McCracken v. Redford Tp. Water Dept.

• Decision Date: 18 May 1989
• Docket Number: Docket No. 103032
• Citation: 439 N.W.2d 374,176 Mich.App. 365
• Parties: Jimmie Lee McCRACKEN and Mary Jane McCracken, Plaintiffs-Appellants, v. REDFORD TOWNSHIP WATER DEPARTMENT and Redford Township, a Michigan municipal corporation, jointly and severally, Defendant-Appellee. 176 Mich.App. 365, 439 N.W.2d 374
• Court: Court of Appeal of Michigan — District of US

Page 374

439 N.W.2d 374

Jimmie Lee McCRACKEN and Mary Jane McCracken Plaintiffs-Appellants, v. REDFORD TOWNSHIP WATER DEPARTMENT and Redford Township, a Michigan municipal corporation, jointly and severally, Defendant-Appellee.

Docket No. 103032.

176 Mich.App. 365, 439 N.W.2d 374

Court of Appeals of Michigan.

Submitted Jan. 19, 1989.

Decided April 4, 1989.

Released for Publication May 18, 1989.

[176 MICHAPP 366] Freilich, Schwab & Stuart by Laurel A. Stuart, Livonia, for plaintiffs-appellants.

Cummings, McClorey, Davis & Acho, P.C. by Bernard P. McClorey and Marcia L. Howe, Farmington Hills, for defendant-appellee.

Before McDONALD, P.J., and DOCTOROFF and NEFF, JJ.

PER CURIAM.

Plaintiffs appeal as of right from a Wayne Circuit Court order of August 10, 1987, granting defendant's motion for summary disposition on the basis that there was no genuine issue of material fact as to whether defendant's construction and maintenance of its water system constituted an intentional nuisance. We affirm.

During the summer of 1982, plaintiffs and their children moved into their Redford Township home. On July 6, 1982, while Jimmie Lee McCracken was mowing his lawn, the ground between the sidewalk and curb collapsed underneath his feet and he fell into a water-filled hole, up to his chest. His feet never touched bottom. He was able to pull himself out by grabbing the cement curb and the lawn mower handle. As a result of this accident, [176 MICHAPP 367] McCracken suffered a sciatic injury and probable herniated disc.

McCracken immediately contacted defendant Redford Township Water Department and within fifteen minutes defendant's work crew had barricaded the hole in plaintiffs' lawn. The area was inspected and repaired by defendant the next day. Discovery revealed that the ground collapsed due to an electrolysis leak in the water main.

Plaintiffs filed this lawsuit on May 31, 1984, alleging negligence and nuisance. On October 25, 1985, defendant's motion for summary disposition as to plaintiffs' negligence claim was granted on the basis of governmental immunity, but defendant's motion for summary disposition as to plaintiffs' claim of intentional nuisance was denied.

Plaintiffs subsequently amended their complaint to more specifically plead intentional nuisance and to add a count on strict liability. On February 20, 1987, plaintiffs' strict liability claim was dismissed on the basis that the maintenance of a water system is not an inherently dangerous activity.

This case was assigned for trial on the sole remaining claim of intentional nuisance. On the date of trial, defendant renewed its motion for summary disposition pursuant to MCR 2.116(C)(10) as to plaintiffs' intentional nuisance claim. The motion was granted.

On appeal, plaintiffs claim that the trial court erred in granting summary disposition because there was a genuine issue of material fact as to whether defendant's construction and maintenance of its water mains constituted an intentional nuisance. Plaintiffs argue that the electrolysis problem was well known to defendant and defendant took no steps to rectify the danger.

Before we proceed to analyze the issue presented by plaintiffs, we must consider the essential question[176 MICHAPP 368] of whether the intentional nuisance exception to governmental immunity survived the Supreme Court's decision in Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988). There is currently a conflict concerning this issue among panels of this Court. In Scott v. Dep't of Natural Resources, 169 Mich.App. 205, 208, 425 N.W.2d 518 (1988), the panel held that, following Hadfield, there is no intentional nuisance exception to governmental immunity. However, in Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988), the panel determined that the intentional nuisance exception to the doctrine of governmental immunity survived the Supreme Court's decision in Hadfield. The panel analyzed each of the opinions of the concurring justices and concluded:

"While the three-justice plurality led by Justice BRICKLEY clearly holds that there is no intentional nuisance exception to governmental immunity, 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." Li, 170 Mich.App. at p. 257, 428 N.W.2d 36.

In Garcia v. City of Jackson (On Remand), 174 Mich.App. 373, 376, 435 N.W.2d 796 (1989), the majority held:

"It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadfield, which is the last word on the matter, the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception to governmental immunity so as to establish any new binding precedent for future cases. There was a majority for the result only."

[176 MICHAPP 369] We agree with the cases which hold that the intentional nuisance exception to governmental immunity survived the Hadfield decision because we cannot conclude that a majority of the justices voted to override prior precedent which recognized the intentional nuisance exception.

Prior to Hadfield, a conflict in decisions existed in this Court on the question whether an omission to act can be the basis of an intentional nuisance action. Whether this conflict still exists after Hadfield is questionable.

In Landry v. Detroit, 143 Mich.App. 16, 371 N.W.2d 466 (1985), our Court reversed the trial court's order granting summary disposition because we found that the plaintiff's claim for an intentionally created nuisance in fact based upon omissions to act was valid. Likewise, in Veeneman v. Michigan, 143 Mich.App. 694, 373 N.W.2d 193 (1985), our Court found that the plaintiff had sufficiently alleged an intentional nuisance based upon omissions to act so as to avoid the defendant's claim of governmental immunity.

In Hadfield, 430 Mich. at p.p. 194-195, 199, 422 N.W.2d 205, the lead opinion reversed this Court in both Landry and Veeneman because it determined that neither case fell within the trespass-nuisance exception.

In Justice Boyle's concurring opinion, 430 Mich. at p. 209, 422 N.W.2d 205, she stated that she agreed with the reversal of Landry and Veeneman because "plaintiffs cannot sustain either a private nuisance or public nuisance on the basis of the facts."

In Justice Levin's separate opinion, 430 Mich. at p.p. 209-210, 422 N.W.2d 205, he agreed with Justice Boyle that "neither a private nuisance nor a public nuisance action may be maintained 'on the basis of the facts' in Veeneman and Landry."

We conclude that neither Justice Boyle's nor [176 MICHAPP 370] Justice Levin's opinion makes a clear statement on the issue of whether omissions to act can be the basis of an intentional nuisance claim.

In Justice Archer's opinion concurring in part and dissenting in part, 430 Mich. at p. 213, 422 N.E.2d 205, he stated that he would hold that intentional nuisance is an exception to governmental immunity. He would affirm Veeneman and Landry. Id., 430 Mich. at p. 216, 422 N.E.2d 205. Justice Archer opined that in describing the scope of the exception it is important to focus on the responsibility of government for its "actions or omissions," and added that if the governmental unit "acts or fails to act" and thereby creates a nuisance, the governmental unit should be liable regardless of where the trespass or nuisance occurs.

Justice Archer's opinion makes it clear that he considers that omissions to act may be the basis of an intentional nuisance, provided that the requisite intent is established. Id.

We note that in Garcia, released after Hadfield, this Court found an intentional nuisance based upon omissions to act. Thus, we conclude that an intentional nuisance may be based upon omissions. However, although plaintiffs' claim of intentional nuisance in the instant case is based upon omissions to act, we need not consider the issue of omissions for purposes of deciding this case. The question which is dispositive of this appeal is whether a genuine issue of material fact existed on the intent required for an intentional nuisance claim. We conclude that the requisite intent was not established.

A motion for summary disposition under MCR 2.116(C)...