DocketNumber： Docket 59525
Citation Numbers： 336 N.W.2d 882, 126 Mich. App. 1
Judges： Wahls, Kelly, Warshawsky
Filed Date： 5/18/1983
Status： Precedential
Modified Date： 10/19/2024
Plaintiff appeals by right the trial court’s entry of accelerated judgment, GCR 1963, 116, based on the running of the two-year statute of limitations period as set forth in MCL 691.1411(2); MSA 3.996(111X2).
Plaintiff filed her complaint in this case on July 29, 1980, seeking damages for injuries she sus
At the hearing on the motion for accelerated judgment, defendant argued, and the trial court agreed, that the two-year statute of limitations applicable to actions brought against a governmental unit pursuant to the highway maintenance statute, MCL 691.1411(2); MSA 3.996(111X2), barred plaintiffs action as it was filed more than two years after her injury. The trial court was unpersuaded by plaintiffs argument that the two-year statutory period was inapplicable because the allegations of nuisance triggered a three-year statute of limitations. The court concluded that, regardless of what labels they were given, the allegations in plaintiffs complaint were governed by the two-year statute of limitations since the suit involved the maintenance of a highway.
In Palomba v East Detroit, 112 Mich App 209; 315 NW2d 898 (1982), decided subsequent to the trial court’s entry of accelerated judgment in this case, this Court rejected an argument identical to that advanced by the City of Detroit at the hearing below, stating:
"There are two exceptions to the governmental immunity statute involved in our consideration here. First, the Legislature has expressly authorized claims*4 against a governmental agency arising out of the negligent maintenance of highways. MCL 691.1402; MSA 3.996(102). The period of limitations for such claims is two years. MCL 691.1411; MSA 3.996(111). Second, the courts have ruled that the government has no immunity from liability for injuries resulting from a nuisance intentionally created or maintained. See Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978). The period of limitations for claims based upon intentional nuisance is three years. MCL 600.5805(8); MSA 27A.5805(8). These two exceptions to governmental immunity are distinct and independent. One involves liability for negligent conduct; the other for intentional conduct. If the conduct which creates the nuisance is intentional, it is irrelevant that the conduct also involves the maintenance of a highway. The claimant need not rely upon the legislatively created highway exception to the immunity statute but may, rather, rely on the judicially created nuisance exception. The governmental agency which intentionally creates the nuisance should not be given the advantage of a shorter limitation period merely because there is an alternative theory under which it would lose its immunity. Where conduct is alleged to be intentional, and it fits within the judicially created intentional nuisance exception to governmental immunity, the limitation period governing claims based upon intentional nuisance should be utilized. We conclude that the circuit court erred in applying the two-year statutory period to the nuisance claim. See Zimmer v State Highway Dep’t, 60 Mich App 769, 772; 231 NW2d 519 (1975).” Palomba, supra, pp 214, 215.
Accordingly, plaintiffs cause of action is subject to the three-year, rather than the two-year, statute of limitations, provided she has sufficiently pleaded a claim based upon intentional nuisance. Defendant contends on appeal that plaintiffs nuisance allegations are simply a restatement of her negligence allegations, with the only distinction being that she applied the label "nuisance” to the claims.
"2. That by reason of the circumstances and surroundings of the aforementioned sidewalk, an extremely dangerous and hazardous condition existed;
"3. That this dangerous condition had existed for more than thirty (30) days prior to the time of plaintiffs injuries and ripened into, become, and still is a nuisance in fact;
"4. That defendant negligently failed and refused to take any steps whatsoever to remedy the aforementioned dangerous condition;
"5. That the defendant, by allowing the dangerous condition to exist, knew or must have known that the harm to the plaintiff was substantially certain to follow * * * JJ
The existence of an intentionally created or continued nuisance in fact, necessary to avoid the defense of governmental immunity, is a question of fact to be determined by the trier of fact. Ford v Detroit, 91 Mich App 33; 283 NW2d 739 (1979). "To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as the result of defendant’s actions.” Ford, supra, p 336, citing Rosario, supra. In order for the issue to be submitted to the trier of fact, however, the allegations in plaintiffs complaint, when liberally construed, must be sufficient, if proven, to establish the existence of an intentionally created or continued nuisance in fact. Rosario, supra, pp 142-143; Davis v Detroit, 98 Mich App 705, 711-712; 296 NW2d 341 (1980).
We conclude that the allegations in plaintiffs
"The word 'refused’ denotes more than a 'want of care in maintenance’ or neglect. In this context, 'refused’ describes an alleged deliberate act by the governmental agency to create the complained-of condition.” Rosario, supra, p 143. (Footnote omitted.)
Accordingly, the trial court properly granted defendant’s motion for accelerated judgment as to plaintiff’s allegations of negligence and violation of the duty imposed by the highway maintenance statute, but erred in dismissing the amended complaint in which nuisance was alleged. Plaintiffs may attempt to prove the existence of an intentional nuisance in fact.
Affirmed in part, reversed in part, and remanded.