Moore v. City of Pontiac

• Decision Date: 29 August 1985
• Docket Number: Docket No. 76291
• Citation: 372 N.W.2d 627,143 Mich.App. 610
• Parties: Leroy MOORE and Caretta Moore, Plaintiffs-Appellees, v. CITY OF PONTIAC, a Michigan municipal corporation, Defendant-Appellant, and Charles Palaian, d/b/a T.I.R.E., Third-Party Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 627

372 N.W.2d 627

143 Mich.App. 610

Leroy MOORE and Caretta Moore, Plaintiffs-Appellees, v. CITY OF PONTIAC, a Michigan municipal corporation, Defendant-Appellant and Charles Palaian, d/b/a T.I.R.E., Third-Party Defendant.

Docket No. 76291.

Court of Appeals of Michigan.

Submitted April 16, 1985.

Decided June 18, 1985.

Released for Publication Aug. 29, 1985.

Thomas E. Hunter, Pontiac, for defendant-appellant.

Before HOLBROOK, P.J., and BEASLEY and SIMON ^*, JJ.

HOLBROOK, Presiding Judge.

Defendant City of Pontiac appeals as of right the award of damages and attorney fees entered in favor of plaintiffs. Plaintiffs are homeowners who resided in their home from 1963 to 1980. In 1966 defendant rezoned the land across the street from plaintiffs and began using the land as a sanitary landfill. Plaintiffs complained about noxious odors and constant noise and having their yard littered with glass and paper. In 1977 a concrete crushing operation was established in the northeast corner of the landfill and in 1979 a tire shredding operation ¹ was added to the landfill. According to plaintiffs, the tire shredding was the "last straw". The machine that shredded the tires made a loud shrill-like scream every five seconds while being utilized. Apparently the stored tires ² gave off noxious odors and the shredder produced soot, particles and fibers which entered plaintiffs' home. Furthermore, plaintiffs assert that their health suffered ³ and that the health problems dissipated after they moved when they sold their home at a loss in November of 1980. The jury awarded plaintiffs $12,500 in damages and approximately $3,000 for attorney fees.

On appeal defendant asserts that it was entitled to a grant of summary judgment based on governmental immunity and/or accelerated judgment based on the doctrine of laches or the statute of limitations. Defendant also argues that the award of attorney fees was improper.

Defendant contends that the operation of a landfill is a governmental function and governmental immunity bars this action. Although defendant raised governmental immunity as an affirmative defense, defendant never did assert this as a ground for summary disposition of this case.

The nuisance exception to governmental immunity is still unclear although the Supreme Court did indicate that a properly pled nuisance action would avoid the doctrine of immunity in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 657, 363 N.W.2d 641 (1984). Accordingly, as the Supreme Court is still split ⁴ on the issue as to what sort of nuisance allegations would avoid governmental immunity, we adopt the exception for intentional nuisances and nuisances per se. Jenkins v. Detroit, 138 Mich.App. 800, 805, 360 N.W.2d 304 (1984), and Pate v. Dep't of Transportation, 127 Mich.App. 130, 135, 339 N.W.2d 3 (1983). Our review of the record reveals that plaintiffs did properly allege an intentional nuisance. Even if we were to assume arguendo that it was not properly pled, had defendant contested the pleadings in the lower court, plaintiffs might have amended their complaint to plead a claim that could not be confused with negligence. We will not now allow defendant to prevail on an eleventh-hour challenge after a full trial on the merits.

Defendant alleges that the trial court erred in its denial of its motions for accelerated judgment. Defendant argues that plaintiffs' cause of action accrued in the 1960's when defendant began the landfill operation, and thus, their claim was barred by the statute of limitations and the doctrine of laches. As this Court said in Hodgeson v. Genesee County Drain Comm'r, 52 Mich.App. 411, 413, 217 N.W.2d 395 (1974), lv.den. 391 Mich. 843 (1974):

"The law is clear that where there are wrongful acts of a continuing nature, the statute of limitations does not begin to run from the date of the first act."

The continuing nature of a nuisance is recognized in Michigan. See Grunch v. United States, 538 F.Supp. 534, 537 (E.D.Mich., 1982). Therefore, this action is not barred by the statute of limitations ⁵ as the wrong suffered by plaintiffs was of a continuing nature.

Defendant's allegation that the doctrine of laches barred this claim is without merit. Testimony revealed that the operation of the landfill became more and more of a nuisance with the passage of time. Nor has defendant been prejudiced. Plaintiffs do not request abatement of the nuisance, rather they merely desire monetary relief. Defendant's investment in the landfill will not be harmed by affording plaintiffs relief. See Rofe v. Robinson (On Second Remand), 126 Mich.App. 151, 154, 336 N.W.2d 778 (1983), and In re Crawford Estate, 115 Mich.App. 19, 25-26, 320 N.W.2d 276 (1982). Additionally we find no support for defendant's argument that evidence may only be admitted regarding damages up to three years prior to filing the complaint.

Defendant next contends that the jury instructions regarding its liability for the acts of the tire-shredder lessee were in error. We do not agree. The law on liability of a landlord for his tenant's actions is stated in Herrst v. Regents of the University of Michigan, 231 Mich. 396, 398, 204 N.W. 119 (1925):

"A landlord is not liable for the use of premises by a tenant in such a way as to occasion damage to a neighboring proprietor, merely because there was a possibility of their being so used. The wrong in such a case is that of the tenant and the liability therefore will stop with the tenant. * * * Any abuse of rights of neighboring proprietors in the use of the barn by the tenant was not chargeable to the landlord unless such abuse was sanctioned by the landlord; and such sanction could not rest upon implied notice and acquiescence."

Evidence was presented at trial to indicate that defendant was fully aware of the problems its lessee was causing plaintiffs and that def...