Chapin v. Coloma Township

163 Mich. App. 614 (1987) 415 N.W.2d 221 CHAPIN v. COLOMA TOWNSHIP Docket No. 88175. Michigan Court of Appeals. Decided June 25, 1987. James F. Bauhof, for plaintiffs. Hartwig, Crow, Jones & Postelli (by F.A. Jones), for defendant. Before: CYNAR, P.J., and M.J. KELLY and J.A. HATHAWAY,[*] JJ. PER CURIAM. Plaintiffs appeal as of right from an order granting summary disposition. Although not explicitly stated, it is apparent that the order was granted pursuant to MCR 2.116(C)(8), on the ground that the complaint failed to state a claim upon which relief can be granted. Since we conclude that summary disposition was erroneously granted with respect to the trespass and intentional nuisance counts of the complaint, we reverse and remand for further proceedings on these theories of recovery. According to the complaint, plaintiffs are the owners and residents of a home located in Coloma Township. Defendant township operates a sewage system that services plaintiffs' residence. Because of a previous history of problems associated with a lift pump, defendant had installed an auxiliary motor in anticipation of possible failure of the primary motor powering the pump. For a "long period" prior to December 1, 1982, the primary motor was inoperative, but defendant did not effect repairs, relying on the auxiliary motor to keep the sewage system functioning. On or about December 1, the auxiliary motor also failed. The result was that raw sewage accumulated in plaintiffs' garage and underneath their home, causing damages to both the premises and contents stored therein. Initially, we note that a motion for summary disposition pursuant to MCR 2.116(C)(8) is well *617 taken only if the pleadings are so clearly unenforceable as a matter of law that no factual development can justify a right of recovery. The allegations of fact in the complaint and all reasonable inferences drawn from those allegations are accepted as true for purposes of the motion. If governmental immunity is at issue, as in the instant case, the plaintiff must plead facts in avoidance of the bar of immunity. Martin v Michigan, 129 Mich App 100, 104-105; 341 NW2d 239 (1983), lv den 422 Mich 891 (1985). Plaintiffs' complaint set forth five theories of recovery, three of which are pertinent to this appeal: (1) intentional nuisance, (2) trespass, and (3) eminent domain. In its answer to the complaint, defendant asserted the defense of governmental immunity. On appeal, defendant reiterates its contention that governmental immunity bars any recovery on the theories of nuisance and trespass. In Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep't of State Highways, 403 Mich 149; 268 NW2d 525 (1978), reh den 403 Mich 956 (1978), the Court recognized the viability of a judicially created nuisance exception to immunity. Although both cases were decided by plurality opinions, a majority of the Court agreed that, at a minimum, a claim of intentional nuisance was not barred by governmental immunity. Although defendant argues that the judicial reshaping of immunity in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), abrogated the intentional nuisance exception, the Court expressly disclaimed any attempt to address that question. Id., 610-611, n 27, and 654-655. Subsequent decisions of this Court have reaffirmed the exception's viability. Carney v Dep't of Transportation, 145 Mich App 690, 700-701; 378 NW2d *618 574 (1985), lv den 424 Mich 889 (1986); Moore v City of Pontiac, 143 Mich App 610, 612-613; 372 NW2d 627 (1985). A similar exception exists for trespass committed by the casting of objects onto the plaintiffs' land. Pound v Garden City School Dist, 372 Mich 499; 127 NW2d 390 (1964). See also Gerzeski, supra, 169-171 (RYAN, J., dissenting). Therefore, we conclude that governmental immunity does not bar the claims for intentional nuisance or trespass in the instant case. Nuisance theory is divided into two categories — nuisance per se and nuisance in fact. Martin, supra, 108. Nuisance per se contemplates activity that is actionable as a matter of law, regardless of the surrounding circumstances. Nuisance in fact, on the other hand, is actionable only because the surrounding circumstances give rise to a "natural tendency ... to create danger and inflict injury to person or property." Id. It is nuisance in fact that plaintiffs assert in the instant case. In order to establish nuisance in fact, it is necessary to show that the defendant is responsible for a "dangerous, offensive, or hazardous" condition. Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970). Although a nuisance in fact may be created either by negligent or intentional conduct, only the latter will suffice to evade the governmental immunity bar when suit is brought against a government agency. Carney, supra, 700-701. In the instant case, the circuit court ruled that the allegations of the complaint were insufficient to establish intent on the part of defendant. We hold that this was error. The complaint alleged that plaintiffs were "intentionally threatened" by defendant's nuisance in fact. It was also a reasonable inference from the well-pled factual allegations that defendant's failure to repair the pump *619 motor was accompanied by its knowledge that harm to plaintiffs was substantially certain to occur.[1] In their complaint, plaintiffs alleged only that defendant did not take adequate precautions against the malfunctioning of the system and that it did not repair or replace the failed primary motor in timely fashion. A conflict presently exists in the decisions of this Court on the question whether an omission to act can be the basis for an intentional nuisance action. Compare Velmer v Baraga Area Schools, 157 Mich App 489, 501-502; 403 NW2d 171 (1987), and Furness v Public Service Comm, 100 Mich App 365, 370; 299 NW2d 35 (1980), with Garcia v City of Jackson, 152 Mich App 254, 260-261; 393 NW2d 599 (1986), and Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985), lv gtd 424 Mich 876 (1986). We conclude that this Court in Garcia and Landry correctly decided this question in reliance on Justice MOODY'S plurality opinion in Rosario, supra, 403 Mich 141-144, where it was stated that a deliberate refusal to take an affirmative remedial action may give rise to an intentional nuisance. We also distinguish Velmer on the ground that the dangerous condition in that case was latent. Unlike Velmer, *620 plaintiffs in the instant case alleged that defendant had "notice" of the danger created by the malfunctioning sewage system. Accordingly, we conclude that the circuit court erred by granting summary disposition on plaintiffs' intentional nuisance claim. Plaintiffs also argue that the circuit court erred by granting summary disposition of their trespass count. The court erroneously granted summary disposition on the basis of its belief that governmental immunity barred a trespass claim. Since the complaint alleges that operation of the sewage system caused sewage to be "cast" into plaintiffs' residence, we conclude that a proper claim for trespass was stated. Ferris v Detroit Bd of Ed, 122 Mich 315; 81 NW 98 (1899); Ashley v Port Huron, 35 Mich 295 (1877). We find no error in the circuit court's summary disposition of plaintiffs' theory of recovery based upon eminent domain. The nature of the damages pled by plaintiffs do not rise to the level of a "taking" within the meaning of Const 1963, art 10, § 2. See Hart v Detroit, 416 Mich 488, 500-502; 331 NW2d 438 (1982). In summary, we reverse the lower court's summary disposition with respect to plaintiffs' intentional nuisance and trespass counts and remand for further proceedings consistent with this opinion. The lower court's summary disposition on all other counts of the complaint is affirmed. Affirmed in part, reversed in part, and remanded. *621 He concurs with the majority's finding that the circuit court erred in granting summary disposition as to the trespass count. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] We are cognizant of the present conflict in decisions of this Court regarding the intent requirement necessary for a claim based on nuisance. Some panels have held that the plaintiff must show that the defendant committed the acts resulting in the nuisance with the intent or with knowledge to a substantial certainty that the harm would occur. Velmer v Baraga Area Schools, 157 Mich App 489; 403 NW2d 171 (1987), lv pending; Ford v Detroit, 91 Mich App 333, 336; 283 NW2d 739 (1979). To the contrary, others have held that the plaintiff need only show that the defendant intentionally created the hazardous or dangerous condition without any knowledge that the plaintiff would be harmed. Garcia v City of Jackson, 152 Mich App 254, 259-260; 393 NW2d 599 (1986); Veeneman v Michigan, 143 Mich App 694, 699; 373 NW2d 193 (1985), lv gtd 424 Mich 876 (1986). Since we conclude that plaintiff's complaint was adequate under either line of cases, we express no opinion as to the proper resolution of this conflict. M.J. KELLY, J., dissents with regard to the intentional nuisance count for reasons stated in his opinion concurring in part and dissenting in part in Landry v Detroit, 143 Mich App 16, 26; 371 NW2d 466 (1985), lv gtd 424 Mich 876 (1986).