Bradford v. State

• Decision Date: 10 December 1986
• Docket Number: Docket No. 86464
• Citation: 396 N.W.2d 522,153 Mich.App. 756
• Parties: Billy BRADFORD, Janet Bradford, Brian Bradford, et al., Plaintiffs-Appellants, v. STATE of Michigan, Department of Natural Resources, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 522

396 N.W.2d 522

153 Mich.App. 756

Billy BRADFORD, Janet Bradford, Brian Bradford, et al Plaintiffs-Appellants, v. STATE of Michigan, Department of Natural Resources Defendants-Appellees.

Docket No. 86464.

Court of Appeals of Michigan.

Submitted April 16, 1986.

Decided Aug. 4, 1986.

Released for Publication Dec. 10, 1986.

Donnelly W. Hadden, P.C., by Donnelly W. Hadden, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Stewart H. Freeman and Patricia D. Hartig, Lansing, for defendants-appellees.

Before ALLEN, P.J., and MacKENZIE and SWALLOW, ^* JJ.

ALLEN, Presiding Judge.

Plaintiffs appeal as of right from a June 19, 1985, order of the Court of Claims granting summary disposition to defendants based on governmental immunity and from a July 24, 1985, order denying plaintiffs' motions for reconsideration and leave to further amend their complaint.

Plaintiffs' first amended complaint alleges that plaintiffs are residents and landowners near the defunct Berlin & Farro hazardous waste site in Genesee County and that this site contains over twenty-six million gallons of hazardous liquid waste and over twenty-four thousand cubic feet of hazardous industrial chemicals. Plaintiffs further allege that the State of Michigan is the owner and/or possessor of this land and that the conditions of this state land constitute a continuing nuisance. As a result of the nuisance, plaintiffs alleged the following damages: (1) diminution in the value of their property; (2) loss of normal use and enjoyment of their property; (3) dispossession of their property; (4) physical sickness and injury; and (5) mental anguish, annoyance, inconvenience, discomfort, pain and suffering.

Defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10) contending that plaintiffs failed to state a claim for which relief can be granted because plaintiffs' claim was barred by governmental immunity. Defendants also sought summary disposition on the ground that there was no genuine issue of material fact for the following reasons:

"a) The nuisance was created by the Berlin and Farro Liquid Incineration Company, prior to the time when the State took title to a portion of the site or obtained any possessory interest in it. The State neither owned nor operated the site when wastes were disposed of there.

"b) The State's sole purpose in acquiring and possessing the site was to gain access for purposes of cleaning and removing hazardous substances, and to expedite litigation involving the site.

"c) The State did not take title to a portion of the site 'primarily for pecuniary profit.'

"d) The 'public building', 'highway', or 'motor vehicle' exceptions to governmental immunity do not apply to this case.

"e) The State at all times was subject to the jurisdiction of, and acted under supervision of the Genesee County Circuit Court and court-appointed receivers."

Oral argument on defendants' motion was heard by the Circuit Court for Ingham County sitting as the Court of Claims on May 22, 1985. On June 19, 1985, in an opinion and order, the court decided that plaintiffs' claims of nuisance were barred both by the governmental immunity act and because the allegations of nuisance sounded only in negligence. The court further determined that plaintiffs' complaint did not allege that the state created the nuisance, but only that the state owned land on which another created a nuisance.

On July 24, 1985, the court denied plaintiffs' motion for reconsideration and for leave to amend their complaint to allege intentional nuisance. From both orders plaintiffs appeal as of right raising two issues: (1) Did the trial court err by granting summary disposition on grounds that plaintiffs' claims were barred by governmental immunity; (2) Did the trial court err by denying plaintiffs' motion to amend their complaint in order to allege intentional nuisance?

I

The motions for summary disposition were filed under both MCR 2.116(C)(8) and (10). The trial court did not state under which subrule the motion was granted, but it is apparent from the court's detailed opinion that the motion was granted for failure to state a claim within a statutorily authorized exception to governmental immunity. Thus, it is clear that the motion was granted under MCR 2.116(C)(8).

A motion for summary disposition for failure to state a claim under MCR 2.116(C)(8) is tested by the pleadings alone. Only the legal basis of the complaint is examined. The factual allegations of the complaint are presumed true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should not be granted. Landry v. Detroit, 143 Mich.App. 16, 20-21, 371 N.W.2d 466 (1985), and Martin v. Michigan, 129 Mich.App. 100, 341 N.W.2d 239 (1983).

In order to plead a valid claim against a governmental agency, plaintiffs must plead facts in avoidance of the governmental immunity act. Veeneman v. Michigan, 143 Mich.App. 694, 697, 373 N.W.2d 193 (1985), citing McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976). To avoid governmental immunity, a plaintiff must state a claim that fits "within one of the legislatively or judicially created exceptions to governmental immunity or ... [pled] facts which demonstrate that the activity alleged is not in the 'exercise or discharge of a governmental function'. Veeneman, supra, 143 Mich.App. pp. 697-698, 373 N.W.2d 193, quoting McCann.

Plaintiffs do not allege or contend that the state's activities regarding the toxic waste site were proprietary or were not conducted in the exercise of a governmental function. Instead, relying almost exclusively on Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970), plaintiffs contend they have pled a claim of classic nuisance where the state conducts an operation on its own land that is unnatural and which causes some disturbance or damage to the lands of third parties. In reply to this claim, the Attorney General, representing the defendants, offers two arguments: (1) that Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), abolished the common-law nuisance exception to governmental immunity, and (2) that the factual situation in the instant case is not a Buckeye -type nuisance claim but is a negligent nuisance situation lacking the necessary element of an intentionally created nuisance. We disagree with the Attorney General on the first ground, but agree with him on the second.

The contention that the case of Ross abolished the common-law nuisance exception to governmental immunity has been rejected by numerous panels of this Court. See, Attorney General v. Ankerson, 148 Mich.App. 524, 385 N.W.2d 658 (1986), Dinger v. Dep't of Natural Resources, 147 Mich.App. 164, 383 N.W.2d 606 (1985), Schroeder v. Canton Twp., 145 Mich.App. 439, 440-441, 377 N.W.2d 822 (1985), Veeneman, supra, 143 Mich.App. pp. 699-700, 373 N.W.2d 193; Moore v. City of Pontiac, 143 Mich.App. 610, 613, 372 N.W.2d 627 (1985), and Landry, supra, 143 Mich.App. pp. 22-23, 371 N.W.2d 466. ¹

However, clearly the instant situation is not a Buckeye -type nuisance situation. There the negligence upon which the state based its defense of governmental immunity was the failure to abate the existing fire hazard nuisance that was on the land when the state took title. In the instant case, the situation was completely the reverse. For ten years or more the state had been in litigation to prevent the nuisance. For nine years or more, during which the state was in litigation attempting to close down the dump, title to the property was in the name of the private owners of the dump site or in third parties who leased the property to the dump operators. Further, when the state finally acquired title, the state, instead of doing nothing to abate the nuisance as in Buckeye, proceeded under court supervision to abate the nuisance.

Nevertheless, nuisances per se and intentionally created nuisances remain a bar to the defense of governmental immunity. Moore v. City of Pontiac, supra, and Disappearing Lakes Ass'n v. Dep't of Natural Resources, 121 Mich.App. 61, 66, 328 N.W.2d 570 (1982), aff'd sub nom. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). An intentional nuisance exists where the "governmental agency intended to bring about the conditions found to be a nuisance." Landry, supra. Thus, the relevant question presented is whether plaintiffs' allegations of nuisance, set forth in paragraphs 3 through 7 of the amended complaint, sufficiently allege an intentionally created nuisance or a nuisance per se. They read:

"3. That the Defendant, State of Michigan, is the owner and/or in possession of certain lands situated in Gaines Township, Genesee County, Michigan, described as:

"N. 1/2 of N. 1/2 of S.E. 1/4 of Sec. 23 T6N, R5E, Genesee County, Michigan.

"4. That the said lands contain over 26 million gallons and over 24 thousand cubic feet of hazardous industrial chemicals wastes and contaminated earth, including, but not limited to dichloroethane, trichloroethane, xylene, toluene, C-56, C-58, tetrachlorocyclopentene, cadmium, chromium, other heavy metals, organic contaminates and dioxin.

"5. That a present risk exists that these hazardous materials may migrate to the Plaintiffs' residences producing a danger to their health, safety, and welfare.

"6. That the conditions of the said State land constitute a continuing nuisance as to the Plaintiffs.

"7. That the conditions and activities on the said land were and are ultrahazardous and abnormally dangerous and non-natural for which Defendant is strictly liable."

We do not find these allegations to sufficiently state a claim of an intentionally created nuisance or a nuisance per se. At no place in the...