Li v. Feldt
| Decision Date | 30 April 1990 |
| Docket Number | 85365,Docket Nos. 84303 |
| Citation | 434 Mich. 584,456 N.W.2d 55 |
| Parties | Chen LI, Plaintiff-Appellee, v. Kenneth FELDT, individually and as an agent of the City of Ann Arbor, John Robbins, individually and as an agent of the City of Ann Arbor, and the City of Ann Arbor, jointly and severally, Defendants-Appellants, and Chu-Fen Wong, Chou Yu-Feng Wong, and Becky Jane Belknap, Defendants. Manuel GARCIA, Sr., Personal representative of the estate of Javier Garcia, deceased, Manuel Garcia, Sr., Bertha O. Garcia, Manuel Garcia, Jr., Berta C. McCann, and Malcolm Scott Garcia, individually, Plaintiffs-Appellees, v. CITY OF JACKSON, a Michigan municipal corporation, Defendant-Appellant. |
| Court | Michigan Supreme Court |
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.
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 negligence 1 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 N.W.2d 493 (1987).
Defendants applied for leave to appeal in this Court. On May 31, 1988, this Court remanded 2 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 N.W.2d 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 N.W.2d 36 (1988).
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 N.W.2d 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 remanded 4 the instant case to the Court of Appeals for reconsideration in light of Hadfield. After remand, the Court of Appeals found that intentional nuisance had been pled and that Hadfield 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
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 Hadfield found that Sec. 7 of the governmental tort liability act, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 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:
M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) (emphasis added).
A majority in Hadfield agreed that the second sentence of Sec. 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 Hadfield.
The plurality opinion in Hadfield 9 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, 430 Mich. p. 169, 422 N.W.2d 205, 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 Hadfield plurality.
After recognizing the trespass-nuisance cause of action, the plurality in Hadfield 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 N.W.2d 230 (1978), 11 and Gerzeski v. Dep't of State Hwys., 403 Mich. 149, 268 N.W.2d 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.
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