Garcia v. City of Jackson

• Decision Date: 24 February 1989
• Docket Number: Docket No. 109324
• Citation: 174 Mich.App. 373,435 N.W.2d 796
• Parties: Manuel GARCIA, Sr., individually and as Personal Representative of the Estate of Javier Garcia, Deceased, and Bertha O. Garcia, Manuel Garcia, Jr., Berta G. Mc Cann, and Malcom Scott Garcia, individually, Plaintiffs-Appellants, v. CITY OF JACKSON, a Michigan municipal corporation, Defendant-Appellee. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 796

435 N.W.2d 796

174 Mich.App. 373

Manuel GARCIA, Sr., individually and as Personal Representative of the Estate of Javier Garcia, Deceased, and Bertha O. Garcia, Manuel Garcia, Jr., Berta G. Mc Cann, and Malcom Scott Garcia, individually, Plaintiffs-Appellants, v. CITY OF JACKSON, a Michigan municipal corporation Defendant-Appellee. (On Remand)

Docket No. 109324.

Court of Appeals of Michigan.

Submitted June 9, 1988.

Decided Jan. 17, 1989.

Released for Publication Feb. 24, 1989.

[174 Mich.App. 374] Mark T. Light and Jan Paul Benedict, Lansing, for plaintiffs-appellants.

Stanton, Bullen, Nelson, Moilanen & Klaasen, P.C. by Charles A. Nelson, Jackson, for defendant-appellee.

ON REMAND

Before CYNAR, P.J., and MacKENZIE and WAHLS, JJ.

CYNAR, Presiding Judge.

Plaintiffs appealed as of right from an April 12, 1985, judgment of the circuit court granting the defendant's motion for summary judgment based on governmental immunity.

The Court of Appeals in its opinion of June 2, 1986, concluded that the plaintiffs had stated a claim upon which relief could be granted and reversed the grant of summary judgment in favor of defendant. This Court concluded that plaintiffs had stated a claim of intentional nuisance which avoided the defense of governmental immunity. Additionally, this Court concluded that plaintiffs' allegations of wilful and wanton misconduct were sufficient to remove this case from the scope of the recreational use act. This Court remanded the case for further proceedings consistent with its opinion. Garcia v. City of Jackson, 152 Mich.App. 254, 393 N.W.2d 599 (1986). Defendant filed an application for leave to appeal with the Supreme Court.

The Supreme Court, in its order of August 25, 1986, stated that it had considered the certification by the Court of Appeals pursuant to Administrative Order 1984-2 that the decision in the instant case is in conflict with its decisions in Ford v. Detroit, 91 Mich.App. 333, 283 N.W.2d 739 (1979), and Furness v. Public Service Comm, 100 Mich.App. 365, 299 N.W.2d 35 (1980), but ordered that the accompanying application for leave to appeal was held in abeyance pending the decision in Rushing v. Wayne County (Docket No. 74724), Hadfield v. Oakland County Drain Comm'r (Docket No. 75494), Veeneman v. State of Michigan, (Docket No. 76815), Landry v. Detroit (Docket No. 77011), and McCaul v. Village of Lake Odessa (Docket No. 78233). The decisions in those cases having been issued on March 29, 1988, in Hadfield v. Oakland County Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), the application was again considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the judgment of the Court of Appeals was vacated and the case was remanded to this Court for reconsideration in light of Hadfield. 430 Mich. 877, 423 N.W.2d 215 (1988).

In its original opinion, this Court noted that plaintiffs appealed the trial court's finding that plaintiffs had failed to plead an intentional nuisance. Plaintiffs claimed that defendant intentionally created and maintained a structure that presented a danger to the public. The complaint further alleged that defendant knew of the specific danger since another boy had previously drowned in the vicinity of the box section and members of the public petitioned defendant to improve the dam. Plaintiffs cited several omissions on the part of defendant, including the failure to erect a grating over the conduit's opening, to provide proper warnings, and to implement safety regulations. The Court of Appeals ¹ concluded that the elements of intentional nuisance were sufficiently stated by the plaintiffs to avoid the defense of governmental immunity. Further, plaintiffs' allegations of wilful and wanton misconduct, if proved, would remove this case from the scope of the recreational use act.

It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadfield, 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. Negri v. Slotkin, 397 Mich. 105, 244 N.W.2d 98 (1976); People v. Mitchell, 428 Mich. 364, 408 N.W.2d 798 (1987); Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988).

Further, the result and the language in Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982), are strongly supportive of the conclusion that a case of wilful and wanton misconduct has been made out under the alleged facts in the case before us.

After much consideration, we reverse the trial court's dismissal of the intentional nuisance and wilful and wanton misconduct claims and remand to the trial court for further proceedings.

REVERSED AND REMANDED.

WAHLS, J., concurs.

MacKENZIE, Judge (dissenting).

This nuisance action arises out of the drowning of Javier Garcia near the Holton Dam, located in defendant City of Jackson. In a previous opinion, this Court held that plaintiff's claim was not barred by governmental immunity. Garcia v. City of Jackson, 152 Mich.App. 254, 393 N.W.2d 599 (1986). The case is now on remand to this Court for reconsideration in light of Hadfield v. Oakland County Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988). While the Hadfield Court failed to produce a majority opinion binding on this Court, see Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988), Hadfield nonetheless stands as persuasive authority. Contrary to the majority opinion, I interpret the Court's remand order as an express directive to this Court to consider this case in light of the Hadfield plurality views. Furthermore, I concluded that, under Hadfield, plaintiffs' nuisance claim is barred by governmental immunity.

Plaintiffs, in bringing a tort action against a governmental agency, bear the burden of pleading facts in their complaint which would justify a finding that recovery is not barred by the governmental immunity act. Hyde v. University of Michigan Regents, 426 Mich. 223, 261, 393 N.W.2d 847 (1986). This may be accomplished by stating a claim which fits into one of the four statutory exceptions included within the act, or by pleading facts which demonstrate that the tort occurred during the exercise or discharge of a nongovernmental or proprietary function. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 621, n. 34, 363 N.W.2d 641 (1984). In Hadfield, all participating justices agreed that pleading in avoidance of immunity may also be accomplished by stating a claim which falls within the judicially created nuisance exception to governmental immunity, although they disagreed upon the scope of the nuisance exception. See generally 430 Mich. at 145, 422 N.W.2d 205 (opinion of Brickley, J., Riley, C.J., and...