Garcia v. City of Jackson

• Decision Date: 08 July 1991
• Docket Number: Docket No. 129602
• Parties: Manuel GARCIA, Sr., individually and as personal representative of the Estate of Javier Garcia, deceased, and Bertha O. Garcia, Manuel Garcia, Jr., Berta G. McCann, and Malcom Scott Garcia, individually, Plaintiffs-Appellants, v. CITY OF JACKSON, a Michigan municipal corporation, Defendant-Appellee. (On Second Remand) 190 Mich.App. 197, 475 N.W.2d 851
• Court: Court of Appeal of Michigan — District of US

Page 851

475 N.W.2d 851

Manuel GARCIA, Sr., individually and as personal representative of the Estate of Javier Garcia, deceased, and Bertha O. Garcia, Manuel Garcia, Jr., Berta G. McCann, and Malcom Scott Garcia, individually, Plaintiffs-Appellants, v. CITY OF JACKSON, a Michigan municipal corporation,

Defendant-Appellee. (On Second Remand)

Docket No. 129602.

190 Mich.App. 197, 475 N.W.2d 851

Court of Appeals of Michigan.

Submitted June 5, 1990, at Lansing.

Decided July 8, 1991, at 9:30 a.m.

Application for Leave to Appeal Granted Sept. 13, 1991.

Released for Publication Oct. 28, 1991.

[190 MICHAPP 198] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Stewart H. Freeman and Michael C. McDaniel, Asst. Attys. Gen., for Atty. Gen.

Stanton, Bullen, Nelson, Moilanen & Klaasen, P.C. by Charles A. Nelson, Jackson, for defendant-appellee.

Before CYNAR, P.J., and MacKENZIE and WAHLS, JJ.

CYNAR, Presiding Judge.

Following a second remand from the Supreme Court, we again reverse the decision of the trial court.

[190 MICHAPP 199] Plaintiffs appealed as of right from an April 12, 1985, judgment of the trial court that granted the defendant's motion for summary disposition. The trial court determined that the amended complaint failed to set forth any intentional tort that would overcome governmental immunity.

The Court of Appeals in its opinion of June 2, 1986, reversed the decision of the trial court, determining that the plaintiffs did state a claim of intentional nuisance that avoided the defense of governmental immunity. Garcia v. City of Jackson, 152 Mich.App. 254, 393 N.W.2d 599 (1986). The Supreme Court, in lieu of granting leave to appeal, vacated the Court of Appeals judgment and remanded the case to the Court of Appeals for reconsideration in light of Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988). 430 Mich. 877, 423 N.W.2d 215 (1988).

Following the first remand by the Supreme Court, the Court of Appeals again reversed the decision of the trial court, finding that intentional nuisance had been pleaded and that Hadfield did not overrule the intentional nuisance exception to governmental immunity. Garcia v. City of Jackson (On Remand), 174 Mich.App. 373, 435 N.W.2d 796 (1989). Defendant again sought leave to appeal. The Supreme Court granted leave to appeal, limited to whether the defendant is governmentally immune from liability on the facts of the case. The Court also ordered the case to be argued with Li v. Feldt, reported as Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988). 432 Mich. 891, 437 N.W.2d 635 (1989).

On April 30, 1990, the Supreme Court, while deciding that the Court of Appeals improperly found an exception to governmental immunity on the basis of intentional nuisance, again reversed and remanded this case and Li to the Court of [190 MICHAPP 200] Appeals to consider the existence of nuisance per se and public nuisance as exceptions to governmental immunity and their applicability to this case and to Li, if and to the extent that the exceptions were properly raised in the Court of Appeals. Li v. Feldt (After Remand), and Garcia v. City of Jackson (After Remand), 434 Mich. 584, 456 N.W.2d 55 (1990).

Following the second remand, an additional brief was received in behalf of the defendant. Further, we received the Attorney General's amicus curiae brief. We again reverse the decision of the trial court.

This action arose out of the drowning of Javier Garcia in the Grand River near the Holton Dam, located in the City of Jackson. The dam was built in the 1880s and was modified to its present configuration in the mid-1930s. The modifications included a "box section." The box section is a five-by ten-foot submerged conduit through which water flows underground for two thousand feet. The mouth of the pipe was open and unguarded by any grating. Defendant acquired Holton Dam in 1956.

Before decedent's drowning, ten-year-old Noel Jeffrey Potter drowned while swimming in the vicinity of the dam when he was suddenly sucked into the pipe and dragged under water for two thousand feet. Within thirty days after the boy's death, 1,257 residents of Jackson signed a petition urging defendant to correct and improve the dam. Garcia drowned on February 26, 1983, in the same manner as the Potter boy, but about eighteen months later. On October 10, 1983, the City of Jackson began the actual physical improvement of the dam site to enhance its safety.

The complaint filed by the plaintiffs sounded in nuisance per se and nuisance in fact. Plaintiffs filed an amended complaint that contained one [190 MICHAPP 201] count of nuisance per se. A second amended complaint was filed. The form and substance of the second amended complaint was identical to the first amended complaint, except the caption of count I read "wilful wanton [sic] misconduct of the owner of the Holton Dam, City of Jackson" instead of "nuisance per se." Although the amended complaint did not contain the word "nuisance," the plaintiffs alleged that the defendant continued a dangerous condition, knowing the incidents of drowning were substantially certain to result from the condition.

Nuisance is a nuisance. Aside from case law opinions, past legal publications regarding nuisance lend sparse assistance in the disposition of this matter. Case law on the topic often leaves the legal practitioner, trial judge, or other reader with a feeling of being present on a ship without a rudder. Often much rereading and study of an appellate opinion is needed in trying to understand not only what is written but to determine the status of tort law applicable in the category of nuisance. When understanding is indecisive, uncertainty in handling follows.

Relying on Li v. Feldt (On...