Radloff v. State

• Decision Date: 01 September 1982
• Docket Number: Docket No. 53466
• Citation: 116 Mich.App. 745,323 N.W.2d 541
• Parties: William RADLOFF, Plaintiff-Appellee Cross-Appellant, v. STATE of Michigan and Michigan Department of Conservation, a/k/a Department of Natural Resources, A Department Thereof, Defendants-Appellants Cross-Appellees. 116 Mich.App. 745, 323 N.W.2d 541
• Court: Court of Appeal of Michigan — District of US

Page 541

323 N.W.2d 541

William RADLOFF, Plaintiff-Appellee Cross-Appellant, v. STATE of Michigan and Michigan Department of Conservation, a/k/a Department of Natural Resources, A

Department Thereof,

Defendants-Appellants

Cross-Appellees.

Docket No. 53466.

116 Mich.App. 745, 323 N.W.2d 541

Court of Appeals of Michigan.

Submitted Nov. 19, 1981.

Decided June 8, 1982.

Rehearing Denied July 26, 1982.

Released for Publication Sept. 1, 1982.

[116 MICHAPP 748] Sommers, Schwartz, Silver & Schwartz, P. C., Southfield, for plaintiff-appellee cross-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Frank J. Pipp and Sterling W. Schrock, Asst. Attys. Gen., for defendants-appellants cross-appellees.

Before CYNAR, P. J., and V. J. BRENNAN and DEMING, ^* JJ.

V. J. BRENNAN, Judge.

Plaintiff filed suit against the State of Michigan, Michigan Department of Conservation, a/k/a Department of Natural Resources (DNR), and American Aggregates Corporation alleging that he suffered permanent and paralyzing injuries when he attempted to dive from an embankment into a gravel pit lake excavated by American Aggregates upon land owned by the State of Michigan in a state recreational park supervised by the DNR. Plaintiff is now a quadriplegic as a result of the injuries. A bench trial was held, and a verdict for damages of $7,491,854 was returned in favor of the plaintiff. American Aggregates subsequently settled with [116 MICHAPP 749] plaintiff for $4,000,000 and is not involved in this appeal. The State of Michigan and the DNR (hereinafter defendants) appeal as of right.

It is undisputed that the land on which this incident occurred was owned by the State of Michigan, which operated the Island Lake Recreation Area through the DNR.

Prior to 1950, the state owned all the land in Section 10 of Green Oak Township, except for a parcel in the southwest one-quarter, which was owned by American Aggregates. In 1950 and 1951, the state and American Aggregates negotiated agreements whereby the state would acquire the remaining property in Section 10, while American Aggregates would be granted the right to remove gravel located on this land. The 1950 agreement gave American Aggregates the right to enter onto and remove gravel from specified state land over a 30-year period, including the state owned land of Section 10 south of Spring Creek. In return for this privilege, the state was to receive title to the parcel in the southwest one-quarter and two cents per ton of gravel removed. The agreement also specified that the state "shall retain the use of the property until such time as gravel removal operations are started and that during the time of operation, it shall have the use of any portion of it not being directly used or affected by such operations * * * ". The state retained the right to all other minerals, the right to "use or lease" the property "at any time for any purpose other than but not to the detriment of the rights and privileges herein granted". The agreement also required American Aggregates to handle and place its surplus and waste in such a manner as would best serve the use of the state.

In 1951, by warranty deed, American Aggregates[116 MICHAPP 750] conveyed its property in Section 10 to the state, subject to its rights in the 1950 agreement. As of the recording of the deed, the state owned all of the land in Section 10 and had leased gravel rights to American Aggregates in the land lying south of Spring Creek.

In the subsequent years, American Aggregates extracted gravel, leaving behind the water-filled gravel pit where plaintiff was injured. During the same period, the state developed its Island Lake Recreation Area directly north of this same area. The area of Section 10 south of Spring Creek was intended to be included in the recreation area, and was within the boundaries of the recreation area as shown in a master plan for the park drawn in November, 1974.

In 1973, a warranty deed was executed by American Aggregates to the state. In this deed, American Aggregates surrendered its 1950 lease rights in the Section 10 property, subject to specific reservations allowing American Aggregates to utilize certain power lines, structures and tracks located on the property some distance away from the gravel pit.

Shortly after the execution of this 1973 deed, American Aggregates, which had heretofore posted "no trespassing" signs around the gravel pit and had patrolled the area with security guards to eject unauthorized persons, removed the warning signs and stopped the patrols.

At the close of the trial, the trial judge rendered his findings of fact and conclusions of law from the bench. Regarding the state's liability, the trial judge found that: (1) the state was not immune from liability in this case because its activities were not governmental functions relating to the operation of a public park; (2) the state was not [116 MICHAPP 751] immune from liability for the further reason that the gravel pit came into existence and was continued pursuant to the proprietary activities of the state as a land owner; (3) the state was in complete possession and control of the gravel pit area after 1973, even if it failed to appreciate the significance of the 1973 release; and (4) the gravel pit constituted an intentionally created nuisance.

Defendants assert that all of the above findings by the trial judge were erroneous. We do not agree.

First, although this Court has found that generally the operation and maintenance of a recreational park can be a governmental function, not every activity related to the recreational park is an immune governmental function. Feliciano v. Dep't. of Natural Resources, 97 Mich.App. 101, 293 N.W.2d 732 (1980); Haselhuhn v. The Huron-Clinton Metropolitan Authority, 106 Mich.App. 461, 308 N.W.2d 190 (1981).

In the present case, the defendants leased the area adjacent to the recreational area to American Aggregates for the excavation of gravel. This activity did not relate to the maintenance or operation of a recreational area. At the trial, defendants never asserted that their activities regarding the gravel pit were in any way connected to the recreational area at the time of the accident apart from being adjacent to the recreational area. Therefore, defendants are not entitled to governmental immunity on the basis that their activities in conjunction with the gravel pit area were governmental functions related to the operation and maintenance of a recreational area.

Furthermore, defendants' activities regarding the gravel pit, considered separate from the recreational area, cannot be classified as uniquely governmental[116 MICHAPP 752] functions. In the recent case of Lucchesi v. The Kent County Road Comm., 109 Mich.App. 254, 312 N.W.2d 86 (1981), the Court found that the defendant, who operated a gravel pit, was not entitled to governmental immunity because the maintenance of a gravel pit was not a uniquely governmental function.

In that case, the defendant owned and operated a gravel pit adjacent to a public park. Over the years, the defendant had acquiesced in public use of the site for many recreational purposes, chiefly motor sports. The premises were open to the public day and night and the only sign posted was that firearms were not permitted. The defendant stockpiled processed gravel in large mounds, which was used to build and repair roads. On one mound the material was removed from only one side leaving "a crescent-shaped ring of material with a precipitous escarpment at its rear". A driver travelling along well-defined trails leading to the top of the mound could not see that the entire back of the hill had been removed until he was at the top of a twenty-foot precipice. The plaintiff's decedent, along with three others, was killed when he drove a jeep off the top of the mound. The court found:

"We conclude that, on the basis of the decisions in Parker v. City of Highland Park, 404 Mich. 183; 273 N.W.2d 413 (1978), and Perry v. Kalamazoo State Hospital, 404 Mich. 205; 273 N.W.2d 421 (1978), the maintenance of defendant's gravel mining and storage operations do not enjoy statutory governmental immunity.

"Given the standard imposed by Perry and Parker, that government is immune from suit only where it is engaged in those functions which are sui generis to government, we are not persuaded that the maintenance of a gravel pit, or even construction and maintenance of roads within a county road network, is a uniquely governmental activity." Lucchesi, supra, 258, 312 N.W.2d 86.

[116 MICHAPP 753] The present case is not distinguishable from Lucchesi even though here the defendants did not do the actual excavation but, instead, leased the land to American Aggregates for the purpose of excavating gravel. If the maintenance and operation of a gravel pit is not a uniquely governmental function, then certainly the leasing of land for the purpose of operating a gravel pit is not a uniquely governmental function. Therefore, we find that the defendants were not entitled to the defense of governmental immunity.

Moreover, even if this Court were to find that defendants' activities were governmental functions, defendants would not be entitled to the defense of governmental immunity because the trial court correctly found that defendants were engaged in proprietary activities as a land owner.

A state agency may engage in a proprietary function at the same time it is engaged in a governmental function, but where such a dual use of property is evident, the proprietary function must be separated from the governmental function, and the governmental agency loses its immunity as to the proprietary use. Carlisi v. Marysville, 373 Mich. 198, 128 N.W.2d 477 (1964); Bofysil v. Dep't of State Highways, 44 Mich.App. 118, 130, 205 N.W.2d 222 (1972), lv. den. 389 Mich. 768 (1973).

Here, the defendants leased the land in exchange for title to a parcel of property and two cents per...