Stemen v. Coffman, Docket No. 78-4557

• Decision Date: 27 August 1979
• Docket Number: Docket No. 78-4557
• Citation: 285 N.W.2d 305,92 Mich.App. 595
• Parties: Charles STEMEN and Fred Mattix, Plaintiffs-Appellants, and Attorney General for the State of Michigan, Intervenor, v. David COFFMAN and Charlotte Coffman, Defendants, and John Panzone, Joseph Shirilla, Robert Veit, Judd Thiel and the City of Grand Rapids, jointly and severally, Defendants-Appellees. 92 Mich.App. 595, 285 N.W.2d 305
• Court: Court of Appeal of Michigan — District of US

Page 305

285 N.W.2d 305

Charles STEMEN and Fred Mattix, Plaintiffs-Appellants and Attorney General for the State of Michigan, Intervenor, v. David COFFMAN and Charlotte Coffman, Defendants and John Panzone, Joseph Shirilla, Robert Veit, Judd Thiel and the City of Grand Rapids, jointly and severally Defendants-Appellees.

Docket No. 78-4557.

92 Mich.App. 595, 285 N.W.2d 305

Court of Appeals of Michigan.

Aug. 27, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 596] Robert D. Vanderlaan and Bruce W. Neckers, Grand Rapids, for plaintiffs-appellants.

Robert M. Cary, Grand Rapids, for defendants-appellees.

Jonathan S. Damon, Grand Rapids, for defendants.

Before WALSH, P. J., and KELLY and OPPLIGER, ^* JJ.

[92 MICHAPP 597] PER CURIAM.

Plaintiffs were residents of a multiple dwelling unit owned by defendants Coffman and located in the City of Grand Rapids. The building had been inspected in 1975 by defendant Shirilla, a city housing inspector, and had received a certificate of compliance signed by defendant Panzone, Shirilla's supervisor. On January 23, 1977, plaintiff Stemen received severe burns on one arm and one leg when fire gutted the structure, and both plaintiffs lost all their personal possessions.

Plaintiffs subsequently brought suit against the previously named individuals, the City of Grand Rapids, and defendants Veit and Thiel, the city's fire chief and fire inspector, alleging in several counts of their complaint that breaches of duty and negligence on the part of the city and its employees had caused the injuries and losses which plaintiffs suffered in the fire. The Kent County Circuit Court entered summary judgment in favor of the city and its individual employees on the basis of governmental immunity from tort liability. Plaintiffs appeal as of right.

Plaintiffs rely upon the "nuisance exception" to the legislative grant of immunity to a government agency engaged in the exercise or discharge of a governmental function. M.C.L. § 691.1407; M.S.A. § 3.996(107). They appear to concede that the city's program of housing inspections constitutes a governmental function. However, they argue that the failure of the city and its employees to require the Coffmans to abate the nuisance consisting of a multiple dwelling unit without adequate fire protection measures and devices allows liability to be imposed upon the city under the judicially created "nuisance exception", recently discussed from a variety of perspectives in Rosario v. Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978), and Gerzeski v. [92 MICHAPP 598] Department of State Highways, 403 Mich. 149, 268 N.W.2d 525 (1978).

We disagree. "Liability for damage caused by a nuisance turns upon whether the defendant was in control, either through ownership or otherwise." 58 Am.Jur.2d, Nuisances, § 49, p. 616. We have found no authority imposing liability for damage caused by a nuisance where the defendant has not either created the nuisance, owned or controlled the property from which the nuisance arose, or employed another to do work which he knows is likely to create a nuisance. The city's relationship with the property alleged to constitute a nuisance in ...