Li v. Feldt

456 N.W.2d 55, 434 Mich. 584

• Court: Michigan Supreme Court
• Decided: April 30, 1990
• Docket: Docket Nos. 84303, 85365, (Calendar Nos. 4-5)
• Status: Published

Opinions

AFTER REMAND

Riley, C.J.

These cases were consolidated for purposes of appeal to decide whether defendants are immune from liability on the basis of their status as governmental entities on the facts of these cases. We hold that defendants are immune for an intentional nuisance because intentional nuisance is not a recognized common-law exception to governmental immunity.

i

A. LI V FELDT

On May 5, 1983, defendant Chou Yu-Feng Wong was driving on Pontiac Trail in Ann Arbor. In the front passenger seat was plaintiff Chen Li. In the back seat was the owner of the car, defendant Chu-Fen Wong. Chou Yu-Feng Wong ran a red light at the corner of Pontiac Trail and Barton Drive and collided with another vehicle driven by defendant Becky Belknap. Plaintiff suffered injuries.

Plaintiff filed a complaint on March 11, 1986. Among the defendants were the City of Ann Arbor and two of its traffic engineers, Kenneth Feldt and John Robbins. Plaintiff alleged negligence¹ on the part of the city and its engineers in the timing of the traffic signals.

The city moved for summary disposition, which was granted by the trial court because the statute of limitation had run with respect to the negligence claim. Plaintiff filed an amended complaint, asserting that the city intentionally created a nuisance in setting the cycle for the traffic light. The court found that the new complaint simply restated the negligence claim, and the complaint was dismissed.

Plaintiff appealed in the Court of Appeals, which affirmed in part and reversed in part the decision of the trial court, finding that plaintiff had stated a valid intentional-nuisance claim, and that intentional nuisance was an exception to governmental immunity. 162 Mich App 767; 413 NW2d 493 (1987) .

Defendants applied for leave to appeal in this Court. On May 31, 1988, this Court remanded² the case to the Court of Appeals for reconsideration in light of the decision in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988) . On remand, the Court of Appeals held that the intentional-nuisance exception to governmental immunity had not been abrogated by Hadfield.3 170 Mich App 256; 428 NW2d 36 (1988).

B. GARCIA v CITY OF JACKSON

Defendant City of Jackson is the owner of the Holton Dam. One of the purposes of the dam is to control flooding on the Grand River. To accomplish this goal, there is an underground conduit or pipe which draws water from a retention pond above the dam, and diverts the river underneath downtown Jackson.

On June 15, 1981, a young boy drowned when he was swimming in the pond and was pulled into the pipe by the current. Thereafter, in response to citizen action, the city contracted with a company to conduct a safety-enhancement study of the dam. Also, the city posted three signs. Two stated, "No Swimming,” and one stated, "No Swimming by Order of City of Jackson/Undertow to River Conduit Entrance.”

On February 26, 1983, before further safety enhancements were undertaken, Javier Garcia and William Sisk were at the pond upstream from the dam. Garcia decided to go swimming, despite warnings from Sisk and despite the posted signs. After jumping into the water a second time, Garcia was drawn by the undertow into the pipe and drowned.

On June 23, 1983, Javier Garcia’s family and the personal representative of his estate filed suit against the City of Jackson. Plaintiffs’ first complaint alleged nuisance per se and nuisance in fact. Plaintiffs also asserted that defendant knew of the danger and should have taken more precautions after the first drowning. The trial court granted a motion for summary disposition in favor of defendant, but allowed plaintiffs to file an amended complaint. Plaintiffs’ amended complaint alleged only nuisance per se. After summary disposition for defendant again was granted, plaintiffs filed a second amended complaint, alleging only wilful and wanton misconduct. The court once again ordered summary disposition in favor of defendant because plaintiffs failed to allege elements of a claim in avoidance of governmental immunity.

The Court of Appeals reversed, holding that although nuisance was not expressly asserted in the complaint, plaintiffs had sufficiently pled intentional nuisance, a claim not barred by governmental immunity. 152 Mich App 254; 393 NW2d 599 (1986). The Court of Appeals certified a conflict, and this Court held this case in abeyance pending a decision in Hadfield, supra. Once Hadfield was decided, this Court remanded⁴ the instant case to the Court of Appeals for reconsideration in light of Hadñeld. After remand, the Court of Appeals found that intentional nuisance had been pled and that Hadñeld did not overrule the intentional-nuisance exception to governmental immunity.⁵

On April 7, 1989, we granted leave to appeal in the instant case, consolidating it with Li to determine whether defendants are immune from liability on the basis of their status as governmental entities.⁶

ii

The dispute in Li and Garcia centers on the limited issue of the scope of the nuisance exception to governmental immunity; specifically, whether it entails intentional nuisance. A majority of this Court in Hadñeld found that § 7 of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., mandates an historical approach to defining the proper scope of the nuisance exception.⁷ Section 7 of the governmental tort liability act states:

Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise 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; MSA 3.996(107). Emphasis added.]

A majority in Hadñeld agreed that the second sentence of § 7 preserved judicially created exceptions to immunity which were formulated before July 1, 1965.⁸ Accordingly, any case-law exceptions devised after this date would not escape governmental immunity. We adopt the historical approach endorsed by a majority of this Court in Hadñeld.

The plurality opinion in Hadñeld⁹ undertook to explore the extent of judicially created nuisance exceptions prior to July 1, 1965. A clearly recognized exception was the "intruding-nuisance” or "trespass-nuisance” exception. Hadfield, supra, p 169, defined trespass-nuisance as a "trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage.”¹⁰ Trespass-nuisance was the only common-law exception specifically acknowledged by the Hadñeld plurality.

After recognizing the trespass-nuisance cause of action, the plurality in Hadñeld applied the historical analysis test to intentional nuisance and rejected it as a common-law exception to governmental immunity._

The two cases which initially formulated an intentional-nuisance exception are Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978),¹¹ and Gerzeski v Dep’t of State Hwys, 403 Mich 149; 268 NW2d 525 (1978).¹² In applying the historical analysis, we note that prior to July 1, 1965, there was no recognized intentional-nuisance claim which could escape governmental immunity. Since there was no recognized pre-1965 intentional-nuisance exception, there is no basis for finding such an exception at this time. Thus, assuming that the Court of Appeals was correct in both cases in finding that plaintiffs had pled intentional nuisance, the panels improperly found an exception to governmental immunity on the basis of intentional nuisance. We hold that the historical approach defining the scope of the nuisance exception to governmental immunity mandates a finding that intentional nuisance is not an exception to governmental immunity._

The Hadfield plurality left undecided whether nuisance per se and limited public nuisance claims are exceptions to governmental immunity. We remand these cases to the Court of Appeals to consider the existence of nuisance per se and public nuisance exceptions to immunity, and their applicability to these cases if, and to the extent that, they were properly raised before the Court of Appeals.

Accordingly, the decisions of the Court of Appeals in both Li and Garcia are reversed. We remand to the Court of Appeals for further consideration.

Brickley, Cavanagh, and Boyle, JJ., concurred with Riley, C. J. Archer, J., concurred only in the result.

1 The claim was brought pursuant to the highway liability exception, MCL 691.1402; MSA 3.996(102), to the governmental tort liability act.

2 430 Mich 882 (1988).

3 As in Garcia v City of Jackson (On Remand), 174 Mich App 373; 435 NW2d 796 (1989), the Court of Appeals found that a three-justice plurality finding no intentional-nuisance exception was not enough to overrule prior precedent. The Court would not lend Justice Boyle’s concurring vote to the section of the plurality opinion overruling the intentional-nuisance exception.

4 430 Mich 877 (1988).

5 The Court of Appeals stated:

It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadñeld, which is the last word on the matter, the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception to governmental immunity so as to establish any new binding precedent for future cases. There was a majority for the result only. [174 Mich App 376.]

6 432 Mich 891 (1989).

7 In Hadñeld, a majority of this Court found that the governmental tort liability act preserved common-law exceptions to immunity. Including the three-justice plurality which adopted the historical analysis, six participating justices agreed that the Legislature intended to codify common-law exceptions. Justice Boyle stated:

The basic premise of the lead opinion is that §7 of the governmental tort liability act requires a continuation of the nuisance exception as formulated prior to its enactment in 1964 and as amended by 1970 PA 155. I agree that the Legislature intended to codify the common law of governmental immunity .... [Hadfield, p 204. Emphasis added.]

Justice Levin, in a separate opinion, also agreed that at least the trespass-nuisance exception survived the enactment of the governmental tort liability act. Id., p 209.

In yet another opinion, Justice Archer stated:

I agree with the lead opinion that under the second sentence of § 7 the exceptions to governmental immunity which existed prior to the enactment of the statute are retained. [Id., p 214. Emphasis added.]

Thus, a majority of this Court has settled on an interpretation of the second sentence of § 7 as recently as March 29, 1988. In his concurrence/dissent, Justice Griffin reads § 7 not to include common-law exceptions to immunity. Justice Griffin urges an interpretation of § 7 which would undercut the studied effort manifested in the Hadñeld opinions.

Even if the legislative intent behind this sentence were not clear, it has been said:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. [Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76 L Ed 815 (1932) (Brandeis, J., dissenting), quoted in Abendschein v Farrell, 382 Mich 510, 517; 170 NW2d 137 (1969).]

8 With reference to the second sentence of § 7, Thomas v Dep’t of State Hwys, 398 Mich 1, 11; 247 NW2d 530 (1976), states in part, "[o]bviously this language must be construed as an 'affirmation’ of case-law precedent on the subject of the state’s immunity.”

Justice Ryan adopted this interpretation in his dissenting opinion in Rosario v City of Lansing, 403 Mich 124, 146; 268 NW2d 230 (1978):

P]n order to determine the scope of the now codified immunity, we must determine the scope of its antecedent "existing immunity.” Since the common-law or "existing immunity” doctrine included certain judicially created exceptions which defined its limits, the legislatively codified immunity is limited and defined by the same exceptions. One of these exceptions is here in issue: the doctrine of "nuisance.”

In the instant case, the concurrence/dissent suggests that the "legislative intent underlying the second sentence of § 7 could merely have been to 'affirm’ the state’s preexisting absolute [no governmental function limitation] sovereign immunity . . . .” Post, p 601. However, in Ross v Consumers Power (On Rehearing), 420 Mich 567, 606; 363 NW2d 641 (1984), this Court stated:

[A]t the time § 7 was enacted, the state was immune from tort liability when it was engaged in the exercise or discharge of a governmental function .... [See also id., p 602, n. 15.]

Further support for the view that the state did not have absolute immunity prior to the enactment of the statute can be found in Thomas v Dep’t of State Hwys, supra, p 11; Manion v State Hwy Comm’r, 303 Mich 1, 19; 5 NW2d 527 (1942); Daszkiewicz v Detroit Bd of Ed, 301 Mich 212, 220; 3 NW2d 71 (1942).

The concurrence/dissent also suggests that the Legislature intended to treat sovereign (state) and nonsovereign entities differently with respect to immunity. However, the stated purpose of the governmental tort liability act is to "make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function . . . .” Preamble to MCL 691.1401 et seq.; MSA 3.996(101) et seq. Also, a member of the special committee which drafted the act stated that the committee "sought to achieve legislation that would put all government on the same basis .... This statute puts all agencies of government on the same footing with regard to tort liability.” Abels, Report of committee on tort liability, 28 NIMLO Municipal LR 432, 464 (1965). Therefore, §7 should be read to give effect to the stated purpose of the act.

Furthermore, the nature of governmental immunity is such that there is no reason to treat the state and local entities differently. The reasoning behind governmental immunity was set forth in Nicholson v Detroit, 129 Mich 246, 258-259; 88 NW 695 (1902):

The true theory is that the township or city represents the State in causing these things to be done, and, like the State, it enjoys immunity from responsibility in case of injury to individuals . . . [because, in] imparting a portion of its powers, the State also imparts its own immunity.

Another reason to read § 7 as preserving common-law exceptions is set forth in Cooperrider, The court, the legislature, and governmental tort liability in Michigan, 72 Mich LR 187, 279-280 (1973). The trespass-nuisance claim was valid long before the creation of the governmental function defense. Mr. Cooperrider went on to state:

It reflects one of the strongest claims for relief that can be asserted .... There is nothing in their public expressions to indicate that those who drafted the statute had any such change in mind; indeed, one of them summed the statute up in these terms: "The net effect of Act 170, 1964, is to largely return to municipal corporations the position they enjoyed prior to the decision of the Williams [v Detroit, 364 Mich 231; 111 NW2d 1 (1961) (abrogating governmental immunity for municipalities)] case.” This is surely a situation where the legislature should be expected to express an intent to make an important change in the law in words incapable of being misunderstood, rather than relying upon implication. . . . [The governmental function defense] has never been applied by the Michigan court to protect any governmental agency against liability in a situation recognized to be within the nuisance-trespass category. [The first sentence], I submit, should be seen as a restoration of the governmental-function defense as it existed in the case law, alongside the nuisance-trespass head of liability.

9 Justice Brickley wrote the plurality opinion joined by Chief Justice Riley and Justice Cavanagh.

10 The Taking Clause of the constitution rests at the foundation of the trespass-nuisance exception. Justice Ryan wrote about the taking rationale in his dissent in Gerzeski v Dep’t of State Hwys, 403 Mich 149, 170; 268 NW2d 525 (1978), which is cited in Hadfield, supra, p 165:

In [intruding-nuisance] cases the potentially dangerous instrumentality or condition literally moves from government-owned land onto adjacent property. Consequently, the neighboring premises and its occupants are subject to either the creation of a risk foreign to the premises or direct and immediate injury. When this transpires the government effectively deprives an owner of the useful possession of that which he owns. This Court views such action as a public taking. Under this analysis the state is obliged to pay reasonable compensation for damages ensuing from such "taking” in accordance with the Constitution of the State of Michigan, Const 1963, art 10, § 2. [Citations omitted.]

Note that in its definition of trespass-nuisance, the Hadñeld Court did not restrict the source of the intrusion to government-owned land.

11 In Rosario, a nineteen-month-old child drowned after falling into an open sewer drain on city property. Justice Fitzgerald, joined by Chief Justice Kavanagh and Justice Levin, found a broad nuisance-in-fact exception to governmental immunity. A concurrence written by Justice Blair Moody, Jr., and joined by Justice Williams, found that only intentional nuisance in fact was an exception, not negligent nuisance in fact.

Justice Moody defined intentional nuisance as the "intent[] to bring about the conditions which are in fact found to be a nuisance.” Rosario, p 142.

However, there is confusion in the Court of Appeals concerning the elements of intentional nuisance. Most Court of Appeals panels find intentional nuisance when a defendant either acted for the purpose of causing harm or knew that harm was substantially certain to follow. See Hadfield, supra, p 172, n 14. Since neither interpretation of intentional nuisance was recognized prior to 1965, we find it unnecessary to resolve this conflict.

12 In Gerzeski, two young boys drowned after falling through the ice on an artificial pond owned by the Highway Department. While looking for the children, the father of one of the boys fell through the ice and drowned. The same three-justice plurality as in Rosario again held in favor of an expanded nuisance exception. In the concurrence, Justice Moody and Justice Williams would have limited the nuisance-in-fact exception to intentional nuisance.