Li v. Feldt

Li v REMAND) (AFTER SECOND LI v FELDT REMAND) (AFTER SECOND JACKSON GARCIA CITY OF (Calendar 5, Argued Nos. November 92057. Docket Nos. 1-2). May 1992. Decided brought Circuit Court in the Washtenaw. Li an action Chen employees, against City two of its Ann Arbor and of Robbins, injury alleging her in an that John Feldt and Kenneth caused, part, by improperly an was automobile collision Jr., J., court, granted Ager, light. F. The William timed traffic Appeals, summary disposition The Court of for the defendants. Thomas, JJ., P.J., reversed E. M. Sawyer, and and Sullivan 93688). (Docket Supreme remanded vacated and The Court No. Comm’r, 430 light Co Drain Had&eld v Oakland the case in of 691.1407(1); MSA MCL which held that Mich 139 3.996(107)(1) determining approach to historical mandates an exceptions On existence of Beasley Sawyer, P.J., remand, Appeals, and and the Court reversed, JJ., finding histor- again there was an Sullivan, governmen- recognized ically nuisance intentional 109337). (Docket Supreme Court reversed immunity No. tal case, finding intentional there is no and remanded the 434 Mich 584 exception to Sawyer, P.J., remand, Appeals, the Court On second Shepherd reversed, JJ., holding again Sullivan, still and historically se were nuisance and nuisance that both (Docket No. recognized exceptions to 129603). appeal. The defendants Sr., representative Garcia, personal for himself and as Manuel others, deceased, brought Garcia, the estate of Javier against the of Jackson Court in the Jackson Circuit action Dam, drowning the Holton Garcia in of Javier as a result alleging nuisance in city holding pond, se and pond claiming city in a maintained that the had References School, Liability 2d, County, Tort Municipal, and State Jur Am 35-42,135. 163-165,257-273;Nuisances §§ §§ Immunity or under Governmental Index to Annotations See the Privilege; Nuisances. 439 Mich dangerous condition when it knew or should have known that drownings court, likely Fleming, were to result. The James G. J., granted summary disposition for the defendant. The Court J., (R. Appeals, Bronson, Burns, P. Kaufman, and R. B. (Docket C. J., 84513). concurring), Supreme reversed No. Court, light remand, vacated and in remanded of Hadñeld. On Appeals, P.J., Cynar, Wahls, the Court of (Mackenzie, and J. J., (Docket 109324). dissenting), again reversed No. The Su- preme reversed, holding Court intentional nuisance was historically recognized exception governmental not an to immu- nity, remand, 434 Mich 584 On second the Court of Appeals, Cynar, P.J., J., Wahls, (Mackenzie, dissent- ing), again reversed, holding public still nuisance and per historically recognized exceptions nuisance se were to (Docket governmental 129602). immunity No. The defendant appeals. separate opinions, Supreme In the Court held: public exception governmental There is no nuisance immu- addition, nity. per exception applies no nuisance se in these cases, requiring judgments reversal of the of the Court of Appeals grants and reinstatement of the trial courts’ of sum- mary disposition for the defendants. Brickley Cavanagh, joined Chief Justice Justices Mallett, public exception stated that there is no nuisance governmental immunity liability from tort under MCL 691.1407(1); 3.996(107)(1). MSA excep- To whatever extent an exist, per tion implicated nuisance se it is not in these cases. 691.1407(1); 3.996(107)provides MCL immunity MSA from governmental tort agencies for all they where are engaged discharge in governmental the exercise or of a func- 7(1) tion. modify Section does not or restrict the 1, July state as it existed before 1965. Under the historical approach Hadñeld, question mandated in this case is exception whether clearly recognized the claimed was in au- 1, July thoritative case law before 1965. Pound v Garden Dist, School properly 372 Mich 499 is considered for 7(1) purposes analysis of § because it was decided more than a year July 1, 1965, plainly before scope falls within the language the amended of the act. Neither Pound nor the other upon by plaintiffs cases relied any established nui- exception sance immunity. Pound established corollary at most a narrow trespass-nuisance to the narrow exception. exception Because no basis for a nuisance appears July in the case law exception before no such Li 7(1). Thus, plaintiffs Li extent the to whatever under § exists properly may have stated claims and Garcia by governmental claims are barred such activity which consti- per or condition se is an A nuisance circumstances, under all times and nuisance at all tutes a conducted or regard which it to the care with without fact, se is Unlike nuisance maintained. very care, by its unreasonable predicated but is on want light operation in Li nor of the traffic nature. Neither holding pond said to in Garcia can be maintenance of dangerous activity, intrinsically unreasonable constitute contrary, regard both To for care or circumstances. without public purposes and are obvious and beneficial activities serve pose way being capable as not to clearly conducted such Thus, regardless any of whether all. nuisance at might qualify as an se presents of nuisance a colorable claim Li nor Garcia neither per se. Riley only in the result. concurred Justice Boyle, concurring, public nuisance is stated that Justice predicated it law and much of remains from criminal derived potential A on violation of statutes. on actions immunity for relief is based where the claim exists impend- government land that constitute an for those uses of of rights. enjoyment property danger persons ing in the of to proving public category per method of or is a Nuisance se exceptionally private narrow cir- It arises in those nuisance. may Legislature Supreme Court the or the cumstances where very activity patently by its unreasonable a condition or label exception in those circumstances Such an ensures that nature. liability raising may the shield not circumvent its the state presents immunity. that fall Li nor Garcia facts Neither exceptions. per public nuisance nuisance se or within result, concurring in the Griffin, stated that these Justice failing any the five dismissed for to fit within cases should be immunity narrowly statutory exceptions to set forth in drawn governmental liability nuisance is not a tort act. Public statutory exception. opin- writing separately, agreed with the lead Levin, Justice that, plaintiffs have failed to to the extent the instant ion and, raising per allege colorable claims of nuisance facts se— appropriate public additionally to decide the nuisance —it is governmental immunity exceptions therefor. from extent of Further, presents Li a colorable claim neither nor Garcia governmental activity engaged per in The nuisance se. Mich [May- not, case, defendant did in either constitute a nuisance at all circumstances, regard times and all under without to the care with which it is conducted or maintained. Also, plaintiff in Li not maintain an action founded public exception governmental immunity, on a nuisance to but adopted by opinion reaching not for the reasons the lead in that result. Taking allegations Garcia, account of the factual it should public gov- be held that a common-law nuisance to immunity might provide plaintiffs ernmental in Garcia Jackson, against municipal with a cause of action corporation, judgment Appeals and thus the of the Court of affirmed, should be and the case remanded to the trial court for proceedings. further law, depending At common on the facts of the case and the jurisdiction arose, liability personal injury which the case arising out of the creation or maintenance of a nuisance on government property, even where there was no invasion of private property, recognized exception governmental awas to types constituting exceptions The of nuisance governmental immunity trespass-nuisance, were not limited to encompassed nuisance, public se, per but elements of nuisance intentional or absolute and attractive nuisance. labeled, inconsistently These overlapped formulations were large degree, to a but this should not be determinative. act, liability jus- After enactment of the tort Supreme recognized exceptions tices of the Court nuisance governmental immunity other than nuisance se and tres- pass-nuisance. authority allowing recovery The absence clear against governmental entity for maintenance of a justify opinion’s sweeping nuisance does not the lead conclusion that a did not exist at common law. authority, pronouncement There is no other than the in the opinion, support Legislature lead the intuition that intended, enacting liability act, tort recovery and, trespass-nuisance perhaps, allow se, regard but did not so intend with nuisance. any excep- understandable concern that once substantive made, any misstep by tion to governmental entity might subject justify it to does not public conclusion that there is no nuisance clearly Public nuisance must be de- fined, rationally Supreme Court, and confined so as to prevent governmental immunity. circumvention of every negligence It would be incorrect to hold that act of on Li give part municipality may of a But rise to nuisance. complementary proposition, that an action nuisance can acts, predicated negligent equally never be untenable. A governmental entity right ordinarily has no inherent to ob- of, in, trap way necessity. struct the use create a trespass-nuisance public exceptions governmen- and principle tal include the well-established that mem- community impeded may bers of the not be from the safe use ways necessity, navigable such as roads and water- ways, historically which have been the lines of communication making community possible. Nor a member of the commu- nity dispossessed by government physical of his well- being place, public way, while in a such as a where he has right to be. Only nuisances; unreasonable obstructions are intrin- sically dangerous unreasonable or conditions are nuisances light se. The traffic led to disaster in Li no doubt was frustrating treacherous, annoying, it but was not and did Li, trap. allegations not constitute a Unlike of the com- plaint city in Garcia state a condition of which the had notice that, although unavoidably dangerous not so as to consti- se, deadly trap tute a nuisance was a for the decedent.

Reversed. (1990) App 187 Mich 468 NW2d 268 reversed. (1991) App 197; 475 NW2d 851 reversed. Immunity — Governmental Public Nuisance. governmental immunity There is no (MCL 691.1407[1]; 3.996[107][1]). from tort MSA plaintiff Rothmeyer Pauline R. for the in Li. Light plaintiff

Mark T. for the in Garcia. City Attorney, Laidlaw, R. Bruce City Attorney, Larcom, D. Kristen Assistant defendants Li. Stanton, Bullen, Nelson, Klaasen, Moilanen & Nelson), (by A. P.C. Charles for the defendant Garcia.

Amici Curiae: Kelley, Attorney Gay General,

Frank J. Secor 439 Mich Cavanagh, C.J. Hardy, Freeman, H. General, Stewart Solicitor Charge, McDaniel, C. and Michael Assistant Attorney Attorney General, Gen- for Assistant eral, Defense Division. Tort Craig Roegge (by Haughey, R.

Smith, Rice & Noland) Michigan. County for Road Association Lax) Longley Dahling (by for Bodman, Jerold & ' League. Michigan Municipal (by Cooney, D. Christine P.C. Plunkett & Oldani), Prop- Michigan Municipal Liability and for erty Pool. (by

Cummings, McClorey, Acho, P.C. Davis & Howe), Municipal Michigan Risk L. Marcia (cid:127) Management Authority. Linkner, Braden, A. Monica Farris

John Michigan Lawyers Trial P. Charles Burbach Association.

AFTER SECOND REMAND in these cases the C.J. We revisit Cavanagh, exceptions scope of the existence and issue under from tort 3.996(107X1). 691.1407(1); hold that MSA We MCL govern- there is no that, to whatever extent mental exception may exist, it is not se implicated by us. the facts of either case before HISTORY

I. FACTS AND PROCEDURAL A. LI v FELDT injured in Li was an automobile Plaintiff Chen Lr Opinion by Cavanagh, C.J. May allegedly 5, 1983, collision on caused, which was part, improperly timed traffic light operated by Arbor. Ann city defendants before us in Li are the and two of employees, its Kenneth Feldt and John Li Robbins. 11, 1986, filed suit on March and the trial court initially granted disposition summary for the def Appeals initially endants.1 The Court of reversed part proceedings and remanded for further regarding Li’s claim of intentional 162 nuisance. (1987). App 767; Mich 413 NW2d 493 This Court light vacated and remanded in of Hadfield v Oak Cornm’r, 139; land Co Drain 430 Mich 422 NW2d (1988), majority 205 in which a of this Court held 7(1) approach § that determining mandates an historical to exceptions govern the existence of (1988). mental 430 882 Mich Appeals remand, On the Court of found that historically recognized there was an intentional exception governmental immunity, nuisance and position. again summary reversed the trial court’s dis- (1988). App 256; Mich 428 NW2d 36 granted appeal, This Court leave to 432 Mich 891 reaffirming reversed, Hadñeld’s histori- approach finding cal there is no. inten- governmental tional nuisance immu- (1990). nity. 434 Mich 456 NW2d 55 This again Court Appeals, remanded the case to the Court of

to determine whether a nuisance per or nuisance se im- munity plied exception ap- existed, and whether either presented, "if,

to the facts and to the extent properly that, [such issues] were raised before the Appeals.” Court of Id. at 596._ two-year Because Li’s suit fell outside the statute of limitations

applicable statutory highways” excep to actions under the "defective 691.1402, 691.1411(2); tion to see MCL MSA 3.996(102), 3.996(111)(2), applicability statutory exception of that does not arise issue this case. 439 Mich Cavanagh, C.J. held remand, Appeals Court of

On second adequately issues had been relevant Court, that both in that preserved raised and se were histori- nuisance nuisance and immu- exceptions cally recognized a claim of that Li had stated nity, that Li’s claim presented, on the facts on the colorable sufficiently se was consideration further to warrant presented facts 475, 492; 468 App the trial court. therefore Appeals The Court of NW2d summary disposi- again the trial court’s reversed appeal, 437 Mich granted leave to tion. We below, we now (1991), and, reasons set forth Ap- of the Court of judgment again reverse peals.

B. OF JACKSON GARCIA CITY Garcia, boy, a young Javier Plaintiffs’ decedent 26, 1983, after he went February drowned behind the Holton swimming holding pond in the was connected pond Dam in Jackson. The ten-foot, five- 2,000-foot-long, aby Grand River conduit, mouth of which was underground sucked into the Garcia was guarded by grating. it into the Grand dragged through and conduit Another River, was later found. body where his in similar manner at the had drowned young boy At producing public outcry. Holton Dam drowned, placed had been signs time Garcia swimming; in- warning against pond around the deed, accompanied him on friend who Garcia’s swimming him against warned tragic day that 10, 1983, how- It was not until October pond. death, ever, Garcia’s eight months after nearly making began physical of Jackson 465 Li Feldt Cavanagh, C.J. improvements at the dam site to enhance its safety. father,

Garcia’s on his own behalf and as the personal representative estate, of his son’s against city others, filed suit on June complaint alleged per 1983.2Garcia’s first nuisance complaint fact, se and nuisance in alleged only an amended . se, nuisance and a second complaint alleged only amended wilful and wanton allegations misconduct. The substance of the re city mained, however, that the had maintained the dangerous condition, Holton Dam in a when it drownings knew or should have known that likely summary disposition Appeals were granted initially to result. The trial court city. for the The Court of holding remanded, reversed and that Gar cia had stated a claim of intentional nuisance and that intentional nuisance constituted an immunity. App 254; (1986). just Court, Li, NW2d This as in vacated light supra. Hadfield, remanded (1988). Mich 877 Appeals, judge remand, On the Court of one dissenting, again reversed the trial court’s sum mary disposition, finding its earlier decision un App 373; affected Hadfield. 174 Mich 796 435 NW2d (1989). granted appeal, This Court leave to deciding together and, Mich 891 the case holding Li, reversed, with intentional nui historically recognized exception sance was not 434 Mich just Court, Li, NW2d This as in re Appeals manded the case to the Court of to deter mine whether a exception se immunity existed, exception applied pre- whether either to the facts convenience, plaintiffs For we will henceforth refer in singular Garcia as "Garcia.” 439 Mich Cavanagh, C.J. that, issues] [such sented, "if, the extent and to Appeals.” properly the Court raised before were 596. Id. at again Appeals, remand, the Court of second

On had issues dissent, the relevant held over preserved adequately in that raised and been per se nuisance Court, nuisance and govern- exceptions recognized historically were mental this case can allegations that "the factual support nuisance se the claim of grant sufficiently to avoid a or summary disposition defendant,” that Gar- for the opportunity remand be afforded cia should clearly pleadings to more state amend his to law should quately pleaded upon, and that the trial court and facts relied Garcia had ade- then determine whether nuisance or a claim of App 197, 201-202; 475 190 Mich se. (1991). Appeals therefore Court of NW2d disposi- again summary court’s reversed the trial appeal granted leave to and ordered tion. We together Li, 438 Mich 863 with case considered (1991), below, and, forth we now for reasons set Ap- again judgment of the Court reverse peals.

II. ANALYSIS A. PUBLIC NUISANCE begin rigueur It almost de has become Appeals as did the Court of discussion (On Remand), App 187 Mich in Li Second apt typically quoting scription de- Justice Talbot Smith’s great grab bag, bin, of it as "the the dust McColgan, 386, 389; the law.” Awad v of 98 NW2d Appeals Li The Court of Remand) (On noted Prosser and Kee- Second also 467 Li v Feldt Opinion by Cavanagh, C.J. descriptions ton’s of as an " ” " 'impenetrable jungle’ things 'all to all ” people,’ App quoting 480, 187 Mich Prosser & (5th ed), p adding Keeton, § 86, 616, Torts while its apt metaphor own "[w]hile impenetrable jungle, exceptions the issue of immunity for nuisance se and wasteland, nuisance is more akin to an arid with few landmarks to be found.” Id. While we sympathize metaphors, with these we think the Appeals implications Court of overlooked the very aridity the latter. The of the historical case actually apply in law this area makes it easier to governing exceptions gov- historical test for ernmental 3.996(107)(1) 691.1407(1); provides:

MCL MSA Except act, provided as otherwise in this all governmental agencies shall be immune from tort liability in all cases government wherein the agency engaged is discharge the exercise or of a governmental vided function. Except as pro otherwise act, this this act shall not be construed as modifying or restricting immunity of the state liability 1, from tort 1965, as it existed July before affirmed.[3] which immunity is (After Remand), Court, This in Li v Feldt 434 Mich 584, squarely 592-595; 456 NW2d re approach by affirmed the historical articulated plurality opinion Brickley’s Justice Hadfield, originally 170, 7, As enacted 1964 PA the second § sentence of provision "[ejxcept herein, this provided stated that as otherwise this modifying restricting act shall not be the immunity construed as heretofore, from state tort as it immunity existed which added.) hereby (Emphasis 155, 1, is minor PA noted' affirmed.” made a § PA grammatical change provision. in the first sentence of this 175, 1, stylistic changes provision and, made further § in this above, change replacing the substantive "heretofore” with 1, July July "before 1965.” 1965 was the effective date of 1964 PA 170. 439 Mich Cavanagh, C.J. scope determining

supra, purposes possible exceptions conferred 7(1). question approach § this Under recog clearly exception was the claimed whether Michigan law before case nized in authoritative (After Remand), July Li 1965. See found such a in Hadfield 594-595. This Court recognized clearly in the-case historical "trespass-nuisance.” Hadfield, See of the tort of 430 Mich 154-169 cal case law constitutes an "arid J.). the histori Where (Brickley, exception truly regarding a claimed however,

wasteland,” that strong that to be a indication would seem exception recognized properly under cannot §7(1). in the case of This indication is confirmed exception govern public nuisance the claimed immunity. mental recognition argument of a

The for historical upon public largely rests Jus nuisance Boyle’s concurring opinion Hadfield, 430 in tice upon Attorney in turn relied Mich 206-207—which Twp Rapids, Wyoming ex rel v Grand General Trowbridge v 503; 141 and Mich NW (1927)— Lansing, City 402; 237 Mich NW upon Dist, 372 Pound v Garden School 499; Mich 127 NW2d 390 support Twp Trowbridge Wyoming not do exception. In the of a the existence plaintiffs seeking place, first both cases involved prospective equitable only in the form of relief Court, cases, abatement, in to which this both they Brickley As Justice found correctly were entitled. Hadfield, in such cases do even

noted purview governmental immunity fall within the properly be cited in that context. See and cannot 174, Hadfield, 5,n n 15. Justice citing Twp Wyoming Boyle Hadfield, after Trowbridge, stated: Li . Cavanagh, C.J. Court, Presumably, recognizing this after against government remedy abatement deprive private would not indi- special who

vidual suffered harm because of the same nuisance from a remedy well established at [e.g., damages]. law common It that should follow remedy, even where not based on invasion of property rights, another’s is at [Id. 207.] conclude, however, We this does not follow. The distinction government’s between the liability for prospective equitable relief and its liability retrospective damages compensation, and the principle gener- the former kind of ally not by sovereign barred are funda- sovereign mental immunity law. Court, Supreme United States for example, long recognized

has this distinction the context states’ Eleventh Amendment courts, from suit the federal which immunity, held, the Court has does not extend to prospective equitable relief or ancillary costs there- associated Jenkins, See, Missouri v with. e.g., 491 US 278-280; (1989); S Ct 105 L Ed 2d 229 Will v Michigan Police, Dep’t State 58, 491 US (1989) n 10; 2304; 109 S Ct 105 L Ed 2d 45 (noting that distinction in 'commonplace "[t]his Edelman v Jor- sovereign immunity ”); doctrine’ dan, 651; 1347; 415 US 94 S Ct 39 L 2d Ed 662 parte Young, (1974); 123; Ex 209 441; US 28 S Ct (1908). 52 L 714 Ed This recognized Court this v basic distinction McDowell State Highway in Comm’r, (1961). 268; 365 Mich 112 NW2d 491 Upholding an assertion of case,

in that we noted that "plaintiffs attempt department State, State, hold a of and so the in question a tort. No of responsible for damages abatement a or of other relief a court Mich 457 [May- 470 439 Cavanagh, C.J. grant, might properly of equity is or could of the judgments of these before us on review added, Id. (emphasis at 269-270 court of claims.” omitted). citation Brickley in Had-

Furthermore, noted as Justice field, Twp, Wyoming plaintiffs in which both dumping which sought sewage of river abatément Trowbridge, in landowners, riparian and affected oper of the sought abatement plaintiffs which the neighboring which afflicted "piggery”4 ation of a odors, fell and with offensive insects landowners trespass-nuisance.” category within "the comfortably eld, 430 Mich 174. Given Hadfi Twp Wyoming and in conduct both challenged Trowbridge wás in and "clearly trespass-nuisance id. field],” Had adopted line with the [in reading no either case at we see basis exception.5 establishing nuisance 4 hogs kept is, municipal dump garbage That where were a garbage. consume the Boyle now, Trowbridge, Wyoming Twp and Justice in addition (1857), Detroit, upon Mayor and v 4 Mich relies Dermont (1884), 98; support Rapids, Burford v Grand 53 Mich 18 NW Boyle, J., exception. post, pp See existence of upon by Wyoming suggests cited 480-481. She also reliance five cases (1912), Herkimer, 593; Twp: Twp Merritt 172 Mich 138 NW Onen v (1902), 174; Harp, 131 Mich 91 NW 156 Seaman v Huron, (1898), Marshall, Mich 296 Boyle, J., Ashley v 74 NW 484 Port Saginaw, Pennoyer Mich 534 See 481, 6, post, p citing Wyoming Twp, n 175 Mich 534. exception. support Dermont does not the claimed damages city arising rejected against from the That flooding a claim for case sewer, stating: plaintiff’s city cellar England, country, in in is well settled this The law boroughs are not liable individuals defects

towns and statute; bridges, except by some and it their that the is obvious roads powers granted by the to and exercised defendants sewers, constructing laying streets and are identical with out establishing highways highway those commissioners building bridges. Mich 442-443.] [4 against city, recovery case Even if would fall had authorized Dermont trespass-nuisance squarely re- within the tradition. With Li Cavanagh, C.J. supra, help Pound, We find to of no more in be establishing exception. At question prop outset, the arises whether Pound is erly part body even as considered of the relevant 7(1). purposes § of historical law for case As Brickley Hadfield, 176, Justice noted in 430 Mich may argued” given 17, not, n "it ... it that is PA bill which became 1964 170 was passed by introduced and the Senate before Pound Brickley was decided.6 not Justice did decide this opinion however, Hadfield, in issue and did his majority any Upon command a in event. further Burford, gard passingly the Court in while that case referred at nuisance,” point being 100, "public one to the claim one of 53 Mich thorough reveals, part ikb), examination of Burford discuss in as we hypothetical exception governmental immunity suggested properly relating in dicta Burford is more characterized as to the concept of nuisance se. 534, Wyoming Twp, the five Of cases cited 175 Mich two—Onen Twp only relief, equitable Merritt and actions for and thus —involved no are more relevant issue than authorized, Wyoming Twp explicitly Ashley itself. While Seaman and Pennoyer countenanced, implicitly damages and against examples have relief defendants, all three cases are classic trespass-nuisance. of the tort of This is reflected both in Brickley’s Pennoyer, Ashley, Justice discussion and Seaman in his 155-159, plurality opinion, explicit Hadñeld and in the language original See, e.g., used this Court decisions. added): Ashley, (emphasis 35 Mich 301 right occupation enjoyment of an individual to the exclusive, premises his of more [Quoted and the authorities have no liberty trespass upon private it than has a individual. Hadfield, emphasis with 430 Mich 157.] Thus, regard Wyoming Twp discuss in text with we Trowbridge, cases, stretching falling clearly we see no basis such tradition, trespass-nuisance support within the an ill-defined and unsupported "public exception. otherwise nuisance” 6, 1964, February passed Bill Senate 1132 was introduced on 24, 6, April the Senate on 1964. March Pound was on decided 1964. Representatives passed subsequently The House of the bill with (none language) amendments of which affected the relevant 22, April repassed 23, April 1964. The Senate the amended bill on Romney signed and Governor it as 1964 into law PA 170 on May 1964. 439 457 Mich Cavanagh, C.J. is

consideration, now that Pound we conclude 7(1). purposes properly § considered incorpo- First, PA 170 of 1964 while the drafters scope govern- preserving language the the rated immunity heretofore,” and it mental "as existed passed initially it, was before Pound the Senate decided, passed by language finally was Legislature or into the enacted either House of 6.n We law until after Pound was decided. See passage most it the date of final is believe is interpretive purposes; furthermore, a relevant for statutory like term "heretofore” time-relative ordinarily interpreted with reference should be language legal thus date effect. We the takes (On agree Appeals in Li with the Court Second Remand), Legisla- App 486-487, that adopting presumed ture, 170, in must 1964 PA no have of Pound and to have felt been aware modify its the bill Pound from need scope. to exclude Legislature Second, in this the intent longer controlling any regard in is event. The no Legislature by, amended the statute replacing part, it "as "as existed heretofore” with July 1, 175, § 1. it This 1965.” 1986 PA the issue existed before regarding what amendment mooted original date word "heretofore” statute interpreted Pound, reference should be decided more than a with to.

year July 1965, before scope plainly amended falls within the language. part Thus, Pound must be considered as 7(1) purposes § of the historical case law under of applying adopted in Li the test Hadfield and (After Remand).7 (After plain language This also consistent with the of Li

Remand), 7(1) "preserved judicially excep which stated that created § July tions to were before 1965.” 434 which formulated 592. Mich Li v Feldt Opinion by Cavanagh, C.J. injuries Pound involved a claim for caused dripping water off the roof of the defendant’s building, neighboring school which caused a public sidewalk to become coated with ice on plaintiff slipped which the Court, and fell. This relying heavily Ed, on Ferris v Detroit Bd of Mich 81 NW 98 found that the claim by governmental was not barred Ferris, ice and snow had fallen from the roof of o building the defendant’s school ont plaintiff’s private premises, causing slip him to trespass- and fall. Ferris was thus a classic Brickley nuisance case. As Justice noted in Had exemplifies ñeld, 159-160, 430 Mich Ferris development trespass-nuisance exception of the to governmental

As Pound, this Court stated in that case in- volved

facts enough similar to those in Ferris to meet that case’s criterion of injury "a direct to the person plaintiff, while outside the limits of hold, premises.” therefore, the defendant’s We claim Pound sufficient to a [the action to which state cause of is] governmental the defense of im- munity may interposed. not be To hold otherwise would be to establish a distinction between a plaintiff own and directly who is injured upon while his premises wrongful act of defendant plaintiff another who is directly likewise in- jured place, public a way, such as a where he right has a to be and subject which is not to the authority of defendant. Such a distinction would be without justification logic public policy.

Defendant cites several cases which have sus- tained the defense of immunity to actions for tortious injury, but in those cases the injury in defendant’s plaintiff occur, which sustained did not Pound, "outside the limits of the Ferris premises” but rather occurred in areas 439 Mich Cavanagh, C.J. See, e.g., subject authority to defendants. Comm’r, Highway

McDowell State 268. [Pound, Emphasis 501-502. Mich added.] distinction of McDowell Pound’s citation and significant. highly McDowell, case the instant like arising allegedly Li, involved a claim from roadway. McDowell, In unsafe the state failure way permitted of a maintenance negligent allegedly highway department’s high- of a to drain from surface water dangerous ice to form. sheet of those of thus far The facts Li are closer Li In than those of Pound. both McDowell Pound, the in- Garcia, like McDowell but unlike subject authority jury occurred in area Thus, Li Garcia falls the defendant. neither nor exception im- within narrow munity in Pound. enunciated any sum, did not Pound establish exception immunity; corollary most,

rather, to the established, it at narrow recog- exception trespass-nuisance narrow Find- cases Ferris Hadfíeld. nized ing such as no other basis for July 1, 1965, conclude

in the case we law before 7(1). Thus, § that no such exists under plaintiffs extent in Li and Garcia whatever properly nui- have stated claims of pass emphasize we sance—and we do govern- question that claims are barred —such immunity.8 mental PER B. SE NUISANCE recognized historically Whether there was an Boyle’s may yet response to Justice assertion that "we be governmental persuaded immunity exception that limited that, exists,” Boyle, J., post, p only we can state while today Boyle persuaded, majority of this Court Justice be so any rejects eventuality. such Li Cavanagh, C.J. per governmental nuisance nity se immu poses question. a more difficult Justice Boyle, concurring opinion Hadfield, in her in 430 Mich expressed damages 207-208, alleging the view that a claim per

a nuisance se would fall outside the scope governmental immunity, relying upon of Wyoming Twp, supra, Trowbridge, supra, Roy Charlotte, 255; ston 278 Mich 270 NW Wyo above, however, As noted both ming Twp Trowbridge involved claims for prospective equitable damages, relief, not and are inapposite governmental immunity thus issue.9

Royston provide support does some for a nui (albeit per exception, stating squarely sance se citation), supporting dicta and "[a]cts without that discharge in the functions which per create a nuisance se do not come within the immunity otherwise accorded.” 278 Mich 260. significance language While the questioned, of this has been e.g.,

see, Hadfield, 430 Mich n 16 J.), undeniably part we note it (Brickley, body purposes of historical case law for §7(1), applying although, sure, it lacks the weight language which would be accorded to con stituting the ratio decidendi of a case. significance Royston’s augmented dicta is

by a consideration of dicta Burford v Grand Rapids, 18 NW 571 which held barred a suit for damages arising injury plaintiff’s from the 9Furthermore, alleged Wyoming Twp while the nuisances Trowbridge may perhaps se, be described as nuisances see Hadf ield, J.), (Brickley, any Mich 175 we would be hesitant to draw regarding any broad conclusions from them se they to viewed, readily when are so much more ii(A), part falling trespass- as discussed in within the nuisance tradition. 457 439 Mich

476 by Opinion Cavanagh, C.J. recreational bobsled horse, hit which was argued, plaintiff alia, inter street. The immunity not entitled the defendant was that (or sledding authorizing because, recreational called) "coasting,” street, it on the it then as was constituting activity essentially authorized had per for the Justice se. Chief a nuisance unanimous Cooley,

Court, stated: coasting upon a unquestionable If it were there always a public highway was contention, and plausibility in this be much would accepted . . . But as sound. perhaps it should be coasting necessarily interfere with does not street, indulged might customary use of the any .... one in with no serious inconvenience On and street diversion be [coasting] is healthful contrary, itself proper, if the exhilarating, eminently it seems use, this put is not -to other allowed, expressly if not sanctioned. Lansing, 103-104; v at see also Rosario [Id. (1978) 124, 135, 9; 268 n NW2d Mich J.) language in (citing this (opinion of Fitzgerald, uncited, though authority apparent, Burford as dicta).] Royston’s however, conclude, that we need not now We Royston Burford whether cases such as decide recognized per clearly ex- se establish a ception pre-1965 law.10As our case law in the case long recognized, an activ- a nuisance se is has ity a nuisance at all which constitutes or condition regard circumstances, without times and under all support post-1965 existence of an law cannot While case historically recognized exception under 7(1), arguments acknowledge which have been we the force § desirability recognizing a nuisance se for the made J., Hadfield, See, (Boyle, e.g., 430 Mich 208 otherwise, concurring) right ("[t]o state an absolute would allow the hold regard property any manner it choose without to use its citing Dep’t private persons”), large Gerzeski for the State at (1978) (Ryan, J., 149, 169; Highways, 268 NW2d Mich dissenting). Li Cavanagh, C.J. the care with which it or main is conducted Hadfield, J., 430 207 tained. See Mich (Boyle, concurring); Dep’t Highways, State Gerzeski of (1978) (Ryan, J., 168; 403 Mich dissenting); 268 NW2d 525 Saginaw Bluemer v Oil & Gas Central Service, Inc, 399, 411; Mich 97 356 NW2d 90 (1959); People Works, Detroit White Lead 82 471, 476-479; Mich 46 NW "[U]nlike 735 predi fact, nuisance in se is not the nuisance care, on the of cated want but is unreasonable very Hadfield, its J., nature.” 430 Mich 208 (Boyle,

concurring). operation light Neither the of the traffic in Li holding pond the of nor maintenance the in Garcia intrinsically be said can to constitute an unreason- dangerous activity, regard or able without for care contrary, To or circumstances. both activities public purposes serve obvious and beneficial clearly capable being of are conducted such a way pose any very as not to nuisance at all. The of essence the claims both Li Garcia is that underlying activities became unreasonable and dangerous particular under circumstances of allegedly each case because the defendants exer- improper inadequate regard- Thus, cised care. per might qualify less whether nuisance se as immunity, neither presents Li nor Garcia claim colorable of nui- sance se.

III. CONCLUSION judgments Ap- We reverse of the Court of peals grants and reinstate the trial courts’ summary disposition for the defendants.

Brickley JJ., Mallett, concurred with Cavanagh, C.J. [May- Mich Opinion by Boyle, J.

Riley, J., in the result. only concurred Boyle, I write (concurring). separately explain my that to the extent that concurrence Comm’r, Co Mich Hadfield v Oakland Drain per have NW2d been recasting as recognizing principle ceived as will avoid the bar negligence claims Rather, res my that view is mistaken. regarding only trespass ervations on the juridical were based not eliminate all notion the Court should against exceptional possible grounds action do so required unless government activities precedent facts application case.

i kaleidoscope can be likened to a of Nuisance law shifting that categories1 comprised of a mosaic a only given at the moment court appears stable set of The same set of given resolves a issues. facts, however, and may raise claims nuisance, se, trespass- private per nuisance and intruding example, township’s For a nuisance. building piggery of a in a residential area se, if per nuisance and an ordinance constitute a use, nuisance, if the and prohibits such enjoy- or interfere the use and noise odors with shift- neighbors, private ment of nuisance. These to confound this ing sometimes threaten concepts the existence of common- investigation Court’s into for vari- exceptions law give attempt nuisance types ous 1Categories recognized to delineate this Court define and that has nuisance, negligent parameters or nuisance intentional the public include accidens, nuisance, private per per or or se nuisance Hadfield, See, trespass e.g., supra. intruding nuisance. Li Feldt Boyce, J. guidance practitioners regard- to lower courts and ing actionable nuisance claims. point departure, important

With this as a it is precisely Li, to consider the facts before us. In plaintiff brought injuries suit to recover for she allegedly suffered an automobile collision that part, improperly resulted, in from an timed traffic light.2 plaintiff The seeks to recover from the city, employees, defendants, public and two of its nuisance and nuisance se theories. On Appeals remand, second the Court of ruled that plaintiff had stated a claim of on these facts and that the nuisance se claim sufficiently was colorable to merit further trial App court consideration. 170 Mich 428 NW2d plaintiffs Garcia, seek to recover for the by drowning pond decedent’s death in a behind a uncapped pipe dam connected to an created an undercurrent sewer pulled the decedent Although city previ- toward it. was aware of a drowning, pipe guarded ous was not or cov- plaintiffs complained inadequate ered. also warnings, swimming,” which stated "no and fail- implement proper regulations. safety ure to agree majority’s with the result Li because negligence it claim, constitutes a classical rather agree than actionable I with the majority’s city result in Garcia because the historically, city that, correct would not have damages regarding been liable in for its decisions proper constructing method of sewer, a 2 Probably because suit was not in Li commenced until after the elapsed highway exception statute of limitations would have for the 691.1411; 3.996(111), MCL MSA there is no claim before this Court that the facts of this case fall within the highway exception. Therefore, there is no occasion to consider design regarding light whether claim of defect a defective traffic exception. falls within that 457 439 Mich

480 Boyle, Although discretionary I believe we function.3 public yet persuaded nuisance limited that a be exception exists, it can- of these the facts of either said to reach cases.4 argument majority observes public

recognition rests of a concurring opinion largely my in Hadñeld. observed, Ante, 468. As I there C.J. at Cavanagh, from criminal law and nuisance is derived predicated upon violation of much of it remains juris Early common-law cases from this statutes.5 as an diction mention immunity early 1857, this Court as well. As as examining public nuisance in whether adverted to municipality for dam an individual could sue a ages public sewer that caused water for a defective up Mayor of into his cellar. Dermont v to back 3See, 84; (1870); Co, e.g., Blackeby, Rep 4 Am 450 v 21 Mich Detroit Huron, (1877); Saginaw Ashley 11 35 Mich 296 Larkin v v Port (1862). 88; Mich 82 Am Dec 63 long rejecting history nuisance claims recast This Court has governmental immunity negligence or some other doctrine to avoid See, 210; 646; 339; e.g., Muskegon, recovery. v 146 Mich 162 Mich that would bar Alberts (1906); Supervisors, Bd of 109 NW 262 127 NW 821 158 Kilts v Kent Co Ed, (1910); Rapids Bd of 191 Mich Daniels v Grand Charlotte, 255; (1916);Royston City 278 Mich NW NW (1936); Brozo, , 288 McDonell NW Michigan, the doctrine of nuisance is embodied MCL seq. provides: seq.; 27A.3801 et That statute 600.3801 et MSA boat, aircraft, vehicle, place Any building, or used for the lewdness, gambling,

purpose used assignation prostitution or or or disorderly by, kept prostitutes or for the use of or other manufacture, transporting, persons, or used for the unlawful sale, sale, furnishing keeping bartering, any controlled or vinous, malt, brewed, fermented, any ... or of substance liquors spirituous, intoxicating liquors any mixed or or beverages, any part intoxicating, of which is is declared nuisance .... General, Attorney provides authority for the The statute further bring prosecuting attorneys, actions to and citizens to abatement remedy noxious or harmful activities. Li 481 v Opinion by Boyle, J. Explicitly distinguish- Detroit, (1857). 4 Mich 435 municipality ing in which a created a situation corpora- public nuisance, the Court ruled that drainage obligation furnish tion was under no Similarly, in its discus- and could not be sued. Id. Rapids, sion of nuisance Burford v Grand 53 inti- Mich 18 NW 571 the Court 98, 103; (1884), might municipal authorities be held mated that public noting they liable if licensed a nuisance coasting unquestionable "[i]f it that upon were public highway always was plausibility in this there would be much conten- perhaps accepted tion, and it should as sound.” Attorney Wyoming Twp ex rel Grand General Rapids, 175 Mich NW 890 141 granted injunctive township Court preventing relief to the city sewage emptying from its into emphasized city a river. The Court that a public might Id. at creates a nuisance be liable. suggest 534.6 These authorities the existence of a exception limited nuisance Hadñeld, Neither Justice nor Chief Brickley suggest case, Justice this that no Cavanagh exception they ap- Rather, nuisance exists. pear against recognizing any public to counsel exception beyond nuisance that which falls within trespass intruding the confines of nuisance.

My regarding reservations the notion that only that survives is wholly encompassed trespass within the premised potential category are on the view that a exists where action, Although Wyoming Twp was an abatement the Court questions that "the involved in this case” were covered noted authorities, including previous upon decisions. It then relied five both actions, distinguishing damage equitable actions and without between Trowbridge Lansing, 402; 499; City of them. Id. at 534. See also Mich Dist, (1927); 212 NW 73 Pound v Garden School Mich 127 NW 439 Mich Boyle, govern- is based on actions

the claim for relief constitute an ment for those uses of land that danger persons enjoyment impending in the government rights. example, property if the For profitable it to establish concluded that would be gambling casino, and to situate such establish- govern- neighborhood, the ment in a residential might subject and to an ment to abatement damages special by one who suffered action damages.7 explained this Court in Kilts v Kent As Supervisors, 646, 651; 162 127 NW Bd of Mich Co (1910), "so a nuisance involves a condition interfere with the comfort of life and serious as to enjoyment threatening property, or so impending danger persons in the constitute an enjoyment persuaded legitimate rights.” yet their I am not to exception limited that this Conceding question of a does not remain. that per exception "poses a more difficult nuisance question,” se ruling majority bypasses by it that Li the claims in both tute an and Garcia do not "consti- dangerous intrinsically unreasonable or regard activity, without for care or circum- Ante, Cavanagh, 475, 477. stances.” C.J. at explained per Hadfield, I that se is a proving public private category method of or or exceptionally It narrow nuisance. arises those Legislature where "the or this circumstances Court patently activity label a condition or very nature . . . .”8 As the unreasonable majority acknowledges, its strong

there is evidence engage Municipalities may that would threaten to activities release, release, actually into environ hazardous substances 1992) (CA Murtha, See, e.g., v 958 F2d 1192 ment. B F Goodrich Co (the Comprehensive Response, ruled that Environmental court Compensation, Liability imposes liability Act of 1980 on a munici pality arranged dispose which of hazardous substances at two landfills). 149, 169; Dep’t, Hwy v State 403 Mich 268 NW2d 525 Gerzeski (1978) (Ryan, J., dissenting). Li Feldt v Griffin, J. recognized Michigan a nuisance have courts immunity. Ante, Cavanagh, per se apparently majority con- 474-477. The C.J. at cludes, finding however, several of the cases that because overlap with the tres- se a nuisance category, justifies pass-nuisance decision to its historically recognizing com- it valid as an avoid statutory immunity.9 exception to mon-law separately Thus, I believe that I because write Trowbridge Twp, Wyoming early cases of (1927), Lansing, City 237 Mich 212 NW Royston Charlotte, 255; 270 supra, support Burford, NW govern- exception to se of a nuisance existence immunity.10 ensures Such an mental that Legisla- instances wherein "[i]n the few activity may label a condition or this Court ture or very patently nature, the state its unreasonable liability in connection with its not circumvent raising operation by the shield” of the situation immunity.11 agree majority Li nor that neither I with the presents facts that would fall within Garcia nuisance

per exception. se (concurring part). in While concur- J. Griffin, damages Although question government liability for claim, that, it must be observed from the nature of a nuisance distinct McRae, trespass. law, historically, as an alternative to nuisance arose development early 1 U Fla L R 27 of nuisance in the common suggests liability must based on limitation of This development Michigan’s not the historical of the tort. nature city’s dumping Twp, supra, Wyoming a and the Court ruled that per granted sewage abate- a river constituted a nuisance se into piggery Trowbridge, supra, Court decreed that a consti- ment. In injunctive Royston granted relief. In both a nuisance se and tuted Burford, professed, explicitly broadly governmental in albeit the Court and dicta, discharge of a function in the that acts immunity. protected the shield of a nuisance se are not create 11Gerzeski, supra, p 169. n 8 439 Mich Levin, J. Separate Opinion

ring separately case, in I the result each write register my disagreement with the rationale my and to reiterate adherence to the I views (After Remand), in Li stated 596; v Feldt 434 Mich (1990) concurring J., 456 NW2d 55 (Griffin, part dissenting part). analysis Under the rejects ap outlined, there proach” which the "historical § 7 construction of seq.; act,

tort MCL 691.1401 et MSA , 3.996(101) seq. et both of these cases would be any dismissed for failure to fit within narrowly of the five statutory exceptions immunity drawn set forth in the act. (separate opinion). appear-

Levin, In the last Court, ance of these consolidated cases in this Li v (After Remand), 584, 592; NW2d 55 this Court declared that immunizing governmental agencies statute from "preserved liability1 judicially excep- tort tions to created which were formulated before ”2 July 1, 1965 opinion proceeds premise, The lead on that but concludes that nuisance is not an opinion The lead does "pass not define and declines to question” [the] whether the Li and Garcia plaintiffs properly "have stated claims of opinion nuisance . . . .”3 The of this Court that sance claims4 should not be read to establish a states that decisions arguably presented public nui- 3.996(107)(1). 691.1407(1); MCL MSA 2 ante, opinion, p 472, accompanying See the lead n 7 and text. 3Id., p 474. 4 ante, if, p opinion Attorney At 468 Wyoming Twp the lead cites discusses 503; Rapids, General ex rel v Grand 175 Mich 141 NW (1913), Trowbridge Lansing, City 402;

890 (1927), v 237 Mich 212 NW 73 Dist, City 499; and Pound v Garden School 372 Mich 127 (1964). Pound, opinion, 390 NW2d In connection with the lead also 485 Li Separate Opinion Levin, J. immu to exception nuisance within "comfortably cases fall because these nity ”5 there and are trespass-nuisance’ 'the category " excep the [trespass-nuisance] 'in line with fore ” 6 adopted tion Hadñeld].’ [in suggesting authority then opinion The lead cites exception gov- nuisance se per there is a unnecessary finds it immunity,7 but ernmental judi- has exception such an been decide whether Li Garcia "neither nor recognized because cially nuisance se” per claim of presents colorable this Court.8 the term has been defined then, essence, opinion the lead states be an per might nuisance se. well presented by is not but matter cases, nuisance —no these while be, presented by it or not and whether what not an these cases —is is to of the lead opinion’s analysis effect exceptions presenting to cases

restrict nuisance and, se. trespass-nuisance possibly,

A "an se as opinion The lead defines or a nuisance activity condition which constitutes (1899), Ed, 315; 81 98 v Detroit Bd of 122 Mich NW discusses Ferris and McDowell v State (1961). 268; Comm’r, Hwy 491 365 Mich 112 NW2d Twp, Trowbridge, spoke Wyoming and McDowell The Court in Ferris, cases, "public Pound and do not The other cited nuisance.” or, indeed, "public "nuisance” nuisance” mention word advert at the nuisance” however, opinion’s suggests, cases all. As the reliance on these lead "public presence term of the word "nuisance” or absence dispositive a cause of whether there is of action. Comm’r, Ante, p quoting Co Hadfield v Oakland Drain J.). (1988) (Brickley, 139, 174; Mich 422 NW2d 205 Hadfield, Ante, supra, p quoting Mich n 5 175. ante, 475-477, pp opinion Royston lead discusses At Charlotte, 255; Grand and Burford v NW 288 Rapids, 53 18 NW 571 Mich 8Ante, p 477. 439 Mich 457 Separate Opinion Levin, J. circumstances, at all times and under all without regard to care the with which it is or conducted intrinsically maintained,”9 and as "an unreason- dangerous activity or able . . . .”10This Court has said also that or creation maintenance a statutorily condition defined as a nuisance consti- per appears a tutes nuisance It se.11 that nuisance per se, definitions, under these constituted governmental immunity at common law.12 agree opinion that,

I with the lead to the extent plaintiffs allege the raising instant have failed to per facts colorable claims of nuisance se— appro- and, add, I would nuisance —it is not priate exceptions to decide the extent of from governmental immunity therefor.13 agree pre-

I further that neither Li nor Garcia per a sents colorable claim of nuisance se. The activity engaged defendant not, case, did in either "a constitute nuisance at all circumstances, times and under all without regard to the care with which it is or conducted maintained.”14

9Id., pp 476-477.

10Id., p 477. 11See, e.g., Twp Union, Portage v Full Salvation 29 NW2d 297 Royston City Charlotte, infra, supra, See n 7 discussed Rapids, supra, Burford v Grand n 7 discussed in n and in lead ante, opinion, pp 475-476. (After Remand), supra, p Li v Feldt I observed that "[t]he question whether there is a nuisance or se should be decided in case factually the court where concludes that there is se or nuisance.” 14 Ante, pp opinion states, very 476-477. As the lead "[t]he essence underlying of the claims in both is that activities [cases] became dangerous allegedly unreasonable . . . because the defendants Id., improper inadequate p exercised care.” 477. Li Separate Opinion Levin,

B plaintiff agree Li I also public nuisance on a an action founded maintain exception disagree but opinion reasoning adopted by lead with reaching that result. allegations

Taking of the factual account Garcia, hold that common-law I would immunity exception governmental to nuisance might provide plaintiffs in with a cause the Garcia municipal against Jackson, a of action the of judgment corporation, the affirm and thus would Appeals the to and case of remand of Court proceedings. for further the trial court i depending law, At on facts common jurisdiction arose, the case which case and arising liability personal injury out of the for govern of a nuisance on or maintenance creation ment property, no intrusion even there was where exception private property, recognized a was on types immunity. The of nuisance exceptions constituting immunity lim were not encompassed trespass-nuisance, ele but ited ments of tional or “absolute” se, inten nuisance,15 "attractive " intentional, 'not that is it means When a nuisance described wrong intended but that of a nuisance was existence bring are in about the conditions which of them intended to creator ” 317, 331; Garavaglia, Denny Mich a nuisance.’ fact found Stratford, (1952), quoting 129 Conn v Town of Beckwith 52 NW2d 521 506, (After Although determined in Li this Court 29 A2d 775 Remand) not, categorically, an that intentional of a the "intentional” character immu on an assertion nuisance nity bear whether Moody recognized. observed concurrence As Justice should be 439 Mich Separate Levin, judge nuisance.”16 To from what courts did rather they they doing, than what said were formu these inconsistently overlapped labeled, lations were large degree. findings govern Thus, to a always liability neatly mental have not been co particular with extensive definitions of nuisance should not be determinative. jurisdictions majority, at common law

viewed nuisance as municipal corporations,17 many, though of all,

jurisdictions adopting this view allowed recov- personal ery resulting injury for from main- early addressing tenance a nuisance. Most cases subject trespass-nuisance, involved but courts Dep’t Hwys, 149, 161-162; in Gerzeski v of State 268 NW2d (1978): per se and intentional nuisances cou- [NJuisances have been pled sions the Court has example, considerations. For occa- several contributory negligence, held while a negligent nuisances, appropriate defense is not an defense for either se nuisances or intentional nuisances. importantly, More the definition of an intentional nuisance clearly complained reflects that the nature of the conduct of in an intentional nuisance situation is more akin to conduct creating neglectful a se nuisance than the careless or produces negligent conduct which a nuisance. government consequences To hold the immune the from of its intentional acts which create a nuisance would be . . . uncon- scionable. [Citations omitted.] properly analyzed species negli "Attractive is nuisance” as a (Condition gence. Torts, 2d, See Restatement ch 13 Use of and Land), however, if, p o, p many jurisdictions, comment In § 206. public the common law conflated nuisance and "attractive nuisance” causes of action. See ns 58-59. 17Municipal corporations part private entity, part governmen are See, e.g., (1872). entity. Kalamazoo, tal nuisance the Sheldon v 24 Mich 383 The always expressly phrased overriding is almost as "governmental liability. However, function” defense to the tres pass-nuisance exception probably predates governmental the function- proprietary dichotomy. courts, Cooperrider, function See The the legislature governmental liability Michigan, tort L 72 Mich R 187, 279-281 Li by Separate Opinion Levin, no greater had government the broadly stated main- corporate person to a natural or right than the of members of injury a the tain that cities often meant In this public.18 practice, for equity at law to actions subject were nuisances, trespas- a often with essentially private actions where damage and for sory component, maintained by defectively caused injuries were public polluted or or roads obstructed waterways. a corporations,19 major- municipal

As applied addressing have question the ity jurisdictions does not bar held that damages personal injury for actions to recover nui- including from a resulting sance, city, without or maintained created leading regard to whether the conduct nuisance occurred creation or maintenance Cooley supra, p Rapids, Justice said: Grand n Burford v corporation by municipal would the act which is done [I]f person, corporation held if done be tortious a natural extent, and the same reasons that liable the natural it to the same for legal protections persons person The would have been. against against property others, artificial are same itself, municipalities, any one has than has and the state or of its deprive possessions power no the the owner of his more private citizen. Cooley Court, of other Justice cited from this and courts cases trespass-nuisance, concerning governmental liability nuisances jurisdictions, trespass, roads. 19Although majority jurisdictions that a adhere view injury immunity, personal actions nuisance vitiates against barred nonetheless be certain defendants jurisdictions. Virginia Supreme has limited Court of in such nuisance municipal corporations,” as distinct from "true districts, ground quasi-corporations on the such latter are state’s as school 'partake "agents of the state and instrumentalities ” Taylor liability.’ sovereignty respect with to tort Charlottes ville, 367, (1990), 374; quoting Kellam v Norfolk Va SE2d (1960) (both Bd, 252; applying the 96 Virginia cases School 202 Va 117 SE2d early recognized least as in law at as 1926). 439 Mich Levin, Separate Opinion in the a exercise of function.20Some jurisdictions applied approach of these have this injuries occurring entirely government prop- on erty, private property where no invasion of oc- curred.21 appears Michigan,

It that the common of law as developed July it had 1, 1965, before does not yield satisfactorily question a clear answer types including "pub- nuisance, whether certain of govern- nuisance,” lic constituted an immunity damages,22par- mental from actions for ticularly entirely personal injury in the context of suffered government property. " ”23

While there are 'few landmarks be found’ directly point Michigan in law, case it is clear territory, imperfectly that there is a defined, albeit of nuisance for which a member of the public may against govern- maintain an action 20See, generally, municipal immunity liability Buie of anno: from performance acts in applicable for of functions personal injury nuisance, of case or death as result of a 75 ALR supplemented by principle 56 ALR2d 1415. This was reflected in See, July 1, e.g., Jur, treatises in common use before 1965. 38 Am Municipal Corporations, seq., pp 647 et § 355 ff: majority passed upon [A] the courts which have

question tions immunity municipal corpora have held that liability performance govern from for acts done in the personal mental or death injuries functions does extend to cases resulting from nuisance or created maintained municipality[.] [Id., p § 358.] 21See, e.g., cases cited and discussed in n infra. City Lansing, 124, 134; In Rosario v 403 Mich 268 NW2d 230 Fitzgerald early Justice observed that common law of governmental immunity Michigan justifi offered "several different liability non-liability cations for either result is that a .... supporting any proposition case can be found almost concerning governmental Early one chooses to advance.” concerning municipal decisions reached example, diametrically opposite plausible equally grounds. results on Id., n 8. 23Ante, p 467, (On quoting Appeals the Court of in Li Second Remand), 475, 480; App 468 NW2d 268 Li (After Sec by Opinion Separate Levin, J. responsibility this Court entity. of It is the mental the boundaries establish lines to reasoned draw territory. that early 1860, has this Court least as From at right public had a recognized the members that or maintained created nuisances free from to be right vio- municipalities, this was that, when appropriate damages in recoverable lated, were remedy giving this rise to law rule of cases. part sufficiently of common the fabric a was infrequent only require experience ex- judicial position. (1860), Saginaw, Pennoyer 8 Mich In laconically

involving private nuisance, the Court creating city, by the "the that observed prima for its continu- ., facie liable . . ance.” Ashley Huron, 35 Mich v Port liability subject

(1877), city to be was held "trespass,” damages when not project on the to be cast water caused sewer plaintiff’s applied Discussing rule, in the

land. no more have authorities case, "the right upon private trespass liberty of exclu- [a private individual,” possession] than has a sive Court said: appears when jurisdiction A like excess municipal corporation powers a of its exercise of an individual. injury a nuisance to creates familiar, cases is such The doctrine of Saginaw, 8 Pennoyer v upon in acted and was Mich 534. [Id.] Rapids, 98; 18 NW

Burford v Grand plaintiff’s (1884), injury horse, concerned street where a bobsled was struck which coasting. permitted in the city forth As set 439 Mich 457 Separate Levin, opinion, pp city ante, 475-476, lead was held coasting "always liable because was not municipal nuisance.”24 In his discussion of liabil- ity,25 Cooley Justice cited Madison, Little v proposition "any 42 Wis 643 for the dangerous illegal city use of a street under the license of its common council will be a nuisance consequences city for the of which the must re- spond.”26 Supervisors,

In Kilts v Kent Co Bd of (1910), plaintiff alleged 646; 127 NW both negligence arising and nuisance in an action out of employee working the death of an on a water platform, collapsed. tower which The Court dis- posed negligence claim, but not the nuisance ground governmental claim, immunity. on the The nuisance claim was dismissed on definitional grounds: plaintiff’s employee, decedent, an was regarded public not the as a member of the while on

premises, and thus could not assert the claim public nuisance that would have been available injury if the had been occasioned a "defective "contiguous highway.” structure” that was to Id., p private 650. Nor could he assert the claim of nuisance that would have been available if the "adjacent adjoining propri- tower had been to an property, etor’s land it so that was a menace to his person or to his in the use of land[.]” his Id. Attorney Wyoming Twp General ex rel Rapids,

Grand (1913), 175 Mich 534; 141 NW 890 dumping sewage

the Court held into supra, Note 7 53 Mich 103. Bagni Bristol, See also 127 Conn 14 A2d 716 Burford, citing jurisdictions, that, and cases from other for the rule coasting public se, because per on a street municipal is not a nuisance designation coasting licensing areas public does not amount nuisance. 25See n 18. 7Note supra, 53 Mich 103. Li v Feldt Separate Opinion by Levin, enjoinable public nui creating public nui

the Grand River was an observing sance. In that cities "subject as would

sances were to the same rules private Pennoyer individual,” a and damages. the Court cited supra,

Ashley, actions for both of which were Twp city’s Wyoming The conduct injury physical at least as risked much as a in Garcia.27 damage directly property, affected navigable waterway, very waterway involved governmental Further, after enactment of the recognized justices act, tort of this Court exceptions nuisance trespass-nuisance.28

other than nuisance se and opinion, acknowledging The lead that nuisance is an unstated immu- nity, trespass-nuisance exception leaves intact previously cases, discovered in the and reserves question whether se constitutes a nuisance further opinion excep-

lead dismisses the by arguing tion that a number of damages against cases in which were recovered explained may in entities other terms.29 27 (1899) (a Detroit, 447, 451; Phelps 640 See also v 120 Mich 79 NW

bridge impeded plaintiff’s property; access to the the statute of inapplicable city limitations defense asserted continuing 262; the was held to a Armada, nuisance); Phillips Village v of 155 Mich (1908) ("Under authorities, 118 NW 941 all the which we need cite, sewage possessed right dump not open the defendant no its into an residence, plaintiff’s gave ditch which forth obnoxious odors”; and offensive of maintenance this condition was described as Merrill, 416, 418; "public Village Gundy nuisance” in Charlotte, [1930]); Royston supra, passim. n 7 230 NW 163 discussed See, opinions generally, law in the of Justices review case Brickley Boyle and Hadfield. 28See, e.g., Lansing, supra, Rosario v n 22 and Gerzeski v J., Dep’t Hwys, supra (opinions by joined by joined by Fitzgerald, of State n 15 C.J., J., Moody, J., opinions by Kavanagh, Levin, and and J.). Williams, 29 Ferris, Wyoming Twp, Trowbridge, supra, n 4 are described 439 Mich 457 Separate Opinion Levin, Michigan authority in al-

The absence of clear against governmental entity lowing recovery for public justify does not maintenance of a pub- opinion’s sweeping that a the lead lic nuisance law. pronouncement, conclusion common did not exist at today’s authority, There is no other than support the intuition that Legislature, acknowledged has did which the Court contemplate abrogation of nuisance not causes of or address enacting gov-

action,30"intended,” recovery act,31to ernmental tort allow trespass-nuisance (perhaps) se, regard did so with but not "intend” nuisance. opinion prior

The lead reads this Court’s deci- narrowly, possibil- sions does not consider the prior ity cases have arisen in such a place way directly recovery as to in issue of dam- ages injury governmental property suffered on ¡public aas result of a nuisance. With the sole Hwy Comm’r, of McDowell v State readily Mich distinguishable NW2d which is sovereign involving immunity,32 as signers opinion point any the lead cannot expressly rejected case in which this Court has recovery, such which this Court has ruled jurisdictions that, otherwise, while other have held excepting govern- the rule mental sance. nuisance actions from immunity apply does not nui- expansive concern those who favor con that, struction of were decisions; cases, trespass-nuisance only of these Ferris was an Pound, damages. opinion supra, action for The lead dismisses n 4 sidewalk, injury basis occurred on a which was not authority within the defendant. J.). Hadfield, supra, pp (Brickley, See n 5 144-150 3.996(101) seq.; seq. MCL 691.1401 et MSA et 32See n 38. Li v Feldt Separate Levin, J. explicitly a substantive nuisance to be recognized lacking in an area of the law in fixed any misstep entity boundaries, might subject entity liability, culminating hemorrhage. in fiscal This concern is understand justify able, but does not the conclusion that there public is no immunity. clearly

Public nuisance must be de rationally prevent fined, confined, so as to end run around Line drawing is the Court; business of this that we might encounter difficulties does not relieve us of responsibility.33 our

II Twp Young, Garfield 341-342; adopted 82 NW2d 876 this Court Prosser’s public imparts nuisance, definition of which some history concept: of the act or omission 'which obstructs or causes "[A]n damage inconvenience or in the rights exercise of common to all Her Majesty’s subjects.’ and comprehends The term a miscellaneous group offenses, diversified of minor criminal based on some interference with the interests of the community, or the comfort or convenience of general public. . . .

"To public, be considered the nuisance must affect an interest general common to the public, particular public right Whether a interference with a constitutes a question damages separate nuisance and should be actionable in is a case, only each and can be addressed reference to the Clearly, every pothole facts of the case. is not a nuisance. But summarily, development, neither should this Court- full before factual exculpate municipal corporation knowingly from highly dangerous trap, plaintiffs’ maintained a to which decedent was drawn to his demise. relationship negligence regard between with against governmental defendants, tort part actions is discussed in m. 439 Mich [May- Levin, J. Separate Opinion individual, or one peculiar

rather than however, that necessary, ... It is not severed. affected, long the nui so as community be entire in con those who come interfere with sance will right.” public of it in the exercise a with tact 402.)[34] (Prosser 71, pp. [Torts], § law, stages development of early In the a criminal offense was constituting conduct only Restate- to the Second According nuisance. public that, Torts, however, it is now established ment of action, need not "a defendant public in a nuisance mu- Thus a responsibility. to criminal subject be prosecuted cannot nicipal corporation, which crime, in tort for still be liable for a if nuisance public or maintenance of a creation private in common with nuisance. Public nuisance has elements (Nuisance), 821B, See, h, Torts, 2d, e.g., comment § 4 Restatement ch pp Supervisors, supra, p 649-653. v Kent Co Bd of 93. See also Kilts This Court said: involves, opinion only a that a nuisance We are of the or,

defect, impending danger public, threatening if to the but nuisance, persons property rights private of to the or health sustaining peculiar to the same .... circum- relations [T]he ascertaining view to whether must be examined with a stances alleged with the condition is one so serious as to interfere threatening enjoyment property, or so comfort of life and danger persons enjoyment impending in the to constitute an rights. Emphasis legitimate Mich 651. in the of their original.] [162 quoted public private numerous definitions of The Court then nuisance and concluded: wrongful, Running through all of these is the element lives, limbs, continuing, impending danger to the or health of of personal rights public, legitimate property or the private or to the [Id., p persons peculiarly subject danger. 653.] to, closely category public also related nuisance is with, Twp, example, overlaps se. Garfield sometimes junkyard se at the reaffirmed that a common was "not added). (emphasis law.” 348 Mich 340 Li Separate Opinion by Levin, conduct is such private that a individual would be liable.”35

Courts in other jurisdictions have held munici pal corporations subject nui liability creating sance for or maintaining conditions endanger the health or of members of the safety public. Courts addressing

including those speaking terms nui sance, have offered inconsistent definitions modes analysis. Some of the cases are perhaps properly to involve attractive nui considered sances, public and some involve ways.36 Torts, 2d, § 821B, d, p 4 Restatement comment 89. See also Burford, Phillips, supra, holding Oglethorpe 7ns and 18 the of Ft 834; 141; (1968), 224 Ga 165 SE2d 34 ALR3d 1002 discussed in n 37 infra. 130, City Nampa, 133; In Renstrom v 48 Idaho 279 P 614 (1929), city subject liability pedestrian the was held to to a who slipped in the city employee sprinkled and fell after a a sidewalk with water freezing ice, resulting weather failed to remove the of which city injuries was aware. The court defined nuisance to reach "resulting menacing municipality’s continuing from the failure to remove a brought negligent by perfor condition about the [even if] [purely governmental] mance of duties.” 389; (1956), City, In Lehmkuhl v Junction 179 Kan 295 P2d 621 the city subject liability climbing was held to where a child died after deceptively solid-looking atop pit onto a city dump. of crust a trash-and-water in a condition, vicinity The court found this maintained in the neighborhood, public nuisance; argu- a residential to constitute a ably, it also amounted to an attractive nuisance. Fe, 85; (1943), In Barker v Santa 47 NM 136 P2d 480 the defendant subject liability Lehmkuhl, except was held to on facts similar to atop sewage disposal plant. the treacherous crust floated a tank in a plaintiff Because the sance,” denominated this condition an nui- "attractive pains plant corpo- the court took to establish that the was a also, however, rate and not a function. The court generally characterized the condition as a nuisance and thus as an recovery which basis of would "corporate inquiry. have obviated the function” Bristol, 499; (1931), In Hoffman v 113 Conn 155 A 75 ALR 1191 maintained, public pool, diving cloudy defendant at a board over deep. city subject water less than four feet The was held plaintiff injuries upon executing when the suffered serious a dive. The warning posted plaintiff court observed that no could have seen underneath the notice was where the it, deceptive appearance and that of the water diving dangerous board amounted to a condition. The nuisance, distinguishing court offered various definitions of "absolute” Mich 457 by Separate Opinion Levin,

The part that certain acts from the notion derived signifi- governmental entities went omissions of or cantly beyond negligence.37 The same intuition "negligent” the latter entailed failure from to ever, nuisance on the basis that condition, city. remedy how- created This a condition not nuisance. was absolute Inc, 287, 289; Newspaper, 192 Tenn In Johnson v Tennessean city park plaintiff injured in a when she SW2d 399 was area, ground grassy stepped hole” in the one into "an invisible city normally water covered concrete blocks. numerous knew, however, City lar 292. The court of constructed, outlets park patrons. that the blocks were often removed 'regu- were officials "admitted that these holes when [uncovered] ” Id., dangerous.’ p pitfalls traps’ 'extremely and known to be " originally appeals created and held that 'as ” nuisance,’ id., p no this outlet was safe and constituted 290, negligent danger; only had caused the so that maintenance Supreme plaintiff Court and held for the even Tennessee though reversed management ques- park was a function: "[T]he involved,” said, negligence hardly the court because the tion of frequently enough city’s blocks were removed reasonable Id., vigilance danger. p 291. did not to eliminate the exercise suffice Charlottesville, Taylor supra, p applying n 19 common-law principles developed before held: danger A nuisance is a condition that is a public. The essential of a nuisance as it characteristic imperils safety highways relates to a dangerous is that the condition dangerous public highway and hazardous in itself. The and is not exist within the street itself condition need "purpose provide safety of the rule is to [because the] persons lawfully using dangers . the streets . . known [and] [may outside the street’s limit so near thereto as to exist be] endanger public travel thereon.” [Citations omitted.] Thus, city subject liability the was held to for the death of a motorist reflectors, signs, guardrails, lights, painted where there were "no lines, sidewalks, or curbs to mark the end” of a dead-end road separated of land . . . .” edge steep precipice” by only strip from "the of a a "37-foot Id., p 369. 838, Georgia Oglethorpe, supra, p reciting Ft See also n 35 hurt, statutory "[a]nything works definition of nuisance as incon Plainfield, another”; damage Bengivenga City of venience or to v 418, (1942), defining public 128 NJL as "one A2d 288 might damage any public.” which member of the cause 834, Oglethorpe Phillips, supra, p city In Ft n held a was subject motorbike rider as a result of a The officials had liability injuries by a in a nuisance action for sustained dangerously signal. defective traffic that, collision, complaint alleged city for two weeks before the light been aware that the traffic "would flash either red Li Feldt Separate Opinion Levin, grant trespass- courts to relief for prompted have may prompted courts to allow re- covery injuries for sustained as a result of defec- including public ways, highways38 tive and water- green simultaneously. on all four sides of the intersection Numer- ., plaintiff day injured ous accidents there flashed . . and on the resulted was light six . . . were collisions because the defective traffic green . . . .” in all directions that, Supreme Georgia allegations, The Court of stressed on such city permitted immunity, despite the ization of traffic would not be to assert character- signal governmental maintenance as a function: municipality any private corpora A like other individual or may damages party tion the be liable for it causes to a third from operation irrespective or maintenance of a of exercising governmental whether it is a or a ministerial func municipal corporation tion. While it is true that a for its acts is not liable negligence discharging governmental of a func tion, yet municipal corporation guise cannot under the

performing governmental danger function create a nuisance allegations petition ous to life or . . . health. The of the take beyond negligence the instant case mere and into a situation [,] which constitutes a nuisance . . . a defective condition tha damage anyone proximity [Id., could work pp who came in to it. added; Emphasis 837-838. citations omitted.] law, nearly every jurisdiction At common United States other Michigan rule, majority establishing governmental than liability followed the public way, including highways for interference with a navigable waterways. Michigan minority jurisdictions was in the that, holding road, respect injuries with sustained in a immunity only entities be overcome by express Legislature. Blackeby, action of the Detroit v listing many jurisdictions holding after to the con trary, will non-repair by holding, Cooley, concluded over a dissent Justice "that it require legislative any liability private action to create suit for public ways.” Legislature responded, enacting The 1879 PA 244 to establish governmental liability injuries sustained on a road. The law et 3.996(101) seq.; seq. is now codified at MCL 691.1401 et MSA Apart Comm’r, Hwy supra, from McDowell v State discussed opinion ante, p properly pleaded rejected lead immunity at no decision of this Court has grounds arising nuisance claim out of injuries support sustained on a road. McDowell does not contention that common-law nuisance actions could not main- tained, irrespective immunity statutorily liability, defined against predicated any entity. holding of McDowell was sovereign state, which, on the unlike that entities, including municipal corpora- of certain other tions, absolute, except expressly abrogated by Legis- insofar as Mich 457 by Separate Opinion Levin, J. by forms of harm suffered and for other ways, "public of undoubted while in the exercise persons rights.”39 trespass- immunity from for

The not from concern about solely nuisance did evolve takings private property just compensa- without allowing recovery per- tion.40 Judicial decisions on the damage property as to injury sonal as well right of trespass-nuisance indicate that basis depend not trespass-nuisance action for does In Ferris v Detroit Bd of constitutional doctrine. Ed, 315; (1899), 122 Mich 81 NW 98 this Court governmental found that did bar immunity when, expressed injuries claim sustained opinion, the lead "ice and snow from the roof [fell] building school onto the of the defendant’s slip him plaintiff’s private premises, causing and fall.”41_ 170, act, Although lature. was intended tal further 1964 PA tort governmen- 8, prospectively make uniform level (After Remand), 593, n see Li 434 Mich the act’s purpose preserve exceptions common-law implemented by thoroughgoing retrospective application would not be sovereign immunity n law to all entities. See also

supra. Torts, 2d, (Nuisance), 821B, 87, p 4 Restatement ch 40 defines a § right nuisance as "an unreasonable interference with a com- general public.” mon to the Rosario, J.); Hadfield, supra, p 137, (Fitzgerald, See n 22 n 12 J.). (Levin, supra, p n 5 n 6 superfluity taking especially rationale is evident in cases plausibly in which it cannot be defendant asserted that sought plaintiff’s to obtain a valuable benefit at the i.e., "expense,” activity having means of a destructive effect on the plaintiff’s property person. The resort to constitutional doctrine in Buckeye Michigan, Union Fire Ins Co v 178 NW2d 476 protracted, neglectful where the accidental result of mainte- building dangerously dilapidated nance of a ing,” appears as a was treated "tak- appeared exemplify the cracks that have in this rationale. 41Ante, p 473. Jur, 280-282, Municipal Corporations, pp applying See 38 Am § principle negligent this to both acts and nuisances: Li v Feldt Separate Levin, "Intruding” governmental constituting conduct physical injury plaintiff a nuisance cause to a amounting taking, without ing to a and without caus plaintiff’s property sufficient harm to the to private although amount to may nuisance, actionable it trespass. in some cases also constitute If liability personal injury for caused by cases, nuisance be admitted in such there would predicate seem to be no sound reason to availabil ity remedy of a on the often fortuitous circum plaintiff happened stance of where the to be stand ing at the time of the injury.42 justice right Common demands that the to be safe in life and limb rights. property should be as sacred to the citizen as his |T]t height if, . . absurdity . would be the when a negligent municipal employee, engaged in the construction of a governmental work, carelessly piece blasted a of rock which fragments, striking

broke into passer-by two one of them a him, injuring neighboring tion and the crashing through and the other the roof of a house, given compensa- the owner of the house was injured only individual denied it .... It is when by express authority legisla- creation of a nuisance of the damage property ture causes both and sickness to individu- required compensation als—in a state in which it is that paid property damaged when for the use—that it any propriety damage could be property held with that the injury If, was actionable and the to health was not .... however, expressly authorized, the nuisance was not there is no why reason it should not be in actionable one case as well as by corporation the other if it is caused itself[.] opinion emphasizes Pound, The lead supra, n 4 relied on distinguished ante, pp Ferris and plaintiff McDowell. See 473-474.The injured that, in property, although Pound was while an area not Ids own place, public way, right was "a such as a where he has a subject Pound, authority p be and which is not to the of defendant.” holding plaintiff’s 502. In immunity, by governmental claim not barred " doing the Court recited the Ferris formulation: of a '[T]he act, wrongful while causing injury person plaintiff, a direct ” Id., premises.’ 501, p outside the limits of the defendant’s quoting Ferris, 122 Mich 319. Nothing passages compels in these the conclusion that there is no governmental immunity. The Court Pound did not state whether the formulations recited were words of description quoted phrases clearly words limitation. The describe actually case, holding what the Court did in that a entity subject injuries plaintiff received while in Mich Separate Levin, gulf posits opinion

Although between the lead trespass-nuisance it is clear principle. aspects they This the same suggested are July before ruled or had not Court community has member of that while a personal injury right to recover an historical impinges his or her nuisance that caused property notwithstanding governmental right parallel to recover for historical is no there personal waterway injury road or suffered property constitutes in front of that runs only of the world.43 link to the rest its

III governmental involved these entities issued excep- curiae have and amici cases as defendants warnings recognition of nuisance that dire longstanding immunity for eradicate the tions will performance governmental negligent functions. of Royston 255, Charlotte, 278 Mich of subject right the was not he had a to be and which an area where authority parse governmental the Pound formu- the defendant. To of limitation, governmental suggest so as to that lations as words of public way, maintaining or in another on a defendant place subject of the defendant’s this Court has a nuisance be, right plaintiff will not be has an undoubted where injury liability "outside the limits unless the site of the proposition premises,” is to read into Pound a never stated. McDowell, supra, n 4 as a in Pound of The distinction the Court subject authority involving injury area case not, contrary opinion’s governmental to the lead defendant does ante, assertion, p appear "highly significant,” for reasons to be Assuming supra. in Pound was that the school district set out in n 38 accorded ment NW2d 191 not entitled to interpretation limitation on the law immunity highway depart- sovereign as the state the same McDowell, Sayers see v School Dist No (1962), municipal corporations were the fact remains that Thus, sovereign immunity even if the at common law. a substantive law offered Pound reflects of nuisance nuisance, governmental liability such a corporations. applicable municipal limitation would not preceded acknowledge of this Court that 43 I the decisions negligently injury statutory regime suffered in inflicted public roads. See n 38. Li Feldt Separate Levin, J. 260; 270 NW was denied to recovery plaintiff on a injured maintained defectively park swing. This Court said: discharge governmental inActs functions per.

which create a nuisance se do not come within otherwise accorded. Want of care in maintenance, however, presents question negligence nuisance, only, and not that of a danger which must rest on inherent even under the best of care.

These remarks were dicta —no nuisance per se presented was in the case —but demonstrate Court’s awareness of the exception, which extends to public nuisance as well. The Court was not careful with the definition of public which is here made to seem indistinguishable from se. The primary Court’s concern appears to have been the hazard actions predicated negligence might be recast as "nui- sance” evade immunity: Application abrogate of such rule would established doctrine of immunity by merely classifying as a nuisance the result of the negligence municipal agents employees in the tality, liability words, maintenance of a instrumen liable, city for which the is not to one of or, designation; under another in other immunizing negligence the but not the result.[44] It would indeed be incorrect to hold that every act negligence of on part of a municipality is actionable as a nuisance. But the complementary proposition action nuisance can never —that predicated negligent acts —is equally untena-

44Id., p 261. Separate Opinion Levin, particular city’s acts or omissions Because the

ble. park constituting negligent of the maintenance grounds liability, swing of were not themselves negligent consequences maintenance, without of subject act of a nuisance more, not be the could presence suggest not that The Court did ion.45 invariably precludes negligence of maintenance of jurisdictions in other Decisions a nuisance action. contrary.46 state the 45 Id, p 260. principle Prifty Waterbury, Among are v the formulations of this (a (1947) municipality creating 654; or maintain 54 A2d 260 Conn damages irrespective subject liability ing whether the misfeasance constituted for a nuisance is causing also or nonfeasance the nuisance Fe, (same); supra negligence); n 36 Ren Barker v Santa (a municipality subject of Nampa, supra n is v

strom performance govern arising negligent liability mental duties where injuries out of results); Bengivenga City of Plainf (a ield, municipali supra person suffering special harm from a n 36 negligence performing public ty’s ing resulting from maintain duties barred damage except injury is caused a nuisance action where the wrongdoing); City municipality’s of Pekin v from the active McMahon, 154 Ill 39 NE 484 Buffalo, 320-321; 108 NE 451 In Herman 214 NY negligence, Appeals distinguished from New York Court and held that a municipal corporation subject would be injury or "inten- a nuisance defined in "absolute” death or caused tional” terms: dangerous participation in the creation of the The creation or and under- must have been with the consciousness condition standing part [governmental it on the of the defendant] creating it; almost or it must have been obvious and

was governmen- reasonably prudent man . . . that certain to a [the help it. The condition must it must create or or to create acts would tal] have been a have intended to effect object [municipality]; purpose it; or its acts have been so reckless and conclusively implied. must be unwarranted that that intention This is not the having danger declaring it have intended the or that must condition, but, catastrophe. It must have intended intention, dangerous thought have it was not regard thoughtless in to it. It must have violated the been acts, participating duty refraining 'from absolute care, exercising foresight duty merely the relative reasonable wrongfulness prudence performance. The must in their and have been use the distinction . . . between nuisance than in the failure to in the acts themselves rather them, doing requisite degree and therein lies of care negligence. The one Li v by Separate Opinion Levin, J. IV disposition I instant cases. turn to the

A agree by Li, I with the result reached opinion. plaintiff essentially lead The asserts that Ann Arbor created or maintained a signal dangerous poorly timed traffic condition —a public interfering plaintiff’s road, —in a thus with usually interference, safe use of the road. Such styled lies at the core of the immunity.47 to signal alleges that the at issue was Plaintiff programmed traffic way particular in mo- such a that a obliged torist was often to remain at the intersec- through light being cycles tion two before allowed plaintiff’s hindrance, turn left. with Faced this light turn. driver ran a red to make a left Plaintiff argues public highway on "[s]afe travel on the impeded programmed which she rode was signal light dangerous itself, which was a nui- duty, is a violation of an absolute degree the other a failure to use the required particular of care circumstances —a duty.

violation of a relative A be created or highest degree negligence maintained with the of a of care and the defendant, cases, exceptional is not unless material. parties dispute plaintiif The whether the failure of the in Li to two-year period prescribed by commence her action within the highway tive of her mental all claims for including 3.996(111) statute, 691.1411; disposi MCL MSA was claim, irrespective exceptions govern of common-law argue The defendant and some amici curiae roads, personal injury arising out of defective actions that otherwise could have been maintained exceptions virtue of one or more common-law immu rule, nity, highway single, explicit statutory were subsumed under a provides which injuries. plaintiif argues applica remedy exclusive for such 27A.5805(8), 600.5805(8); three-year tion of MCL MSA statute of limitations for commencement of actions. 439 Mich 457 Separate Opinion Levin, being se, an obstruction as well as

sanee travel, nuisance.”48 successfully have been

Nuisance causes of action against governmental where entities asserted traffic malfunctioning (partic signals signs or were dangero clearly ularly if the malfunctions were us),49 circumstances, and, where the under similar notice of the had actual or constructive defendant published However, in no decision Michi defect. appears

gan jurisdiction any a to hold or other governmental entity subject liability for nui se, nuisance of or or sance any stripe, the asserted obstruction where pro improperly anything was like the travel grammed alleged.50 signal Nor do these traffic here allegations appear support a cause of action legal against governmental entity any other a theory.51 48 authority applying of law to the Plaintiff cites no these assertions alleged.

facts 49 Oglethorpe Phillips, supra. See Ft v n 35 signal liability imposed for defective traffic 50 Nuisance has been design, improper signal programming alleged in as distinct from the (SD Brunswick, Ga, Supp Li. The in v 529 F 695 court Banks (CA 1981), 11, 1982), law, applied Georgia 97 which does aff’d F2d require instrumentality liability may malfunction of an before imposed exception municipal immunity. under the nuisance The operating motorcycle, plaintiff, automobile driven a collided in an intersection with an Armstrong, just who had executed a left turn. was, however, allegation part There no of fault on the Rather, plaintiff claimed that he and either motorist. Armstrong both But, lawfully following signal light. were the traffic design signal light yellow failed to include a

because green light plaintiff’s in between the left turn arrow and the lane, impact. unwittingly point were directed to the drivers Supp Emphasis F 697. [529 added.] See, generally, Liability highway arising anno: authorities out of allegedly properly motor vehicle accident maintain traffic control device at caused failure to erect or intersection, 34 1008. ALR3d claims, negligence-based including involving Review of decisions term, presenting mentioning arguably nuisance without facts plaintiff sounding not maintain an action demonstrates that Li v Separate Opinion by Levin, Only unreasonable obstructions are nui- danger- "[I]ntrinsically unreasonable or sances.52 judicial in nuisance. Such decisions manifest such as the unannounced addressed concern for conditions change timing signal in the of a traffic Co, Sully-Miller Contracting App in Pritchard v 178 Cal 2d (1960) 246, 254; Rptr "which (emphasis Cal misled [the driver] added). trap Similarly, virtually created a for him” Supreme carefully circum Court of Iowa noted that small and "[a] potential placement signs area of for the of traffic scribed remains liability immunizing in units for the face of statute [the relating placing signs to traffic control which devices] ” Waukee, endanger Phillips City of mislead ... the driver.’ 1991) (Iowa, (emphasis original; citations 467 NW2d omitted). York, rationale underlies Delosovic v New 143 Misc 2d same 407; 541 NYS2d 685 aff’d 174 AD2d 572 NYS2d 857 (1991), affirming jury plaintiff verdict for the where a walk/don’t sign programmed way pedestrian walk was such a that a was believing complete into misled she had time traversal of Maxwell, (Tex, 1975), crosswalk; Sparkman holding 519 SW2d 852 improper who made an left turn that an intersectional collision was not law where driver and became involved negligence guilty as a of matter governmental authorities were on notice that motorists pointing left; were confused Mathes, red arrow Denton v and (Tex 1975), App, holding city 528 SW2d 625 Civ that a was not immune from involved in a collision where traffic intersection was of a for indemnification driver truck proceeding through south an presented green light with a at same time the that facing presented green light traffic north was with a red and a left- turn arrow. Although plaintiff argued the has that of the members were Li, annoyed by signal the traffic she does not assert that the governmental relevant dangerous entities were on notice that there awas Dep’t 44; Hwys, condition. Cf. Tuttle v of State 243 NW2d 244 Against background statutory highway exception the of the plaintiff claiming nsee limitations, two-year assuming the any statute of for the moment that available, allege governmental such were must or creation maintenance of a condition that could not be ascribed to the mere negligence Tuttle, employee agent. supra. of a Cf. negligence theory, plaintiff Yet even under a the would be unable to danger show the that condition amounted to a to a traveler in the ordinary making highway. exercise of care and lawful of the use Cf. Dep’t Transportation, App Comerica Bank v Mich (1987),holding negligent NW2d 2 install the defendant not for its failure to four-way stop signs at the intersection where the decedents’ stop stop sign. driver failed to at a Torts, 2d, (Nuisance), 821B, p 4 Restatement ch 40 87. § 439 Mich Levin, Separate Opinion per se. The traffic are nuisances ous”53conditions light doubt, was, in Li no to disaster led frustrating annoying, it was not treacher- but trap. ous,, did not constitute a B complaint Li, the Garcia In contrast with although alleged was, not so a condition dangerous unavoidably a nuisance as to constitute trap deadly decedent, the se, of which allegations, question city had notice. On these may such a cause of action be maintained whether only properly reference to all can be resolved with inquiry case, into which has been the facts of opinion’s lead determination that foreclosed public governmen- exception to nuisance is not an tal trespass-nuisance nuisance ex-

ceptions include principle well-established that members impeded community may not be from the safe use necessity, ways such as roads and navigable waterways, historically have been which making community the lines of communication possible. community Nor a member of - government physical dispossessed by of his well-being place, public way, "in a such as a while right place” may, he Such "a where has a be.”54 appear depending they on the circumstances as development, premises after full factual include "subject authority of defendant.”55 permit of the

The record does not resolution question whether, and in what critical Garcia: 53Ante, p 477.

54Pound, supra, n 4 372 Mich 502. supra. Id. See n 42 Li by Separate Opinion Levin, plaintiff’s may capacity, have had a the decedent holding pond right behind the in the to swim pond are Dam in Jackson. dam Holton obstruction, governmentally created ob- albeit a path If struction, holding pond River. in the of the Grand part undisturbed were still an municipality might River, not have the a Grand community authority from a member of the to bar transportation using for or recreation. the waters municipal certainly entity, a A liability corporation, subject for creat would be contaminating just ing river, as a nuisance creating liability subject it be would contaminating private property. As private person city greater right than a has no trespass private land, a member to commit the right community ordinarily has as much waterway city as the the use of a such River, River existed at least as the Grand Grand in the projects

days as Holton Dam before such governmental entity A ordinar were undertaken.56 right ily of, the use or has no inherent to obstruct trap way necessity. in, create a things clear, course, have It is that a few Michigan changed It was settled. since holding pond properly the con- under particu- governmental entities, so that this trol of other than of the river has become lar section public. Nonetheless, it remains to be established pond passed entirely control of the had whether property qualitatively ways necessity from are different Such government, enterprises occupied by the conducted owned or the necessary thought public purposes. government, many It other has been liability statutory categories of so to create functions, provision such as that some of these services, appropriate emergency levels of will receive recreational immunity. presenting governmental perceived settings, need to avoid there is a these agencies potential of such with engage agencies magnitude publicly in the have no incentive activity all. beneficial at 439 Mich by Separate Opinion Levin, J. public City Jackson,57 or the

the some sense shares the whether right the waters to use of A trial with one or more entities. evidentiary determine, court should after a full hearing, community, such whether members of the using frequency decedent, the as the pond were with swimming purposes, for or other city practices, whether the was aware of such given prescriptive right, which could have if not a rise to a right, to "be there.” Finally, assuming holding pond even the public domain, had been so far from the removed speak, plaintiff’s so to that the decedent could not regarded trespasser, city be as other than a might subject plaintiff, be under premises liability, maintaining law recognized justices attractive nuisance.58As several in Lansing, City 124, 134; Rosario v amounting 268 NW2d 230 circumstances trap, may in the sense of a also constitute an attractive nuisance.59 event, Pound, plaintiffs’ might In that claim run afoul of n 4 supra. But nsee 42. (Condition Torts, 2d, Land), See 2 Restatement ch 13 and Use of 339, pp 197 ff. § 59See, e.g., Barker, 36, cases Lehmkuhl and discussed in n supra. McMahon, McMahon, supra. See also of Pekin v n 46 Supreme damage against the defendant a water-filled area. The decedent was Court of Illinois affirmed a award city eight-year-old boy, the death of an owned who drowned in pit city thickly and located in a settled playing planks logs floating on some slipped Judgment plaintiff the surface when he was sustained on a held that "a into the water. for the nuisance,” theory of "attractive but the court also municipal corporation holding property private as a chargeable obligations, owner is devolve with the same duties and which ., respond way . on individuals . and must in the same Id., creating suffering p approved nuisances.” 154. The court city admission into evidence of a ordinance that defined such condi provided penalties tions as nuisances and for their maintenance. unlawful, city’s Insofar as the conduct was and maintenance of the pit law, pit water constituted a nuisance as defined the water might properly have been further characterized as a aor nuisance se. Li Separate Opinion Levin, part negligence, nuisance is of the law of see n Because attractive holding pond plaintiff was must show that maintenance of "governmental Rapids, 202 not a function.” See Heino v Grand Mich negligence might contributory The defense of 168 NW city not be available to the intentionally if the nuisance were determined (On created, Hickey see n see v Zezulka Resub- but mission), today. It 487 NW2d 106 decided would swimming” signs posted by question of fact whether the "no remain a defendant, warning plaintiff’s the to have received from a and even the decedent is said support playmate, such a were sufficient light allegations mentally defense in tarded. the decedent was re-

Case Details

Case Name: Li v. Feldt

Court Name: Michigan Supreme Court

Date Published: May 20, 1992

Citation: 487 N.W.2d 127

Docket Number: Docket Nos. 91079, 92057, (Calendar Nos. 1-2)

Court Abbreviation: Mich.