*1 254 LUCCHESI v KENT COUNTY ROAD COMMISSION 8, 1981, May Rapids. Docket No. 48790. Submitted at Grand Decided September 9, appeal applied 1981. Leave to for. Lucchesi, Sr., Jack as administrator of the estate of Jack Luc- chesi, Jr., deceased, brought against County an action the Kent wrongful Lucchesi, Jy. Road for the Commission death of Jack trial, Following jury plaintiff. returned a verdict for the entered, Court, Letts, J., Judgment was Kent Circuit John T. appeals. and the defendant Held: gravel mining storage 1. The defendant’s maintenance of operations generis government are not functions sui liability. thus are not immune to tort jury properly special 2. The record reveals that the returned concluding guilty gross verdicts the defendant was negligence or wilful and wanton misconduct. properly jury regarding 3. The trial court instructed the gross negligence, misconduct, damages, wilful and wanton respective parties, applicable theories of the and the law. closing argument plaintiffs 4. The counsel did not prejudice resulting requiring result in to the defendant in error reversal. properly 5. The trial court denied the defendant’s motion for mistrial. Trespass 6. The Recreational Act does not violate the title- object Michigan clause of the Constitution. Affirmed.
Mackenzie, P.J., part part. in dissented concurred [3] [2] [5] [4] [6] [7] [1] Municipal immunity 73 Am Jur 58 Am Jur 39 Am Jur 62 Am Jur 57 Am Jur 57 Am Jur 57 Am Jur seq. 2d, 2d, Negligence 2d, 2d, 2d, 2d, 2d, Municipal, School, References Nuisances 1. Highways, Statutes Municipal, Premises from §§ Liability for Points in Headnotes liability § Streets, School, §§ 99-103. 101. § and State Tort for torts. 60 ALR2d 1198. and State Tort et Bridges seq. § 341 et Liability Liability seq. § & 27 et 145. Comm v Road Lucchesi Kent gravel stockpile operation of a She would hold that maintaining system support county-wide road constitutes subject govern- generis government function sui addition, liability. immunity tort In she would mental from *2 plaintiffs pleadings reveals and hold that the record place question proofs nui- to intentional were sufficient jury. She and remand. sance before the would reverse Opinion of the Court Immunity — — Stat- 1. Governmental Governmental Function utes. governmental agency liability is immune from tort in all cases
A discharge engaged in the of a function where exercise (MCL government 691.1407; generis to MSA which is sui 3.996[107]). Immunity — — Mining 2. Governmental Statutes'. storage mining operation by a
The maintenance of a generis govern- governmental agency is not function sui to governmental subject immunity ment from tort and not (MCL691.1407; liability 3.996[107]). MSA Property Trespass Pleading — — — 3. Torts Real Recreational — Statutes. injuries engaged plaintiff for while in the A in an action received plead prove lands must use of the of another recreational owner, gross negligence misconduct or wilful and wanton (MCL 300.201, tenant, 317.176; prevail MSA or lessee to 13.1485,13.1482[6]). Negligence Negligence — — 4. Mis- Gross Wilful and Wanton — conduct Common Law. negligence are distinct
Gross and wilful and wanton misconduct concepts synonymous. law and at common are not Trespass — — 5. Statutes Act. Constitutional Recreational Law Trespass title-object The Act not violate the Recreational does (Const 4, §24, Michigan clause of the Constitution art 317.176; 13.1482[6]). MCL MSA by Mackenzie, P.J. Concurrence in Part and Part Dissent Immunity Highways — — 6. Statutes. Governmental support county-wide system, including The of a road maintenance generis gravel stockpiles, installations such as is a function sui immunity liability government subject from tort and is except speciñcally by immunity where is waived statute such (MCL 691.1402, 691.1407; 3.996[102], 3.996[107]). MSA — — 7. in Fact Nuisance Nuisance Intentional Nuisance in Fact. act, A occupation, is an or structure nuisance in fact which surroundings; becomes a because of nuisance circumstances which intentional nuisance fact is one is created or knowledge caused with that harm to someone’s full interests is follow; substantially certain to determination under particular category which falls is for nuisance the trier of fact. Cholette, & Perkins Buchanan John C. Bu- (by chanan, F. Riley Robert J. and Michael Kelly), plaintiff.
Smith, Rice Haughey, Roegge (by & Lance R. Mather), for defendant. Mackenzie, P.J.,
Before: R. B. Burns *3 O’Brien,* N. J. JJ. O’Brien, trial,
J. N. J. Following plaintiff was $170,000 awarded aby jury wrongful for the death his Defendant, son in an automobile accident. Kent Commission, County appeals Road by right, plaintiff brings and a cross-appeal.
The defendant owns and operates gravel a pit in Lowell, County eastern Kent near Michigan, adja- public cent a park. gravel pit question The in 5, one of several located in in District the eastern part Kent County. years, Over the defendant acquiesced has public in use of this site for many purposes, recreational involving chiefly motor sports vehicles, such as off-road buggies, dune mo- torcycles, and like. It the is not contested that the in property question fenced, posted, was not or private otherwise noted to be property closed to public. the premises The open were to the public * judge, sitting Appeals by assignment. Circuit on the Court of Road Comm Lucchesi v Kent a night, single the use restriction was day and permitted. firearms were not sign that prior to the accident Commencing years several killed, decedent was defendant plaintiffs in which gravel large mounds. The processed stockpiled used, needed, to build and processed gravel was pit terrain was gravel roads. The repair uneven, stumps, studded with tree rolling, boulders, Photographic and other hazards. adduced at trial established testimonial evidence roads, tracks, fairly that a well-defined system to even casual present, apparent and trails were observation. October, 1977, late
Commencing defendant and, operations on one mound began moving earth weeks, 1,800 out cubic succeeding nearly over took The material. material was yards aggregate mound, leaving from side of the removed one precipitous with a crescent-shaped ring of material re- During at rear. the course of escarpment its moval, agents truck employees, defendant’s came real- operators, scoop-loader operators A danger project. ize created the obvious area, pit coming day into driver leading top trails night, along well-defined dirt, east, from west to of the mound of of the hill been see that entire back twenty-foot top until he was at of a removed precipice. 19, morning
In hours of November early C-J5, four- plaintiffs Jeep decedent drove He off the precipice. wheel drive vehicle *4 killed, riding in the vehicle as were three others with him. several issues. appeal
Defendant’s raises statutorily First, alleges is defendant 3.996(107). 691.1407; from MCL MSA immune suit. App 258 109 Mich 254 The argument of counsel the well-presented holdings narrow of Court and Michigan our Supreme in subject Court this matter have led us to examine the case We closely before us. conclude that, on the basis of the decisions in v City Parker of Highland Park, 183; 404 Mich 273 413 NW2d (1978), Perry Hospital, v Kalamazoo State (1978), 205; Mich NW2d the maintenance of gravel defendant’s mining storage opera- do enjoy tions not statutory governmental immu- nity.
Given by Perry and Par- imposed the standard ker, government is immune from suit only where it engaged is in those functions which are sui generis government, persuaded are we of maintenance or pit, even construction of maintenance roads within a county network, road governmental a uniquely activity.
Next, defendant raises of number complex claim, issues surrounding plaintiffs proofs ad- trial, at duced and the instruction of court concerning gross negligence or wilful and wanton misconduct.
Our
review
the record leads us to affirm the
special
jury verdicts entered in this case conclud-
ing that defendant
gross
guilty
negligence
Moreover,
wilful
wanton misconduct.
defen-
Nicholson,
reliance on Thone v
dant’s
538;
(1978),
Initially, reject we the application *5 259 Road Comm v Kent Lucchesi Anderson, 270 146-151; 243 NW2d 397 Mich 2d, Torts, 479 and (1976), and 2 Restatement §§ Obviously, Zeni and these Restate- 480 this case. to where a only to situations apply ment sections know, of knows, reason to a or has defendant could, for his or her and plaintiff’s helplessness to a plaintiff. avoid negligence, injury own ruled properly trial that note that the court We here, 300.201; MCL MSA applicable the statutes 13.1482(6), 317.176; MSA re- 13.1485 and MCL prove gross plead that the and quired plaintiff and wanton misconduct negligence or wilful Thone, supra. prevail. order gross negligence use of and The unfortunate misconduct over synonyms wilful and wanton prece of law and body the have created years for the bench implications has serious dent which reasoning Judge agree with the and bar. We Thone, is most supra, there R. B. Burns negligence gross between certainly a difference that failure wanton and and wilful and misconduct separate con a distinction blurs maintain unnecessary confusion cepts and contributes meanings gross negligence over the various Cursan, Gibbard misconduct. v wilful and wanton (1923), LaCroix v 311; NW 398 196 Co, 417; Trunk W R Mich 152 NW2d Grand 379 (1967). Moreover, agree 656 we that cases which trespass recreational interpreted have Thone, statutes, exception land use with the different standards have failed to see or apply v Magerowski Standard See of conduct properly. (WD Mich, 1967), v Co, Taylor Oil 246 Supp 274 F Mathews, (1972), 74; 843 Mich 198 NW2d App 40 Co, 459; 231 v Power Mich Thomas Consumers 394 (1975). However, by we bound 653 are NW2d a jury- and law of Thomas and hold that rationale Mich Opinion Court submissible pled proved by plaintiff issue so as to avoid either a defense motion for sum- judgment or a mary directed verdict.
The testimony defendant’s truck drivers equipment operators experienced police investigated officer who the accident con- us plaintiff vince has his proved case *6 preponderance of the evidence.1 Defendant 1Concerning plaintiffs gross negligence claim of or wilful and misconduct, concerning wanton a number of witnesses testified gravel pit. condition at the defendant’s Testimony Phillips Gregg Buchanan, "Q. [By plaintiff’s attorney]: Phillips, you Mr. Mr. were among the truck drivers that were involved in the of that removal couple days for a in late of 1977? October "A. Yes. true, "Q. recollection, your upon you guys And isn’t it based took away pile? a about half of "A. Yes. "Q. true, you away And isn’t it that before went out there and took pile picture, that, you that there which we could see in that before did nice, plateau big up top up, awas on where vehicles could drive stop, turn around come back down? Possibly. big they 'A. It I wasn’t too think could. Well, ”Q. you stack, away you? took about half the didn’t top gone. 'A. Half the "Q. you you personally And do know that if went out there with your out you qualms, you gone recreational said no would have vehicle— you to, you? if there wanted wouldn’t 'A. Yes. "Q. you personally plateau up And know there was sort some up there that vehicles could drive on turn around and back come down? 'A. Yes. Now, ”Q. something there you mentioned about 'noon’. Can tell us, sir, yourself was there a conversation with and other truck drivers you guys starting chop away some noon when leaving were from hill that, danger’ that hill you like that so-called 'obvious talked about, was there a conversation like that? "A. Yes. "Q. us, sir, you you Can tell about that conversation other truck drivers had? Well, I might "A. don’t recall the one us that it. said It have been me. ”Q. say? you What did somebody "A. We said—I said him some name —some —called Lucchesi v Kent Road Comm Opinion op the Court going up right go top clown was to come this hill and off the and be said, really surprised, they and the I reason called him a name like I goofy something would be kind of because it wouldn’t be me. I always would check other side the hill. "Q. you guys talking danger, I see. When were about the obvious you standing and a number of other truck drivers were around and observing picture right kind of we what see this here. Let’s a take see, you talking you look at it. What are about is that could in that picture, you way there is no can tell that hill’s been removed? No, "A. sir. correct, "Q. That is isn’t it? Yes, "A. "Q. correct. it, you up you picture, And as move on closer see in that way you going there still is no are to tell that hill’s been removed? No, 'A. sir. "Q. profile you nice, But all aof sudden from can tell there a sharp drop somebody you saying you and what are is that and the recognized clown, you you other truck drivers call him that — anything you somebody could call him want to call that’s used him— coming perhaps jeep out there and didn’t because the was down for couple right of weeks comes over and does not know that hill has excavated, right, been sir? 'A. Yes. "Q. you you your And had that conversation with and several of happened, you? truck drivers sometime this before accident didn’t "A. Yes. ”Q. you danger’ And talked about that so-called ‘obvious and what *7 happen being? could to some human really talking over, going "A. Yes. way We weren’t about all the just you up stop top you if surprised. came on be would "Q. Well, you you when had that conversation there were several guys talking it, out there about weren’t there? "A. Yes.” op Testimony Ed Falk "Q.[By Kelly, plaintiff’s fact, Falk, attorney]: you Mr. In Mr. told us your deposition you gave estimate, anyway, you in that had away hill, taken 30 to 40 feet from that isn’t that correct? my "A. That’s estimate. "Q. you you having morning And also told us that were coffee one you lunch, having you sure, or quite were weren’t but there was a place possibly conversation that took between the various drivers operator? the loader Yes, "A. sir. "Q. you telling Do recall me about that conversation? Well, just somebody "A. there was statements made that if ever flying they go long ways. went off there would hell of a "Q. you telling deposition you Do recall inme that as were looking profile you at the hill—the of the hill that or some of the really somebody top drivers said would be a bitch if on went over that hill? Mich Yes, "A. sir. said, they right? "Q.And what that’s Yes, "A. sir. day "Q. pit truck going from that and out of that that But from leading right up you from the the hill tracks could still see there were side, you? west couldn’t pit. coming you into the "A. would have That’s a view way, ”Q. wasn’t it? And that was undisturbed No, dug the hill. on that side of "A. it hadn’t been something warning signs up ”Q. put digging that no There was happened on the east side? No, "A. sir. coming "Q. familiarity you your knew that if someone was From area, they particularly come pit, would into that from that same little from the Lowell trail? "A. Yes. "Q. they approaching from the west? would be And "A. Yes. happened they on the "Q. way would know what is no And there side? east past they the east had driven and saw "A. Not unless side. night? through they "Q. particularly there at if came But "A. True. "Q. your past experiences you there at that out And knew from night? people go
gravel pit out there at did that "A. Yes. "Q. see, working you you that for that road even when were And could out, coming they hauling were still out commission that things night you of this nature? see beer cans and at because could "A. Yes. "Q. parked? people went there and You knew out "A. Yes. "Q. looking you your hill you were at that So as fellow drivers you? danger, recognized there an obvious didn’t that Yes, up top, yes. going to the "A. there was tracks recognized somebody ”Q. with that area that was familiar You driving up east side did not know that the and used to had that west side go they right away off the east side? been taken would "A. Yes. seriously "Q. you recognized they be hurt? And "A. Yes. "Q. possibly killed? Or *8 "A. Yes.” Testimony of Donald Eickhoff there, Eickhoff, "Q.[By you did when were Mr. Mr. And Buchanan]: getting wreckage, getting of the you assist in the assist in the that Lucchesi v Kent Road Comm thing, victims of the accident into the that sort ambulance and that sir? "A. Yes. Eickhoff, there, said, "Q. you’re you particular Mr. because at this you you really time were a wrecker driver and were not there as an commission, county you, day official of the accident? road were on the of the No, commission, 'A. I wasn’t there because the road I was there my because of own business. ”Q. your Because of wrecker business? right. "A. That’s just coincidence, ”Q. you happened employee But an be normally road commission and also the man who would have been operate loader, hill; the one to who works out at that is that correct, sir? 'A. Yes. Eickhoff, "Q. right. you got All Mr. you when out there and looked particular situation, you at deposition, this you told me in the opportunity to take a walk around and to look at that hill from side, not, you the west did sir? Yes, I "A. did. "Q. you And could see anybody from the west side of that hill that happened coming who vehicles had to be used to in there with their recreational separate, they they would would not be able to see what not— happened hill; correct, on the other side of the isn’t that sir? Yes, "A. I did. "Q. daylight, you happened And even in broad if to move little hill, picture, you closer to that in as we see this at see even way just time that it would no be to tell what had been left over the crest; isn’t that correct sir? right. "A. That’s "Q. you time, And you? saw that at that didn’t You observed that? around, around, it, You you looked walked you, looked at didn’t sir? Mr. Eickhoff? "A. Yes. ”Q. you that, And you operator when observed aas loader also observed that whoever was there and did this did take their up loader right along the front of that hill and remove of that from here, they, in did sir? No, they "A. "Q. didn’t. Now, Eickhoff, you operator familiar, Mr. being as a loader sir, safe, proper operation having with years worked fifteen capacity, you proper operation were familiar with the and safe type equipment, you, weren’t sir? "A. Yes. "Q. you way And were familiar with the which hill or ought left, you, excavation whatever to be weren’t sir? "A. Yes. "Q. upon your experience, you’ve And years based the fifteen *9 knowledge upon your sense and common job, worked in that based policy upon you to of of good understood be judgment, and what based they’re supposed government to leave that sort the thing, tion to how relative left, your you this from observa- tell us what —how was could compared way left? to it should have been as done, Well, operator got he just must "A the loader it was —when scooping up pulled going the other have side a around and out instead down, keep bit, you somebody just because can’t to slow little devil, out, going going like the 'em it slow 'em down from but would up the hill. "Q. you’d been there? It would tell them "A. Yes. you "Q. your it it terrible? when saw was And wasn’t reaction "A. Yes. me, "Q. you sir? Isn’t that what told "A. Yes. "Q. you you your that said that reaction when saw that And wasn’t twenty of time to take only minutes it would take about fifteen got pick up you’ve a half a truckload of stuff in that one that can machine correct, hill; go sir? scoop of that isn’t that and around the front right. "A. That’s there, right ”Q. just like he’d made come around He could have hill, high, he didn’t have to make it as but as in the backside of the we can see from the backside here, hill, big right those teethmarks, scoop equipment yours; marks are made that those correct, right sir? We see in there? isn’t that my "A. Not machine. No, machine, your you "Q. I weren’t tjhe not—I don’t mean know scoop saying way, that did and left it this but I’m marks one this thing your at of that hill is the sort of that that we see the base correct, do; to is that sir? machine would be able "A. Yes. up scoops "Q. you’re pick to two And able with that machine with gravel, you’re you of that to create what call those truckload scoop able marks, or is there a name for that? "A. No. out; "Q. right. pick up scoop it isn’t that All You’re able correct? right. "A. That’s sort, you’re "Q. Mr. an embankment of some And able create go talking Haughey east side access on the east side of the they about the reason couldn’t down on out, they scooped there was no that because correct, hill; isn’t that sir? "A. Yes. do, "Q. you go you And what could could the other side of hill, done, here, you right they they which said should have marks and could take out could at least take out there, right they scoop those
take —that’s make, big, necessarily they correct, that; scoop sir? marks and create a wall like isn’t that some "A. Yes. Lucchesi v Kent Road Comm Opinion Court "Q. certainly awfully And that would anybody make it difficult for up there; correct, to come isn’t that sir? right. "A. That’s that, "Q. you you thought, you And when observed felt that who- job ever did the work the road on commission this didn’t itdo the they way that upon operating practice; should have done it based safe isn’t correct, sir? "A. Yes. "Q. you job And if had done this and if it—if fortune had been such *10 whatever, you day you’d it; that weren’t sick that or have done is that correct, sir?
'A. Yes. "Q. You’d have done it because it was common sense? "A. Yes. ”Q. decency, respect life; you And if common human isn’t that Correct, correct, sir? sir? yes. say "A. I’d "Q. required policy government And because it was the of the that you way; correct, don’t leave it that isn’t that sir? ’A. Yes.” Testimony Ray Fugitt of "Q. Buchanan, Now, plaintiffs attorney]: Fugitt, you [Mr. Mr. were among away the truck drivers who was out there and took the back couple accident, side of that hill a weeks or so before this isn’t that correct, sir? Yes, "A. sir. ”Q. you guys removing And when were the back side of that hill just away, you like we guy and the kid with talked about and taken it could see that that happened bring family picnic who his over there and a have you guys the mini-bike or four-wheel drive vehicle— happened fellow, you? could see what to that couldn’t "A. Yes. "Q. it, you you? And talked about didn’t Yes, sir, "A. I believe we did. "Q. you And there were several that stood around and had that conversation, right? isn’t that "A. That’s correct. "Q. fact, during As a matter I don’t it know if was a lunch break was, you standing or coffee or you break what were there just ago, could see what we could see and we talked about a moment isn’t that correct? "A. That’s correct. "Q. you particular gravel And pit, could see this unlike all the well, pits other in the this one didn’t have fences. district — You could see that? "A. That’s correct. "Q. sign people they It no had that would tell shouldn’t be there. You could see that? Yes, "A. sir. op Opinion the Court knowledge people came ”Q. that guys and it was common You knew basis, daily almost on in didn’t vehicles there with their recreational you? Yes, "A. sir. perhaps top go "Q. this hill and they could to the came and And knowledge, common that was look wasn’t it? or whatever and at the animals Yes, "A. it was. you "Q. away of the hill you the back side took And as just up like we west side that hill on the comes see where someone talked all they just on over and be ride can little about kid— they? gone seriously injured, couldn’t Yes, "A. sir. you? very danger, didn’t "Q. you guys felt that was serious And Yes, "A. sir. ”Q. you talked about it? And Yes, "A. sir. there, regarded part they it as "Q. people had come Because park thought part a real hazard park it was the existed for them, right? isn’t Yes, "A. sir. charge definitely you people have ”Q. in action should felt that And prevent type taken some done or should have you? tragedy, didn’t "A. Correct. conversation, you? "Q. you didn’t all had that And Several, sir, many.” I don’t recall how "A. County Testimony Hudenko, Kent Sheriff of Lieutenant Walter Department *11 Hudenko, upon you "Q. [By based what Mr. Officer Buchanan]: accident, looking the at that hill from the at the scene of observed you day, I to assume it on that and want a driver would see west as that top hill or that the east side of the a driver did not know that proceeded night, away, day it or and he taken whether be had been top any way been up to that the had the hill. there be know Would up gone you didn’t know it beforehand? the west side and he if came say no. "A. I would "Q. you day, upon you at the hill from that look Based what saw west, a the direction from which that or would that not be the vehicle would enter would the area? the "A. "Q. of areas. One site, Well, get vehicle or to to that recreational I mean access way gravel pit; logical road that we be that would the entrance the see sign says No Firearms Allowed? in Exhibit where that # "A. Yes. that, daylight, and "Q. even in broad if vehicle entered And mound, up proceeded the proceeded would the and then toward mound mound, upon coming up any way based that there be a driver v Lucchesi Kent Road Comm Opinion op the Court knowledge of a requiring situation the exercise ordinary diligence care and injury to avoid to the plaintiff’s Further, public. decedent and the defen- had, had, dant it knew to ability easily avoid the harm resulting by the exercise ordi- prudence care and nary using no extraordinary Finally, measures. defendant knew that its con- duct created apparent the all too threat of disas- ter, to yet failed use care to avoid ordinary danger. argument
Defendant’s "nothing could have you day, lay what ately saw that would be able see what would immedi- top drop-off? at the of that you excluding possibility might "A. go Are he around look? "Q. exactly assuming That daylight is am that in broad we have —I in, people coming just any four people so we don’t have claim four these drink, anything people, apparently we have four sober people, coming daylight driving right in there in up broad side, driving right road, up west that so-called and the west side that, me, you the mound. I want to assume and tell would there be any way they lay just top could see what over the of the hill until they got top? to the considering speed 'A. Are we factor? "Q. saying vehicle, We are a car or a or a four-wheel drive or whatever, coming up this, upon speed, and based unless —whatever crawling, going hour, he is 8 or 10 or 12 miles an would there be any way stop? he could see it in time to again, eliminating speed factor, 'A. There he would not know until top. very he reached the ”Q. you you And could see part could observe and that was that — your investigation day of the accident? Yes, 'A. sir. "Q. thing happened could, So the fact night, upon that this at based saw, you happened what daylgiht, could also have in the because visibility obstruction? say 'A. I would so. "Q. somebody drinking And drinking, whether or not happen somebody sober, perfectly who was it? couldn’t "A. It is feasible. "Q. find, you your investigation, Did county any that the made effort recreational area, whatsoever to warn or advise the users of vehicles, they top away had taken the from the hill? any 'A. I saw no indication there that dirt had been removed. "Q. warn, *12 Or effort had been made to is that correct? signs warnings.” ’A. No 254 had an Defendant on deaf ears. been done” falls to obviate these circumstances absolute under duty only was not nothing done the To have danger. inaction. wilful and wanton but grossly negligent, prudent the most for even trap a Having baited by idly stand driver, defendant await a victim. the test which three-part the
We recognize misleading in Zeni said was Supreme Court in Thone is misleading if which is questioned the Court the faced applied to situations the cases, doubt that test have no those but we two 343, 2d, Torts, apply 342 and and Restatement §§ not, Further, if does hold that even here. we only as to show not go far at trial so facts adduced standard, gross by whatever negligence, defendant put so care as want of reckless wrong”. the wilful doer "in the class with LaCroix, Gibbard, supra, 425-426. supra, gross on jury to the The trial court’s instruction misconduct as wilful and wanton negligence and as a damages, read instructions on well as its fairly parties’ set forth whole, adequately applicable the case and the theories of respective no find error. law. We
Moreover, prejudice suffered no as defendant nor closing argument, plaintiff’s counsel’s result ruling on there error in the trial court’s mistrial motion. defendant’s Trespass hold that the Recreational Finally, we 13.1482(6), 323, 317.176; Act, PA MCL MSA of tres- object, regulation constitutional. Its Const in the title of the act. pass, is embodied Moreover, 4, applies the statute art 24.§ plain- entities governmental all cases to where cause of action. pleads negligence tiff Affirmed. *13 Lucchesi v Kent Road Comm 269 by Mackenzie, Partial Dissent P.J.
R. Burns, J., B. concurred.
Mackenzie, P.J. (dissenting in part, concurring part). in I respectfully dissent from the majority’s disposition of governmental immunity I issue. concur with majority’s disposition of the other issues raised defendant. by 3.996(107) 691.1407;
MCL MSA provides: "Except as in this provided, govern- act otherwise all agencies mental all cases the shall be immune from liability tort in government agency wherein the engaged is discharge governmental exercise or of a function. Except herein, provided as otherwise this act shall not be modifying construed as or restricting immunity heretofore, state from tort liability as it existed which immunity is affirmed.” governmental
A
agency
"engaged
is
in the exer-
discharge
cise or
governmental
function”
when it
engaged
is
in activities
"sui
are
generis governmental
essence to governing”.
—of
See Parker v City Highland Park,
404 Mich
193, 199;
(1978).
By 691.1402; 3.996(102), MCL Legisla- MSA ture waived the immunity which would otherwise by Mackenzie, P.J. Partial Dissent 3.996(107) 691.1407; MSA
arise MCL under certain situations: having jurisdiction over agency governmental "Each in reasonable highway any maintain the highway shall for and convenient repair reasonably safe so sustaining injury or public person bodily Any travel. failure of damage property his reason its
governmental keep any highway under agency to repair, in condition rea- jurisdiction in reasonable travel, damages may recover sonably and fit safe *14 agency. The governmental by him from such suffered liability, procedure county to remedy as roads county road commission jurisdiction of a under the 21, chapter 4 of provided Act No. shall 283 as in section be amended, 1909, being Acts of as of the Public duty Compiled of 1948. The 224.21 of the Laws section repair to county road commissions of the and the state therefor, liability shall highways, the and maintain highway of the improved portion only extend to the not include designed for travel and shall vehicular sidewalks, outside other installation crosswalks designed for portion highway of the improved of the against brought the action shall be vehicular travel. No except injury or section for loss suf- state under this Any judgment against July 1965. fered on or after arising under this section the state based on claim highway department or omissions of the state from acts only appropri- payable from restricted funds shall be ated to the state provided highway department or funds added.) (Emphasis by its insurer.” the language that under the emphasized Note commission, as such county of a road immunity here, installations defendant not waived of a part portion are not of the improved which of main- part are nevertheless highway which taining a of roads. county-wide system mainte-
Plaintiff would have us hold that
the
pit
sufficiently
here
gravel
nance
was
county-wide sys-
to
maintenance
of a
.related
the
Lucchesi
v
Road
Kent
Comm
by Mackenzie,
P.J.
Partial Dissent
regarded
part
tem of roads
be
to
of the latter
activity.
undisputed testimony
However, the
indi-
gravel
quarrying
cated that all
had ceased
years previously.
several
At the time the accident
place,
quarry
merely
took
the site of
stockpile
according
defendant’s
for use
requirements
of future construction or mainte-
nance. Roads cannot be
vacuum;
maintained in a
county
equip,
create,
road commission must
organization
supply
purpose.
for that
I
gravel stockpile
would hold that
here
awas
necessary support
activity
installation for the
maintaining
county-wide system
of roads and
part
activity
governing”.
thus
of an
"of essence to
My
foregoing
requires
resolution of the
issue
me
majority
to address an
which the
issue
does not
cross-appealed
argues
reach. Plaintiff has
by declining
place
the trial court erred
question
intentionally
created
nuisance
fact
jury.
judicially
before the
The
created nuisance
exception
governmental
immunity
was reexa-
Supreme
City
mined
Court in Rosario v
Lansing,
(1978),
124;
403 Mich
tially certain to here, term suggestion defendant’s Contrary or activities to conditions not limited "nuisance” is defen- outside persons which injury threaten id., 139-140, and the cases See premises. dant’s the record con- my cited Since review therein. proofs pleadings plaintiffs vinces me intentional place question were sufficient reverse I would jury, fact before nuisance in question. on that and remand for trial