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03/23/76 GERZESKI v. DEPARTMENT STATE HIGHWAYS

March 23, 1976

GERZESKI
v.
DEPARTMENT OF STATE HIGHWAYS; FOUCHIA V. DEPARTMENT OF STATE HIGHWAYS



Appeal from Court of Claims, Ross W. Campbell, J.

Leave to appeal granted, 397 Mich 832.

McGregor, P. J., and T. M. Burns and N. J. Kaufman, JJ. McGregor, P. J., concurred. T. M. Burns, J., (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Torts -- Governmental Immunity -- Governmental Agencies -- Governmental Functions -- Statutes.

All governmental agencies are immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function, unless otherwise provided by statute (MCLA 691.1407; MSA 3.996[107]).

2. Torts -- Governmental Immunity -- Statutory Law.

The law of state governmental immunity is, with a few exceptions, strictly statutory.

3. Torts -- Governmental Immunity -- Highways -- Negligence -- Government Vehicles -- Public Buildings -- Statutes.

Statutory exceptions to governmental immunity exist where injuries are caused by defective highways, negligent operation of government-owned vehicles, and dangerous or defective conditions of public buildings (MCLA 691.1402, 691.1405, 691.1406; MSA 3.996[102], 3.996[105], 3.996[106]).

4. Torts -- Governmental Immunity -- Trespass from Government-Owned Land.

Governmental immunity is inapplicable, in addition to the statutory exceptions, where damage to private property is caused by direct trespasses of an instrumentality from government-owned land and where the government maintains a nuisance per se.

5. Nuisance -- Governmental Immunity -- Negligence -- State Employees -- Nuisance in Fact.

The doctrine of governmental immunity bars actions for damages caused by a nuisance in fact where the condition was created by the ordinary or willful negligence of state employees.

6. Nuisance -- Governmental Immunity -- Inherent Danger.

Governmental immunity does not apply where an action based on nuisance stems from a condition which results in inherent danger even under the best of care or a condition which is nuisance at all times and under any circumstances.

7. Torts -- Governmental Immunity -- Legislative Power.

Only the Legislature is empowered to eliminate governmental immunity in Michigan.

8. Nuisance -- Nuisance in Fact -- Borrow Pit -- Governmental Immunity -- Drowning.

Governmental immunity bars an action against the state arising out of deaths by drowning in a state-owned borrow pit where the borrow pit was an intentional nuisance in fact.

Dissent by T. M. Burns, J.

9. Torts -- Governmental Immunity -- State Employees -- Lack of Due ...


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