The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DARETHA BRAZIEL, Individually and as Next UNPUBLISHED
Friend of DB, a Minor, and DR, a Minor, KEESHA June 10, 2025
JONES, Individually and as Next Friend of DJ, a 3:06 PM
Minor, TMC, a Minor, TC, a Minor, and KLB, a
Minor, IEASHA JONES, Individually and as Next
Friend of DJ, a Minor, KK, a Minor, KF, a Minor,
SJ, a Minor, and DAJ, a Minor, EMMA KINNARD,
STACEY BRANSCUMB, and MICHAEL D.
BRIGHAM,
Plaintiffs-Appellees,
v No. 370316
Berrien Circuit Court
CITY OF BENTON HARBOR WATER LC No. 23-000249-NM
DEPARTMENT, ELHORN ENGINEERING, F&V
OPERATIONS INC., and CITY OF BENTON
HARBOR,
Defendants,
and
MICHAEL O’MALLEY, Individually and In His
Official Capacity,
Defendant-Appellant.
Before: BOONSTRA, P.J., and LETICA and REDFORD, JJ.
PER CURIAM.
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Defendant, Michael O’Malley,1 appeals as of right a March 11, 2024 order denying his
motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (C)(8)
(failure to state a claim). On appeal, defendant argues the trial court erred by denying his motion
for summary disposition and declining to dismiss him from the action because he was entitled to
governmental immunity under the Governmental Tort Liability Act (“GTLA”), MCL 691.1401 et
seq., on the basis of either absolute or qualified immunity. Because we find no error in the trial
court’s decision, we affirm and remand to the trial court for further proceedings.
I. FACTUAL BACKGROUND2
This case concerns defendant’s response to the discovery of lead in the City of Benton
Harbor’s (“the City”) municipal water system in excess of lead action levels. Lead is a neurotoxin
that is particularly dangerous to children. Both federal and Michigan law regulate the quality of
drinking water for the public under their respective Safe Drinking Water Acts (“SDWA”). 42 USC
300f et seq.; MCL 325.1001 et seq. In Michigan, the Department of Environment, Great Lakes,
and Energy (“EGLE”), formerly known as the Department of Environmental Quality, is the
department with “power and control over public water supplies and suppliers of water.” MCL
325.1002(g); MCL 325.1003.
EGLE sets standards for the monitoring, treatment, and prevention of lead contamination
in drinking water in the Lead and Copper Rule, Mich Admin Code, R 325.10101 et seq.3 These
standards require governing authorities to take particular actions when the public water supply’s
lead level exceeds “0.015 milligrams per liter (mg/l) in tap water samples collected during a
monitoring period . . . .” Mich Admin Code, R 325.10604f(c). These actions include issuing
public advisories and public education materials to the persons served by the water supply and
offering to arrange for water sampling to customers who request it. Mich Admin Code, R
325.10410(1). Additionally, governing authorities who were previously in compliance with lead
action levels must increase testing frequency from every three years, Mich Admin Code, R
325.10710a(4)(d)(iii), to every six months, Mich Admin Code, R 325.10710c(2), and correct
corrosion problems through corrosion-control studies and treatment, Mich Admin Code, R
325.10604f(1)(b).
The typical source of lead contamination is not the source water, but lead leaching from
older pipes in the water delivery system. Such is the case in Benton Harbor. The City sources its
water from Lake Michigan, which does not contain lead. However, the City’s public water system
1
Although O’Malley is one of several defendants in this action, we refer to O’Malley as
“defendant” because he is the only defendant who appealed the trial court’s March 11, 2024 order.
We still use “defendants” to refer collectively to all of the defendants named in this case.
2
The facts stated in this case are taken from plaintiffs’ complaint. For purposes of this appeal, we
accept the pleadings as true.
3
The Environmental Protection Agency also requires specific standards for the monitoring,
treatment, and prevention of lead contamination in drinking water in the National Primary
Drinking Water Regulations. 40 CFR 141 et seq.
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is 100 years old. In 2018, lead exceeding the lead action level at 22 parts per billion (ppb) and the
bacteria E. coli were both identified in Benton Harbor’s municipal water system.
Plaintiffs have alleged that defendants treated the lead contamination with a corrosion-
control treatment called “Carus 8600,” which was a generic phosphate blend and that they did so
without a corrosion-control study, without tailoring the phosphate blend to the water system’s
particular needs, and without monitoring its effectiveness. While using this blend to treat
corrosion, plaintiffs assert the level of lead in the water supply increased. As recent as the testing
period from January to June 2021, testing performed in some Benton Harbor homes measured lead
up to 889 ppb.
Although the level of lead in the water supply continued to increase, defendants represented
to plaintiffs that they were successfully remedying the lead contamination. Defendants also
represented that water filters, which were untested or ineffective for treatment of water with a lead
concentration over 150 ppb, would mitigate contamination. This caused plaintiffs to unknowingly
consume lead-contaminated water. Plaintiffs were not told to stop consuming the water until late
2021.
In October 2023, plaintiffs filed a putative class action against O’Malley, who was the
Director of the Benton Harbor Water Department, the City, and two private corporations, who had
contracted with the City to address the lead contamination, for mismanaging the response to the
discovery of the elevated lead levels and intentionally misleading the public about remediation of
the water contamination. Plaintiffs alleged a claim of gross negligence against O’Malley. In
support of this claim, plaintiffs alleged that “O’Malley’s inaction or ineffective action failed to
stop the exceedingly high lead action level exceedances.” Plaintiffs also alleged:
From 2018-2020, although [sic] Benton Harbor’s water supply was contaminated
with lead, bacteria and other contaminants and each testing and monitoring sample
period revealed lead levels violated federal and State Safe Drinking Water Acts and
the Lead and Copper rule. Although the water supply was unsafe to ingest,
Defendant O’Malley repeatedly denied, lied and covered up this public health
emergency and crisis by repeatedly telling Benton Harbor residents and the public
that the water was safe to drink.
O’Malley moved for summary disposition under MCR 2.116(C)(7) and (C)(8) on the basis
that he had governmental immunity against plaintiffs’ claim. First, relying on a few provisions in
the Benton Harbor Charter, O’Malley argued he was entitled to absolute immunity because he was
the “highest appointive official” of a “level of government” as the Director of the Benton Harbor
Water Department. Second, O’Malley argued he was entitled to qualified immunity because
plaintiffs failed to allege that O’Malley’s conduct amounted to gross negligence or that he was the
proximate cause of plaintiffs’ injuries. Accordingly, O’Malley asserted he was entitled to
summary disposition on plaintiffs’ claims and dismissal from the action.
Plaintiffs responded to O’Malley’s motion for summary disposition, arguing, first, that
O’Malley was not entitled to absolute immunity because the Water Department was not a “level
of government.” Plaintiffs argued the provisions in the Benton Harbor Charter showed only that
the Water Department had “supervision” over the water supply, which did not demonstrate
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autonomous authority. Second, that the allegations in their complaint, accepted as true, stated an
actionable claim of gross negligence against O’Malley because they alleged that O’Malley
intentionally lied about the water quality, failed to file accurate reports, and falsified documents,
all while telling residents that the water was safe to drink.
The trial court denied O’Malley’s motion for summary disposition in relation to both his
absolute immunity and qualified immunity arguments. The trial court explained that defendant
only presented a few pages of the Benton Harbor Charter to the trial court in support of his absolute
immunity argument. The trial court noted that review of the remainder of the Charter and other
evidence was necessary to determine whether O’Malley was entitled as a matter of law to absolute
immunity. The trial court further explained that although plaintiffs’ complaint contains some
conclusory allegations, the pleadings still sufficiently alleged O’Malley’s conduct was grossly
negligent.
This appeal followed.
II. STANDARD OF REVIEW
The applicability of governmental immunity is a question this Court reviews de novo.
Beals v Michigan, 497 Mich 363, 369; 871 NW2d 5 (2015), overruled in part on other grounds by
Ray v Swager, 501 Mich 52, 72 n 49; 903 NW2d 366 (2017). This Court also reviews de novo a
decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d
817 (1999).
A trial court may grant summary disposition under MCR 2.116(C)(7) on the basis of
governmental immunity. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). In a
motion for summary disposition under MCR 2.116(C)(7), this Court considers “all documentary
evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits
or other appropriate documents specifically contradict them.” Beals, 497 Mich at 370 (quotation
marks and citation omitted). “If the facts are not in dispute and reasonable minds could not differ
concerning the legal effect of those facts, whether the claim is barred by immunity is a question
for the court to decide as a matter of law.” Id. (quotation marks and citation omitted).
A motion under MCR 2.116(C)(8) “tests the legal sufficiency of a claim based on the
factual allegations in the complaint.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159;
934 NW2d 665 (2019) (emphasis omitted). The trial court must decide the motion on the pleadings
alone, accepting as true all factual allegations contained therein, as well as any reasonable
inferences or conclusions that can be drawn from the facts. Peters v Dep’t of Corrections, 215
Mich App 485, 486; 546 NW2d 668 (1996). A motion under MCR 2.116(C)(8) may be granted
only when the claim is so clearly unenforceable that no factual development could possibly justify
recovery. El-Khalil, 504 Mich at 160. Further, “[a] mere statement of a pleader’s conclusions and
statements of law, unsupported by allegations of fact, will not suffice to state a cause of action.”
Varela v Spanski, 329 Mich App 58, 72; 941 NW2d 60 (2019).
To the extent resolution of this issue involves statutory interpretation, this Court reviews
de novo whether a trial court properly interpreted and applied the relevant statutes. Wiesner v
Washtenaw Co Community Mental Health, 340 Mich App 572, 580; 986 NW2d 629 (2022).
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III. ABSOLUTE IMMUNITY
Defendant first argues the trial court erred by concluding a question of fact remained
whether he was entitled to absolute immunity under the GTLA. Concluding that defendant did
not meet his burden to establish he had absolute immunity as a matter of law, we disagree.
Under the GTLA, the Michigan Legislature has determined that certain elective or
appointive officials have absolute immunity from tort liability when acting within the scope of
their authority: “A judge, a legislator, and the elective or highest appointive executive official of
all levels of government are immune from tort liability for injuries to persons or damages to
property if he or she is acting within the scope of his or her judicial, legislative, or executive
authority.” MCL 691.1407(5). The purpose of absolute immunity is to shield public employees
who are responsible for broad, essential governmental decision-making so they may fulfill their
public duties without being intimidated. Grahovac v Munising Twp, 263 Mich App 589, 595; 689
NW2d 498 (2004). To show entitlement to absolute immunity from tort liability, the governmental
employee must establish “(1) that he or she is a judge, legislator, or the elective or highest
appointive executive official of a level of government and (2) that he or she acted within the scope
of his or her judicial, legislative, or executive authority.” Petipren v Jaskowski, 494 Mich 190,
204; 833 NW2d 247 (2013). The governmental employee bears the burden of establishing
entitlement to absolute immunity. Id.
In this case, defendant contends that he is entitled to absolute immunity because he is the
highest appointive executive official of a level of government as the Director of the Water
Department. To determine whether defendant is entitled to absolute immunity, this Court must
first determine whether the Water Department constitutes a “level of government” and, if answered
in the affirmative, then determine whether defendant is its “highest appointive executive official.”
To decide whether an entity is a “level of government” within the meaning of MCL
691.1407(5), this Court has looked at several factors. These include “whether the entity shares
aspects of governance with other political subdivisions, such as the power to levy taxes, the power
to make decisions having a wide effect on members of the community, or the power of eminent
domain.” Grahovac, 263 Mich App at 593. This Court has also considered whether the
government employee exercises “broad-based jurisdiction or extensive authority similar to that of
a judge or legislator,” Id., quoting Chivas v Koehler, 182 Mich App 467, 471; 453 NW2d 264
(1990), and whether the entity has “autonomous authority.” Davis v Detroit, 269 Mich App 376,
381; 711 NW2d 462 (2006)
In Grahovac, 263 Mich App at 594, this Court concluded that a volunteer fire department
was not a level of government because no evidence supported that the fire department had any
powers of governance. The defendant lacked the power to levy taxes, the power of eminent
domain, the power to make decisions having a wide effect on members of the community, or any
broadly-based jurisdiction or extensive authority. Id. The Court noted that all of these powers
were specifically granted by the Legislature to the township board or other government agencies.
Id. Instead, the volunteer fire department was “at the complete disposal of the township board and
[could] neither exist nor act without the board’s authorization.” Id. This Court concluded the
township board was the relevant level of government and, consequently, the fire department chief
was not entitled to absolute immunity. Id.
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In Davis, 269 Mich App at 381, this Court concluded that Detroit’s fire department and
water and sewage department were levels of government. The Davis Court distinguished
Grahovac on the basis that Grahovac involved a township, which unlike cities, was governed
solely by legislative provisions. Id. at 380. In contrast, the Court looked to the Detroit City Charter
and Detroit City Code to determine whether the departments were levels of government. Id. at 381.
It concluded that the charter and code granted the fire commissioner and board of water
commissioners “autonomous authority that was not alleged in Grahovac.” Id. citing 1997 Detroit
Charter, §§ 7-801, 7-802, 7-804, 7-806, 7-1501, and 7-1502.
In this case, O’Malley does not contend that the Water Department holds traditional powers
of governance such as the power to levy taxes or the power of eminent domain. Rather, O’Malley
argues the Water Department was similar to the departments in Davis because it has autonomous
authority over matters related to water in Benton Harbor. In the trial court and this Court,
O’Malley relied on §§ 3.16, 3.17, and 3.38 of the Benton Harbor Charter to support this assertion.
However, these provisions do not establish as a matter of law that the Water Department exercised
autonomous authority over the water supply.
Section 3.16 provides that “[t]he administrative functions and powers of the City shall be
divided into eight departments as follows: Law; Finance; Public Works and Service; Public
Welfare; Public Health; Water; and Sewage Disposal, subject to modification hereinafter
provided.” Benton Harbor Charter, § 3.16. The next section describes the directors of each of the
departments:
There shall be a Director of every department who shall have the
supervision and control thereof. The Commission shall appoint the Director of Law
and the Director of Finance and they shall be responsible to the supervision and
control of the Commission in the discharge of their duties; the Manager shall
appoint and employ the Directors of the other departments and they shall be
responsible to the supervision and control of the Manager for the discharge of their
duties . . . . All such Directors shall be appointed or employed for an indefinite
term and only at the will of the Commission or Manager respectively, as the case
may be, and may be removed at any time at the pleasure of the Commission or
Manager respectively, by whom such Director is appointed or employed. [Benton
Harbor Charter, § 3.17.]
Finally, under § 3.38:
The Director of the Water Department shall be a licensed operator with
qualifications as designated by the Michigan State Board of Health and shall have
direct supervision of the municipal supply and all works, lands, water, lands under
water, dams, pumping stations, ways, water mains, pipes and all other works and
property connected therewith.” [Benton Harbor Charter, § 3.38.]
O’Malley contends that these provisions collectively demonstrate that the Water Department had
autonomy over the City’s water works system, including all administrative functions related to
water, and it did not require the Water Department to collaborate with any other entity.
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Viewed in isolation, these provisions do not establish as a matter of law that the Water
Department had autonomous authority over water in Benton Harbor. Rather, the provisions only
provide that the City Commission tasked the Director of the Water Department with the
“supervision” of the municipal water supply. Supervision alone is not synonymous with
autonomous authority. These three provisions are not comparable to the charter provisions in
Davis. They do not establish that the Water Department was an autonomous governmental unit
with the power to make independent decisions.
Moreover, as explained by the trial court, O’Malley only presented a few pages of the
Benton Harbor Charter, leaving a question of fact whether the remainder of the Charter or other
facts supported a determination that the Water Department exercised autonomous authority over
the municipal water supply. As the party moving for summary disposition, O’Malley bore the
burden of presenting evidence in support of his argument and he failed to do so. As such, he was
not entitled to summary disposition.
Indeed, other provisions in the Benton Harbor Charter counsel against a determination that
the Water Department exercises autonomous authority. Chapter XI of the Charter supports that
the Commission, rather than the Water Department, holds decision-making power over the
municipal water supply. The Commission holds the power to make ordinances, rules, and
regulations for the maintenance of the municipal water supply. Benton Harbor Charter, § 11.11.
The Commission holds the power to improve upon or expand the water system. Benton Harbor
Charter, § 11.12. Finally, the Commission holds the power to levy taxes for water use. Benton
Harbor Charter, § 11.13.
O’Malley argues the Benton Harbor Charter “makes clear” the Water Department’s power
includes the promulgation of rules and regulations. The Benton Harbor Charter does not support
this assertion. Rather, the Charter grants the power to promulgate rules and regulations regarding
the water supply to the Commission. Benton Harbor Charter, § 11.11. The section O’Malley
relied on is actually found in the Benton Harbor Code of Ordinances and it does not support that
the Water Department has any power to promulgate rules and regulations. It merely provides that
individuals seeking to access city water agree to be bound by the rules and regulations relevant to
the Water Department. Benton Harbor Code of Ordinances, § 44-16(c).
In conclusion, O’Malley conceded that the Water Department lacked traditional powers of
governance. Moreover, no showing was made that the Water Department had “broad-based
jurisdiction or extensive authority similar to that of a judge or legislator.” Grahovac, 263 Mich
App at 593 (quotation marks and citation omitted). Finally, defendant did not present evidence
that the Water Department exercised autonomous authority; rather, the Charter and Code of
Ordinances counsel against such a determination. Because defendant failed to establish that the
Water Department is a “level of government” within the meaning of MCL 691.1407(5), he is not
entitled as a matter of law to absolute immunity.
IV. QUALIFIED IMMUNITY
Defendant contends that, even if this Court disagrees that he had absolute immunity, he
had qualified immunity. In support of this argument, defendant argues the trial court erred by
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determining plaintiffs sufficiently pleaded O’Malley’s conduct was grossly negligent and the
proximate cause of their injuries. We disagree with both contentions.
Under the GTLA, governmental employees are “generally immune from tort liability when
they are engaged in the exercise or discharge of a governmental function.” Ray, 501 Mich at 62.
The GTLA provides several exceptions to this rule. Relevant to this appeal:
[E]ach officer and employee of a governmental agency . . . is immune from
tort liability for an injury to a person or damage to property caused by . . .
employee . . . while in the course of employment . . . if all of the following are met:
(a) The . . . employee . . . is acting or reasonably believes he or she is acting
within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The . . . employee’s . . . conduct does not amount to gross negligence
that is the proximate cause of the injury or damage. [MCL 691.1407(2).]
The governmental employee bears the burden of establishing his or her entitlement to immunity
as an affirmative defense. Ray, 501 Mich at 62.
The parties do not dispute that subdivisions (a) and (b) were satisfied in this case. However,
the parties dispute subdivision (c). Accordingly, this Court must assess whether plaintiffs
sufficiently pleaded that O’Malley’s conduct was “grossly negligent” and the “proximate cause”
of plaintiffs’ injuries. A plaintiff alleging gross negligence must also plead the elements of
ordinary negligence, i.e., duty, breach, causation, and damages. See Cummins v Robinson Twp,
283 Mich App 677, 692; 770 NW2d 421 (2009).
Defendant first argues plaintiffs’ allegations related to O’Malley were conclusory
statements, unsupported by factual allegations, such that plaintiffs failed to set forth the elements
of negligence. Although it is true that a complaint that contains mere conclusory statements
unsupported by factual allegations will not survive a motion for summary disposition under MCR
2.116(C)(8), Varela, 329 Mich App at 72, plaintiffs’ complaint contained sufficient factual
allegations to survive the motion for summary disposition. Defendant’s argument takes a myopic
view of plaintiffs’ complaint that is unsupported by the pleading requirements necessary to survive
a motion for summary disposition under MCR 2.116(C)(8). As previously stated, when
considering such a motion, this Court must accept as true all factual allegations contained therein,
as well as any reasonable inferences or conclusions that can be drawn from the facts. Peters, 215
Mich App at 486.
In their complaint, plaintiffs allege O’Malley was grossly negligent because he (1) failed
to act or took ineffective action to remedy the lead contamination after its discovery; and (2)
“repeatedly denied, lied, and covered up this public health emergency and crisis by repeatedly
telling Benton Harbor residents and the public that the water was safe to drink.” As noted by the
trial court, some of the allegations in plaintiffs’ complaint are conclusory; however, plaintiffs
sufficiently pleaded factual allegations related to O’Malley to support their legal conclusions.
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First, plaintiffs alleged O’Malley’s “inaction or ineffective action failed to stop the
exceedingly high lead action level exceedances.” The complaint explains O’Malley was the
Director of the Water Department during the period when Benton Harbor’s water supply exceeded
the lead action level. Plaintiffs allege he violated both federal and Michigan SDWA requirements
and guidelines for selection, use, and monitoring of corrosion-control measures to eliminate the
lead contamination. The complaint explained that governing authorities use “corrosion control
treatment” to prevent lead leaching from older pipes into the water supply. When choosing from
the various methods of corrosion control, the governing authority must choose a ratio and dosage
tailored to the needs of the particular water system and monitor its effectiveness. Likewise, the
governing authority was required to perform a corrosion-control study before implementing the
treatment.
Despite these requirements, O’Malley submitted a permit application to EGLE, which
included use of the generic “Carus 8600” phosphate blend to treat the lead contamination when
that blend had not been tested for use in the Benton Harbor water system and defendants did not
attempt to tailor the blend to the particular water system. Defendants never completed a corrosion-
control study and failed to monitor for the blend’s effectiveness after implementing it. This
resulted in the level of lead in the water increasing.
Additionally, plaintiffs do not merely plead that O’Malley failed to act or acted
ineffectively. Rather, they pleaded that O’Malley affirmatively acted to obscure the results of the
corrosion control. Plaintiffs alleged he obscured the results of the Carus 8600 blend by refusing
to disclose the addresses of the testing sites to EGLE and requested to reduce the number of testing
sites. Related to the issue of E. coli contamination, plaintiffs pleaded O’Malley used “false
technical excuses” to cover up discrepancies in water supply testing that the EPA determined were
inaccurate. Finally, plaintiffs alleged defendant was terminated from his position for falsifying
Water Department documents.
Collectively, these factual allegations could support that O’Malley did not act or, when he
did act, he did so ineffectively because he improperly selected the corrosion-control treatment.
Likewise, these factual allegations support that he intentionally obscured the results of the
treatment plan to mislead state regulators regarding its success. Consequently, plaintiffs’
complaint was not devoid of factual allegations in support of this theory of recovery.
Defendant contends that because defendant Elhorn Engineering (“Elhorn”) recommended
use of Carus 8600 and EGLE approved the permit application submitted by O’Malley, the injury
plaintiffs alleged arose out of EGLE’s and Elhorn’s actions rather than O’Malley’s actions.
Indeed, plaintiffs alleged Elhorn recommended selection of Carus 8600 for corrosion control and
EGLE ultimately approved the permit application requesting to use the product. However, even
accepted as true, these pleadings do not negate O’Malley’s role, as Director of the Water
Department, in selecting and using Carus 8600 in the water system. The fact that he consulted
with other entities and sought approval does not alter his responsibility for the alleged harm
plaintiffs suffered. Likewise, this argument ignores plaintiffs’ pleading that O’Malley attempted
to obscure the testing results. Drawing reasonable inferences from these pleadings, plaintiffs have
sufficiently alleged a connection between O’Malley’s actions and the harm to plaintiffs.
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Defendant also argues that plaintiffs failed to show defendant breached a duty to them
because plaintiffs insufficiently pleaded that he did not meet an obligation by testing fewer than
the required number of homes or that he was required to disclose the addresses of the testing sites
to EGLE. He also argues his attempt to lower the number of testing sites was denied by EGLE.
Again, this argument takes too narrow a view of the complaint. First, plaintiffs alleged that
“O’Malley refused to disclose the addresses of the testing sites to EGLE.” Reasonably inferred
from use of the term “refused,” EGLE requested that O’Malley disclose the testing sites and he
refused that request. Second, although defendant correctly points out that EGLE denied his request
to reduce testing sites and, therefore, he did not cause any direct harm to plaintiffs by reducing the
testing sites, these allegations provide context and support to plaintiffs’ larger allegation that
O’Malley attempted to obscure testing results and mislead the public regarding efforts to reduce
the lead level in the water supply.
Defendant correctly notes that, although plaintiffs allege O’Malley was fired from his
position for falsifying documents, they do not allege that the documents were related to lead
contamination or explain what misconduct was at issue. However, it is possible, drawing
reasonable inferences from the complaint and viewing this allegation in the context of all
allegations, that O’Malley was fired for falsifying documents related to his handling of the lead
and bacteria contamination. Ultimately, even if this particular allegation is conclusory, plaintiffs
have sufficiently pleaded other factual allegations to survive defendant’s motion for summary
disposition.
In addition to the attempts to obscure the testing results, plaintiffs alleged that O’Malley
lied to the public regarding the safety of drinking the water and the effectiveness of the mitigation
measures. Plaintiffs point to two statements made by O’Malley in support of this allegation that
they allege were false and misleading. First, O’Malley was alleged to have told a Benton Harbor
resident that even if water in homes tested above 15 ppb, after the “first flush it was okay to drink
and cook” with the tap water because “they provide clean water right to their spout.” Second,
O’Malley was alleged to have publicly and falsely stated inroads were being made to eliminate
lead from the water when the corrosion-control treatment was not successfully treating the
contamination. Likewise, plaintiffs alleged that all defendants told residents to use water filters in
their homes when they knew the waters filters were not effective for lead concentrations over 150
ppb and, as early as 2019, some Benton Harbor homes had lead levels in excess of 150 ppb.
The next question is whether plaintiffs pleaded a valid claim for gross negligence with
these allegations. The GTLA defines “gross negligence” as “conduct so reckless as to demonstrate
a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). This Court has
noted that this definition suggests “almost a willful disregard of precautions or measures to attend
to safety and a singular disregard for substantial risks.” Tarlea v Crabtree, 263 Mich App 80, 90;
687 NW2d 333 (2004). Further, “[i]t is as though, if an objective observer watched the actor, he
could conclude, reasonably, that the actor simply did not care about the safety or welfare of those
in his charge.” Id. However, “[s]imply alleging that an actor could have done more is insufficient
under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra
precautions could have influenced the result.” Id.
Plaintiffs allege that O’Malley selected Carus 8600 to treat the water without defendants
testing it or tailoring it to the particular water system. They additionally allege this caused the lead
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level to increase. They also assert defendant lied about, denied, and attempted to cover up the
water contamination by misleading state regulators regarding testing procedures and lying to
Benton Harbor residents about the success of the Water Department’s efforts to treat the water and
the propriety of drinking the water.
These allegations do not contend that O’Malley created this public health crisis. They
contend that he exacerbated the water crisis by mishandling its remediation, engaging in
obstructive conduct, and lying to the public about the success of their efforts and the propriety of
drinking the water when he knew lead contamination was an ongoing and worsening issue.
Lead is a well-known toxin. O’Malley was the Director of the Water Department and was
specifically trained and licensed to supervise the municipal water supply. Benton Harbor Charter,
§ 3.38. Someone in his position would be well-aware of the dangers of exposing the public to lead
contamination. Plaintiffs allege his conduct exposed Benton Harbor residents to that toxin and
encouraged them to continue drinking from the water supply under the false belief that the City
was effectively remediating the issue and that measures, such as water filters, would make the
water safe to consume. A reasonable juror could conclude that O’Malley’s conduct was “so
reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL
691.1407(8)(a). Accordingly, the trial court did not err by concluding plaintiffs sufficiently
pleaded a claim of gross negligence.
For purposes of the GTLA, even if a government employee’s conduct was grossly
negligent, he or she is immune from liability unless that conduct was “the proximate cause” of the
plaintiffs’ injuries. MCL 691.1407(2)(c). Proximate cause, or legal cause, is distinct from factual
cause, or cause in fact, which “requires showing that ‘but for’ the defendant’s actions, the
plaintiff’s injury would not have occurred.” Ray, 501 Mich at 63 (quotation marks and citation
omitted). Whether a defendant’s conduct was the proximate cause “requires a determination of
whether it was foreseeable that the defendant’s conduct could result in harm to the victim.” Id.
at 65. Stated otherwise, “the harm caused to the plaintiff was the general kind of harm the
defendant negligently risked.” Id. at 64 (quotation marks and citation omitted). Generally, there
may be more than one proximate cause of an injury, but for purposes of the GTLA, a government
employee’s conduct cannot be the proximate cause unless it was “the one most immediate,
efficient, and direct cause of the injury . . . .” Id. at 65 (quotation marks and citation omitted).
Defendant contends that as a matter of law he cannot be the proximate cause of plaintiffs’
injury because, as pleaded, the lead leaching into the water system from the aging pipes was the
most immediate, efficient, and direct cause of injury. However, our Supreme Court has warned
against this type of analysis because it weighs factual causes instead of assessing the legal
responsibility of the actors involved. Id. at 71-72. In Ray, the Supreme Court overturned its
previous order in which it held that under the GTLA a claim against a firefighter, who was
allegedly grossly negligent in fighting a house fire that killed the plaintiff’s child, was not the
proximate cause because the fire was the proximate cause. Id., overruling Dean v Childs, 474
Mich 914; 705 NW2d 344 (2004). The Supreme Court explained this analysis was erroneous:
Determining proximate cause under the GTLA, or elsewhere, does not entail the
weighing of factual causes but instead assesses the legal responsibility of the actors
involved. Moreover, because proximate cause is concerned with the foreseeability
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of consequences, only a human actor’s breach of a duty can be a proximate cause.
Consequently, nonhuman and natural forces, such as a fire, cannot be considered
“the proximate cause” of a plaintiff’s injuries for the purposes of the GTLA.
Instead, these forces bear on the question of foreseeability, in that they may
constitute superseding causes that relieve the actor of liability if the intervening
force was not reasonably foreseeable. [Ray, 501 Mich at 71-72.]
Applied to this case, the fact that the presence of lead in Benton Harbor’s 100-year-old water
system is among the factual causes of plaintiffs’ injuries does not negate the possibility of
O’Malley being the proximate cause.
Moreover, the allegations in this case are not that defendants caused the lead to be present
in the water system. The allegations are that, after discovering the lead contamination, O’Malley
exacerbated the water contamination by improperly treating for corrosion and making false and
misleading statements to the public that assured that their drinking water was safe, all while
knowing that dangerous levels of lead were present in the drinking water. Accepting these
pleadings as true, it is foreseeable that the harm pleaded by plaintiffs was the general kind of harm
that O’Malley’s conduct negligently risked. Id. at 64. Likewise, a reasonable juror could conclude
that he was the most immediate, efficient, and direct cause of plaintiffs’ injuries. Accordingly, a
question of fact remains whether O’Malley was the proximate cause of plaintiffs’ injuries.
Affirmed.
/s/ Mark T. Boonstra
/s/ Anica Letica
/s/ James Robert Redford
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