Yarrick v. Village of Kent City

Griffin, J.

(concurring in part and dissenting part). The present action arises from an alleged fall by plaintiff Nancy Yarrick into a hole located within a public park owned and maintained by governmental defendant Village of Kent City. Although plaintiffs’ second amended complaint sounds in negligence, 1 it seeks to avoid the bar of *417 governmental immunity by pleading (Count i) the public buildings exception to governmental immunity (MCL 691.1406; MSA 3.996[106]) and (Count ii) intentional nuisance.

I concur with my colleagues that the lower court was correct in granting summary disposition as to Count i for the well-stated reasons in the majority’s opinion. I, however, respectfully dissent as to the majority’s conclusion that the lower court *418 erred in granting summary disposition as to the intentional nuisance claim (Count n).

The governmental immunity statute, MCL 691.1407 et seq.; MSA 3.996(107) et seq., grants governmental agencies broad immunity from tort liability subject to certain enumerated statutory exceptions. In addition, governmental immunity is limited by certain constitutional provisions such as the "Taking Clauses” of the Michigan Constitution (Const 1963, art 10, § 2) and United States Constitution (US Const, Am V).

In Hadfield v Oakland Co Drain Comm’r, 430 Mich 139 ; 422 NW2d 205 (1988), the participating justices of our Supreme Court in four separate opinions recognized that, in addition to the enumerated statutory exceptions to governmental immunity, an exception exists for trespass-nuisance. Although I, too, would hold that the trespass-nuisance exception survives the governmental immunity statute, I would base its viability upon the "Taking Clauses” of our constitutions rather than upon any language contained within the governmental immunity statute.

Justice Brickley in Hadfield recognized the constitutional origins of the trespass-nuisance exception after a thorough survey of pre-1964 case law:

As is evident from the above discussion of the early cases, the "Taking” Clause of the constitution formed the basis of the trespass-nuisance exception as it evolved prior to 1964. [Id. at 165.]

Largely on the basis of its constitutional ties, Justice Brickley concluded that the Legislature intended the continuation of the trespass-nuisance immunity exception:

Thus, there is a strong link between the common-law trespass-nuisance exception and the Tak *419 ing Clause of the constitution. Combined with the long history of the exception, this constitutionally based policy provides a solid foundation for the reaffirmation of trespass-nuisance as a basis of governmental tort liability. The strong presence of trespass-nuisance in the case law prior to 1964, in light of its constitutional origins, persuades us that the Legislature intended, through the language of the second sentence of § 7, to preserve the exception in its established form.

Therefore, we find that plaintiffs will successfully avoid a governmental immunity defense whenever they allege and prove a cause of action in trespass or intruding nuisance. Trespass-nuisance shall be defined as trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage. The elements may be summarized as: condition (nuisance or trespass); cause (physical intrusion); and causation or control (by government). [Id. at 168-169.]

Other claimed exceptions to immunity such as "intentional nuisance” were not recognized by pre1964 case law and therefore were deemed to be barred by the immunity statute:

We have limited the exception to the type of governmental nuisance liability that was recognized prior to 1964. As is evident from the historical analysis offered above, the vast majority of cases applying a nuisance exception to governmental immunity involved trespass or intruding nuisance. Utilizing the same approach, we thus reject several other versions of the exception, claimed by the plaintiffs in these cases, that would clearly extend the scope of the exception beyond that which was recognized in 1964, and would hence run contrary to legislative intent. [Id. at 169.]

Our Court in two post-Hadfield cases has fol *420 lowed Justice Brickley and held that there is no intentional nuisance exception to governmental immunity.

In Giddings v Detroit, 178 Mich App 749, 753-754 ; 444 NW2d 242 (1989), this Court in an unanimous opinion interpreted Hadñeld as follows:

In the lead opinion in Hadfield , Justice Brickley noted that there was no pre-1964 case law recognizing an intentional nuisance exception. Hadfield, supra, p 170 . Those pre-Hadfield cases which recognized an intentional tort exception appear to have done so after having analyzed Rosario v Lansing, 403 Mich 124 ; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149 ; 268 NW2d 525 (1978), two Supreme Court cases in which no clear majority view emerged. See, e.g., Ford v Detroit, 91 Mich App 333 ; 283 NW2d 739 (1979). Justice Brickley notes however that neither Rosario nor Gerzeski represent pre-1964 case law. As such, they are not necessarily included as recognized exceptions under MCL 691.1407; MSA 3.996(107). We are not aware of any other opinion which has addressed this issue or which has cited pre-1964 authority for the viability of the intentional nuisance exception. In the absence of relevant precedent or a statement from our Supreme Court specifically recognizing the exception, we are constrained to find there is no exception to immunity under the statute where, as here, the claim is for intentional nuisance. See Scott, supra; Garcia, supra, (Mackenzie, J., dissenting).

This finding is consistent with the general rule that there is no intentional tort exception to governmental immunity as long as the alleged torts were committed during the performance of a governmental function activity. See Smith v Dep’t of Public Health, 428 Mich 540, 544 ; 410 NW2d 749 (1987); Eichhorn v Lamphere School Dist, 166 Mich App 527, 547 ; 421 NW2d 230 (1988).

Also see Scott v Dep’t of Natural Resources, 169 *421 Mich App 205 ; 425 NW2d 518 (1988), and Garcia v Jackson (On Remand), 174 Mich App 373, 378-379 ; 435 NW2d 796 (1989) (Mackenzie, J., dissenting).

Although I disagree with Justice Brickley’s interpretation of legislative intent, I agree with his conclusion that the immunity statute bars the instant claim of "intentional nuisance.”

The statutory language upon which the plaintiffs rely is the last sentence of § 7, as it existed at the time of Nancy Yarrick’s injury: 2

[T]his 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. [MCL 691.1407; MSA 3.996(107).]

Although prior immunities are deemed not to be modified or restricted, the converse pertaining to exceptions to immunity is not true. On the contrary, rather than impliedly preserving all common-law exceptions to immunity that existed prior to its enactment, the statute seeks to codify and limit immunity exceptions to those specifically enumerated. By enacting the statute, the Legislature not only overturned Williams v Detroit, 364 Mich 231 ; 111 NW2d 1 (1961), it also sought to avoid the unpredictability of the common law by codifying governmental immunity. Supplemental common-law immunity exceptions are incompatible with the comprehensive immunity scheme enacted by the Legislature.

The role of the judiciary is to construe statutes as intended by the Legislature, not rewrite them. *422 Irrespective of the merits of the immunity doctrine, I find no intention by the Legislature either expressed or implied to permit an exception to governmental immunity for "intentional nuisance,” nor do I find a constitutional basis for such a cause of action against governmental agencies. Accordingly, I would affirm.

See, for example, paragraphs:

18. That Defendant negligently failed to maintain the public rest room building and the ingress and egress thereto from the parking lot in a reasonably safe condition. . . .

19. That Defendant negligently failed to maintain and inspect the public rest room building and the ingress and egress thereto from the parking lot. . . .

20. That Defendant negligently failed to discover, correct and remedy the dangerous, defective and hazardous conditions. . . .

21. That the Defendant negligently failed to warn tourists and other persons using the public rest room building and the ingress and egress thereto from the parking lot of hazards and dangers then and there existing such as the grass-covered holes in the ground.

*417 22. That Defendant negligently failed to fill in or correct the hazardous condition created by the holes in the ground in the grassy area of the park which provided ingress and egress to the public rest room building.

23. That the negligent acts of the Defendant as set forth herein did breach each and every duty on the part of said Defendant.

24. That as a direct and proximate result of Defendant’s, negligence, Plaintiff, Nancy J. Yarrick, suffered severe and permanent injuries. . . .

25. That as a proximate result of the Defendant’s negligence as aforesaid, Plaintiff, Nancy J. Yarrick, has sustained the following damages. . . .

26. That as a proximate result of the Defendant’s negligence as aforesaid, Plaintiff, James A. Yarrick, has sustained the following damages. . . .

28. That Defendant, Village of Kent City, intentionally created or continued a nuisance, including, but not limited to:

A. Defendant improperly created and allowed to exist grass-covered holes in the grass area of the park between the parking lot and the public rest rooms;

B. Defendant failed to maintain the park premises in a reasonably safe condition for tourists and other persons;

C. Defendant failed to inspect the park premises so as to be aware of the dangerous, defective and hazardous conditions then and there existing;

D. Defendant failed to discover and remedy the dangerous, defective and hazardous conditions which were actually or constructively known or reasonably should have been known by Defendant for some time prior to Plaintiff’s injury;

E. Defendant failed to fill in or correct the dangerous, defective and hazardous condition created by grass-covered holes in the ground in the grassy areas of the park;

F. Defendant failed to reasonably warn persons using the park premises of the hazards, defects and dangers actually or constructively known to the Defendant.

1986 PA 175 amended this sentence, which now reads: "Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. [MCL 691.1407(1); MSA 3.996(107X1).]