Background:
Chen Li was injured when a vehicle in which she was a passenger ran a red light and collided with a vehicle proceeding under a green light. Li sued Ann Arbor, alleging that her injury was caused, in part, by an improperly timed traffic light. The city claimed that it was governmentally immune. Li claimed that the traffic light was a nuisance and that a nuisance is an exception to governmental immunity.

A nuisance is generally an activity or condition that substantially interferes with the reasonable use of property or endangers health and life. Ultimately, the Michigan Supreme Court framed the issue as to whether public nuisance is an exception to the Governmental Tort Liability Act. A nuisance per se is generally an activity or condition which constitutes a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained. The Act does not contain a provision indicating that nuisance is an exception to governmental immunity.

Why did the LDF get involved?
At issue was the viability of a legal principle historically relied upon by Michigan municipalities, i.e., public nuisance is not an exception to governmental immunity. The Michigan Governmental Tort Liability Act (GTLA) was enacted in Michigan in 1964. The GTLA basically provides that a governmental agency is immune from tort liability if the agency is engaged in a governmental function. The GTLA also contains a provision that it does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965. Li argued that a nuisance exception existed prior to July 1, 1965. If Li were to prevail, municipalities would be vulnerable to claims that their acts constituted a public nuisance.

What was the outcome?
The Michigan Supreme Court upheld the municipal viewpoint that public nuisance did not exist as an exception to governmental immunity prior to the adoption of the GTLA.

Who prepared the amicus brief?
Jerold Lax (Bodman, Longley & Dahling)

COMMENT: The issue of whether trespass nuisance was an exception to governmental immunity in sewer backup cases came to a head in CS&P v City of Midland, 229 Mich App 141. In that case, Midland was found liable for damages to private landowners caused by sewer backups. The Michigan Supreme Court granted leave but later issued an order denying leave as improvidently granted.

In 2002, the Michigan Supreme Court, in Pohutski v City of Allen Park, ruled that the second provision of the GTLA applies only to the state and not other governmental agencies. This ruling in essence closed the door for analyses such as those expressed in the Li case. While Pohutski was pending before the Court, legislation was passed which allowed, but narrowly limited, the liability of a local unit of government in sewer backup cases. 2001 PA 222. Because of this legislative enactment, the Pohutski Court limited the effect of its decision so that it would apply only to future cases.