Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 2, 2002
ROBERT POHUTSKI, AMY POHUTSKI, KIERK
SANDERLIN, JOELLE SANDERLIN, ALAN
BULLION, ANTHONY CORBELL, PIETRO FUSCO,
NORMA FUSCO, KAYE GARDNER, BEVERLY
GARDNER, SHIRLEY KARAPETOFF, KAREN
KEREZI, BRIAN LaFUENTE, MICHELLE
LaFUENTE, RICHARD REFALKO, DOLORES
RAFALKO, WILLIAM SHAMUS, KATHLEEN
SHAMUS, and all others similarly
situated, a certified class,
Plaintiffs-Appellees,
v No. 116949
CITY OF ALLEN PARK, a Michigan Municipal
Corporation,
Defendant-Appellant,
and
JOHN DOE REPRESENTATIVES, EMPLOYEES, OR
AGENTS OF THE CITY OF ALLEN PARK,
Jointly and Severally,
Defendants.
JEANNE JONES, JAMES JONES, ROGER TROST,
CAROL TROST, MIKE ROBERT, MIKE BARTHLOW,
CINDY BARTHLOW, SUSAN BROWN, KENNETH
BROWN, SHIRLEY BRYANT, DAVID BURHANS,
MAGDALENA CHAVEZ, WILLIAM CHUNN, IVAN
GADJEV, FLORENCE GADJEV, REX GLASSON,
BARBARA GLASSON, KEVIN HALL, SONIA HALL,
LON HAMILTON, DIANE HAMILTON, WILLIAM
HATTON, ELIZABETH HATTON, BILL HOFSESS,
JOAN HOFSESS, JAMES HUBBLE, VIRGINIA
HUBBLE, SOUREN MERUCCI, ENERA MERUCCI,
MARY PEGORARO, PHIL PEGORARO, LUIS
PERESSINI, MICHAL ALLEN PETERS, MIGUEL
PRIETO, JILL PRIETO, TODD SNIDER, BETTY
ZAHER, and all other similarly situated,
Plaintiffs-Appellees,
v No. 117935
CITY OF FARMINGTON HILLS, a Michigan
Municipal Corporation, and JOHN DOE
REPRESENTATIVES, EMPLOYEES, OR AGENTS OF
THE CITY OF FARMINGTON HILLS, Jointly
and Severally,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
In these consolidated cases, this Court once again faces
whether the plain language of § 7 of the governmental tort
liability act, MCL 691.1407, permits a trespass-nuisance
exception to governmental immunity. Because the Legislature’s
definition of the word “state” is clear and unambiguous, we
hold that it does not. In so holding, we overrule Hadfield v
Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988),
and other cases to the contrary. However, because we are
2
mindful of the effect our holding will have on the
administration of justice, we conclude that limiting our
holding to prospective application is appropriate.
I
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
A
POHUTSKI V ALLEN PARK
The city of Allen Park experienced a “ten year storm” on
February 17 and 18, 1998. As a result of the high volume of
rainfall, raw sewage from the city’s sewer system backed up
through plaintiffs’ floor drains and into their basements.
Plaintiffs filed a class action against the city of Allen Park
for trespass, nuisance, trespass-nuisance, negligence, and
unconstitutional taking in April 1998. Plaintiffs thereafter
sought summary disposition of their trespass-nuisance claim
under MCR 2.116(C)(10). Plaintiffs argued that defendant was
liable as a matter of law under the doctrine of trespass
nuisance and that Hadfield barred governmental immunity as a
defense. Defendant opposed the motion, arguing that a claim
of trespass-nuisance required a showing of causation, and that
it could not be held strictly liable solely on the basis of
its ownership of the sewer system.
In a brief opinion rendered from the bench, Wayne Circuit
Judge Edward Thomas granted plaintiffs’ motion for partial
summary disposition, holding that defendant was strictly
3
liable under the “trespass-nuisance” exception to governmental
immunity. The Court of Appeals denied defendant’s application
for interlocutory review. Unpublished order, entered May 23,
2000 (Docket No. 222238).
B
JONES V FARMINGTON HILLS
On August 6, 1998, a “one hundred year storm” dropped
approximately 4.6 inches of rain in less than six hours on the
city of Farmington Hills, causing flooding throughout the
community. As a result, raw sewage from defendants’ sewer
system traveled up through plaintiffs’ floor drains and into
their basements. Thirty-seven plaintiffs filed suit against
the city of Farmington Hills, alleging claims of trespass,
nuisance, trespass-nuisance, negligence, and unconstitutional
taking. Plaintiffs moved for summary disposition of their
trespass-nuisance claim, arguing that defendant was liable as
a matter of law under Hadfield. Defendant opposed the motion
and filed a counter motion for summary disposition, arguing
that trespass-nuisance is not a strict liability tort and that
plaintiffs had failed to establish causation or improper
construction, engineering, or maintenance of its sewer system.
Oakland Circuit Judge Jessica Cooper denied defendants’
motion and granted plaintiffs’ motion for summary disposition
of their trespass-nuisance claim. Judge Cooper held that
trespass-nuisance was a recognized exception to the
4
governmental immunity statute, MCL 691.1407, and that no
genuine issues of material fact existed regarding the
exception’s three elements: (1) a condition (nuisance or
trespass), (2) cause (physical intrusion), and (3) causation
or control (by government).
After the trial court denied reconsideration, defendant
applied for leave to appeal in the Court of Appeals. The
Court of Appeals granted the application and stayed the
pending trial date. Plaintiffs then filed an emergency motion
for rehearing. The Court of Appeals granted plaintiffs’
motion, vacated its earlier order, and denied leave to appeal.
Unpublished order, entered September 29, 2000 (Docket No.
227657).
II
STANDARD OF REVIEW
This Court reviews a trial court’s decision to grant
summary disposition de novo. Wickens v Oakwood Healthcare
System, 465 Mich 53, 59; 631 NW2d 686 (2001). Questions of
statutory interpretation are also reviewed de novo. In re MCI
Telecommunications, 460 Mich 396, 413; 596 NW2d 164 (1999).
III
THE GOVERNMENTAL TORT LIABILITY ACT
From the time of Michigan’s statehood, this Court’s
jurisprudence has recognized that the state, as sovereign, is
immune from suit unless it consents, and that any
5
relinquishment of sovereign immunity must be strictly
interpreted. Manion v State Hwy Comm’r, 303 Mich 1, 19; 5
NW2d 527 (1942). Sovereign immunity exists in Michigan
because the state created the courts and so is not subject to
them. Ross v Consumers Power Co (On Rehearing), 420 Mich 567,
598; 363 NW2d 641 (1984).
It is important to distinguish between “sovereign
immunity” and “governmental immunity”:
“[S]overeign” immunity and “governmental”
immunity are not synonymous. True, they have been
over the years used interchangeably in decisions,
but a delineation may be helpful. Sovereign
immunity is a specific term limited in its
application to the State and to the departments,
commissions, boards, institutions, and
instrumentalities of the State. The reason is the
State is the only sovereignty in our system of
government, except as the States delegated part of
their implicit sovereignty to the Federal
government.
* * *
. . . Over the years, by judicial
construction, this “sovereign” immunity has been
transmogrified into “governmental” immunity and
made applicable to the “inferior” divisions of
government, i.e., townships, school districts,
villages, cities, and counties, but with an
important distinction. These subdivisions of
government enjoyed the immunity only when engaged
in “governmental” as distinguished from
“proprietary” functions. [Myers v Genesee Auditor,
375 Mich 1, 6, 8-9; 133 NW2d 190 (1965) (opinion of
O’HARA , J.) (emphasis in original).]
In Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1
(1961), Justice EDWARDS , joined by Justices T.M. KAVANAGH , SMITH ,
6
and SOURIS , wrote: “From this date forward the judicial
doctrine of governmental immunity from ordinary torts no
longer exists in Michigan. In this case, we overrule
preceding court-made law to the contrary.” Justice BLACK , in
his concurring opinion, stated that governmental immunity
would be abolished only for municipalities, not the state and
its subdivisions. Id. at 278.
As we noted in Ross, supra at 605, the Legislature
enacted the governmental tort liability act in 1964 in
reaction to Williams’ abolition of common-law governmental
immunity for municipalities, and in anticipation of a similar
abrogation of immunity for counties, townships, and villages.
The act “was intended to provide uniform liability and
immunity to both state and local governmental agencies” when
involved in a governmental function. Id. at 614. While
there is agreement regarding the statute’s intent, there has
been much disagreement regarding its meaning.
When faced with questions of statutory interpretation,
our obligation is to discern and give effect to the
Legislature’s intent as expressed in the words of the statute.
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300
(2000); Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d
70(2000). We give the words of a statute their plain and
ordinary meaning, looking outside the statute to ascertain the
7
Legislature’s intent only if the statutory language is
ambiguous. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27, 528
NW2d 681 (1995). Where the language is unambiguous, “we
presume that the Legislature intended the meaning clearly
expressed--no further judicial construction is required or
-
permitted, and the statute must be enforced as written.”
DiBenedetto, supra at 402. Similarly, courts may not
speculate about an unstated purpose where the unambiguous text
plainly reflects the intent of the Legislature. See Lansing
v Lansing Twp, 356 Mich 641, 649-650; 97 NW2d 804 (1959).
When parsing a statute, we presume every word is used for
a purpose. As far as possible, we give effect to every clause
and sentence. “The Court may not assume that the Legislature
inadvertently made use of one word or phrase instead of
another.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307
(2000). Similarly, we should take care to avoid a
construction that renders any part of the statute surplusage
or nugatory. In re MCI, supra at 414.
With these principles of statutory construction in mind,
we turn to the language of MCL 691.1407(1), which provides:
Except as otherwise provided in this act, a
governmental agency is immune from tort liability
if the governmental agency is engaged in the
exercise or discharge of a governmental function.
Except as otherwise provided in this act, this act
does not modify or restrict the immunity of the
state from tort liability as it existed before
8
July 1, 1965, which immunity is affirmed. [Emphasis
added.]
“Governmental agency” and “state” are not synonymous, nor are
they interchangeable. Rather, each is precisely defined in
the statute:
(b) “Political subdivision” means a municipal
corporation, county, county road commission, school
district, community college district, port
district, metropolitan district, or transportation
authority or a combination of 2 or more of these
when acting jointly; a district or authority
authorized by law or formed by 1 or more political
subdivisions; or an agency, department, court,
board, or council of a political subdivision.
(c) “State” means the state of Michigan and
its agencies, departments, commissions, courts,
boards, councils, and statutorily created task
forces and includes every public university and
college of the state, whether established as a
constitutional corporation or otherwise.
(d) “Governmental agency” means the state or a
political subdivision. [MCL 691.1401.]
Under a plain reading of the statute, then, the first sentence
of § 7 applies to both municipal corporations and the state,
while the second sentence applies only to the state. Despite
the Legislature’s clear and unambiguous use of the word
“state” in the second sentence, this Court has struggled with
its meaning.
A
HADFIELD V OAKLAND CO DRAIN COMM ’R
In Hadfield, we considered whether the trespass-nuisance
exception to governmental immunity, as a common-law tort-based
9
exception, survived the governmental tort liability act. We
concluded that recognition of the historic trespass-nuisance
exception was required by the language of § 7. In so holding,
we strayed from the plain language of the statute, despite our
claim that we “moved carefully to impose judicial construction
only upon those terms in the statute that required
interpretation.” Id. at 173.
Hadfield correctly interpreted the first sentence of § 7
because it focused on the plain language chosen by the
Legislature:
Taken alone, the first sentence of § 7 does
support a narrow interpretation of the act, to
preclude recognition of any nuisance exception.
The Legislature’s use of the word “tort” to
describe the liability from which governmental
agencies are to be held immune exemplifies the
breadth of the intended immunity. There is no
doubt that nuisance is a tort and that liability
for nuisance would be within the scope of statutory
governmental immunity as expressed in the first
sentence of § 7. [Id. at 147.]
Hadfield went astray, however, in interpreting the second
sentence of § 7. Ignoring the second sentence’s express
application only to the “state,” the Hadfield Court held that
“the second sentence of § 7 retains preexisting governmental
immunity law except where provided otherwise in the act” and
concluded that it required “a continuation of the nuisance
exception as formulated prior to the enactment of the
governmental immunity act in 1964, as amended by 1970 PA 155.”
10
Id. at 147, 149 (emphasis added).
B
LI V FELDT
This Court reaffirmed Hadfield’s erroneous interpretation
of the second sentence of § 7 in Li v Feldt (After Remand),
434 Mich 584, 592-594; 456 NW2d 55 (1990). Justice GRIFFIN , in
his opinion concurring in part and dissenting in part, pointed
out what Hadfield’s plurality and Li’s majority missed: “[t]he
significance of the Legislature’s use of [the terms]
‘governmental agencies’ in the first sentence of § 7 and
‘state’ in the second . . . .” Li, supra at 598-599. Justice
GRIFFIN reasoned:
A literal reading of the second sentence of §
7 seems, at most, to require an historical analysis
of the state’s common-law immunity. The
significance of the Legislature’s use of
“governmental agencies” in the first sentence and
the “state” in the second sentence is underscored
by the definitions expressly given those terms in
the act. “Governmental agency” is defined as “the
state, political subdivisions, and municipal
corporations.” The “state,” on the other hand, is
defined as “the state of Michigan and its agencies,
departments, [and] commissions . . . .” The terms
are not interchangeable. The statutory provision
prohibiting modification or restriction of immunity
is specifically applied to the “state,” a term
which does not embrace municipalities and other
forms of lower government. Definitions supplied by
the Legislature in the statute are binding on the
judiciary. Thus, assuming arguendo that the second
sentence of § 7 requires an historical analysis, it
should be applied to the “state” and not other
“governmental agencies.” [Id. at 598-600.]
He continued:
11
The underlying premise of the
Hadfield plurality opinion appears to be that the
Legislature’s intent to make uniform the immunity
of all levels of government requires that the
historical analysis purportedly required by § 7
applies to all levels of government, despite the
express limitation of the purported historical
analysis to “the state.”
Although the act’s title declares its purpose
is “to make uniform the liability of municipal
corporations, political subdivisions, and the
state, its agencies and departments,” the
uniformity of immunity intended by the Legislature
does not necessarily include both governmental and
nongovernmental functions. The act’s title
qualifies the uniformity purpose by providing that
the Legislature sought to make uniform the
liability of all government “when engaged in the
exercise or discharge of a governmental function .
. . .” Simply because the Legislature claimed
immunity on behalf of all levels of government
“when engaged in the exercise or discharge of a
governmental function” does not necessarily compel
the conclusion that the state has no immunity when
not engaged in the exercise or discharge of a
governmental function. Indeed, the governmental
tort liability act was “‘[d]rafted under the
apparent assumption that the state and its agencies
enjoyed a total sovereign immunity from tort
liability . . . .’” Thus, the legislative intent
underlying the second sentence of § 7 could merely
have been to “affirm” the state’s preexisting
absolute sovereign immunity, rather than to codify
common-law exceptions to governmental immunity.
Strict uniformity of immunity among all levels of
government is not clearly mandated by § 7. [Id. at
600-601 (citation omitted; emphasis in original).]
Justice GRIFFIN worried that the historical approach
adopted by the Hadfield plurality and reaffirmed by Li would
“leave[] ajar the door to additional immunity exceptions that
cannot be fairly culled from the language of § 7.” Id. at
12
602. He noted that nothing in the plain language of § 7
indicated a legislative intent to create a nuisance exception
to governmental immunity, and concluded:
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 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. [Id. at 605 (emphasis in original).]
We agree with Justice GRIFFIN ’s analysis and adopt it
today. We hold that while the first sentence of § 7 applies to
both municipalities and the state, the clear and unambiguous
language of the second sentence of § 7 applies only to the
state, as defined in the statute.1
C
THE TRESPASS -NUISANCE EXCEPTION
Because these cases involve cities, the second sentence
1
Because the state is not involved as a party in these
cases, we need not explicate fully the meaning of the second
sentence of § 7. We agree with Justice GRIFFIN that, at most,
the language of the second sentence requires an historical
analysis of the state’s sovereign immunity, but we have no
occasion to undertake such an analysis here. Therefore,
contrary to the dissent’s assertion, we make no determinations
regarding common-law exceptions to the state’s governmental
immunity.
13
of § 7 does not apply; any trespass-nuisance exception must
therefore come from the first section of § 7. The first
sentence provides:
Except as otherwise provided in this act, a
governmental agency is immune from tort liability
if the governmental agency is engaged in the
exercise or discharge of a governmental function.
[MCL 691.1407(1).]
The parties agree that the operation of a sewage system is a
governmental function. Thus, under the terms of the statute,
municipal corporations are immune from tort liability except
as otherwise provided in the act.
The act sets forth five statutory exceptions to
governmental immunity: the highway exception, MCL 691.1402;
the motor vehicle exception, MCL 691. 1405; the public
building exception, MCL 691.1406; the proprietary function
exception, MCL 691.1413; and the governmental hospital
exception, MCL 691.1407(4). In determining if the statutory
exceptions permit a trespass-nuisance exception, we are guided
by the principle expressed in Nawrocki v Macomb Co Rd Comm,
463 Mich 143, 158; 615 NW2d 702 (2000): “There is one basic
principle that must guide our decision today: the immunity
conferred upon governmental agencies is broad, and the
statutory exceptions thereto are to be narrowly construed.”
(Emphasis in original.)
With this principle in mind, we hold that the plain
14
language of the governmental tort liability act does not
contain a trespass-nuisance exception to governmental
immunity. Trespass-nuisance simply is not one of the five
exceptions to immunity set forth in the governmental tort
liability act. As stated above, we are bound by the clear and
unambiguous statutory text; we lack constitutional authority
to impose on the people of this state our individual policy
preferences regarding the availability of lawsuits arising
from the operation of a sewage system. We must “seek to
faithfully construe and apply those stated public policy
choices made by the Legislature” in drafting the governmental
tort liability act. Nawrocki, supra at 151. We are mindful
that, because immunity necessarily implies that a “wrong” has
occurred, some harm caused by a governmental agency may lack
a remedy. Id. at 157. Although governmental agencies have
many duties regarding the services they provide to the public,
a breach of those duties is compensable under the statute only
if it falls within one of the statutorily created exceptions.
IV
TITLE -OBJECT CLAUSE
Plaintiffs argue that if the second sentence of § 7
applies only to the state and not to all governmental
agencies, it violates the Title-Object Clause, Const 1963, art
4, § 24. We reject this argument.
We note at the outset that “all possible presumptions
15
should be afforded to find constitutionality.” Advisory
Opinion re Constitutionality of 1972 PA 294, 389 Mich 441,
464; 208 NW2d 469 (1973). Const 1963, art 4, § 24 provides in
pertinent part:
No law shall embrace more than one object,
which shall be expressed in its title.
This constitutional provision requires that 1) a law must not
embrace more than one object, and (2) the object of the law
must be expressed in its title. Livonia v Dep’t of Social
Services, 423 Mich 466, 496; 378 NW2d 402 (1985). This
constitutional limitation ensures that legislators and the
public receive proper notice of legislative content and
prevents deceit and subterfuge. Advisory Opinion, supra at
465. The goal of the clause is notice, not restriction of
legislation.
The “object” of a law is defined as its general purpose
or aim. Local No 1644 v Oakwood Hosp Corp, 367 Mich 79, 91;
116 NW2d 314 (1962). The “one object” provision must be
construed reasonably, not in so narrow or technical a manner
that the legislative intent is frustrated. Kuhn v Dep’t of
Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971). We
should not invalidate legislation simply because it contains
more than one means of attaining its primary object;
“[h]owever, if the act contains ‘subjects diverse in their
16
nature, and having no necessary connection,’” it violates the
Title-Object Clause. Livonia, supra at 499. The act may
include all matters germane to its object, as well as all
provisions that directly relate to, carry out, and implement
the principal object. Advisory Opinion, supra at 465. The
statute “may authorize the doing of all things which are in
furtherance of the general purpose of the Act without
violating the ‘one object’ limitation of art 4, § 24.” Kuhn,
supra at 388. Finally, the constitutional requirement is not
that the title refer to every detail of the act; rather, “[i]t
is sufficient that ‘the act centers to one main general object
or purpose which the title comprehensively declares, though in
general terms, and if provisions in the body of the act not
directly mentioned in the title are germane, auxiliary, or
incidental to that general purpose . . . .” Livonia, supra at
501 (citations omitted).
The title of the governmental tort liability act
provides:
An act to make uniform the liability of
municipal corporations, political subdivisions, and
the state, its agencies and departments, officers,
employees, and volunteers thereof, and members of
certain boards, councils, and task forces when
engaged in the exercise or discharge of a
governmental function, for injuries to property and
persons; to define and limit this liability; to
define and limit the liability of the state when
engaged in a proprietary function; to authorize the
purchase of liability insurance to protect against
17
loss arising out of this liability; to provide for
defending certain claims made against public
officers and paying damages sought or awarded
against them; to provide for the legal defense of
public officers and employees; to provide for
reimbursement of public officers and employees for
certain legal expenses; and to repeal certain acts
and parts of acts. [Emphasis added.]
Plaintiffs contend that the act would exceed the scope of
its title were the second sentence of § 7 construed to allow
differentiation between the immunity of the state and the
immunity of inferior governmental agencies. We reject this
argument. The title of the act only provides that the
immunity of all governmental agencies will be made uniform for
circumstances involving “the exercise or discharge of a
governmental function.” This is accomplished by the first
sentence of § 7, which confers uniform statutory immunity on
all governmental entities engaged in the exercise or discharge
of a governmental function. In enacting the second sentence
of § 7, the Legislature ensured that, “by restoring to
municipal corporations immunity for governmental functions and
making uniform the immunity of all governmental entities for
governmental functions, it was not thereby waiving the state’s
common-law absolute sovereign immunity for non-governmental
functions . . . .” Ross, supra at 669 (LEVIN , J., dissenting
in part).
In essence, the Legislature defined the scope of the
first sentence of § 7 through the second sentence. Such a
18
limitation cannot be considered a subject diverse in nature
that has no necessary connection to the primary object of the
act. The limitation in the second sentence is clearly
germane, auxiliary, and incidental to the general purpose of
the act. Therefore, the act as interpreted does not violate
art 4, § 24.
V
STARE DECISIS
We do not lightly overrule precedent. Stare decisis is
generally “‘the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process.’” Robinson, supra at 463, quoting Hohn v
United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242
(1998). Before we overrule a prior decision, we must be
convinced “not merely that the case was wrongly decided, but
also that less injury will result from overruling than from
following it.” McEvoy v Sault Ste Marie, 136 Mich 172, 178;
98 NW 1006 (1904).
At the same time, we must also remember that stare
decisis is a principle of policy, not an inexorable command.
Robinson, supra at 464. Stare decisis should not be applied
mechanically to prevent this Court from overruling erroneous
19
decisions regarding the meaning of a statute. Id. at 463. In
Robinson, supra at 464, we set forth four factors that we
consider before overruling a prior decision: 1) whether the
earlier case was wrongly decided, 2) whether the decision
defies “practical workability,” 3) whether reliance interests
would work an undue hardship, and 4) whether changes in the
law or facts no longer justify the questioned decision. In
considering the reliance interest, we consider “whether the
previous decision has become so embedded, so accepted, so
fundamental, to everyone’s expectations that to change it
would produce not just readjustments, but practical real-world
dislocations.” Id. at 466. Further, we must consider
reliance in the context of erroneous statutory interpretation:
[I]t is well to recall in discussing reliance,
when dealing with an area of the law that is
statutory, . . . that it is to the words of the
statute itself that a citizen first looks for
guidance in directing his actions. This is the
essence of the rule of law: to know in advance what
the rules of society are. Thus, if the words of
the statute are clear, the actor should be able to
expect, that is, rely, that they will be carried
out by all in society, including the courts. In
fact, should a court confound those legitimate
citizen expectations by misreading or misconstruing
a statute, it is that court itself that has
disrupted the reliance interest. When that
happens, a subsequent court, rather than holding to
the distorted reading because of the doctrine of
stare decisis, should overrule the earlier court’s
misconstruction. The reason for this is that the
court in distorting the statute was engaged in a
form of judicial usurpation that runs counter to
the bed r o c k principle of American
constitutionalism, i.e., that the lawmaking power
20
is reposed in the people as reflected in the work
of the Legislature, and, absent a constitutional
violation, the courts have no legitimacy in
overruling or nullifying the people’s
representatives. Moreover, not only does such a
compromising by a court of the citizen’s ability to
rely on a statute have no constitutional warrant,
it can gain no higher pedigree as later courts
repeat the error. [Id. at 467-468.]
Thus, while too rapid a change in the law threatens judicial
legitimacy, correcting past rulings that usurp legislative
power restores legitimacy. Id. at 472-473 (CORRIGAN , J.,
concurring).
Accordingly, we must shoulder our constitutional duty to
act within our grant of authority and honor the intent of the
Legislature as reflected in the plain and unambiguous language
of the statute. In so doing, we rectify Hadfield’s
misconstruction of the statutory text.
We are mindful, however, of the effect our decision may
have in overruling Hadfield’s interpretation of § 7. As this
Court noted in Placek v Sterling Heights, 405 Mich 638, 665;
275 NW2d 511 (1979), quoting Williams v Detroit, 364 Mich 231,
265-266; 111 NW2d 1 (1961):
“This Court has overruled prior precedent many
times in the past. In each such instance the Court
must take into account the total situation
confronting it and seek a just and realistic
solution of the problems occasioned by the change.”
After taking into account the entire situation confronting the
21
Court, we hold that our decision shall have only prospective
application.
Although the general rule is that judicial decisions are
given full retroactive effect, Hyde v Univ of Michigan Bd of
Regents, 426 Mich 223, 240; 393 NW2d 847 (1986), a more
flexible approach is warranted where injustice might result
from full retroactivity. Lindsey v Harper Hosp, 455 Mich 56,
68; 564 NW2d 861 (1997). For example, a holding that
overrules settled precedent may properly be limited to
prospective application. Id. Moreover, the federal
constitution does not preclude state courts from determining
whether their own law-changing decisions are applied
prospectively or retroactively. Great Northern R Co v
Sunburst Oil & Refining Co, 287 US 358, 364-365; 53 S Ct 145;
77 L Ed 360 (1932).
This Court adopted from Linkletter v Walker, 381 US 618;
85 S Ct 1731, 14 L Ed 2d 601 (1965), three factors to be
weighed in determining when a decision should not have
retroactive application. Those factors are: (1) the purpose
to be served by the new rule, (2) the extent of reliance on
the old rule, and (3) the effect of retroactivity on the
administration of justice. People v Hampton, 384 Mich 669,
674; 187 NW2d 404 (1971). In the civil context, a plurality
of this Court noted that Chevron Oil v Huson, 404 US 97, 106
22
107; 92 S Ct 349; 30 L Ed 2d 296 (1971), recognized an
additional threshold question whether the decision clearly
established a new principle of law. Riley v Northland
Geriatric Center (After Remand), 431 Mich 632, 645-646; 433
NW2d 787 (1988) (GRIFFIN , J.).
We turn first to the threshold question noted in Riley.
Although this opinion gives effect to the intent of the
Legislature that may be reasonably be inferred from the text
of the governing statutory provisions, practically speaking
our holding is akin to the announcement of a new rule of law,
given the erroneous interpretations set forth in Hadfield and
Li. See Riley, supra; Gusler v Fairview Tubular Products, 412
Mich 270, 298; 315 NW2d 388 (1981).
Application of the three-part test leads to the
conclusion that prospective application is appropriate here.
First, we consider the purpose of the new rule set forth in
this opinion: to correct an error in the interpretation of §
7 of the governmental tort liability act. Prospective
application would further this purpose. See Riley, supra at
646. Second, there has been extensive reliance on Hadfield’s
interpretation of § 7 of the governmental tort liability act.
In addition to reliance by the courts, insurance decisions
have undoubtedly been predicated upon this Court’s
longstanding interpretation of § 7 under Hadfield:
23
municipalities have been encouraged to purchase insurance,
while homeowners have been discouraged from doing the same.
Prospective application acknowledges that reliance. Third,
prospective application minimizes the effect of this decision
on the administration of justice. Consideration of recently
enacted 2001 PA 2222 strengthens our determination to limit
our holding to prospective application. 2001 PA 222 amends
the governmental tort liability act to provide a remedy for
damages or physical injuries caused by a sewage disposal
system event.3 Section 17(2) of the act provides, in
pertinent part:
Sections 16 to 19 abrogate common law
exceptions, if any, to immunity for the overflow or
backup of a sewage disposal system and provide the
2
2001 PA 222 took effect January 2, 2002.
3
Section 16(k) defines a sewage disposal system event:
“Sewage disposal system event” or “event”
means the overflow or backup of a sewage disposal
system onto real property. An overflow or backup
is not a sewage disposal system event if any of the
following was a substantial proximate cause of the
overflow or backup:
(i) An obstruction in a service lead that was
not caused by a governmental agency.
(ii) A connection to the sewage disposal
system on the affected property, including, but not
limited to, a sump system, building drain, surface
drain, gutter, or downspout.
(iii) An act of war, whether the war is
declared or undeclared, or an act of terrorism.
24
sole remedy for obtaining any form of relief for
damages or physical injuries caused by a sewage
disposal system event regardless of the legal
theory.
2001 PA 222 does not contain any language indicating it
is meant to apply retroactively, but provides only that it is
to take immediate effect. Section 19(1) provides that a
claimant is not entitled to compensation under the statute
unless the claimant notifies the governmental agency of a
claim of damage or physical injury, in writing, within forty
five days after the date the damage or physical injury was or
should have been discovered. Only two exceptions to the
forty-five-day limit are available: if the claimant notified
the contacting agency during the forty-five-day period or if
the failure to comply resulted from the contacting agency’s
failure to comply with notice requirements. Given the absence
of any language indicating retroactive effect, the forty-five
day notice limit, and the presumption that statutes operate
prospectively,4 we conclude that 2001 PA 222 does not apply
retroactively.
Thus, if we applied our holding in this case
retroactively, the plaintiffs in cases currently pending would
not be afforded relief under Hadfield or 2001 PA 222. Rather,
4
See Frank W Lynch & Co v Flex Technologies, Inc, 463
Mich 578, 583; 624 NW2d 180 (2001); Franks v White Pine Copper
Div, 422 Mich 636, 671; 375 NW2d 715 (1985); Hughes v Judges’
Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979).
25
they would become a distinct class of litigants denied relief
because of an unfortunate circumstance of timing.
Accordingly, this decision will be applied only to cases
brought on or after April 2, 2002. In all cases currently
pending, the interpretation set forth in Hadfield will apply.
VI
TAKING CLAUSE
The parties have addressed whether trespass nuisance is
not a tort within the meaning of the governmental immunity
statute, but rather an unconstitutional taking of property
that violates Const 1963, art 10, § 2. The trial courts in
these cases have yet to address the taking claims. Therefore,
we decline to discuss those claims at this time.
VII
CONCLUSION
We hold that the first sentence of § 7, by its plain
language, applies to both the state and its municipalities,
but that the second sentence of § 7 applies only to the state,
as defined in the statute. We overrule precedent holding to
the contrary. Further, we hold that the statute as
interpreted in this opinion does not violate Const 1963, art
4, § 24. After consideration of the effect of this decision
on the administration of justice, we hold that this decision
is limited to prospective application.
Finally, we observe that it appears from the record that
26
the circuit courts may not have addressed all the elements
required under Hadfield for a claim of trespass-nuisance,
including causation, when deciding the motions for summary
disposition. Therefore, we remand these cases to the circuit
courts to reconsider plaintiffs’ motions for summary
disposition under Hadfield, including the issue of causation.
See Hadfield, supra at 169; Peterman v Dep’t of Natural
Resources, 446 Mich 177, 205, n 42; 521 NW2d 499 (1994).
WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ., concurred with
CORRIGAN , C.J.
27
S T A T E O F M I C H I G A N
SUPREME COURT
ROBERT POHUTSKI, AMY POHUTSKI,
KIERK SANDERLIN, JOELLE SANDERLIN,
ALAN BULLION, ANTHONY CORBELL,
PIETRO FUSCO, NORMA FUSCO,
KAYE GARDNER, BEVERLY GARDNER,
SHIRLEY KARAPETOFF, KAREN KEREZI,
BRIAN LaFUENTE, MICHELLE LaFUENTE,
RICHARD REFALKO, DOLORES RAFALKO,
WILLIAM SHAMUS, KATHLEEN SHAMUS,
and all others similarly situated,
a certified class,
Plaintiffs-Appellees,
v No. 116949
THE CITY OF ALLEN PARK, a Michigan
municipal corporation,
Defendant-Appellant,
and
JOHN DOE REPRESENTATIVE, EMPLOYEES,
OR AGENTS OF THE CITY OF ALLEN PARK,
jointly and severally.
________________________________________
JEANNE JONES, JAMES JONES, ROGER TROST,
CAROL TROST, MIKE ROBERT, MIKE BARTHLOW,
CINDY BARTHLOW, SUSAN BROWN,
KENNETH BROWN, SHIRLEY BRYANT,
DAVID BURHANS, MAGDALENA CHAVEZ,
WILLIAM CHUNN, IVAN GADJEV,
FLORENCE GADJEV, REX GLASSON,
BARBARA GLASSON, KEVIN HALL,
SONIA HALL, LON HAMILTON,
DIANE HAMILTON, WILLIAM HATTON,
ELIZABETH HATTON, BILL HOFSESS,
JOAN HOFSESS, JAMES HUBBLE,
VIRGINIA HUBBLE, SOUREN MERUCCI,
ENERA MERUCCI, MARY PEGORARO,
PHIL PEGORARO, LUIS PERESSINI,
MICHAL ALLEN PETERS, MIGUEL PRIETO,
JILL PRIETO, TODD SNIDER, BETTY ZAHER,
and all other similarly situated,
Plaintiffs-Appellees,
v No. 117935
CITY OF FARMINGTON HILLS,
a Michigan municipal
corporation, and JOHN DOE
REPRESENTATIVES, EMPLOYEES,
OR AGENTS OF THE CITY OF
FARMINGTON HILLS, jointly and severally,
Defendants-Appellants.
________________________________________
KELLY, J. (dissenting).
The majority's decision today overrules many years of
Michigan jurisprudence interpreting the government tort
liability act (GTLA ). Its rationale for upsetting the well
reasoned precedent of this Court is that it brings the
statute's construction closer to the Legislature's intent. I
find this patently inaccurate.
Repeatedly, beginning with the decision in Ross v
Consumers Power (On Rehearing),1 this Court has construed the
GTLA each time by scrutinizing the language and the purpose the
Legislature articulated for it. Using a consistent approach,
I conclude that the trespass-nuisance exception still exists
1
420 Mich 567; 363 NW2d 641 (1984).
2
and that it applies to municipal units of government. I would
hold, as well, that the trespass-nuisance cause of action is
constitutionally derived and unaffected by legislative action.
I. INTERPRETATION OF THE GOVERNMENT TORT LIABILITY ACT
Whenever a court interprets a statute, it attempts to
ascertain and fulfill the Legislature's intent in passing it.
Reardon v Dep't of Mental Health, 430 Mich 398, 407; 424 NW2d
248 (1998). It seeks to identify the object of the statute
and the harm it was designed to remedy. It endeavors to make
a construction that is at once reasonable and analyzed so as
best to accomplish the purposes of the statute. Marquis v
Hartford Accident & Indemnity Co, 444 Mich 638; 513 NW2d 799
(1994). It construes the statute's provisions not in
isolation, but in context. Sun Valley Foods Co v Ward, 460
Mich 230; 596 NW2d 119 (1999).
Having applied these principles, I conclude, as did the
Court in Hadfield v Oakland Co Drain Comm'rs,2 that if the
Legislature had meant to abolish the trespass-nuisance
exception, it would have stated so unequivocally.
The Legislature enacted the GTLA in 1965 as a response to
Williams v Detroit,3 a decision in which this Court abrogated
governmental immunity for municipalities. The Court was
evenly divided concerning whether common-law governmental
2
430 Mich 139, 148; 422 NW2d 205 (1988).
3
364 Mich 231; 111 NW2d 1 (1961).
3
immunity existed. However, a majority agreed that municipal
units of government are not immune from liability. Id. at
270. As a consequence of Williams, governmental entities in
general retained their common-law immunity, while
municipalities did not.
The title of the GTLA reads as follows:
An act to make uniform the liability of
municipal corporations, political subdivisions, and
the state, its agencies and departments, officers,
employees, and volunteers thereof, and members of
certain boards, councils, and task forces when
engaged in the exercise or discharge of a
governmental function, for injuries to property and
persons . . . . [MCL 691.1401 et seq., cited in
Ross, supra at 593.]
The language is unequivocal. It expresses an intent to
reestablish and codify a consistent and uniform form of
governmental immunity, restoring the shield to municipal
governments while in the exercise of a governmental function.
After detailing some statutory exceptions to immunity, § 7 of
the statute states:
Except as otherwise provided in this act, all
governmental agencies shall be immune from tort
liability in all cases wherein the governmental
agency is engaged in the exercise or discharge of a
governmental function. Except as otherwise
provided in this act, this act shall not be
construed as modifying or restricting the immunity
of the state from tort liability as it existed
before July 1, 1965, which immunity is affirmed.
[MCL 691.1407(1).]
In the cases before us today, the defendants argue that
the word "state" in the second sentence of § 7 bars common-law
exceptions to immunity for "all governmental agencies." The
4
majority goes further, holding that there were no common-law
exceptions to even the state's governmental immunity.4
I disagree with the former and dissent from the latter.
With respect to the former, Ross shows that the word "state"
must be read consistently with the creation of a uniform
system of immunity between municipal, local, and state
governments. With respect to the latter, Hadfield confirmed
that common-law exceptions existed that did survive the
enactment of the GTLA .
A. ROSS V CONSUMERS POWER CO
The Ross decision dealt with the use of the word "state"
in the GTLA . It held that its placement there presented a
clear conflict with the purpose and title of the act. We
faced the same dilemma over § 135 of the act. That section
also used the word "state" to describe immunity:
The immunity of the state shall not apply to
actions to recover for bodily injury or property
damage arising out of the performance of a
proprietary function . . . [Former MCL 691.1413, as
enacted by 1964 PA 170.]
4
The majority states that it makes no ruling with regard
to the state's immunity. However, when it tries to resolve a
conflict between its interpretation of § 7 and the Title-
Object Clause, Const 1963, art 4, § 24, it interprets § 7 as
reserving exceptions only to the state's sovereign immunity.
Under that interpretation, no sentence in the GTLA reserves
common-law exceptions to the governmental function immunity of
the state. Therefore, while the state is not a party to this
action, the majority opinion still carries serious
implications for the state's sovereign immunity.
5
MCL 691.1413.
5
The Court took the exception for "the state" and applied
it to all governmental entities. It rejected the plain
meaning of § 13 because, so read, it would have limited the
proprietary function exception to the state and its agencies,
departments, and commissions. The Court declined to find that
restriction in the act because it was clearly not what the
Legislature intended. It observed:
The governmental immunity act was intended to
provide uniform liability and immunity to both
state and local governmental agencies. A strict
"expressio unius est exclusio alterius" reading of
§ 13 would destroy this uniformity. [Ross, supra
at 614.]
The Court concluded that restricting § 13 to state government
would run contrary to the goal and intent of the act, namely,
a uniform system of liability and immunity. Moreover, it
would abolish a longstanding exception to common-law immunity
without the presence of any clear indications of legislative
intent to do so. The Legislature codified this Court's
reading of § 13 of the act two years later by substituting the
words "governmental agency" for the word "state."
B. HADFIELD V OAKLAND CO DRAIN COMM 'R
Two years after the Legislature effectively ratified
Ross's interpretation of § 13, the Court decided Hadfield,
supra. It found that the Legislature had used "state" in § 7,
as it had in § 13, to mean "governmental agency." The
defendant in Hadfield argued that there were no common-law
exceptions to governmental immunity under the statute.
6
Once again, the Court saw a conflict between the language
of the statute, legislative intent, and an historic immunity
exception. It concluded:
While the defendant's arguments, advocating
recognition of only statutory exceptions [to
governmental immunity], are temptingly simple and
straightforward, they negate or ignore the second
half of the legislative mandate of § 7. That
section requires a continuation of the nuisance
exception as formulated prior to the enactment of
the governmental immunity act in 1964 . . . . [Id.
at 149.]
The Court rejected the defendant's argument using this
reasoning: The second sentence of § 7 requires that the
state's governmental immunity remain as it existed before
July 1, 1965. The trespass-nuisance exception is strongly
rooted in Michigan's history. Nothing in the expressions of
the Legislature indicated an intention to change it.
Today's holding discards the conclusion in Hadfield by
reinterpreting the second sentence of § 7 as an expansion of
sovereign immunity. I strenuously disagree with this newfound
purpose for the statute. Both the first sentence and the
second sentence of § 7 use the words "tort liability."
Therefore, the type of liability and immunity the Legislature
intended in the first sentence, it also intended in the
second. According to the second sentence, the immunity from
liability was not to be modified or expanded from what existed
under the common law.
That reasoning, coupled with the intention to create a
uniform system that we found in Ross, leads to one conclusion
7
only: the Legislature meant to keep the state's sovereign
immunity where it was before July 1965, preventing its
expansion or erosion, and to extend it uniformly to all other
governmental entities. The common-law exception of trespass
nuisance thus would have survived.
C. LEGISLATIVE CONFIRMATION OF THE EXCEPTION
This year the Legislature enacted 2001 PA 222,6 which
added §§ 16 through 19 to the GTLA . MCL 691.1416 to 691.1419.
The new act creates a mechanism for local governmental units
to make compensation when a defect in a sewer system causes
the type of damage complained of here. Section 17 states:
Sections 16 to 19 abrogate common law
exceptions, if any, to immunity for the overflow or
backup of a sewage disposal system and provide the
sole remedy for obtaining any form of relief for
damages or physical injuries caused by a sewage
disposal system event regardless of the legal
theory. [MCL 691.1417(2).]
This language acknowledges that there are or, at least, may be
common-law exceptions to governmental immunity. Given the
intent and the timing of the act, it is apparent that the
Legislature sought to prevent this Court from barring
homeowner suits for damages.
2001 PA 222 is not alone in acknowledging the likely
existence of common-law exceptions to governmental immunity.
The Legislature also suggests their existence in § 7a of the
GTLA , which it passed in anticipation of Year 2000 computer
6
The act was signed by the Governor after oral arguments
were made in this case.
8
failures.
Except as . . . provided in . . . Section 13,
a political subdivision other than a municipal
corporation engaged in the exercise or discharge of
a governmental function is immune from liability in
an action to recover damages resulting directly or
indirectly from a computer failure, including, but
not limited to . . . an action based on section 2,
3, 5, 6, or 7. [MCL 691.1407a(1).]
This language indicates that an action to recover damages
could be founded on § 7, a section that the majority believes
is merely an assertion of state immunity. Section 7a of the
GTLA and 2001 PA 222, in conjunction with the legislative
intent described in Ross and Hadfield, are convincing evidence
that the Legislature did not abrogate common-law exceptions to
immunity with § 7.
D. SCOPE OF TITLE
The majority's treatment of the Title-Object Clause7 in
the state constitution omits the significance of the title of
the GTLA as a key indicator of the Legislature's intent.
Since Justice COOLEY 's time, the clause has been applied
to insure that adequate notice of new legislation be given to
the general public and to those affected by it. Maki v East
Tawas, 385 Mich 151, 156-158; 188 NW2d 593 (1971). To
accomplish that end and to avoid deception and subterfuge, the
clause requires that the scope of all legislation must fall
within the scope of its title. Id., Kurtz v People, 33 Mich
279, 281 (1876). In addition, the clause requires that no law
7
Const 1963, art 4, § 24.
9
embrace more than one object, which must be expressed in the
title.
The title of the GTLA indicates a desire for a "uniform"
system of liability. However, the majority's construction of
§ 7 of the act accomplishes the opposite. The majority
examines the differences between sovereign and governmental
function immunity. It then concludes that, under its reading
of the act, the system will be uniform as regards governmental
function immunity. It finds that reaffirmation of sovereign
immunity was incidental to the purpose of the act.
I disagree. If the first sentence of § 7 codifies a
consistent governmental function immunity and the second
reaffirms the state's sovereign immunity, the second sentence
falls outside the requirements of the Title-Object Clause. It
is beyond the scope of the act's title to "affirm" and codify
the state's common-law sovereign immunity, because the title
refers only to an immunity enjoyed "when engaged in the
discharge of governmental function." MCL 691.1401 et seq. It
is also beyond the act's scope to allow different governmental
immunity at different levels of government, as the majority
finds it does.
The Ross and Hadfield decisions construed the act in a
way that does not violate the Title-Object Clause. The Ross
Court held that § 7 uses the expression "sovereign immunity"
to include governmental functions. The expression was the
tool by which the Legislature made all immunity uniform when
10
a unit of government was performing a governmental function.
Under this interpretation, the affirmation of sovereign
immunity is germane to the creation of a uniform system of
liability and immunity.
II . THE CONSTITUTIONAL BASIS FOR
THE TRESPASS -NUISANCE EXCEPTION
Overlooked in the majority's analysis of the
Legislature's intent is whether the trespass-nuisance
exception enjoys a constitutional basis that defeats a
statutory grant of governmental immunity. The majority treats
the question as part of the plaintiffs' taking claim that has
yet to be adjudicated below.
I believe that it is preferable to address the question
here, than wait for the matter to return to us. I believe
that the common-law cause of action of trespass-nuisance is
based on the Taking Clause of the Michigan Constitution8 and,
as a consequence, statutory governmental immunity is not a
defense. Li v Feldt (After Remand), 434 Mich 584, 594, n 10;
456 NW2d 55 (1990).
This Court in Buckeye Union Fire Ins Co v Michigan9
acknowledged that the trespass-nuisance exception has a
constitutional basis. Governmental immunity is not a defense
to a constitutional tort claim, hence not to a claim based on
8
Const 1963, art 10, § 2.
9
383 Mich 630; 178 NW2d 476 (1970).
11
trespass-nuisance. Thom v State Hwy Comm'r, 376 Mich 608,
628; 138 NW2d 322 (1965). The claim survives despite the fact
that a statutory exception is not present because the law
views the trespass or nuisance as an appropriation of property
rights. Taylor, Googasian & Falk, Torts, § 7:252, p 7-86.
Not even the state can intrude on a citizen's lawful
possession of his property. Ashley v Port Huron, 35 Mich 296,
300 (1877); Herro v Chippewa Co Rd Comm'rs, 368 Mich 263, 272;
118 NW2d 271 (1962). And the protection of one's property
rights is not accomplished solely through actions for eminent
domain. One may sue under the Taking Clause.
Also, actions under the clause are not limited to claims
alleging an absolute conversion of property. Pearsall v
Supervisors, 74 Mich 558; 42 NW 77 (1889). The action of a
governmental agency may constitute a taking when it interferes
with, damages, or destroys the property of an individual.
Buckeye, supra at 642.
Since 1860, this Court has relied on the Taking Clause to
support actions for trespass-nuisance. This Court has held
many times that an invasion by government-controlled waters or
sewage creates a cause of action against which governmental
immunity is not a bar.10
10
See Pennoyer v Saginaw, 8 Mich 534 (1860); Sheldon v
Kalamazoo, 24 Mich 383 (1872); Ashley, supra at 296; Defer v
Detroit, 67 Mich 346, 349; 34 NW 680 (1887); Rice v Flint, 67
Mich 401, 403; 34 NW 719 (1887); Vanderlip v Grand Rapids, 73
(continued...)
12
On the basis of that long-established precedent, I would
hold that a trespass-nuisance cause of action is
constitutionally based and cannot be abrogated by the
Legislature. The actions of the defendants here in flooding
the plaintiffs' basements constitute a "taking," and damages,
if proven, should be available. The basis for recovery is
that the government deprived plaintiffs of the useful
possession of property that they own. Gerzeski v Dep't of
State Hwys, 403 Mich 149, 170; 268 NW2d 525 (1978).
III . APPLICATION OF THE TRESPASS -NUISANCE EXCEPTION
Trespass-nuisance refers to a "trespass or interference
with the use or enjoyment of land caused by a physical
intrusion that is set in motion by the government or its
agents and result[s] in personal or property damage."
Continental Paper & Supply Co v Detroit, 451 Mich 162, 164;
545 NW2d 657 (1996). Its elements are (1) the existence of a
condition, such as a nuisance or a trespass, (2) a cause, such
as a physical intrusion, and (3) causation or control, as by
government. Id.
10
(...continued)
Mich 522, 535; 41 NW 677 (1889); Seaman v Marshall, 116 Mich
327, 329-330; 74 NW 484 (1898); Ferris v Detroit Bd of Ed, 122
Mich 315, 318; 81 NW 98 (1899); McAskill v Hancock Twp, 129
Mich 74, 78-79; 88 NW 78 (1901); Onen v Herkimer, 172 Mich
593, 598; 138 NW 198 (1912); Attorney General v Grand Rapids,
175 Mich 503, 534; 141 NW 890 (1913); Donaldson v City of
Marshall, 247 Mich 357, 359; 225 NW 529 (1929); Robinson v
Wyoming Twp, 312 Mich 14, 23; 19 NW2d 469 (1945); Defnet v
Detroit, 327 Mich 254, 258; 41 NW2d 539 (1950).
13
In both cases before us, plaintiffs' basements have been
flooded by discarded water11 that entered through drains hooked
up to the municipal sewer system. The nature of this
intrusion is similar to that found in CS&P, Inc v Midland, 229
Mich App 141, 145; 580 NW2d 468 (1998). There, water and
sewage flowed into the plaintiff's commercial suite from its
floor drains and toilets. The Court of Appeals found that a
trespass-nuisance cause of action existed. A cause should be
found to exist in the cases before us, given the similarity of
facts.
IV . CONCLUSION
The majority finds that the trespass-nuisance exception
to governmental immunity ended in 1965 with passage of the
GTLA . I disagree with its conclusion because of subsequent
judicial precedent upholding the exception and the lack of
clear legislative intent to alter it. Moreover, any
legislative attempt to remove the trespass-nuisance exception
must be found invalid because a cause of action under the
exception is constitutionally based in the Taking Clause.
In making its ruling, the majority discards longstanding
and well-reasoned precedent of this Court in order to make its
own interpretation of a Michigan statute.12 It does so,
11
Defendant disputes whether all the homes in question
were flooded by debris-carrying sewage.
12
See Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d
702 (2000) (KELLY , J., concurring in part and dissenting in
(continued...)
14
stating an obligation to "shoulder [its] constitutional duty
to act within [its] grant of authority and honor the intent of
the Legislature . . ." and to "rectify . . . [past]
misconstruction of the statutory text." Slip op at 22-23.
But what must be apparent to all, when the rhetoric is
stripped of its gloss, is that this Court is again ignoring
its own past rulings. And, if each successive Court,
believing its reading is correct and past readings wrong,
rejects precedent, then the law will fluctuate from year to
year, rendering our jurisprudence dangerously unstable.
The majority's decision to limit its interpretation of
the statute to prospective use is little more than a
furnishing of salve to stem a hemorrhage. For all the above
reasons, I respectfully dissent.
CAVANAGH , J., concurred with KELLY , J.
12
(...continued)
part).
15