Garcia v. City of Jackson

ON REMAND

Before: Cynar, P.J., and Mackenzie and Wahls, JJ.

Cynar, P.J.

Plaintiffs appealed as of right from an April 12, 1985, judgment of the circuit court granting the defendant’s motion for summary judgment based on governmental immunity.

The Court of Appeals in its opinion of June 2, 1986, concluded that the plaintiffs had stated a claim upon which relief could be granted and reversed the grant of summary judgment in favor of defendant. This Court concluded that plaintiffs had stated a claim of intentional nuisance which avoided the defense of governmental immunity. Additionally, this Court concluded that plaintiffs’ allegations of wilful and wanton misconduct were sufficient to remove this case from the scope of the recreational use act. This Court remanded the case for further proceedings consistent with its opinion. Garcia v City of Jackson, 152 Mich App 254; 393 NW2d 599 (1986). Defendant filed an application for leave to appeal with the Supreme Court.

The Supreme Court, in its order of August 25, 1986, stated that it had considered the certification by the Court of Appeals pursuant to Administrative Order 1984-2 that the decision in the instant case is in conflict with its decisions in Ford v Detroit, 91 Mich App 333; 283 NW2d 739 (1979), and Furness v Public Service Comm, 100 Mich App 365; 299 NW2d 35 (1980), but ordered that the accompanying application for leave to appeal was held in abeyance pending the decision in Rushing v Wayne Co (Docket No. 74724), Hadfield v Oakland Co Drain Comm’r (Docket No. 75494), Veeneman v State of Michigan, (Docket No. 76815), Landry v Detroit (Docket No. 77011), and McCaul v Village of Lake Odessa (Docket No. 78233). The decisions in those cases having been issued on March 29, 1988, in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988), the application was again considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the judgment of the Court of Appeals was vacated and the case was remanded to this Court for reconsideration in light of Hadfield. 430 Mich 877 (1988).

In its original opinion, this Court noted that plaintiffs appealed the trial court’s finding that plaintiffs had failed to plead an intentional nuisance. Plaintiffs claimed that defendant intentionally created and maintained a structure that presented a danger to the public. The complaint further alleged that defendant knew of the specific danger since another boy had previously drowned in the vicinity of the box section and members of the public petitioned defendant to improve the dam. Plaintiffs cited several omissions on the part of defendant, including the failure to erect a grating over the conduit’s opening, to provide proper warnings, and to implement safety regulations. The Court of Appeals¹ concluded that the elements of intentional nuisance were sufficiently stated by the plaintiffs to avoid the defense of governmental immunity. Further, plaintiffs’ allegations of wilful and wanton misconduct, if proved, would remove this case from the scope of the recreational use act.

It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadñeld, 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. Negri v Slotkin, 397 Mich 105; 244 NW2d 98 (1976); People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987); Li v Wong (On Remand), 170 Mich App 256; 428 NW2d 36 (1988).

Further, the result and the language in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982), are strongly supportive of the conclusion that a case of wilful and wanton misconduct has been made out under the alleged facts in the case before us.

After much consideration, we reverse the trial court’s dismissal of the intentional nuisance and wilful and wanton misconduct claims and remand to the trial court for further proceedings.

Reversed and remanded.

Wahls, J., concurred.

1 Before Bronson, P.J., and R. B. Burns and R. C. Kaufman, JJ.