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01/08/76 ROSARIO v. CITY LANSING ESTATE ROSARIO V.

January 8, 1976

ROSARIO
v.
CITY OF LANSING; ESTATE OF ROSARIO V. CITY OF LANSING



Appeal from Ingham, Jack W. Warren, J.

Leave to appeal applied for.

Quinn, P. J., and R. B. Burns and D. E. Holbrook, Jr., JJ. Quinn, P. J., concurred. D. E. Holbrook, Jr., J. (concurring).

SYLLABUS BY THE COURT

Opinion of the Court

1. States -- Sovereign Immunity -- Nuisance -- Maintenance -- Negligence.

Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded a governmental agency; but want of care in maintenance presents a question of negligence only and not of public nuisance.

Concurring in Result by D. E. Holbrook, Jr., J.

2. States -- Sovereign Immunity -- Nuisance -- Negligence -- Same Doctrines.

Attractive nuisance is merely another label for negligence and is therefore subject to the same governmental immunity doctrines as a negligence claim.

The opinion of the court was delivered by: Burns

Complaint by Terrance Rosario, Administrator of the estate of DeAndrea Rosario, deceased, against the City of Lansing and Bethlehem Evangelical Lutheran Church of Lansing for wrongful death caused by the negligent maintenance of a sewer drain cover. Summary judgment for defendant City of Lansing. Plaintiff appeals by leave granted.

DeAndrea Rosario, while playing with other children in the Bethlehem Evangelical Lutheran Church parking lot, fell into an open sewer drain and drowned.

The administrator of her estate sued both the City of Lansing and the church alleging negligence. Plaintiff later amended his complaint to allege that the city knew that children played in the area and knew that the drain cover had been removed on prior occasions, and that the condition created an "attractive nuisance".

Defendant, City of Lansing, moved for a summary judgment claiming that decedent was fatally injured upon property owned and controlled by the church and ...


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