Citizens Ins. Co. v. Bloomfield Tp.

• Decision Date: 22 March 1995
• Docket Number: Docket No. 156133
• Citation: 532 N.W.2d 183,209 Mich.App. 484
• Parties: CITIZENS INSURANCE COMPANY, Plaintiff-Appellant, v. BLOOMFIELD TOWNSHIP, Defendant-Appellee, and East Jordan Iron Works Company, and Tristar Fire Protection, Inc., Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 183

532 N.W.2d 183

209 Mich.App. 484

CITIZENS INSURANCE COMPANY, Plaintiff-Appellant, v. BLOOMFIELD TOWNSHIP, Defendant-Appellee and East Jordan Iron Works Company, and Tristar Fire Protection Inc., Defendants.

Docket No. 156133.

Court of Appeals of Michigan.

Submitted Nov. 16, 1994, at Detroit.

Decided Dec. 1, 1994.

Approved for Publication

March 22, 1995, at 9:05 a.m.

Released for Publication May 24, 1995.

Morrison, Mahoney & Miller by Jeffrey R. Learned, Southfield, for the plaintiff.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by William P. Hampton and Lanie Anderson, Farmington Hills, for Bloomfield Township.

Before HOOD, P.J., and JANSEN and DAVIS, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from an order of the Oakland Circuit Court granting defendant Bloomfield Township's (hereafter, defendant will be used to refer solely to Bloomfield Township) motion for summary disposition. We reverse.

On May 2, 1989, Hillside Furniture, Inc., suffered water damage when a sprinkler system pipe burst because of a pressure surge. The pressure surge resulted when an unknown vehicle struck a fire hydrant located near the shopping center area where Hillside Furniture was located. Plaintiff Citizens Insurance Company was Hillside Furniture's property insurer and it paid $342,844.11 because of the property damage. Plaintiff, as the subrogee of Hillside Furniture's rights, brought this action against defendant, the East Jordan Iron Works Company, and Tristar Fire Protection, Inc. East Jordan Iron Works manufactured the fire hydrant and Tristar Fire Protection installed the sprinkler system.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and (10), arguing that it was not liable under the doctrine of governmental immunity. Plaintiff contended that the trespass-nuisance exception to governmental immunity applied and that defendant was, therefore, liable. The trial court ruled that the trespass-nuisance exception was not designed for this situation, that governmental immunity applied, and that defendant was entitled to summary disposition.

We review the trial court's grant of summary disposition de novo because we must review the record to determine if defendant was entitled to judgment as a matter of law. Michigan Mutual Ins. Co. v. Dowell, 204 Mich.App. 81, 86, 514 N.W.2d 185 (1994). When reviewing a grant of summary disposition based on a finding that the claim is barred by governmental immunity, all documentary evidence submitted by the parties is to be considered. All well-pleaded allegations are accepted as true and construed in favor of the nonmoving party. Summers v. Detroit, 206 Mich.App. 46, 48, 520 N.W.2d 356 (1994). MCR 2.116(C)(10) permits summary disposition when there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Thus, we must determine whether there is a material factual dispute regarding whether the trespass-nuisance exception to governmental immunity applies in this case.

The trespass-nuisance exception to governmental immunity has clearly been recognized by our Supreme Court. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 204-205, 521 N.W.2d 499 (1994); Li v. Feldt (After Remand), 434 Mich. 584, 594, 456 N.W.2d 55 (1990); Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988). A direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity constitutes a compensable injury. This exception is defined as trespass or interference with the use or enjoyment of land caused by the government or its agents and resulting in personal or property damage. These elements are summarized as condition (nuisance or trespass), cause (physical intrusion), and causation or control (by government). Peterman, supra, at p. 205, 521 N.W.2d 499.

Plaintiff's claim is that defendant required the installation of East Jordan Iron Works fire hydrants in the parking lot outside Hillside Furniture's business. Plaintiff's theory of liability is, therefore, premised on defendant's requirement and approval of the East Jordan fire hydrants at the shopping center area. Plaintiff claims that by effectively deciding for the developers which fire hydrant to use, defendant enabled the flood to occur. Plaintiff alleges, in turn, that East Jordan negligently designed and manufactured the fire hydrant.

First, it is undisputed that defendant was involved in the operation of a governmental function. The operation of a municipal water supply system is a governmental function and the operation of the fire hydrants was under the control of the township's water and sewer department. M.C.L. § 41.331 et seq.; M.S.A. § 5.2599(1) et seq.; M.C.L. § 41.411 et seq.; M.S.A. § 5.2411 et seq. Thus, plaintiff must affirmatively establish that the trespass-nuisance exception applies.

There can be little doubt that the first two elements of trespass-nuisance have been established by plaintiff. Hillside Furniture was flooded with water because of the sprinkler system pipe that burst when the water surged through the pipes when the fire hydrant was run over. Peterman, supra, at p. 206, 521...