(concurring). I write separately because I do not subscribe to the view expressed in Ford v Detroit, 91 Mich App 333, 336; 283 NW2d 739 (1979); Martin v Michigan, 129 Mich App 100, 109; 341 NW2d 239 (1983), and Crosby v Detroit, 123 Mich App 213, 223; 333 NW2d 557 (1983), cited by the majority, as being the law in Michigan regarding what a plaintiff must show in order to prevail in an intentional nuisance action against the government.
Ford, Martin and Crosby misapprehend the proof requirement enunciated by the Supreme Court in Rosario v City of Lansing, 403 Mich 124, 142; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149, 161-162; 268 NW2d 525 (1978), reh den 403 Mich 956 (1978).
In both Rosario and Gerzeski, the Supreme Court articulated what must be shown in an intentional nuisance case against the government as follows:
" 'A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.’ ” Rosario, supra, p 142; Gerzeski, supra, pp 161-162. (Quoting from Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 [1952].)
Thus, to prove an intentional nuisance, a plaintiff must first show that the particular act or thing complained of is in fact a nuisance. If the trier of *703fact finds that the act or thing is a nuisance, the trier of fact then proceeds to determine whether the existence of that nuisance was intended. The word "intended” or "intentional” in this context does not mean that a "wrong” or the "existence of the nuisance” was intended; but rather, the only question for the trier of fact is whether the "condition” found to be a nuisance was itself intended. Stated another way, the only question to be asked of the trier of fact after it answers yes to whether the condition is a nuisance is: Upon your finding that this condition is a nuisance, was this condition intentionally created by the government? If the trier of fact answers affirmatively to this second inquiry then the government is liable under the intentional nuisance theory.
The apparent confusion in this area of governmental liability first arises in Ford, supra, p 336. In Ford, this Court first stated the proof requirement applied in Martin and Crosby. Thereafter, this Court has cited Ford v Detroit and its progeny without analysis of either Rosario or Gerzeski, or both. After stating the perceived proof requirement, Ford cites both Rosario and Gerzeski in support of this approach. However, upon reading the jump pages attributed to Rosario and Gerzeski by Ford, I find that the proof requirement advanced in Ford is not the correct standard. Ford places a heavier burden on plaintiffs than was established in Rosario and Gerzeski. Ford states that the government must have known that harm to plaintiff was substantially certain to follow as a result of its actions. Ford, supra, p 336. In other words, that the government intentionally harmed plaintiff. However, Rosario and Gerzeski state merely that plaintiff’s proof requirement is two-fold: (1) Is the condition a nusiance? And, if so, (2) did the government intend to create the condition? See *704Rosario, supra, p 142; Gerzeski, supra, pp 161-162. Further research evidences how Ford arrived at its standard. In Rosario, the Supreme Court provided a footnote which served as an observation of what Professor Prosser said regarding nuisances. See Rosario, supra, p 143, fn 2. Seizing this language, the Court in Ford held that that was what a plaintiff had to prove in his or her intentional nuisance case against the government. However, the Court in Ford went a step further and also cited Gerzeski as stating the same proposition. However, nowhere in the Gerzeski opinion does this or similar language appear, much less at the pages cited in Ford. In fact, at the page numbers cited in Ford v Detroit with reference to Gerzeski, the Supreme Court’s concurring justices1 restated the proof requirement they articulated earlier in Rosario, as follows:
" 'A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.’ ” Gerzeski, supra, pp 161-162. See, also, Rosario, supra, p 142. (Quoting from Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 [1952].)
One need only consider the facts in Gerzeski to understand that Ford v Detroit and its progeny *705have been misstating what proofs are required of a plaintiff in an intentional nuisance case against the government. The condition at issue in Gerzeski (i.e., the frozen nature of a pond) was factually determined to be a nuisance. The pond had been constructed by the governmental agency in the path of a warm water flow known as the "Bell drain”. Because of this condition, the pond took on a deceptive appearance and, in a sense, created a trap for those crossing the surface. Based upon these facts, the defense of governmental immunity was inapplicable. As stated by Justice Moody: "* * * the bar of governmental immunity is inapplicable when a trier of fact determines as in this case, that the alleged nuisance was intentional, i.e., that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance”. Gerzeski, supra, p 162. There was no requirement in Gerzeski, as propounded in Ford v Detroit, that plaintiff had to show that the government knew or must have known that harm to plaintiff was substantially certain to follow.
Thus, assuming, arguendo, the continuing viability of the intentional nuisance theory as being a recognized judicial exception to governmental immunity,2 I believe this Court should correctly state the elements which plaintiff must show to make *706out a case of intentional nuisance against the government. These proof requirements are well-stated in Rosario, supra, p 142, and Gerzeski, supra, pp 161-162, and quoted twice above.
Turning now to the merits of this case, because I do not have a definite and firm conviction that the Court of Claims committed clear error in its finding that the guardrail was not a nuisance, I vote to affirm the Court of Claims decision. MCR 2.613(C); Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
Justices Moody and Williams concurred with Justices Fitzgerald, Levin and Kavanagh in concluding that an action sounding in nuisance overcomes assertions of governmental immunity. However, Justices Moody and Williams limited the type of nuisance that could give rise to governmental liability; viz., they held that only intentional nuisances could create such liability. Because no clear majority of the Supreme Court has ever concurred in what type of nuisance will create liability in the government, the concurring opinion of Justices Moody and Williams in Rosario and Gerzeski is considered to be controlling as to what type of nuisance will prevail against a claim of governmental immunity.
In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591-592; 363 NW2d 641 (1984), the Supreme Court did not expressly reaffirm that a nuisance theory would serve as an exception to governmental immunity. However, it did suggest sub süentio that this judicially created exception still exists in Michigan. See 420 Mich 567, 657. At least one opinion released by this Court has read the Supreme Court’s treatment of the nuisance issue in Disappearing Lakes Ass’n v Dep’t of Natural Resources, a companion case to Ross, as reaffirming governmental liability for governmentally created nuisances. See Landry v Detroit, 143 Mich App 16, 25; 371 NW2d 466 (1985). Likewise the present makeup of the Supreme Court includes only three of the original justices who took part in the 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), reh den 403 Mich 956 (1978), decisions. Justice Levin held the view that all *706nuisances, whether intentionally or otherwise created, subjected the government to liability. Justice Williams sided with Justice Moody in declaring that only intentional nuisances were actionable. And, finally, Justice Ryan held the view that the nuisance exception is limited to two subclasses of nuisance: "nuisances per se” and "intruding nuisances”. Therefore, given this great divergence in the area of nuisance liability vis-á-vis the government, and the Supreme Court’s silence in Ross on the subject, it remains unclear whether the Supreme Court will still apply this judicially created exception in the face of an assertion of governmental immunity.