Chapin v. Coloma Tp.

• Decision Date: 24 November 1987
• Docket Number: Docket No. 88175
• Citation: 415 N.W.2d 221,163 Mich.App. 614
• Court: Court of Appeal of Michigan — District of US
• Parties: James CHAPIN and Sharon Chapin, Plaintiffs-Appellants, v. COLOMA TOWNSHIP, Defendant-Appellee. 163 Mich.App. 614, 415 N.W.2d 221

Page 221

415 N.W.2d 221

James CHAPIN and Sharon Chapin, Plaintiffs-Appellants, v. COLOMA TOWNSHIP, Defendant-Appellee.

Docket No. 88175.

163 Mich.App. 614, 415 N.W.2d 221

Court of Appeals of Michigan.

Submitted Nov. 5, 1986.

Decided June 25, 1987.

Released for Publication Nov. 24, 1987.

[163 MICHAPP 616] James F. Bauhof, Kalamazoo, for plaintiffs-appellants.

Hartwig, Crow, Jones & Postelli by F.A. Jones, St. Joseph, for defendant-appellee.

Before CYNAR, P.J., and KELLY and HATHAWAY, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting summary disposition. Although not explicitly stated, it is apparent that the order was granted pursuant to MCR 2.116(C)(8), on the ground that the complaint failed to state a claim upon which relief can be granted. Since we conclude that summary disposition was erroneously granted with respect to the trespass and intentional nuisance counts of the complaint, we reverse and remand for further proceedings on these theories of recovery.

According to the complaint, plaintiffs are the owners and residents of a home located in Coloma Township. Defendant township operates a sewage system that services plaintiffs' residence. Because of a previous history of problems associated with a lift pump, defendant had installed an auxiliary motor in anticipation of possible failure of the primary motor powering the pump. For a "long period" prior to December 1, 1982, the primary motor was inoperative, but defendant did not effect repairs, relying on the auxiliary motor to keep the sewage system functioning. On or about December 1, the auxiliary motor also failed. The result was that raw sewage accumulated in plaintiffs' garage and underneath their home, causing damages to both the premises and contents stored therein.

Initially, we note that a motion for summary disposition pursuant to MCR 2.116(C)(8), is well [163 MICHAPP 617] taken only if the pleadings are so clearly unenforceable as a matter of law that no factual development can justify a right of recovery. The allegations of fact in the complaint and all reasonable inferences drawn from those allegations are accepted as true for purposes of the motion. If governmental immunity is at issue, as in the instant case, the plaintiff must plead facts in avoidance of the bar of immunity. Martin v. Michigan, 129 Mich.App. 100, 104-105, 341 N.W.2d 239 (1983) lv. den. 422 Mich. 891, 368 N.W.2d 226 (1985).

Plaintiffs' complaint set forth five theories of recovery, three of which are pertinent to this appeal: (1) intentional nuisance, (2) trespass, and (3) eminent domain. In its answer to the complaint, defendant asserted the defense of governmental immunity.

On appeal, defendant reiterates its contention that governmental immunity bars any recovery on the theories of nuisance and trespass. In Rosario v. Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978), and Gerzeski v. Dep't. of State Highways, 403 Mich. 149, 268 N.W.2d 525 (1978), reh. den. 403 Mich. 956 (1978), the Court recognized the viability of a judicially created nuisance exception to immunity. Although both cases were decided by plurality opinions, a majority of the Court agreed that, at a minimum, a claim of intentional nuisance was not barred by governmental immunity. Although defendant argues that the judicial reshaping of immunity in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), abrogated the intentional nuisance exception, the Court expressly disclaimed any attempt to address that question. Id., n. 27, 610-611, 363 N.W.2d 641, and 654-655. Subsequent decisions of this Court have reaffirmed the exception's viability. Carney v. Dep't. of Transportation, 145 Mich.App. 690, 700-701, 378 N.W.2d [163 MICHAPP 618] 574 (1985), lv. den. 424 Mich. 889 (1986); Moore v. City of Pontiac, 143 Mich.App. 610, 612-613, 372 N.W.2d 627 (1985). A similar exception exists for trespass committed by the casting of objects onto the plaintiffs' land. Pound v. Garden City School Dist., 372 Mich. 499, 127 N.W.2d 390 (1964). See also Gerzeski, supra, 403 Mich. at 169-171, 268 N.W.2d 525 (Ryan, J., dissenting). Therefore, we conclude that governmental immunity does not bar the claims for intentional nuisance or trespass in the instant case.

Nuisance theory is divided into two categories--nuisance per se and nuisance in fact. Martin, supra, 129 Mich.App. at 108, 341 N.W.2d 239. Nuisance per se contemplates activity that is actionable as a matter of law, regardless of the surrounding circumstances. Nuisance in fact, on the other hand, is actionable only because the surrounding circumstances give rise to a "natural tendency ... to create danger and inflict injury to person or property." Id. It is nuisance in fact that plaintiffs assert in the instant case.

In order to establish nuisance in fact, it is necessary to show that the defendant is responsible for a "dangerous, offensive, or hazardous" condition. Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476 (1970). Although a nuisance in fact may be created either by negligent or intentional conduct, only the latter will suffice to evade the governmental immunity bar when suit is brought against a government agency. Carney, supra, 145 Mich.App. 700-701, 378 N.W.2d 574.

In the instant case, the circuit court ruled that the allegations of the complaint were insufficient to establish intent on the part of defendant. We hold that this was error. The complaint alleged that plaintiffs were "intentionally threatened" by defendant's nuisance in fact. It was also a reasonable inference from the well-pled factual allegations that defendant's failure to repair the pump [163 MICHAPP 619] motor was accompanied by its knowledge that harm to plaintiffs was substantially certain to occur. ¹

In their complaint, plaintiffs alleged only that defendant did not take adequate precautions against the malfunctioning of the system and that it did not repair or replace the failed primary motor in timely fashion. A conflict presently exists in the decisions of this Court on the question whether an omission to act can be the basis for an intentional nuisance action. Compare Velmer v. Baraga Area Schools, 157 Mich.App. 489, 501-502, 403 N.W.2d 171 (1987), and Furness v. Public Service Comm, 100 Mich.App. 365, 370, 299 N.W.2d 35 (1980), with Garcia v. City of Jackson, 152 Mich.App. 254, 260-261, 393 N.W.2d 599 (1986), and Landry v. Detroit, 143 Mich.App. 16, 371 N.W.2d 466 (1985), lv. gtd. 424 Mich. 876 (1986). We conclude that this Court in Garcia and Landry correctly decided this question in reliance on Justice MOODY's plurality opinion in Rosario, supra, 403 Mich. 141-144, 268 N.W.2d 230, where it was stated that a deliberate refusal to take an affirmative remedial action may give rise to an intentional nuisance. We also distinguish Velmer on the ground that the dangerous condition in that case was latent. Unlike Velmer,[163 MICHAPP 620] plaintiffs in the instant case alleged that defendant had "notice" of the danger created by the...