Stemen v. Coffman , 92 Mich. App. 595 ( 1979 )

92 Mich. App. 595 (1979) 285 N.W.2d 305

STEMEN
v.
COFFMAN

Docket No. 78-4557.

Michigan Court of Appeals.

Decided August 27, 1979.

Mohney, Goodrich & Titta, P.C. (by Robert D. VanderLaan and Bruce W. Neckers), for plaintiffs.

Philip A. Balkema, City Attorney, and Robert M. Cary, Assistant City Attorney, for the City of Grand Rapids and its individual employee defendants.

Before: D.F. WALSH, P.J., and M.J. KELLY and E.F. OPPLIGER,^[*] JJ.

PER CURIAM.

Plaintiffs were residents of a multiple dwelling unit owned by defendants Coffman and located in the City of Grand Rapids. The building had been inspected in 1975 by defendant Shirilla, a city housing inspector, and had received a certificate of compliance signed by defendant Panzone, Shirilla's supervisor. On January 23, 1977, plaintiff Stemen received severe burns on one arm and one leg when fire gutted the structure, and both plaintiffs lost all their personal possessions.

Plaintiffs subsequently brought suit against the previously named individuals, the City of Grand Rapids, and defendants Veit and Thiel, the city's fire chief and fire inspector, alleging in several counts of their complaint that breaches of duty and negligence on the part of the city and its employees had caused the injuries and losses which plaintiffs suffered in the fire. The Kent County Circuit Court entered summary judgment in favor of the city and its individual employees on the basis of governmental immunity from tort liability. Plaintiffs appeal as of right.

Plaintiffs rely upon the "nuisance exception" to the legislative grant of immunity to a government agency engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). They appear to concede that the city's program of housing inspections constitutes a governmental function. However, they argue that the failure of the city and its employees to require the Coffmans to abate the nuisance consisting of a multiple dwelling unit without adequate fire protection measures and devices allows liability to be imposed upon the city under the judicially created "nuisance exception", recently discussed from a variety of perspectives in Rosario v Lansing, 403 Mich. 124; 268 NW2d 230 (1978), and Gerzeski v Department of State Highways, 403 Mich. 149; 268 NW2d 525 (1978).

We disagree. "Liability for damage caused by a nuisance turns upon whether the defendant was in control, either through ownership or otherwise." 58 Am Jur 2d, Nuisances, § 49, p 616. We have found no authority imposing liability for damage caused by a nuisance where the defendant has not either created the nuisance, owned or controlled the property from which the nuisance arose, or employed another to do work which he knows is likely to create a nuisance. The city's relationship with the property alleged to constitute a nuisance in this case falls under none of these headings; indeed, it is far more attenuated. To hold the city liable under the "nuisance exception" in this case would stretch the concept of liability for nuisance beyond all recognition.

Plaintiffs also contend that the city's individual employees may be held liable for plaintiffs' damages because the duties they performed in relation to the building which caught fire were ministerial rather than discretionary. Plaintiffs note that in Armstrong v Ross Twp, 82 Mich. App. 77; 266 NW2d 674 (1978), the act of a building inspector in deciding whether applicants are entitled to a building permit was held to be ministerial. But, it appears that the inspectors involved in the present case enjoyed a greater degree of discretion and independent judgment in determining whether the conditions they encountered in the field complied with the applicable code provisions and whether a certificate of compliance should be issued. The inspectors' acts were discretionary, and the individual city employees are, therefore, entitled to claim the benefits of governmental immunity. Walkowski v Macomb County Sheriff, 64 Mich. App. 460; 236 NW2d 516 (1975).

Since the city was engaged in the exercise or discharge of a governmental function under circumstances which do not bring any of the exceptions to the doctrine of governmental immunity into play and the acts of the city's employees give rise to no liability because they were discretionary, any attempt to base the city's liability upon respondeat superior must be rejected.

Affirmed. No costs, a public question.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.