*1 City Rem) 627 Yarrick (ON REMAND) YARRICK v OF KENT CITY VILLAGE 1990, 23, Lansing. July No. Docket 131035. Submitted Decided 3, 1991, sought. appeal June at 9:45 a.m. Leave to Nancy brought A. Yarrick an action in the Kent and James against Village City, seeking damages Circuit Court of Kent injuries by Nancy stepped when sustained she in a grassy park small hole area of a maintained plaintiffs alleged negligence, defendant. The intentional nui- sance, claim and that was not barred immunity building under and intentional nuisance court, exceptions immunity. George The R. Cook, J., defendant, granted summary disposition for the con- cluding claim was that the barred under immu- nity public building exception applicable. and that the was not plaintiffs appealed, Appeals The and the Court of affirmed the judgment regarding public building, judg- but reversed the (1989). regarding App ment intentional nuisance. 180 Mich 410 Supreme judgment The Court vacated the of the Court of Appeals light remanded case for reconsideration in (Alter Remand), Li v Feldt 584 and for applicability consideration of existence and of nuisance exceptions appli- and their if, cability that, they to this case and to the extent were Appeals. raised before the Court of 435 Mich 866 remand, Appeals

On Court of held: governmen- 1. There is no intentional nuisance tal 2. Public se are governmental immunity. Raising the intentional nuisance issue preserve was sufficient to the issues of nuisance and se. agency responsible 3. There be some must human for References 2d, School, Municipal, County, Am Jur Liability State Tort 159,171, 291. §§ See the Index Immunity to Annotations under Governmental Privilege; Nuisances. allegedly condition which creation of a the defendant Because the nuisance. existence of establish the at issue and can created the hole artificial they the hole was of show that nuisance if can *2 within the origin, they which comes stated a claim exception. ground se. a nuisance in the is not 4. A hole and remanded. Reversed result, J., concurring it not that were Griffin, in the noted Ixxxiv, 436 Mich and No. for Administrative Order Remand), App 475 187 Mich in Li v Feldt decision (1991), and of nuisance hold that claims he would immunity governmental that these by nuisance are barred the Court of raised before were not claims Appeals. — Public Nuisance. Nuisance responsible agency of for the creation be some human There must nuisance; allegedly that a condition the condition occurs not exist where nuisance does naturally. Sowle), (by Gray, laceo, Donald N. & P.C. Sowle plaintiffs. for the (by Nelson,

Bremer, Wade, & Lohr Ju- Mabbitt Simonson), for the defendant. dith K.

ON REMAND Sawyer P.J., Before: Holbrook, Jr., JJ. Griffin, matter, which involves J. This Sawyer, again

great nuisance, law, of marshmallow having by decision, been remanded us for before Supreme 866; 457 435 Mich NW2d Court. (1990). injured Nancy when Yarrick was Plaintiff grassy stepped area of a in a small hole in a she park filed a Plaintiffs maintained defendant. arguing complaint against defendant, claim was not barred City (On Rem) Court public building

under the and intentional nuisance exceptions. granted summary The trial court dis- position on the 2.116(C)(7).

MCR appeal, public building On we held that exception applicable bar, was not to the case at exception but the intentional nuisance was. (1989). App 410; 180 Mich 447 NW2d 803 Our opinion specifically concluded that intentional nui sance remained an munity despite im Supreme Court’s decision in Hadfield v Comm’r, Oakland Co Drain 430 Mich 139; 422 NW2d 205 415.1 Supreme judg Thereafter, Court vacated our ment and remanded this matter to us for reconsid (After light Remand), eration in Li v Feldt 584; 456 NW2d 55 and for considera applicability tion of the existence and of nuisance *3 per public exceptions govern to immunity. mental Supreme Inasmuch as the Court ruled in Li

(Añer Remand) that there is no intentional nui- exception governmental immunity, sance to we give need not that issue further consideration. Rather, we must now turn our attention to public per issues of nuisance and nuisance se exceptions governmental immunity. to We re- cently public held that both nuisance and exceptions se are immunity. to (On Remand), Li v App Feldt Second 187 Mich opinion, 457; 468 NW2d 268 In that we also raising held that the intentional nuisance issue preserve was public sufficient the issues nuisance and nuisance se for this Court’s Accordingly, may consideration. Id. at 478-479. we 1Judge partially dissented, concluding Griffin that intentional nuisance was not an Opinion op the Court public question whether the to the

turn and nuisance immunity applicable to the case at bar.

are plaintiff Considering public first, ar- stepped gues constitutes she the hole which public that a we do not believe a nuisance. While public ground always a in the hole nuisance, agree some circum- that there are we do might. public A under which stances "which act or omission described as an has been damage to or causes inconvenience obstructs or rights public common all in the exercise of the Her Remand), Majesty’s subjects.” Li supra quoting Keeton, Torts Prosser & (5th ed), pp extent, § 90, To some a hole 643-645. park public inconve- in a can cause damage public in the exercise nience or right park. However, be as will to use the infra, all holes would constitute such discussed a being public nuisance, whether the distinction occurring naturally or is artificial. the hole in 4 is defined Restatement Public nuisance p Torts, 2d, 821B, 87, § as follows: (1) unreasonable inter- A nuisance is an general right public. to the common ference with (2) holding may sustain Circumstances public right unrea- interference with a is that an sonable include the following: (a) significant the conduct involves Whether health, interference with the or the public peace, the comfort safety, the convenience, (b) proscribed a stat- whether conduct *4 ute, regulation, or or administrative ordinance (c) continuing is of a nature whether the conduct effect, long-lasting produced permanent or has a or and, know, has knows or has reason to as the actor upon public right. significant effect a City (On Rem) op As suggests, concept the Restatement anticipates nuisance the nuisance was created conduct, human being rather than a naturally occurring condition. The sup- Restatement further ports this conclusion when it discusses liability under for occurring conditions on land. Specifically, may there be failure to liability artificial land, abate an condition on as explained Torts, 2d, 839, at 4 161: p Restatement § possessor A subject of land is liability for a is in possession caused while he an by if the land, abatable artificial condition on the nuisance is otherwise actionable, (a) possessor or knows should know of the condition and the or unreasonable risk of involved, (b) he or knows should know that exists with- it, out the consent those affected

(c) he has failed after opportunity a reasonable steps to take reasonable abate the condition or protect persons against the affected it.

The explained restriction of this rule in comment: accompanying duty possessor

The of a of land under the rules in respect stated this Section does not in exist (See 840). most wholly natural conditions. § [4 Torts, 2d, 839, e, p Restatement comment § 162.] The principle condi- naturally occurring tion is not a nuisance is further in established 840: Restatement §

(1) Except as possessor stated Subsection persons land is not liable outside the land for resulting solely from a natural condi- tion of the land.

(2) possessor A of land who knows has reason *5 App 627 op public by caused natural a to know that public high- land near a exists on his conditions for failure to exercise liability to way, reasonable harm ment subject is unreasonable risk of prevent care to an using highway. the Restate- persons [4 Torts, 2d, 840, p § 166.] clarifies that there The comment to §840 discovering purpose inspect no duty condition: dangerous a natural purpose of inspect for the duty is no There Re- discovering statement dangerous natural condition. a [4 c, 2d, 840, Torts, p comment 168.] § Restatement, we In this discussion of the light of that, must be some hu- there generally, conclude of the for the creation agency responsible man nui- a which allegedly condition Thus, in the if hole in the case sance. defendant, or one of its at bar was created park, a user of the possibly even employees, However, might hole constitute a nuisance. occurring, perhaps naturally if the hole was rodent, burrowing caused not exist. does com-

In second amended looking plaintiffs’ at center allegations part for the most plaint, grounds inspect on defendant’s failure insuffi- repair clearly the hole. This is discover and However, to establish a nuisance. cient 28(A) plaintiffs al- complaint, of their paragraph created and al- lege "improperly that defendant plaintiffs If can grass-covered to exist holes.” lowed hole, then did create the establish that defendant nui- of a can establish the existence they however, If, are unable estab- plaintiffs sance. origin, plaintiffs of artificial lish that the hole was to defeat defense. will not be able City (On Rem) Yarrick v Kent We should note that case was decided this 2.116(0(10) (no genuine under MCR of mate- issue fact). accept plaintiffs’ allega- Thus, rial we must tion that defendant created the hole as true. produce Whether to will be able to evidence substantiate claim defendant created hole, and thus establish existence public nuisance, be seen is not remains to *6 appeal. in issue this

Turning per the issue of the se exception, per occupation, act, is a nuisance an which structure is a nuisance at all times and regardless circumstances, under all of location or (On surroundings. Remand), supra Li Second 490-491. A hole in act, an occupation, or structure is it a nor nuisance at all Accordingly, times and under all circumstances. is not a nuisance it per se. plain- reasons,

For the above we conclude that tiffs have stated a claim which comes within the public immu- nity. Accordingly, again we reverse the trial grant disposition summary regard court’s with to the nuisance claim. proceedings

Reversed and remanded opinion. consistent with this We do not retain jurisdiction. may Plaintiffs tax costs. Jr., P.J.,

Holbrook, concurred. (concurring). J. concur in the result Griffin, I only required pursuant I am because to do so Administrative Order No. 436 Mich lxxxiv. 1990-6,1 Were not for Administrative Order No. would hold that the stat- 3.996(107) seq.; seq., ute, MCL 691.1407 et MSA et bars claims for both nuisance and nuisance plaintiffs Further, se. I would hold that App 189 any fail- claim of have waived ing plead in cause such an of action complaint. Plaintiffs’ second amended second pleads specificity complaint both with amended "intentional nuisance.” "nuisance in fact” and pleaded. nuisance,” however, is "Public nowhere post-November 1, decision, court, 1990, in This (On Remand), Li v Second Feldt 475; 468 held that causes NW2d upon per se action based of the nuisance survive immunity bar seq.; et MSA MCL 691.1407 statute. 3.996(107) panel seq. Further, Li et Remand) held in order to raise the claims of nuisance and complaint plead se, need not long nuisance, so as nuisance plaintiffs complaint

pleaded Accord- "nuisance.” ing panel: Li area, fact that uncertainty Given the this wrong

plaintiff initially type focused on the and, her nuisance to label claim is understandable *7 Id., p 480. importantly, more excusable. original opinion majority case, In the in this the plaintiffs’ held that claim of intentional immunity. I of survived the bar respectfully following grounds: on the dissented from this conclusion statute, enacting Legislature only By Detroit, v 231; 111

overturned Williams 364 Mich sought unpred- NW2d 1 also to avoid the govern- ictability by codifying of the common law Supplemental im- mental common-law munity exceptions incompatible are with the com- prehensive immunity Legis- scheme enacted 410, 421; 803 lature. NW2d [180 City Rem) (On 1991] (1989) (Griffin, J., concurring part in and dissent- ing part).] in appeal, Supreme Court, On in lieu of granting appeal, judgment leave to vacated the of majority the reconsideration in and remanded the case us "for (After light of Li v Feldt Re mand) (After City v Garcia of Jackson Re mand), (1990).” [456 Mich 584 NW2d Fur ther, we were directed to "the consider existence per of nuisance se immunity, applicability to these cases they properly

if, that, and to the extent were Appeals.” 866; raised before the Court of 457 NW2d 345 again plaintiffs’ remand, I have On reviewed original only brief and note that Appeals they issue which in raised the Court of allegation was court in lower erred dismissing their claim intentional nuisance. Their brief claims no makes mention whatsoever of se or nuisance. There allegation any is no erred in form that the lower court dismissing

in their claims of nuisance Accordingly, and Administrative decision nuisance. were it not for No. Order 1990-6 and this Court’s Remand), supra, Li v Feldt I hold would on remand that these claims Ap- were not raised before the Court of peals.

Additionally, it not for were Administrative Or- 1990-6, No. I der would hold such claims nuisance are barred issue, the I continue to statute. On this my partial

adhere dissent original opinion Further, in this case. I would opinion adopt the well-reasoned of Justice Griffin (After Remand), pp supra, in Li v Feldt wherein he concludes: *8 purposes of the opinion, the fundamental my

In municipalities, immunity to act were to restore government grant levels when to all discharge govern- of a engaged in the exercise function, abrogation judicial prevent mental sovereign immunity. The second 691.1407; 3.996(107)] MSA sentence of §7 [MCL prevent further erosion of merely was intended to immunity, rather than state’s common-law govern- preserve any common-law mental analysis, this unless the Under municipality within one of the activity of a falls statutory exceptions, narrowly only five drawn question remaining in these cases is whether function,” "governmental as activity defined Legislature. by the event, reasons, because, any these

For question preserve appeal failed to whether either nuisance se or immu- is nity, common-law I would remand these cases Appeals.