Gerzeski v. State, s. 58322

• Decision Date: 24 July 1978
• Docket Number: Nos. 58322,58321,s. 58322
• Citation: 403 Mich. 149,268 N.W.2d 525
• Parties: Delores M. GERZESKI, Administratrix of the Estate of Lee Steve Gerzeski, Deceased, Plaintiff-Appellant, v. STATE of Michigan, State Highway Department and the State Highway Commission, all of the foregoing named defendants jointly and severally, Defendants- Appellees. Elaine FOUCHIA, Administratrix of the Estate of Harley Fouchia, Deceased and Goerge Fouchia, Deceased, Plaintiff-Appellant, v. STATE of Michigan, State Highway Department, and the State Highway Commission, all of the foregoing named defendants jointly and severally, Defendants- Appellees. 403 Mich. 149, 268 N.W.2d 525
• Court: Michigan Supreme Court

Page 525

268 N.W.2d 525

Delores M. GERZESKI, Administratrix of the Estate of Lee

Steve Gerzeski, Deceased, Plaintiff-Appellant, v. STATE of Michigan, State Highway Department and the State

Highway Commission, all of the foregoing named

defendants jointly and severally,

Defendants- Appellees.

Elaine FOUCHIA, Administratrix of the Estate of Harley

Fouchia, Deceased and Goerge Fouchia, Deceased, Plaintiff-Appellant, v. STATE of Michigan, State Highway Department, and the State

Highway Commission, all of the foregoing named

defendants jointly and severally,

Defendants- Appellees.

Nos. 58322, 58321.

403 Mich. 149, 268 N.W.2d 525

Supreme Court of Michigan.

July 24, 1978.

Cicinelli, Mossner, Majoros & Alexander, P.C. by Eugene D. Mossner, Saginaw, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Asst. Atty. Gen., Lansing, for defendants-appellees.

FITZGERALD, Justice (for reversal).

Justice Moody has aptly analyzed the semantic difficulties inherent in our nuisance case law. We agree with that analysis insofar as it explains the different methods of classifying nuisance for evidentiary and liability considerations. As an evidentiary question, whether or not the artificial pond in which the two children and the father of one of them drowned was a nuisance is a question of fact. The Court of Claims judge, sitting as trier of fact, determined that the pond was both an "attractive nuisance" and an "intentional nuisance" and awarded damages.

On the liability question, we disagree with Justice Moody's reading of Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970). We do read Buckeye for the proposition that governmental immunity is not a bar to a tort action sounding in nuisance. See my opinion in Rosario v. Lansing, 403 Mich. 127, 268 N.W.2d 230 [403 MICH 154] (1978). In our view, while the Court of Claims judge's determination that the conduct giving rise to the nuisance was intentional was accurate, that determination was not necessary for a finding of governmental liability.

We, too, would reverse the Court of Appeals and reinstate the Court of Claims judgment. No costs, a public question.

KAVANAGH, C. J., and LEVIN, J., concur.

MOODY, Justice.

The factual background of the present case centers on the Michigan Highway Department's purchase and use of a piece of property in Lincoln Township, Arenac County. The property was purchased so that soil could be "borrowed" from the area for use in the construction of a portion of highway I-75. As dirt is "borrowed" from an area a "borrow pit" is constructed. In this case, as the pit was constructed dirt was deliberately removed from the path of a pre-existing county drain, referred to as the "Bell drain", thereby permitting water to enter on the west side of the pit and exit on the east edge. The flow of the "Bell drain", a "flowing well" beneath the surface of the borrow pit, and the water level of the surrounding lake combined to fill the pit with water. This created a pond covering approximately 12 acres of land. After the highway construction was completed, the Highway Department trimmed the edge of the pond with topsoil and seeded the area. The result was an attractive recreational area.

On December 10, 1969, Harley Fouchia, age 12, and Lee Gerzeski, age 10, drowned in the pond after wandering out onto its apparently frozen surface and breaking through the ice near the point where the drain flowed into the pond. When Harley's mother noticed that the boys were missing, she sent her husband, George, to look for them. In a futile attempt to find and rescue the boys, George Fouchia broke through the ice and drowned. Wrongful death actions alleging attractive nuisance and gross negligence were brought on behalf of the decedents' estates against the Department of State Highways and the State Highway Commission in the Court of Claims. Defendants' motions for summary judgment on governmental immunity grounds were denied by the trial judge on the basis of a finding that suits based upon nuisance were judicially created exceptions to the governmental immunity doctrine.

The Court of Claims judge held that the facts of these cases supported the conclusion that this pond was both an "intentional nuisance" and an "attractive nuisance", and entered judgments in favor of the plaintiffs.

The Court of Appeals majority reversed, stating that the facts presented did not fall within either of two subclasses of nuisance which constitute an exception to governmental immunity, trespass-nuisance and nuisance per se. Thus, plaintiffs' causes of action were barred by the state's assertion of immunity from suit. 68 Mich.App. 91, 241 N.W.2d 771 (1976). We granted leave to appeal. 397 Mich. 832 (1976).

The issue before the Court involves two questions. The first question presented is whether the determination that a particular act or circumstance creates a nuisance should be treated as a question of law or a question of fact. The second question is what are the perimeters of the judicially created "nuisance" exception to governmental immunity from tort liability.

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'," Prosser, Torts (4th ed.), § 86, p. 571. Michigan nuisance case law, addressing the issue of governmental immunity and the judicially created exceptions to that immunity, supports this observation.

In the present case, the Court of Appeals majority found that only two types of nuisances, trespass-nuisance and nuisance per se, fall within the judicially created exception to governmental immunity. ¹ This holding was reached because of semantic confusion within our nuisance case law. The semantic puzzle results from a failure to define and clarify the pattern into which the following terms fit: nuisance per se, nuisance in fact or per accidens, intentional nuisance, and negligent nuisance.

The Michigan Supreme Court, in an effort to establish evidence guidelines for jury questions in nuisance cases, quoted the following encyclopedic language from 66 C.J.S. Nuisances § 3, pp. 733-734, in Bluemer v. Saginaw Central Gas & Oil Service, Inc., 356 Mich. 399, 411, 97 N.W.2d 90, 95 (1959):

"From the point of view of their nature, nuisances are sometimes classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property. The number of nuisances per se is necessarily limited, and by far the greater number of nuisances are nuisances per accidens. For this reason whether or not a particular thing or act is a nuisance is generally a question of fact * * * to be determined in the first instance before the term 'nuisance' can be applied to it.

"The difference between a nuisance per se and one in fact is not in the remedy but only in the proof of it. In the one case the wrong is established by proof of the mere act, and becomes a nuisance as a matter of law, in the other by proof of the act and its consequences."

Unfortunately, the bench and the bar have coupled the previously quoted language of Bluemer differentiating nuisance per se from nuisance in fact with the following language from Royston v. Charlotte, 278 Mich. 255, 260, 270 N.W. 288, 290 (1936):

"Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care."

By combining the Bluemer and Royston cases, courts have arrived at the erroneous all-encompassing conclusion that "nuisances in fact do not survive an otherwise proper claim of governmental immunity". Buddy v. Department of Natural Resources, 59 Mich.App. 598, 606, 229 N.W.2d 865, 870 [403 MICH 158] (1975). ² The Royston determination that a nuisance per se does not come within the immunity otherwise afforded governmental agencies, however, in no way mandates the opposite conclusion that all actions for nuisances in fact cannot survive a governmental immunity defense. Nevertheless, a combination of these two cases has resulted in the interpretation that only an action for nuisance per se survives an otherwise proper claim of governmental immunity.

This conclusion is erroneous for several reasons. First, there is confusion concerning the relationship between the various nuisance categories. To understand the erroneous interpretation reached by the Buddy Court, one must analyze the pattern into which the different nuisance categories fall. There are two general categories of nuisance, nuisance per se and nuisance in fact. Traditionally, the division between these categories was predicated on evidentiary considerations. Two subcategories, intentional nuisance and negligent nuisance, fall within the general nuisance in fact category.

The Court in Royston concerned itself with only two of the three recognized classes of nuisance where personal injury results, nuisance per se and negligent nuisance. Its consideration was limited to "want of care in maintenance". The decision did not address itself to a consideration of the intentional nuisance category. The Royston Court did not expand its determination by use of the term "nuisance in fact". Accordingly, there is no basis for the conclusion that all actions for nuisances in fact, including intentional nuisances, do not survive an otherwise proper claim of governmental immunity.

Furt...