stating that “[generally, we do not view actions seeking only equitable relief, such as abatement or injunction, as falling within the purview of governmental immunity”
How later courts described this case
- stating that “[generally, we do not view actions seeking only equitable relief, such as abatement or injunction, as falling within the purview of governmental immunity”
- witnesses in a judicial proceeding who were attacked and stabbed by an assailant in a Detroit courthouse not entitled to benefits of exception in Michigan Governmental Immunity statute because dangers condition stemmed from activities, not from a physical or structural defect
- “Generally, we do not view actions seeking only equitable relief, such as abatement or injunction, as falling within the purview of governmental immunity.”
- J. Kelly concurring in part and dissenting in part
Written by the judges who cited it.
Later courts went against this
Overruled by Pohutski v. City of Allen Park, 465 Mich. 675 (2002)
422 NW2d 205 (1988), overruled in part on other grounds by Pohutski v City of Allen Park, 465 Mich 675
The opinion
Archer, J.
(concurring in part and dissenting in part). I agree with the lead opinion that there is a trespass and a nuisance exception to governmental immunity. However, the lead opinion’s definition of the tort of trespass-nuisance is too narrow. In their analysis, the lead opinion discusses the torts of trespass and nuisance as though these torts constitute a single category. Prior decisions have generally considered these torts individually because of the differing interests involved. Our Court has discussed a broader interpretation of the nuisance exception. 1 I would hold that trespass, nuisance, and intentional nuisance, as well as nuisance per se, are exceptions to governmental immunity.
Our interpretation of the nuisance exception to governmental immunity begins with § 7 of the governmental tort liability act, MCL 691.1407; MSA 3.996(107), which provided:
Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.[ 2 ]
*214 I agree with the lead opinion that under the second sentence of § 7 the exceptions to governmental immunity which existed prior to the enactment of the statute are retained. In addition, the Legislature has enacted exceptions to governmental immunity. 3
*215 In describing the scope of this exception, it is important to focus on the responsibility of government for its actions or omissions, not its immunity from liability. This requires the conclusion that the Legislature did intend that the case law continue to be developed in this area to address policy-based governmental liability which may be at issue in future cases.
As the lead opinion has stated, trespass and nuisance exceptions to governmental immunity have long been recognized in Michigan. 4 The Court also has addressed the rationale for governmental liability. However, there is no need to characterize governmental actions or omissions as creating conditions amounting to a "taking” in a constitutional sense to be able to grant relief. These tort issues are adequately addressed by the case law, and there is no need in most cases to raise constitutional concerns.
I also disagree with the assertion that nuisance must amount to some kind of invasion that occurs other than on the defendant government’s property. Certainly if the governmental unit acts or fails to act and thereby creates a nuisance, the governmental unit should be liable regardless of where the trespass or nuisance occurs. There should be no requirement of a physical invasion of a plaintiff’s land for the governmental unit to be liable. Governmental entities own and control vast resources in this state, and should act responsibly in managing these resources. If a condition is *216 brought to the attention of a governmental unit and the governmental officials or officers do nothing to correct the problem, then such a condition may be a nuisance in fact. When circumstances and surroundings present such questions, the trier of fact may determine whether a nuisance in fact was created. In considering this question of fact, the jury should consider first, whether the nuisance in fact was created intentionally or negligently. Second, if negligence is found, the question is whether the condition created or resulting rises to the level of an intentional nuisance because the governmental unit failed to correct the condition. In other words, did the governmental agency intend to bring about the conditions which are in fact found to be a nuisance. See Justice Moody’s opinions in Gerzeski and Rosario, supra. I disagree with the lead opinion’s characterization of the causes of action in Gerzeski and Rosario, and find that the intent of the defendant should be presented to the jury. Therefore, I agree with the lead opinion that the Court of Appeals decisions in Hadñeld v Oakland Co Drain Comm’r and in McCaul v Lake Odessa should be affirmed. However, I would also affirm the decisions of the Court of Appeals in Veeneman v Michigan and Landry v Detroit on the issues of intentional nuisance.
Griffin, J., took no part in the decision of these cases.
Gerzeski v Dep’t of State Hwys, 403 Mich 149 ; 268 NW2d 525 (1978); Rosario v City of Lansing, 403 Mich 124 ; 268 NW2d 230 (1978).
The statute was amended in 1986 and provides:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or *214 discharge of a governmental function. 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.
As the Court determined in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591-592 ; 363 NW2d 641 (1984):
1) All governmental agencies (state and local) are statutorily liable for injuries arising out of the failure to keep highways in reasonable repair (MCL 691.1402; MSA 3.996[102]), negligent operation of a government-owned motor vehicle by an officer, agent, or employee (MCL 691.1405; MSA 3.996[105]), and dangerous or defective conditions in public buildings under the agency’s control (MCL 691.1406; MSA 3.996[106]).
2) All governmental agencies (state and local) have tort liability for injuries arising out of the performance of a proprietary function. "Proprietary function” is defined as any activity conducted primarily for pecuniary profit, excluding activities normally supported by taxes or fees (see MCL 691.1413; MSA 3.996[113]).
4) All governmental agencies (state and local) are vicariously liable for the negligent operation of government-owned motor vehicles by their officers, employees, and agents (MCL 691.1405; MSA 3.996[105]). Vicarious liability for all other torts may be imposed on a governmental agency only when its officer, employee, or agent, acting during the course of his employment and within the scope of his authority, commits a tort while engaged in an activity which is non-governmental or proprietary, or which falls within a statutory exception.
5) Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative, and executive authority. Lower level officers, employees, and agents are immune from tort liability only when they are
a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;
b) acting in good faith; and
*215 c) performing discretionary-decisional, as opposed to ministerial-operational, acts.
See Sheldon v Kalamazoo, 24 Mich 383, 385 (1872).
The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the prejudice of private parties.