Christine D. Oldani | Mary Massaron Ross | Plunkett & Cooney, P.C. | 243 West Congress Suite 800 | Detroit MI 48226-3269 | 313-983-4796

Since the issuance of Hadfield v Oakland County Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988), courts throughout the State have grappled with the task of understanding, analyzing, and applying immunity to claims oftrespass and nuisance.
Those efforts have resulted in huge inconsistencies in the definition, interpretation, and application of immunity and of the elements oftrespass and nuisance. This Court’s fatal decision to conjure up a common law exception to immunity in the absence oflanguage creating any trespass or nuisance exception has led to the confusion that reigns today. With no language defining the common law exceptions to immunity that the Hadfield court judicially recognized, this Court has
been forced to create law. The dangers of such an approach have been discussed by great legal thinkers from Montesquieu to Madison to Scalia. The trial court should have to undertake its immunity analysis by determining whether plaintiffs had plead and could prove a direct act the natural result of which is immediate injury, i.e., a trespass, or an indirect act, the natural result of which is immediate injury, i.e., a nuisance. From there, assuming plaintiffs’ ability to avoid the City’s governmental immunity and upon recognizing that the immunity analysis did not subsume the substantive tort analysis, the trial court should have proceeded to hear plaintiffs’ proofs and the City of Midland’s defenses on the tort as pled by plaintiffs.