Ford v. City of Detroit

Per Curiam.

Plaintiff appeals from the trial court’s grant of summary judgment for the defendant City of Detroit.

While playing in a public park operated by the *335 City of Detroit, plaintiffs minor child broke her leg when she stepped through a three-inch space between a slide and the wooden platform to which it was attached. In her complaint, the plaintiff alleged that the city’s design, manufacture and construction of the slide created a hazard to the safety of those using it and that the slide, as a result, constituted a nuisance. The trial court granted summary judgment based on the city’s claim of governmental immunity from tort liability.

The Supreme Court has recently reexamined the impact of the nuisance doctrine on governmental immunity in Rosario v Lansing, 403 Mich 124 ; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways and a consolidated case, Fouchia v Dep’t of State Highways, 403 Mich 149 ; 268 NW2d 525 (1978). Although no clear majority view has emerged from these cases, certain points of agreement exist between the five justices who concurred in reversal.

First, it is evident that governmental immunity does not bar liability for a nuisance per se. Furthermore, the maintenance of a nuisance in fact by a governmental body may also impose liability and overcome any claim of sovereign immunity.

The distinction between a nuisance per se and a nuisance in fact is an evidentiary one. A nuisance per se is an act, occupation or structure which is a nuisance at all times and under all circumstances. Once the act has been proved, the court decides as a matter of law whether the act complained of constitutes a nuisance per se. The defendant’s liability at that point is established.

A nuisance in fact, by contrast, is an act, occupation or structure which becomes a nuisance because of circumstances and surroundings. Whether *336 or not a particular thing is a nuisance in fact is to be resolved by the trier of fact.

However, the five members of the Court voting for reversal in both Rosario and Gerzeski disagree as to whether all nuisances in fact may defeat a claim of governmental immunity. One view, represented by Justice Moody’s opinion in Gerzeski, supra, at 154 , would hold that only intentionally-created nuisances in fact overcome this claim. The differing theory set out in Justice Fitzgerald’s opinion in Rosario does not gainsay this conclusion; it simply asserts that the distinction between negligently- and intentionally-created nuisances is irrelevant in fixing liability.

Gerzeski, supra, at 154 . Because the justices adopting the first view constituted the swing votes for reversal in both cases, a cautious reading of these cases persuades us that at present only intentionally-created or continued nuisances in fact will defeat a claim of governmental immunity.

The existence of this type of nuisance in fact must also be resolved by the trier of fact. 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 a result of defendant’s actions.

Rosario, supra, at 143 , fn 2 and Gerzeski, supra, at 161-162 .

Applying the above principles to the case at bar we conclude, first, that the facts alleged by plaintiff would at most constitute a nuisance in fact and not a nuisance per se. However, we reverse and remand to the trial court for determination by the trier of fact whether (1) the conditions complained of constitute a nuisance in fact, and (2) if so, whether the nuisance was intentionally or negligently created.

Costs to abide the final outcome.