Garcia v. City of Jackson, Docket No. 84513

• Decision Date: 08 October 1986
• Docket Number: Docket No. 84513
• Citation: 393 N.W.2d 599,152 Mich.App. 254
• 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.
• Court: Court of Appeal of Michigan — District of US

Page 599

393 N.W.2d 599

152 Mich.App. 254

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.

Docket No. 84513.

Court of Appeals of Michigan.

Submitted January 22, 1986.

Decided June 2, 1986.

Released for Publication Oct. 8, 1986.

Jan Paul Benedict and Mark L. Light, Lansing, for plaintiffs-appellants.

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

Before BRONSON, P.J., and R.B. BURNS and KAUFMAN ^*, JJ.

R.B. BURNS, Judge.

This action arises 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 1800s and was modified to its present configuration in the mid-1930s. The modifications included a "box section". The box section is a 5 X 10 foot submerged conduit through which water flows underground for 2,000 feet. The mouth of the pipe is open and unguarded by any grating. Defendant acquired Holton Dam in 1956.

Prior to decedent's drowning, Noel Jeffrey Potter drowned while swimming in the vicinity of the dam when he was sucked into the pipe and dragged under water for 2,000 feet. Shortly after the boy's death, 1,257 residents of Jackson signed a petition urging defendant to correct and improve the dam. Garcia drowned in the same manner as Potter approximately 18 months later.

Plaintiffs filed a complaint sounding in nuisance per se and nuisance in fact. Subsequently, defendant moved for summary judgment, asserting that plaintiffs failed to state a claim upon which relief can be granted, GCR 1963, 117.2(1), now MCR 2.116(C)(8), alleging that the recreational use statute (RUS), M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, barred the nuisance claims. The trial court granted defendant's motion, but also granted plaintiffs leave to amend their complaint. Plaintiffs filed an amended complaint which contained one count of nuisance per se. Defendant again moved for summary judgment, contending that the action was still barred by the RUS. The disposition of defendant's second motion is not contained in the lower court record. A hearing on the motion was scheduled, but plaintiffs filed another amended complaint. The form and substance of the second amended complaint is identical to that of the first amended complaint, except that the caption of Count I reads "Wilful Wanton [sic] Misconduct of the Owner of Holton Dam, City of Jackson" instead of "Nuisance per se". The sufficiency of the second amended complaint is the subject of the present dispute.

Defendant once again moved for summary judgment on the ground that no material issue of fact existed and it was entitled to judgment as a matter of law, pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10). The trial court found that defendant mislabeled its motion and treated it as a motion seeking pretrial disposition based on governmental immunity and proceeded under GCR 1963, 117.2(1), now MCR 2.116(C)(8). The trial court ruled that plaintiffs failed to support a claim of intentional tort to overcome the defense of governmental immunity. The court also concluded that the dam did not fall within the "public building" exception to governmental immunity. Plaintiffs appeal the finding of failure to plead an intentional nuisance.

We first consider whether intentional nuisance claims are subject to a governmental immunity defense. 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), a majority of the justices concluded that claims of nuisance per se and intentional nuisance in fact are not barred by governmental immunity. However, there remains some question as to whether this remains true following the Court's decision in Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). We agree with this Court's statement in Veeneman v. Michigan, 143 Mich.App. 694, 700, 373 NW2d 193 (1985):

"The Supreme Court in Ross, supra, did not expressly consider whether a claim of intentional nuisance continues as a common law exception to governmental immunity. However, in Disappearing Lakes Ass'n, supra, one of the cases decided along with Ross, the plaintiffs alleged, inter alia, that the DNR 'negligently and/or intentionally created a nuisance' by issuing a permit for dredging certain canals. The Court of Appeals found that the plaintiffs had not pled a valid claim of nuisance because the issuance of dredging permits alone was not sufficient indication that the DNR actually controlled the project which created the nuisance. The Supreme Court affirmed, finding that '[t]he Court of Appeals conclusion that plaintiffs had insufficiently pleaded a nuisance cause of action is not clearly erroneous'. Ross, supra, p 657. We can only infer from this statement that the Court intended to retain the common law intentional nuisance exception recognized in Rosario and Gerzeski. See Landry v. Detroit, 143 Mich App 16; 371 NW2d 466 (1985)."

We now turn our attention to the question of what a plaintiff must show to establish an intentional nuisance. Justice Moody's opinion in Rosario, supra, p. 142, 268 N.W.2d 230, set forth the following definition:

"In order to find an intentional nuisance, the trier of fact must decide based upon the evidence presented that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance. This finding comports with the definition of intentional nuisance set forth in Denny v. Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952):

" 'A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.' "

Justice Moody again quoted from Denny in his opinion in Gerzeski. Gerzeski, supra, 403 Mich., pp. 161-162, 268 N.W.2d 230. A plaintiff must show that (1) the condition is a nuisance and (2) the government intended to create the condition. ¹

Defendant also argues that the intentional nuisance exception to governmental immunity does not apply in this case since an intentional nuisance requires an affirmative act and defendant, at most, only failed to act to correct a danger. For support, defendant relies on Furness v. Public Service Comm, 100 Mich.App. 365, 299 N.W.2d 35 (1980). The Furness Court held:

"The gravamen of these allegations is that defendants were negligent in failing to correct a known danger (nuisance). This alleged conduct is omissive rather than commissive and would therefore fall within the category of a negligent nuisance. As such it remains protected from suit by governmental immunity." 100 Mich.App. 370, 299 N.W.2d 35.

A conflict exists within this Court on this issue. In Landry v. Detroit, 143 Mich.App. 16, 25, 371 N.W.2d 466 (1985), a panel of this Court concluded that an omission to act can constitute an intentionally created nuisance:

"We cannot conclude that plaintiffs' claim for an intentionally created nuisance in fact is so unenforceable as a matter of law that no factual development could possibly justify recovery. Plaintiffs' allegation, that defendants refused to take necessary safety measures, pleads a deliberate act by the governmental agency to create the condition. Rosario, [403 Mich.] p 143 [268 N.W.2d 230]."

Like the Landry Court, we also look to Justice Moody's opinion in Rosario for guidance. After quoting from the complaint, Justice Moody stated:

"The terms 'neglected' and 'failed' allege negligent activity. However, liberally construed, the [complaint] pleads more than negligence on the part of the City of Lansing. The word 'refused' denotes more than a 'want of care in maintenance' or neglect. In this context, 'refused' describes an alleged deliberate act by the governmental agency to create the complained-of condition." Rosario, supra, p. 143, 268 N.W. 230 (footnotes omitted).

We agree with Landry that an omission to act can constitute an intentionally created nuisance.

We now consider the propriety of granting summary judgment under GCR 1963, 117.2(1). In scrutinizing the legal basis of the pleadings, a court must take the factual allegations and reasonable inferences therefrom as true. Martin v. Michigan, 129 Mich.App. 100, 341 N.W.2d 239 (1983). If no factual development can support the claims, summary disposition is proper. Id.

Plaintiffs claim that defendant intentionally created and maintained a structure that presented a danger to the public. The complaint further alleges that defendant knew of the specific danger, since the Potter boy drowned in the vicinity of the box section and members of the public petitioned defendant to improve the dam. Plaintiffs cite several omissions on the part of defendant, including the failure to erect a grating over the conduit's opening, provide proper warnings, and implement safety regulations. Although the amended complaint does not contain the word "nuisance", and may not represent perfection in drafting, the elements of intentional nuisance are alleged.

Accordingly, we conclude that plaintiffs state a claim which evades the defense of governmental immunity.

We now consider the question of whether the recreational use statute (RUS) prevents a cause of action for intentional nuisance under the facts of this case. That statute provides:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without...