(concurring in part). While concur*484ring in the result in each case, I write separately to register my disagreement with the rationale and to reiterate my adherence to the views I stated in Li v Feldt (After Remand), 434 Mich 584, 596; 456 NW2d 55 (1990) (Griffin, J., concurring in part and dissenting in part). Under the analysis there outlined, which rejects the "historical approach” construction of § 7 of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., both of these cases would be dismissed for failure to fit within any of the five narrowly drawn statutory exceptions to immunity set forth in the act.
Levin, J.(separate opinion). In the last appearance of these consolidated cases in this Court, Li v Feldt (After Remand), 434 Mich 584, 592; 456 NW2d 55 (1990), this Court declared that the statute immunizing governmental agencies from tort liability1 "preserved judicially created exceptions to immunity which were formulated before July 1, 1965 ”2
The lead opinion proceeds on that premise, but concludes that public nuisance is not an exception to governmental immunity. The lead opinion does not define public nuisance, and declines to "pass on [the] question” whether the Li and Garcia plaintiffs "have properly stated claims of public nuisance . . . .”3 The opinion states that decisions of this Court that arguably presented public nuisance claims4 should not be read to establish a *485public nuisance exception to governmental immunity because these cases fall "comfortably within 'the category of trespass-nuisance’ ”5 and are therefore " 'in line with the [trespass-nuisance] exception adopted [in Hadñeld].’ ”6
The lead opinion then cites authority suggesting that there is a nuisance per se exception to governmental immunity,7 but finds it unnecessary to decide whether such an exception has been judicially recognized because "neither Li nor Garcia presents a colorable claim of nuisance per se” as the term has been defined by this Court.8
In essence, then, the lead opinion states that nuisance per se. might well be an exception to governmental immunity, but is not presented by these cases, while public nuisance — no matter what it may be, and whether or not presented by these cases — is not an exception to governmental immunity.
The effect of the lead opinion’s analysis is to restrict nuisance exceptions to cases presenting trespass-nuisance and, possibly, nuisance per se.
A
The lead opinion defines nuisance per se as "an activity or condition which constitutes a nuisance *486at all times and under all circumstances, without regard to the care with which it is conducted or maintained,”9 and as "an intrinsically unreasonable or dangerous activity . . . .”10 This Court has also said that the creation or maintenance of a condition statutorily defined as a nuisance constitutes a nuisance per se.11 It appears that nuisance per se, under these definitions, constituted an exception to governmental immunity at common law.12
I agree with the lead opinion that, to the extent that the instant plaintiffs have failed to allege facts raising colorable claims of nuisance per se— and, I would add, public nuisance — it is not appropriate to decide the extent of exceptions from governmental immunity therefor.13
I further agree that neither Li nor Garcia presents a colorable claim of nuisance per se. The activity engaged in by the governmental defendant did not, in either case, constitute "a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained.”14
*487B
I also agree that the plaintiff in Li may not maintain an action founded on a public nuisance exception to governmental immunity, but disagree with the reasoning adopted by the lead opinion in reaching that result.
Taking account of the factual allegations in Garcia, I would hold that a common-law public nuisance exception to governmental immunity might provide the plaintiffs in Garcia with a cause of action against the City of Jackson, a municipal corporation, and thus would affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.
i
At common law, depending on the facts of the case and the jurisdiction in which the case arose, liability for personal injury arising out of the creation or maintenance of a nuisance on government property, even where there was no intrusion on private property, was a recognized exception to governmental immunity. The types of nuisance constituting exceptions to immunity were not limited to trespass-nuisance, but encompassed elements of public nuisance, nuisance per se, intentional or “absolute” nuisance,15 and "attractive *488nuisance.”16 To judge from what courts did rather than what they said they were doing, these formulations were inconsistently labeled, and overlapped to a large degree. Thus, that findings of governmental liability have not always been neatly coextensive with particular definitions of nuisance should not be determinative.
The majority, of jurisdictions at common law viewed nuisance as an exception to the immunity of municipal corporations,17 and many, though not all, jurisdictions adopting this view allowed recovery for personal injury resulting from maintenance of a nuisance. Most early cases addressing the subject involved trespass-nuisance, but courts *489stated broadly that the government had no greater right than a natural or corporate person to maintain a nuisance to the injury of members of the public.18 In practice, this often meant that cities were subject to actions at law and in equity for essentially private nuisances, often with a trespassory component, and for damage actions where injuries were caused by defectively maintained public roads or by obstructed or polluted public waterways.
As applied to municipal corporations,19 a majority of jurisdictions addressing the question have held that governmental immunity does not bar actions to recover damages for personal injury resulting from a nuisance, including a public nuisance, created or maintained by a city, without regard to whether the conduct leading to the creation or maintenance of the nuisance occurred *490in the exercise of a governmental function.20 Some of these jurisdictions have applied this approach to injuries occurring entirely on government property, where no invasion of private property occurred.21
It appears that the common law of Michigan, as it had developed before July 1, 1965, does not yield a satisfactorily clear answer to the question whether certain types of nuisance, including "public nuisance,” constituted an exception to governmental immunity from actions for damages,22 particularly in the context of personal injury suffered entirely on government property.
While there are " 'few landmarks to be found’ ”23 directly in point in Michigan case law, it is clear that there is a territory, albeit imperfectly defined, of public nuisance for which a member of the public may maintain an action against a govern*491mental entity. It is the responsibility of this Court to draw reasoned lines to establish the boundaries of that territory.
*490[A] majority of the courts which have passed upon the question have held that the immunity of municipal corporations from liability for acts done in the performance of governmental functions does not extend to cases of personal injuries or death resulting from a nuisance created or maintained by a municipality[.] [Id., § 649, p 358.]
*491From at least as early as 1860, this Court has recognized that members of the public had a right to be free from nuisances created or maintained by municipalities, and that, when this right was violated, damages were recoverable in appropriate cases. The rule of law giving rise to this remedy was sufficiently a part of the fabric of common judicial experience to require only infrequent exposition.
In Pennoyer v Saginaw, 8 Mich 534, 535 (1860), involving private nuisance, the Court laconically observed that "the city, by creating the nuisance . . ., is prima facie liable for its continuance.”
In Ashley v Port Huron, 35 Mich 296, 301 (1877), the city was held to be subject to liability for damages for "trespass,” not nuisance, when a sewer project caused water to be cast on the plaintiff’s land. Discussing the rule, applied in the case, that "the public authorities have no more liberty to trespass upon [a private right of exclusive possession] than has a private individual,” the Court said:
A like excess of jurisdiction appears when in the exercise of its powers a municipal corporation creates a nuisance to the injury of an individual. The doctrine of liability in such cases is familiar, and was acted upon in Pennoyer v Saginaw, 8 Mich 534. [Id.]
Burford v Grand Rapids, 53 Mich 98; 18 NW 571 (1884), concerned injury to the plaintiff’s horse, which was struck by a bobsled in a street where the city permitted coasting. As set forth in the *492lead opinion, ante, pp 475-476, the city was held not liable because coasting was not "always a nuisance.”24 In his discussion of municipal liability,25 Justice Cooley cited Little v City of Madison, 42 Wis 643 (1877), for the proposition that "any dangerous and illegal use of a city street under the license of its common council will be a nuisance for the consequences of which the city must respond.”26
In Kilts v Kent Co Bd of Supervisors, 162 Mich 646; 127 NW 821 (1910), the plaintiff alleged both negligence and nuisance in an action arising out of the death of an employee working on a water tower platform, which collapsed. The Court disposed of the negligence claim, but not the nuisance claim, on the ground of governmental immunity. The nuisance claim was dismissed on definitional grounds: the plaintiff’s decedent, an employee, was not regarded as a member of the public while on the premises, and thus could not assert the claim of public nuisance that would have been available if the injury had been occasioned by a "defective structure” that was "contiguous to a highway.” Id., p 650. Nor could he assert the claim of private nuisance that would have been available if the tower had been "adjacent to an adjoining proprietor’s land so that it was a menace to his property, or to his person in the use of his land[.]” Id.
In Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503, 534; 141 NW 890 (1913), the Court held that dumping sewage into *493the Grand River was an enjoinable public nuisance. In observing that cities creating public nuisances were "subject to the same rules as would be a private individual,” the Court cited Pennoyer and Ashley, supra, both of which were actions for damages. The city’s conduct in Wyoming Twp risked physical injury to the public at least as much as damage to property, and directly affected a navigable waterway, the very waterway involved in Garcia.27
Further, after enactment of the governmental tort liability act, justices of this Court recognized nuisance exceptions to governmental immunity other than nuisance per se and trespass-nuisance.28
The lead opinion, acknowledging that nuisance is an unstated exception to governmental immunity, leaves intact the trespass-nuisance exception previously discovered in the cases, and reserves the question whether nuisance per se constitutes a further exception to governmental immunity. The lead opinion dismisses the public nuisance exception by arguing that a number of public nuisance cases in which damages were recovered against governmental entities may be explained in other terms.29
*494The absence of clear authority in Michigan allowing recovery against a governmental entity for maintenance of a public nuisance does not justify the lead opinion’s sweeping conclusion that a public nuisance exception did not exist at common law. There is no authority, other than today’s pronouncement, to support the intuition that the Legislature, which the Court has acknowledged did not contemplate or address abrogation of nuisance causes of action,30 "intended,” in enacting the governmental tort liability act,31 to allow recovery for trespass-nuisance and (perhaps) nuisance per se, but did not so "intend” with regard to public nuisance.
The lead opinion reads this Court’s prior decisions narrowly, and does not consider the possibility that prior cases may not have arisen in such a way as to place directly in issue recovery of damages for injury suffered on governmental property as a result of a ¡public nuisance. With the sole exception of McDowell v State Hwy Comm’r, 365 Mich 268; 112 NW2d 491 (1961), which is readily distinguishable as involving sovereign immunity,32 the signers of the lead opinion cannot point to any case in which this Court has expressly rejected such recovery, or in which this Court has ruled that, while other jurisdictions have held otherwise, the rule excepting nuisance actions from governmental immunity does not apply to public nuisance.
The concern of those who favor expansive construction of governmental immunity is that, were *495a substantive nuisance exception to be explicitly recognized in an area of the law lacking in fixed boundaries, any misstep by a governmental entity might subject that entity to liability, culminating in fiscal hemorrhage. This concern is understandable, but does not justify the conclusion that there is no public nuisance exception to governmental immunity. Public nuisance must be clearly defined, and rationally confined, so as to prevent an end run around governmental immunity. Line drawing is the business of this Court; that we might encounter difficulties does not relieve us of our responsibility.33
II
In Garfield Twp v Young, 348 Mich 337, 341-342; 82 NW2d 876 (1957), this Court adopted Prosser’s definition of public nuisance, which imparts some of the history of the concept:
"[A]n act or omission 'which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.’ The term comprehends a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community, or the comfort or convenience of the general public. . . .
"To be considered public, the nuisance must affect an interest common to the general public, *496rather than peculiar to one individual, or severed. ... It is not necessary, however, that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right.” (Prosser [Torts], § 71, pp. 401, 402.)[34]
In the early stages of development of the law, only conduct constituting a criminal offense was a public nuisance. According to the Second Restatement of Torts, however, it is now established that, in a public nuisance action, "a defendant need not be subject to criminal responsibility. Thus a municipal corporation, which cannot be prosecuted for a crime, may still be liable in tort for the creation or maintenance of a public nuisance if the *497conduct is such that a private individual would be liable.”35
Courts in other jurisdictions have held municipal corporations subject to liability in public nuisance for creating or maintaining conditions that endanger the health or safety of members of the public. Courts addressing liability for nuisance, including those speaking in terms of public nuisance, have offered inconsistent definitions and modes of analysis. Some of the cases are perhaps properly considered to involve attractive nuisances, and some involve public ways.36
*498The exception to immunity for public nuisance derived in part from the notion that certain acts or omissions of governmental entities went significantly beyond negligence.37 The same intuition *499that prompted courts to grant relief for trespass-nuisance may have prompted courts to allow recovery for injuries sustained as a result of defective public ways, including highways38 and water*500ways, and for other forms of harm suffered by persons while in the exercise of undoubted "public rights.”39
The exception from immunity for trespass-nuisance did not evolve solely from concern about takings of private property without just compensation.40 Judicial decisions allowing recovery for personal injury as well as damage to property on the basis of trespass-nuisance indicate that the right of action for trespass-nuisance does not depend on constitutional doctrine. In Ferris v Detroit Bd of Ed, 122 Mich 315; 81 NW 98 (1899), this Court found that governmental immunity did not bar a claim for injuries sustained when, as expressed by the lead opinion, "ice and snow [fell] from the roof of the defendant’s public school building onto the plaintiff’s private premises, causing him to slip and fall.”41_
*501"Intruding” governmental conduct constituting a nuisance may cause physical injury to a plaintiff without amounting to a taking, and without causing sufficient harm to the plaintiff’s property to amount to actionable private nuisance, although it may in some cases also constitute trespass. If governmental liability for personal injury caused by nuisance be admitted in such cases, there would seem to be no sound reason to predicate availability of a remedy on the often fortuitous circumstance of where the plaintiff happened to be standing at the time of the injury.42
*502Although the lead opinion posits a gulf between trespass-nuisance and public nuisance, it is clear that they are aspects of the same principle. This Court had not ruled or suggested before July 1, 1965, that while a member of the community has an historical right to recover for personal injury caused by a nuisance that impinges on his or her property notwithstanding governmental immunity, there is no parallel historical right to recover for personal injury suffered in the road or waterway that runs in front of the property and constitutes its only link to the rest of the world.43
III
The governmental entities involved in these cases as defendants and amici curiae have issued dire warnings that recognition of nuisance exceptions will eradicate the longstanding immunity for negligent performance of governmental functions.
In Royston v City of Charlotte, 278 Mich 255, *503260; 270 NW 288 (1936), recovery was denied to a plaintiff injured on a defectively maintained park swing. This Court said:
Acts in the discharge of governmental functions which create a nuisance per. se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.
These remarks were dicta — no nuisance per se was presented in the case — but demonstrate the Court’s awareness of the exception, which extends to public nuisance as well. The Court was not careful with the definition of public nuisance, which is here made to seem indistinguishable from nuisance per se. The Court’s primary concern appears to have been the hazard that actions predicated on negligence might be recast as "nuisance” to evade governmental immunity:
Application of such rule would abrogate the established doctrine of governmental immunity by merely classifying as a nuisance the result of the negligence of the municipal agents and employees in the maintenance of a governmental instrumentality, and for which the city is not liable, to one of liability under another designation; or, in other words, immunizing the negligence but not the result.[44]
It would indeed be incorrect to hold that every act of negligence on the part of a municipality is actionable as a nuisance. But the complementary proposition — that an action in nuisance can never be predicated on negligent acts — is equally untena*504ble. Because the city’s particular acts or omissions constituting negligent maintenance of the park swing were not themselves grounds of liability, the consequences of negligent maintenance, without more, could not be the subject of a nuisance action.45 The Court did not suggest that the presence of negligence invariably precludes maintenance of a nuisance action. Decisions in other jurisdictions state the contrary.46
*505IV
I turn to the disposition of the instant cases.
A
In Li, I agree with the result reached by the lead opinion. The plaintiff essentially asserts that the City of Ann Arbor created or maintained a dangerous condition — a poorly timed traffic signal —in a public road, thus interfering with plaintiff’s safe use of the road. Such interference, usually styled a public nuisance, lies at the core of the nuisance exception to governmental immunity.47 Plaintiff alleges that the traffic signal at issue was programmed in such a way that a particular motorist was often obliged to remain at the intersection through two light cycles before being allowed to turn left. Faced with this hindrance, plaintiff’s driver ran a red light to make a left turn. Plaintiff argues that "[s]afe travel on the public highway on which she rode was impeded by the programmed signal light which was dangerous in itself, a nui*506sanee per se, as well as being an obstruction to travel, a public nuisance.”48
Nuisance causes of action have been successfully asserted against governmental entities where traffic signs or signals were malfunctioning (particularly if the malfunctions were clearly dangerous),49 and, under similar circumstances, where the defendant had actual or constructive notice of the defect. However, no published decision in Michigan or any other jurisdiction appears to hold a governmental entity subject to liability for nuisance per se, or public nuisance, or nuisance of any stripe, where the asserted obstruction to travel was anything like the improperly programmed traffic signal here alleged.50 Nor do these allegations appear to support a cause of action against a governmental entity on any other legal theory.51
*507Only unreasonable obstructions are public nuisances.52 "[I]ntrinsically unreasonable or danger*508ous”53 conditions are nuisances per se. The traffic light that led to disaster in Li was, no doubt, frustrating and annoying, but it was not treacherous,, and did not constitute a trap.
B
In contrast with Li, the complaint in Garcia alleged a condition that was, although not so unavoidably dangerous as to constitute a nuisance per se, a deadly trap for the decedent, of which the city had notice. On these allegations, the question whether such a cause of action may be maintained can properly be resolved only with reference to all the facts of the case, inquiry into which has been foreclosed by the lead opinion’s determination that public nuisance is not an exception to governmental immunity.
The trespass-nuisance and public nuisance exceptions to governmental immunity include the well-established principle that members of the community may not be impeded from the safe use of ways of necessity, such as public roads and navigable waterways, which have historically been the lines of communication making community possible. Nor may a member of the community be dispossessed by the government of - his physical well-being while "in a place, such as a public way, where he has a right to be.”54 Such "a place” may, depending on the circumstances as they appear after full factual development, include premises "subject to the authority of defendant.”55
The record does not permit resolution of the critical question in Garcia: whether, and in what *509capacity, the plaintiff’s decedent may have had a right to swim in the holding pond behind the Holton Dam in Jackson. The dam and pond are an obstruction, albeit a governmentally created obstruction, in the path of the Grand River. If the holding pond were still an undisturbed part of the Grand River, a municipality might not have the authority to bar a member of the community from using the waters for transportation or recreation.
A governmental entity, certainly a municipal corporation, would be subject to liability for creating a nuisance by contaminating the river, just as it would be subject to liability for creating a nuisance by contaminating private property. As the city has no greater right than a private person to commit a trespass on private land, a member of the community ordinarily has as much right as the city to the use of a waterway such as the Grand River, at least as the Grand River existed in the days before projects such as Holton Dam were undertaken.56 A governmental entity ordinarily has no inherent right to obstruct the use of, or create a trap in, a way of necessity.
It is clear, of course, that a few things have changed since Michigan was settled. It may be that the holding pond is properly under the control of governmental entities, so that this particular section of the river has become other than public. Nonetheless, it remains to be established whether control of the pond had passed entirely to *510the City of Jackson,57 or whether the public in some sense shares the right to use of the waters with one or more governmental entities. A trial court should determine, after a full evidentiary hearing, whether members of the community, such as the decedent, were with frequency using the pond for swimming or other purposes, and whether the city was aware of such practices, which could have given rise to a prescriptive right, if not a public right, to "be there.”
Finally, even assuming that the holding pond had been so far removed from the public domain, so to speak, that the plaintiff’s decedent could not be regarded as other than a trespasser, the city might be subject to liability to the plaintiff, under the law of premises liability, for maintaining an attractive nuisance.58 As several justices recognized in Rosario v City of Lansing, 403 Mich 124, 134; 268 NW2d 230 (1978), circumstances amounting to a public nuisance, in the sense of a trap, may also constitute an attractive nuisance.59
MCL 691.1407(1); MSA 3.996(107)(1).
See the lead opinion, ante, p 472, n 7 and accompanying text.
Id., p 474.
At ante, p 468 if, the lead opinion cites and discusses Attorney General ex rel Wyoming Twp v Grand Rapids, 175 Mich 503; 141 NW 890 (1913), Trowbridge v City of Lansing, 237 Mich 402; 212 NW 73 (1927), and Pound v Garden City School Dist, 372 Mich 499; 127 NW2d 390 (1964). In connection with Pound, the lead opinion, also *485discusses Ferris v Detroit Bd of Ed, 122 Mich 315; 81 NW 98 (1899), and McDowell v State Hwy Comm’r, 365 Mich 268; 112 NW2d 491 (1961).
The Court in Wyoming Twp, Trowbridge, and McDowell spoke of "public nuisance.” The other cited cases, Pound and Ferris, do not advert to "public nuisance” or, indeed, mention the word "nuisance” at all. As the lead opinion’s reliance on these cases suggests, however, the presence or absence of the word "nuisance” or the term "public nuisance” is not dispositive of whether there is a cause of action.
Ante, p 470, quoting Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 174; 422 NW2d 205 (1988) (Brickley, J.).
Ante, p 470, quoting Hadfield, n 5 supra, 430 Mich 175.
At ante, pp 475-477, the lead opinion discusses Royston v City of Charlotte, 278 Mich 255; 270 NW 288 (1936), and Burford v Grand Rapids, 53 Mich 98; 18 NW 571 (1884).
Ante, p 477.
Id., pp 476-477.
Id., p 477.
See, e.g., Portage Twp v Full Salvation Union, 318 Mich 693, 703; 29 NW2d 297 (1947).
See Royston v City of Charlotte, n 7 supra, discussed infra, and Burford v Grand Rapids, n 7 supra, discussed in n 18 and in the lead opinion, ante, pp 475-476.
In Li v Feldt (After Remand), supra, p 606, I observed that "[t]he question whether there is a nuisance per se or public nuisance exception to governmental immunity should be decided in a case where the court concludes that factually there is a nuisance per se or a public nuisance.”
Ante, pp 476-477. As the lead opinion states, "[t]he very essence of the claims in both [cases] is that the underlying activities became unreasonable and dangerous . . . because the defendants allegedly exercised improper or inadequate care.” Id., p 477.
When a nuisance is described as intentional, it means " '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.’ ” Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952), quoting Beckwith v Town of Stratford, 129 Conn 506, 511; 29 A2d 775 (1942). Although this Court determined in Li (After Remand) that intentional nuisance is not, categorically, an exception to governmental immunity, the "intentional” character of a nuisance may bear on whether an assertion of governmental immunity should be recognized. As Justice Moody observed in concurrence *488in Gerzeski v Dep’t of State Hwys, 403 Mich 149, 161-162; 268 NW2d 525 (1978):
[NJuisances per se and intentional nuisances have been coupled for liability considerations. For example, on several occasions the Court has held that contributory negligence, while a defense for negligent nuisances, is not an appropriate defense for either nuisances per se or intentional nuisances.
More importantly, the definition of an intentional nuisance clearly reflects that the nature of the conduct complained of in an intentional nuisance situation is more akin to conduct creating a per se nuisance than the careless or neglectful conduct which produces a negligent nuisance.
To hold the government immune from the consequences of its intentional acts which create a nuisance would be . . . unconscionable. [Citations omitted.]
"Attractive nuisance” is properly analyzed as a species of negligence. See 2 Restatement Torts, 2d, ch 13 (Condition and Use of Land), § 339, p 197 if, comment o, p 206. In many jurisdictions, however, the common law conflated public nuisance and "attractive nuisance” causes of action. See ns 58-59.
Municipal corporations are part private entity, part governmental entity. See, e.g., Sheldon v Kalamazoo, 24 Mich 383 (1872). The nuisance exception is almost always expressly phrased as overriding the "governmental function” defense to liability. However, the trespass-nuisance exception probably predates the governmental function-proprietary function dichotomy. See Cooperrider, The courts, the legislature and governmental tort liability in Michigan, 72 Mich L R 187, 279-281 (1973).
In Burford v Grand Rapids, n 7 supra, p 102, Justice Cooley said:
[I]f the act which is done by a municipal corporation would be tortious if done by a natural person, the corporation is held liable for it to the same extent, and for the same reasons that the natural person would have been. The legal protections of property are the same against artificial persons as against others, and the state itself, or any one of its municipalities, has no more power to deprive the owner of his possessions than has the private citizen.
Justice Cooley cited cases from this Court, and courts of other jurisdictions, concerning governmental liability for trespass-nuisance, trespass, and nuisances in public roads.
Although the majority of jurisdictions adhere to the view that a nuisance vitiates governmental immunity, personal injury actions against certain governmental defendants may nonetheless be barred in such jurisdictions. The Supreme Court of Virginia has limited the nuisance exception to "true municipal corporations,” as distinct from such quasi-corporations as school districts, on the ground that the latter are "agents or instrumentalities of the state and 'partake of the state’s sovereignty with respect to tort liability.’ ” Taylor v Charlottesville, 240 Va 367, 374; 397 SE2d 832 (1990), quoting Kellam v Norfolk School Bd, 202 Va 252; 117 SE2d 96 (1960) (both cases applying the nuisance exception recognized in Virginia law at least as early as 1926).
See, generally, anno: Buie of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance, 75 ALR 1196; supplemented by 56 ALR2d 1415. This principle was reflected in treatises in common use before July 1, 1965. See, e.g., 38 Am Jur, Municipal Corporations, § 647 et seq., pp 355 ff:
See, e.g., cases cited and discussed in n 36, infra.
In Rosario v City of Lansing, 403 Mich 124, 134; 268 NW2d 230 (1978), Justice Fitzgerald observed that the early common law of governmental immunity in Michigan offered "several different justifications for either governmental liability or non-liability .... The result is that a case can be found supporting almost any proposition concerning governmental immunity one chooses to advance.” Early decisions concerning municipal liability for nuisance, for example, reached diametrically opposite results on equally plausible grounds. Id., n 8.
Ante, p 467, quoting the Court of Appeals in Li (On Second Remand), 187 Mich App 475, 480; 468 NW2d 268 (1991).
Note 7 supra, 53 Mich 103.
See also Bagni v City of Bristol, 127 Conn 38; 14 A2d 716 (1940), citing Burford, and cases from other jurisdictions, for the rule that, because coasting on a public street is not a nuisance per se, municipal designation of coasting areas does not amount to licensing a public nuisance.
See n 18.
Note 7 supra, 53 Mich 103.
See also Phelps v Detroit, 120 Mich 447, 451; 79 NW 640 (1899) (a bridge impeded access to the plaintiff’s property; the statute of limitations defense asserted by the city was held inapplicable to a continuing nuisance); Phillips v Village of Armada, 155 Mich 260, 262; 118 NW 941 (1908) ("Under all the authorities, which we need not cite, the defendant possessed no right to dump its sewage into an open ditch by the plaintiff’s residence, which gave forth obnoxious and offensive odors”; maintenance of this condition was described as a "public nuisance” in Gundy v Village of Merrill, 250 Mich 416, 418; 230 NW 163 [1930]); Royston v Charlotte, n 7 supra, discussed passim.
See, generally, the review of case law in the opinions of Justices Brickley and Boyle in Hadfield.
See, e.g., Rosario v City of Lansing, n 22 supra, and Gerzeski v Dep’t of State Hwys, n 15 supra (opinions by Fitzgerald, J., joined by Kavanagh, C.J., and Levin, J., and opinions by Moody, J., joined by Williams, J.).
Wyoming Twp, Trowbridge, and Ferris, n 4 supra, are described *494as trespass-nuisance decisions; of these cases, only Ferris was an action for damages. The lead opinion dismisses Pound, n 4 supra, on the basis that the injury occurred on a public sidewalk, which was not within the authority of the governmental defendant.
See Hadfield, n 5 supra, pp 144-150 (Brickley, J.).
MCL 691.1401 et seq.; MSA 3.996(101) et seq.
See n 38.
Whether a particular interference with a public right constitutes a public nuisance and should be actionable in damages is a separate question in each case, and can only be addressed by reference to the facts of the case. Clearly, every pothole is not a public nuisance. But neither should this Court- summarily, before full factual development, exculpate from liability a municipal corporation that knowingly maintained a highly dangerous trap, to which plaintiffs’ decedent was drawn to his demise.
The relationship between negligence and nuisance, with regard to tort actions against governmental defendants, is discussed in part m.
Public nuisance has elements in common with private nuisance. See, e.g., 4 Restatement Torts, 2d, ch 40 (Nuisance), § 821B, comment h, p 93. See also Kilts v Kent Co Bd of Supervisors, supra, pp 649-653. This Court said:
We are of the opinion that a nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same .... [T]he circumstances must be examined with a view to ascertaining whether the alleged condition is one so serious as to interfere with the comfort of life and enjoyment of property, or so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights. [162 Mich 651. Emphasis in the original.]
The Court then quoted numerous definitions of public and private nuisance and concluded:
Running through all of these is the element of wrongful, continuing, impending danger to the lives, limbs, or health of the public, or to the legitimate property or personal rights of private persons peculiarly subject to the danger. [Id., p 653.]
The category of public nuisance is also closely related to, and sometimes overlaps with, nuisance per se. Garfield Twp, for example, reaffirmed that a junkyard was "not a public nuisance per se at the common law.” 348 Mich 340 (emphasis added).
4 Restatement Torts, 2d, § 821B, comment d, p 89. See also Burford, ns 7 and 18 supra, and the holding of Ft Oglethorpe v Phillips, 224 Ga 834; 165 SE2d 141; 34 ALR3d 1002 (1968), discussed in n 37 infra.
In Renstrom v City of Nampa, 48 Idaho 130, 133; 279 P 614 (1929), the city was held subject to liability to a pedestrian who slipped and fell after a city employee sprinkled a sidewalk with water in freezing weather and failed to remove the resulting ice, of which the city was aware. The court defined nuisance to reach injuries "resulting from the municipality’s failure to remove a continuing and menacing condition [even if] brought about by the negligent performance of [purely governmental] duties.”
In Lehmkuhl v Junction City, 179 Kan 389; 295 P2d 621 (1956), the city was held subject to liability where a child died after climbing onto a deceptively solid-looking crust atop a trash-and-water pit in a city dump. The court found this condition, maintained in the vicinity of a residential neighborhood, to constitute a public nuisance; arguably, it also amounted to an attractive nuisance.
In Barker v Santa Fe, 47 NM 85; 136 P2d 480 (1943), the defendant was held subject to liability on facts similar to Lehmkuhl, except that the treacherous crust floated atop a tank in a sewage disposal plant. Because the plaintiff denominated this condition an "attractive nuisance,” the court took pains to establish that the plant was a corporate and not a governmental function. The court also, however, generally characterized the condition as a nuisance and thus as an exception to governmental immunity, which basis of recovery would have obviated the "corporate function” inquiry.
In Hoffman v Bristol, 113 Conn 386; 155 A 499; 75 ALR 1191 (1931), the defendant maintained, at a public pool, a diving board over cloudy water less than four feet deep. The city was held subject to liability when the plaintiff suffered serious injuries upon executing a dive. The court observed that no warning notice was posted where the plaintiff could have seen it, and that the deceptive appearance of the water underneath the diving board amounted to a dangerous condition. The court offered various definitions of nuisance, distinguishing "absolute” *498from "negligent” nuisance on the basis that the latter entailed failure to remedy a condition not created by the city. This condition, however, was an absolute nuisance.
In Johnson v Tennessean Newspaper, Inc, 192 Tenn 287, 289; 241 SW2d 399 (1951), the plaintiff was injured in a city park when she stepped into "an invisible hole” in the ground in a grassy area, one of numerous water outlets normally covered by concrete blocks. The city knew, however, that the blocks were often removed by park patrons. City officials "admitted that these holes when [uncovered] were 'regular pitfalls or traps’ and known to be 'extremely dangerous.’ ” Id., p 292. The court of appeals held that " 'as originally created and constructed, this outlet was safe and constituted no nuisance,’ ” id., p 290, so that only negligent maintenance had caused the danger; the Tennessee Supreme Court reversed and held for the plaintiff even though park management was a governmental function: "[T]he question of negligence is hardly involved,” the court said, because the blocks were removed frequently enough that the city’s reasonable exercise of vigilance did not suffice to eliminate the danger. Id., p 291.
Taylor v Charlottesville, n 19 supra, p 372, applying common-law principles developed before 1941, held:
A public nuisance is a condition that is a danger to the public. The essential characteristic of a public nuisance as it relates to highways is that the condition imperils the safety of a public highway and is dangerous and hazardous in itself. The dangerous condition need not exist within the street itself [because the] "purpose of the rule is to provide safety to persons lawfully using the streets . . . [and] dangers known to exist outside the street’s limit [may be] so near thereto as to endanger public travel thereon.” [Citations omitted.]
Thus, the city was held subject to liability for the death of a motorist where there were "no signs, guardrails, lights, reflectors, painted lines, sidewalks, or curbs to mark the end” of a dead-end road separated from "the edge of a steep precipice” by only a "37-foot strip of land . . . .” Id., p 369.
See also Ft Oglethorpe, n 35 supra, p 838, reciting the Georgia statutory definition of nuisance as "[a]nything that works hurt, inconvenience or damage to another”; and Bengivenga v City of Plainfield, 128 NJL 418, 420; 26 A2d 288 (1942), defining public nuisance as "one which might cause damage to any member of the public.”
In Ft Oglethorpe v Phillips, n 35 supra, p 834, a city was held subject to liability in a nuisance action for injuries sustained by a motorbike rider as a result of a dangerously defective traffic signal. The complaint alleged that, for two weeks before the collision, city officials had been aware that the traffic light "would flash either red *499or green on all four sides of the intersection simultaneously. Numerous accidents resulted . . ., and on the day the plaintiff was injured there were six collisions . . . because the defective traffic light flashed green in all directions . . . .”
The Supreme Court of Georgia stressed that, on such allegations, the city would not be permitted to assert immunity, despite characterization of traffic signal maintenance as a governmental function:
A municipality like any other individual or private corporation may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or a ministerial function. While it is true that a municipal corporation is not liable for its acts of negligence in discharging a governmental function, yet a municipal corporation cannot under the guise of performing a governmental function create a nuisance dangerous to life or health. . . . The allegations of the petition take the instant case beyond mere negligence and into a situation which constitutes a nuisance . . . [,] a defective condition thacould work damage to anyone who came in proximity to it. [Id., pp 837-838. Emphasis added; citations omitted.]
At common law, nearly every United States jurisdiction other than Michigan followed the majority rule, establishing governmental liability for interference with a public way, including highways and navigable waterways. Michigan was in the minority of jurisdictions holding that, with respect to liability for injuries sustained in a public road, the immunity of governmental entities may be overcome only by express action of the Legislature. Detroit v Blackeby, 21 Mich 84, 117 (1870), after listing the many jurisdictions holding to the contrary, concluded by holding, over a dissent by Justice Cooley, "that it will require legislative action to create any liability to private suit for non-repair of public ways.”
The Legislature responded, enacting 1879 PA 244 to establish governmental liability for injuries sustained on a public road. The law is now codified at MCL 691.1401 et seq.; MSA 3.996(101) et seq.
Apart from McDowell v State Hwy Comm’r, supra, discussed by the lead opinion at ante, p 474, no decision of this Court has rejected on immunity grounds a properly pleaded nuisance claim arising out of injuries sustained on a public road. McDowell does not support the contention that common-law nuisance actions could not be maintained, irrespective of immunity and statutorily defined liability, against any governmental entity. The holding of McDowell was predicated on the sovereign immunity of the state, which, unlike that of certain other governmental entities, including municipal corporations, is absolute, except insofar as expressly abrogated by the Legis*500lature. Although 1964 PA 170, the governmental tort liability act, was intended prospectively to make uniform the level of governmental immunity, see Li (After Remand), 434 Mich 593, n 8, the act’s further purpose to preserve common-law exceptions to immunity would not be implemented by thoroughgoing retrospective application of sovereign immunity law to all governmental entities. See also n 19 supra.
4 Restatement Torts, 2d, ch 40 (Nuisance), § 821B, p 87, defines a public nuisance as "an unreasonable interference with a right common to the general public.”
See Rosario, n 22 supra, p 137, n 12 (Fitzgerald, J.); Hadfield, n 5 supra, p 211, n 6 (Levin, J.).
The superfluity of the taking rationale is especially evident in cases in which it cannot be plausibly asserted that the governmental defendant sought to obtain a valuable public benefit at the plaintiff’s "expense,” i.e., by means of activity having a destructive effect on the plaintiff’s property or person. The resort to constitutional doctrine in Buckeye Union Fire Ins Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970), where the accidental result of protracted, neglectful maintenance of a dangerously dilapidated building was treated as a "taking,” appears to exemplify the cracks that have appeared in this rationale.
Ante, p 473.
See 38 Am Jur, Municipal Corporations, § 584, pp 280-282, applying this principle to both negligent acts and nuisances:
*501Common justice demands that the right to be safe in life and limb should be as sacred to the citizen as his property rights. . . . |T]t would be the height of absurdity if, when a negligent municipal employee, engaged in the construction of a governmental work, carelessly blasted a piece of rock which broke into two fragments, one of them striking a passer-by and injuring him, and the other crashing through the roof of a neighboring house, the owner of the house was given compensation and the injured individual denied it .... It is only when the creation of a nuisance by express authority of the legislature causes both damage to property and sickness to individuals — in a state in which it is required that compensation be paid when property is damaged for the public use — that it could be held with any propriety that the damage to property was actionable and the injury to health was not .... If, however, the nuisance was not expressly authorized, there is no reason why it should not be actionable in one case as well as the other if it is caused by the corporation itself[.]
The lead opinion emphasizes that Pound, n 4 supra, relied on Ferris and distinguished McDowell. See ante, pp 473-474. The plaintiff in Pound was injured while in an area that, although not Ids own property, was "a place, such as a public way, where he has a right to be and which is not subject to the authority of defendant.” Pound, p 502. In holding the plaintiff’s claim not barred by governmental immunity, the Court recited the Ferris formulation: " '[T]he doing of a wrongful act, causing a direct injury to the person of the plaintiff, while outside the limits of the defendant’s premises.’ ” Id., p 501, quoting Ferris, 122 Mich 319.
Nothing in these passages compels the conclusion that there is no public nuisance exception to governmental immunity. The Court in Pound did not state whether the formulations recited were words of description or words of limitation. The quoted phrases clearly describe what the Court actually did in that case, holding a governmental entity subject to liability for injuries received by a plaintiff while in *502an area where he had a right to be and which was not subject to the authority of the governmental defendant. To parse the Pound formulations as words of limitation, so as to suggest that a governmental defendant maintaining a nuisance on a public way, or in another place where a plaintiff has an undoubted right to be, will not be subject to liability unless the site of the injury is "outside the limits of the defendant’s premises,” is to read into Pound a proposition that this Court has never stated.
The distinction by the Court in Pound of McDowell, n 4 supra, as a case involving injury in an area subject to the authority of the governmental defendant does not, contrary to the lead opinion’s assertion, appear to be "highly significant,” ante, p 474, for reasons set out in n 38 supra. Assuming that the school district in Pound was accorded the same sovereign immunity as the state highway department in McDowell, see Sayers v School Dist No 1, 366 Mich 217; 114 NW2d 191 (1962), the fact remains that municipal corporations were not entitled to sovereign immunity at common law. Thus, even if the interpretation of nuisance law offered by Pound reflects a substantive limitation on the law of governmental liability for nuisance, such a limitation would not be applicable to municipal corporations.
I acknowledge the decisions of this Court that preceded the statutory regime of liability for negligently inflicted injury suffered in public roads. See n 38.
Id., p 261.
Id, p 260.
Among the formulations of this principle are Prifty v Waterbury, 133 Conn 654; 54 A2d 260 (1947) (a municipality creating or maintaining a nuisance is subject to liability for damages irrespective of whether the misfeasance or nonfeasance causing the nuisance also constituted negligence); Barker v Santa Fe, n 36 supra (same); Renstrom v City of Nampa, n 36 supra (a municipality is subject to liability for injuries arising out of negligent performance of governmental duties where nuisance results); Bengivenga v City of Plainfield, n 36 supra (a person suffering special harm from a municipality’s negligence in performing public duties is barred from maintaining a damage action except where the injury is caused by a nuisance resulting from the municipality’s active wrongdoing); City of Pekin v McMahon, 154 Ill 141; 39 NE 484 (1895).
In Herman v Buffalo, 214 NY 316, 320-321; 108 NE 451 (1915), the New York Court of Appeals distinguished nuisance from negligence, and held that a municipal corporation would be subject to liability for death or injury caused by a nuisance defined in "absolute” or "intentional” terms:
The creation or participation in the creation of the dangerous condition must have been with the consciousness and understanding on the part of the [governmental defendant] that it was creating it; or it must have been obvious and almost certain to a reasonably prudent man . . . that [the governmental] acts would create or help to create it. The condition must have been a purpose or object of the [municipality]; it must have intended to effect it; or its acts have been so reckless and unwarranted that that intention must be conclusively implied. This is not declaring that it must have intended the danger or the catastrophe. It must have intended the condition, but, having that intention, may have thought it was not dangerous or been thoughtless in regard to it. It must have violated the absolute duty of refraining 'from the participating acts, not merely the relative duty of exercising reasonable care, foresight and prudence in their performance. The wrongfulness must have been in the acts themselves rather than in the failure to use the requisite degree of care in doing them, and therein lies the distinction . . . between nuisance and negligence. The one *505is a violation of an absolute duty, the other a failure to use the degree of care required in the particular circumstances — a violation of a relative duty. A nuisance may be created or maintained with the highest degree of care and the negligence of a defendant, unless in exceptional cases, is not material.
The parties dispute whether the failure of the plaintiif in Li to commence her action within the two-year period prescribed by the highway liability statute, MCL 691.1411; MSA 3.996(111) was dispositive of her claim, irrespective of common-law exceptions to governmental immunity. The defendant and some amici curiae argue that all claims for personal injury arising out of defective public roads, including actions that otherwise could have been maintained by virtue of one or more common-law exceptions to governmental immunity, were subsumed under a single, explicit statutory rule, the highway exception to governmental immunity, which provides the exclusive remedy for such injuries. The plaintiif argues for application of MCL 600.5805(8); MSA 27A.5805(8), a three-year statute of limitations for commencement of actions.
Plaintiff cites no authority applying these assertions of law to the facts alleged.
See Ft Oglethorpe v Phillips, n 35 supra.
Nuisance liability has been imposed for defective traffic signal design, as distinct from the improper signal programming alleged in Li. The court in Banks v City of Brunswick, 529 F Supp 695 (SD Ga, 1981), aff’d 667 F2d 97 (CA 11, 1982), applied Georgia law, which does not require malfunction of an instrumentality before liability may be imposed under the nuisance exception to municipal immunity. The plaintiff, operating a motorcycle, collided in an intersection with an automobile driven by Armstrong, who had just executed a left turn.
There was, however, no allegation of fault on the part of either motorist. Rather, plaintiff claimed that both he and Armstrong were lawfully following the traffic signal light. But, because the design of the signal failed to include a yellow light between the left turn arrow and the green light in plaintiff’s lane, the drivers were unwittingly directed to the point of impact. [529 F Supp 697. Emphasis added.]
See, generally, anno: Liability of highway authorities arising out of motor vehicle accident allegedly caused by failure to erect or properly maintain traffic control device at intersection, 34 ALR3d 1008.
Review of negligence-based claims, including decisions involving facts arguably presenting nuisance without mentioning the term, demonstrates that the plaintiff may not maintain an action sounding *507in nuisance. Such decisions manifest judicial concern for conditions such as the unannounced change in the timing of a traffic signal addressed in Pritchard v Sully-Miller Contracting Co, 178 Cal App 2d 246, 254; 2 Cal Rptr 830 (1960) "which misled [the driver] and virtually created a trap for him” (emphasis added). Similarly, the Supreme Court of Iowa noted that "[a] small and carefully circumscribed area of potential liability for the placement of traffic signs remains in the face of [the statute immunizing governmental units for liability relating to traffic control devices] for placing signs which mislead ... or endanger the driver.’ ” Phillips v City of Waukee, 467 NW2d 218, 219 (Iowa, 1991) (emphasis in original; citations omitted).
The same rationale underlies Delosovic v New York, 143 Misc 2d 801; 541 NYS2d 685 (1989), aff’d 174 AD2d 407; 572 NYS2d 857 (1991), affirming a jury verdict for the plaintiff where a walk/don’t walk sign was programmed in such a way that a pedestrian was misled into believing that she had time to complete traversal of a crosswalk; Sparkman v Maxwell, 519 SW2d 852 (Tex, 1975), holding that a driver who made an improper left turn and became involved in an intersectional collision was not guilty of negligence as a matter of law where governmental authorities were on notice that motorists were confused by a red arrow pointing left; and City of Denton v Mathes, 528 SW2d 625 (Tex Civ App, 1975), holding that a city was not immune from liability for indemnification to the driver of a truck involved in a collision where traffic proceeding south through an intersection was presented with a green light at the same time that traffic facing north was presented with a red light and a green left-turn arrow.
Although the plaintiff has argued that members of the public were annoyed by the traffic signal in Li, she does not assert that the relevant governmental entities were on notice that there was a dangerous condition. Cf. Tuttle v Dep’t of State Hwys, 397 Mich 44; 243 NW2d 244 (1976).
Against the background of the statutory highway exception to governmental immunity, see n 47, a plaintiff claiming an exception to the two-year statute of limitations, assuming for the moment that any such exception were available, must allege governmental creation or maintenance of a condition that could not be ascribed to the mere negligence of a governmental employee or agent. Cf. Tuttle, supra. Yet even under a negligence theory, the plaintiff would be unable to show that the condition amounted to a danger to a traveler in the exercise of ordinary care and making lawful use of the highway. Cf. Comerica Bank v Dep’t of Transportation, 168 Mich App 84; 424 NW2d 2 (1987), holding the defendant not negligent for its failure to install four-way stop signs at the intersection where the decedents’ driver failed to stop at a stop sign.
4 Restatement Torts, 2d, ch 40 (Nuisance), § 821B, p 87.
Ante, p 477.
Pound, n 4 supra, 372 Mich 502.
Id. See n 42 supra.
Such ways of necessity are qualitatively different from property owned or occupied by the government, or enterprises conducted by the government, for many other public purposes. It has been thought necessary to create statutory categories of liability and immunity so that some of these governmental functions, such as the provision of recreational and emergency services, will receive appropriate levels of immunity. In these settings, there is a perceived need to avoid presenting governmental agencies with potential liability of such magnitude that the agencies have no incentive to engage in the publicly beneficial activity at all.
In that event, plaintiffs’ claim might run afoul of Pound, n 4 supra. But see n 42.
See 2 Restatement Torts, 2d, ch 13 (Condition and Use of Land), § 339, pp 197 ff.
See, e.g., the cases of Lehmkuhl and Barker, discussed in n 36, supra. See also City of Pekin v McMahon, n 46 supra. In McMahon, the Supreme Court of Illinois affirmed a damage award against the defendant city in the death of an eight-year-old boy, who drowned in a water-filled pit owned by the city and located in a thickly settled area. The decedent was playing on some planks and logs floating on the surface when he slipped into the water. Judgment for the plaintiff was sustained on a theory of "attractive nuisance,” but the court also held that "a municipal corporation holding property as a private owner is chargeable with the same duties and obligations, which devolve on individuals . . ., and must respond in the same way for creating or suffering nuisances.” Id., p 154. The court approved admission into evidence of a city ordinance that defined such conditions as nuisances and provided penalties for their maintenance. Insofar as the city’s conduct was unlawful, and maintenance of the water pit constituted a nuisance as defined by law, the water pit might properly have been further characterized as a public nuisance or a nuisance per se.
*511Because attractive nuisance is part of the law of negligence, see n 16, the plaintiff must show that maintenance of the holding pond was not a "governmental function.” See Heino v Grand Rapids, 202 Mich 363; 168 NW 512 (1918). The defense of contributory negligence might not be available to the city if the nuisance were determined to be intentionally created, see n 15, but see Hickey v Zezulka (On Resubmission), 439 Mich 408; 487 NW2d 106 (1992), decided today. It would remain a question of fact whether the "no swimming” signs posted by the defendant, and even the warning the plaintiff’s decedent is said to have received from a playmate, were sufficient to support such a defense in light of allegations that the decedent was mentally retarded.