POHUTSKI v CITY OF ALLEN PARK; JONES v CITY OF FARMINGTON HILLS
Docket Nos. 116949, 117935
Supreme Court of Michigan
Decided April 2, 2002
Rehearing denied in Jones, 466 Mich 1208
465 Mich 675
Argued October 11, 2001 (Calendar Nos. 8, 9).
Jeanne Jones and other property owners in the city of Farmington Hills brought an action in the Oakland Circuit Court against the city for similar damages. The court, Jessica R. Cooper, J., granted summary disposition for the plaintiffs, finding the city liable under a trespass-nuisance exception to governmental immunity. The Court of Appeals, FITZGERALD, P.J., and JANSEN, J. (DOCTOROFF, J., not participating), denied leave to appeal in an unpublished order (Docket No. 227657). The city appeals.
In an opinion by Chief Justice CORRIGAN, joined by Justices WEAVER, TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
The plain language of the governmental tort liability act,
1. The governmental tort liability act was intended to provide uniform liability and immunity to both state and local governmental agencies when involved in a governmental function. While the first sentence of
2.
3. Although, generally, judicial decisions are given full retroactive effect, a more flexible approach is warranted where injustice might result from full retroactivity. Four factors to be weighed in determining when a decision should not have retroactive application are: the purpose to be served by the new rule, the extent of reliance on the old rule, the effect of retroactivity on the administration of justice, and whether the decision clearly established a new principle of law. Practically speaking, the holding in this case is akin to the announcement of a new rule of law, and application of the other factors leads to the conclusion that prospective application is appropriate.
Remanded.
Justice KELLY, joined by Justice CAVANAGH, dissenting, stated that the trespass-nuisance exception to governmental immunity still exists and applies to municipal units of governments. It is constitutionally derived and unaffected by legislative action.
The trespass-nuisance exception to governmental immunity is strongly rooted in Michigan‘s history; nothing in the government tort liability act indicates an intention to change that.
The title of the government tort liability act is a key indicator of the Legislature‘s intent to create a uniform system of liability.
The common-law cause of action of trespass-nuisance is based on the Taking Clause of the Michigan Constitution and cannot be abrogated by the Legislature. Therefore, statutory governmental immunity is not a defense.
Macuga & Liddle, P.C. (by Steven D. Liddle, Peter W. Macuga, II, and David R. Dubin), for the plaintiffs-appellees.
Plunkett & Cooney, P.C. (by Christine D. Oldani and Mary Massaron Ross), for defendant-appellant city of Allen Park.
Cummings, McClorey, Davis & Acho, P.L.C. (by Timothy S. Ferrand and Joseph Nimako), for defendant-appellant city of Farmington Hills.
Amici Curiae:
Garan, Lucow, Miller, P.C. (by Rosalind Rochkind and John J. Gillooly), for the city of Dearborn.
Michael J. Beale in support of plaintiffs-appellees in Pohutski.
Reed Stover, P.C. (by Richard D. Reed, Michael B. Ortega, and Patricia R. Mason), for Mollhagen and Clement.
Kotz, Sangster, Wysocki & Berg, P.C. (by Frederick A. Berg, Jeffrey M. Sangster, Ava K. Ortner, and John T. Below), for the Bray plaintiffs.
Secrest, Wardle, Lynch, Hampton, Truex & Morley (by Edward D. Plato and Janet Callahan Barnes) for the cities of Inkster, Taylor, and Lincoln Park.
Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Marcia L. Howe), for the cities of Southgate, Ecorse, and Allen Park.
Bodman, Longley & Dahling L.L.P. (by R. Craig Hupp and Kurt M. Brauer), and Wayne County Corporation Counsel (by Mary Rose MacMillan) for Wayne County.
Mellon, McCarthy & Van Dusen, P.C. (by James T. Mellon and AnnMarie DeVito), for Michigan Municipal Risk Management Authority.
CORRIGAN, C.J. In these consolidated cases, this Court once again faces whether the plain language of § 7 of the governmental tort liability act,
I
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
A
POHUTSKI v ALLEN PARK
The city of Allen Park experienced a “ten year storm” on February 17 and 18, 1998. As a result of the high volume of rainfall, raw sewage from the city‘s sewer system backed up through plaintiffs’ floor drains and into their basements. Plaintiffs filed a class action against the city of Allen Park for trespass, nuisance, trespass-nuisance, negligence, and unconstitutional taking in April 1998. Plaintiffs thereafter sought summary disposition of their trespass-nuisance claim under MCR 2.116(C)(10). Plaintiffs argued that defendant was liable as a matter of law under the doctrine of trespass-nuisance and that Hadfield barred governmental immunity as a defense. Defendant opposed the motion, arguing that a claim of trespass-nuisance required a showing of causation, and that it could not be held strictly liable solely on the basis of its ownership of the sewer system.
In a brief opinion rendered from the bench, Wayne Circuit Judge Edward Thomas granted plaintiffs’ motion for partial summary disposition, holding that
B
JONES v FARMINGTON HILLS
On August 6, 1998, a “one hundred year storm” dropped approximately 4.6 inches of rain in less than six hours on the city of Farmington Hills, causing flooding throughout the community. As a result, raw sewage from defendants’ sewer system traveled up through plaintiffs’ floor drains and into their basements. Thirty-seven plaintiffs filed suit against the city of Farmington Hills, alleging claims of trespass, nuisance, trespass-nuisance, negligence, and unconstitutional taking. Plaintiffs moved for summary disposition of their trespass-nuisance claim, arguing that defendant was liable as a matter of law under Hadfield. Defendant opposed the motion and filed a counter motion for summary disposition, arguing that trespass-nuisance is not a strict liability tort and that plaintiffs had failed to establish causation or improper construction, engineering, or maintenance of its sewer system.
Oakland Circuit Judge Jessica Cooper denied defendants’ motion and granted plaintiffs’ motion for summary disposition of their trespass-nuisance claim. Judge Cooper held that trespass-nuisance was a recognized exception to the governmental immunity statute,
After the trial court denied reconsideration, defendant applied for leave to appeal in the Court of Appeals. The Court of Appeals granted the application and stayed the pending trial date. Plaintiffs then filed an emergency motion for rehearing. The Court of Appeals granted plaintiffs’ motion, vacated its earlier order, and denied leave to appeal. Unpublished order, entered September 29, 2000 (Docket No. 227657).
II
STANDARD OF REVIEW
This Court reviews a trial court‘s decision to grant summary disposition de novo. Wickens v Oakwood Healthcare System, 465 Mich 53, 59; 631 NW2d 686 (2001). Questions of statutory interpretation are also reviewed de novo. In re MCI Telecommunications, 460 Mich 396, 413; 596 NW2d 164 (1999).
III
THE GOVERNMENTAL TORT LIABILITY ACT
From the time of Michigan‘s statehood, this Court‘s jurisprudence has recognized that the state, as sovereign, is immune from suit unless it consents, and that any relinquishment of sovereign immunity must be strictly interpreted. Manion v State Hwy Comm‘r, 303 Mich 1, 19; 5 NW2d 527 (1942). Sovereign immunity exists in Michigan because the state created the courts and so is not subject to them. Ross v Consum-ers Power Co (On Rehearing), 420 Mich 567, 598; 363 NW2d 641 (1984).
It is important to distinguish between “sovereign immunity” and “governmental immunity“:
“[S]overeign” immunity and “governmental” immunity are not synonymous. True, they have been over the years used interchangeably in decisions, but a delineation may be helpful. Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State. The reason is the State is the only sovereignty in our system of government, except as the States delegated part of their implicit sovereignty to the Federal government.
*
*
*
. . . Over the years, by judicial construction, this “sovereign” immunity has been transmogrified into “governmental” immunity and made applicable to the “inferior” divisions of government, i.e., townships, school districts, villages, cities, and counties, but with an important distinction. These subdivisions of government enjoyed the immunity only when engaged in “governmental” as distinguished from “proprietary” functions. [Myers v Genesee Auditor, 375 Mich 1, 6, 8-9; 133 NW2d 190 (1965) (opinion of O‘HARA, J.) (emphasis in original).]
In Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1 (1961), Justice EDWARDS, joined by Justices T. M. KAVANAGH, SMITH, and SOURIS, wrote: “From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan. In this case, we overrule preceding court-made law to the contrary.” Justice BLACK, in his concurring opinion, stated that governmental immunity would be abolished only for municipalities, not the state and its subdivisions. Id. at 278.
When faced with questions of statutory interpretation, our obligation is to discern and give effect to the Legislature‘s intent as expressed in the words of the statute. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000); Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70 (2000). We give the words of a statute their plain and ordinary meaning, looking outside the statute to ascertain the Legislature‘s intent only if the statutory language is ambiguous. Turner v Auto Club Ins Ass‘n, 448 Mich 22, 27; 528 NW2d 681 (1995). Where the language is unambiguous, “we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written.” DiBenedetto, supra at 402. Similarly, courts may not speculate about an unstated purpose where the unambiguous text plainly reflects the intent of the Legislature. See Lansing v Lansing Twp, 356 Mich 641, 649-650; 97 NW2d 804 (1959).
When parsing a statute, we presume every word is used for a purpose. As far as possible, we give effect to every clause and sentence. “The Court may not
With these principles of statutory construction in mind, we turn to the language of
Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. [Emphasis added.]
“Governmental agency” and “state” are not synonymous, nor are they interchangeable. Rather, each is precisely defined in the statute:
(b) “Political subdivision” means a municipal corporation, county, county road commission, school district, community college district, port district, metropolitan district, or transportation authority or a combination of 2 or more of these when acting jointly; a district or authority authorized by law or formed by 1 or more political subdivisions; or an agency, department, court, board, or council of a political subdivision.
(c) “State” means the state of Michigan and its agencies, departments, commissions, courts, boards, councils, and statutorily created task forces and includes every public university and college of the state, whether established as a constitutional corporation or otherwise.
(d) “Governmental agency” means the state or a political subdivision. [
MCL 691.1401 .]
A
HADFIELD v OAKLAND CO DRAIN COMM‘R
In Hadfield, we considered whether the trespass-nuisance exception to governmental immunity, as a common-law tort-based exception, survived the governmental tort liability act. We concluded that recognition of the historic trespass-nuisance exception was required by the language of § 7. In so holding, we strayed from the plain language of the statute, despite our claim that we “moved carefully to impose judicial construction only upon those terms in the statute that required interpretation.” Id. at 173.
Hadfield correctly interpreted the first sentence of § 7 because it focused on the plain language chosen by the Legislature:
Taken alone, the first sentence of § 7 does support a narrow interpretation of the act, to preclude recognition of any nuisance exception. The Legislature‘s use of the word “tort” to describe the liability from which governmental agencies are to be held immune exemplifies the breadth of the intended immunity. There is no doubt that nuisance is a tort and that liability for nuisance would be within the scope of statutory governmental immunity as expressed in the first sentence of § 7. [Id. at 147.]
Hadfield went astray, however, in interpreting the second sentence of § 7. Ignoring the second sen
B
LI v FELDT
This Court reaffirmed Hadfield‘s erroneous interpretation of the second sentence of § 7 in Li v Feldt (After Remand), 434 Mich 584, 592-594; 456 NW2d 55 (1990). Justice GRIFFIN, in his opinion concurring in part and dissenting in part, pointed out what Hadfield‘s plurality and Li‘s majority missed: “[t]he significance of the Legislature‘s use of [the terms] ‘governmental agencies’ in the first sentence of § 7 and ‘state’ in the second . . . .” Li, supra at 598-599. Justice GRIFFIN reasoned:
A literal reading of the second sentence of § 7 seems, at most, to require an historical analysis of the state‘s common-law immunity. The significance of the Legislature‘s use of “governmental agencies” in the first sentence and the “state” in the second sentence is underscored by the definitions expressly given those terms in the act. “Governmental agency” is defined as “the state, political subdivisions, and municipal corporations.” The “state,” on the other hand, is defined as “the state of Michigan and its agencies, departments, [and] commissions . . . .” The terms are not interchangeable. The statutory provision prohibiting modification or restriction of immunity is specifically applied to the “state,” a term which does not embrace municipalities and
other forms of lower government. Definitions supplied by the Legislature in the statute are binding on the judiciary. Thus, assuming arguendo that the second sentence of § 7 requires an historical analysis, it should be applied to the “state” and not other “governmental agencies.” [Id. at 598-600.]
He continued:
The underlying premise of the Hadfield plurality opinion appears to be that the Legislature‘s intent to make uniform the immunity of all levels of government requires that the historical analysis purportedly required by § 7 applies to all levels of government, despite the express limitation of the purported historical analysis to “the state.”
Although the act‘s title declares its purpose is “to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments,” the uniformity of immunity intended by the Legislature does not necessarily include both governmental and nongovernmental functions. The act‘s title qualifies the uniformity purpose by providing that the Legislature sought to make uniform the liability of all government ”when engaged in the exercise or discharge of a governmental function . . . .” Simply because the Legislature claimed immunity on behalf of all levels of government “when engaged in the exercise or discharge of a governmental function” does not necessarily compel the conclusion that the state has no immunity when not engaged in the exercise or discharge of a governmental function. Indeed, the governmental tort liability act was “[d]rafted under the apparent assumption that the state and its agencies enjoyed a total sovereign immunity from tort liability . . . .” Thus, the legislative intent underlying the second sentence of § 7 could merely have been to “affirm” the state‘s preexisting absolute sovereign immunity, rather than to codify common-law exceptions to governmental immunity. Strict uniformity of immunity among all levels of government is not clearly mandated by § 7. [Id. at 600-601 (citation omitted; emphasis in original).]
In my opinion, the fundamental purposes of the act were to restore immunity to municipalities, grant immunity to all levels of government when engaged in the exercise or discharge of a governmental function, and prevent judicial abrogation of governmental and sovereign immunity. The second sentence of § 7 was merely intended to prevent further erosion of the state‘s common-law immunity, rather than preserve any common-law exceptions to governmental immunity. Under this analysis, unless the activity of a municipality falls within one of the five narrowly drawn statutory exceptions, the only question remaining in these cases is whether the activity is a “governmental function,” as defined by the Legislature. [Id. at 605 (emphasis in original).]
We agree with Justice GRIFFIN‘s analysis and adopt it today. We hold that while the first sentence of § 7 applies to both municipalities and the state, the clear and unambiguous language of the second sentence of § 7 applies only to the state, as defined in the statute.1
THE TRESPASS-NUISANCE EXCEPTION
Because these cases involve cities, the second sentence of § 7 does not apply; any trespass-nuisance exception must therefore come from the first section of § 7. The first sentence provides:
Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. [
MCL 691.1407(1) .]
The parties agree that the operation of a sewage system is a governmental function. Thus, under the terms of the statute, municipal corporations are immune from tort liability except as otherwise provided in the act.
The act sets forth five statutory exceptions to governmental immunity: the highway exception,
With this principle in mind, we hold that the plain language of the governmental tort liability act does
IV
TITLE-OBJECT CLAUSE
Plaintiffs argue that if the second sentence of § 7 applies only to the state and not to all governmental agencies, it violates the Title-Object Clause,
We note at the outset that “all possible presumptions should be afforded to find constitutionality.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 464; 208 NW2d 469 (1973).
No law shall embrace more than one object, which shall be expressed in its title.
This constitutional provision requires that (1) a law must not embrace more than one object, and (2) the object of the law must be expressed in its title. Livonia v Dep‘t of Social Services, 423 Mich 466, 496; 378 NW2d 402 (1985). This constitutional limitation ensures that legislators and the public receive proper notice of legislative content and prevents deceit and subterfuge. Advisory Opinion, supra at 465. The goal of the clause is notice, not restriction of legislation.
The “object” of a law is defined as its general purpose or aim. Local No 1644 v Oakwood Hosp Corp, 367 Mich 79, 91; 116 NW2d 314 (1962). The “one object” provision must be construed reasonably, not in so narrow or technical a manner that the legislative intent is frustrated. Kuhn v Dep‘t of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971). We should not invalidate legislation simply because it contains more than one means of attaining its primary object; “[h]owever, if the act contains ‘subjects diverse in their nature, and having no necessary connection,’ ” it violates the Title-Object Clause. Livonia, supra at 499. The act may include all matters germane to its object, as well as all provisions that directly relate to, carry out, and implement the principal object. Advisory Opinion, supra at 465. The statute “may authorize the doing of all things which are in furtherance of the general purpose of the Act without violating the ‘one object’ limitation of art 4, § 24.” Kuhn, supra at 388. Finally, the constitutional requirement is not that the title refer to every detail of the act; rather, “[i]t is sufficient that ‘the act centers to one main general object or purpose which the title comprehensively
The title of the governmental tort liability act provides:
An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, officers, employees, and volunteers thereof, and members of certain boards, councils, and task forces when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of this liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; to provide for the legal defense of public officers and employees; to provide for reimbursement of public officers and employees for certain legal expenses; and to repeal certain acts and parts of acts. [Emphasis added.]
Plaintiffs contend that the act would exceed the scope of its title were the second sentence of § 7 construed to allow differentiation between the immunity of the state and the immunity of inferior governmental agencies. We reject this argument. The title of the act only provides that the immunity of all governmental agencies will be made uniform for circumstances involving “the exercise or discharge of a governmental function.” This is accomplished by the first sentence of § 7, which confers uniform statutory immunity on all governmental entities engaged in the exercise or discharge of a governmental function. In
In essence, the Legislature defined the scope of the first sentence of § 7 through the second sentence. Such a limitation cannot be considered a subject diverse in nature that has no necessary connection to the primary object of the act. The limitation in the second sentence is clearly germane, auxiliary, and incidental to the general purpose of the act. Therefore, the act as interpreted does not violate
V
STARE DECISIS
We do not lightly overrule precedent. Stare decisis is generally ” ‘the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” Robinson, supra at 463, quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). Before we overrule a prior decision, we must be convinced “not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.” McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904).
to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a con- stitutional violation, the courts have no legitimacy in over- ruling or nullifying the people‘s representatives. Moreover, not only does such a compromising by a court of the citi- zen‘s ability to rely on a statute have no constitutional war- rant, it can gain no higher pedigree as later courts repeat the error. [Id. at 467-468.]. . . [I]t is well to recall in discussing reliance, when dealing with an area of the law that is statutory, . . . that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court‘s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter
Thus, while too rapid a change in the law threatens judicial legitimacy, correcting past rulings that usurp legislative power restores legitimacy. Id. at 472-473 (CORRIGAN, J., concurring).
Accordingly, we must shoulder our constitutional duty to act within our grant of authority and honor the intent of the Legislature as reflected in the plain and unambiguous language of the statute. In so doing, we rectify Hadfield‘s misconstruction of the statutory text.
We are mindful, however, of the effect our decision
may have in overruling Hadfield‘s interpretation of
“This Court has overruled prior precedent many times in the past. In each such instance the Court must take into account the total situation confronting it and seek a just and realistic solution of the problems occasioned by the change.”
After taking into account the entire situation con- fronting the Court, we hold that our decision shall have only prospective application.
Although the general rule is that judicial decisions are given full retroactive effect, Hyde v Univ of Mich-igan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986), a more flexible approach is warranted where injustice might result from full retroactivity. Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997). For example, a holding that overrules settled precedent may properly be limited to prospective application. Id. Moreover, the federal constitution does not preclude state courts from determining whether their own law-changing decisions are applied prospectively or retroactively. Great Northern R Co v Sunburst Oil & Refining Co, 287 US 358, 364-365; 53 S Ct 145; 77 L Ed 360 (1932).
This Court adopted from Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), three fac- tors to be weighed in determining when a decision should not have retroactive application. Those factors are: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice. People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971). In the civil context, a plurality of this Court noted that Chevron Oil v Huson, 404 US 97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971), recognized an additional threshold question whether the decision clearly established a new principle of law. Riley v Northland Geriatric Center (After Remand), 431 Mich 632, 645-646; 433 NW2d 787 (1988) (GRIFFIN, J.).
We turn first to the threshold question noted in
Riley. Although this opinion gives effect to the intent
of the Legislature that may be reasonably be inferred
from the text of the governing statutory provisions,
practically speaking our holding is akin to the
announcement of a new rule of law, given the errone-
ous interpretations set forth in Hadfield and Li. See
Application of the three-part test leads to the con-
clusion that prospective application is appropriate
here. First, we consider the purpose of the new rule
set forth in this opinion: to correct an error in the
interpretation of
Sections 16 to 19 abrogate common law exceptions, if any, to immunity for the overflow or backup of a sewage disposal system and provide the sole remedy for obtaining any form of relief for damages or physical injuries caused by a sewage disposal system event regardless of the legal theory.
Thus, if we applied our holding in this case retroac- tively, the plaintiffs in cases currently pending would
Accordingly, this decision will be applied only to cases brought on or after April 2, 2002. In all cases currently pending, the interpretation set forth in Had- field will apply.
VI
TAKING CLAUSE
The parties have addressed whether trespass nui-
sance is not a tort within the meaning of the govern-
mental immunity statute, but rather an unconstitu-
tional taking of property that violates
VII
CONCLUSION
We hold that the first sentence of
WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, C.J.
KELLY, J. (dissenting). The majority‘s decision today overrules many years of Michigan jurispru- dence interpreting the government tort liability act (GTLA). Its rationale for upsetting the well-reasoned precedent of this Court is that it brings the statute‘s construction closer to the Legislature‘s intent. I find this patently inaccurate.
Repeatedly, beginning with the decision in Ross v Consumers Power Co (On Rehearing),1 this Court has construed the GTLA each time by scrutinizing the language and the purpose the Legislature articulated for it. Using a consistent approach, I conclude that the trespass-nuisance exception still exists and that it applies to municipal units of government. I would hold, as well, that the trespass-nuisance cause of action is constitutionally derived and unaffected by legislative action.
Whenever a court interprets a statute, it attempts to ascertain and fulfill the Legislature‘s intent in passing it. Reardon v Dep‘t of Mental Health, 430 Mich 398, 407; 424 NW2d 248 (1988). It seeks to identify the object of the statute and the harm it was designed to remedy. It endeavors to make a construction that is at once reasonable and analyzed so as best to accom- plish the purposes of the statute. Marquis v Hartford Accident & Indemnity Co, 444 Mich 638; 513 NW2d 799 (1994). It construes the statute‘s provisions not in isolation, but in context. Sun Valley Foods Co v Ward, 460 Mich 230; 596 NW2d 119 (1999).
Having applied these principles, I conclude, as did the Court in Hadfield v Oakland Co Drain Comm‘r,2 that if the Legislature had meant to abolish the tres- pass-nuisance exception, it would have stated so unequivocally.
The Legislature enacted the GTLA in 1965 as a response to Williams v Detroit,3 a decision in which this Court abrogated governmental immunity for municipalities. The Court was evenly divided concern- ing whether common-law governmental immunity existed. However, a majority agreed that municipal units of government are not immune from liability. Id. at 270. As a consequence of Williams, governmental entities in general retained their common-law immu- nity, while municipalities did not.
The title of the GTLA reads as follows:
The language is unequivocal. It expresses an intent to
reestablish and codify a consistent and uniform form
of governmental immunity, restoring the shield to
municipal governments while in the exercise of a gov-
ernmental function. After detailing some statutory
exceptions to immunity,
Except as otherwise provided in this act, all governmen- tal agencies shall be immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function. Except as other- wise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. [
MCL 691.1407(1) .]
In the cases before us today, the defendants argue
that the word “state” in the second sentence of
A. ROSS v CONSUMERS POWER CO
The Ross decision dealt with the use of the word
“state” in the GTLA. It held that its placement there
presented a clear conflict with the purpose and title
of the act. We faced the same dilemma over
The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function . . . . [Former MCL 691.1413, as enacted by 1964 PA 170.]
The Court took the exception for “the state” and
applied it to all governmental entities. It rejected the
plain meaning of
The governmental immunity act was intended to provide uniform liability and immunity to both state and local gov-
The Court concluded that restricting
B. HADFIELD v OAKLAND CO DRAIN COMM‘R
Two years after the Legislature effectively ratified
Ross‘s interpretation of
Once again, the Court saw a conflict between the language of the statute, legislative intent, and an his- toric immunity exception. It concluded:
While the defendant‘s arguments, advocating recognition of only statutory exceptions [to governmental immunity], are temptingly simple and straightforward, they negate or ignore the second half of the legislative mandate of
§ 7 . That section requires a continuation of the nuisance exception as formulated prior to the enactment of the govern- mental immunity act in 1964.... [Id. at 149.]
The Court rejected the defendant‘s argument using
this reasoning: The second sentence of
Today‘s holding discards the conclusion in Hadfield
by reinterpreting the second sentence of
That reasoning, coupled with the intention to cre- ate a uniform system that we found in Ross, leads to one conclusion only: the Legislature meant to keep the state‘s sovereign immunity where it was before July 1965, preventing its expansion or erosion, and to extend it uniformly to all other governmental entities. The common-law exception of trespass-nuisance thus would have survived.
C. LEGISLATIVE CONFIRMATION OF THE EXCEPTION
This year the Legislature enacted
Sections 16 to 19 abrogate common law exceptions, if any, to immunity for the overflow or backup of a sewage disposal system and provide the sole remedy for obtaining any form of relief for damages or physical injuries caused by a sewage disposal system event regardless of the legal theory. [
MCL 691.1417(2) .]
This language acknowledges that there are or, at least, may be common-law exceptions to governmen- tal immunity. Given the intent and the timing of the act, it is apparent that the Legislature sought to pre- vent this Court from barring homeowner suits for damages.
Except as... provided in... Section 13, a political sub- division other than a municipal corporation engaged in the exercise or discharge of a governmental function is immune from liability in an action to recover damages resulting directly or indirectly from a computer failure, including, but not limited to ... an action based on section 2, 3, 5, 6, or 7. [
MCL 691.1407a(1) .]
This language indicates that an action to recover
damages could be founded on
D. SCOPE OF TITLE
The majority‘s treatment of the Title-Object Clause7 in the state constitution omits the significance of the title of the GTLA as a key indicator of the Legislature‘s intent.
Since Justice COOLEY‘s time, the clause has been applied to insure that adequate notice of new legisla- tion be given to the general public and to those affected by it. Maki v East Tawas, 385 Mich 151, 156- 158; 188 NW2d 593 (1971). To accomplish that end and to avoid deception and subterfuge, the clause requires that the scope of all legislation must fall within the scope of its title. Id., Kurtz v People, 33 Mich 279, 281 (1876). In addition, the clause requires that no law embrace more than one object, which must be expressed in the title.
The title of the GTLA indicates a desire for a “uni-
form” system of liability. However, the majority‘s con-
struction of
I disagree. If the first sentence of
The Ross and Hadfield decisions construed the act
in a way that does not violate the Title-Object Clause.
The Ross Court held that
II. THE CONSTITUTIONAL BASIS FOR THE TRESPASS-NUISANCE EXCEPTION
Overlooked in the majority‘s analysis of the Legisla- ture‘s intent is whether the trespass-nuisance excep- tion enjoys a constitutional basis that defeats a statu- tory grant of governmental immunity. The majority treats the question as part of the plaintiffs’ taking claim that has yet to be adjudicated below.
I believe that it is preferable to address the ques- tion here, than wait for the matter to return to us. I believe that the common-law cause of action of tres- pass-nuisance is based on the Taking Clause of the
This Court in Buckeye Union Fire Ins Co v Michi- gan9 acknowledged that the trespass-nuisance excep- tion has a constitutional basis. Governmental immu- nity is not a defense to a constitutional tort claim, hence not to a claim based on trespass-nuisance. Thom v State Hwy Comm‘r, 376 Mich 608, 628; 138 NW2d 322 (1965). The claim survives despite the fact that a statutory exception is not present because the law views the trespass or nuisance as an appropria- tion of property rights. Taylor, Googasian & Falk, Torts, § 7:252, p 7-86.
Not even the state can intrude on a citizen‘s lawful possession of his property. Ashley v Port Huron, 35 Mich 296, 300 (1877); Herro v Chippewa Co Rd Comm‘rs, 368 Mich 263, 272; 118 NW2d 271 (1962). And the protection of one‘s property rights is not accomplished solely through actions for eminent domain. One may sue under the Taking Clause.
Also, actions under the clause are not limited to claims alleging an absolute conversion of property. Pearsall v Supervisors, 74 Mich 558; 42 NW 77 (1889). The action of a governmental agency may constitute a taking when it interferes with, damages, or destroys the property of an individual. Buckeye, supra at 642.
Since 1860, this Court has relied on the Taking Clause to support actions for trespass-nuisance. This Court has held many times that an invasion by gov-
On the basis of that long-established precedent, I would hold that a trespass-nuisance cause of action is constitutionally based and cannot be abrogated by the Legislature. The actions of the defendants here in flooding the plaintiffs’ basements constitute a “tak- ing,” and damages, if proven, should be available. The basis for recovery is that the government deprived plaintiffs of the useful possession of property that they own. Gerzeski v Dep‘t of State Hwys, 403 Mich 149, 170; 268 NW2d 525 (1978).
III. APPLICATION OF THE TRESPASS-NUISANCE EXCEPTION
Trespass-nuisance refers to a “trespass or interfer- ence with the use or enjoyment of land caused by a physical intrusion that is set in motion by the govern- ment or its agents and result[s] in personal or prop- erty damage.” Continental Paper & Supply Co v Detroit, 451 Mich 162, 164; 545 NW2d 657 (1996). Its elements are (1) the existence of a condition, such as a nuisance or a trespass, (2) a cause, such as a physi- cal intrusion, and (3) causation or control, as by gov- ernment. Id.
IV. CONCLUSION
The majority finds that the trespass-nuisance exception to governmental immunity ended in 1965 with passage of the GTLA. I disagree with its conclu- sion because of subsequent judicial precedent uphold- ing the exception and the lack of clear legislative intent to alter it. Moreover, any legislative attempt to remove the trespass-nuisance exception must be found invalid because a cause of action under the exception is constitutionally based in the Taking Clause.
In making its ruling, the majority discards long- standing and well-reasoned precedent of this Court in order to make its own interpretation of a Michigan statute.12 It does so, stating an obligation to “shoulder [its] constitutional duty to act within [its] grant of authority and honor the intent of the Legislature...”
But what must be apparent to all, when the rheto- ric is stripped of its gloss, is that this Court is again ignoring its own past rulings. And, if each successive Court, believing its reading is correct and past read- ings wrong, rejects precedent, then the law will fluc- tuate from year to year, rendering our jurisprudence dangerously unstable.
The majority‘s decision to limit its interpretation of the statute to prospective use is little more than a fur- nishing of salve to stem a hemorrhage. For all the above reasons, I respectfully dissent.
CAVANAGH, J., concurred with KELLY, J.
Notes
“Sewage disposal system event” or “event” means the overflow or backup of a sewage disposal system onto real property. An over- flow or backup is not a sewage disposal system event if any of the following was a substantial proximate cause of the overflow or backup:
(i) An obstruction in a service lead that was not caused by a gov- ernmental agency.
364 Mich 231; 111 NW2d 1 (1961).(ii) A connection to the sewage disposal system on the affected property, including, but not limited to, a sump system, building drain, surface drain, gutter, or downspout.
(iii) An act of war, whether the war is declared or undeclared, or an act of terrorism.