Hadfield v. Oakland County Drain Commissioner

Boyle, J.

(concurring). The basic premise of the lead opinion is that § 7 of the governmental tort liability act requires a continuation of the nuisance exception as formulated prior to its enactment in 1964 and as amended by 1970 PA 155 . I agree that the Legislature intended to codify the common law of governmental immunity, and I agree with the resolution of each of these cases. I *205 write separately to observe that as it is not necessary in this case to decide what the common law includes beyond points necessary for decision, it is unnecessary to conclude that the common-law nuisance exception includes only those theories expressly necessary to a prior Michigan decision. I also write because I believe that the opinion’s emphasis on the Taking Clause implicitly suggests the demise of other potentially viable claims.

The lead opinion is correct that the traditional trespass-nuisance theory is well recognized as an exception to governmental immunity in Michigan case law. The trespass-nuisance theory is simply the private nuisance recognized at common law.

The lead opinion further notes the category of public nuisance in Michigan which is governed by statute as well as common law, and for which a remedy is abatement. The lead opinion would limit, however, any private remedy for public nuisance to that which is sought for an invasion which is directly analogous to trespass nuisance. I disagree that such a limitation is required by the common law.

i

The law of nuisance may be an "impenetrable jungle,” but the commentators are in agreement that, historically, nuisance has been limited to the invasion of two distinct interests.

One of these two fields of liability bears the name of public or common nuisance. It covers the invasion of public rights, which is to say, rights common to all members of the public, such as for example the right to the free and safe use of the public highway. In its origin it was criminal, and it remained exclusively criminal until the sixteenth century, when as an incidental remedy tort *206 damages were first awarded to private individuals who could show that they had suffered particular harm, distinct from that suffered by other members of the public in general. The limitations thus imposed still have significance today. A public nuisance is still normally a criminal offense . . ., and recovery of damages is still limited to those who can show particular harm, of a kind different from that suffered by other members of the public exercising the public right. . . .

The other field of liability is called private nuisance. It covers the invasion of the private interest in the use and enjoyment of land. In its origin it was purely tortious in character, and it has remained so. It is always a tort against land, and the plaintiff’s action must always be founded upon his interest in the land. [4 Restatement Torts, 2d, Introductory Note to ch 40, pp 84-85. See also Prosser & Keeton, Torts (5th ed), § 86, pp 618-619.]

In Kilts v Kent Co Bd of Supervisors, 162 Mich 646, 651 ; 127 NW 821 (1910), this Court described a nuisance as follows:

[A] nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same .... While adjudicated cases have been so variable that courts generally regard a technical and comprehensive definition difficult if not impracticable, the trend of opinion seems to be that the circumstances must be examined with a view to ascertaining whether the alleged condition is one so serious as to interfere with the comfort of life and enjoyment of property, or so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights.

Prior to 1964, this Court had occasion to declare a public nuisance created by the state and to order its abatement. Attorney General ex rel Wyoming *207 Twp v Grand Rapids, 175 Mich 503 ; 141 NW 890 (1913) (disposing of raw sewage in a river); Trowbridge v City of Lansing, 237 Mich 402 ; 212 NW 73 (1927) (decaying garbage in a "piggery”). In both of these cases, the interference was not only with the property and personal rights of the persons affected, but also with the rights of a large community of people.

Presumably, this Court, after recognizing the remedy of abatement against the government for a public nuisance, would not deprive a private individual who suffered special harm because of the same nuisance from a remedy well established at common law. It should follow that the public nuisance remedy, even where not based on invasion of another’s property rights, is an exception to governmental immunity.

A nuisance per se is also an exception to governmental immunity. Nuisance per se is but a category of proof which may establish an invasion of public or private rights. Nuisance per se or at law is defined in Michigan as an activity or condition which constitutes a nuisance without regard to the care with which it is conducted or the circumstances under which it exists. Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411 ; 97 NW2d 90 (1959).

It is distinguished from the nuisance per accidens or nuisance in fact which is a condition which becomes a nuisance by reason of circumstances and surroundings, and liability is predicated on negligence. Id. See also DeMars, Intentional nuisance in fact: Should it be a bar to a governmental function defense in Michigan?, 1981 Det C L R 771, 773.

As the lead opinion indicates, the cases of Royston v City of Charlotte, 278 Mich 255 ; 270 NW 288 (1936), Trowbridge , and Attorney General ex *208 rel Wyoming Twp are often cited to support the inclusion of nuisance per se within the exception. I agree with the lead opinion that the refuse from the piggery in Trowbridge and the sewage in Wyoming were conditions falling within the nuisance per se category. I also agree that had the claim been made, which it was not, both activities could amount to trespass-nuisance in the invasion of the use and enjoyment of private property. Royston is also support for a claim of damages resulting from a nuisance per se. A nuisance per se constituting a public nuisance arises from inherent danger even under the best of care. The statement that a nuisance is "per se” means only that it does not arise out of negligent conduct. Prosser, Torts (4th ed), § 88, p 582.

In other words, unlike the nuisance in fact, nuisance per se is not predicated on the want of care, but is unreasonable by its very nature. Accordingly, "[i]n the few instances wherein the Legislature or this Court may label a condition or activity patently unreasonable by its very nature, the state may not circumvent its liability in connection with the situation or operation by raising the shield of sovereign immunity.” Gerzeski v State Hwy Dep't 403 Mich 149, 169 ; 268 NW2d 525 (1978) (Ryan, J., dissenting). To hold otherwise, would allow the state an absolute right to use its property in any manner it may choose without regard for the public at large or private persons. Id.

Therefore, while I concur in the result, and much of the analysis, I respectfully disagree, as indicated.

ii

I agree with the lead opinion’s dispositions of *209 Hadfield v Oakland Co Drain Comm’r and McCaul v Village of Lake Odessa which hold that the defendants may be held liable for the harm to the respective plaintiffs’ property on the basis of the trespass-nuisance or private nuisance theory.

I further agree that the Court of Appeals decision in Veeneman v Michigan must be reversed as far as it recognizes an intentional nuisance exception to governmental immunity on the basis of the facts of the case. Further, it is clear in that case that plaintiffs cannot sustain either a private nuisance or public nuisance on the basis of the facts of the case. For the same reasons, I agree that the Court of Appeals decision in Landry v Detroit must be reversed.

Levin, J.

(separate opinion). I agree with my colleagues that an action for nuisance may be maintained in Hadfield against the Oakland County Drain Commissioner and in McCaul against the Village of Lake Odessa. The lead opinion reviews the authorities that establish that there is a nuisance exception that survived the enactment of the governmental tort liability act, 1 at least in a case where, as set forth in the lead opinion, there is a "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.” 2 The plaintiffs in Hadfield and McCaul alleged such trespass or interference.

I agree with Justice Boyle that the governmental tort liability act does not preclude a damage action for loss caused by a public nuisance or a nuisance per se, but that neither a private nuisance nor a public nuisance action may be main *210 tained "on the basis of the facts” 3 in Veeneman and Landry.

Because a majority of the Court agrees that nuisance actions cannot be maintained in Veeneman and Landry, disposition of the instant cases does not require that we decide whether this Court erred in holding that an action for nuisance may be maintained on the facts of Rosario v City of Lansing, 403 Mich 124 ; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Hwys, 403 Mich 149 ; 268 NW2d 525 (1978). 4

In Rosario , a majority of the Court concluded that the negligent maintenance of a drain by a city resulting in the death of a child was an actionable nuisance. 5 In Gerzeski, supra at 162 , a *211 majority concluded that a nuisance action could be maintained where persons drowned in a frozen artificial pond created and owned by the Department of State Highways. Two of the five-justice majority stated that the trial judge could, on the evidence, properly find that the state had created an intentional nuisance because it "intentionally constructed the pond in the path of a warm water flow” and "[t]his directly resulted in the pond’s deceptive appearance and, in a sense, created a trap for those crossing its surface.” 6

In contrast with Gerzeski , it does not appear that in Veeneman the state failed to guard against a risk that would not have been apparent to a person using the sand dunes for recreational purposes. Ponds, lakes, or sand dunes are not ordinarily public nuisances in their natural condition, unless there is a trap, such as the warm water that converted the ice pond in Gerzeski into a *212 trap, just as quicksand could create a trap in sand dunes. 7 Failure to warn that sand dunes can tip over a dune buggy in the same way that waves might tip over a boat does not render a natural condition a nuisance.

Similarly, in Landry, again in contrast with Gerzeski , there was no deceptive appearance or trap. The risk that a defendant in a criminal case 8 may attack another person in a courthouse, particularly one with whom the attacker has a grievance, 9 is apparent. An apparent risk of physical assault is implicit in that situation and is much like the risk that a sand dune buggy or canoe will tip over.

A public nuisance has been defined as "an unreasonable interference with a right common to the general public.” 10 Failing to warn recreational users of an apparent risk associated with the use of sand dunes in their natural state is not an unreasonable interference with their right to use the sand dunes. A courthouse is frequently crowded by an assemblage of lawyers, judges, court personnel, victims, defendants, witnesses, their families, media representatives, and the public at large. Failing to warn persons encouraged or even required to be in the courthouse of the apparent danger of physical assault or to guard against that risk 11 is not an unreasonable interference with a *213 right common to the general public. 12

1964 PA 170 , MCL 691.1401; MSA 3.996(101).

Ante, p 169.

Ante, p 209.

While this Court, in granting leave to appeal, sought to more fully define the nuisance exception, the basis of disposition in Veeneman and Landry appears to be — without regard to whether the owner of the property is a government or private person — that there is no tort liability. The result in those cases would probably be the same if, in Veeneman, a private person owned the sand dunes and charged a fee for admittance or if, in Landry, the government had privatized the operation of the courthouse.

Although no opinion was signed by four justices without qualification in Rosario and Gerzeski , a majority of the Court ruled that a public nuisance action could be maintained as an exception to the governmental tort liability act for damages suffered on governmental property resulting from a condition of the property, thereby finding that recovery was not limited to losses caused by activities emanating from governmental property that impinge on the use of plaintiff’s property. Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978) (Fitzgerald, J.).

The Restatement states that where "the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance.” 4 Restatement Torts, 2d, § 821B, comment g, p 92 (emphasis supplied).

The Restatement also states that while at an earlier stage in the development of the law of nuisance, only conduct constituting a criminal offense was a public nuisance, it is now clearly established "that a defendant need not be subject to criminal responsibility. Thus a municipal corporation, which cannot be prosecuted for a crime, may still be liable in tort for the creation or maintenance of a public nuisance if the conduct is such that a private individual would be liable.” 4 Restatement Torts, 2d, § 821B, comment d, p 89.

The other three justices constituting the five-justice majority wrote separately to express the view that the nuisance exception to governmental immunity should not be limited to cases where the judge determines that the conduct giving rise to the nuisance was intentional, stating that while the trial judge in that case had accurately determined that the conduct giving rise to the nuisance was intentional, that determination was not necessary for a finding of governmental liability.

While in Smith v Dep’t of Public Health, 428 Mich 540, 544 ; 410 NW2d 749 (1987), the majority of this Court held that there "is no 'intentional tort’ exception to governmental immunity,” it does not follow that in deciding whether a damage action may be maintained for public nuisance, no significance should be attached to whether the government intentionally or merely negligently maintained the condition that gave rise to the loss. 4 Restatement Torts, 2d, § 821B, p 87, defines a public nuisance as "an unreasonable interference with a right common to the general public.”

The lead opinion states that the trespass exception is constitutionally rooted, but it does not consider whether the constitution protects against physical injury intentionally caused by the state. In an appropriate case, the Court should consider whether the constitution, which bars the state from taking one’s property without just compensation, protects against the state disabling a person from enjoying his property by intentionally causing him injury or death. Compare Thomas v Dep’t of State Hwys, 398 Mich 1 ; 247 NW2d 530 (1976) (Levin, J., concurring).

The risk that ice might not be thick enough to support a skater’s weight is ordinarily apparent, but not on the facts of Gerzeski where, as stated in the controlling opinion, "[t]he state was held by the Court of Claims judge to have intentionally constructed the pond in the path of a warm water flow” which "directly resulted in the pond’s deceptive appearance and, in a sense, created a trap for those crossing its surface.” Gerzeski v Dep’t of State Hwys, 403 Mich 149, 162 ; 268 NW2d 525 (1978) (Moody, J.).

Or indeed another person in a courthouse or on the street.

The plaintiffs were in court to testify against the attacker.

4 Restatement Torts, 2d, § 821B, p 87.

Cf. Williams v Cunningham Drug Stores, Inc, 429 Mich 495 ; 418 NW2d 381 (1988).

I would decide the building exception question in Landry on the merits.