Rosario v. City of Lansing

• Decision Date: 24 July 1978
• Docket Number: No. 58025,58025
• Parties: Terrance ROSARIO, Administrator of the Estate of DeAndrea Rosario, Plaintiff- Appellant, v. The CITY OF LANSING, a Michigan Municipal Corporation, Defendant-Appellee, and Bethlehem Evangelical Lutheran Church of Lansing, a non-profit ecclesiastical corporation, Defendant. 403 Mich. 124, 268 N.W.2d 230
• Court: Michigan Supreme Court

Page 230

268 N.W.2d 230

Terrance ROSARIO, Administrator of the Estate of DeAndrea Rosario, Plaintiff- Appellant, v. The CITY OF LANSING, a Michigan Municipal Corporation Defendant-Appellee and Bethlehem Evangelical Lutheran Church of Lansing, a non-profit ecclesiastical corporation, Defendant.

No. 58025.

403 Mich. 124, 268 N.W.2d 230

Supreme Court of Michigan.

July 24, 1978.

Abood, Abood & Abood, P. C., William E. Rheaume, Lansing, for plaintiff-appellant.

George H. Denfield, Lansing, for defendant-appellee.

FITZGERALD, Justice.

DeAndrea Rosario, age 19 months, was found drowned in an open sewer drain in the Bethlehem Evangelical Lutheran Church parking lot on May 11, 1973. Plaintiff filed a circuit court suit against both the church and the City of Lansing, alleging what he has denominated "negligence." ¹ Plaintiff later amended his complaint, alleging a count he has referred to on appeal as "attractive nuisance". ² The trial court granted the City of Lansing's motion for summary judgment grounded on governmental immunity. The Court of Appeals affirmed, Rosario v. Lansing, 66 Mich.App. 597, 239 N.W.2d 428 (1976). We granted leave to appeal, 399 Mich. 835 (1977). Because the case comes to us on summary judgment, we accept plaintiff's factual allegations as true.

I NUISANCE

We first note that because the alleged cause of action arose after August 1, 1970, the date upon which 1970 P.A. 155 cured the constitutional defect in 1964 P.A. 170 (M.C.L.A. § 691.1407; M.S.A. § 3.996(107)), we must consider the application of the governmental immunity statute ³ to this case. Thomas v. Department of State Highways, 398 Mich. 1, 247 N.W.2d 530 (1976).

We noted in Thomas that the Legislature has enacted several exceptions to immunity. In addition to the legislatively-created exceptions, there exists a significant judicially-created exception to governmental immunity from tort liability the nuisance exception. ⁴ The nuisance exception arises solely from the case law. The statute is silent on the question of the relationship between governmental immunity and nuisance. Thus, we turn to our case law to determine the nature of the nuisance exception to governmental immunity. "(T) he evolution of case-law precedent is exclusively committed to the judicial branch of government." Thomas, p. 17, fn. 4, 247 N.W.2d p. 536. (Kavanagh Fitzgerald dissenting opinion).

The instant case presents two questions: Did plaintiff plead a nuisance claim? If so, is governmental immunity a defense to that claim?

The questions are not easily answered. As Dean Prosser explained:

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition." Prosser, Torts (4th ed.), § 86, p. 571.

Judge, now Justice, Levin, dissenting in Maki v. East Tawas, 18 Mich.App. 109, 134, 170 N.W.2d 530 (1969), heeded Dean Prosser's warning, and declined to take an excursion into that jungle. ⁵ The instant case requires that we embark on that excursion.

First, has plaintiff pled a nuisance claim? Under our case law liability for nuisance is predicated on the existence of a dangerous condition. ⁶"Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care." Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476, 480 (1970).

See, also, Munson v. Menominee County, 371 Mich. 504, 124 N.W.2d 246 (1963); Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 97 N.W.2d 90 (1959); and Maki v. East Tawas, 385 Mich. 151, 188 N.W.2d 593 (1971). An improperly designed or maintained manhole cover may constitute a nuisance. Dahl v. Glover, 344 Mich. 639, 75 N.W.2d 11 (1956).

In Bluemer v. Saginaw Central Oil & Gas Service, supra, we explained one classification of nuisances, citing with approval 66 C.J.S. Nuisances § 3, pp. 733-734:

" 'From the point of view of their nature, nuisances are sometimes classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property. The number of nuisances per se is necessarily limited, and by far the greater number of nuisances are nuisances per accidens. For this reason whether or not a particular thing or act is a nuisance is generally a question of fact * * *.' " 356 Mich. 411, 97 N.W.2d 95.

Plaintiff here alleged "an extremely dangerous and hazardous condition * * * but that said Defendant negligently failed and refused to take any steps whatsoever to secure the covering of said drain * * *". The first amended complaint sufficiently alleges a nuisance in fact. Accordingly plaintiff should have been allowed to present proofs to the jury on the question of nuisance unless governmental immunity bars the claim.

Second, does governmental immunity bar recovery of damages for personal injury or death caused by a nuisance in fact? The last time this question was squarely presented to the Court, because the governmental immunity statute was ruled unconstitutional, we found it "unnecessary to decide what effect the nature of this nuisance recovery (i. e., 'manner of operation') has on municipal immunity." Maki, supra, 385 Mich. 159, 188 N.W.2d 596.

The fact that there exists some form of nuisance exception to governmental immunity emerges clearly from case precedent. ⁷ The limits of that exception present the more difficult question.

We find it unnecessary to dwell at any great length on the early cases in which Michigan governmental immunity originated. As the doctrine crystallized, several different justifications for either governmental liability or non-liability can be discerned. The result is that a case can be found supporting almost any proposition concerning governmental immunity one chooses to advance. ⁸

We turn then to more recent history. In the instant case the Court of Appeals affirmed the trial judge's grant of summary judgment in favor of the City of Lansing by relying on Royston v. Charlotte, 278 Mich. 255, 260, 270 N.W. 288, 290 (1936).

"Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care."

No authority was cited for that proposition. ⁹

The implication that only nuisances per se were outside governmental immunity was not well-grounded in prior case law. Injunctions regulating the activity of governmental entities have nearly always been available without regard to whether the nuisance was a nuisance per se or a nuisance in fact. ¹⁰

Royston was severely questioned in Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970), where we said:

"It must be concluded that Royston is not applicable to a case involving a nuisance, this Court having clearly held that the situation in Royston involved negligence only." 383 Mich. 634, 178 N.W.2d 479

and,

"Negligence, which is antecedent to and responsible for the nuisance, is not our concern here even though the nuisance in this case may have been created by negligent acts." 383 Mich. 635, 178 N.W.2d 479, citing several cases since Royston, in which recovery was had for nuisance created by negligence,

and, finally,

"Damage to plaintiffs flowed from the nuisance and the mere fact that negligence may have existed in a variety of We held that governmental immunity was not a defense to nearby landowners' claims for property damage.

acts or by inaction by the State during the continuing period of the nuisance will not permit it to escape its liability." 383 Mich. 638, 178 N.W.2d 480.

The nuisance in Buckeye, a building which was a fire hazard, was a nuisance in fact. The nuisance was created by negligent acts. Had nuisance been the sole basis for the decision that governmental immunity was not applicable in that case, we would without hesitancy state that Buckeye recognizes a nuisance in fact exception to governmental immunity. ¹¹

The decision in Buckeye also rests on the state's taking of private property without just compensation. ¹² Buckeye dealt with the state's immunity. We said that the Legislature "has dealt with waiver of the State's immunity from tort liability by 'a pattern of deliberate legislative choices' " (383 Mich. 640, 178 N.W.2d 482), citing McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491 (1961). We reexamined McDowell in Pittman v. City of Taylor, 398 Mich. 41, 247 N.W.2d 512 (1976), and concluded that McDowell was erroneous in concluding that the Legislature granted statutory tort immunity to the state in 1945. Pittman, supra, 46-47, fn. 1, 247 N.W.2d 512. We now recognize that governmental immunity is not solely a creature of the Legislature. Pittman, supra. Hence we find it unnecessary to resort to a constitutional provision to hold that the defense of governmental immunity may not be asserted against a claim properly alleging nuisance. ¹³

That we did intend that Buckeye recognize a nuisance-in-fact exception to...