Boyce v. Wayne-Westland School Dist.

• Decision Date: 16 August 1996
• Docket Number: No. 103005,WAYNE-WESTLAND,103005
• Citation: Boyce v. Wayne-Westland School Dist., 552 N.W.2d 913, 453 Mich. 866 (Mich. 1996)
• Parties: BOYCE v.SCHOOL DISTRICT.
• Court: Michigan Supreme Court

Page 913

552 N.W.2d 913

453 Mich. 866

BOYCE v. WAYNE-WESTLAND SCHOOL DISTRICT.

No. 103005.

Supreme Court of Michigan.

Aug. 16, 1996.

In lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed, and the judgment of the Wayne Circuit Court is reinstated. MCR 7.302(F)(1). The trial court correctly concluded that the facts do not involve a trespass-nuisance as described in Hadfield v. Oakland Co. Drain Comm'rs, 430 Mich. 139, 422 N.W.2d 205 (1988). Court of Appeals No. 155317.

In lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed, and the judgment of the Wayne Circuit Court is reinstated. MCR 7.302(F)(1). The trial court correctly concluded that the facts do not involve a trespass-nuisance as described in Hadfield v. Oakland Co Drain Comm'rs, 430 Mich. 139, 422 N.W.2d 205 (1988). Court of Appeals No. 155317.

LEVIN, Justice, dissenting.

I would deny leave to appeal, but could join in an order granting leave to appeal, and dissent from the peremptory reversal of the Court of Appeals.

Following the close of plaintiff's proofs, the circuit judge directed a verdict for the defendants. The Court of Appeals ¹ affirmed the judgment of the circuit court in dismissing the nuisance per se claim, but reversed respecting the trespass-nuisance claim.

I

The defendant school district was converting a school to a community center, and was therefore disposing of a quantity of sodium hydroxide (lye). One custodian took the lye from a chemistry classroom and put it in the metal shop, to be sorted for disposal.

At trial, a young boy, Eric Freeman, testified that he and some other boys happened upon a Dumpster full of discarded material from the renovation, including football jerseys and boxes containing chemicals. Freeman testified that a "white man" in a "blue uniform" who was in the process of "throwing stuff out of the door" from the school to the area where the garbage was, said they could "have anything [they] wanted."

Among other things, the children took a box of chemicals, including the lye. The children played with the box, eventually spilling it in the street. The plaintiff fell into the lye, and was badly burned. ²

II

A trespass-nuisance is 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 results in personal or property damage. Had the government actively dumped the lye into the street there would clearly be a valid claim. The only unclear issue is causation, and whether the actions of the boys can be fairly attributed to the school. As set forth in the Court of Appeals decision relied on by the Court of Appeals in the instant case:

The possessor of land upon which the third person conducts an activity that causes a nuisance is subject to liability if: (1) he knows or has reason to know that the activity is being conducted and that it causes or involves an unreasonable risk of causing the nuisance, and (2) he consents to the activity or fails to exercise reasonable care to prevent the nuisance. 4 Restatement Torts, 2d, § 838, p. 157. [Wagner v. Regency Inn Corp, 186 Mich.App. 158, 163-164, 463 N.W.2d 450 (1990).]

The transfer of toxic, caustic chemicals from the school to the street is clearly a nuisance because it manifestly interferes with the "public health, safety, peace, comfort, or convenience...." Id., at p. 163, 463 N.W.2d 450.

The school district is subject to liability if an agent of the school knew the chemicals were being taken off the premises by the children, and that the children's possession of the chemicals created an "unreasonable risk" that they would be spilled.

Purging the school of chemicals was an intentional project by the school. It was known that dangerous chemicals were being disposed of.

The school district contends that there is no evidence that the person who gave the children permission was an agent of the defendant. The testimony concerning a man in a blue uniform throwing trash out of the school is sufficient evidence for a rationale jury to find for plaintiff.

III

The peremptory order reversing the Court of Appeals states "that the facts do not involve a trespass-nuisance as described in Hadfield v. Oakland Co. Drain Comm'rs, 430 Mich. 139, 422 N.W.2d 205 (1988).

Hadfield, in an opinion by Justice BRICKLEY signed by Chief Justice RILEY and Justice CAVANAGH, adverted to Pound v. Garden City School Dist, 372 Mich. 499, 127 N.W.2d 390 (1964), and said:

In Pound, the plaintiff was injured on ice created on a public sidewalk by improper drainage from school property. The Pound Court applied Ferris [v. Bd of Ed, 122 Mich. 315, 81 N.W. 98 (1899) ], quoting extensively from that case, and held that the plaintiff's allegations were within the Ferris criterion of " 'a direct injury to the person of the plaintiff, while outside the limits of the defendant's premises.' " Id., at p. 501, 127 N.W.2d 390.

The Pound Court refused 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. [Id., at p. 502, 127 N.W.2d 390.]

Thus, Pound might be used as the basis for an argument that a form of public nuisance, which mirrors the trespass-nuisance situation but occurs on public property, should be included within the historically recognized exception. However, we decline to address the question whether such a limited public nuisance exception has a sufficient historical basis because none of the cases at bar are analogous to Pound. [430 Mich. at 176-177, 422 N.W.2d 205.]

The question left open in the foregoing opinion in Hadfield --whether there is "a form of public nuisance, which mirrors the trespass-nuisance situation but occurs on public property, should be included within the historically recognized exception"--was addressed in Li v. Feldt (After Second Remand ), 439 Mich. 457, 471, 487 N.W.2d 127 (1992), where in an opinion by Chief Justice CAVANAGH, signed by Justices BRICKLEY and MALLETT, it was stated that "Pound is properly even considered ... for purposes of § 7(1)" "part of the relevant body of historical case law...." ³

Recently, in White v. Beasley, 453 Mich. 308, 552 N.W.2d 1 (1996), the majority, in separate opinions, recognized the public-duty doctrine as an exception to the statutory liability of police officers. Trespass-nuisance, like the public-duty doctrine, is a judicial creation, and provides a basis for governmental liability apart from the liability expressly provided for in the governmental tort liability act because as set forth in Li the cause of action for trespass-nuisance was recognized in Pound long before the July 1, 1965, the cutoff date for judicial development of tort liability law set forth in 1964 P.A. 170.

One can imagine factual scenarios that differ significantly from that set forth in Pound, where water escaped onto the "public way, where [the plaintiff] has a right to be and which is not subject to the authority of defendant." Pound, at p. 502, 127 N.W.2d 390.

Escaping waters have been recognized as a peculiar peril before and after Rylands v. Fletcher, L R 3 H L 330 (1868). Lye on a public way, where the plaintiff in the instant case had a right to be, is no less a hazard.

IV

While the majority prefers the assessment of the circuit judge, who granted a directed verdict for the school district, the determination of the Court of Appeals was not so devoid of reason as to justify peremptory reversal. The majority's decision to peremptorily reverse the decision of the Court of Appeals belittles its efforts, in the disposition of this case, as reflected in its carefully written opinion, and deprives plaintiff and her counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.

Today's peremptory order reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.

When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.

Also lost, when this Court acts without plenary consideration, is the opportunity for conference discussion after oral argument, and further conference discussion after an opinion has been prepared and circulated.

Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required. ⁴ In the instant case, factual and legal assessment is required. Peremptory disposition is not appropriate.

1 Unpublished opinion per curiam, issued January 31, 1995 (Docket No. 155317).

2 The facts, as stated in the plaintiff-appellee's brief, are as follows:

Defendants discarded the containers of sodium hydroxide along with the athletic equipment and other materials as part of their operation to convert Cherry Hill High School into an adult education facility. Since defendant Chester Wood passed away before trial, his deposition was read. Mr. Wood was the head custodian at the school. Mr. Wood testified that he himself boxed up items from the science lab and placed them in the metal shop with other items that were being considered for disposal. When shown the empty container of sodium hydroxide found...