Beard v. State

C. L. Horn, J.

On October 13, 1973, Bryan Beard, age 13, and David Scott Buhler, age 14, entered a Michigan National Guard firing range and found a 40-millimeter grenade. Bryan threw the grenade at a cement abutment on the range, but it did not explode. The boys picked up the grenade and took it back to their campsite located at the Jones Lake Campground, north of the firing range. The grenade was placed in the camper body of a pickup truck. Later that day the boys entered into the area of the camper where the grenade had been left. The grenade fell from a table and ex*124ploded when it hit the floor, seriously injuring both boys.

Plaintiffs’ complaints relating to each boy were consolidated. Motions for summary judgment were filed by plaintiffs under GCR 1963, 117.2(2), and by defendants under GCR 1963, 117.2(3). This is an appeal as of right from the Court of Claims order granting defendants’ motion for summary judgment.

The trial court found that defendants’ maintenance of a firing range is a governmental function. As such, defendants are immune from tort liability under MCL 691.1407; MSA 3.996(107), with certain judicially created exceptions. These exceptions are discussed in the Supreme Court recent reexamination of 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, 403 Mich 149; 268 NW2d 525 (1978). This Court has previously concluded that although no clear majority view has emerged from these cases, there appears to be an agreement that a claim of governmental immunity is defeated where there exists either an intentionally created or continued nuisance in fact or the maintanance of a nuisance per se. Ford v Detroit, 91 Mich App 333, 335-336; 283 NW2d 739 (1979). The question as to what constitutes a nuisance per se is a question of law for the court, while it is for the jury to decide whether a particular act or structure or use of property which is not a nuisance per se is a nuisance in fact. Brown v Nichols, 337 Mich 684, 689; 60 NW2d 907 (1953).

The trial court found that defendants created a nuisance per se in the way they maintained the shooting range. We do not review this finding since it is not challenged by either party on appeal. The *125court also found however that, even though defendants were not protected by governmental immunity due to their maintenance of a nuisance per se, they could not be held liable for the boys’ injuries because liability on the theory of nuisance cannot be extended to injury sustained from dangerous objects taken from the premises on which the nuisance is maintained. We agree with the trial court’s conclusion.

Liability for nuisance is predicated on the existence of a dangerous condition. Rosario, supra, 132.

"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. Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970).” Id.

Cases have expanded the term "nuisance” to apply to members of the public injured on the landowner’s premises as a result of a dangerous condition. See, Rosario, supra, 140, Munson v Menominee County, 371 Mich 504; 124 NW2d 246 (1963), Bluemer v Saginaw Central Oil & Gas Service, Inc 356 Mich 399; 97 NW2d 90 (1959), Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). However, there is no authority for expanding liability for nuisance to where a dangerous object is removed from the premises and results in damages elsewhere. This is in contrast to the situation where liability is based upon a defendant’s negligent act, where courts have found the property owner guilty of negligence in situations similar to the case at bar. See, e.g., Stewart v United States, 186 F2d 627 (CA 7, 1951), Shemper v Cleveland, 212 Miss 113; 51 So 2d 770 and 54 So 2d 215 (1951), Parrott v United States, 181 F Supp 425 *126(SD Cal, 1960), Duvall v United States, 312 F Supp 625 (ED NC, 1970). We have previously held that liability for damage caused by a nuisance turns upon when the defendant was in control, either through ownership or otherwise. Stemen v Coffman, 92 Mich App 595; 285 NW2d 305 (1979). In the instant case, defendants’ liability is based on the maintenance of a dangerous condition resulting from unexploded grenades on defendants’ premises. Liability cannot extend to where an object constituting part of the nuisance or the dangerous condition is removed from defendants’ premises and thus out of their control. We therefore affirm the judgment of the trial court.

Allen, J. concurred.