The opinion
M. J. Kelly, P.J.
(concurring in part and dissenting in part). I concur with the majority regarding its treatment of the governmental immunity issue and its finding that "the state’s operation of the Silver Lake State Park is an activity which is expressly mandated or authorized by statute” and is thus protected under MCL 691.1407; MSA 3.996(107). I also concur in the majority’s reading of Ross v Consumers Power Co (On Rehearing), 420 Mich 567 ; 363 NW2d 641 (1984), and Disappearing Lakes Ass’n v Dep’t of Natural Resources, 121 Mich App 61 ; 328 NW2d 570 (1982), aff'd 420 Mich 567 ; 363 NW2d 641 (1984), as to the survival of the intentional nuisance exception to the doctrine of governmental immunity. I do not, however, agree that plaintiff in this case has pled facts sufficient to state a claim of intentional nuisance.
As I have previously stated in Shunk v Michigan (After Remand), 132 Mich App 632, 636 ; 347 NW2d 767 (1984):
"[N]egligence does not become an intentional tort merely because the government acted wilfully or intentionally in doing or failing to do a particular act, since such a rule would virtually eliminate the doctrine of governmental immunity. Elliott v Dep’t of Social Ser *703 vices, 124 Mich App 124, 128-129 ; 333 NW2d 603 (1983). Instead, the government’s tortious activity must fall outside the exercise or discharge of a governmental function. Elliott v Dep’t of Social Services, supra, p 129; Smith v Michigan, 122 Mich App 340, 345 ; 333 NW2d 50 (1983). Generally, the intentional tort exception to the governmental immunity doctrine has been limited to traditional intentional torts, Randall v Delta Charter Twp, 121 Mich App 26, 34 ; 328 NW2d 562 (1982), and acts of omission rather than commission are not generally characterized as intentional torts. Elliott v Dep’t of Social Services, supra, p 130, citing Randall v Delta Charter Twp, supra, p 34.”
See also my dissenting opinion in Landry v Detroit, 143 Mich App 16 ; 371 NW2d 466 (1985), and Judge Shepherd’s dissenting opinion in Sanford v Detroit, 143 Mich App 194 ; 377 NW2d 904 (1985). In this case, plaintiffs have essentially pled omissive rather than comissive acts on the part of the state, all of which are within the exercise of its governmental function in creating and operating state parks. I would affirm the trial court’s order of summary judgment in full.
I also write separately on the applicability of the recreational use statute, MCL 300.201; MSA 13.1485. While I agree that the act does not apply in this case because of the annual and daily permit fees charged for admission into the park, I wish to reserve judgment on whether the recreational use act applies to state-owned lands. See McNeal v Dep’t of Natural Resources, 140 Mich App 625 ; 364 NW2d 768 (1985), where it was held that the statute does apply to state-owned property. But the primary intended beneficiaries of the act are private landowners and there may be some distinctions to consider as to state-owned land which would exempt it from the recreational use statute.