# Anderson v. Brown Brothers, Inc.

> Michigan Court of Appeals · November 12, 1975 · 65 Mich. App. 409

URL: https://www.frixlaw.com/law-library/cases/9673817

## Case

- **Full name:** Anderson v. Brown Brothers, Inc.
- **Court:** Michigan Court of Appeals
- **Decided:** November 12, 1975
- **Citations:** 65 Mich. App. 409; 237 N.W.2d 528; 1975 Mich. App. LEXIS 975
- **Precedential status:** Published
- **Opinion:** Concurrence by O'Hara
- **Judges:** Danhof, Holbrook, O'Hara
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673817

## Opinion text

Opinion op O’Hara, J.
O’Hara, J.
(concurring in part). I agree with Judge Danhof that the trial court properly disposed of count three based on ordinary negligence by entry of summary judgment.
I also agree with both my colleagues that the finding of the trial judge that neither gross negligence nor wilful and wanton misconduct, pleaded in count two,' was established was not clearly erroneous and is not to be disturbed by us.
I do not agree with Judge Danhof in his proposed disposition of count one alleging nuisance.
First, I think it does plead an actionable nuisance and is not merely so labeled.
Granted the nuances of definition of the term "nuisance”, its categories and subcategories, I stand by what this Court’s majority said in In re Woods Estate, 49 Mich App 412, 416 ; 212 NW2d 240 (1973), lv den 391 Mich 759 (1974).
"In essence it [the difference] seems to be the hypothetical 'minds of reasonable men cannot differ’ test that will determine whether the kind of nuisance under the adduced facts is a question of fact or law.”
True the Woods case, supra, is inapposite to a *421 degree because in Woods the question was whether the nuisance, if established, would vitiate the defense of contributory negligence.
Nonetheless the test for determining the type stands undisturbed by our Supreme Court. Given this premise plaintiff should have been allowed to put in his proofs on that theory. The issue should not have been disposed of by summary judgment.
I feel fortified in this conclusion by the language of the distinguished late Chief Justice Carr in Bluemer v Saginaw Central Oil & Gas Service, 356 Mich 399 ; 97 NW2d 90 (1959). In that case, writing for a unanimous Court, Mr. Justice Carr quoted with approval from 66 CJS, Nuisances, § 3, pp 733-734:
"The number of nuisances per se is necessarily limited, and by far the greater number of nuisances are nuisances per accidens. For this reason whether or not a particular thing or act is a nuisance is generally a question of fact”. 356 Mich at 411 . (Emphasis supplied.)
If in this state a pleaded nuisance is indistinguishable from an action based upon gross negligence or wilful and wanton misconduct, I am unaware of it. If it is true, it should be said so with judicial clarity and finality. It seems to me the Supreme Court has said there is a difference as succinctly as possible in Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630, 636 ; 178 NW2d 476 (1970), as quoted by the very recent case of Buddy v Michigan, 59 Mich App 598, 603 ; 229 NW2d 865 (1975).
"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. *422 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.”
I vote to vacate the summary judgment entered in favor of all the defendants on count one alleging a nuisance and to remand this issue to the trial court for such proceedings as may there properly ensue.
I vote to award no costs; no party having prevailed in full.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673817. Public record. Not legal advice.