The opinion
*264 R. C. Kaufman, J.
(concurring). I concur in the result reached in the majority opinion because the facts alleged in the complaint, when taken in a light most favorable to the plaintiffs, are sufficient to plead an intentional nuisance in fact, and thus the complaint does aver facts in avoidance of governmental immunity. I do not agree entirely, however, with the definition of intentional nuisance as described by the majority’s opinion and write separately to elaborate on several problems involved in defining intentional nuisance. Because of the difficulties of the bench and bar generally in applying nuisance doctrine, 1 particularly with respect to how the nuisance doctrine applies in cases involving other issues such as governmental immunity and comparative negligence, a more precise approach using the accepted traditional meanings of terms of art such as "intentional” and "negligence” is needed to facilitate consistent application of nuisance doctrine.
It is particularly with respect to application of the nuisance doctrine in governmental immunity cases that much confusion exists in delineating between intentional and negligent nuisances. In practice, the distinction between intentionally tortious conduct and merely negligent conduct is often blurred so that an act otherwise traditionally recognized as negligent conduct is deemed to be intentional. See, e.g., McKee v Dep’t of Transportation, 132 Mich App 714 ; 349 NW2d 798 (1984); Pacini v Detroit, 126 Mich App 1 ; 336 NW2d 882 (1983); Melendres v Soales, 105 Mich App 73 ; 306 NW2d 399 (1981), lv den 413 Mich 916 (1982); Beckwith v Town of Stratford, 129 Conn 506, 512- *265 513; 29 A2d 775 (1942) (and cases discussed therein). 2 It has been recognized that this blurring of traditionally distinct legal concepts is done by courts to obviate the otherwise harsh results that application of governmental immunity may have on a particular plaintiff. As noted in Schroeder v Canton Twp, 145 Mich App 439, 441 ; 377 NW2d 822 (1985): "Too often, 'nuisance’ terminology is used to mask what are, in fact, simple negligence claims for the purpose of avoiding some effects of calling it what it is, a negligence claim. Too often this rationale is employed to avoid the legislative decision to impose governmental immunity.” See also Sanford v Detroit, 143 Mich App 194, 202 ; 371 NW2d 904 (1985) (Shepherd, J., dissenting). Yet, this result-oriented approach only culminates in confusion when such imprecise definitions are applied in practice. In my opinion, the best approach would be to define the concept of intentional and negligent nuisance according to proper and legal analysis using terms of art according to their generally accepted, traditional meanings.
Among those areas giving rise to confusion in nuisance law are issues concerning what constitutes a condition and differentiating between intentional and negligent acts.
In Michigan jurisprudence, the term "nuisance” refers to a dangerous condition. Veeneman v Michigan, 143 Mich App 694, 699 ; 373 NW2d 193 (1985). Thus, without regard to other issues such as governmental immunity and comparative negligence, liability for nuisance is predicated on the *266 existence of a dangerous condition, as opposed to liability being premised on the type of tortious conduct which gave rise to the condition. Id.; Buckeye Union Fire Ins Co v Michigan, 383 Mich 603, 636 ; 178 NW2d 476 (1970).
The cases divide nuisance into two categories: nuisance per se and nuisance in fact. The latter category is divided into intentional nuisance and negligent nuisance. Nuisances per se and nuisances in fact are differentiated on the basis of the type of condition involved. A nuisance per se is a condition which constitutes a nuisance at all times under any conditions, while a nuisance in fact depends upon the existence of circumstances which have the material tendency to create a danger to persons or property. Rosario v Lansing, 403 Mich 124, 132-133, 142 ; 268 NW2d 230 (1978).
It is recognized that while nuisances per se are rare, they can exist. Accepted samples of nuisance per se are found in Trowbridge v Lansing, 237 Mich 402 ; 212 NW 73 (1927) (decaying garbage in a "piggery”); and Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503 ; 141 NW 890 (1913) (disposing of raw sewage in a river).
Conditions which give rise to the existence of nuisances in fact are dependent on the circumstances present in a given case. 3 Generally, an act which creates a condition may be found to be a nuisance in fact where its natural tendency is to create danger and inflict injury on persons or property. Martin v Michigan, 129 Mich App 100, 108 ; 341 NW2d 239 (1983), lv den 422 Mich 890 (1985). Moreover, for liability to attach, the defendant must have some control over the condition. Hobrla v Glass, 143 Mich App 616, 630 ; 372 NW2d *267 630 (1985); Christopher v Baynton, 141 Mich App 309, 313-314 ; 367 NW2d 378 (1985), lv den 423 Mich 852 (1985). One important, yet often overlooked, aspect of what circumstances give rise to nuisances in fact is the length of time a situation must exist before it can be considered a condition that would support a claim of nuisance in fact. For example if, after a traffic accident, a vehicle is left by the police in such a way that it is protruding into the street, is that a "condition” at the moment the vehicle involved in the accident comes to rest and the police take control of the situation? That is, must some appreciable period of time elapse before the presence of that vehicle in the intersection is deemed to be a condition constituting a nuisance? If another motorist strikes the vehicle protruding into the intersection, could liability be founded on the basis that the police who took control of the situation failed to remove the condition? In Schroeder, supra, the Court found that approximately twenty-five minutes was an insufficient period of time for the condition to be transformed into a dangerous condition or nuisance. See also Young v Robin, 122 Mich App 84 ; 329 NW2d 430 (1982), lv den 418 Mich 890 (1983). In contrast, had the police allowed that vehicle to remain in the intersection for days or months, then arguably it could constitute a condition to support a claim of nuisance. Consequently, the definition of condition which supports a claim of nuisance would seem to entail some analysis of the duration of the time for which the condition existed prior to the injury complained of by the plaintiff.
As noted above, nuisances in fact are further subdivided between intentional nuisances and negligent nuisances. This distinction as to how the nuisance was created originally became critical in *268 response to determining whether contributory negligence would bar actions based on nuisance. Denny v Garavaglia, 333 Mich 317 ; 52 NW2d 521 (1952). In Denny , the Court held that only negligently caused nuisances in fact were barred by contributory negligence; intentional nuisances were not. Presently, with the adoption of comparative negligence, this distinction retains importance since in Melendres v Soales, supra, p 84, the Court held that comparative negligence would be inapplicable to actions based on intentional nuisances in fact. 4 In cases involving governmental immunity the distinction between intentional and negligently caused nuisances in fact is also critical since, based on the opinions in Rosario, supra, and Gerzeski v Dep’t of State Highways, 403 Mich 149 ; 268 NW2d 525 (1978), rehearing denied 403 Mich 956 (1978), this Court has consistently held that there is an exception to governmental immunity for intentional nuisances in fact. Schroeder, supra, p 441 n 4 (and cases cited therein). 5
As noted earlier, presently there exists some confusion as to what courts mean by the use of the word "intentional” in the phrase "intentional nuisance.” Utilizing the approach taken by Justice Moody in Rosario, supra, p 142 , the intent requirement of intentional nuisance has been defined in the following terms:
A second [type of nuisance] includes nuisances *269 which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.
It is clear, however, that under this definition much conduct which is traditionally considered to be merely negligent (i.e., mere failure to post warnings of latent dangers in a pond) is regarded as "intentional.” Melendres, supra, pp 82-83 . While a court’s desire to lower the threshold level necessary to show an intentional nuisance in fact in order to avoid the harshness of the doctrine of governmental immunity is, perhaps, understandable, the method chosen to accomplish this result, namely the adoption of a special definition for the word "intentional,” has led to needless confusion in the area, and ultimately to inconsistent results when other issues, such as application of comparative negligence, come into play. 6 Consequently, the appropriate approach to take would be to define the words "intentional” and "negligent” when used to describe different sorts of nuisances in fact as they are otherwise traditionally defined in the law of torts.
*270 The traditional approach to defining intent or intentional conduct for purposes of defining when an intentional tort is committed — as opposed to mere negligent acts — is described in Prosser & Keeton, Law of Torts (5th ed), § 8, pp 34-36:
The three most basic elements of this most common usage of "intent” are that (1) it is a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act.
As already noted, however, intent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does.
On the other hand, the mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. The line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.
The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a *271 result which will invade the interests of another in a way that the law forbids.
This treatment of the element of intent necessary for intentional torts historically finds support in Michigan jurisprudence in cases differentiating between intentional torts such as assaults and batteries on the one hand and nonintentional conduct on the other. Striker v Martindale, 372 Mich 578 ; 127 NW2d 306 (1964); Cogswell v Kells, 293 Mich 541 ; 292 NW 483 (1940).
As noted above, it is the degree of knowledge that typically separates intentional from negligent conduct. Mere knowledge, actual or constructive, of an appreciable risk is simply not sufficient. Rather, as Prosser makes clear, it is knowledge that the risk of harm is a substantial certainty which is the distinguishing element.
Utilizing this traditional distinction between intentional and negligent conduct, along with the above discussion as to what conditions constitute a nuisance in fact, the elements of intentional nuisance in fact should be the following:
1. The existence of a condition which has a natural tendency to create danger and to inflict injury to person or property.
2. The condition had been a nuisance in fact for an appreciable length of time prior to the occurrence of the injury (appreciable would have to be made on a case by case analysis; in some cases five minutes may be appreciable; in other situations months may not be).
3. The defendant controls the condition.
4. Defendant commits an act which caused the condition to exist. The act can be either the purposeful creation of the condition (i.e., act of commission), or the knowing refusal to remove a condi *272 tion over which the defendant has control (i.e., act of omission). 7
5. At the time of the defendant’s act he knew that an injury resulting from the condition was substantially certain to result from the condition (note that the words are not "knew, or should have known,” because "or should have known” are words of negligence).
6. At the time the injury complained of occurs, the condition is a nuisance in fact.
7. The condition is a proximate cause of the injury complained of by the plaintiff.
In contrast, the elements of a negligent 8 nuisance in fact should be as follows:
1. The existence of a condition which has a natural tendency to create danger and inflict injury to person or property.
2. The condition had been a nuisance in fact for an appreciable length of time prior to the occurrence of the injury (appreciable would have to be made on a case by case analysis; in some cases five minutes may be appreciable, in other situations months may not be).
3. The defendant controls the condition.
4. Defendant knew or should have known that the presence of the condition presented an unreasonable risk of injury to person or property.
5. By the exercise of ordinary care, defendant could have removed the condition prior to the injury complained of.
6. The condition is a proximate cause of the injury complained of by the plaintiff.
*273 Turning to the merits of the instant case, a review of the facts alleged by the plaintiffs, as summarized in the majority’s opinion, when measured against the foregoing formulation as to what should be necessary to plead an intentional nuisance in fact, leads me to conclude that the plaintiffs have pled an intentional nuisance in fact. I therefore concur in the result reached in the majority’s opinion.
Prosser & Keeton, Law of Torts (5th ed), § 86, pp 616-617.
The definition and distinction between intentional and negligent nuisances stated in Beckwith , 129 Conn 506; 29 A2d 775 (1942), was adopted in Denny v Garavaglia, 333 Mich 317, 331-332 ; 52 NW2d 521 (1952), and in Justice Moody’s concurring opinion in Rosario v Lansing, 403 Mich 124, 142 ; 268 NW2d 230 (1978).
Indeed, it has been noted that whether or not a particular thing or act creates a nuisance in fact is ordinarily a question of fact. Rosario, supra.
In Melendres, supra, p 83, n 6 , the Court noted that the peculiar definition accorded the words "intentional” in Denny, supra, pp 331-332 , may have been originally adopted to ameliorate the harshness of the contributory doctrine, and that in view of the adoption of comparative negligence this reason no longer existed.
This Court has also found that actions founded on intentional nuisances in fact continue to survive governmental immunity notwithstanding the Supreme Court’s decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567 ; 363 NW2d 641 (1984). See Veeneman v Michigan, 143 Mich App 694, 700 ; 373 NW2d 193 (1985).
The use of this special definition for "intentional,” of course, results in an anomaly when the issue of comparative negligence arises. Under the approach to the definition as stated in Justice Moody’s opinion, comparative negligence would not be deemed a partial defense in cases otherwise involving claims of negligence and to which comparative negligence would ordinarily apply. See Melendres, supra. In a probable effort to avoid this anomaly, this Court in Dinger v Dep’t of Natural Resources, 147 Mich App 164, 176-177 ; 383 NW2d 606 (1985), directed the trial court to give a comparative negligence instruction in a case where plaintiff had established the existence of an intentional nuisance in fact but where defendant had established that the plaintiff was guilty of wilful and wanton misconduct. Yet this approach does not avoid the basic inconsistency of comparative negligence applying in negligence actions but not applying to those cases successfully pleaded as intentional nuisances in fact but which allege nothing more than which is typically deemed negligent conduct.
See Landry v Detroit, 143 Mich App 16, 25 ; 371 NW2d 466 (1985); Veeneman v Michigan, supra.
The traditional elements of a cause of action for negligence were summarized in Moning v Alfono, 400 Mich 425 ; 254 NW2d 759 (1977), reh den 401 Mich 961 (1977).