Li v. Feldt
| Decision Date | 01 November 1991 |
| Docket Number | 92057,Docket Nos. 91079,Nos. 1,2,s. 1 |
| Citation | 487 N.W.2d 127,439 Mich. 457 |
| Parties | Chen LI, Plaintiff-Appellee, v. Kenneth FELDT, individually and as an agent of the City of Ann Arbor, John Robbins, individually and as an agent of the City of Ann Arbor, and The City of Ann Arbor, jointly and severally, Defendants-Appellants, and Chu-Fen Wong, Chou Yu-Feng Wong, and Becky Jane Belknap, Defendants. (After Second Remand) Manuel GARCIA Sr., Personal Representative for the Estate of Javier Garcia, Deceased, Manuel Garcia Sr., Bertha O. Garcia, Manuel Garcia Jr., Berta C. McCann, and Malcolm Scott Garcia, Individually, Plaintiffs-Appellees, v. CITY OF JACKSON, Defendant-Appellant. (After Second Remand) Calendar, |
| Court | Michigan Supreme Court |
We revisit in these cases the issue of the existence and scope of exceptions to governmental immunity from tort liability under M.C.L. Sec. 691.1407(1); M.S.A. Sec. 3.996(107)(1). We hold that there is no public nuisance exception to governmental immunity, and that, to whatever extent a nuisance per se exception may exist, it is not implicated by the facts of either case before us.
Plaintiff Chen Li was injured in an automobile collision on May 5, 1983, which was allegedly caused, in part, by an improperly timed traffic light operated by the City of Ann Arbor. The defendants before us in Li are the city and two of its employees, Kenneth Feldt and John Robbins. Li filed suit on March 11, 1986, and the trial court initially granted summary disposition for the defendants. 1 The Court of Appeals initially reversed in part and remanded for further proceedings regarding Li's claim of intentional nuisance. 162 Mich.App. 767, 413 N.W.2d 493 (1987). This Court vacated and remanded in light of Hadfield v. Oakland Co. Drain Comm'r., 430 Mich. 139, 422 N.W.2d 205 (1988), in which a majority of this Court held that Sec. 7(1) mandates an historical approach to determining the existence of exceptions to governmental immunity. 430 Mich. 882, 423 N.W.2d 910 (1988).
On remand, the Court of Appeals found that there was an historically recognized intentional nuisance exception to governmental immunity, and again reversed the trial court's summary disposition. 170 Mich.App. 256, 428 N.W.2d 36 (1988). This Court granted leave to appeal, 432 Mich. 891, 441 N.W.2d 774 (1989), and reversed, reaffirming Hadfield's historical approach and finding that there is no intentional nuisance exception to governmental immunity. 434 Mich. 584, 456 N.W.2d 55 (1990). This Court again remanded the case to the Court of Appeals, to determine whether a public nuisance or nuisance per se exception to governmental immunity existed, and whether either exception applied to the facts presented, "if, and to the extent that, [such issues] were properly raised before the Court of Appeals." Id. at 596, 456 N.W.2d 55.
On second remand, the Court of Appeals held that the relevant issues had been adequately raised and preserved in that Court, that both public nuisance and nuisance per se were historically recognized exceptions to governmental immunity, that Li had stated a claim of public nuisance on the facts presented, and that Li's claim of nuisance per se was sufficiently colorable on the facts presented to warrant further consideration by the trial court. 187 Mich.App. 475, 492, 468 N.W.2d 268 (1991). The Court of Appeals therefore reversed again the trial court's summary disposition. We granted leave to appeal, 437 Mich. 1006 (1991), and, for reasons set forth below, we now reverse again the judgment of the Court of Appeals.
Plaintiffs' decedent Javier Garcia, a young boy, drowned on February 26, 1983, after he went swimming in the holding pond behind the Holton Dam in Jackson. The pond was connected to the Grand River by a 2,000-foot-long, five- by ten-foot, underground conduit, the mouth of which was not guarded by a grating. Garcia was sucked into the conduit and dragged through it into the Grand River, where his body was later found. Another young boy had drowned in a similar manner at the Holton Dam in 1981, producing a public outcry. At the time Garcia drowned, signs had been placed around the pond warning against swimming; indeed, Garcia's friend who accompanied him on that tragic day warned him against swimming in the pond. It was not until October 10, 1983, however, nearly eight months after Garcia's death, that the City of Jackson began making physical improvements at the dam site to enhance its safety.
Garcia's father, on his own behalf and as the personal representative of his son's estate, and others, filed suit against the city on June 23, 1983. 2 Garcia's first complaint alleged nuisance per se and nuisance in fact, an amended complaint alleged only nuisance per se, and a second amended complaint alleged only wilful and wanton misconduct. The substance of the allegations remained, however, that the city had maintained the Holton Dam in a dangerous condition, when it knew or should have known that drownings were likely to result. The trial court initially granted summary disposition for the city. The Court of Appeals reversed and remanded, holding that Garcia had stated a claim of intentional nuisance and that intentional nuisance constituted an exception to governmental immunity. 152 Mich.App. 254, 393 N.W.2d 599 (1986). This Court, just as in Li, vacated and remanded in light of Hadfield, supra. 430 Mich. 877, 423 N.W.2d 215 (1988).
On remand, the Court of Appeals, one judge dissenting, again reversed the trial court's summary disposition, finding its earlier decision unaffected by Hadfield. 174 Mich.App. 373, 435 N.W.2d 796 (1989). This Court granted leave to appeal, 432 Mich. 891, 437 N.W.2d 635 (1989), and, deciding the case together with Li, reversed, holding that intentional nuisance was not an historically recognized exception to governmental immunity. 434 Mich. 584, 456 N.W.2d 55 (1990). This Court, just as in Li, remanded the case to the Court of Appeals to determine whether a public nuisance or nuisance per se exception to governmental immunity existed, and whether either exception applied to the facts presented, "if, and to the extent that, [such issues] were properly raised before the Court of Appeals." Id. at 596, 456 N.W.2d 55.
On second remand, the Court of Appeals, again over a dissent, held that the relevant issues had been adequately raised and preserved in that Court, that public nuisance and nuisance per se were historically recognized exceptions to governmental immunity, that "the factual allegations in this case can support the claim of nuisance per se or public nuisance sufficiently to avoid a grant of summary disposition for the defendant," that Garcia should be afforded an opportunity on remand to amend his pleadings to more clearly state the law and facts relied upon, and that the trial court should then determine whether Garcia had adequately pleaded a claim of public nuisance or nuisance per se. 190 Mich.App. 197, 201-202, 475 N.W.2d 851 (1991). The Court of Appeals therefore reversed again the trial court's summary disposition. We granted leave to appeal and ordered the case considered together with Li, 438 Mich. 863, 476 N.W.2d 630 (1991), and, for reasons set forth below, we now reverse again the judgment of the Court of Appeals.
It has become almost de rigueur to begin a discussion of nuisance, as did the Court of Appeals in Li (On Second Remand ), 187 Mich.App. at 480, 468 N.W.2d 268, by quoting Justice Talbot Smith's typically apt description of it as "the great grab bag, the dust bin, of the law." Awad v. McColgan, 357 Mich. 386, 389, 98 N.W.2d 571 (1959). The Court of Appeals in Li (On Second Remand ) also noted Prosser and Keeton's descriptions of nuisance as an "impenetrable jungle" and "all things to all people," 187 Mich.App. at 480, 468 N.W.2d 268, quoting Prosser & Keeton, Torts (5th ed), Sec. 86, p. 616, while adding its own apt metaphor that "[w]hile nuisance may be an impenetrable jungle, the issue of exceptions to governmental immunity for nuisance per se and public nuisance is more akin to an arid wasteland, with few landmarks to be found." Id. While we sympathize with these metaphors, we think the Court of Appeals overlooked the implications of the latter. The very aridity of the historical case law in this area actually makes it easier to apply the governing historical test for exceptions to governmental immunity.
M.C.L. Sec. 691.1407(1); M.S.A. Sec. 3.996(107)(1) provides:
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