P.J.,
Thomas, JJ.,
part
and E. M.
affirmed in
and
and Sullivan
part, finding
plaintiff
that the
had stated a valid
reversed
nuisance
intentional-nuisance claim and that
intentional
was
93688).
(Docket
No.
Supreme
Court remanded
case to the Court
light
of Hadñeld v Oakland Co Drain
reconsideration
remand,
Comm’r,
Ap-
stated that the terms
act,
and
first sentence of 7 of the
§
"state,”
second,
interchangeable. While
as used in the
are not
state, political
"governmental agencies”
"the
is defined as
subdivisions,
corporations,”
municipal
not
"state” does
and
government.
municipalities
other forms of lower
embrace
and
Mich
purposes
governmental immunity
fundamental
of the
act
immunity municipalities, grant immunity
to
were
restore
engaged
when
in the exercise or
all
levels
function,
prevent
judicial
discharge
and
sovereign immunity.
abrogation of
statutory prohibition
of modification or restriction
specifically applies
to the state and not to other
governmental agencies.
merely
The second sentence of
prevent further
state’s common-law
intended to
erosion
immunity,
preserve any
rather than
governmental immunity.
activity
municipality
Unless the
falls within one of the
question
narrowly
statutory exceptions,
only
five
drawn
remaining
activity
in these
is whether the
at issue is a
cases
Legislature.
function as defined
Because
question
per
public
whether either nuisance
se or
governmental immunity
is a common-law
was not
preserved
appeal,
these cases should not be remanded to the
Appeals.
Court of
Levin, writing separately,
Justice
stated that because nui-
they
have
been
on the
are
sances
classified
basis whether
nonintentional,
accordingly
intentional or
there is no
nuisance,
separate category of intentional
there is no need to
*3
exception
decide whether there is an intentional-nuisance
to
governmental immunity.
per
public
Nuisance
se and
recognized categories
question
are
of nuisance. The
whether
per
public
there is a nuisance
se or
governmental should be decided
a case where the
factually
per
court concludes that
there is a nuisance
se or a
public nuisance.
(1988)
App
Amicus Curiae: Attorney Kelley, General, Louis
Frank J. Caruso, sistant-in-Charge, General, Lefñer, As- A. Michael Solicitor McDaniel, C. Assis-
and Michael Attorney Attorney General, for the General. tant AFTER REMAND consolidated C.J. These cases were Riley, purposes appeal whether defendants decide from on the basis of their are immune on the facts of entities status are immune these cases. We hold defendants because intentional for an intentional nuisance recognized excep- nuisance is tion
i A. LI V FELDT Yu-Feng Wong May Chou On defendant driving in Ann Arbor. In the on Pontiac Trail passenger plaintiff Li. In the front seat was Chen car, was the owner defendant back seat Wong. Yu-Feng Wong ran a red Chu-Fen light Chou the corner of Trail and Barton at Pontiac vehicle driven Drive collided with another Belknap. Becky inju- Plaintiff suffered defendant ries. complaint on Plaintiff filed March Among City Ann were the Arbor the defendants engineers, Feldt and its Kenneth and two of John Robbins. traffic *4 alleged negligence1 on the Plaintiff liability excep brought pursuant highway 1 The was to the claim 3.996(102), tion, 691.1402; tort liabil to the MCL MSA ity act. 588 584 Opinion op the Court part engineers timing city of the and its signals. the traffic disposition, city summary moved which granted by the trial court the statute because respect negli-
of limitation had run with gence complaint, claim. filed an Plaintiff amended asserting city intentionally created a setting cycle light. nuisance in traffic complaint simply The court found that the new negligence complaint claim, restated the was dismissed. appealed Appeals,
Plaintiff in the Court part part affirmed in of the trial and reversed in the decision finding plaintiff
court, had stated claim, a valid intentional-nuisance and that inten- exception tional immunity. was an App 767; 162 Mich (1987). applied appeal
Defendants for leave to in this May 31, 1988, Court. On this Court remanded2 the Appeals case to light for reconsideration in of the decision Hadfield Oakland Co Comm’r, Drain 422 Mich NW2d Appeals remand, . On the Court of held that governmen the intentional-nuisance abrogated tal had been Hadfield.3 (1988). App 256; NW2d
B.
v CITY
GARCIA
OF JACKSON
City
Defendant
of Jackson
the owner of
purposes
Holton Dam.
of the
One
the dam is to
concurring
plurality finding
intentional-nuisance
overrule
was response pipe by Thereafter, the current. company city action, with a contracted citizen study safety-enhancement the dam. to conduct a Also, signs. posted city stated, "No Two three Swimming by Swimming,” stated, and one "No City Con- to River of Jackson/Undertow Order duit Entrance.” safety February 1983, 26, further before On undertaken, Garcia and Javier were enhancements pond upstream from at the Sisk were William swimming, despite go decided dam. Garcia signs. despite posted warnings from Sisk and time, jumping Gar- into the water second After pipe into the undertow drawn cia was drowned. family Javier Garcia’s June On personal representative filed suit of his estate against City first com- of Jackson. Plaintiffs’ per alleged plaint nuisance se and knew fact. Plaintiffs also asserted defendant precau- danger more and should have taken drowning. The trial court the first tions after granted disposition summary in favor a motion plaintiffs file an defendant, allowed but complaint complaint. amended Plaintiffs’ amended dispo- summary alleged per only se. After granted, plaintiffs again for defendant sition alleging only complaint, amended filed wilful and wanton second once The court misconduct. disposition summary again in favor ordered allege plaintiffs ele- failed because defendant Mich Opinion op the Court a claim in avoidance of ments of immunity. holding Appeals reversed,
The Court of although expressly asserted in nuisance was pled complaint, plaintiffs sufficiently in had govern nuisance, a claim not barred tentional App 254; 393 NW2d a con mental 599 The Court of certified abeyance *6 flict, pending in and this Court held this case supra. Hadfield, in Once Hadf decision decided, the ield was this Court remanded4 instant Appeals in case to the Court of light for reconsideration Ap remand, of Hadñeld. After the Court of peals found that intentional nuisance had been pled the and that Hadñeld did not overrule exception governmental intentional-nuisance immunity.5 to April granted appeal 7, 1989, case, to in On we leave consolidating Li the instant mine whether defendants are immune from liabil- it with to deter- governmental ity on the their status as basis of entities.6
ii
dispute
Li
on the
and Garcia centers
scope
exception
limited issue of
of the nuisance
the
governmental
immunity; specifically,
to
whether
(1988).
intentional nuisance
to
since
Hadñeld,
matter,
majority
in
of the
which is the last word on the
the
justices
prior precedent
did not vote to override
concern-
ing
exception
governmental
the intentional
to
immu-
binding precedent
nity
any
to
for future
so as
establish
new
majority
only.
App
cases. There was a
for the result
Mich
[174
376.]
6
entails intentional governmen- § the found that 7 of Court Hadñeld seq.; liability act, et MSA MCL 691.1401 tal tort 3.996(101) seq., approach mandates historical et excep- scope proper defining of the nuisance the to governmental liability tort 7 of tion.7 Section the act states: Hadñeld, majority that the In this Court found exceptions preserved to liability
tort Including act common-law adopted three-justice plurality historical agreed Legislature justices in- analysis, participating that six Boyle exceptions. codify stated: Justice tended opinion premise the of the lead is that §7 basic requires liability tort act a continuation prior to its enactment formulated agree PA I 155. 1964 and as amended Legislature immunity codify intended common law Emphasis [Hadfield, p 204. .... added.] separate opinion, agreed Levin, that at least Justice in a also govern- trespass-nuisance survived the enactment Id., p act. mental yet opinion, another Justice stated: Archer agree opinion I lead the second with the under sentence which existed [Id., prior p 214. enactment of the statute are retained. *7 Emphasis added.] Thus, majority interpretation of this has on an Court settled 29, recently In his the second of 7 as as March 1988. § sentence concurrence/dissent, 7 not to include common- Justice Griffin reads § exceptions urges interpreta- Justice law tion of Hadñeld Griffin in the would undercut the studied effort manifested § which opinions. clear, legislative if were not Even intent behind this sentence has been said: policy, usually Stare is the wise because most decisis important applicable rule
matters it more
settled
that
of law be
is
right.
commonly
. .
is
true
that it be settled
. This
than
concern, provided
even
the error
a matter of serious
where
is
legislation.
&
had
393,
v Coronado Oil
[Burnet
correction can be
Co,
443;
L Ed
285 US
52 S Ct
Gas
Farrell,
J.,
(Brandeis,
Mich
dissenting), quoted in
v
Abendschein
(1969).]
510, 517;
and defined
the same
One of these
here in issue: the doctrine of "nuisance.”
case,
suggests
In the instant
the concurrence/dissent
"legislative
underlying
merely
intent
the second sentence of 7 could
§
preexisting
have been to 'affirm’ the state’s
absolute [no
Post,
sovereign immunity
However,
p
function
. . . .”
limitation]
(On Rehearing),
567, 606;
in Ross v Consumers Power
420 Mich
(1984),
NW2d 641
this Court stated:
enacted,
the time
7 was
[A]t
state was immune from
engaged
discharge
tort
of a
when it was
in the exercise or
id., 602,
function ....
also
[See
n. 15.]
support
Further
for the view that the state did not have absolute
prior
to the enactment of the statute can be found in
Dep’t
Hwys, supra, p 11;
Hwy
Thomas v
of State
Manion v State
Comm’r,
1, 19;
(1942);
explore judicially the extent of created nuisance recog exceptions prior July clearly 1, 1965. A exception "intruding-nuisance” nized was the or "trespass-nuisance” exception. supra, p Hadfield, trespass-nuisance "trespass 169, defined as a or enjoyment interference with the use or of land physical caused intrusion that is set in mo agents resulting tion in or its
personal property damage.”10 Trespass- exception spe only nuisance was the acknowledged cifically plurality. the Hadñeld recognizing trespass-nuisance After cause of plurality applied action, the in Hadñeld the histor- analysis ical test to intentional nuisance and re- jected exception governmen- it as a common-law tal immunity._ Brickley opinion plurality joined by Justice wrote the Chief Riley Cavanagh.
Justice and Justice Taking Clause of the constitution at the rests foundation of Ryan trespass-nuisance exception. taking Justice wrote about the Dep’t Hwys, rationale in his dissent in Gerzeski v of State 403 Mich 149, (1978), Hadfield, 170; supra, p which is cited in 165: [intruding-nuisance] potentially dangerous In cases the in-
strumentality owned land onto ing premises literally government- or condition moves from adjacent property. neighbor- Consequently, occupants subject and its are to either the cre- foreign premises ation of a risk injury. prives This Court views such action analysis damages ensuing to the or direct and immediate transpires government effectively When this de- possession an owner of the useful of that which he owns. taking. public aas Under this obliged pay compensation the state is reasonable "taking” from such with the accordance 1963, 10, Michigan, Constitution [Citations omitted.] the State Const art trespass-nuisance, Note that in its definition the Hadñeld Court government-owned did not restrict the source of the intrusion to land. Li v Feldt op initially formulated The two cases which City Rosario v are intentional-nuisance of (1978),11 Lansing, 268 NW2d Dep’t Hwys, of State and Gerzeski v (1978).12 applying the historical 268 NW2d prior July analysis, there note that we recognized claim no intentional-nuisance escape governmental Since could pre-1965 recognized intentional- no there was finding exception, no there is basis assuming Thus, time. at this such an in both was correct the Court of *10 pled finding plaintiffs had intentional in that cases excep- panels improperly nuisance, found an governmental basis of on the tion to We hold that historical intentional nuisance. defining excep- scope approach of the nuisance governmental a find- mandates tion to ing exception nuisance is not an that intentional to immunity._ falling Rosario, after into In a nineteen-month-old child drowned joined by city property. open Fitzgerald, an Chief Justice in-fact on Justice sewer drain Kavanagh Levin, nuisance- Justice found broad and immunity. A concurrence written to joined Williams, and Justice found Moody, Jr., Justice Blair exception, negligent only in was an intentional nuisance fact in nuisance fact. Moody nuisance as to defined intentional the "intent[] Justice bring fact to nuisance.” which are in found be a about the conditions Rosario, p 142. concerning However, Appeals there is confusion Appeals panels find of intentional nuisance. Most Court of elements purpose a defendant either acted intentional nuisance when causing substantially to harm certain follow. harm or knew that Hadfield, interpretation supra, n 14. Since neither See recognized prior to we find unneces nuisance was intentional sary to resolve this conflict. falling through Gerzeski, young boys the ice drowned after two Department. pond Highway While on an artificial owned children, through boys looking fell the father of one three-justice again plurality as in Rosario ice held Justice nuisance-in-fact and drowned. same concurrence, expanded exception. In the in favor nuisance Moody limited the Justice Williams would have and exception to intentional nuisance. Opinion by Griffin, J. plurality
The Hadfield left undecided whether per public se and limited nuisance claims exceptions are to We Appeals remand these cases to the Court of to per consider the existence of nuisance se and public immunity, to and their applicability if, to these cases and to the extent they properly that, Appeals. were raised before the Court of Accordingly, Ap- the decisions of the Court of peals in both Li and Garcia are reversed. We remand to the Court of for further consid- eration. Boyle, JJ.,
Brickley, Cavanagh, concurred with C.J. Riley, only J., concurred in the result.
Archer, (concurring part dissenting Griffin, part). Although majority’s holding I concur in the intentional nuisance is not an immunity, separately reg- I write my disagreement ister proach” ap- with the "historical upon
relied result, reach that and to portion opinion dissent from that of Appeals. would remand these cases to the Court of important keep It is in mind that these cases *11 immunity governmental agencies involve the of other than the state.1 The § first sentence of 7 of immunity provides: act
Except provided as act, otherwise in this all 1 City The City of Ann "municipal Arbor and the of Jackson are corporations” provided within the definitions liability 3.996(101)(l)(a). 691.1401(l)(a); act. MCL Although MSA municipal corporations, along state, with the are within the definition "governmental agency” of 691.1401(l)(d); 3.996(101)(l)(d), MCL MSA municipal corporations are not within the definition of "state.” MCL 3.996(101)(l)(c). 691.1401(l)(c); MSA 597 Li v Griffin, from tort governmental agencies shall be immune government liability in all cases wherein a discharge of engaged in the agency is exercise [Emphasis function. added.] provides: The second sentence act, act provided in this this Except as otherwise restricting modifying or construed as shall not be as of the state from tort July existed before affirmed.[2][Emphasis added.] in Hadf as today, plurality The did majority Comm’r, 139, v Co Drain ield Oakland (1988) J.), 170; (opinion 422 205 NW2d Brickley, requires 7 an sentence of asserts that second § of common-law analysis historical 3 plurality opinion immunity. Hadñeld, decision, today’s which forms basis conceded: alone, sup- the first sentence of does Taken act, preclude
port interpretation narrow Legisla- any exception. recognition liabil- to describe the ture’s use of the word “tort” 3.996(107), 691.1407; PA as amended 2 MCL MSA added.) (Emphasis " application specific Sovereign term limited its 'is commissions, boards, departments, institu to the to the State and tions, (On ” Power State.’ Ross Consumers and instrumentalities (1984), 567, quoting Rehearing), 363 NW2d Mich Auditor, Myers Co NW2d v Genesee J.). O’Hara, (opinion of construction, 'sovereign’ judicial years, by this "Over the transmogrified 'governmental’ immu into has been applicable nity government the 'inferior’ divisions made important These sub . . distinction. . but with enjoyed immunity only en when divisions of distinguished 'proprietary’ gaged functions.” 'governmental’ from supra, pp quoting Myers, [Ross, supra, 8-9.] *12 598 584 Opinion by Griffin, J.
ity from which agencies are to be held exemplifies immune the breadth of in tended immunity. There is no doubt that nuisance is a tort and that liability for nuisance would be scope within the of statutory immu nity expressed [Id., in the first sentence of 7. p § Emphasis added.][4] Nonetheless, the Hadñeld plurality rejected a re- interpretation strictive of 7 by contending § "the second sentence 7 retains preexisting § law except where pro- vided added.) otherwise in the act.” Id. (Emphasis
However, neither the plurality opinion in Had ñeld, nor the opinion majority today, addresses the significance of the Legislature’s use of the terms "governmental agencies” in the first sentence of 5 7 and "state” in the A § second. literal reading of the second seems, sentence most, at § require an historical state’s common- analysis law immunity.6 The significance the Legis (On See Rehearing), supra, p also Ross v Consumers Power n 3 618: liability provided by [T]he from tort is ex- §7 pressed possible language in the broadest extends —it governmental agencies
to all they all tort whenever engaged are discharge in the exercise or function. 5See Hwy Dep’t, also Gerzeski v State NW2d holding act, that a nuisance cause of action survived the appear Court "did not to have considered” the second sentence of 7.§ (On Rehearing), Ross v supra, Consumers Power n 3 n 64 (Levin, J., dissenting part). Brickley’s opinion Justice Hadfield Hwy cites Thomas v State Dep’t, 1, 11; (1976), principle NW2d 530 for the that the second precedent sentence of 7 governmen affirmed the case-law immunity, implying tal However, analysis thus required. that an historical Indeed, Thomas concerned agency. of a state opinions few expressly commentators or court have concluded that the second exceptions sentence of 7§ codifies the common-law governmental immunity. merely agree Most that the second sentence of 7 sovereign See, § codifies the Li v Feldt Griffin, "governmental agencies” in the first use
lature’s
*13
in
second sentence is
and the "state”
the
sentence
given
expressly
by the definitions
underscored
agency” is
in the act. "Governmental
those terms
political subdivisions,
state,
and
defined as "the
municipal corporations.”
"state,”
The
on the other
Michigan and
hand,
as
state
its
is defined
"the
of
agencies, departments,
.
. .
.”7
[and] commissions
statutory
interchangeable. The
terms
not
The
are
provision prohibiting
of
modification or restriction
applied
immunity
specifically
"state,” a
to the
is
municipalities and
not embrace
term which does
sup
government. Definitions
of lower
other forms
binding
plied
Legislature
in the statute are
the
("the
(On
595;
e.g.,
Rehearing),
supra,
n 3
Ross v Consumers Power
statutorily
sovereign
the
of
immu-
sentence
affirms
law
[state]
second
supra, p
liability”);
Hwy Dep’t,
nity
v
11
from tort
Thomas
State
("this language
of case-law
must be construed
an 'affirmation’
subject
immunity”);
precedent
Manistique
Perry
Pinchette v
on
the state’s
the
of
268, 278,
(1978);
Schools,
269
143
403
n
NW2d
Mich
Hosp,
205, 210-211;
421
Mich
273 NW2d
Kalamazoo State
404
v
(1978) ("historical
suggests
this
in which
statute was enacted
context
codify
Legislature’s
adopting this act
the
intent
in
that
the
state”);
existing
judge-made
the
of
Killeen v
common-law or
(1989)
1,
Transportation,
Dep’t
(Riley,
of
governmental
C.J., dissenting) ("[the]
statute codified
Weller,
sovereign immunity”).
principle
also
of
See
outline, Cooley
Sovereign immunity Michigan:
R
and
6
L
Sources
("the
(1989)
plain language
. .
the . Act
n 237
of
§ 7[1]
provide
specific
state from those common
exclusion
seems
law
existed
Mich
Intentional nuisance
sovereign]
governmental
that
[but
1965”).
Lansing,
1,
City
July
But see
before
Rosario
DeMars,
(Ryan, J.,
124, 146;
dissenting);
268 NW2d
in fact: Should
be a bar
Michigan?, 1981 Det L R
C
function defense
article,
plurality
Cooperrider’s
prominently
cited
Professor
Hadñeld,
arguing
rely
in§
on the second sentence
in
nuisance
liability
of the common-law nuisance
did not
that
trespass
tort
enactment of the
survived the
Instead,
argued
given
long history
Cooperrider
that
act.
Legislature
exception,
have
would
Cooperrider,
expressly
court,
intent.
it had that been their
abolished
Michigan,
legislature,
and
R
Mich L
279-281
3.996(101).
691.1401;MSA
7 MCL
Opinion by Griffin, judiciary.8
assuming arguendo
Thus,
on the
requires
the second sentence
analysis,
an historical
applied
it should be
to the "state” and
"governmental agencies.”
not other
underlying premise
plurality
of the Hadñeld
opinion appears
Legislature’s
to be that the
intent
to make uniform the
of all
levels of
requires
analysis
the historical
purportedly required by
applies
§ 7
to all levels of
government, despite
express
limitation of the
purported
analysis
historical
to "the state.”9
Although
purpose
the act’s title declares its
liability municipal corpo-
"to make uniform the
political
rations,
agencies
subdivisions,
state,
and the
its
departments,”
uniformity
of im-
munity
sarily
Legislature
intended
does not neces-
nongovern-
include both
*14
qualifies
mental functions. The act’s title
the uni-
formity purpose by providing
Legislature
that
the
sought
liability
govern-
to make uniform the
of all
engaged
discharge
ment ”when
of
in the exercise or
governmental
Simply
function . . . .”
because
Legislature
the
levels of
claimed
on behalf of all
government
engaged
"when
in the exer-
discharge
governmental
cise or
of a
function” does
necessarily compel
the conclusion that
engaged
state has no
exercise or
when not
in discharge
governmental
of a
function.
governmental
Indeed,
liability
act was
" '[djrafted
apparent assumption
under
that
agencies enjoyed
sovereign
the state and its
a total
Smith,
People
(1929);
v
246 Mich
judicial branch 4;n 247 NW2d Dep’t, Hwy v State 530 (1976) (Kavanagh, C.J., dissenting). Citation omitted.] (Levin, J., Cooperrider, dissenting) (quoting Ross, p 665 supra, n 3 277). supra,
6n activity Thomas, is the test for whether held that Court discharge must be function of a the exercise or within prior This precedent to 1965. as it stood determined case-law excep analysis today’s analysis, historical similar Ross, immunity, rejected in Parker tions Parker, question supra, p was whether supra, pp 609-610.In Despite hospital two operation function. *15 hospital operation holding is a of a pre-1965 governmental decisions by function, those not bound held it was the Court decisions, that the second declining of Thomas to follow the rationale subject precedent on "case-law affirmed sentence §7 however, by an Today, feels bound immunity.” the Court state’s finding public possibility open analysis leaves historical immunity. As Justice per exceptions to se and nuisance Coleman observed Schools, supra, Manistique n 6 Pinchette v in (1978) dissenting part): (affirming part 291 602 584 by Griffin, approach Contrary employed to the historical plurality opinion, this Court has re- Hadñeld " peatedly stated that the act constitutes a 'broad grant immunity’ narrowly with 'four drawn ”12 exceptions.’ approach statutory The historical adopted by ajar majority today leaves the door exceptions to additional that cannot be fairly language § culled from the of 7.
Significantly, previously this Court has exam- ined whether intentional-tort exists finding under the act. there is no such exception, in Smith v Public Health Dep’t, (1987),13 540; 428 Mich did it, problem IAs see our derives from a desire to circumvent governmental immunity
the To this some theories of nuisance . . statute —or eliminate it in effect. end, (e.g., by-paths the Court has contrived to establish .). 12Hadfield, 146; Ross, 618; supra, p supra, p n 3 Reardon v Mental 398, Dep’t, 412; (1988);Smith, supra, Health 248 NW2d 591-592;Thomas, 9, pp supra, p City Taylor, n 6 n Pittman v 41, 62; (Coleman, J.); Pinchette, supra, Mich NW2d n 6 p 277. 3.996(102) 691.1402; statutory exceptions The four are MCL MSA 3.996(105) 691.1405; (highway repair); (negligent operation MCL MSA 3.996(106) government-owned vehicle); 691.1406; of (public buildings); motor MCL MSA 3.996(113) 691.1413; (proprietary MCL MSA func- tion). 175, statutory exception by A fifth was added 1986 PA MCL 3.996(107)(4) 691.1407(4); (ownership operation hospital MSA or county facility). medical care exceptions, statutory Aside from these five narrow agency may taking. be liable for an unconstitutional Const art Buckeye Michigan, 2. See Fire Union Ins Co v Hadfield, supra, pp NW2d See also 168-169. Whether a governmental agency enjoys immunity Takings for a violation of the Clause, however, separate question preserves is a from whether 7§ governmental Brickley opinion joined by The lead was authored Justice Riley. Boyle separate opinion, Chief Justice and conclusion that does not avoid A authored Justice Brickley’s joined Cavanagh, Justice with Justice "concurred] allegation . . . the aof common-law intentional Smith, statutory per supra, p se . . . .” *16 Li v Feldt by Opinion Griffin, J. analysis” any of common- "historical not resort to governmental In- law stead, stated: recognize any In to now decide whether to order govern- tort
form of intentional act, first immunity this Court must deter- mental Legislature intended the term mine whether exclude inten- liability” in 7 of the act to "tort § on the face We conclude that tional torts. nothing an an intent to create such of statute indicates exception. [Id., 602.] torts, is in intentional there As the case of nothing which indicates the face of the statute on legislative intent a to create analysis Thus, set forth under the nuisance.14 only if an Smith, to decide "[i]t remains then can out of the exercise intentional arise pp governmental Id., 603-604.15 function.” primary purposes of the act were to restore The municipalities of Wil- in the wake (1961), Detroit, v 111 NW2d liams attempts sover- "halt this Court’s to abolish 14 Hadfield, supra, p See 147. 15 Ross, p 620, supra, of a new definition n 3 the Court fashioned "governmental function”: activity expressly is or of function is an [A] constitution, statute,
impliedly other law. When or authorized the within one of tal mandated authorized engages agency mandated activities, liability, unless it is immune from tort (as 13) proprietary activity or falls § in nature defined governmen- statutory exceptions to the the other act. modify Legislature in the event our broad definition We invited the scope Legislature’s regarding intent that it did not reflect adopted immunity. Id., p Legislature subsequently the Ross 621. Legis- doing, practically PA "In so verbatim. 1986 definition lature scope put imprimatur as defined the broad its on exception.” and, implication, scope the narrow its in Ross supra, Dep’t, p 412. Health n 12 Reardon Mental Griffin, eign immunity.”16 sen- first tence achieves uniform to the government enjoy extent that all levels of immu- nity engaged discharge when in the exercise or Legislature However, function. *17 made clear in the second sentence that the state’s preexisting immunity was not to be modified or regardless governmental restricted of the function limitation in the first sentence. As Justice Levin supra, pp years Ross, observed in 668-670, three abrogated after Williams the common-law immu- nity municipalities: Legislature governmental enacted the tort [T]he liability act, primary purpose act. The of the
which, "was special drafted committee of the Michigan lobbied Municipal Association of Attorneys and through legislature strong with the backing of that parent organization, association’s Michigan Municipal League,” appears to have been to restore immunity non-sovereign govern- mental units. purpose,
To Legislature pro- achieve this vided in the first sentence of 7 "[e]xcept as provided, this act governmental otherwise all agencies shall be immune from tort liability all government cases wherein the agency engaged in the discharge exercise or of a function.” The utory immunity thereby act conferred uniform stat- on all entities— both the non-sovereign political state and units engaged alike—when discharge in the exercise or ’’governmental of a function.” that, To make by restoring clear municipal corporations immunity for functions making govern- uniform the of all 16Hyde Michigan Regents, 223, 244; v Univ of 393 NW2d (1986); Thomas, 10; supra, p Tawas, n 6 Maki v East (Williams, J., dissenting); n Little john DeMars, & Perry: Governmental after Parker and king wrong, 1, Ross, supra, p can do some 1982 Det C L R n 3 Li Griffin, J. governmental functions, it was entities
mental abso- common-law waiving the state’s thereby not lute non-governmental sovereign immunity the second functions, provided in Legislature provided "[ejxcept otherwise as sentence herein, §7 modify- not be construed this act shall from the state restricting immunity of ing or heretofore, immu- it existed liability as af- immunity is "which nity is affirmed.” common-law codified the state’s firmed” clause abso- from tort sovereign immunity lute —an it is waived except to the extent [Emphasisadded.] Legislature. purposes opinion, my the fundamental municipalities, immunity to were to restore act grant when to all levels discharge govern- engaged in the exercise abrogation prevent judicial function, and mental sovereign The second prevent merely intended § 7 sentence further erosion nity, immu- of the state’s *18 excep- preserve any common-law than rather immunity. anal- Under this to tions municipality activity falls ysis, of a unless statutory narrowly drawn of the five within one remaining only question exceptions,17 in these "governmental activity a is cases is whether Legislature.18 function,” defined any event, because, reasons, and For these appeal question preserve plaintiffs failed to 691.1405; 3.996(102) repair); 691.1402; (highway MCL MSA MCL 3.996(105) operation government-owned motor (negligent MSA 3.996(106) buildings); (public 691.1406; MCL vehicle); MSA MCL 691.1407(4); 3.996(113) function); 691.1413; (proprietary MCL MSA hospital county 3.996(107)(4) (ownership operation or or MSA facility). medical care expressly activity or which is is an function” "Governmental statute, constitution, local impliedly or authorized mandated 691.1401; ordinance, MSA law. or other [MCL or charter 3.996(101).] Separate Opinion Levin, J. per public or whether either nuisance se nuisance exception to immu- common-law nity, I would not remand these cases to the Court Appeals. (separate opinion). majority de- Levin, recog- clares that "intentional nuisance” is not nized exception im- to munity,1 and are remanded to the cases Court of "to consider the existence of per public exceptions se and nuisance immunity, applicability if, and their to these cases they properly that, the extent were raised Appeals.”2 before Court of agree majority I with the that nuisances have they not been classified on the basis of whether Accordingly, are intentional or unintentional. being separate category there no of intentional nuisance, there is no need to decide whether there governmen- is an intentional nuisance tal per public recog- Nuisance se and nuisance are categories majority nized of nuisance. While remands the cases a determination of whether categories exceptions those of nuisance are to im- opines munity, "any case-law [July devised after the effective date governmental governmental escape liability act,] would not
immunity.”3 question whether per public there is a nuisance se should be decided in a case where the court concludes that per public factually there is a nuisance se or a nuisance. negligence per
The Court states that the se and *19 1Ante, p 587.
2Ante, p 596.
3Ante, pp 592-594. Li v by Separate Levin, J. only public considered can be nuisance issues "they if were on remand the Court of Appeals.”4 is, It properly the Court before raised Appeals in the first however, need be extent issues to what instance properly decide properly rais- what constitutes raised and ing would, think, I all We that Court. them before agree on the Court the decisions this "exception” to crystal context, the In that clear. have not been suggesting or de- cautious about should be Court precise preservation ciding to what extent required. category of nuisance is category long-recognized is a Public nuisance ap- adopts majority the historical nuisance. The proach5 authority indicating there what without public may that a for the notion be historically by government immune.6 committed public highway or a with use of Interference historically. public waterway nuisance, is a highway. using public plaintiffs in Li were a using may plaintiff’s have been decedent Garcia public waterway. tradition is to The common-law
together. law, cases, i.e., facts and the decide the decision on The facts inform law._ 4Ante, p 596. by majority adopt approach of this the historical "We endorsed Comm’r, 139; Co Drain
Court
Hadfield” Oakland
(1988). Ante, p 594.
NW2d
held,
July
jurisdictions
that a
before
Courts in other
personal
injury
entity
subject
caused
property
although
injury
was suffered on
owned
a nuisance
trespass by
government,
on
there was no
Inc,
Newspaper,
192 Tenn
private property. Johnson v Tennessean
(1951);
City,
179 Kan
Lehmkuhl v Junction