# Yarrick v. Village of Kent City > Michigan Court of Appeals · June 3, 1991 · 189 Mich. App. 627 URL: https://www.frixlaw.com/law-library/cases/9738931 ## Case - **Full name:** Yarrick v. Village of Kent City (On Remand) - **Court:** Michigan Court of Appeals - **Decided:** June 3, 1991 - **Citations:** 189 Mich. App. 627; 473 N.W.2d 774 - **Precedential status:** Published - **Opinion:** Concurrence by Griffin - **Judges:** Holbrook, Sawyer, Griffin - **Cited by:** 3 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/9738931 ## Opinion text Griffin, J. (concurring). I concur in the result only because I am required to do so pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv . Were it not for Administrative Order No. 1990-6,1 would hold that the governmental immunity statute, MCL 691.1407 et seq.; MSA 3.996(107) et seq., bars claims for both public nuisance and nuisance per se. Further, I would hold that the plaintiffs *634 have waived any claim of public nuisance by failing to plead such an alleged cause of action in their second amended complaint. Plaintiffs’ second amended complaint pleads with specificity both "nuisance in fact” and "intentional nuisance.” "Public nuisance,” however, is nowhere pleaded. This court, in a post-November 1, 1990, decision, Li v Feldt (On Second Remand), 187 Mich App 475 ; 468 NW2d 268 (1991), held that causes of action based upon nuisance per se and public nuisance survive the bar of the governmental immunity statute. MCL 691.1407 et seq.; MSA 3.996(107) et seq. Further, the panel in Li (On Second Remand) held that in order to properly raise the claims of public nuisance and nuisance per se, the plaintiffs complaint need not plead nuisance per se and public nuisance, so long as the plaintiffs complaint pleaded "nuisance.” According to the Li panel: Given the uncertainty in this area, the fact that plaintiff initially focused on the wrong type of nuisance to label her claim is understandable and, more importantly, excusable. Id., p 480. In the original opinion in this case, the majority held that plaintiffs’ claim of intentional nuisance survived the bar of governmental immunity. I respectfully dissented from this conclusion on the following grounds: By enacting the statute, the Legislature not only overturned Williams v Detroit, 364 Mich 231 ; 111 NW2d 1 (1961), it also sought to avoid the unpredictability of the common law by codifying governmental immunity. Supplemental common-law immunity exceptions are incompatible with the comprehensive immunity scheme enacted by the Legislature. [ 180 Mich App 410, 421 ; 447 NW2d 803 *635 (1989) (Griffin, J., concurring in part and dissenting in part).] On further appeal, the Supreme Court, in lieu of granting leave to appeal, vacated the judgment of the majority and remanded the case to us "for reconsideration in light of Li v Feldt (After Remand) and Garcia v City of Jackson (After Remand), 434 Mich 584 [ 456 NW2d 55 ] (1990).” Further, we were directed to consider "the existence of nuisance per se and public nuisance exceptions to immunity, and their applicability to these cases if, and to the extent that, they were properly raised before the Court of Appeals.” 435 Mich 866 ; 457 NW2d 345 (1990). On remand, I have again reviewed plaintiffs’ original brief and note that the only nuisance issue which they raised in the Court of Appeals was the allegation that the lower court erred in dismissing their claim of intentional nuisance. Their brief makes no mention whatsoever of claims of nuisance per se or public nuisance. There is no allegation in any form that the lower court erred in dismissing their claims of nuisance per se and public nuisance. Accordingly, were it not for Administrative Order No. 1990-6 and this Court’s decision in Li v Feldt (On Second Remand), supra, I would hold on remand that these alleged claims were not properly raised before the Court of Appeals. Additionally, were it not for Administrative Order No. 1990-6, I would hold that such claims of nuisance per se and public nuisance are barred by the governmental immunity statute. On this issue, I continue to adhere to my partial dissent in the original opinion in this case. Further, I would adopt the well-reasoned opinion of Justice Griffin in Li v Feldt (After Remand), supra, pp 605-606, wherein he concludes: *636 In my opinion, the fundamental purposes of the act were to restore immunity to municipalities, grant immunity to all levels of government when engaged in the exercise or discharge of a governmental function, and prevent judicial abrogation of governmental and sovereign immunity. The second sentence of §7 [MCL 691.1407; MSA 3.996(107)] was merely intended to prevent further erosion of the state’s common-law immunity, rather than preserve any common-law exceptions to governmental immunity. Under this analysis, unless the activity of a municipality falls within one of the five narrowly drawn statutory exceptions, the only question remaining in these cases is whether the activity is a "governmental function,” as defined by the Legislature. For these reasons, and because, in any event, plaintiffs failed to preserve for appeal the question whether either nuisance per se or public nuisance is a common-law exception to governmental immunity, I would not remand these cases to the Court of Appeals. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9738931. Public record. Not legal advice.