Li v. Feldt

Boyle, J.

(concurring). I write separately to explain that to the extent that my concurrence in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139 ; 422 NW2d 205 (1988), may have been perceived as recognizing the principle that recasting negligence claims as nuisance will avoid the bar of immunity, that view is mistaken. Rather, my reservations regarding trespass nuisance as the only exception to immunity were based on the juridical notion that the Court should not eliminate all possible grounds for action against exceptional activities of government unless required to do so by the application of precedent to the facts of the case.

i

Nuisance law can be likened to a kaleidoscope of categories 1 comprised of a shifting mosaic that appears stable only at the moment a given court resolves a given set of issues. The same set of facts, however, may raise claims of public and private nuisance, nuisance per se, and trespass-intruding nuisance. For example, a township’s building of a piggery in a residential area may constitute a nuisance per se, and if an ordinance prohibits such a use, a public nuisance, and if the noise or odors interfere with the use and enjoyment of neighbors, a private nuisance. These shifting concepts sometimes threaten to confound this Court’s investigation into the existence of common-law exceptions to governmental immunity for various types of nuisance and the attempt to give *479 guidance to lower courts and practitioners regarding actionable nuisance claims.

With this as a point of departure, it is important to consider precisely the facts before us. In Li, the plaintiff brought suit to recover for injuries she suffered in an automobile collision that allegedly resulted, in part, from an improperly timed traffic light. 2 The plaintiff seeks to recover from the defendants, the city, and two of its employees, on public nuisance and nuisance per se theories. On second remand, the Court of Appeals ruled that the plaintiff had stated a claim of public nuisance on these facts and that the nuisance per se claim was sufficiently colorable to merit further trial court consideration. 170 Mich App 256 ; 428 NW2d 36 (1988).

In Garcia, the plaintiffs seek to recover for the decedent’s death by drowning in a pond behind a dam connected to an uncapped sewer pipe that created an undercurrent that pulled the decedent toward it. Although the city was aware of a previous drowning, the pipe was not guarded or covered. The plaintiffs also complained of inadequate warnings, which stated "no swimming,” and failure to implement proper safety regulations.

1 agree with the majority’s result in Li because it constitutes a classical negligence claim, rather than actionable nuisance, and I agree with the majority’s result in Garcia because the city is correct that, historically, the city would not have been liable in damages for its decisions regarding the proper method of constructing the sewer, a *480 discretionary function. 3 Although I believe we may yet be persuaded that a limited public nuisance exception to governmental immunity exists, it cannot be said to reach the facts of either of these cases. 4

The majority observes that the argument for recognition of a public nuisance exception rests largely on my concurring opinion in Hadñeld. Ante, Cavanagh, C.J. at 468. As I there observed, public nuisance is derived from criminal law and much of it remains predicated upon violation of statutes. 5 Early common-law cases from this jurisdiction mention public nuisance as an exception to immunity as well. As early as 1857, this Court adverted to public nuisance in examining whether an individual could sue a municipality for damages for a defective public sewer that caused water to back up into his cellar. Dermont v Mayor of *481 Detroit, 4 Mich 435 (1857). Explicitly distinguishing a situation in which a municipality created a public nuisance, the Court ruled that the corporation was under no obligation to furnish drainage and could not be sued. Id. Similarly, in its discussion of nuisance in Burford v Grand Rapids, 53 Mich 98, 103 ; 18 NW 571 (1884), the Court intimated that municipal authorities might be held liable if they licensed a public nuisance noting that "[i]f it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention, and perhaps it should be accepted as sound.” In Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503 ; 141 NW 890 (1913), the Court granted injunctive relief to the township preventing the city from emptying its sewage into a river. The Court emphasized that a city that creates a public nuisance might be liable. Id. at 534. 6 These authorities suggest the existence of a limited public nuisance exception to immunity. Neither Justice Brickley in Hadñeld, nor Chief Justice Cavanagh in this case, suggest that no public nuisance exception exists. Rather, they appear to counsel against recognizing any public nuisance exception beyond that which falls within the confines of trespass or intruding nuisance.

My reservations regarding the notion that the only public nuisance exception that survives is wholly encompassed within the trespass nuisance category are premised on the view that a potential exception to governmental immunity exists where *482 the claim for relief is based on actions of government for those uses of land that constitute an impending danger to persons in the enjoyment of property rights. For example, if the government concluded that it would be profitable to establish a gambling casino, and to situate such an establishment in a residential neighborhood, the government might be subject to abatement and to an action in damages by one who suffered special damages. 7 As this Court explained in Kilts v Kent Co Bd of Supervisors, 162 Mich 646, 651 ; 127 NW 821 (1910), a nuisance involves a condition "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.” I am not yet persuaded that this limited exception to immunity does not remain. Conceding that the question of a nuisance per se exception "poses a more difficult question,” the majority bypasses it by ruling that the claims in both Li and Garcia do not "constitute an intrinsically unreasonable or dangerous activity, without regard for care or circumstances.” Ante, Cavanagh, C.J. at 475, 477.

In Hadfield , I explained that nuisance per se is a category or method of proving public or private nuisance. It arises in those exceptionally narrow circumstances where "the Legislature or this Court may label a condition or activity patently unreasonable by its very nature . . . .” 8 As the majority acknowledges, there is strong evidence *483 that Michigan courts have recognized a nuisance per se exception to immunity. Ante, Cavanagh, C.J. at 474-477. The majority apparently concludes, however, that because several of the cases finding a nuisance per se overlap with the trespass-nuisance category, that justifies its decision to avoid recognizing it as an historically valid common-law exception to statutory immunity. 9

Thus, I write separately because I believe that the early cases of Wyoming Twp, Trowbridge v City of Lansing, 237 Mich 402 ; 212 NW 73 (1927), Royston v City of Charlotte, 278 Mich 255 ; 270 NW 288 (1936), and Burford, supra, support the existence of a nuisance per se exception to governmental immunity. 10 Such an exception ensures that "[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 immunity. 11

I agree with the majority that neither Li nor Garcia presents facts that would fall within a nuisance per se exception.

Categories that this Court has recognized to define and delineate the parameters of nuisance include intentional or negligent nuisance, public or private nuisance, nuisance per se or nuisance per accidens, and intruding or trespass nuisance. See, e.g., Hadfield, supra.

Probably because suit was not commenced in Li until after the statute of limitations would have elapsed for the highway exception to governmental immunity, MCL 691.1411; MSA 3.996(111), there is no claim before this Court that the facts of this case fall within the highway exception. Therefore, there is no occasion to consider whether a claim of design defect regarding a defective traffic light falls within that exception.

See, e.g., Detroit v Blackeby, 21 Mich 84 ; 4 Am Rep 450 (1870); Ashley v Port Huron, 35 Mich 296 (1877); Larkin v Saginaw Co, 11 Mich 88 ; 82 Am Dec 63 (1862).

This Court has a long history of rejecting nuisance claims recast as negligence to avoid governmental immunity or some other doctrine that would bar recovery. See, e.g., Alberts v Muskegon, 146 Mich 210 ; 109 NW 262 (1906); Kilts v Kent Co Bd of Supervisors, 162 Mich 646 ; 127 NW 821 (1910); Daniels v Grand Rapids Bd of Ed, 191 Mich 339 ; 158 NW 23 (1916); Royston v City of Charlotte, 278 Mich 255 ; 270 NW , 288 (1936); McDonell v Brozo, 285 Mich 38 ; 280 NW 100 (1938).

In Michigan, the doctrine of public nuisance is embodied in MCL 600.3801 et seq.; MSA 27A.3801 et seq. That statute provides:

Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance ... or of any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating, is declared a nuisance ....

The statute further provides authority for the Attorney General, prosecuting attorneys, and citizens to bring abatement actions to remedy noxious or harmful activities.

Although Wyoming Twp was an abatement action, the Court noted that "the questions involved in this case” were covered by previous decisions. It then relied upon five authorities, including both damage actions and equitable actions, without distinguishing between them. Id. at 534. See also Trowbridge v City of Lansing, 237 Mich 402 ; 212 NW 73 (1927); Pound v Garden City School Dist, 372 Mich 499 ; 127 NW 390 (1964).

Municipalities may engage in activities that would threaten to release, or actually release, hazardous substances into the environment. See, e.g., B F Goodrich Co v Murtha, 958 F2d 1192 (CA 2, 1992) (the court ruled that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 imposes liability on a municipality which arranged to dispose of hazardous substances at two landfills).

Gerzeski v State Hwy Dep’t, 403 Mich 149, 169 ; 268 NW2d 525 (1978) (Ryan, J., dissenting).

Although the question of government liability for damages is distinct from the nature of a nuisance claim, it must be observed that, historically, nuisance arose as an alternative to trespass. McRae, The development of nuisance in the early common law, 1 U Fla L R 27 (1948). This suggests that limitation of liability must be based on Michigan’s historical development of governmental immunity, not the nature of the tort.

In Wyoming Twp, supra, the Court ruled that a city’s dumping of sewage into a river constituted a nuisance per se and granted abatement. In Trowbridge, supra, the Court decreed that a piggery constituted a nuisance per se and granted injunctive relief. In both Royston and Burford , the Court explicitly and broadly professed, albeit in dicta, that acts in the discharge of a governmental function that create a nuisance per se are not protected by the shield of immunity.

Gerzeski , n 8 supra, p 169.