Guinan v. Truscott
| Decision Date | 31 May 1988 |
| Docket Number | Docket No. 91108 |
| Citation | 423 N.W.2d 48,167 Mich.App. 520 |
| Parties | Lucy GUINAN, Personal Representative of the Estate of Kristy Kramer, Deceased, Plaintiff-Appellee, v. C.W. TRUSCOTT and St. Clair County Sheriff's Department, Jointly and Severally, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
James T. Miller, Romeo, for plaintiff-appellee.
Luce, Henderson, Bankson, Heyboer & Lane by Peter Shane Burleigh, Port Huron, for defendants-appellants.
Before WAHLS, P.J., and GILLIS and SIMON, * JJ.
Defendants, Deputy C.W. Truscott and the St. Clair County Sheriff's Department, appeal by leave granted from a January 13, 1986, order denying their motion for summary disposition as to plaintiff's intentional nuisance claim. We reverse.
Plaintiff, Lucy Guinan, commenced this action as the personal representative of the estate of her daughter, Kristy Kramer, who died as a result of an automobile accident on March 9, 1982. The three-count complaint, filed December 2, 1983, alleged that Kristy Kramer was in an automobile operated by Ronald Koths while he was visibly intoxicated. At about 9:50 a.m., the automobile was stopped by Deputy Truscott, who allegedly issued a citation to Koths for failure to have proof of registration, then released Koths. About one hour later, Koths drove the automobile across the center line of the highway and collided with another vehicle, causing Kristy Kramer's death.
In Count I of the complaint, plaintiff alleged negligence on the part of Deputy Truscott in not arresting Koths. In Count II, plaintiff alleged negligence on the part of the St. Clair County Sheriff's Department in training Deputy Truscott. In Count III, plaintiff alleged a failure on the part of both defendants to take affirmative steps to remedy a nuisance created by Koths' operation of a motor vehicle while intoxicated.
On July 25, 1984, defendants moved for summary judgment, now summary disposition, on all counts under GCR 1963, 117.2(1), now MCR 2.116(C)(8), based on the governmental immunity act, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq. In support of the motion, defendants also asserted that they owed no duty to plaintiff to arrest Koths, that duty being owed to the public generally and not to any particular individual.
On January 13, 1986, the trial court entered an order granting summary disposition in favor of defendants as to Counts I and II, but denying summary disposition as to Count III. Summary disposition was denied on Count III on the basis of the court's ruling that a nuisance is a judicially created exception to governmental immunity from tort liability and that plaintiff properly had pled an intentional nuisance claim.
On appeal, defendants raise two grounds for their claim that the trial court erred in not granting summary disposition as to Count III, and one additional reason for reversal which was not presented to the trial court.
A motion for summary disposition based on the failure to state a claim tests the legal basis of the complaint, not whether it can be factually supported. Jones v. Employer's Ins of Wausau, 157 Mich.App. 345, 349, 403 N.W.2d 130 (1987), lv. den. 428 Mich 899 (1987). The court must accept as true all well-pled facts and determine whether the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a recovery. Beauchamp v. Dow Chemical Co., 427 Mich. 1, 5-6, 398 N.W.2d 882 (1986).
Defendants first argue that plaintiff failed to state a claim for intentional nuisance because they are entitled to governmental immunity under Ross v. Consumers Power Co (On Reh), 420 Mich. 567, 363 N.W.2d 641 (1984). Because a plaintiff need not plead facts in avoidance of immunity in his or her complaint to maintain an action against a governmental employee, as distinguished from a governmental entity, we shall consider this issue only as it pertains to the defendant St. Clair Sheriff's Department. Hoffman v. Genesee County, 157 Mich.App. 1, 403 N.W.2d 485 (1987), lv. den. 428 Mich 902 (1987).
Under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), governmental agencies are immune from tort liability when engaged in governmental functions. "Governmental function" was broadly defined in Ross, supra, p. 620, 363 N.W.2d 641, as "an activity which is expressly mandated or authorized by constitution, statute or other law." 1 Although defendant argues that Ross abolished the common law nuisance exception to governmental immunity, we note that the Ross Court expressly declined to determine whether this exception remains viable. Id., 610-611, n 27, 363 N.W.2d 641. The decisions of this Court following Ross, however, have repeatedly held that governmental immunity does not bar a claim for intentional nuisance. Chapin v. Coloma Twp, 163 Mich.App. 614, 415 N.W.2d 221 (1987); Li v. Wong, 162 Mich.App. 767, 773, 413 N.W.2d 493 (1987); Guilbault v. Dep't of Mental Health, 160 Mich.App. 781, 408 N.W.2d 558 (1987); and see Velmer v. Baraga Area Schools, 157 Mich.App. 489; 403 N.W.2d 171 (1987), lv. gtd. on other grounds 428 Mich. 910, 409 N.W.2d 199 (1987). While we question the continued viability of these decisions in light of our Supreme Court's recent holding in Smith v. Dep't of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987), that there is no "intentional tort" exception to governmental immunity 2, we need not decide this issue for purposes of this case, since it is clear that the second ground relied on by defendants in claiming error demonstrates that plaintiff failed to state a claim for intentional nuisance.
Defendants argue that plaintiff failed to plead sufficient facts to support a cause of action for intentional nuisance. We agree. "Too often, 'nuisance' terminology is used to mask what are, in fact, simple negligence claims for the purpose of avoiding some effects of calling it what it is, a negligence claim." Schroeder v. Canton Twp, 145 Mich.App. 439, 441, 377 N.W.2d 822 (1985).
Count III of plaintiff's complaint is based on the nuisance category known as a nuisance in fact. Martin v. Michigan, 129 Mich.App. 100, 108, 341 N.W.2d 239 (1983), lv. den. 422 Mich. 891 (1985). A nuisance in fact is actionable by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact if its natural tendency is to create danger and inflict injury to persons or property. Id. The nuisance in fact is intentional if the creator intends to bring about the conditions which are in fact found to be a nuisance. Rosario v. Lansing, 403 Mich. 124, 142, 268 N.W.2d 230 (1978) (Moody, J., concurring); Denny v. Garavaglia, 333 Mich. 317; 52 N.W.2d 521 (1952). 3
Here, plaintiff alleged that the operation of a motor vehicle by Koths while visibly intoxicated constituted a nuisance. Plaintiff also alleged that Deputy Truscott could be linked to this nuisance by his failure to take remedial action to prevent Koths from driving the vehicle while intoxicated and further attempted to link the sheriff's department to this nuisance by imputing Deputy Truscott's notice of Koths' intoxication to it. 4
A conflict presently exists in this Court on the question whether the omission to act can be the basis of an intentional nuisance action. See Chapin, supra, p 619, 415 N.W.2d 221, and the cases cited therein. However, notwithstanding whether the "act" of omission may be actionable, this does not obviate the need to establish intent on the part of defendant. The allegations contained in Count III of plaintiff's complaint, even when accepted as true, fail to plead sufficient facts of an intent on the part of either defendant or, in other words, that defendants knew or must have known that injury was substantially certain to result if Koths was permitted to drive the vehicle. Although Count III does contain the word "purposely," when viewed in context, it fails to plead the type of deliberate conduct that gives rise to an intentional nuisance claim. Instead, Count III sounds directly in negligence, referring to Deputy Truscott's duty to monitor traffic violations and enforce criminal laws, to his alleged breach of duty by failing to take remedial action, and to the "negligence" of the defendants in causing Kristy Kramer's death. Even when construed liberally, plaintiff's complaint merely alleges the negligent performance of a decisional act. Since plaintiff has not pled sufficient facts of an intentional nuisance, we conclude that the trial court erred in denying defendants' motion for...
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