*1 Pacini PACINI CITY OF DETROIT 7, 1983, February Docket No. 59525. Submitted at Detroit. Decided 18, 1983. May appeal applied Leave to for. brought Domenica Wayne an action in the Circuit Court 29, 1980, July against damages of Detroit for for injuries city sustained when May she fell on a sidewalk on complaint alleged 1978. The injured that as a "negligence unlawfulness, result of defendant’s and and the stepped nuisance maintained it” when she into a hole or depression sidewalk, causing ground in the her to fall to the injuries. and specifically alleged sustain serious It was duty defendant had highway breached its to maintain the repair, reasonable as set forth in a statute. Plaintiff amended adding containing allegations her a second count court, J., O’Hair, granted of nuisance. The John D. accelerated defendant, judgment holding two-year that the statute of applicable brought against governmen- limitations to actions pursuant tal unit maintenance statute barred plaintiff’s appealed. action. Plaintiff Held: statutory period governing The upon limitation claims based applies alleged intentional nuisance where conduct is to be intentional and it fits within the created intentional governmental immunity. nuisance negligence allegations Affirmed as to the and reversed as to allegation. the nuisance Kelly, J., dissented. He would hold that a suit governmental agency based on the maintenance of an inten- tional nuisance on to a period of limitations and would affirm. [1] 39 Am 341, 347, 348. Jur 2d, References Highways, for Points Streets, and Headnotes in Bridges §§ 104 et seq., [2] [3] 40 Am Jur 58 Am Jur 39 Am Jur 2d, 2d, 2d, Highways, Highways, Nuisances 55.§ Streets, Streets, and Bridges Bridges 615. op
Opinion the Court Highways. — — Nuisance Intentional of Actions 1. Limitation upon governing inten- claims based The statute applies to be inten- where conduct is tional *2 nui- created intentional it fits within the tional and (MCL 600.5805[8]; exception to sance 27A.5805[8]). MSA Immunity. — — Governmental Nuisance 2. Nuisance Intentional intentionally or continued nuisance created of an The existence necessary of immu- avoid the defense in fact fact; by the trier of nity question to be determined of fact intent, plaintiff necessary must show that the a establish must the nuisance knew or or continued defendant who created substantially plaintiff was certain known that harm have defendant’s actions. as a result of to follow Kelly, Highways. — op — Nuisance Actions Intentional 3. Limitation based on the maintenance a A suit highway to a a nuisance on of an intentional (MCL 691.1411[2]; two-year period limitations 3.996[111][2]). Watters, Rutt, & Plunkett, Stanczyk Cooney, (by Brochert and Chris- Pedersen, P.C. Frank W. plaintiff. for Oldani), D. tine Ward, Counsel, P. Susan Corporation Assistant for defendant. Kelly Wahls, M. P.J., and M. J. and
Before: Warshawsky,* JJ. right appeals by the trial
Per Curiam. Plaintiff entry judgment, 1963, of accelerated court’s GCR running two-year based on 116, period in MCL limitations as set forth 3.996(111X2). 691.1411(2); MSA July in this case on Plaintiff filed her 29, 1980, she sus- damages injuries seeking
* sitting Appeals by assignment. judge, on the Circuit Court Opinion of the Court city May 8, fell on tained when she sidewalk on complaint alleged plaintiff 1978. The that was "negligence injured as a result of defendant’s and unlawfulness, and nuisance maintáined it” stepped causing depression when she into a hole or in the ground sidewalk, her to fall to the injuries. specifically alleged serious It sustain duty that defendant had breached its to maintain repair, in reasonable as set forth in On November complaint by adding amended her containing allegations second count of nuisance. hearing At the on the motion for accelerated judgment, argued, defendant and the trial court agreed, statute of limitations applicable brought against governmen- to actions pursuant tal unit 3.996(111X2),
statute, MCL
barred
action as it was filed more than
*3
years
injury.
two
after her
The trial court was
unpersuaded by plaintiffs argument
that
the two-
year
period
statutory
inapplicable
because the
allegations
triggered
three-year
of nuisance
stat-
ute of
that,
limitations. The court concluded
re-
gardless
they
given,
allega-
of what labels
were
the
plaintiffs complaint
governed tions in
were
the
two-year statute of limitations since the suit in-
highway.
volved the maintenance of a
App
In
Detroit,
Palomba v East
112
Mich
(1982),
subsequent
munity statute involved in our consideration here. First, Legislature the expressly has authorized claims App 1
4 Opinion of the Court arising negli- out governmental agency of the 691.1402; highways. gent MCL period The MCL of limitations for such claims is 3.996(111). Second, the years. two courts have nity intentionally government ruled that has no immu- injuries resulting liability from from a nuisance created or maintained. See Rosario v Lansing, 403 The Mich NW2d period upon for claims based intentional years. is three nuisance 27A.5805(8). exceptions These two im- independent. munity are distinct and One involves negligent conduct; liability for the other for intentional conduct. If the conduct which creates the nuisance is intentional, it is irrelevant that in- conduct also highway. the maintenance of a volves need not exception The claimant rely upon legislatively created rather, may, rely statute but judicially exception. gov- on the ernmental created nuisance The intentionally which creates the nui- given advantage sance should not limitation of a shorter period merely because there is an alternative theory conduct immunity. under which it would lose its Where intentional, to be and it fits within created intentional nuisance immunity, period govern- the limitation ing upon claims based intentional nuisance should be utilized. We conclude that the circuit court erred applying claim. See period statutory to the nuisance Highway Dep’t, Zimmer v State Mich (1975).” 769, 772; Palomba, supra, pp NW2d 214, 215. Accordingly, plaintiffs cause action is to the three-year, rather than the two-year, limitations, provided sufficiently pleaded she has a claim based upon intentional nuisance. Defen- dant contends on appeal *4 allegations are simply negli- restatement of her gence allegations, with the only being distinction she applied the label "nuisance” claims. Detroit Opinion of the Court plaintiffs portions of amended
The relevant as follows: state of the circumstances and sur- "2. That reason sidewalk, roundings of the aforementioned an ex- existed; dangerous tremely and hazardous condition dangerous "3. That this condition had existed (30) thirty days prior plain- to the time of more than into, become, injuries ripened and still is a tiffs fact; nuisance in negligently to
"4. That defendant failed and refused any steps remedy whatsoever the aforemen- take condition; dangerous tioned defendant, dangerous by allowing
"5. That exist, knew or must have known that condition plaintiff substantially harm to the was certain to follow [*] [*] [*] JJ intentionally
The existence of an created or necessary fact, continued nuisance in to avoid the immunity, question defense of trier of fact to be determined of fact. Ford v (1979). App Detroit, 91 Mich NW2d necessary plaintiff intent, "To establish the must show that the defendant who created or continued the nuisance knew must have known that harm substantially certain to follow supra, p Ford, as the result of defendant’s actions.” citing supra. Rosario, In order for the issue to fact, however, be submitted to the trier of allegations plaintiffs complaint, liberally in proven, construed, sufficient, must if to estab- intentionally lish the existence of an created or supra, pp Rosario, continued 142- fact. Detroit, 705, 711-712; Davis v NW2d allegations We conclude that *5 [May' J. M. J. by Kelly, Dissent dangerous this allowed that defendant complaint "refused” to to exist and condition and hazardous same, liberally the steps remedy any take construed, dismissal by to withstand are sufficient sim- substantially Regarding judgment. accelerated Rosario, in Jus- in the allegations ilar Moody had pleaded the tice concluded , part on the of the negligence more than Lansing: more than a 'want of
"The word 'refused’ denotes context, neglect. In 're- this care in maintenance’ alleged govern- an deliberate act fused’ describes complained-of condition.” agency to create mental omitted.) (Footnote Rosario, p supra, granted court properly the trial Accordingly, as to judgment motion for accelerated defendant’s allegations negligence violation plaintiff’s maintenance duty imposed by statute, com- dismissing erred in the amended but alleged. in nuisance was Plaintiffs plaint which the existence of an inten- attempt prove may tional nuisance in fact. part, part,
Affirmed in reversed and re- manded. (dissenting).
M. J. J. I believe that a suit Kelly, brought against governmental based of an intentional nui- sance on a sidewalk is to the two- 11 of the year period provided of limitations at act, 691.1411(2); MCL immunity 3.996(111)(2), pe- MSA three-year rather than the riod provided at MCL 27A.5805(8). suit
Any agency1 neces- involves sarily application act, 691.1401-691.1415; MCL 3.996(101)-3.996(115). 11 of provides Section the act period for all claims act, arising under of the turn, Section specific statutory *6 of governmental immunity waiver for all suits arising as a result of bodily injury or property damage reason of governmental failure of a keep to under agency highway2 jurisdiction its in repair reasonable and in a condition reasonably safe fit and for travel. suit Any govern- mental agency resulting from in defects public highway should fall within the specific stat- waiver utory governmental immunity should, therefore, be to the accompanying two-year period of limitations. notes,
As the majority this Court held in Pa Detroit, lomba v East 209; 112 Mich App 315 (1982), NW2d 898 that when a plaintiff alleges that a defect in a was an highway "intentional nuisance”3 proceeds the suit outside the scope and, therefore, 2 is subject general § three- year period of limitations "for to or injury person property” provided at
27A.5805(8). I cannot accept
the analysis advanced
Palomba.
by the Court
in
There,
the Court
refers
to
2
a legislative
as
authorization
of claims aris-
municipal corporation,
1A
such as the
in
Detroit
the instant
case,
"governmental
agency”.
691.1401(d);
See MCL
3.996(101)(d).
"highway”
691.1401(e);
The term
includes sidewalks. MCL
3.996(101)(e).
An
agency
intentional nuisance results when the
bring
intends to
about the conditions which are in fact found to
abe
124,
(1978)
Lansing,
nuisance. Rosario v
403 Mich
ing only however, reference to makes no Section ways. Rather, "any it refers to broadly negligence suits. his damage or to sustaining bodily injury person any of failure of by reason property in in its keep jurisdiction to any Palomba in limited repair”. The Court reasonable providing actions without negligence solely limita- support in of this authority any analysis tion.4 Palomba reasoned
The Court "[t]he not cre- rely upon legislatively claimant need ated rather, on the created may, rely
but
Palomba,
supra, p
Judi-
exception”.
to the doctrine of
exceptions
cial
however,
are valid
due to the
immunity,
only
enacted,
governmental immunity
originally
When the
act was
Legislature expressed
negligence
it
in the title to the act that was directed at
Legislature’s attempt
actions. This led to the
to retain
unconstitutional,
governmental immunity being declared
because the
actions,
solely
negligence
applied
to all tort
not
act
actions,
its face
therefore,
title,
and,
object not
its
embraced an
within
*7
1963,
4,
Tawas,
City
violation of Const
Mich
593
act and rewrote its
negligence
Supreme
art
24. See Maki v
of East
§
(1969),
151;
App
injury on a are two-year period to limitations, independent common law’s intentional nuisance replaced by § 2 of the act when the maintenance of the part nuisance is fact a failure on the of a governmental agency keep highways its in rea repair. sonable construing
In
the two statutes of limitations
may arguably
applicable
which
in the instant
Legisla-
case, we must advance the intent of the
City Lansing Lansing Twp,
ture. See
specific
641;
mencing suits. their continually are governments such as these times improvement programs. launching highway organization "Moreover, is essential agencies government local of state and the finances degree of some to estimate with it them in that allows obliga- future financial of their certainty the extent private party has that no It cannot overlooked tions. a comparable to that responsibility injuries tort potential allegedly caused defective government for Parmalee, 402 highways.” Forest conditions of unsafe NW2d Mich incorrect decision is the Palomba I submit overruled. and should be I would affirm.