Li v. Feldt

434 Mich. 584 (1990) 456 N.W.2d 55

LI
v.
FELDT
GARCIA
v.
CITY OF JACKSON

Docket Nos. 84303, 85365, (Calendar Nos. 4-5).

Supreme Court of Michigan.

Argued November 8, 1989. Decided April 30, 1990.

Pauline R. Rothmeyer for the plaintiff in Li.

Mark T. Light for the plaintiff in Garcia.

Office of the City Attorney (by R. Bruce Laidlaw, City Attorney) for the defendants in Li.

Stanton, Bullen, Nelson, Moilanen & Klaasen, P.C. (by Charles A. Nelson), for the defendant in Garcia.

Amicus Curiae:

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, A. Michael Leffler, Assistant-in-Charge, and Michael C. McDaniel, Assistant Attorney General, for the Attorney General.

AFTER REMAND

RILEY, C.J.

These cases were consolidated for purposes of appeal to decide whether defendants are immune from liability on the basis of their status as governmental entities on the facts of these cases. We hold that defendants are immune for an intentional nuisance because intentional nuisance is not a recognized common-law exception to governmental immunity.

I

A. LI v FELDT

On May 5, 1983, defendant Chou Yu-Feng Wong was driving on Pontiac Trail in Ann Arbor. In the front passenger seat was plaintiff Chen Li. In the back seat was the owner of the car, defendant Chu-Fen Wong. Chou Yu-Feng Wong ran a red light at the corner of Pontiac Trail and Barton Drive and collided with another vehicle driven by defendant Becky Belknap. Plaintiff suffered injuries.

Plaintiff filed a complaint on March 11, 1986. Among the defendants were the City of Ann Arbor and two of its traffic engineers, Kenneth Feldt and John Robbins. Plaintiff alleged negligence^[1] on the part of the city and its engineers in the timing of the traffic signals.

The city moved for summary disposition, which was granted by the trial court because the statute of limitation had run with respect to the negligence claim. Plaintiff filed an amended complaint, asserting that the city intentionally created a nuisance in setting the cycle for the traffic light. The court found that the new complaint simply restated the negligence claim, and the complaint was dismissed.

Plaintiff appealed in the Court of Appeals, which affirmed in part and reversed in part the decision of the trial court, finding that plaintiff had stated a valid intentional-nuisance claim, and that intentional nuisance was an exception to governmental immunity. 162 Mich. App. 767; 413 NW2d 493 (1987).

Defendants applied for leave to appeal in this Court. On May 31, 1988, this Court remanded^[2] the case to the Court of Appeals for reconsideration in light of the decision in Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139; 422 NW2d 205 (1988). On remand, the Court of Appeals held that the intentional-nuisance exception to governmental immunity had not been abrogated by Hadfield.^[3] 170 Mich. App. 256; 428 NW2d 36 (1988).

B. GARCIA v CITY OF JACKSON

Defendant City of Jackson is the owner of the Holton Dam. One of the purposes of the dam is to control flooding on the Grand River. To accomplish this goal, there is an underground conduit or pipe which draws water from a retention pond above the dam, and diverts the river underneath downtown Jackson.

On June 15, 1981, a young boy drowned when he was swimming in the pond and was pulled into the pipe by the current. Thereafter, in response to citizen action, the city contracted with a company to conduct a safety-enhancement study of the dam. Also, the city posted three signs. Two stated, "No Swimming," and one stated, "No Swimming by Order of City of Jackson/Undertow to River Conduit Entrance."

On February 26, 1983, before further safety enhancements were undertaken, Javier Garcia and William Sisk were at the pond upstream from the dam. Garcia decided to go swimming, despite warnings from Sisk and despite the posted signs. After jumping into the water a second time, Garcia was drawn by the undertow into the pipe and drowned.

On June 23, 1983, Javier Garcia's family and the personal representative of his estate filed suit against the City of Jackson. Plaintiffs' first complaint alleged nuisance per se and nuisance in fact. Plaintiffs also asserted that defendant knew of the danger and should have taken more precautions after the first drowning. The trial court granted a motion for summary disposition in favor of defendant, but allowed plaintiffs to file an amended complaint. Plaintiffs' amended complaint alleged only nuisance per se. After summary disposition for defendant again was granted, plaintiffs filed a second amended complaint, alleging only wilful and wanton misconduct. The court once again ordered summary disposition in favor of defendant because plaintiffs failed to allege elements of a claim in avoidance of governmental immunity.

The Court of Appeals reversed, holding that although nuisance was not expressly asserted in the complaint, plaintiffs had sufficiently pled intentional nuisance, a claim not barred by governmental immunity. 152 Mich. App. 254; 393 NW2d 599 (1986). The Court of Appeals certified a conflict, and this Court held this case in abeyance pending a decision in Hadfield, supra. Once Hadfield was decided, this Court remanded^[4] the instant case to the Court of Appeals for reconsideration in light of Hadfield. After remand, the Court of Appeals found that intentional nuisance had been pled and that Hadfield did not overrule the intentional-nuisance exception to governmental immunity.^[5]

On April 7, 1989, we granted leave to appeal in the instant case, consolidating it with Li to determine whether defendants are immune from liability on the basis of their status as governmental entities.^[6]

II

The dispute in Li and Garcia centers on the limited issue of the scope of the nuisance exception to governmental immunity; specifically, whether it entails intentional nuisance. A majority of this Court in Hadfield found that § 7 of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., mandates an historical approach to defining the proper scope of the nuisance exception.^[7] Section 7 of the governmental tort liability act states:

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 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. [MCL 691.1407; MSA 3.996(107). Emphasis added.]

A majority in Hadfield agreed that the second sentence of § 7 preserved judicially created exceptions to immunity which were formulated before July 1, 1965.^[8] Accordingly, any case-law exceptions devised after this date would not escape governmental immunity. We adopt the historical approach endorsed by a majority of this Court in Hadfield.

The plurality opinion in Hadfield^[9] undertook to explore the extent of judicially created nuisance exceptions prior to July 1, 1965. A clearly recognized exception was the "intruding-nuisance" or "trespass-nuisance" exception. Hadfield, supra, p 169, defined trespass-nuisance as a "trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage."^[10] Trespass-nuisance was the only common-law exception specifically acknowledged by the Hadfield plurality.

After recognizing the trespass-nuisance cause of action, the plurality in Hadfield applied the historical analysis test to intentional nuisance and rejected it as a common-law exception to governmental immunity.

The two cases which initially formulated an intentional-nuisance exception are Rosario v City of Lansing, 403 Mich. 124; 268 NW2d 230 (1978),^[11] and Gerzeski v Dep't of State Hwys, 403 Mich. 149; 268 NW2d 525 (1978).^[12] In applying the historical analysis, we note that prior to July 1, 1965, there was no recognized intentional-nuisance claim which could escape governmental immunity. Since there was no recognized pre-1965 intentional-nuisance exception, there is no basis for finding such an exception at this time. Thus, assuming that the Court of Appeals was correct in both cases in finding that plaintiffs had pled intentional nuisance, the panels improperly found an exception to governmental immunity on the basis of intentional nuisance. We hold that the historical approach defining the scope of the nuisance exception to governmental immunity mandates a finding that intentional nuisance is not an exception to governmental immunity.

The Hadfield plurality left undecided whether nuisance per se and limited public nuisance claims are exceptions to governmental immunity. We remand these cases to the Court of Appeals 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.

Accordingly, the decisions of the Court of Appeals in both Li and Garcia are reversed. We remand to the Court of Appeals for further consideration.

BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred with RILEY, C.J.

ARCHER, J., concurred only in the result.

GRIFFIN, J. (concurring in part and dissenting in part).

Although I concur in the majority's holding that intentional nuisance is not an exception to governmental immunity, I write separately to register my disagreement with the "historical approach" relied upon to reach that result, and to dissent from that portion of the opinion which would remand these cases to the Court of Appeals.

It is important to keep in mind that these cases involve the immunity of governmental agencies other than the state.^[1] The first sentence of § 7 of the governmental immunity act 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 discharge of a governmental function. [Emphasis added.]

The second sentence provides:

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.[^[2]] [Emphasis added.]

The majority today, as did the plurality in Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139, 170; 422 NW2d 205 (1988) (opinion of BRICKLEY, J.), asserts that the second sentence of § 7 requires an historical analysis of common-law exceptions to governmental immunity.^[3] The plurality opinion in Hadfield, which forms the basis of today's decision, conceded:

Taken alone, the first sentence of § 7 does support a narrow interpretation of the act, to preclude recognition of any nuisance exception. The Legislature's use of the word "tort" to describe the liability from which governmental agencies are to be held immune exemplifies the breadth of the intended immunity. There is no doubt that nuisance is a tort and that liability for nuisance would be within the scope of statutory governmental immunity as expressed in the first sentence of § 7. [Id., p 147. Emphasis added.][^[4]]

Nonetheless, the Hadfield plurality rejected a restrictive interpretation of § 7 by contending that "the second sentence of § 7 retains preexisting governmental immunity law except where provided otherwise in the act." Id. (Emphasis added.)

However, neither the plurality opinion in Hadfield, nor the majority opinion today, addresses the significance of the Legislature's use of the terms "governmental agencies" in the first sentence of § 7 and "state" in the second.^[5] A literal reading of the second sentence of § 7 seems, at most, to require an historical analysis of the state's common-law immunity.^[6] The significance of the Legislature's use of "governmental agencies" in the first sentence and the "state" in the second sentence is underscored by the definitions expressly given those terms in the act. "Governmental agency" is defined as "the state, political subdivisions, and municipal corporations." The "state," on the other hand, is defined as "the state of Michigan and its agencies, departments, [and] commissions...."^[7] The terms are not interchangeable. The statutory provision prohibiting modification or restriction of immunity is specifically applied to the "state," a term which does not embrace municipalities and other forms of lower government. Definitions supplied by the Legislature in the statute are binding On the judiciary.^[8] Thus, assuming arguendo that the second sentence of § 7 requires an historical analysis, it should be applied to the "state" and not other "governmental agencies."

The underlying premise of the Hadfield plurality opinion appears to be that the Legislature's intent to make uniform the immunity of all levels of government requires that the historical analysis purportedly required by § 7 applies to all levels of government, despite the express limitation of the purported historical analysis to "the state."^[9]

Although the act's title declares its purpose is "to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments," the uniformity of immunity intended by the Legislature does not necessarily include both governmental and nongovernmental functions. The act's title qualifies the uniformity purpose by providing that the Legislature sought to make uniform the liability of all government "when engaged in the exercise or discharge of a governmental function...." Simply because the Legislature claimed immunity on behalf of all levels of government "when engaged in the exercise or discharge of a governmental function" does not necessarily compel the conclusion that the state has no immunity when not engaged in the exercise or discharge of a governmental function. Indeed, the governmental tort liability act was "``[d]rafted under the apparent assumption that the state and its agencies enjoyed a total sovereign immunity from tort liability....'"^[10] Thus, the legislative intent underlying the second sentence of § 7 could merely have been to "affirm" the state's preexisting absolute sovereign immunity, rather than to codify common-law exceptions to governmental immunity. Strict uniformity of immunity among all levels of government is not clearly mandated by § 7. Ross v Consumers Power (On Rehearing), 420 Mich. 567, 666-667; 363 NW2d 641 (1984) (LEVIN, J., dissenting in part).

Moreover, this Court has previously rejected the argument that § 7 "froze" the case-law precedent of governmental immunity. As stated in Parker v Highland Park, 404 Mich. 183, 192; 273 NW2d 413 (1978):

[T]o read the second sentence of MCL 691.1407; MSA 3.996(107) as "preserving for all time state governmental immunity heretofore recognized by case law" would be to "assume that the Legislature failed to recognize that the evolution of case-law precedent is exclusively committed to the judicial branch of government." [Quoting Thomas v State Hwy Dep't, 398 Mich. 1, 17, n 4; 247 NW2d 530 (1976) (KAVANAGH, C.J., dissenting).^[11] Citation omitted.]

Contrary to the historical approach employed in the Hadfield plurality opinion, this Court has repeatedly stated that the act constitutes a "``broad grant of immunity' with ``four narrowly drawn statutory exceptions.'"^[12] The historical approach adopted by the majority today leaves ajar the door to additional immunity exceptions that cannot be fairly culled from the language of § 7.

Significantly, this Court has previously examined whether an intentional-tort exception exists under the act. In finding that there is no such exception, the Court in Smith v Public Health Dep't, 428 Mich. 540; 410 NW2d 749 (1987),^[13] did not resort to any "historical analysis" of common-law exceptions to governmental immunity. Instead, the Court stated:

In order to now decide whether to recognize any form of intentional tort exception to the governmental immunity act, this Court must first determine whether the Legislature intended the term "tort liability" in § 7 of the act to exclude intentional torts. We conclude that nothing on the face of the statute indicates an intent to create such an exception. [Id., p 602.]

As in the case of intentional torts, there is nothing on the face of the statute which indicates a legislative intent to create an exception for nuisance.^[14] Thus, under the analysis set forth in Smith, "[i]t only remains then to decide if an intentional tort can arise out of the exercise of a governmental function." Id., pp 603-604.^[15]

The primary purposes of the act were to restore immunity to municipalities in the wake of Williams v Detroit, 364 Mich. 231; 111 NW2d 1 (1961), and "halt this Court's attempts to abolish sovereign and governmental immunity."^[16] The first sentence of § 7 achieves uniform immunity to the extent that all levels of government enjoy immunity when engaged in the exercise or discharge of a governmental function. However, the Legislature made clear in the second sentence that the state's preexisting immunity was not to be modified or restricted regardless of the governmental function limitation in the first sentence. As Justice LEVIN observed in Ross, supra, pp 668-670, three years after Williams abrogated the common-law immunity of municipalities:

[T]he Legislature enacted the governmental tort liability act. The primary purpose of the act, which, "was drafted by a special committee of the Michigan Association of Municipal Attorneys and lobbied through the legislature with the strong backing of that association's parent organization, the Michigan Municipal League," appears to have been to restore immunity to non-sovereign governmental units.

To achieve this purpose, the Legislature provided in the first sentence of § 7 that "[e]xcept 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." The act thereby conferred uniform statutory immunity on all governmental entities — both the state and non-sovereign political units alike — when engaged in the exercise or discharge of a "governmental function."

To make clear that, by restoring to municipal corporations immunity for governmental functions and making uniform the immunity of all governmental entities for governmental functions, it was not thereby waiving the state's common-law absolute sovereign immunity for non-governmental functions, the Legislature provided in the second sentence of § 7 that "[e]xcept 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." The "which immunity is affirmed" clause codified the state's common-law sovereign immunity from tort liability — an absolute immunity except to the extent it is waived by the Legislature. [Emphasis added.]

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 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,^[17] the only question remaining in these cases is whether the activity is a "governmental function," as defined by the Legislature.^[18]

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.

LEVIN, J. (separate opinion).

The majority declares that "intentional nuisance" is not a recognized common-law exception to governmental immunity,^[1] and that the cases are remanded to the Court of Appeals "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."^[2]

I agree with the majority that nuisances have not been classified on the basis of whether they are intentional or unintentional. Accordingly, there being no separate category of intentional nuisance, there is no need to decide whether there is an intentional nuisance exception to governmental immunity.

Nuisance per se and public nuisance are recognized categories of nuisance. While the majority remands the cases for a determination of whether those categories of nuisance are exceptions to immunity, it opines that "any case-law exceptions devised after [July 1, 1965, the effective date of the governmental tort liability act,] would not escape governmental immunity."^[3] The question whether there is a nuisance per se or public nuisance exception to governmental immunity should be decided in a case where the court concludes that factually there is a nuisance per se or a public nuisance.

The Court states that the negligence per se and public nuisance issues can only be considered by the Court of Appeals on remand if "they were properly raised before the Court of Appeals."^[4] It is, however, for the Court of Appeals in the first instance to decide to what extent issues need to be properly raised and what constitutes properly raising them before that Court. We would, I think, all agree that the decisions of this Court on the nuisance "exception" to governmental immunity have not been crystal clear. In that context, the Court should be cautious about suggesting or deciding to what extent preservation of a precise category of nuisance is required.

Public nuisance is a long-recognized category of nuisance. The majority adopts the historical approach^[5] without indicating what authority there may be for the notion that a public nuisance committed by government is historically immune.^[6]

Interference with use of a public highway or waterway is a public nuisance, historically. The plaintiffs in Li were using a public highway. The plaintiff's decedent in Garcia may have been using a public waterway. The common-law tradition is to decide cases, i.e., the facts and the law, together. The facts inform the decision on the law.

NOTES

[1] The claim was brought pursuant to the highway liability exception, MCL 691.1402; MSA 3.996(102), to the governmental tort liability act.

[2] 430 Mich. 882 (1988).

[3] As in Garcia v City of Jackson (On Remand), 174 Mich. App. 373; 435 NW2d 796 (1989), the Court of Appeals found that a three-justice plurality finding no intentional-nuisance exception was not enough to overrule prior precedent. The Court would not lend Justice BOYLE'S concurring vote to the section of the plurality opinion overruling the intentional-nuisance exception.

[4] 430 Mich. 877 (1988).

[5] The Court of Appeals stated:

It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadfield, which is the last word on the matter, the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception to governmental immunity so as to establish any new binding precedent for future cases. There was a majority for the result only. [174 Mich. App. 376.]

[6] 432 Mich. 891 (1989).

[7] In Hadfield, a majority of this Court found that the governmental tort liability act preserved common-law exceptions to immunity. Including the three-justice plurality which adopted the historical analysis, six participating justices agreed that the Legislature intended to codify common-law exceptions. Justice BOYLE stated:

The basic premise of the lead opinion is that § 7 of the governmental tort liability act requires a continuation of the nuisance exception as formulated prior to its enactment in 1964 and as amended by 1970 PA 155. I agree that the Legislature intended to codify the common law of governmental immunity. . .. [Hadfield, p 204. Emphasis added.]

Justice LEVIN, in a separate opinion, also agreed that at least the trespass-nuisance exception survived the enactment of the governmental tort liability act. Id., p 209.

In yet another opinion, Justice ARCHER stated:

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. [Id., p 214. Emphasis added.]

Thus, a majority of this Court has settled on an interpretation of the second sentence of § 7 as recently as March 29, 1988. In his concurrence/dissent, Justice GRIFFIN reads § 7 not to include commonlaw exceptions to immunity. Justice GRIFFIN urges an interpretation of § 7 which would undercut the studied effort manifested in the Hadfield opinions.

Even if the legislative intent behind this sentence were not clear, it has been said:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.... This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. [Burnet v Coronado Oil & Gas Co, 285 U.S. 393, 406; 52 S. Ct. 443; 76 L. Ed. 815 (1932) (Brandeis, J., dissenting), quoted in Abendschein v Farrell, 382 Mich. 510, 517; 170 NW2d 137 (1969).]

[8] With reference to the second sentence of § 7, Thomas v Dep't of State Hwys, 398 Mich. 1, 11; 247 NW2d 530 (1976), states in part, "[o]bviously this language must be construed as an ``affirmation' of case-law precedent on the subject of the state's immunity."

Justice RYAN adopted this interpretation in his dissenting opinion in Rosario v City of Lansing, 403 Mich. 124, 146; 268 NW2d 230 (1978):

[I]n order to determine the scope of the now codified immunity, we must determine the scope of its antecedent "existing immunity." Since the common-law or "existing immunity" doctrine included certain judicially created exceptions which defined its limits, the legislatively codified immunity is limited and defined by the same exceptions. One of these exceptions is here in issue: the doctrine of "nuisance."

In the instant case, the concurrence/dissent suggests that the "legislative intent underlying the second sentence of § 7 could merely have been to ``affirm' the state's preexisting absolute [no governmental function limitation] sovereign immunity...." Post, p 601. However, in Ross v Consumers Power (On Rehearing), 420 Mich. 567, 606; 363 NW2d 641 (1984), this Court stated:

[A]t the time § 7 was enacted, the state was immune from tort liability when it was engaged in the exercise or discharge of a governmental function. .. . [See also id., p 602, n 15.]

Further support for the view that the state did not have absolute immunity prior to the enactment of the statute can be found in Thomas v Dep't of State Hwys, supra, p 11; Manion v State Hwy Comm'r, 303 Mich. 1, 19; 5 NW2d 527 (1942); Daszkiewicz v Detroit Bd of Ed, 301 Mich. 212, 220; 3 NW2d 71 (1942).

The concurrence/dissent also suggests that the Legislature intended to treat sovereign (state) and nonsovereign entities differently with respect to immunity. However, the stated purpose of the governmental tort liability act is to "make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function...." Preamble to MCL 691.1401 et seq.; MSA 3.996(101) et seq. Also, a member of the special committee which drafted the act stated that the committee "sought to achieve legislation that would put all government on the same basis.... This statute puts all agencies of government on the same footing with regard to tort liability." Abels, Report of committee on tort liability, 28 NIMLO Municipal L R 432, 464 (1965). Therefore, § 7 should be read to give effect to the stated purpose of the act.

Furthermore, the nature of governmental immunity is such that there is no reason to treat the state and local entities differently. The reasoning behind governmental immunity was set forth in Nicholson v Detroit, 129 Mich. 246, 258-259; 88 N.W. 695 (1902):

The true theory is that the township or city represents the State in causing these things to be done, and, like the State, it enjoys immunity from responsibility in case of injury to individuals ... [because, in] imparting a portion of its powers, the State also imparts its own immunity.

Another reason to read § 7 as preserving common-law exceptions is set forth in Cooperrider, The court, the legislature, and governmental tort liability in Michigan, 72 Mich. L R 187, 279-280 (1973). The trespass-nuisance claim was valid long before the creation of the governmental function defense. Mr. Cooperrider went on to state:

It reflects one of the strongest claims for relief that can be asserted.... There is nothing in their public expressions to indicate that those who drafted the statute had any such change in mind; indeed, one of them summed the statute up in these terms: "The net effect of Act 170, 1964, is to largely return to municipal corporations the position they enjoyed prior to the decision of the Williams [v Detroit, 364 Mich. 231; 111 NW2d 1 (1961) (abrogating governmental immunity for municipalities)] case." This is surely a situation where the legislature should be expected to express an intent to make an important change in the law in words incapable of being misunderstood, rather than relying upon implication.... [The governmental function defense] has never been applied by the Michigan court to protect any governmental agency against liability in a situation recognized to be within the nuisance-trespass category. [The first sentence], I submit, should be seen as a restoration of the governmental-function defense as it existed in the case law, alongside the nuisance-trespass head of liability.

[9] Justice BRICKLEY wrote the plurality opinion joined by Chief Justice RILEY and Justice CAVANAGH.

[10] The Taking Clause of the constitution rests at the foundation of the trespass-nuisance exception. Justice RYAN wrote about the taking rationale in his dissent in Gerzeski v Dep't of State Hwys, 403 Mich. 149, 170; 268 NW2d 525 (1978), which is cited in Hadfield, supra, p 165:

In [intruding-nuisance] cases the potentially dangerous instrumentality or condition literally moves from government-owned land onto adjacent property. Consequently, the neighboring premises and its occupants are subject to either the creation of a risk foreign to the premises or direct and immediate injury. When this transpires the government effectively deprives an owner of the useful possession of that which he owns. This Court views such action as a public taking. Under this analysis the state is obliged to pay reasonable compensation for damages ensuing from such "taking" in accordance with the Constitution of the State of Michigan, Const 1963, art 10, § 2. [Citations omitted.]

Note that in its definition of trespass-nuisance, the Hadfield Court did not restrict the source of the intrusion to government-owned land.

[11] In Rosario, a nineteen-month-old child drowned after falling into an open sewer drain on city property. Justice FITZGERALD, joined by Chief Justice KAVANAGH and Justice LEVIN, found a broad nuisance-in-fact exception to governmental immunity. A concurrence written by Justice BLAIR MOODY, JR., and joined by Justice WILLIAMS, found that only intentional nuisance in fact was an exception, not negligent nuisance in fact.

Justice MOODY defined intentional nuisance as the "intent[] to bring about the conditions which are in fact found to be a nuisance." Rosario, p 142.

However, there is confusion in the Court of Appeals concerning the elements of intentional nuisance. Most Court of Appeals panels find intentional nuisance when a defendant either acted for the purpose of causing harm or knew that harm was substantially certain to follow. See Hadfield, supra, p 172, n 14. Since neither interpretation of intentional nuisance was recognized prior to 1965, we find it unnecessary to resolve this conflict.

[12] In Gerzeski, two young boys drowned after falling through the ice on an artificial pond owned by the Highway Department. While looking for the children, the father of one of the boys fell through the ice and drowned. The same three-justice plurality as in Rosario again held in favor of an expanded nuisance exception. In the concurrence, Justice MOODY and Justice WILLIAMS would have limited the nuisance-in-fact exception to intentional nuisance.

[1] The City of Ann Arbor and the City of Jackson are "municipal corporations" within the definitions provided by the governmental tort liability act. MCL 691.1401(1)(a); MSA 3.996(101)(1)(a). Although municipal corporations, along with the state, are within the definition of "governmental agency" MCL 691.1401(1)(d); MSA 3.996(101)(1)(d), municipal corporations are not within the definition of "state." MCL 691.1401(1)(c); MSA 3.996(101)(1)(c).

[2] MCL 691.1407; MSA 3.996(107), as amended by 1986 PA 175. (Emphasis added.)

[3] Sovereign immunity "``is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State.'" Ross v Consumers Power (On Rehearing), 420 Mich. 567, 597; 363 NW2d 641 (1984), quoting Myers v Genesee Co Auditor, 375 Mich. 1, 6; 133 NW2d 190 (1965) (opinion of O'HARA, J.).

"Over the years, by judicial construction, this ``sovereign' immunity has been transmogrified into ``governmental' immunity and made applicable to the ``inferior' divisions of government ... but with an important distinction. These subdivisions of government enjoyed the immunity only when engaged in ``governmental' as distinguished from ``proprietary' functions." [Ross, supra, p 597, quoting Myers, supra, pp 8-9.]

[4] See also Ross v Consumers Power (On Rehearing), n 3 supra, p 618:

[T]he immunity from tort liability provided by § 7 is expressed in the broadest possible language — it extends immunity to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function.

[5] See also Gerzeski v State Hwy Dep't, 403 Mich. 149; 268 NW2d 525 (1978). In holding that a nuisance cause of action survived the act, the Court "did not appear to have considered" the second sentence of § 7. Ross v Consumers Power (On Rehearing), n 3 supra, p 703, n 64 (LEVIN, J., dissenting in part).

[6] Justice BRICKLEY'S Hadfield opinion cites Thomas v State Hwy Dep't, 398 Mich. 1, 11; 247 NW2d 530 (1976), for the principle that the second sentence of § 7 affirmed the case-law precedent of governmental immunity, thus implying that an historical analysis is required. However, Thomas concerned the immunity of a state agency. Indeed, few commentators or court opinions have expressly concluded that the second sentence of § 7 codifies the common-law exceptions to governmental immunity. Most merely agree that the second sentence of § 7 codifies the common-law exceptions to sovereign immunity. See, e.g., Ross v Consumers Power (On Rehearing), n 3 supra, p 595; ("the second sentence statutorily affirms the law of sovereign [state] immunity from tort liability"); Thomas v State Hwy Dep't, supra, p 11 ("this language must be construed as an ``affirmation' of case-law precedent on the subject of the state's immunity"); Pinchette v Manistique Schools, 403 Mich. 268, 278, n 2; 269 NW2d 143 (1978); Perry v Kalamazoo State Hosp, 404 Mich. 205, 210-211; 273 NW2d 421 (1978) ("historical context in which this statute was enacted suggests that the Legislature's intent in adopting this act was to codify the existing common-law or judge-made immunity of the state"); Killeen v Dep't of Transportation, 432 Mich. 1, 19; 438 NW2d 233 (1989) (RILEY, C.J., dissenting) ("[the] governmental immunity statute codified the common-law principle of sovereign immunity"). See also Weller, Sovereign immunity in Michigan: Sources and outline, 6 Cooley L R 217, 254, n 237 (1989) ("the plain language of § 7[1] of the ... Act seems to provide a specific exclusion for the state from those common law exceptions to governmental [but not sovereign] immunity that existed before July 1, 1965"). But see Rosario v City of Lansing, 403 Mich. 124, 146; 268 NW2d 230 (1978) (RYAN, J., dissenting); DeMars, Intentional nuisance in fact: Should it be a bar to a governmental function defense in Michigan?, 1981 Det C L R 771, 790.

Professor Cooperrider's article, cited prominently by the plurality in Hadfield, did not rely on the second sentence of § 7 in arguing that nuisance trespass survived the enactment of the governmental tort liability act. Instead, Cooperrider argued that given the long history of the common-law nuisance exception, the Legislature would have expressly abolished it had that been their intent. Cooperrider, The court, the legislature, and governmental tort liability in Michigan, 72 Mich. L R 187, 279-281 (1973).

[7] MCL 691.1401; MSA 3.996(101).

[8] People v Smith, 246 Mich. 393; 224 N.W. 402 (1929); WS Butterfield Theatres, Inc v Dep't of Revenue, 353 Mich. 345, 350; 91 NW2d 269 (1958); McRaild v Shepard Lincoln Mercury, Inc, 141 Mich. App. 406; 367 NW2d 404 (1985); 1A Sands, Sutherland Statutory Construction (4th ed), § 20.08, p 88.

[9] The Hadfield plurality considered its "historical approach" to be consistent with Ross, wherein this Court stated that "[t]he governmental immunity act was intended to provide uniform liability and immunity to both state and local governmental agencies." Ross, n 3 supra, p 614.

[10] Ross, n 3 supra, p 665 (LEVIN, J., dissenting) (quoting Cooperrider, n 6 supra, p 277).

[11] In Thomas, the Court held that the test for whether an activity is within the exercise or discharge of a governmental function must be determined by case-law precedent as it stood prior to 1965. This analysis, similar to today's historical analysis of common-law exceptions to governmental immunity, was rejected in Parker and Ross, supra, pp 609-610. In Parker, supra, p 198, the question was whether the operation of a hospital is a governmental function. Despite two pre-1965 decisions holding that the operation of a hospital is a governmental function, the Court held it was not bound by those decisions, declining to follow the rationale of Thomas that the second sentence of § 7 affirmed "case-law precedent on the subject of the state's immunity." Today, however, the Court feels bound by an historical analysis which leaves open the possibility of finding public and nuisance per se exceptions to governmental immunity. As Justice COLEMAN observed in Pinchette v Manistique Schools, n 6 supra, p 291 (1978) (affirming in part and dissenting in part):

As I see it, our problem derives from a desire to circumvent the governmental immunity statute — or eliminate it in effect. To this end, the Court has contrived to establish by-paths (e.g., some theories of nuisance...).

[12] Hadfield, supra, p 146; Ross, n 3 supra, p 618; Reardon v Mental Health Dep't, 430 Mich. 398, 412; 424 NW2d 248 (1988); Smith, supra, pp 591-592; Thomas, n 6 supra, p 9, n 3; Pittman v City of Taylor, 398 Mich. 41, 62; 247 NW2d 512 (1976) (COLEMAN, J.); Pinchette, n 6 supra, p 277.

The four statutory exceptions are MCL 691.1402; MSA 3.996(102) (highway repair); MCL 691.1405; MSA 3.996(105) (negligent operation of government-owned motor vehicle); MCL 691.1406; MSA 3.996(106) (public buildings); MCL 691.1413; MSA 3.996(113) (proprietary function).

A fifth statutory exception was added by 1986 PA 175, MCL 691.1407(4); MSA 3.996(107)(4) (ownership or operation of a hospital or county medical care facility).

Aside from these five narrow statutory exceptions, a governmental agency may be liable for an unconstitutional taking. Const 1963, art 10, § 2. See Buckeye Union Fire Ins Co v Michigan, 383 Mich. 630; 178 NW2d 476 (1970). See also Hadfield, supra, pp 168-169. Whether a governmental agency enjoys immunity for a violation of the Takings Clause, however, is a separate question from whether § 7 preserves common-law exceptions to governmental immunity.

[13] The lead opinion was authored by Justice BRICKLEY and joined by Chief Justice RILEY. A separate opinion, authored by Justice BOYLE and joined by Justice CAVANAGH, "concur[red] with Justice BRICKLEY'S conclusion that ... the allegation of a common-law intentional tort does not avoid statutory immunity per se...." Smith, supra, p 637.

[14] See Hadfield, supra, p 147.

[15] In Ross, n 3 supra, p 620, the Court fashioned a new definition of "governmental function":

[A] governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in § 13) or falls within one of the other statutory exceptions to the governmental immunity act.

We invited the Legislature to modify our broad definition in the event that it did not reflect the Legislature's intent regarding the scope of immunity. Id., p 621. The Legislature subsequently adopted the Ross definition practically verbatim. 1986 PA 175. "In so doing, the Legislature put its imprimatur on the broad scope of immunity as defined in Ross and, by implication, the narrow scope of its exception." Reardon v Mental Health Dep't, n 12 supra, p 412.

[16] Hyde v Univ of Michigan Regents, 426 Mich. 223, 244; 393 NW2d 847 (1986); Thomas, n 6 supra, p 10; Maki v East Tawas, 385 Mich. 151, 164, n 3; 188 NW2d 593 (1971) (WILLIAMS, J., dissenting); Littlejohn & DeMars, Governmental immunity after Parker and Perry: The king can do some wrong, 1982 Det C L R 1, 5; Ross, n 3 supra, p 605.

[17] MCL 691.1402; MSA 3.996(102) (highway repair); MCL 691.1405; MSA 3.996(105) (negligent operation of government-owned motor vehicle); MCL 691.1406; MSA 3.996(106) (public buildings); MCL 691.1413; MSA 3.996(113) (proprietary function); MCL 691.1407(4); MSA 3.996(107)(4) (ownership or operation of a hospital or county medical care facility).

[18] function" is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law. [MCL 691.1401; MSA 3.996(101).]

[1] Ante, p 587.

[2] Ante, p 596.

[3] Ante, pp 592-594.

[4] Ante, p 596.

[5] "We adopt the historical approach endorsed by a majority of this Court in Hadfield" v Oakland Co Drain Comm'r, 430 Mich. 139; 422 NW2d 205 (1988). Ante, p 594.

[6] Courts in other jurisdictions held, before July 1, 1965, that a governmental entity was subject to liability for personal injury caused by a nuisance although the injury was suffered on property owned by the government, and there was no trespass by the government on private property. Johnson v Tennessean Newspaper, Inc. 192 Tenn 287; 241 S.W.2d 399 (1951); Lehmkuhl v Junction City, 179 Kan 389; 295 P2d 621 (1956).