Hadfield v. Oakland County Drain Com'r

• Decision Date: 17 May 1988
• Docket Number: Docket Nos. 75494,76815,77011 and 78233
• Citation: 422 N.W.2d 205,430 Mich. 139
• Parties: Glen Ray HADFIELD and Jane P. Hadfield, his wife, d/b/a Hadfield Sod Farm, Plaintiffs-Appellants and Cross-Appellees, v. OAKLAND COUNTY DRAIN COMMISSIONER, a statutory agency, Big Meadows Drain, a public corporation, and Paint Creek Drain, a public corporation, jointly and severally, Defendants-Appellees and Cross-Appellants. Howard VEENEMAN, Personal Representative of the estate of Jay Veeneman, deceased, Plaintiff-Appellee, v. STATE of Michigan, Defendant-Appellant. Brenda LANDRY and Emmett Landry, husband and wife, Plaintiffs-Appellees, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant, and Detroit Wayne Joint Building Authority, jointly and severally, Defendant. Burton E. McCAUL and Doris R. McCaul, Plaintiffs-Appellees, v. VILLAGE OF LAKE ODESSA, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 205

422 N.W.2d 205

430 Mich. 139

Glen Ray HADFIELD and Jane P. Hadfield, his wife, d/b/a

Hadfield Sod Farm, Plaintiffs-Appellants and Cross-Appellees, v. OAKLAND COUNTY DRAIN COMMISSIONER, a statutory agency, Big

Meadows Drain, a public corporation, and Paint Creek Drain,

a public corporation, jointly and severally,

Defendants-Appellees and Cross-Appellants.

Howard VEENEMAN, Personal Representative of the estate of Jay Veeneman, deceased, Plaintiff-Appellee, v. STATE of Michigan, Defendant-Appellant.

Brenda LANDRY and Emmett Landry, husband and wife, Plaintiffs-Appellees, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellant, and Detroit Wayne Joint Building Authority, jointly and severally, Defendant.

Burton E. McCAUL and Doris R. McCaul, Plaintiffs-Appellees, v. VILLAGE OF LAKE ODESSA, Defendant-Appellant.

Docket Nos. 75494, 76815, 77011 and 78233.

Supreme Court of Michigan.

Argued Nov. 14, 1986.

Decided March 29, 1988.

Rehearing Denied May 17, 1988.

Gualtieri & Hyde P.C. by Roger Q. Hyde, Warren, Turner and Turner P.C. by Don Turner, Southfield, for Hadfields.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton, William P. Hampton, Lanie Anderson, Farmington Hills, for Oakland County Drain Com'r, Big Meadows Drain and Paint Creek Drain.

Randall L. Velzen, Grand Rapids, for Veeneman.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., A. Michael Leffler, Clive D. Gemmill, Asst. Attys. Gen., Lansing, for State.

Stanton, Bullen, Nelson, Moilanen & Klaasen, P.C. by Charles A. Nelson, Jackson, amicus curiae City of Jackson.

Paul D. Sherr, P.C. by Paul D. Sherr, Birmingham, for Landrys.

City of Detroit Law Dept. by Donald Pailen, P34444 Corp. Counsel and William L. Woodard, Dennis A. Mazurek, Asst. Corp. Counsels, Detroit, for City of Detroit.

Marjory B. Cohen, Mogill, Posner, Cohen & Weiss, Detroit, amicus curiae of Michigan Trial Lawyers Assn.

Rhoades, McKee & Boer by Michael W. Betz, Grand Rapids, for McCauls.

Foster, Swift, Collins & Coey, P.C. by James D. Adkins, T. Neil Bemenderfer, Lansing, for Village of Lake Odessa.

BRICKLEY, Justice.

These four consolidated cases present the issue whether a nuisance exception to governmental immunity remains viable after this Court's decision in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), and, if so, in what form. Consideration of this question necessitates review of two pre-Ross decisions in which this Court was divided over the proper scope of the nuisance exception. See Rosario v. City of Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978); Gerzeski v Dep't of State Hwys, 403 Mich. 149, 268 N.W.2d 525 (1978). There are also three minor issues that are resolved in the context of their respective cases.

In response to the primary question, we hold that there is a limited trespass-nuisance exception to governmental immunity. The trespass-nuisance exception has a long history in Michigan jurisprudence, it has a strong policy basis in the Michigan Constitution, and its continuing viability comports well with the language of the governmental tort liability act and the Ross decision.

Trespass-nuisance shall be defined as a direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity. Damages may be awarded for injury to person or property.

Employing the same historical standard, we reject other versions of the nuisance exception that are unsupported in the relevant case law. Having found some historical evidence of a per se nuisance exception and of a limited public nuisance exception, we leave for another day the question whether such exceptions are sufficiently supported by precedent so as to exist independent of trespass-nuisance and, if so, the issue of their proper scope.

I

The threshold question presented here is whether, in light of the governmental tort liability act and Ross, any common-law tort-based exception to governmental immunity may be recognized. We conclude that a reaffirmation of the historic trespass-nuisance exception is not only permitted, but required, by the language of Sec. 7 of the act.

Section 7 of the governmental tort liability act provides:

"Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed." M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107).

Tort liability may arise out of the performance of a proprietary, as opposed to a governmental, function. See M.C.L. Sec. 691.1413; M.S.A. Sec. 3.996(113). In addition, the statutory exceptions of Sec. 7 impose liability for: the failure to maintain highways in reasonable repair, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102); the negligent operation of a government-owned motor vehicle by a government officer, agent, or employee, M.C.L. Sec. 691.1405; M.S.A. Sec. 3.996(105); and the failure to repair and maintain public buildings under government control. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). In Ross, supra, 420 Mich. p. 618, 363 N.W.2d 641, we characterized Sec. 7 as a "broad grant of immunity" with "four narrowly drawn statutory exceptions."

Defendants-appellants in Veeneman v. Michigan and McCaul v. Village of Lake Odessa, and defendants-appellees in Hadfield v. Oakland Co. Drain Comm'r argue against any judicially created exceptions, and would have us interpret Sec. 7 so as to confine liability to the specifically enumerated statutory exceptions. We reject this narrow interpretation because it fails to recognize the second sentence of Sec. 7. "[T]his act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed." ¹

Taken alone, the first sentence of Sec. 7 does support a narrow interpretation of the act, to preclude recognition of any nuisance exception. The Legislature's use of the word "tort" to describe the liability from which governmental agencies are to be held immune exemplifies the breadth of the intended immunity. ² There is no doubt that nuisance is a tort and that liability for nuisance would be within the scope of statutory governmental immunity as expressed in the first sentence of Sec. 7.

However, the second sentence of Sec. 7 retains preexisting governmental immunity law except where provided otherwise in the act. In Thomas v. Dep't of State Hwys., 398 Mich. 1, 11, 247 N.W.2d 530 (1976), we interpreted the second sentence, noting, "[o]bviously this language must be construed as an 'affirmation' of case-law precedent on the subject of the state's immunity." More specifically, we note Justice Ryan's observations in his dissenting opinion in Rosario, supra, 403 Mich. p. 146, 268 N.W.2d 230:

"[I]n order to determine the scope of the now codified immunity, we must determine the scope of its antecedent 'existing immunity.' Since the common-law or 'existing immunity' doctrine included certain judicially created exceptions which defined its limits, the legislatively codified immunity is limited and defined by the same exceptions. One of these exceptions is here in issue: the doctrine of 'nuisance.' " ³

Commentators have also found in the second sentence of Sec. 7 a legislative intent to preserve the nuisance exception that had been recognized at common law.

"The Michigan court has recognized this head of liability from the very beginning. It seemed so obvious to the nineteenth-century court that it was practically taken for granted, and it antedates the governmental-function defense by decades. It reflects one of the strongest claims for relief that can be asserted.... There is nothing in their public expressions to indicate that those who drafted the statute had any such change in mind; indeed, one of them summed the statute up in these terms: 'The net effect of Act 170, 1964, is to largely return to municipal corporations the position they enjoyed prior to the decision of the Williams [v Detroit, 364 Mich 231; 111 NW2d 1 (1961) (abrogating governmental immunity for municipalities) ] case.' This is surely a situation where the legislature should be expected to express an intent to make an important change in the law in words incapable of being misunderstood, rather than relying upon implication. On this basis the sentence can justifiably be construed to avoid the consequence that the words, in the abstract, seem to suggest. The term governmental function has no clear and indisputable core of meaning. It is a term of art, definable only by reference to the instances to which it has been applied. It has never been applied by the Michigan court to protect any governmental agency against liability in a situation recognized to be within the nuisance-trespass category. This sentence, I submit, should be seen as a restoration of the governmental-function defense as it existed in the case law, alongside the nuisance-trespass head of liability." Cooperrider, The court, the legislature, and governmental tort liability in Michigan, 72 Mich.L.R. 187, 279-280 (1973).

See also DeMars, Intentional nuisance in fact: Should it be a bar to a governmental function defense in Michigan?, 1981 Det.C.L.R. 771, 790.

We agree with these authorities on this point and with Justice Ryan's interpretation of Sec. 7. While the defendants' arguments, advocating recognition of only statutory exceptions, are temptingly simple and straightforward, they negate or ignore the second half of the legislative mandate of Sec. 7. That section requires a continuation of the nuisance exception as formulated prior to the enactment of the governmental immunity act in 1964...