Moore v. City of Pontiac

143 Mich. App. 610 (1985) 372 N.W.2d 627

MOORE
v.
CITY OF PONTIAC

Docket No. 76291.

Michigan Court of Appeals.

Decided June 18, 1985.

Thomas E. Hunter, for defendant.

Before: D.E. HOLBROOK, JR., P.J., and BEASLEY and C.W. SIMON, JR.,^[*] JJ.

D.E. HOLBROOK, JR., P.J.

Defendant City of Pontiac appeals as of right the award of damages and attorney fees entered in favor of plaintiffs. Plaintiffs are homeowners who resided in their home from 1963 to 1980. In 1966 defendant rezoned the land across the street from plaintiffs and began using the land as a sanitary landfill. Plaintiffs complained about noxious odors and constant noise and having their yard littered with glass and paper. In 1977 a concrete crushing operation was established in the northeast corner of the landfill and in 1979 a tire shredding operation^[1] was added to the landfill. According to plaintiffs, the tire shredding was the "last straw". The machine that shredded the tires made a loud shrill-like scream every five seconds while being utilized. Apparently the stored tires^[2] gave off noxious odors and the shredder produced soot, particles and fibers which entered plaintiffs' home. Furthermore, plaintiffs assert that their health suffered^[3] and that the health problems dissipated after they moved when they sold their home at a loss in November of 1980. The jury awarded plaintiffs $12,500 in damages and approximately $3,000 for attorney fees.

On appeal defendant asserts that it was entitled to a grant of summary judgment based on governmental immunity and/or accelerated judgment based on the doctrine of laches or the statute of limitations. Defendant also argues that the award of attorney fees was improper.

Defendant contends that the operation of a landfill is a governmental function and governmental immunity bars this action. Although defendant raised governmental immunity as an affirmative defense, defendant never did assert this as a ground for summary disposition of this case.

The nuisance exception to governmental immunity is still unclear although the Supreme Court did indicate that a properly pled nuisance action would avoid the doctrine of immunity in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 657; 363 NW2d 641 (1985). Accordingly, as the Supreme Court is still split^[4] on the issue as to what sort of nuisance allegations would avoid governmental immunity, we adopt the exception for intentional nuisances and nuisances per se. Jenkins v Detroit, 138 Mich. App. 800, 805; 360 NW2d 304 (1984), and Pate v Dep't of Transportation, 127 Mich. App. 130, 135; 339 NW2d 3 (1983). Our review of the record reveals that plaintiffs did properly allege an intentional nuisance. Even if we were to assume arguendo that it was not properly pled, had defendant contested the pleadings in the lower court, plaintiffs might have amended their complaint to plead a claim that could not be confused with negligence. We will not now allow defendant to prevail on an eleventh-hour challenge after a full trial on the merits.

Defendant alleges that the trial court erred in its denial of its motions for accelerated judgment. Defendant argues that plaintiffs' cause of action accrued in the 1960's when defendant began the landfill operation, and thus, their claim was barred by the statute of limitations and the doctrine of laches. As this Court said in Hodgeson v Genesee County Drain Comm'r, 52 Mich. App. 411, 413; 217 NW2d 395 (1974), lv den 391 Mich. 843 (1974):

"The law is clear that where there are wrongful acts of a continuing nature, the statute of limitations does not begin to run from the date of the first act."

The continuing nature of a nuisance is recognized in Michigan. See Grunch v United States, 538 F Supp 534, 537 (ED Mich, 1982). Therefore, this action is not barred by the statute of limitations^[5] as the wrong suffered by plaintiffs was of a continuing nature.

Defendant's allegation that the doctrine of laches barred this claim is without merit. Testimony revealed that the operation of the landfill became more and more of a nuisance with the passage of time. Nor has defendant been prejudiced. Plaintiffs do not request abatement of the nuisance, rather they merely desire monetary relief. Defendant's investment in the landfill will not be harmed by affording plaintiffs relief. See Rofe v Robinson (On Second Remand), 126 Mich. App. 151, 154; 336 NW2d 778 (1983), and In re Crawford Estate, 115 Mich. App. 19, 25-26; 320 NW2d 276 (1982). Additionally we find no support for defendant's argument that evidence may only be admitted regarding damages up to three years prior to filing the complaint.

Defendant next contends that the jury instructions regarding its liability for the acts of the tireshredder lessee were in error. We do not agree. The law on liability of a landlord for his tenant's actions is stated in Herrst v Regents of the University of Michigan, 231 Mich. 396, 398; 204 N.W. 119 (1925):

"A landlord is not liable for the use of premises by a tenant in such a way as to occasion damage to a neighboring proprietor, merely because there was a possibility of their being so used. The wrong in such a case is that of the tenant and the liability therefore will stop with the tenant. * * * Any abuse of rights of neighboring proprietors in the use of the barn by the tenant was not chargeable to the landlord unless such abuse was sanctioned by the landlord; and such sanction could not rest upon implied notice and acquiescence."

Evidence was presented at trial to indicate that defendant was fully aware of the problems its lessee was causing plaintiffs and that defendant remained in the lease agreement to further its own interest. The jury instructions adequately stated the law and we find no error. Defendant's liability was contingent upon its knowledge of the use.

Defendant lastly contends that the award of attorney fees pursuant to GCR 1963, 316.7^[6] was improper. We do not find the addition of the third-party defendant to affect this award. Defendant's argument that plaintiffs' rejection of the mediation award would have necessitated a full trial in any event is without merit. Issa v Garlinghouse, 133 Mich. App. 579; 349 NW2d 527 (1984).

Affirmed. No costs, a public question being involved.

NOTES

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

[1] The operator of the tire-shredding was Charles Palaian, doing business as T.I.R.E., and was added as a third-party defendant. Mr. Palaian was a lessee of defendant. A judgment by default was entered against Mr. Palaian in favor of defendant, and such judgment is not being appealed.

[2] Although the lease only allowed for 4,000 tires to be stored on the premises, Mr. Palaian estimated that there were 75,000 to 100,000 tires on the property. The sanitation supervision estimated that 500,000 tires were present and plaintiffs contended that there were 2,000,000.

[3] Plaintiffs testified as to the aggravation of Mr. Moore's emphysema and sinus problems and that Mrs. Moore and their daughter developed sinus problems. Apparently their expectorant was full of tire fibers.

[4] See Rosario v City of Lansing, 403 Mich. 124; 268 NW2d 230 (1978), and Gerzeski v Dep't of State Highways, 403 Mich. 149; 268 NW2d 525 (1978).

[5] The applicable statute of limitations is MCL 600.5805(8); MSA 27A.5805(8).

[6] GCR 1963, 316.7(b)(3) provides:

"If both parties reject the panel's evaluation and the amount of the verdict, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is no more than 10 percent greater or less than the panel's evaluation, each party is responsible for his own costs from the mediation date. If the verdict is in an amount which, when interest on the amount and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent greater than the panel's evaluation, the defendant must pay actual costs. If the verdict is in an amount which, when interest and assessable costs from the date of filing of the complaint to the date of the mediation evaluation are added, is more than 10 percent below the panel's evaluation, the plaintiff must pay actual costs."