Li v. Feldt

487 N.W.2d 127, 439 Mich. 457

• Court: Michigan Supreme Court
• Decided: May 20, 1992
• Docket: Docket Nos. 91079, 92057, (Calendar Nos. 1-2)
• Status: Published

Opinions

AFTER SECOND REMAND

Cavanagh, C.J.

We revisit in these cases the issue of the existence and scope of exceptions to governmental immunity from tort liability under MCL 691.1407(1); MSA 3.996(107X1). We hold that there is no public nuisance exception to governmental immunity, and that, to whatever extent a nuisance per se exception may exist, it is not implicated by the facts of either case before us.

I. FACTS AND PROCEDURAL HISTORY

A. LI v FELDT

Plaintiff Chen Li was injured in an automobile collision on May 5, 1983, which was allegedly caused, in part, by an improperly timed traffic light operated by the City of Ann Arbor. The defendants before us in Li are the city and two of its employees, Kenneth Feldt and John Robbins. Li filed suit on March 11, 1986, and the trial court initially granted summary disposition for the defendants.¹ The Court of Appeals initially reversed in part and remanded for further proceedings regarding Li’s claim of intentional nuisance. 162 Mich App 767; 413 NW2d 493 (1987). This Court vacated and remanded in light of Hadfield v Oakland Co Drain Cornm’r, 430 Mich 139; 422 NW2d 205 (1988), in which a majority of this Court held that § 7(1) mandates an historical approach to determining the existence of exceptions to governmental immunity. 430 Mich 882 (1988).

On remand, the Court of Appeals found that there was an historically recognized intentional nuisance exception to governmental immunity, and again reversed the trial court’s summary disposition. 170 Mich App 256; 428 NW2d 36 (1988). This Court granted leave to appeal, 432 Mich 891 (1989), and reversed, reaffirming Hadñeld’s historical approach and finding that there is no. intentional nuisance exception to governmental immunity. 434 Mich 584; 456 NW2d 55 (1990). This Court again remanded the case to the Court of Appeals, to determine whether a public nuisance or nuisance per se exception to governmental immunity existed, and whether either exception applied to the facts presented, "if, and to the extent that, [such issues] were properly raised before the Court of Appeals.” Id. at 596._

On second remand, the Court of Appeals held that the relevant issues had been adequately raised and preserved in that Court, that both public nuisance and nuisance per se were historically recognized exceptions to governmental immunity, that Li had stated a claim of public nuisance on the facts presented, and that Li’s claim of nuisance per se was sufficiently colorable on the facts presented to warrant further consideration by the trial court. 187 Mich App 475, 492; 468 NW2d 268 (1991). The Court of Appeals therefore reversed again the trial court’s summary disposition. We granted leave to appeal, 437 Mich 1006 (1991), and, for reasons set forth below, we now reverse again the judgment of the Court of Appeals.

B. GARCIA v CITY OF JACKSON

Plaintiffs’ decedent Javier Garcia, a young boy, drowned on February 26, 1983, after he went swimming in the holding pond behind the Holton Dam in Jackson. The pond was connected to the Grand River by a 2,000-foot-long, five- by ten-foot, underground conduit, the mouth of which was not guarded by a grating. Garcia was sucked into the conduit and dragged through it into the Grand River, where his body was later found. Another young boy had drowned in a similar manner at the Holton Dam in 1981, producing a public outcry. At the time Garcia drowned, signs had been placed around the pond warning against swimming; indeed, Garcia’s friend who accompanied him on that tragic day warned him against swimming in the pond. It was not until October 10, 1983, however, nearly eight months after Garcia’s death, that the City of Jackson began making physical improvements at the dam site to enhance its safety.

Garcia’s father, on his own behalf and as the personal representative of his son’s estate, and others, filed suit against the city on June 23, 1983.² Garcia’s first complaint alleged nuisance per se and nuisance in fact, an amended complaint alleged only nuisance per se, and . a second amended complaint alleged only wilful and wanton misconduct. The substance of the allegations remained, however, that the city had maintained the Holton Dam in a dangerous condition, when it knew or should have known that drownings were likely to result. The trial court initially granted summary disposition for the city. The Court of Appeals reversed and remanded, holding that Garcia had stated a claim of intentional nuisance and that intentional nuisance constituted an exception to governmental immunity. 152 Mich App 254; 393 NW2d 599 (1986). This Court, just as in Li, vacated and remanded in light of Hadfield, supra. 430 Mich 877 (1988).

On remand, the Court of Appeals, one judge dissenting, again reversed the trial court’s summary disposition, finding its earlier decision unaffected by Hadfield. 174 Mich App 373; 435 NW2d 796 (1989). This Court granted leave to appeal, 432 Mich 891 (1989), and, deciding the case together with Li, reversed, holding that intentional nuisance was not an historically recognized exception to governmental immunity. 434 Mich 584; 456 NW2d 55 (1990). This Court, just as in Li, remanded the case to the Court of Appeals to determine whether a public nuisance or nuisance per se exception to governmental immunity existed, and whether either exception applied to the facts presented, "if, and to the extent that, [such issues] were properly raised before the Court of Appeals.” Id. at 596.

On second remand, the Court of Appeals, again over a dissent, held that the relevant issues had been adequately raised and preserved in that Court, that public nuisance and nuisance per se were historically recognized exceptions to governmental immunity, that "the factual allegations in this case can support the claim of nuisance per se or public nuisance sufficiently to avoid a grant of summary disposition for the defendant,” that Garcia should be afforded an opportunity on remand to amend his pleadings to more clearly state the law and facts relied upon, and that the trial court should then determine whether Garcia had adequately pleaded a claim of public nuisance or nuisance per se. 190 Mich App 197, 201-202; 475 NW2d 851 (1991). The Court of Appeals therefore reversed again the trial court’s summary disposition. We granted leave to appeal and ordered the case considered together with Li, 438 Mich 863 (1991), and, for reasons set forth below, we now reverse again the judgment of the Court of Appeals.

II. ANALYSIS

A. PUBLIC NUISANCE

It has become almost de rigueur to begin a discussion of nuisance, as did the Court of Appeals in Li (On Second Remand), 187 Mich App 480, by quoting Justice Talbot Smith’s typically apt description of it as "the great grab bag, the dust bin, of the law.” Awad v McColgan, 357 Mich 386, 389; 98 NW2d 571 (1959). The Court of Appeals in Li (On Second Remand) also noted Prosser and Keeton’s descriptions of nuisance as an " 'impenetrable jungle’ ” and " 'all things to all people,’ ” 187 Mich App 480, quoting Prosser & Keeton, Torts (5th ed), § 86, p 616, while adding its own apt metaphor that "[w]hile nuisance may be an impenetrable jungle, the issue of exceptions to governmental immunity for nuisance per se and public nuisance is more akin to an arid wasteland, with few landmarks to be found.” Id. While we sympathize with these metaphors, we think the Court of Appeals overlooked the implications of the latter. The very aridity of the historical case law in this area actually makes it easier to apply the governing historical test for exceptions to governmental immunity.

MCL 691.1407(1); MSA 3.996(107)(1) provides:

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.[³]

This Court, in Li v Feldt (After Remand), 434 Mich 584, 592-595; 456 NW2d 55 (1990), squarely reaffirmed the historical approach articulated by Justice Brickley’s plurality opinion in Hadfield, supra, for purposes of determining the scope of possible exceptions to the immunity conferred by § 7(1). Under this approach the question is whether the claimed exception was clearly recognized in authoritative Michigan case law before July 1, 1965. See Li (After Remand), 434 Mich 594-595. This Court in Hadfield found such a clearly recognized historical exception in the-case of the tort of "trespass-nuisance.” See Hadfield, 430 Mich 154-169 (Brickley, J.). Where the historical case law regarding a claimed exception truly constitutes an "arid wasteland,” however, that would seem to be a strong indication that the exception cannot properly be recognized under §7(1). This indication is confirmed in the case of the claimed public nuisance exception to governmental immunity.

The argument for historical recognition of a public nuisance exception rests largely upon Justice Boyle’s concurring opinion in Hadfield, 430 Mich 206-207 — which in turn relied upon Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503; 141 NW 890 (1913), and Trowbridge v City of Lansing, 237 Mich 402; 212 NW 73 (1927)— and upon Pound v Garden City School Dist, 372 Mich 499; 127 NW2d 390 (1964).

Wyoming Twp and Trowbridge do not support the existence of a public nuisance exception. In the first place, both cases involved plaintiffs seeking only prospective equitable relief in the form of abatement, to which this Court, in both cases, found they were entitled. As Justice Brickley correctly noted in Hadfield, such cases do not even fall within the purview of governmental immunity and cannot properly be cited in that context. See Hadfield, 430 Mich 152, n 5, 174, n 15. Justice Boyle in Hadfield, after citing Wyoming Twp and Trowbridge, stated:

Presumably, this Court, after recognizing the remedy of abatement against the government for a public nuisance, would not deprive a private individual who suffered special harm because of the same nuisance from a remedy well established at common law [e.g., damages]. It should follow that the public nuisance remedy, even where not based on invasion of another’s property rights, is an exception to governmental immunity. [Id. at 207.]

We conclude, however, that this does not follow. The distinction between the government’s liability for prospective equitable relief and its liability for retrospective damages or compensation, and the principle that the former kind of liability is generally not barred by sovereign immunity, are fundamental to sovereign immunity law.

The United States Supreme Court, for example, has long recognized this distinction in the context of the states’ Eleventh Amendment immunity from suit in the federal courts, which immunity, the Court has held, does not extend to prospective equitable relief or ancillary costs associated therewith. See, e.g., Missouri v Jenkins, 491 US 274, 278-280; 109 S Ct 2463; 105 L Ed 2d 229 (1989); Will v Michigan Dep’t of State Police, 491 US 58, 71, n 10; 109 S Ct 2304; 105 L Ed 2d 45 (1989) (noting that "[t]his distinction is 'commonplace in sovereign immunity doctrine’ ”); Edelman v Jordan, 415 US 651; 94 S Ct 1347; 39 L Ed 2d 662 (1974); Ex parte Young, 209 US 123; 28 S Ct 441; 52 L Ed 714 (1908). This Court recognized this basic distinction in McDowell v State Highway Comm’r, 365 Mich 268; 112 NW2d 491 (1961). Upholding an assertion of governmental immunity in that case, we noted that "plaintiffs attempt to hold a department of the State, and so the State, responsible in damages for a tort. No question of abatement of a nuisance, or of other relief a court of equity might properly grant, is or could be before us on review of these judgments of the court of claims.” Id. at 269-270 (emphasis added, citation omitted).

Furthermore, as Justice Brickley noted in Had-field, both Wyoming Twp, in which the plaintiffs sought abatément of river sewage dumping which affected riparian landowners, and Trowbridge, in which the plaintiffs sought abatement of the operation of a "piggery”⁴ which afflicted neighboring landowners with offensive insects and odors, fell comfortably within "the category of trespass-nuisance.” Hadfield, 430 Mich 174. Given that the challenged conduct in both Wyoming Twp and Trowbridge wás "clearly trespass-nuisance and in line with the exception adopted [in Hadfield],” id. at 175, we see no basis for reading either case as establishing a public nuisance exception.⁵

We find Pound, supra, to be of no more help in establishing a public nuisance exception. At the outset, the question arises whether Pound is properly even considered as part of the relevant body of historical case law for purposes of § 7(1). As Justice Brickley noted in Hadfield, 430 Mich 176, n 17, "it may ... be argued” that it is not, given that the bill which became 1964 PA 170 was introduced and passed by the Senate before Pound was decided.⁶ Justice Brickley did not decide this issue in Hadfield, however, and his opinion did not command a majority in any event. Upon further consideration, we now conclude that Pound is properly considered for purposes of § 7(1).

First, while the drafters of 1964 PA 170 incorporated the language preserving the scope of governmental immunity "as it existed heretofore,” and the Senate initially passed it, before Pound was decided, that language was not finally passed by either House of the Legislature or enacted into law until after Pound was decided. See n 6. We believe it is the date of final passage that is most relevant for interpretive purposes; furthermore, a time-relative statutory term like "heretofore” should ordinarily be interpreted with reference to the date the language takes legal effect. We thus agree with the Court of Appeals in Li (On Second Remand), 187 Mich App 486-487, that the Legislature, in adopting 1964 PA 170, must be presumed to have been aware of Pound and to have felt no need to modify the bill to exclude Pound from its scope.

Second, the intent of the 1964 Legislature in this regard is no longer controlling in any event. The Legislature amended the statute in 1986 by, in part, replacing "as it existed heretofore” with "as it existed before July 1, 1965.” 1986 PA 175, § 1. This amendment mooted the issue regarding what date the word "heretofore” in the original statute should be interpreted with reference to. Pound, decided more than a year before July 1, 1965, plainly falls within the scope of the amended language. Thus, Pound must be considered as part of the historical case law under § 7(1) for purposes of applying the test adopted in Hadfield and Li (After Remand).⁷

Pound involved a claim for injuries caused by water dripping off the roof of the defendant’s public school building, which caused a neighboring public sidewalk to become coated with ice on which the plaintiff slipped and fell. This Court, relying heavily on Ferris v Detroit Bd of Ed, 122 Mich 315; 81 NW 98 (1899), found that the claim was not barred by governmental immunity. In Ferris, ice and snow had fallen from the roof of the defendant’s public school building onto the plaintiff’s private premises, causing him to slip and fall. Ferris was thus a classic trespass-nuisance case. As Justice Brickley noted in Hadñeld, 430 Mich 159-160, Ferris exemplifies the development of the trespass-nuisance exception to governmental immunity.

As this Court stated in Pound, that case involved

facts similar enough to those in Ferris to meet that case’s criterion of "a direct injury to the person of the plaintiff, while outside the limits of the defendant’s premises.” We hold, therefore, that [the claim in Pound is] sufficient to state a cause of action to which the defense of governmental immunity may not be interposed. To hold otherwise would be to establish a distinction between a plaintiff who is directly injured while upon his own premises by the wrongful act of defendant and another plaintiff who is likewise directly injured in a place, such as a public way, where he has a right to be and which is not subject to the authority of defendant. Such a distinction would be without justification in logic or public policy.

Defendant cites several cases which have sustained the defense of governmental immunity to actions for tortious injury, but in those cases the injury which plaintiff sustained did not occur, as in Ferris and Pound, "outside the limits of the defendant’s premises” but rather occurred in areas subject to the authority of defendants. See, e.g., McDowell v State Highway Comm’r, 365 Mich 268. [Pound, 372 Mich 501-502. Emphasis added.]

Pound’s citation and distinction of McDowell is highly significant. McDowell, like the instant case of Li, involved a claim arising from the allegedly unsafe maintenance of a roadway. In McDowell, the state highway department’s allegedly negligent failure to drain water from the surface of a highway permitted a dangerous sheet of ice to form. The facts of Li are thus far closer to those of McDowell than to those of Pound. In both Li and Garcia, like McDowell but unlike Pound, the injury occurred in an area subject to the authority of the defendant. Thus, neither Li nor Garcia falls within the narrow exception to governmental immunity enunciated in Pound.

In sum, Pound did not establish any public nuisance exception to governmental immunity; rather, it established, at most, a narrow corollary to the narrow trespass-nuisance exception recognized by cases such as Ferris and Hadfíeld. Finding no other basis for a public nuisance exception in the case law before July 1, 1965, we conclude that no such exception exists under § 7(1). Thus, to whatever extent the plaintiffs in Li and Garcia may have properly stated claims of public nuisance — and we emphasize that we do not pass on that question — such claims are barred by governmental immunity.⁸

B. NUISANCE PER SE

Whether there was an historically recognized nuisance per se exception to governmental immunity poses a more difficult question. Justice Boyle, in her concurring opinion in Hadfield, 430 Mich 207-208, expressed the view that a damages claim alleging a nuisance per se would fall outside the scope of governmental immunity, relying upon Wyoming Twp, supra, Trowbridge, supra, and Royston v City of Charlotte, 278 Mich 255; 270 NW 288 (1936). As noted above, however, both Wyoming Twp and Trowbridge involved claims for prospective equitable relief, not damages, and are thus inapposite to the governmental immunity issue.⁹

Royston does provide some support for a nuisance per se exception, stating squarely (albeit in dicta and without supporting citation), that "[a]cts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded.” 278 Mich 260. While the significance of this language has been questioned, see, e.g., Hadfield, 430 Mich 175, n 16 (Brickley, J.), we note that it is undeniably part of the body of historical case law for purposes of applying §7(1), although, to be sure, it lacks the weight which would be accorded to language constituting the ratio decidendi of a case.

The significance of Royston’s dicta is augmented by a consideration of dicta in Burford v Grand Rapids, 53 Mich 98; 18 NW 571 (1884), which held that governmental immunity barred a suit for damages arising from the injury of the plaintiff’s horse, which was hit by a recreational bobsled on a public street. The plaintiff argued, inter alia, that the defendant was not entitled to immunity because, by authorizing recreational sledding (or "coasting,” as it was then called) on the street, it had essentially authorized an activity constituting a nuisance per se. Chief Justice Cooley, for the unanimous Court, stated:

If it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention, and perhaps it should be accepted as sound. . . . But coasting does not necessarily interfere with the customary use of the street, and might be indulged in with no serious inconvenience to any one .... On the contrary, as [coasting] itself is healthful and exhilarating, it seems eminently proper, if the street is not put -to other public use, that this diversion be allowed, if not expressly sanctioned. [Id. at 103-104; see also Rosario v City of Lansing, 403 Mich 124, 135, n 9; 268 NW2d 230 (1978) (opinion of Fitzgerald, J.) (citing this language in Burford as the apparent, though uncited, authority for Royston’s dicta).]

We conclude, however, that we need not now decide whether cases such as Royston and Burford establish a clearly recognized nuisance per se exception in the pre-1965 case law.¹⁰ As our case law has long recognized, a nuisance per se is an activity or condition which constitutes a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained. See Hadfield, 430 Mich 207 (Boyle, J., concurring); Gerzeski v Dep’t of State Highways, 403 Mich 149, 168; 268 NW2d 525 (1978) (Ryan, J., dissenting); Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959); People v Detroit White Lead Works, 82 Mich 471, 476-479; 46 NW 735 (1890). "[U]nlike the nuisance in fact, nuisance per se is not predicated on the want of care, but is unreasonable by its very nature.” Hadfield, 430 Mich 208 (Boyle, J., concurring).

Neither the operation of the traffic light in Li nor the maintenance of the holding pond in Garcia can be said to constitute an intrinsically unreasonable or dangerous activity, without regard for care or circumstances. To the contrary, both activities serve obvious and beneficial public purposes and are clearly capable of being conducted in such a way as not to pose any nuisance at all. The very essence of the claims in both Li and Garcia is that the underlying activities became unreasonable and dangerous under the particular circumstances of each case because the defendants allegedly exercised improper or inadequate care. Thus, regardless of whether nuisance per se might qualify as an exception to governmental immunity, neither Li nor Garcia presents a colorable claim of nuisance per se.

III. CONCLUSION

We reverse the judgments of the Court of Appeals and reinstate the trial courts’ grants of summary disposition for the defendants.

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

1 Because Li’s suit fell outside the two-year statute of limitations applicable to actions under the statutory "defective highways” exception to governmental immunity, see MCL 691.1402, 691.1411(2); MSA 3.996(102), 3.996(111)(2), the applicability of that statutory exception does not arise as an issue in this case.

2 For convenience, we will henceforth refer to the plaintiffs in Garcia in the singular as "Garcia.”

3 As originally enacted by 1964 PA 170, § 7, the second sentence of this provision stated that "[ejxcept as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed.” (Emphasis added.) 1970 PA 155, § 1, made a minor grammatical change in the first sentence of this provision. 1986 PA 175, § 1, made further stylistic changes in this provision and, as noted' above, the substantive change of replacing "heretofore” with "before July 1, 1965.” July 1, 1965 was the effective date of 1964 PA 170.

4 That is, a municipal garbage dump where hogs were kept to consume the garbage.

5 Justice Boyle now, in addition to Wyoming Twp and Trowbridge, relies upon Dermont v Mayor of Detroit, 4 Mich 435 (1857), and Burford v Grand Rapids, 53 Mich 98; 18 NW 571 (1884), to support the existence of a public nuisance exception. See Boyle, J., post, pp 480-481. She also suggests reliance upon five cases cited by Wyoming Twp: Onen v Herkimer, 172 Mich 593; 138 NW 198 (1912), Merritt Twp v Harp, 131 Mich 174; 91 NW 156 (1902), Seaman v City of Marshall, 116 Mich 327; 74 NW 484 (1898), Ashley v Port Huron, 35 Mich 296 (1877), and Pennoyer v Saginaw, 8 Mich 534 (1860). See Boyle, J., post, p 481, n 6, citing Wyoming Twp, 175 Mich 534.

Dermont does not support the claimed public nuisance exception. That case rejected a claim for damages against a city arising from the flooding of the plaintiff’s cellar by the city sewer, stating:

The law is well settled in this country, and in England, that towns and boroughs are not liable to individuals for defects in their roads or bridges, except by some statute; and it is obvious that the powers granted to and exercised by the defendants in laying out streets and constructing sewers, are identical with those of highway commissioners in establishing highways and building bridges. [4 Mich 442-443.]

Even if Dermont had authorized recovery against the city, the case would fall squarely within the trespass-nuisance tradition. With regard to Burford, while the Court in that case passingly referred at one point to the claim being one of "public nuisance,” 53 Mich 100, a thorough examination of Burford reveals, as we discuss in part ikb), that the hypothetical exception to governmental immunity suggested in dicta in Burford is more properly characterized as relating to the concept of nuisance per se.

Of the five cases cited by Wyoming Twp, 175 Mich 534, two — Onen and Merritt Twp — involved only actions for equitable relief, and thus are no more relevant to the governmental immunity issue than Wyoming Twp itself. While Seaman explicitly authorized, and Ashley and Pennoyer may have implicitly countenanced, damages relief against the governmental defendants, all three cases are classic examples of the tort of trespass-nuisance. This is reflected both in Justice Brickley’s discussion of Pennoyer, Ashley, and Seaman in his Hadñeld plurality opinion, 430 Mich 155-159, and in the explicit language used by this Court in the original decisions. See, e.g., Ashley, 35 Mich 301 (emphasis added):

The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. [Quoted with emphasis in Hadfield, 430 Mich 157.]

Thus, as we discuss in the text with regard to Wyoming Twp and Trowbridge, we see no basis for stretching such cases, falling clearly within the trespass-nuisance tradition, to support an ill-defined and otherwise unsupported "public nuisance” exception.

6 Senate Bill 1132 was introduced on February 6, 1964, and passed the Senate on March 24, 1964. Pound was decided on April 6, 1964. The House of Representatives subsequently passed the bill with amendments (none of which affected the relevant language) on April 22, 1964. The Senate repassed the amended bill on April 23, 1964, and Governor Romney signed it into law as 1964 PA 170 on May 19, 1964.

7 This is also consistent with the plain language of Li (After Remand), which stated that § 7(1) "preserved judicially created exceptions to immunity which were formulated before July 1, 1965.” 434 Mich 592.

8 In response to Justice Boyle’s assertion that "we may yet be persuaded that a limited public nuisance exception to governmental immunity exists,” Boyle, J., post, p 480, we can only state that, while Justice Boyle may be so persuaded, a majority of this Court today rejects any such eventuality.

9 Furthermore, while the nuisances alleged in Wyoming Twp and Trowbridge may perhaps be described as nuisances per se, see Hadfield, 430 Mich 175 (Brickley, J.), we would be hesitant to draw any broad conclusions from them regarding any nuisance per se exception to governmental immunity, when they are so much more readily viewed, as discussed in part ii(A), as falling within the trespass-nuisance tradition.

10 While post-1965 case law cannot support the existence of an historically recognized exception to governmental immunity under § 7(1), we acknowledge the force of the arguments which have been made for the desirability of recognizing a nuisance per se exception to governmental immunity. See, e.g., Hadfield, 430 Mich 208 (Boyle, J., concurring) ("[t]o hold otherwise, would allow the state an absolute right to use its property in any manner it may choose without regard for the public at large or private persons”), citing Gerzeski v Dep’t of State Highways, 403 Mich 149, 169; 268 NW2d 525 (1978) (Ryan, J., dissenting).