Epperson v. Crawford County Road Commission , 196 Mich. App. 164 ( 1992 )

196 Mich. App. 164 (1992) 492 N.W.2d 455

EPPERSON
v.
CRAWFORD COUNTY ROAD COMMISSION

Docket No. 114516.

Michigan Court of Appeals.

Decided July 1, 1992. Approved for publication September 30, 1992, at 9:05 A.M.

Mark T. Light, for the plaintiff.

Law Offices of Rusch & Prine (by Andrew W. Prine), for the defendant.

Before: DOCTOROFF, C.J., and MICHAEL J. KELLY and R.B. BURNS,^[*] JJ.

PER CURIAM.

Plaintiff's decedent, Daniel W. Epperson, III, was killed when a vehicle ran past a stop sign at an intersection in Crawford County, Michigan, and collided with the car in which he was a passenger. Plaintiff brought this action, claiming that defendant had created an intentional nuisance and committed an ultra vires act by allowing roadside vegetation to obscure the stop sign. The circuit court granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(7) and (8) on the ground that plaintiff's claims were barred by governmental immunity.

Plaintiff now contends that the lower court erred in awarding summary disposition because her complaint raised a claim of public nuisance as an exception to governmental immunity. We agree that plaintiff has raised such a claim, but deny its validity.

Under the section of plaintiff's second-amended complaint labeled "Common Allegations," plaintiff avers that defendant "did knowingly, intentionally and/or wilfully and wantonly maintain an intentional nuisance" by failing "to properly maintain weed control on the sides of the roadways of the intersection so that traffic control devices could be seen by motorists," and that defendant failed "to properly place and maintain said traffic control devices [so they] could be seen by motorists," and failed "to maintain weed control so that it would not obscure vision of the stop sign...." Count II of this complaint, entitled "Intentional Nuisance," incorporates these common allegations, avers that defendant had notice of the defects, and maintains that "allowing weeds to partially or totally obscure a stop sign at a right angle intersection of two high speed roadways taken with the remaining allegations constituted an intentional nuisance." Because this case was not decided pursuant to MCR 2.116(C)(10), we must accept plaintiff's allegations as true without regard to whether she would be able to substantiate them at trial. Yarrick v Village of Kent City (On Remand), 189 Mich. App. 627, 633; 473 NW2d 774 (1991).

Plaintiff's second-amended complaint was filed on March 23, 1988, well before our Supreme Court's decision in Li v Feldt (After Remand), 434 Mich. 584; 456 NW2d 55 (1990), abrogating the previously existing intentional nuisance exception to governmental immunity. After Li v Feldt (After Remand), this Court in Li v Feldt (On Second Remand), 187 Mich. App. 475; 468 NW2d 268 (1991), rev'd on other grounds 439 Mich. 457; 487 NW2d 127 (1992), determined that the plaintiff in that case had stated a public nuisance claim notwithstanding her focus on "intentional nuisance" in the trial court and on appeal. This Court noted that

[t]he proper focus is not on the fact that plaintiff drafted her pleadings with an eye toward intentional nuisance, but on the substance of her pleadings and the fact that she did plead a nuisance. Given the uncertainty in this area, the fact that plaintiff initially focused on the wrong type of nuisance to label her claim is understandable and, more importantly, excusable. [187 Mich. App. 480. Emphasis in original.] See also Yarrick, supra at 629, where this Court interpreted Li (On Second Remand) to mean that "raising the intentional nuisance issue was sufficient to preserve the issues of public nuisance and nuisance per se for this Court's consideration."

Having determined that plaintiff's second-amended complaint raises a public nuisance claim, we next consider whether this claim constitutes an exception to governmental immunity from tort liability under MCL 691.1407(1); MSA 3.996(107) (1). The answer to this question is undebatably negative in light of our Supreme Court's recent decision in Li v Feldt (After Second Remand), 439 Mich. 457; 487 NW2d 127 (1992), that there is no public nuisance exception to governmental immunity. We therefore affirm the trial court's award of summary disposition on this issue.

We also reject plaintiff's argument that defendant's alleged failure to control roadside vegetation constituted an ultra vires act. In Marlin v Detroit, 177 Mich. App. 108, 113; 441 NW2d 45 (1989), this Court stated:

Generally, the omission of an act is not sufficient to elevate even intentional omissions of a duty, i.e., negligence, to an ultra vires intentional tort. The commission of an act, rather than an omission, is required.

The allegations contained in plaintiff's second-amended complaint are insufficient to raise a claim of ultra vires activity on defendant's part. The lower court therefore properly granted defendant summary disposition of plaintiff's ultra vires claim.

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.