Ford v. City of Detroit
| Decision Date | 11 July 1979 |
| Docket Number | Docket No. 77-4128 |
| Citation | 91 Mich.App. 333,283 N.W.2d 739 |
| Parties | Terry FORD, Individually and as next friend of Verita Ford, a minor, Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, Defendant-Appellee. 91 Mich.App. 333, 283 N.W.2d 739 |
| Court | Court of Appeal of Michigan — District of US |
[91 MICHAPP 334] Milan & Miller, P. C. by Allen S. Miller, Detroit, for plaintiff-appellant.
Gregory E. Snow, Detroit, for defendant-appellee.
Before CAVANAGH, P. J., and HOLBROOK and KAUFMAN, JJ.
Plaintiff appeals from the trial court's grant of summary judgment for the defendant City of Detroit.
While playing in a public park operated by the [91 MICHAPP 335] City of Detroit, plaintiff's minor child broke her leg when she stepped through a three-inch space between a slide and the wooden platform to which it was attached. In her complaint, the plaintiff alleged that the City's design, manufacture and construction of the slide created a hazard to the safety of those using it and that the slide, as a result, constituted a nuisance. The trial court granted summary judgment based on the City's claim of governmental immunity from tort liability.
The Supreme Court has recently reexamined the impact of the nuisance doctrine on governmental immunity in Rosario v. Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978), and Gerzeski v. Dep't of State Highways and a consolidated case, Fouchia v. Dep't of State Highways, 403 Mich. 149, 268 N.W.2d 525 (1978). Although no clear majority view has emerged from these cases, certain points of agreement exist between the five justices who concurred in reversal.
First, it is evident that governmental immunity does not bar liability for a nuisance per se. Furthermore, the maintenance of a nuisance in fact by a governmental body may also impose liability and overcome any claim of sovereign immunity.
The distinction between a nuisance per se and a nuisance in fact is an evidentiary one. A nuisance per se is an act, occupation or structure which is a nuisance at all times and under all circumstances. Once the act has been proved, the court decides as a matter of law whether the act complained of constitutes a nuisance per se. The defendant's liability at that point is established.
A nuisance in fact, by contrast, is an act, occupation or structure which becomes a nuisance because of circumstances and surroundings. Whether [91 MICHAPP 336] or not a particular thing is a nuisance in fact is to be resolved by the trier of fact.
However, the five members of the Court voting for reversal in both Rosario and Gerzeski disagree as to whether all nuisances in fact may defeat a claim of...
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Hadfield v. Oakland County Drain Com'r
...v. Detroit, 126 Mich.App. 1, 336 N.W.2d 882 (1983); Crosby v. Detroit, 123 Mich.App. 213, 333 N.W.2d 557 (1983); Ford v. Detroit, 91 Mich.App. 333, 283 N.W.2d 739 (1979).To add to the confusion, some panels have found that allegations of omissions, as opposed to commissions, are automatical......
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Zyskowski v. Habelmann
...Court has consistently employed the "substantially certain" test given by the trial court in the present case. See Ford v. Detroit, 91 Mich.App. 333, 283 N.W.2d 739 (1979); Cobb v. Fox, 113 Mich.App. 249, 257-258, 317 N.W.2d 583 (1982); Ovist v. Hancock, 123 Mich.App. 276, 278-279, 333 N.W.......
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Garcia v. City of Jackson, Docket No. 84513
...Const.1963, Art. 6, Sec. 23, as amended 1968.1 We note that a conflict exists in this Court over this issue. Compare Ford v. Detroit, 91 Mich.App. 333; 283 N.W.2d 739 (1979) with Veeneman, supra. We believe that Veeneman more accurately interprets Rosario and Gerzeski and that Justice Moody......
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Eyde Bros. Development Co. v. Roscommon County Bd. of Road Com'rs
...it and becomes a nuisance as a matter of law. The defendant's liability is established at that point. Ford v. Detroit, [91 Mich.App. 333, 283 N.W.2d 739 (1979) ] supra, p. 335. "In contrast, a nuisance in fact is a nuisance by reason of circumstances and surroundings, and an act may be foun......