Buddy v. State

• Decision Date: 13 March 1975
• Docket Number: No. 2,Docket No. 20601,2
• Citation: 59 Mich.App. 598,229 N.W.2d 865
• Parties: Leroy BUDDY and Suzanne Buddy, Plaintiffs-Appellants, v. STATE of Michigan, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 865

229 N.W.2d 865

59 Mich.App. 598

Leroy BUDDY and Suzanne Buddy, Plaintiffs-Appellants, v. STATE of Michigan, Defendant-Appellee.

Docket No. 20601.

Court of Appeals of Michigan, Division No. 2.

March 13, 1975.

Released for Publication June 11, 1975.

Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon by Jeffrey N. Shillman, Southfield (John D. Lazar, Madison Heights, of counsel), for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Russell E. Prins, Asst. Atty. Gen., for defendant-appellee.

Before T. M. BURNS, P.J., and D. E. HOLBROOK and KELLY, JJ.

KELLY, Judge.

Plaintiffs brought suit in the Court of Claims alleging that the state and the Department of Natural Resources were liable for personal injuries sustained on a toboggan run at the Pontiac Lake Recreation Area. They appeal the trial court's order granting summary judgment ¹ on the basis of governmental immunity, M.C.L.A. § 691.1407; M.S.A. § 3.996(107).

The complaint alleges, and we accept for our purposes as true, that the Department of Natural Resources permitted the manmade hill to contain debris. It was also alleged that the department improperly constructed the toboggan slide and failed to disclose hidden dangers; that the department failed to supervise and inspect the premises and that the hill was not maintained in a safe condition.

Plaintiffs' position is that they have properly pleaded a nuisance claim and that governmental immunity does not preclude such an action. Defendant's position is that no nuisance action was pleaded and that labelling the action 'nuisance' does not circumvent governmental immunity.

'Acts in the discharge of governmental functions which create a nuisance Per se do not come within the immunity otherwise accorded.' Royston v. City of Charlotte, 278 Mich. 255, 260, 270 N.W. 288, 290 (1936).

As to what constitutes a nuisance Per se, Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 411, 97 N.W.2d 90, 95--96 (1959), quotes 66 C.J.S. Nuisances § 3, 733--734 as follows:

'From the point of view of their nature, nuisances are sometimes classified as nuisances Per se or at law, and nuisances Per accidens or in fact. A nuisance at law or a nuisance Per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or Per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the nutual tendency of the act is to create danger and inflict injury on person or property. The number of nuisances Per se is necessarily limited, and by far the greater number of nuisances are nuisances Per accidens. For this reason whether or not a particular thing or act is a nuisance is generally a question of fact, as discussed Infra § 8, to be determined in the first instance before the term 'nuisance' can be applied to it. * * *

'The difference between a nuisance Per se and one in fact is not in the remedy, but only in the proof of it. In the one case the wrong is established by proof of the mere act, and becomes a nuisance as a matter of law, in the other by proof of the act and its consequences.'

Moreover, a nuisance Per se 'arises when one so uses his land as to cause unreasonable interference with the use and enjoyment of the land of another'. Young v. Groenendal, 10 Mich.App. 112, 116, 159 N.W.2d 158, 159 (1968), affirmed by an equally divided court, 382 Mich. 456, 169 N.W.2d 920 (1969).

In Brown v. Nichols, 337 Mich. 684, 689, 60 N.W.2d 907, 910 (1953) the Court approved the following:

'The questons as to what constitutes a nuisance is one of law for the court; but it is for the jury to decide whether a particular act or structure or use of property, which is not a nuisance Per se, is a nuisance in fact.'

Insofar as the trial judge's order embodies a determination that the toboggan run was not a nuisance Per se, we agree. A toboggan run is intended for recreational enjoyment. If safely constructed and maintained, some relative danger is inherent in the activity. Such danger creates excitement and is a product of many sports activities.

Compare the following situations where our Supreme Court has decided there is no nuisance Per se. Exculpated structures include incinerators, ² public fishing sites, ³ parks used for football, ⁴ airports, ⁵ fuel docks, ⁶ auto junkyards, ⁷ and drive-in movie theaters. ⁸ In addition:

'During recent years we have had occasion to consider the subject of nuisances Per se. The following cases were considered and declared not to be nuisances Per se: A lumber yard and planing mill, Mackenzie v. Frank M. Pauli Co., 207 Mich. 456, 174 N.W. 161 (1919), 6 A.L.R. 1305; a public dance hall, People v. Schoonmaker, 241 Mich. 177, 216 N.W. 456 (1927); a stable where horses are kept, Shimberg v. Risdon Creamery Co., 215 Mich. 94, 183 N.W. 780 (1921); the business of selling and servicing automobiles, Lansing v. Perry, 216 Mich. 23, 184 N.W. 473 (1921); a gasoline filling station, Sandenburgh v. Michigamme Oil Co., 249 Mich. 372, 228 N.W. 707 (1930); a dry cleaning plant, Burdick v. Stebbins, 250 Mich. 665, 231 N.W. 57 (1930); a small coal yard, Daugherty v. Ward, 240 Mich. 501, 215 N.W. 526 (1927); a commercial garage, Moore v. Johnson, 245 Mich. 173, 222 N.W. 120 (1928).' Sommers v. Detroit, 284 Mich. 67, 71, 278 N.W. 767, 768 (1938).

As to whether plaintiff has properly pleaded a claim that the toboggan run was a nuisance in fact, we find the following language from Buckeye Union Fire Insurance Co. v. Michigan, 383 Mich. 630, 634--635, 636, 178 N.W.2d 476, 479, 480 (1970) instructive:

'The term 'nuisance' has come to have significance in the law in a variety of meanings. It is often associated with loud noises or objectionable odors, or with some types of interference with the use and enjoyment of public places (a public highway, public park, or navigable river), or the unlicensed practice of a profession, or condition which endangers the health or safety of the public, or involves an invasion of an interest in the use and enjoyment of land. Such a wide diversification of meaning has led to confusion in determining liability or non-liability.

'Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.'

We believe that the complaint sufficiently alleges a nuisance in fact as that term is described in Buckeye, supra. We now turn to the contention of plaintiffs that nuisances in fact are actionable despite the blockade of immunity when personal injuries result. Defendant claims that only nuisances which interfere with real property interests may survive governmental immunity.

In support of their claim that 'nuisance' is an historically recognized exception to governmental immunity, plaintiffs cite Pennoyer v. Saginaw, 8 Mich. 534 (1860); Cubit v. O'Dett, 51 Mich. 347, 16 N.W. 679 (1883); Ashley v. Port Huron, 35 Mich. 296, 24 Am.Rep. 552 (1877); Attorney General v. Grand Rapids, 175 Mich. 503, 141 N.W. 890 (1913) and Birchard v. Lansing Board of Health, 204 Mich. 284, 169 N.W. 901, 4 A.L.R. 990 (1918). All are distinguishable in that they involve dangers to the health of the public and threats to the real property interests of members of the community. All involve classical nuisances, and any general language about nuisance must be viewed in light of the historical fact that at the time those cases were decided the broadened definition of nuisance under which plaintiffs herein claim refuge had not yet found its way into Michigan jurisprudence.

The rationale of the cited cases was not, as plaintiffs claim, that anything that could be denominated nuisance survived governmental immunity. The true rationale is revealed by Justice Cooley in Ashley v. Port Huron, 35 Mich. 296, 301; 24 Am.R. 552 (1877):

'The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances then it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction. A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner's possession. His property right is appropriated in the one case as much as in the other.'

Two cases where personal injuries were found actionable despite immunity, Ferris v. Detroit Board of Education, 122 Mich. 315, 81 N.W. 98 (1899) and Pound v. Garden City School District, 372 Mich. 499, 127 N.W.2d 390 (1964), are closest to the instant case. In both of those cases, the personal injury resulted from the direct trespassory act of the municipality in allowing water to drain from its property onto other premises. The cases allow recovery because of governmental misuse of land in a manner which disparages the real property rights of another.

In Ferris v. Detroit Board of Education, Supra, our Supreme Court said (122 Mich. 315, 319, 81 N.W. 98, 100):

'The cause of action is not a neglect in the performance of a corporate duty rendering a public work unfit for the...