Veeneman v. State

• Decision Date: 09 September 1985
• Docket Number: Docket No. 72022
• Citation: 143 Mich.App. 694,373 N.W.2d 193
• Parties: Howard VEENEMAN, Personal Representative of the Estate of Jay Veeneman, deceased, Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee. 143 Mich.App. 694, 373 N.W.2d 193
• Court: Court of Appeal of Michigan — District of US

Page 193

373 N.W.2d 193

Howard VEENEMAN, Personal Representative of the Estate of Jay Veeneman, deceased, Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee.

Docket No. 72022.

143 Mich.App. 694, 373 N.W.2d 193

Court of Appeals of Michigan.

Submitted Feb. 7, 1984.

Decided June 19, 1985.

Released for Publication Sept. 9, 1985.

[143 MICHAPP 696] Napieralski, Walsh & Velzen by Randall L. Velzen, Grand Rapids, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Clive D. Gemmill, Asst. Atty. Gen., for defendant-appellee.

[143 MICHAPP 697] Before KELLY, P.J., and MAHER and REILLY ^*, JJ.

PER CURIAM.

Plaintiff's decedent was fatally injured on May 23, 1981, when the dune buggy in which he was riding overturned. The accident occurred in the Silver Lake State Park, Oceana County, in an area designated for use by off-road vehicles. The park is owned and operated by defendant State of Michigan.

Plaintiff brought this action against the state alleging negligence and intentional and negligent nuisance in fact. The trial court on May 2, 1983, granted defendant's motion for summary judgment under GCR 1963, 117.2(1), finding that the action was barred by governmental immunity, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), and by the recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485. Plaintiff was permitted to file a second amended complaint which added a count alleging gross negligence or wilful or wanton misconduct. A final order dismissing the case was entered June 6, 1983. Plaintiff appeals as of right. We hold that (1) the action against the state is barred by governmental immunity, except as to plaintiff's allegation of intentional nuisance, and (2) the recreational use statute does not bar plaintiff's action.

Governmental Immunity

In order to plead a valid claim against a government agency, the plaintiff must plead facts in avoidance of governmental immunity. McCann v. Michigan, 398 Mich. 65, 77, 247 N.W.2d 521 (1976). This is accomplished by stating a claim which fits [143 MICHAPP 698] within one of the legislatively ¹ or judicially created exceptions to governmental immunity or by pleading facts which demonstrate that the activity alleged is not in the "exercise or discharge of a governmental function" within M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). ² Id.

In Ross v. Consumers Power Co. (On Reh), 420 Mich. 567, 620, 363 N.W.2d 641

(1984), the Court adopted the following definition of "governmental function":

"We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in Sec. 13) or falls within one of the other statutory exceptions to the governmental immunity act."

In this case, the state's operation of the Silver Lake State Park is an activity which is expressly mandated or authorized by statute. M.C.L. Sec. 318.3 et seq.; M.S.A. Sec. 13.1011 et seq. The activity is clearly not proprietary in nature and does not come within any of the statutory exceptions to governmental immunity. We therefore conclude that plaintiff's claim against the state is barred by governmental immunity, except to the extent plaintiff has pled a valid claim of intentional nuisance, a judicially created exception to governmental immunity.

[143 MICHAPP 699] In Rosario v. City of Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978), and Gerzeski v. Dep't of State Highways, 403 Mich. 149, 268 N.W.2d 525 (1978), five justices of the Supreme Court agreed that claims of nuisance per se and intentional nuisance in fact ³ are not barred by governmental immunity. See Disappearing Lakes Ass'n v. Dep't of Natural Resources, 121 Mich.App. 61, 65-66, 328 N.W.2d 570 (1982), aff'd 420 Mich. 567, 363 N.W.2d 641 (1984).

Liability for nuisance is predicated on the existence of a dangerous condition.

"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. Bowman v. Humphrey (1906), 132 Iowa 234 (109 NW 714)." Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476 (1970).

A nuisance in fact is a nuisance by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact where its natural tendency is to create danger and inflict injury on a person or property. Rosario, supra, 403 Mich., pp. 132-133, 268 N.W.2d 230, quoting Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 411, 97 N.W.2d 90 (1959). An intentional nuisance is one created by conduct intended to bring about conditions which are in fact found to be a nuisance. Gerzeski, supra, 403 Mich., pp. 161-162, 268 N.W.2d 525; Rosario, supra, 403 Mich., p. 142, 268 N.W.2d 230. The existence of a nuisance in fact is a question for the trier of fact. In order for the issue to be submitted to the [143 MICHAPP 700] trier of fact, however, the allegations in the plaintiff's complaint, when liberally construed, must be sufficient, if proven, to establish the existence of an intentionally created or continued nuisance in fact. Rosario, supra, pp. 142-144, 268 N.W.2d 230; Pacini v. Detroit, 126 Mich.App. 1, 5, 336 N.W.2d 882 (1983).

The Supreme Court in Ross, supra, did not expressly consider whether a claim of intentional nuisance continues as a common law exception to governmental immunity. However, in Disappearing Lakes Ass'n, supra, one of the cases decided along with Ross, the plaintiffs alleged, inter alia, that the DNR "negligently and/or intentionally created a nuisance" by issuing a permit for dredging certain canals. The Court of Appeals found that the plaintiffs had not pled a valid claim of nuisance because the issuance of dredging permits alone was not sufficient indication that the DNR actually controlled the project which created the nuisance. The Supreme Court affirmed, finding that "[t]he Court of Appeals conclusion that plaintiffs had insufficiently pleaded a nuisance cause of action is not clearly erroneous." Ross, supra, 420 Mich., p. 657, 363 N.W.2d 641. We can only infer from this statement that the Court intended to retain the common law intentional nuisance exception recognized in Rosario and Gerzeski. See Landry v. Detroit, 143 Mich.App. 16, 371 N.W.2d 466 (1985).

In the present case plaintiff's complaint alleges that defendant improperly designated certain areas of the park for use by off-road vehicles and failed to establish rules to minimize the injuries to off-road vehicle participants, including failure to regulate pattern and speed of travel, failure to limit the number of off-road vehicles, failure to adequately inspect the terrain and vehicles, failure to adequately install warning signs and failure to provide adequate medical assistance. The complaint[143 MICHAPP 701] also alleges that defendant was aware of previous deaths and injuries of a similar nature in the area, and knowing this, failed to take appropriate measures. We find that the complaint sufficiently alleges an intentional nuisance which is an exception to the bar of governmental immunity.

Recreational Use Statute

The recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, provides:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee." (Emphasis supplied.)

The Legislature has set fees for the use of state parks in the amount of $10 for an annual motor vehicle permit or $2 for a daily permit for each motor vehicle entering the park. M.C.L. Sec. 318.310; M.S.A. Sec. 13.1053(10). We find these fees to constitute valuable consideration for use of the state park by occupants of the vehicles, including use of the off-road vehicle area on which the accident in this case occurred. The recreational use statute therefore has no application to the instant case. ⁴

[143 MICHAPP 702] Plaintiff's contention that summary judgment was premature because discovery had not been completed is without merit. Summary judgment was granted under GCR 1963, 117.2(1), based solely on the pleadings. Since this case does not involve a dispute as to material facts, the authority relied upon by plaintiff is inapplicable.

The order of dismissal is reversed as to the intentional nuisance count, is affirmed as to all other counts of the complaint, and the case is remanded for trial.

KELLY, Presiding Judge (concurring in part and dissenting in part).

I concur with the majority regarding its treatment of the governmental immunity issue and its finding that "the state's operation of the Silver Lake State Park is an activity which is expressly mandated or authorized by statute" and is thus protected under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). I also concur in the majority's reading of Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), and Disappearing Lakes Ass'n v. Dep't of Natural Resources, 121 Mich.App. 61, 328 N.W.2d 570 (1982), aff'd 420 Mich. 567, 363 N.W.2d 641 (1984), as to the survival of the intentional nuisance exception to the doctrine of governmental immunity. I do not, however, agree that plaintiff in this case has pled facts sufficient to state a claim of intentional nuisance.

...