ROBERT POSTMA V COUNTY OF OTTAWA
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT POSTMA,
UNPUBLISHED
September 2, 2004
Plaintiff-Appellant,
v
No. 243602
Ottawa Circuit Court
LC No. 01-039937-CE
COUNTY OF OTTAWA,
Defendant-Cross Plaintiff-Appellee,
and
WASTE MANAGEMENT OF MICHIGAN, INC.,
Defendant-Cross Defendant-Appellee.
Before: Murray, P.J., and Murphy and Markey, JJ.
MURRAY, P.J. (concurring in part, dissenting in part).
I concur with the majority opinion except as to part III (C)(2), which addresses the
intruding nuisance claim pleaded against Waste Management of Michigan, Inc. (WMMI). For
the reasons set out below, the trial court did not err in dismissing the intruding nuisance claim
against WMMI, a private defendant. Furthermore, the majority incorrectly re-labels plaintiff’s
claim as a private nuisance, instead of an intruding nuisance, thereby allowing an unpleaded
claim to proceed to trial against WMMI.
The majority correctly notes that intruding nuisance is a misnomer for a trespassnuisance claim. Slip op at p 11, citing Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich
App 186, 193; 540 NW2d 297 (1995), in turn citing Hadfield v Oakland Co Drain Comm’r, 430
Mich 139, 154; 422 NW2d 205 (1988), overruled on other grds, Pohutski v Allen Park, 465 Mich
675; 641 NW2d 219 (2002). However, as WMMI points out, trespass-nuisance was only
relevant for purposes of evading governmental immunity,1 and therefore did not and does not
1
Trespass-nuisance is no longer an exception to statutory governmental immunity. Pohutski v
Allen Park, 465 Mich 675, 689-690; 641 NW2d 219 (2002).
-1-
apply against a private defendant such as WMMI. Cloverleaf, supra at 193; Antonian v City of
Dearborn Heights, 224 F Supp 2d 1129, 1142 (ED Mich 2002). Accordingly, the trial court was
compelled to dismiss the claim as a matter of law. Id.
The majority instead addresses the claim as if it were one for a private nuisance. It does
so on the basis that plaintiff’s mislabeling of Count III is not fatal because the allegations within
the complaint reasonably inform WMMI of the nature of the claim. I respectfully disagree with
this proposition for two reasons. First, plaintiff’s allegations do not put WMMI on notice that it
would be defending a private nuisance claim, for the heading and allegations within Count III
reveal a precise claim and allegations of intruding nuisance. Specifically, plaintiff’s complaint
contained four explicit counts, two each against both defendants: Count I alleged “Intruding
nuisance by Ottawa County,” Count II alleged “Trespass by Ottawa County” and Count IV
alleged “Trespass by Waste Management of Michigan Inc.” Count III, which is the count at
issue, is clearly labeled as a claim for an “intruding nuisance” and contains clear allegations
attempting to prove the existence of an intruding nuisance:
COUNT III – INTRUDING NUISANCE BY WASTE MANAGEMENT OF
MICHIGAN, INC.
29.
Plaintiff incorporates by reference the allegations set forth above
in paragraphs 1 through 28 as fully stated herein.
30.
Defendant Waste Management of Michigan, Inc. had a duty to
prevent the contamination and pollution of the groundwater and the physical
intrusion of the contamination and pollution from the Waste Management Lagoon
onto plaintiff’s property.
31.
Defendant Waste Management of Michigan, Inc. had a duty to
design, construct, maintain, repair, operate and control the Waste Management
Lagoon so as to prevent the pollution and contamination of the groundwater, and
the physical intrusion of the contaminated and polluted groundwater onto
plaintiff’s property.
32.
Defendant Waste Management of Michigan, Inc. knew or should
have know that its Waste Management Lagoon would not function properly and
did not provide adequate or reasonable means to prevent the pollution and
contamination of the groundwater, and the physical intrusion of the groundwater
onto plaintiff’s property from the Waste Management Lagoon.
33.
Defendant Waste Management of Michigan, Inc. breached its duty
by failing to design, construct, maintain, repair, operate and control the Waste
Management Lagoon, or take other reasonable acts and measures, so as to prevent
the pollution and contamination of the groundwater, and the physical intrusion of
polluted and contaminated groundwater onto plaintiff’s property from the Waste
Management Lagoon.
-2-
34.
The polluted and contaminated groundwater created by the
leaching and discharge of the Waste Management Lagoon directly interferes with
plaintiff’s use and enjoyment of his property and business.
35.
The polluted and contaminated groundwater, and physical
intrusion of the polluted and contaminated groundwater onto plaintiff’s property
from the Waste Management Lagoon, constitutes an intruding nuisance.
36.
Defendant Waste Management of Michigan, Inc. created the
nuisance, owned or controlled the Waste Management Lagoon or employed
others to do work that it knew was likely to create the nuisance.
37.
Due to the physical intrusion of the polluted and contaminated
groundwater onto plaintiff’s property from defendant’s Waste Management
Lagoon, plaintiff has sustained, and continues to sustain, severe damages,
including, but not limited to, the inability to mine the sand on his property for
sale, create a pond and develop home sites around the pond (emphasis added).
In my estimation, the foregoing convincingly demonstrates that plaintiff unequivocally
alleged an intruding nuisance against WMMI. Each of the paragraphs pleaded under Count III
contain the factual assertion that WMMI caused a “physical intrusion of the polluted and
contaminated groundwater onto plaintiff’s property.” These are specific and legally significant
allegations, and are tailored to meet the proofs required to establish an intruding or trespassnuisance. See Hadfield, supra at 145. Indeed, it is the very nonexistence of the physical
intrusion element that distinguishes the elements of a private and trespass-nuisance. In my view,
therefore, plaintiff specifically alleged an intruding nuisance, and the pleadings did not put
WMMI on reasonable notice otherwise.2
Second, the majority does not explain the connection between trespass-nuisance being a
misnomer for intruding nuisance, and the conclusion that plaintiff actually brought a private
nuisance claim. There is certainly no case law indicating that courts are to construe a wrongly
filed intruding nuisance claim as a private nuisance, and as set forth above, the allegations
themselves belie a claim of private nuisance.
At this stage of the proceeding, plaintiff is stuck with the allegations contained in the
complaint and cannot now seek to litigate a different claim. I would therefore affirm the trial
court in its entirety.
/s/ Christopher M. Murray
2
Plaintiff did not file a motion to amend the complaint in the circuit court.
-3-
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