Askwith v. City of Sault Ste Marie

Weaver, J. In this case, we are once again called upon to address the nuisance exceptions to governmental immunity. The trial court granted summary disposition in favor of defendants on the basis of a determination that defendants were immune from suit. Plaintiff now appeals, and we affirm.1 [3] Plaintiffs decedent was operating an off-road vehicle on the grounds of defendant city’s municipal airport during the early morning hours of July 5, 1988. He apparently drove the vehicle along the runway and into a drainage ditch at the end of the runway, overturning the vehicle. Decedent was apparently rendered unconscious and was not discovered until the following evening. Decedent was transported to a hospital, where he later died. Plaintiff commenced the instant action, alleging nuisance, wilful and wanton misconduct, and gross negligence. Plaintiff was later allowed to amend his complaint to add counts of nuisance in fact and nuisance per se. The trial court, however, nevertheless granted summary disposition in favor of defendants. On appeal, plaintiff argues that the instant case comes within the nuisance per se and public nuisance exceptions to governmental immunity and, therefore, the trial court erred in granting summary disposition. We disagree. This Court recently decided that nuisance per se and public nuisance are exceptions to governmental immunity. Li v Feldt (On Second Remand), 187 Mich App 475; 468 NW2d 268 (1991). That decision was published after November 1, 1990, and this panel is therefore required to follow its holding. Administrative Order No. 1990-6, 436 Mich lxxxiv. Were we not so compelled, we would hold that all [4] claims of nuisance per se and public nuisance are barred by the governmental immunity statute. Further, we agree with Justice Griffin’s opinion in Li v Feldt (After Remand), 434 Mich 584, 605; 456 NW2d 55 (1990), wherein he stated: In my opinion, the fundamental purposes of the act were to restore immunity to municipalities, grant immunity to all levels of government when engaged in the exercise or discharge of a governmental function, and prevent judicial abrogation of governmental and sovereign immunity. The second sentence of § 7 [MCL 691.1407; MSA 3.996(107)] was merely intended to prevent further erosion of the state’s common-law immunity, rather than preserve any common-law exceptions to governmental immunity. Under this analysis, unless the activity of a municipality falls within one of the five narrowly drawn statutory exceptions, the only question remaining in these cases is whether the activity is a 'governmental function,’ as defined by the Legislature. However, Administrative Order No. 1990-6 requires that we follow the holding in Li v Feldt (On Second Remand), supra. Accordingly, we need only determine whether those exceptions are applicable in the case at bar. For the reasons expressed in the concurring opinion, we conclude that the nuisance per se and public nuisance exceptions to governmental immunity are inapplicable in the case at bar. Accordingly, the trial court properly granted summary disposition in favor of defendants. Affirmed. Defendants may tax costs. Griffin, P.J., concurred. Footnotes [1] With respect to the individual defendants, the trial court, in addition to finding them immune from suit, found that no facts had been pleaded or established that either had any responsibility over [3] the municipal airport where the accident occurred. We are cognizant that issues of individual immunity differ from immunity of the governmental entity itself. However, the parties do not address the immunity of the individuals separately from that of the city. In any event, plaintiff does not address the trial court’s alternative finding that there were no facts to support the allegation that the individual defendants were responsible for the maintenance of the airport. Accordingly, we address only the issue of the city’s entitlement to raise the immunity defense. Suffice it to say, we see no reason to reverse with regard to the individual defendants even if we were to address separately the issue of their liability.