# Bradford v. Michigan

> Michigan Court of Appeals · August 4, 1986 · 153 Mich. App. 756

URL: https://www.frixlaw.com/law-library/cases/9710328

## Case

- **Full name:** Bradford v. State of Michigan
- **Court:** Michigan Court of Appeals
- **Decided:** August 4, 1986
- **Citations:** 153 Mich. App. 756; 396 N.W.2d 522; 1986 Mich. App. LEXIS 3005
- **Precedential status:** Published
- **Opinion:** Concurrence by MacKenzie
- **Judges:** Allen, MacKenzie, Swallow
- **Cited by:** 5 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/9710328

## Opinion text

MacKenzie, J.
(concurring in result with Allen, P.J.). I also concur with the result reached in the lead opinion. I write separately because I believe *770 the lead opinion too hastily dismisses the question of whether the intentional nuisance exception to governmental immunity has been abolished by Ross v Consumers Power Co (On Rehearing), 420 Mich 567 ; 363 NW2d 641 (1984).
When a plaintiff suing the state pleads facts which demonstrate that the activity alleged is in the "exercise or discharge of a governmental function,” MCL 691.1407; MSA 3.996(107), the claim is barred by governmental immunity unless the plaintiff has pled facts which fit within one of the exceptions to governmental immunity. The Legislature has codified four such exceptions. MCL 691.1402; MSA 3.996(102), MCL 691.1405, MSA 3.996(105), MCL 691.1406; MSA 3.996(106), and MCL 691.1413; MSA 3.996(113). In Rosario v City of Lansing, 403 Mich 124 ; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149 ; 268 NW2d 525 (1978), five justices agreed that claims of nuisance per se and intentional nuisance-in-fact represent judicially created exceptions to governmental immunity.
Several panels of this Court have been willing to infer from the Supreme Court’s disposition in Disappearing Lakes Ass’n v Dep’t of Natural Resources, 420 Mich 567, 657 ; 363 NW2d 641 (1984), one of the cases decided with Ross , that the judicially created intentional nuisance exception to governmental immunity has survived the Ross decision. See, e.g., Attorney General v Ankersen, 148 Mich App 524 ; 385 NW2d 658 (1986); Dinger v Dep’t of Natural Resources, 147 Mich App 164 ; 383 NW2d 606 (1985); Schroeder v Canton Twp, 145 Mich App 439 ; 377 NW2d 822 (1985); Veeneman v Michigan, 143 Mich App 694 ; 373 NW2d 193 (1985), lv gtd 424 Mich 876 (1986); Moore v City of Pontiac, 143 Mich App 610 ; 372 NW2d 627 (1985), and Landry v Detroit, 143 Mich App 16 ; 371 NW2d 466 (1985), lv gtd 424 Mich 876 (1986). The *771 lead opinion, relying on these cases, apparently also adopts this position.
In my view, the inference that the Supreme Court in Disappearing Lakes, supra, intended to retain the judicially created intentional nuisance exception is tenuous at best. Indeed, the opposite inference may also be drawn from Ross . In the pre-Ross case of McCann v Michigan, 398 Mich 65, 77 ; 247 NW2d 521 (1976) (opinion of Ryan, J.), it was stated that a plaintiff may plead facts in avoidance of immunity "by stating a claim which fits within one of the legislatively or judicially created exceptions to governmental immunity.” (Emphasis added.) In Ross , however, the same proposition is stated very differently:
[Plaintiffs must plead facts in their complaint in avoidance of immunity .... This may be accomplished by stating a claim which fits within one of the statutory exceptions or pleading facts which demonstrate that the tort occurred during the exercise or discharge of a non-governmental or proprietary function. See McCann, supra, p 77 (opinion of Ryan, J.), [ 420 Mich 621 , n 34.]
Notably absent in Ross is the above-emphasized "or judicially created” language of McCann . The obvious inference is that the intentional nuisance exception is no longer viable.
Whatever the status of the intentional nuisance exception, I agree that in this case plaintiffs have failed to plead in avoidance of governmental immunity. If the exception has not survived Ross , plaintiffs’ claim fails in that they have not alleged a proprietary activity. If the exception remains as the lead opinion asserts, plaintiffs have failed to properly plead an intentional nuisance-in-fact. See Garcia v City of Jackson, 152 Mich 254 ; 393 NW2d 599 (concurring opinion of R. C. Kaufman, J.).
*772 I therefore concur in the result reached in the lead opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710328. Public record. Not legal advice.