468 N.W.2d 268 (Mich.App. 1991), 129603, Li v. Feldt

Docket Nº:Docket No. 129603.
Citation:468 N.W.2d 268, 187 Mich.App. 475
Opinion Judge:Before SAWYERand SHEPHERD and SULLIVAN, JJ
Party Name:Chen LI, Plaintiff-Appellant, v. Kenneth FELDT, individually and as operations engineer of the City of Ann Arbor, John Robbins, individually and as director of transportation of the City of Ann Arbor, and the City of Ann Arbor, jointly and severally, Defendants-Appellees, and Chu-Fen Wong, Chou Yu-Feng Wong, and Becky Jane Belknap, Defendants. (On
Judge Panel:Before SAWYER, P.J., and SHEPHERD and SULLIVAN, JJ.
Case Date:May 06, 1991
Court:Court of Appeals of Michigan
 
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Page 268

468 N.W.2d 268 (Mich.App. 1991)

187 Mich.App. 475

Chen LI, Plaintiff-Appellant,

v.

Kenneth FELDT, individually and as operations engineer of

the City of Ann Arbor, John Robbins, individually and as

director of transportation of the City of Ann Arbor, and the

City of Ann Arbor, jointly and severally,

Defendants-Appellees,

and

Chu-Fen Wong, Chou Yu-Feng Wong, and Becky Jane Belknap,

Defendants. (On Second Remand).

Docket No. 129603.

Court of Appeals of Michigan.

May 6, 1991

Submitted June 5, 1990, at Lansing.

Decided Feb. 19, 1991, at 9:45 a.m.

Released for Publication May 6, 1991.

Leave to Appeal Granted May 24, 1991.

Page 269

[187 Mich.App. 476] Pauline R. Rothmeyer, Ann Arbor, for Chen Li.

R. Bruce Laidlaw, City Atty., and Kristen D. Larcom, Asst. City Atty., Ann Arbor, for Kenneth Feldt, John Robbins, and City of Ann Arbor.

Schlussel, Lifton, Simon, Rands, Galvin & Jackier, P.C. (by Jerold Lax), Ann Arbor, [187 Mich.App. 477] amicus curiae, for Michigan Mun. League.

Before SAWYER, P.J., and SHEPHERD and SULLIVAN, JJ.

SAWYER, Presiding Judge.

This case is before us for decision on remand from the Supreme Court. We again reverse the decision of the trial court.

Plaintiff Chen Li was a passenger in an automobile driven by defendant Chou Yu-Feng Wong and owned by defendant Chu-Fen Wong. The Wong vehicle ran a red light and collided with a vehicle driven by defendant Becky Belknap, resulting in injuries to plaintiff. The accident occurred within the City of Ann Arbor.

Plaintiff filed the instant action on March 11, 1986. Among the defendants named were the City of Ann Arbor and two of its employees, Kenneth Feldt and John Robbins. It is the liability of these municipal defendants which is at issue in this appeal. In our initial decision, we affirmed the dismissal of plaintiff's negligence claim under the defective-highway exception to governmental immunity 1 on the basis of the running of the statute of limitations, but concluded that the trial court erred in granting summary disposition on plaintiff's intentional nuisance claim. Li v. Wong, 162 Mich.App. 767, 413 N.W.2d 493 (1987).

The Supreme Court thereafter vacated the judgment of the Court of Appeals and remanded the case to this Court for reconsideration in light of Hadfield v. Oakland Co. Drain Comm'r., 430 Mich. 139, 422 N.W.2d 205 (1988). Li v. Wong, 430 Mich. [187 Mich.App. 478] 882, 423 N.W.2d 910 (1988). On remand, we concluded that Hadfield had not overruled precedent which recognized the intentional nuisance exception to governmental immunity and reinstated our prior decision reversing the grant of summary disposition on this claim. Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988).

The Supreme Court then granted leave to appeal and reversed, concluding that there is no intentional nuisance exception to governmental immunity. Li v. Feldt (After Remand), 434 Mich. 584, 456 N.W.2d 55 (1990). The Court did, however, remand the matter to us to consider the following questions:

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. [Id. at 596, 456 N.W.2d 55.]

We directed the parties to brief these questions. After considering the parties' briefs, we conclude that the issues are properly before the Court and that Michigan law recognizes the public nuisance and nuisance per se exceptions to governmental immunity.

We must first consider the question whether the issues of nuisance per se and public nuisance were properly raised before this Court. Not surprisingly, defendants argue that they were not, inasmuch as plaintiff pled an "intentional nuisance." However, this Court is not strictly bound by the label affixed to a claim, but may look beyond the label to determine the exact nature of the allegation made. Randall v. Harrold, 121 Mich.App. 212, 217, 328 N.W.2d 622 (1982), citing Anderson v. Brown Bros, [187 Mich.App. 479] Inc., 65 Mich.App. 409, 422, 237 N.W.2d 528 (1975) (Danhof, J., dissenting). See also Young v. Groenendal, 382 Mich. 456, 462, 169 N.W.2d 920 (1969). This is particularly true in the case at bar inasmuch as plaintiff never actually affixed the label "intentional

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nuisance" to the nuisance counts in her complaint. 2 The inequity of strictly holding plaintiff to having pled an intentional nuisance was recognized by Justice Levin in his separate opinion in Li, supra 434 Mich. at 606-607, 456 N.W.2d 55:

The Court states that the negligence per se and public nuisance issues can only be considered by the Court of Appeals on remand if "they were properly raised before the Court of Appeals." It is, however, for the Court of Appeals in the first instance to decide to what extent issues need to be properly raised and what constitutes properly raising them before that Court. We would, I think, all agree that the decisions of this Court on the nuisance "exception" to governmental immunity have not been crystal clear. In that context, the Court should be cautious about suggesting or deciding to what extent preservation of a precise category of nuisance is required.

With these thoughts in mind, we conclude that the issues of public nuisance and nuisance per se are properly before this Court in light of the fact that the nuisance issue itself was raised below. While plaintiff admittedly focused on "intentional nuisance" in the trial court and during the initial two appeals, that is hardly surprising in light of the fact that many of the nuisance exception cases were so labeled prior to the Supreme Court decision[187 Mich.App. 480] in this matter. 3 The proper focus is not on the fact that plaintiff drafted her pleadings with an eye toward intentional nuisance, but on the substance of her pleadings and the fact that she did plead a nuisance. Given the uncertainty in this area, the fact that plaintiff initially focused on the wrong type of nuisance to label her claim is understandable and, more importantly, excusable.

Having concluded that the issues are properly before us, we now turn to the determination whether nuisance per se and public nuisance are exceptions to governmental immunity. While this area does, as Justice Levin noted, lack clarity, we nevertheless reach the conclusion that such exceptions are recognized in Michigan.

Nuisance was described by Justice Talbot Smith as "the great grab bag, the dust bin, of the law." Awad v. McColgan, 357 Mich. 386, 389, 98 N.W.2d 571 (1959). Prosser and Keaton describe nuisance as being an "impenetrable jungle" and "all things to all people." Prosser & Keaton, Torts (5th ed.), Sec. 86, p. 616. While 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.

Recent cases from the Supreme Court lend little guidance in this area. The majority in Li, supra, expressly declined to consider the issue whether such exceptions to governmental immunity are recognized. Justice Archer expressed no opinion at all, merely concurring in the result reached by the majority. Justice Griffin would find no nuisance exception whatsoever, disagreeing with the majority's "historical approach" to the issue of [187 Mich.App. 481] judicially created exceptions to immunity. In his separate opinion, Justice Levin, while stopping short of explicitly stating that a public nuisance exception is recognized, does suggest such a conclusion:

Public nuisance is a long-recognized category of nuisance. The majority adopts the historical approach without indicating what authority there may be for the notion that a public nuisance committed by government is historically immune. 6

Interference with use of a public highway or waterway is a public nuisance, historically. The plaintiffs [sic, plaintiff] in Li were using a public highway. The plaintiff's decedent in Garcia [v. City of Jackson, 174 Mich.App. 373, 435 N.W.2d 796 1989) ] may have been using a public waterway. The common-law tradition is

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to decide cases, i.e., the facts and the law, together. The facts inform the decision on the law.

[Li, supra 434 Mich. at 607, 456 N.W.2d 55.]

Turning to Hadfield, supra, the plurality opinion by Justice Brickley specifically declined to address the issue whether there are nuisance per se or public nuisance exceptions to governmental immunity. Id. 430 Mich. at 170, 175, 422 N.W.2d 205. The plurality opinion did note, however, that there was some basis in precedent for making such a conclusion. Id. at 145, 174-177, 422 N.W.2d 205.

Justice Boyle, however, specifically concluded in her concurring opinion that there are nuisance per se and public nuisance exceptions to governmental immunity:

[187 Mich.App. 482]...

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