Randall v. Delta Charter Tp.

• Decision Date: 06 January 1983
• Docket Number: Docket No. 58625
• Citation: 328 N.W.2d 562,121 Mich. App. 26
• Parties: C. Donald RANDALL, individually as the personal representative of Charles E. Randall, deceased, Plaintiff-Appellant, v. DELTA CHARTER TOWNSHIP, Defendant-Appellee, and Jesse F. Harrold, Virginia Harrold and Robert Elliot, Defendants. 121 Mich.App. 26, 328 N.W.2d 562
• Court: Court of Appeal of Michigan — District of US

Page 562

328 N.W.2d 562

C. Donald RANDALL, individually as the personal representative of Charles E. Randall, deceasedPlaintiff-Appellant, v.DELTA CHARTER TOWNSHIP, Defendant-Appellee and Jesse F. Harrold, Virginia Harrold and Robert ElliotDefendants.

Docket No. 58625.

121 Mich.App. 26, 328 N.W.2d 562

Court of Appeals of Michigan.

Submitted Aug. 5, 1982.

Decided Nov. 2, 1982.

Released for Publication Jan. 6, 1983.

[121 MICHAPP 28]Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C.(by Kenneth G. McIntyre), Lansing, for plaintiff-appellant.

Willingham, Cote, Hanslovsky, Griffith & Foresman, P.C.(by Frederick M. Baker, Jr.), East Lansing, for defendant-appellee.

Before DANHOF, C.J., and J.H. GILLIS and KNOBLOCK, ^* JJ.

DANHOF, Chief Judge.

Plaintiff appeals as of right from an order of the trial court granting summary judgment in favor of Delta Township and dismissing plaintiff's complaint.

Plaintiff's complaint alleged that in 1978defendants Jesse and Virginia Harrold were the owners of a parcel of residential property in Delta Township which was located near the Grand River.An inlet extended from their property to the river.In 1978, plaintiff's five-year old son drowned while swimming in the inlet.Plaintiff alleged that the inlet constituted a nuisance.Plaintiff's claims against Delta Township were predicated on four separate theories.First, he claimed that the condition constituted a violation of the township's zoning[121 MICHAPP 29] ordinance and that the township had a duty to discover and abate the alleged zoning violation.In the alternative, he claimed that the township knew of the violation and despite that knowledge, it willfully and wantonly refused to take steps to preclude the ordinance from being violated.Third, plaintiff claimed that the township's action in refusing to abate the condition constituted the maintenance of a common-law nuisance.Finally, plaintiff sought equitable relief seeking an order requiring the township to take action to abate the alleged nuisance.

The trial court granted summary judgment in favor of the township with respect to the first two claims on the basis of governmental immunity.It ruled that the plaintiff failed to state a claim against the township with respect to the nuisance claim.It also ruled that plaintiff failed to state a claim against the township with respect to its claim for equitable relief.

The trial court's decision concerning governmental immunity was predicated on M.C.L. Sec. 691.1407;M.S.A. Sec. 3.996(107), which provides:

"Sec. 7.Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed."

Plaintiff claims that the trial court erred in finding that the township's decision whether or not to enforce a zoning ordinance constituted a governmental function.We disagree.

As noted by various panels of this Court, our [121 MICHAPP 30] decisions concerning issues relating to governmental immunity are governed by the test announced by Justice Moody in Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413(1978), andPerry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421(1978).SeeBokano v. Wayne-Westland Community Schools, 114 Mich.App. 79, 318 N.W.2d 613(1982);Churilla v. East Detroit School Dist., 105 Mich.App. 32, 306 N.W.2d 381(1981);Deaner v. Utica School Dist., 99 Mich.App. 103, 297 N.W.2d 625(1980).Parker, supra, involved the operation of a municipal general hospital.Perry, supra, involved the operation of a state mental hospital.Six justices split evenly concerning the test to be employed to determine whether an activity should be regarded as a governmental function.The swing vote in each case was cast by Justice Moody who stated in Parker:

"[A]s a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government.Unless liability would be an unacceptable interference with government's ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune."Parker, supra, 404 Mich. p. 200, 273 N.W.2d 413.

Plaintiff acknowledges that the action taken by the township in enacting the zoning ordinance, being legislative in nature, must be deemed to constitute the performance of a governmental function.Central Advertising Co. v. City of Novi, 91 Mich.App. 303, 313-314, 283 N.W.2d 730(1979).However, he contends that decisions relating to the enforcement of an ordinance are not entitled [121 MICHAPP 31] to such immunity.He claims that this is especially so in the present case, because the township has provided in its ordinance for a mechanism whereby private citizens may bring an action to enjoin alleged zoning violations.Therefore, he claims that the activity involved is not one which "can be effectively accomplished only by government".Parker, supra.

We find this claim to be without merit.It has long been recognized in this jurisdiction that municipal corporations do not become insurers of the property within their corporate limits by reason of the neglect or refusal of their officers and agents to enforce their ordinances.Hines v. City of Charlotte, 72 Mich. 278, 284, 40 N.W. 333(1888).See alsoCentral Advertising Co. v. City of Novi, supra;Ross v. Consumers Power Co., 93 Mich.App. 687, 695, 287 N.W.2d 319(1979);Antkiewicz v. Motorists Mutual Ins. Co., 91 Mich.App. 389, 395, 283 N.W.2d 749(1979), vacated on other grounds407 Mich. 936(1979).Furthermore, most other jurisdictions also follow the rule that governmental agencies are not liable for failure to investigate or enforce an ordinance violation.Anno: Liability of municipality or other governmental unit for failure to provide police protection, 46 A.L.R.3d 1084;57 Am.Jur.2d, Municipal, School, and State Tort Liability, Sec. 114, p. 122.Even those members of the Supreme Court who support the less restrictive test of governmental immunity announced in Parker, supra, andPerry, supra, would, in our opinion, hold that the township's failure to enforce its ordinance cannot serve as a basis to impose liability.In Thomas v. Dep't of State Highways, 398 Mich. 1, 247 N.W.2d 530(1976), four members of the Court ruled that the maintenance and improvement of a highway is a governmental function.Three members of the Court dissented.However, the dissenters acknowledged[121 MICHAPP 32] that in order to effectively govern, the government must be held to be immune from liability when engaged in the performance of certain activities:

"[W]e agree with the California Law Revision Commission:

" 'Decisions of legislators to enact or not to enact legislation; decisions of prosecutors to prosecute or not to prosecute persons suspected of crime; decisions of judges to grant or not to grant judgment for a particular party--these and other comparable types of governmental activity are examples of the kinds of functions which imperatively require complete independence from threat of tort consequences to insure their fearless and objective performance.'5 Cal Law Revision Comm Report, Recommendations and Studies, 281, 282 (1963)."Thomas, supra, p. 22, 247 N.W.2d 530.

In our view, the activity involved here must be deemed to be within the protection of the statute.To hold otherwise would severely discourage municipalities from enacting ordinances which provide for the welfare of their citizens out of fear that their failure to zealously enforce those ordinances would open the floodgates of litigation.Therefore, we find that decisions of a planning commission, or other similar local agency, concerning whether to enforce zoning ordinances are decisions which are so basic to the operation of a municipality that any attempt to create liability with respect thereto would constitute "an unacceptable interference with [the municipality's] ability to govern".Parker, supra.The fact that the township has provided a procedure whereby private citizens may undertake to abate a violation does not alter this conclusion.The mere fact that a municipal agency is not the sole authority charged with enforcement of an ordinance does not mean [121 MICHAPP 33] that the activity has a common analogy in the private sector.On the contrary, in this case it was the governmental entity itself which provided its citizens with the ability to take this enforcement action.Without such legislative action there could be no such authority, indeed there would not even be an ordinance to enforce.Consequently, this activity is one which is uniquely associated with governmental enterprise.Therefore, the township is immune from suit with respect to this claim.

Plaintiff's claim of intentional tort must also fail.In Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1(1979), andMcCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521(1976), the Supreme Court ruled that governmental immunity does not extend to intentionally tortious acts.Plaintiff claims...