Stremler v. Michigan Dept. of State Highways

• Decision Date: 13 February 1975
• Docket Number: No. 3,Docket No. 19861,3
• Citation: 58 Mich.App. 620,228 N.W.2d 492
• Parties: Jean Marie STREMLER, Administratrix of the Estate of Wallace Stremler, Deceased, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 492

228 N.W.2d 492

58 Mich.App. 620

Jean Marie STREMLER, Administratrix of the Estate of Wallace

Stremler, Deceased, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellee.

Docket No. 19861.

Court of Appeals of Michigan, Division No. 3.

Feb. 13, 1975.

Rehearing Denied April 4, 1975.

Released for Publication May 8, 1975.

Kenneth L. Block, Cholette, Perkins & Buchanan, Grand Rapids, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Myron A. McMillan, Asst. Atty. Gen., for defendant-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and VanVALKENBURG, ^* JJ.

HOLBROOK, Presiding Judge.

Wallace Stremler lost control of the truck he was driving while proceeding in the northbound lane of U.S. Highway 131 in Grand Rapids and was thrown from the truck, which injury caused his death. Plaintiff, as administratrix of the estate, brought suit against the defendant, Michigan Department of State Highways. A complaint was filed in the Court of Claims on November 13, 1973, which in pertinent part stated:

'* * * That on November 20, 1970 at approximately 4 a.m. in the northbound lane of U.S. 131, commonly known as the 'S' curve in the City of Grand Rapids approximately 500 to 600 feet south of the Market Street exit when plaintiff's deceased was proceeding north that said driver lost control of said vehicle without fault on his part due to conditions then and there existing in conjunction with the improper design and possible improper speed posted at said time that said deceased was killed thereby when thrown from said truck.

'* * * That said design, construction and maintenance is a nuisance. That said Highway Department had control over the design, construction and maintenance of said highway. That authorizing, maintaining, construction and design of said 'S' curve as an expressway or freeway was improper. Further, the Michigan Department of State Highways has had notice of the inordinate number of accidents caused by the 'S' curve and has attempted to alleviate some of the conditions but has failed to charge or alleviate the basic problem of the 'S' curve itself, thus has maintained a nuisance. That the Michigan Department of State Highways is therefore liable because of the design, construction and maintenance of said nuisance.'

Defendant moved for accelerated judgment, in accordance with GCR 1963, 116.1(5), based upon M.C.L.A. § 691.1411(2); M.S.A. § 3.996(111)(2). Defendant also moved for summary judgment, in accordance with GCR 1963, 117.2(1), asserting that plaintiff had not stated a claim upon which relief could be granted, as the highway department was immune from tort liability as one of the principal departments of the State of Michigan. By opinion, the Court of Claims granted defendant's motion for summary judgment. An order for accelerated judgment was entered and the complaint was dismissed. Plaintiff has here appealed and set out four issues, two ¹ of which are admittedly proffered in order to preserve such issues for further appeal and will not be discussed here.

I

Plaintiff claims that the action herein is founded on nuisance and, as such, is outside the scope of M.C.L.A. § 691.1402; M.S.A. § 3.996(102). ² This assertion is premised upon M.C.L.A. § 691.1407; M.S.A. § 3.996(107), which provides:

'Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and 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 hereby affirmed. (1964 P.A. 170, § 7, Eff. July 1, 1965.) (Emphasis supplied.)

Williams v. Primary School District #3, Green Twp., 3 Mich.App. 468, 475--476, 142 N.W.2d 894, 897 (1966), was a wrongful death action brought by the parents of a 6-year-old girl who died while using playground equipment situated on the defendant's premises. This writer wrote:

'Plaintiffs cite the case of Royston v. City of Charlotte (278 Mich. 255, 270 N.W. 288 (1936)), wherein Mr. Justice Wiest stated on p. 260, 270 N.W. p. 290:

"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.'

'To better understand whether the piece of playground equipment in our case comes within the designation of a nuisance we turn to Prosser on Torts, 3rd Ed. (Nuisance, § 87), pp. 592--594 for enlightenment and find:

"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. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchward as a substitute for any analysis of a problem; the defendant's interference with the plaintiff's interests is characterized as a 'nuisance', and there is nothing more to be said. With this reluctance of the opinions to assign any particular meaning to the word, or to get to the bottom of it there has been a rather astonishing lack of any full consideration of 'nuisance' on the part of legal writers. * * * A private nuisance is a civil wrong, based on a disturbance of rights in land. The remedy for it lies in the hands of the individual whose rights have been disturbed. A public or common nuisance, on the other hand, is a species of catch-all criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the obstruction of a highway to a public gaming-house or indecent exposure. As in the case of other crimes, the normal remedy is in the hands of the state. The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names. Add to this the fact that a public nuisance may also be a private one, when it interferes with the enjoyment of land, and that even apart from this there are circumstances in which a private individual may have a tort action for the public offense itself, and it is not difficult to explain the existing confusion.' (Emphasis supplied.)

'Applying the definition of nuisance to the facts of our case we are constrained to conclude that the playground equipment in question does not constitute a private nuisance for it was not a civil wrong based on a disturbance of rights in land, or a public nuisance, for it did not interfere with the rights of the community at large, nor was the maintenance of such equipment a criminal offense. At most under plaintiffs' allegations, this piece of equipment would be dangerous if used by children of tender age without proper supervision. Plaintiffs did not plead facts to show that the 'Giant Stride' equipment was a nuisance, per se. If it became dangerous, it did so, by reason of the manner in which or by whom it was used.' ³

Under Williams, supra, we find in the instant case there is no disturbance of rights in land, and no assertion that it is nuisance per se, I.e., as a matter of law. Plaintiff would have had to plead a great deal more in order to substantiate a claim of public nuisance in the context of this case. ⁴

'It is * * * the settled law of this state that the construction and maintenance of public highways is the exercise of a governmental function for the public discharge of which no liability exists except as created by statute.' 12 Callaghan's Michigan Civil Jurisprudence, Highways & Streets, § 400, p. 414.

In Blackwelder v. Concord, 205 N.C. 792, 795, 796, 172 S.E. 392, 393, 90 A.L.R. 1495, 1497, 1498 (1934), the Court said:

'There are many cases in the books permitting the recovery of damages for negligent construction of streets and for lack of ordinary care in the maintenance thereof, but such cases do not control the decision of the case at bar. The injury in this case results from the plan adopted or the exercise of the judgment of the governing authorities, and not from negligence in the execution of the plan in the construction and maintenance of the streets. Therefore the motion for nonsuit should have been allowed. Rollins v. Winston-Salem, 176 N.C. 411, 97 S.E. 211 (1918).'

Conditions in streets and public places which render the use thereof dangerous or inconvenient present issues referable to the law of negligence. 18 McQuillin, Municipal Corporations (3d ed. rev.), § 53.47, p. 248. When the defect in a public right of way is a natural consequence of negligence in original construction, there need not be notice, actual or constructive, of the duty to repair where the governmental entity was charged with notice from the beginning. 19 McQuillin, Supra, § 54.105a, pp. 293, 294. Defective design may lead to a continuing obligation to correct such defect and, should a governmental entity fail to do so, when on notice that such is necessary, liability may be based upon its negligence in failing to correct the defect. ⁵ Hargis v. City of Dearborn Heights, 34 Mich.App. 594, 601, 192 N.W.2d 44, 48 (1971), and Ebel v. Saginaw County Board of Road Commissioners, 386 Mich. 598, 607, 194 N.W.2d 365, 369 (1972), where the Court wrote:

'Since a nuisance may be 'public' or 'private', 'civil' or 'criminal', compliance with the orders of a regulatory commission such as the Public Service Commission, are usually held to preclude a charge of 'public' or 'criminal' nuisance. It cannot be said however that under all...