Sanford v. City of Detroit

• Decision Date: 15 August 1985
• Docket Number: Docket No. 78049
• Citation: 371 N.W.2d 904,143 Mich.App. 194
• Parties: Mary SANFORD, Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 904

371 N.W.2d 904

143 Mich.App. 194

Mary SANFORD, Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, Defendant-Appellee.

Docket No. 78049.

Court of Appeals of Michigan.

Submitted Dec. 19, 1984.

Decided May 21, 1985.

Rehearing Denied July 22, 1985.

Released for Publication Aug. 15, 1985.

Bockoff & Zamler, P.C. by Glen Hirshberg and John J. Futchko, Southfield, for plaintiff-appellant.

Brenda M. Miller, Asst. Corp. Counsel, Detroit, for defendant-appellee.

Before BRONSON, P.J., and HOOD and SHEPHERD, JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's April 18, 1984, order granting defendant's motion for summary judgment and dismissing plaintiff's action.

Plaintiff alleged that she was sexually assaulted on March 3, 1979, in an abandoned factory building owned by defendant. Her assailant took her to that location. Plaintiff further alleged:

"5. That it was then and there the duty and responsibility of the Defendant to maintain their premises in such a manner and in such a condition so as to not endanger the Plaintiff's and similarly situated person's [sic ] health, safety, and welfare.

"6. That the City of Detroit, its agents, servants or employees, knew or should have known that the building was vacant and accessible for criminal activity and that it constituted an inherently dangerous condition, but the City of Detroit neglected, failed and refused to adequately secure the building, failed to demolish the empty abandoned building, failed to patrol or guard said premises or take any steps whatsoever, to remove, repair or eliminate this inherently dangerous condition.

"7. That the Defendant, CITY OF DETROIT, had reasonable notice that abandoned buildings were used for the purpose of perpetrating activities such as that which the Plaintiff was subjected to; and that Defendant had notice that the aforesaid premises also constituted such a danger; and it knew or should have known that assailants seek places away from the public sight to take their victims, and further, that the aforesaid abandoned building was a nuisance in fact and created an extremely dangerous and hazardous condition for the public, but the Defendant negligently failed and refused to take any steps whatsoever to secure the building, to patrol or guard said premises, or to employ any other means to safeguard the premises from the danger which was the proximate cause of the injuries suffered by the Plaintiff, MARY SANFORD.

"8. The Defendant is liable for the injuries of the Plaintiff as it intentionally created the nuisance in fact which resulted in injuries to the Plaintiff."

In its motion for summary judgment, which defendant stated it brought pursuant to GCR 1963, 117.2(1) and (3), defendant argued that plaintiff's complaint sounded in both negligence and intentional nuisance. Defendant argued that it could not be held liable for negligence under plaintiff's allegations because its acts or omissions were not the proximate cause of plaintiff's injuries. Moreover, defendant asserted that it had not created an intentional nuisance by allegedly failing to secure and maintain the building in which plaintiff was attacked. Finally, defendant argued that plaintiff failed to allege facts supporting any finding that defendant owed a duty of care to plaintiff.

At the hearing on defendant's motion the trial court recognized plaintiff's responsive argument that she only intended to complain of defendant's alleged intentional nuisance, not negligence. Defendant's counsel then presented her argument. In response, plaintiff's counsel briefly argued that proximate cause was not an issue in an intentional nuisance action. Plaintiff's counsel also briefly reiterated some of the allegations in the complaint.

The trial court granted defendant's motion. Plaintiff's counsel asked if there was an explanation. The trial court responded:

"Sure. As a matter of law, there is no possible cause for a lawsuit. If I'm wrong, the Court of Appeals will tell me."

We reverse.

It is clear from the trial court's comments that this motion was granted under GCR 1963, 117.2(1), failure to state a cause of action. In considering such a motion, the test is whether, on the pleadings alone, plaintiff's claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Armstrong v. Ross Twp., 82 Mich.App. 77, 81-82; 266 N.W.2d 674 (1978).

An intentional nuisance, or a nuisance in fact, is one which becomes a nuisance " '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' ". Rosario v. City of Lansing, 403 Mich. 124, 133; 268 N.W.2d 230 (1978), quoting 66 C.J.S., Nuisances, Sec. 3, pp. 733-734; McKee v. Dep't of Transportation, 132 Mich.App. 714, 725; 349 N.W.2d 798 (1984). The knowledge of the actor at the time he or she acted or failed to act determines whether the invasion resulting from the actor's conduct is intentional or unintentional. The actor must realize, or should realize, that his or her conduct involves a serious risk or likelihood of causing the invasion and must either act for the purpose of causing it or know that it is resulting or substantially certain to result from the conduct. 4 Restatement Torts, 2d, Sec. 825, Comment C, p. 118; Keiswetter v. City of Petoskey, 124 Mich.App. 590, 597-598; 335 N.W.2d 94 (1983).

In 4 Restatement Torts, 2d, Sec. 821B, p. 87, the American Law Institute defines a public nuisance as follows:

"(1) A public nuisance is an unreasonable interference with a right common to the general public.

"(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right". (Emphasis added.)

Furthermore, the possessor of land is subject to liability for a nuisance for an abatable artificial condition on the land if,

"(a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, and

"(b) he knows or should know that it exists without the consent of those affected by it, and

"(c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it".

4 Restatement Torts, 2d, Sec. 839, p. 161.

Plaintiff alleged that defendant had notice that abandoned buildings were used for crimes such as the one that occurred to plaintiff and knew that the building at issue posed such a danger, yet failed or refused to secure the building or to guard it or to take any steps at all to safeguard the premises from such known criminal activity. These facts sufficiently allege a building that interferes with the public safety and that defendant failed to take reasonable steps to abate the conditions causing the building to be a threat to public safety. Therefore, we find that plaintiff sufficiently pled an intentional nuisance to withstand this GCR 1963, 117.2(1) motion for summary judgment.

Reversed and remanded.

SHEPHERD, Judge, dissenting.

Plaintiff alleges that she was raped in a vacant building owned by defendant; that defendant "knew or should have known" that such buildings are used for criminal activity, including assaults such as plaintiff allegedly experienced; that defendant "neglected, failed and refused" to secure, demolish or guard the premises; and that defendant had reasonable notice that such buildings are used by criminals as sites to inflict harm "away from the public sight". The majority conclude "that plaintiff pled an intentional nuisance sufficient to withstand defendant's motion for summary judgment". I disagree with this conclusion. Plaintiff's complaint sounds in negligence rather than nuisance. The majority's holding constitutes a vast expansion of the "nuisance" exception to governmental immunity. Moreover, it would subject virtually any landowner (public or private) to potential liability whenever the landowner's premises are the site of an assaultive offense. This, also, marks a huge enlargement of the landowner's duty to guard against such activity on the premises, an enlargement facilitated by the majority's application of nuisance doctrine.

"Nuisance is a condition and not an act or failure to act." 58 Am.Jur.2d, Nuisances, Sec. 3, p. 557. As noted by the majority, nuisances in fact "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." 66 C.J.S., Nuisances, Sec. 3, pp. 733- 734; Rosario v. City of Lansing, 403 Mich. 124, 133; 268 N.W.2d 230 (1978); Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 411, 97 N.W.2d 90 (1959). Heretofore, the courts of this state have found a nuisance only where the injury was inflicted, not by a third party, but as a result of some condition of, or the owner's activity on, the property itself. For example, the nuisance in Rosario was an open sewer drain; in Bluemer, a trap door in a service station; in McKee v. Dep't of Transportation, 132 Mich.App. 714, 349 N.W.2d 798 (1984), the design of a highway shoulder and the placement of a light pole proximate thereto; and in Keiswetter v. City of Petoskey, 124 Mich.App. 590, 335 N.W.2d 94 (1983), the operation of a fire training facility tower.

In this case...