Continental Paper & Supply Co., Inc. v. City of Detroit

• Decision Date: 17 May 1994
• Docket Number: Docket No. 141370
• Citation: 521 N.W.2d 844,205 Mich.App. 404
• Court: Court of Appeal of Michigan — District of US
• Parties: CONTINENTAL PAPER & SUPPLY COMPANY, INC., and American Automobile Insurance Company, as subrogee of Continental Paper & Supply Company, Inc., Plaintiffs-Appellees, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant.

Page 844

521 N.W.2d 844

205 Mich.App. 404

CONTINENTAL PAPER & SUPPLY COMPANY, INC., and American

Automobile Insurance Company, as subrogee of

Continental Paper & Supply Company, Inc., Plaintiffs-Appellees, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant.

Docket No. 141370.

Court of Appeals of Michigan.

Submitted Jan. 20, 1994, at Detroit.

Decided May 17, 1994, at 9:40 a.m.

Released for Publication July 18, 1994.

Clausen Miller Gorman Caffrey & Witous, P.C. by James T. Ferrini, Jeffrey J. Asperger, Joseph J. Janatka, and Edward M. Kay, Chicago, IL, and Robert H. Harkness, Bloomfield Hills, for plaintiffs.

Alberta P. Whitfield and Barbara A. Wynder, Detroit, for defendant.

Before JANSEN, P.J., and McDONALD and HOCKING, ^* JJ.

PER CURIAM.

The City of Detroit appeals from a judgment in favor of plaintiffs for $2,986,000 entered on a jury verdict in this trespass-nuisance action. We affirm.

This case involves the fire destruction of a premises known as 4584 Jeffries. Continental Paper and Supply Company and its insurer commenced an action on February 17, 1988, in the Court of Claims and a separate action on February 15, 1988, in the Wayne Circuit Court.

The complaint in the action in the Court of Claims alleged that the State of Michigan was the legal titleholder of 4584 Jeffries and that it intentionally had created a nuisance by allowing the property to remain vacant, unoccupied, unsecured, and a fire hazard open to trespassers and vandals. Plaintiffs sought recovery for damages to the adjacent premises owned by Continental Paper caused by the nuisance, specifically, a fire on March 12, 1987, at 4584 Jeffries, which spread to Continental's property. In an amended complaint, filed July 6, 1988, plaintiffs' theory of liability was labeled "trespass nuisance."

The defendants in the Wayne Circuit Court case were Detroit Metro Wrecking, a company allegedly awarded a contract to demolish the structure at 4584 Jeffries, Clara Berger and Victor Bizer, who allegedly owned and abandoned 4584 Jeffries, and the City of Detroit. As with the state claim, the original claim against the City of Detroit was based on an intentional nuisance theory. The city's responsibility for the nuisance was based on allegations that it exercised control and jurisdiction over 4584 Jeffries through its efforts before the fire to condemn the property. An amended complaint, filed on May 18, 1988, labeled the theory of liability as "trespass nuisance."

The Court of Claims and the Wayne Circuit Court cases were consolidated, and all of the defendants, except the City of Detroit (hereinafter defendant), were dismissed pursuant to stipulation. Following various pretrial motions, the case proceeded to trial and resulted in the judgment from which defendant now appeals.

Given the significance of the outcome of this matter, we find the quality of defendant's brief appalling. Defendant has not only failed to provide this Court with several relevant transcripts but, contrary to MCR 7.212(C)(5) and (6), defendant fails throughout the entirety of its brief to provide citations to the record in support of both asserted facts and alleged errors. Moreover, the majority of defendant's issues are supported by little or no analysis and are not supported by authority. Community Nat'l Bank of Pontiac v. Michigan Basic Property Ins. Ass'n, 159 Mich.App. 510, 407 N.W.2d 31 (1987). Thus, if not for the significance of the "control" issue raised herein, we would strike defendant's brief and decline to address the appeal. However, because the question regarding defendant's liability is significant and likely to recur, we will address defendant's contention that it can not be found liable under a trespass-nuisance theory.

Although defendant's brief states plaintiff failed to plead sufficiently or to establish factually a nuisance exception to governmental immunity, defendant has failed to indicate, and we are unable to locate, anywhere in the record where the trial court addressed the sufficiency of plaintiffs' pleadings. Moreover, defendant fails to discuss the substance of plaintiffs' pleadings in its brief on appeal. We, therefore, will limit our analysis of the issue to whether plaintiffs submitted sufficient evidence at trial to support the jury's finding of defendant's liability for trespass-nuisance.

A trespass-nuisance exception to governmental immunity was unanimously recognized in Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 169, 422 N.W.2d 205 (1988), which defined trespass-nuisance as

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 resulting in personal or property damage. The elements may be summarized as condition (nuisance or trespass); cause (physical intrusion); and causation or control (by government). See also Kuriakuz v. West Bloomfield Twp., 196 Mich.App. 175, 176-177, 492 N.W.2d 757 (1992).

At issue here is the element of control. ¹ Defendant's argument appears to be that because it did not possess title to the property at the time of the fire, it can not be found liable under a trespass-nuisance theory. We find this argument to be without merit. Liability for damage caused by a nuisance may be found where a defendant creates the nuisance, owns or controls the property from which the nuisance arose, or employed another to do work knowing the creation of a nuisance is likely. Stemen v. Coffman, 92 Mich.App. 595, 285 N.W.2d 305 (1979).

In this case plaintiffs presented sufficient evidence to support a finding that defendant had sufficient control over the property at the time of the fire. The record reveals the warehouse buildings at 4584 Jeffries were abandoned sometime in 1980 or 1981. Thereafter, the warehouse's condition deteriorated. Several complaints about, and fires occurring in or around the building, led to various inspections of the premises. Inspections were made pursuant to the Detroit Fire Prevention Code, which recognizes that open, vacant, and abandoned buildings present a fire hazard and, thus, requires that persons owning or having charge or control of any vacant building remove combustible waste and refuse and secure all windows, doors, and openings. The Fire Prevention Code also empowers the fire marshal's office to enter and inspect buildings for compliance with fire regulation and to take whatever action is needed to eliminate hazardous conditions. ² Specifically, § 19-3-20(b)(1) of the Fire Prevention Code states:

The fire marshal shall have the authority to summarily abate any condition which is in violation of any provision of this article and which presents immediate danger to life.

Inspection of the premises was also conducted through the Detroit Buildings and Safety Department pursuant to...