Veeneman v. State of Michigan

143 Mich. App. 694 (1985) 373 N.W.2d 193 VEENEMAN v. STATE OF MICHIGAN Docket No. 72022. Michigan Court of Appeals. Decided June 19, 1985. Napieralski, Walsh & Velzen (by Randall L. Velzen), for plaintiff. Frank J. Kelly, Attorney General, Louis J. Caruso, Solicitor General, and Clive D. Gemmill, Assistant Attorney General, for defendant. *697 Before: M.J. KELLY, P.J., and R.M. MAHER and M.P. REILLY,[*] JJ. PER CURIAM. Plaintiff's decedent was fatally injured on May 23, 1981, when the dune buggy in which he was riding overturned. The accident occurred in the Silver Lake State Park, Oceana County, in an area designated for use by off-road vehicles. The park is owned and operated by defendant State of Michigan. Plaintiff brought this action against the state alleging negligence and intentional and negligent nuisance in fact. The trial court on May 2, 1983, granted defendant's motion for summary judgment under GCR 1963, 117.2(1), finding that the action was barred by governmental immunity, MCL 691.1407; MSA 3.996(107), and by the recreational use statute, MCL 300.201; MSA 13.1485. Plaintiff was permitted to file a second amended complaint which added a count alleging gross negligence or wilful or wanton misconduct. A final order dismissing the case was entered June 6, 1983. Plaintiff appeals as of right. We hold that (1) the action against the state is barred by governmental immunity, except as to plaintiff's allegation of intentional nuisance, and (2) the recreational use statute does not bar plaintiff's action. GOVERNMENTAL IMMUNITY In order to plead a valid claim against a government agency, the plaintiff must plead facts in avoidance of governmental immunity. McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976). This is accomplished by stating a claim which fits *698 within one of the legislatively[1] or judicially created exceptions to governmental immunity or by pleading facts which demonstrate that the activity alleged is not in the "exercise or discharge of a governmental function" within MCL 691.1407; MSA 3.996(107).[2]Id. In Ross v Consumers Power Co (On Reh), 420 Mich 567, 620; 363 NW2d 641 (1984), the Court adopted the following definition of "governmental function": "We therefore conclude that 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." In this case, the state's operation of the Silver Lake State Park is an activity which is expressly mandated or authorized by statute. MCL 318.3 et seq.; MSA 13.1011 et seq. The activity is clearly not proprietary in nature and does not come within any of the statutory exceptions to governmental immunity. We therefore conclude that plaintiff's claim against the state is barred by governmental immunity, except to the extent plaintiff has pled a valid claim of intentional nuisance, a judicially created exception to governmental immunity. *699 In 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), five justices of the Supreme Court agreed that claims of nuisance per se and intentional nuisance in fact[3] are not barred by governmental immunity. See Disappearing Lakes Ass'n v Dep't of Natural Resources, 121 Mich App 61, 65-66; 328 NW2d 570 (1982), aff'd 420 Mich 567; 363 NW2d 641 (1984). Liability for nuisance is predicated on the existence of a dangerous condition. "Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care. Bowman v Humphrey (1906), 132 Iowa 234 (109 NW 714)." Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970). A nuisance in fact is a nuisance by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact where its natural tendency is to create danger and inflict injury on a person or property. Rosario, supra, pp 132-133, quoting Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959). An intentional nuisance is one created by conduct intended to bring about conditions which are in fact found to be a nuisance. Gerzeski, supra, pp 161-162; Rosario, supra, p 142. The existence of a nuisance in fact is a question for the trier of fact. In order for the issue to be submitted to the *700 trier of fact, however, the allegations in the plaintiff's 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 142-144; Pacini v Detroit, 126 Mich App 1, 5; 336 NW2d 882 (1983). The Supreme Court in Ross, supra, did not expressly consider whether a claim of intentional nuisance continues as a common law exception to governmental immunity. However, in Disappearing Lakes Ass'n, supra, one of the cases decided along with Ross, the plaintiffs alleged, inter alia, that the DNR "negligently and/or intentionally created a nuisance" by issuing a permit for dredging certain canals. The Court of Appeals found that the plaintiffs had not pled a valid claim of nuisance because the issuance of dredging permits alone was not sufficient indication that the DNR actually controlled the project which created the nuisance. The Supreme Court affirmed, finding that "[t]he Court of Appeals conclusion that plaintiffs had insufficiently pleaded a nuisance cause of action is not clearly erroneous". Ross, supra, p 657. We can only infer from this statement that the Court intended to retain the common law intentional nuisance exception recognized in Rosario and Gerzeski. See Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985). In the present case plaintiff's complaint alleges that defendant improperly designated certain areas of the park for use by off-road vehicles and failed to establish rules to minimize the injuries to off-road vehicle participants, including failure to regulate pattern and speed of travel, failure to limit the number of off-road vehicles, failure to adequately inspect the terrain and vehicles, failure to adequately install warning signs and failure to provide adequate medical assistance. The complaint *701 also alleges that defendant was aware of previous deaths and injuries of a similar nature in the area, and knowing this, failed to take appropriate measures. We find that the complaint sufficiently alleges an intentional nuisance which is an exception to the bar of governmental immunity. RECREATIONAL USE STATUTE The recreational use statute, MCL 300.201; MSA 13.1485, provides: "No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee." (Emphasis supplied.) The Legislature has set fees for the use of state parks in the amount of $10 for an annual motor vehicle permit or $2 for a daily permit for each motor vehicle entering the park. MCL 318.310; MSA 13.1053(10). We find these fees to consititue valuable consideration for use of the state park by occupants of the vehicles, including use of the off-road vehicle area on which the accident in this case occurred. The recreational use statute therefore has no application to the instant case.[4] *702 Plaintiff's contention that summary judgment was premature because discovery had not been completed is without merit. Summary judgment was granted under GCR 1963, 117.2(1), based solely on the pleadings. Since this case does not involve a dispute as to material facts, the authority relied upon by plaintiff is inapplicable. The order of dismissal is reversed as to the intentional nuisance count, is affirmed as to all other counts of the complaint, and the case is remanded for trial. M.J. KELLY, P.J. (concurring in part and dissenting in part). I concur with the majority regarding its treatment of the governmental immunity issue and its finding that "the state's operation of the Silver Lake State Park is an activity which is expressly mandated or authorized by statute" and is thus protected under MCL 691.1407; MSA 3.996(107). I also concur in the majority's reading of Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), and Disappearing Lakes Ass'n v Dep't of Natural Resources, 121 Mich App 61; 328 NW2d 570 (1982), aff'd 420 Mich 567; 363 NW2d 641 (1984), as to the survival of the intentional nuisance exception to the doctrine of governmental immunity. I do not, however, agree that plaintiff in this case has pled facts sufficient to state a claim of intentional nuisance. As I have previously stated in Shunk v Michigan (After Remand), 132 Mich App 632, 636; 347 NW2d 767 (1984): "[N]egligence does not become an intentional tort merely because the government acted wilfully or intentionally in doing or failing to do a particular act, since such a rule would virtually eliminate the doctrine of governmental immunity. Elliott v Dep't of Social Services, *703 124 Mich App 124, 128-129; 333 NW2d 603 (1983). Instead, the government's tortious activity must fall outside the exercise or discharge of a governmental function. Elliott v Dep't of Social Services, supra, p 129; Smith v Michigan, 122 Mich App 340, 345; 333 NW2d 50 (1983). Generally, the intentional tort exception to the governmental immunity doctrine has been limited to traditional intentional torts, Randall v Delta Charter Twp, 121 Mich App 26, 34; 328 NW2d 562 (1982), and acts of omission rather than commission are not generally characterized as intentional torts. Elliott v Dep't of Social Services, supra, p 130, citing Randall v Delta Charter Twp, supra, p 34." See also my dissenting opinion in Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985), and Judge SHEPHERD'S dissenting opinion in Sanford v Detroit, 143 Mich App 194; 377 NW2d 904 (1985). In this case, plaintiffs have essentially pled omissive rather than comissive acts on the part of the state, all of which are within the exercise of its governmental function in creating and operating state parks. I would affirm the trial court's order of summary judgment in full. I also write separately on the applicability of the recreational use statute, MCL 300.201; MSA 13.1485. While I agree that the act does not apply in this case because of the annual and daily permit fees charged for admission into the park, I wish to reserve judgment on whether the recreational use act applies to state-owned lands. See McNeal v Dep't of Natural Resources, 140 Mich App 625; 364 NW2d 768 (1985), where it was held that the statute does apply to state-owned property. But the primary intended beneficiaries of the act are private landowners and there may be some distinctions to consider as to state-owned land which would exempt it from the recreational use statute. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] MCL 691.1402; MSA 3.996(102); MCL 691.1405; MSA 3.996(105); MCL 691.1406; MSA 3.996(106), and MCL 691.1413; MSA 3.996(113). [2] MCL 691.1407; MSA 3.996(107) provides: "Except 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. Except 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." [3] For a discussion of the difference between a nuisance per se and a nuisance in fact, see Rosario v City of Lansing, 403 Mich 124, 132-133; 268 NW2d 230 (1978), quoting Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959). [4] In McNeal v DNR, 140 Mich App 625; 364 NW2d 768 (1985), the plaintiff was injured in the same dune buggy accident involved in the present case. A panel of this Court upheld summary judgment in favor of the defendant based, in part, on a finding that the claim was barred by the recreational use statute, MCL 300.201; MSA 13.1485. The plaintiff in McNeal did not argue on appeal that the permit fees constituted valuable consideration for using the park, and the Court therefore did not consider the question.