Scott v. Department of Natural Resources

• Decision Date: 18 July 1988
• Docket Number: Docket No. 94777
• Citation: 169 Mich.App. 205,425 N.W.2d 518
• Parties: Regan SCOTT, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 518

425 N.W.2d 518

169 Mich.App. 205

Regan SCOTT, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.

Docket No. 94777.

Court of Appeals of Michigan.

Submitted July 7, 1987.

Decided June 7, 1988.

Released for Publication July 18, 1988.

Egnor, Hamilton & Muth by Walter K. Hamilton, Ypsilanti, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Vincent J. Leone, Asst. Atty. Gen., for defendant-appellee.

Before KELLY, P.J., and BEASLEY and EDWARDS, ^* JJ.

EDWARDS, Judge.

Plaintiff appeals as of right from an August 7, 1986, opinion and order of the Court of Claims which granted summary disposition to defendant.

On June 13, 1983, plaintiff, a nineteen-year-old man, sustained serious but nonpermanent injuries after his head struck an object which jutted up from the lake bottom while he was swimming at Silver Lake in the Pinckney Recreation Area. After receiving medical treatment, plaintiff returned to the scene and showed investigators the point in the water where he had hit his head. At that point, approximately thirty to thirty-five feet from the shoreline, was a large submerged boulder. Since that time, the boulder has been surveyed and marked by plaintiff, who requested that the DNR remove it as a continuous danger to the public. The DNR has refused to do so.

Plaintiff commenced this action against defendant on December 7, 1983, in the Court of Claims. Plaintiff set forth various theories of recovery against the DNR, including nuisance.

In an August 13, 1985, opinion and order, the Court of Claims ruled on a motion for summary disposition by the defendant. The court held that the claim that defendant was negligent in failing to correct a known danger was for omissive conduct which fell within the category of a negligent nuisance. The court ruled that such conduct remains protected by governmental immunity, citing Rosario v. City of Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978). Further, the court held that the alleged conduct of the defendant in placing the boulder in the water at Silver Lake was an allegation of an affirmative act or an intentional nuisance.

Defendant's motion for summary disposition was granted as to all of plaintiff's claims except that which alleged an intentional nuisance by defendant's placing the boulder in the water at Silver Lake.

Thereafter, plaintiff's proofs as to nuisance were confined to showing that the DNR actually placed the boulder in the water at Silver Lake.

On November 18, 1985, defendant renewed the motion for summary disposition pursuant to MCR 2.116(C)(10) and on February 26, 1986, the parties argued defendant's renewed motion. On August 7, 1986, the Court of Claims granted defendant's motion, stating, inter alia:

"Whether or not the judicially created nuisance exception to governmental immunity survived Ross v Consumers Power Co [On Rehearing], 420 Mich 567 (1984), is questionable. (See Judge MacKenzie's concurrence in Bradford v Michigan Mich App [756; 396 NW2d 522 (1986) ], and the end of footnote 27 of the Ross decision.) In any event, this Court is not persuaded that the Plaintiff has established that a nuisance per se or an intentional nuisance existed, Ford v Detroit, 91 Mich App 333 (1979); Furness v Public Service Comm, 100 Mich App 365 (1980)."

It is the position of the plaintiff on appeal that defendant created an intentional nuisance by its placement or maintenance of the boulder in the lake which was open to the public for swimming. Thus, to sustain plaintiff's claim, the crucial question is whether there is an intentional nuisance exception to the doctrine of governmental immunity.

Our Supreme Court recently addressed the question "whether, in light of the governmental tort liability act and Ross, any common-law tort-based [nuisance] exception to governmental immunity may be recognized." (Emphasis in original.) Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 145, 422 N.W.2d 205 (1988). The Court examined the legislative intent behind Sec. 7 of the act, which provides in relevant part:

"Except as otherwise provided in this act, 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...