Li v. Wong

• Decision Date: 29 August 1988
• Docket Number: Docket No. 109337
• Citation: 428 N.W.2d 36,170 Mich.App. 256
• Parties: Chen LI, Plaintiff-Appellant, v. Chu-Fen WONG, Chou Yu-Feng Wong, and Becky Jane Belknap, Defendants, and Kenneth Feldt, individually and as operations engineer of the City of Ann Arbor, John Robbins, individually and as director of transportation of the City of Ann Arbor, and the City of Ann Arbor, jointly and severally, Defendants- Appellees. (ON REMAND)
• Court: Court of Appeal of Michigan — District of US

Page 36

428 N.W.2d 36

170 Mich.App. 256

Chen LI, Plaintiff-Appellant, v. Chu-Fen WONG, Chou Yu-Feng Wong, and Becky Jane Belknap, Defendants and Kenneth Feldt, individually and as operations engineer of the City of Ann Arbor, John Robbins, individually and as director of transportation of the City of Ann Arbor, and the City of Ann Arbor, jointly and severally, Defendants- Appellees. (ON REMAND)

Docket No. 109337.

Court of Appeals of Michigan.

Submitted June 9, 1988.

Decided July 19, 1988.

Released for Publication Aug. 29, 1988.

Pauline R. Rothmeyer, Ann Arbor, for plaintiff-appellant.

Ronald J. Plunkett, Ann Arbor, for City of Ann Arbor, Kenneth Feldt and John Robbins.

Before SAWYER, P.J., and BEASLEY and SULLIVAN, JJ.

SAWYER, Presiding Judge.

This Court originally reversed the trial court's grant of summary disposition in favor of defendants on plaintiff's claim of intentional nuisance. Li v. Wong, 162 Mich.App. 767, 413 N.W.2d 493 (1987). This matter is once again before us, the Supreme Court vacating our prior opinion and remanding "for reconsideration in light of Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139 (1988)." 430 Mich. 881, 423 N.W.2d 910 (1988).

The essential question in this case is whether the intentional nuisance exception to governmental immunity survived the Supreme Court's decision in Hadfield, supra. While the three-justice plurality led by Justice Brickley clearly holds that there is no intentional nuisance exception to governmental immunity, ¹ we do not believe that the opinions of the concurring justices can be read as providing the crucial fourth vote to overrule prior precedent which recognizes the intentional nuisance exception.

Turning first to Justice Boyle's concurring opinion, there are a number of points which suggest that Justice Boyle was not willing in Hadfield to overrule the intentional nuisance exception to governmental immunity. In her opening paragraph, Justice Boyle notes that "it is unnecessary to conclude that the common-law nuisance exception includes only those theories expressly necessary to a prior Michigan decision." Id. at 205, 422 N.W.2d 205. Justice Boyle goes on to note that the plurality would limit any private remedy for a public nuisance "to that which is sought for an invasion which is directly analogous to trespass nuisance." Id. The justice specifically disagreed that the common law required such a limitation. Id. Finally, in the last two paragraphs of her decision, Justice Boyle explains why she agrees with the result reached by the plurality. In particular, she explains that she agrees with the result reached by the plurality in the companion case of Veeneman v. Michigan, noting that that case "must be reversed as far as it recognizes an intentional nuisance exception to governmental immunity on the basis of the facts of the case." Id. at 209, 422 N.W.2d 205 (emphasis added). She goes on to concur with the result reached by the plurality in the companion case of Landry v. Detroit for the same reasons.

It is important to note that Justice Boyle agreed with the plurality that our Court's decisions in those two cases needed to be reversed, but did so on the basis that the intentional nuisance exception was not applicable on the facts of those cases and not that intentional nuisance was not an exception to governmental immunity. In sum, in light of Justice Boyle's comments that the plurality's decision was overbroad and that her result in Veeneman and Landry was restricted to the facts of those cases, we conclude that Justice Boyle's opinion in Hadfield cannot be read as voting to overrule prior precedent and abolish the intentional nuisance exception to governmental immunity.

Turning to Justice Levin's opinion, the justice agreed with Justice Boyle that the nuisance claims in Veeneman and Landry could not be maintained on the basis of the facts of those cases. Id. at 209-210, 422 N.W.2d 205. Because the actions could not be maintained on the facts in those cases, Justice Levin went on, id. at 210, 422 N.W.2d 205, to opine that it was unnecessary to consider the correctness of prior precedent which addressed the intentional nuisance exception:

Because a majority of the Court agrees that nuisance actions cannot be maintained in Veeneman and Landry, disposition of the instant cases does not require that we decide whether this Court erred in holding that an action for nuisance may be maintained on the facts of Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v. Dep't of State Hwys, 403 Mich 149; 268 NW2d 525 (1978). ⁴

Justice Levin then went on to factually distinguish Veeneman and Landry from the prior Supreme Court decisions in Rosario, supra, and Gerzeski, supra. In light of his analysis, we believe that Justice Levin's opinion indicates that he was not voting to overrule the prior precedent, particularly Rosario and Gerzeski, and, therefore, his opinion cannot be viewed as providing the crucial fourth vote to abolish the previously recognized intentional nuisance exception to governmental immunity.

The final opinion to be considered is that of Justice Archer, who concurred in part and dissented in part. That opinion clearly indicates that Justice Archer believes that intentional nuisance should remain an exception to governmental immunity, stating that he "would hold that trespass, nuisance, and intentional nuisance, as well as nuisance per se, are exceptions to governmental immunity." Hadfield, supra at 213, 422 N.W.2d 205.

We finally note that Justice Griffin took no part in the decision. Id. at 216, 422 N.W.2d 205.

In light of the opinions of the various justices, we...