Jerome Dubrulle v. Great Lakes Water Authority

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

JEROME DUBRULLE, JENNIFER DUBRULLE, UNPUBLISHED

EDWARD KERFOOT, ELLEN KERFOOT, October 02, 2025

NICOLE NORRIS, MATTHEW NORRIS, CHADY 1:31 PM

HAURANI, MONA HAURANI, MARCY

TAYLER, ABBY PAULSON, ANDREW

HASTINGS, MARGUERITE KAISER, ROBERT

KAISER, MOLLY MCCLANAGHAN, RYAN

MORRIS, PATRICK SHANLEY, KELLY

SHANLEY, RHONDA FENDERSON, SARAH

FELDMAN, JOSHUA TUCKER, DANIELLE

TUCKER, and JON MARKO,

Plaintiffs-Appellants,

v No. 365363

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, CITY OF LC No. 21-014057-NZ

DETROIT, CITY OF GROSSE POINTE PARK,

CITY OF GROSSE POINTE, CITY OF GROSSE

POINTE FARMS, CITY OF GROSSE POINTE

WOODS, CITY OF GROSSE POINTE SHORES,

CITY OF HARPER WOODS, and SOUTHEAST

MACOMB SANITARY DISTRICT,

Defendants-Appellees.

JOSEPH ACHTABOWSKI, KEITH ADOLPH,

WENDELINE ADOLPH, MOLLIE ALDRIDGE,

AKEEM ALEBIOSU, ADEL ALI, ANGELA

ALLEN, DONALD ALVIN, WANDA APPLETON,

MARTHA AUSTIN, TEREDIA AUSTIN, DONNA

BADON, SUE BAKER, CRAIG BALOW, ANNA

BALOW, LIONEL BANKS, CAROL BANKS,

DANNIE BANKS, RAYMOND BAUER, GAIL

BEASLEY, DONNA BELL, MARIA BELTRAN,

CHRISTINA BIBB, RITA BLONDELL, WENDY

-1-

BOOKER, WANDA BOWEN-DIXON,

GABRIELLE BRADFORD, DONA BROWN,

JIMMIE BROXTON, JUANA BROXTON,

SHAWN BRYANT, WESLEY BURNS, PAMELA

BURNS, ROY CALDWELL, CYNTHIA

CALDWELL, CHESTE CALKA, DIANE

CALLIWAY, LATISHA CALLOWAY, JACINDA

CASON, ADRIANNE CHAMBLIS, BARBARA

CHARLESTON, WILMA CLARK-PRICE, ASHA

CLAY, KIM COUCHOT, BERNIDINE

CRAGWAY, ERICA CROSSLAND, COREY

DAVID, ALEXIS DAVIS, CRAIG DAVIS, JULIA

DAVIS, WYANNA DAVIS, KATRINA DAVIS,

DARLENE DONALDSON, JAMES DONOVAN,

CHANRAE DOUGLAS, ERIC DRAKE,

MARGARET DUTKA, THERESA ELLIOTT,

INDIA ESKRIDGE, GERALD FARBER,

KIMBERLY FARLEY, JUSTIN FENWICK,

ATHENA FIZER, BRANDON FOSTER, WANDA

FOX, ANTHONY FRAILS, CRYSTAL FRAILS,

ALANA FRANKLIN, KAWANA FRENCH,

ORLANDO GARCIA, SANDRA GARY,

MICHELLE GEORGE, RITA GIBSON, GERALD

GOODWIN, VALERIA GOODWIN, KEN GRAY,

LORI GRAY, MARY GRAY, MARILYN GREEN,

WILLA GREEN-SMITH, CLIMMET GRIMES,

ELIZABETH GUIDO, DENISE HAMILTON,

KAITLYN HARBOUR, JOWANNA HARDISON-

WILLIAMS, LARRY HARPER, KEYANA

HARPER, REAHNA HARVILLE, CHRISTANNA

HEMMINGWAY, GERALD HOUSTON, MARY

HOUSTON, GENEVA HUMPHREY, ROLAND

HUMPHRIES, DIANE HUMPHRIES, SENOJ

HUNTER, LANCE JACKSON, DONNA JEMISON,

DEBORAH JENKINS, ROBERT JOHNSON,

EDWARD JOHNSON, ANNETTE JOHNSON,

CLYDE JONES, ESTHER JONES, JANE

KAMINSKI, ANDREW KEISWETTER, BRIDGET

KINARD, THERESA KNOTT, JEFF

KURCZYNSKI, CHERYL LABON, LISA LANE,

MADISON LANE, DESERAI LAWSON,

AUGUSTINE LEWIS, RHONDA LEWIS WILEY,

GENEVA LOCKETT, SHIRLEY LOCKETT,

JERRY LOPEZ, RACHELLE LOYD, FRED

LUCAS, DEVAUGHN LYNCH, GLADYNE

LYNCH, DAWN MARTIN, CARMEN MAURY,

-2-

JUDITH MCCLINCHEY, HARRY MCCLURE,

ALANDA MCLAUGHLIN, BARBARA

MCMULLEN, BRENDA MCNEARY, CARLYN

MILES, JACQUELINE MILLER, GERALDINE

MILTON, ROBERT MOORE, ERIK

MOTSCHALL, ELGIN MURPHY, LASHONNA

MURPHY, ROBERT NEDWICKI, JERRY NEHR,

GREGORY NEWELL, LACHONDA NEWELL,

BERTHA NEWSOME, PATRICIA NOCELLA,

AMY OTTERSEN, GREG PAPASTERGION,

DEWAYNE PARKER, KRYSTAL PARKER,

EARL PARKER, JR., MARY PARKS, EUGUENE

PAYNE, JR., JERRY PEOPLES, BEVERLY

PEOPLES, JEROME PETTIS, SYLVIA

PETTWAY, KAREN POPE, BERNADETTE

RAYFORD, LEE REED-PRATT, CHRISTIE

REEVES, TERRANCE RHODES, MARCIA RICE,

JAMES RICHERT, ROBERTA RILEY JONES,

SHANETTA ROBERTS, JOYCE ROBINSON,

LORETTA RODGERS, RICHARD RYKALA,

FREDERICK RYKALA, LINDA SANDERS,

MARGERY SHAW, KAREN SHAW,

GWENDOLYN SIMMONS, ROBERT SISLER,

THARSI SIVARAJAH, DOROTHY SMITH,

DEBRA SNIPES, ILYA SNYDER, ERIN

SPENCER, GEORGE STANTON, MARQUITTA

STANTON, ROSCOE STEVENSON, KATHLEEN

STEVENSON, TAIRA STEVENSON, DAVID

SUTTNER, TERRY SWAFFORD, LANEIL

SYKES, DEMARCO TAYLOR, KEIP TAYLOR,

LATRICE TAYLOR, ELOREEN THAME-

SMOTHERS, RHONDA THEUS, DEBORAH

THOMAS, DEMETRIUS THOMAS,

COURTLAND TOLBERT, ROXANNE TURNER,

THOMAS VALASTEK, KIERRA WALKER,

JOANNE WARWICK, JERLANDA

WASHINGTON, STEVEN WASKO, DEANNA

WATTS, EUGENE WHITE, CHARLES WHITE,

GERALDINE WHITE-SIDE, RYAN WILDE,

EMERY WILLIAMS, CHARLES WILLIAMS,

JOSEPHINE WILLIAMS, MARY WINDHAM,

KATREENA YATES, KEIARA YOUNGER,

MARY LYNN ZAREMBSKI-COLE, KENNETH

GRAY, LORI TAYLOR GRAY, BRANDY

EDMONDS, WILLIAM FRANKLIN, FLORENCE

JOHNSON FRANKLIN, SHAWN HENDRICKS,

-3-

REGINA STERRETT-HENDRICKS, THERESA

YANCY, LEDTHA WYNN, KIMBERLY BROWN,

ASHLEY FOX, and DEBORAH GIBSON,

Plaintiffs-Appellants,

and

HULYA EROL-GARVETT,

Plaintiff,

v No. 367529

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, JOHN LC No. 21-014161-CZ

DOES 1-10, DETROIT WATER & SEWERAGE

DEPARTMENT, and CITY OF DETROIT,

Defendants-Appellees.

SHANNON ADAMS, GLENN BELCHER,

ARLETTE CALLAWAY, CHARLES CHAPPELL,

CYNTHIA CHAPPELL, KAREN EAGLE,

FLORENCE FRANKLIN, WILLIAM FRANKLIN,

PAULINE GEORDON, WILLIE GEORDON,

FORTUNATA GUTIERREZ, MATHEW

JOHNSTON, MARZETTA JONES, KIYA

KRIVICKAS, KANESHIA SMITH, DORIS

TORRES, NEARLINE WILLIS, JOREL WILSON,

and SHELLARY WILSON,

Plaintiffs-Appellants,

v No. 367530

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, CITY OF LC No. 21-008745-CZ

DETROIT, DETROIT WATER & SEWERAGE

DEPARTMENT, and JOHN DOES 1-10,

Defendants-Appellees.

ANDREA ANDRZEJCZAK, JOEL ARMITAGE,

AMANDA ARMITAGE, ALPHONSO AVILA, JR.,

ROBERT BACHTEAL, LYNDA BACHTEAL,

-4-

GAYLA BATTS, STEPHEN BENARD, JENNIFER

BLANZY, NICOLE CADIEUX, TODD

CAMPBELL, JILL CAMPBELL, HOWARD

CARL, ROBIN CARL, ROBERT CARR, JEFFREY

CHILTON, JOE CHOMA, ROBERT CHOWN, JILL

CHOWN, DAVE CHUDY, JENNIFER CHUDY,

SAMUEL CHURIKAN, TERRANCE CIROCCO,

MARY CIROCCO, CHRIS COTZIAS, CHARLES

CRANE, WILLIAM CRAWFORD, AUBREY

CRAWFORD, JENNIFER CRAWLEY, JOHN

CRISSMAN, MARIA CSERHALMI, STANLEY

DANIELUK, DENNIS DEHN, MICHAEL

DEMPSEY, SUSAN DEMPSEY, MARK

DERMANULIAN, DAWN DERMANULIAN,

CHRIS D’HONDT, NANCY D’HONDT, ELAINE

DUPUE, MICHAEL EISENLOHR, LINDSAY

EISENLOHR, BRAD ETHERIDGE, RICHARD

ETHERIDGE, CYNTHIA ETHERIDGE, MIKE

FANNON, SARA FISCHER, CHAD FISHER,

MARGRET FISHER, CHARLES FISHER,

MICHELLE FISHER, CHARLES A. FISHER,

JAMES FLANNERY, JOSEPH FRANCIS, KELLY

ANN FRANCIS, JEFFERY GRAHAM, SUSAN

GRAHAM, ANTHONY GRIFFIN, SUSAN

GRIFFIN, JAY HACKLEMAN, CAROL

HACKLEMAN, NOAH HALL, TAYLOR

HANSEN, RENEE HANSEN, CHRIS HARRISON,

MICHELLE HARRISON, BOB HEIMBUCH,

CHAD HEPNER, KIMBERLY HEPNER,

BRANDON HESS, CHERYL HESS, JOHN

HESSBURG, T.J. HESSBURG, ERIC HILLIARD,

WILLIAM HORNER, MARK HUGHES, DARIUS

HUMMEL, RUTH HUMMEL, ELIZABETH

HURFORD, ALBERT IAFRATE, SABINE

IAFRATE, EVELYN INEMPOLIDIS, MARSHALL

IRBY, ANN IRBY, ANDREW JARVIS, LECITIA

JONES, TIMOTHY JORDAN, SAMANTHA

JORDAN, KATELYN JURCAK, MARY ELLEN

KAISER, MARY KAROLAK, JAYNE KASUBA,

CAROL KERN, KENNETH KOREJWO,

MICHAEL KOZAK, CHRISTINA KOZAK,

DAVID LANDUYT, HELEN LANDUYT,

PAMELA LEBLANC, RODERIC LORENZO,

LIZANNE G. MACGILLIS, MARTHA

MACKINNON, LAREEN MANLEY, JULIANNE

MARSHALL, MOLLY MCDERMOTT, MARTIN

-5-

D. MCMILLAN, DONNA MCMILLAN, WILLIAM

A. MESTDAGH, ANN METRY, NARAYANA

MEYER, LAURA MEYER, ERIC MITCHELL,

LAURIE MITCHELL, JOE MONTE, AUSTIN

MOORE, JOHN MORAN, KATHRYN MORAN,

DAVID MOSS, BARAKET MOUAWAD, SARAH

MOUWAD, RONNY MUAWAD, JENNIFER

MUNSON, JEFF NYENHUIS, KIM NYENHUIS,

KENNETH NYENHUIS, BEVERLY NYENHUIS,

LAURA S. ORME, PANO PAPALEKAS, HELEN

PAPALEKAS, ALEX PARKER, JOHN PECK,

DORIS PERRY, KOULA PERVANIS, LARRY D.

PETERSON, JEANNE A. PETERSON, CHERYL

PICCONE, STEVEN PICCONE, CHRIS QUINN,

EBONI QUINN, NANCY RADE, TOM RICHTER,

JILL RICHTER, BILL ROCHE, ROBERT

ROGERS, THOMAS RUBENS, KATHLEEN

RUBENS, GERARD SCHILLING, JULIE

SCHILLING, JAMES SCHMIDT, JO MARIE

SHARBA SCHMIDT, PHILIP SHALHOUB,

MICHELLE SHALHOUB, BRIAN SHARP,

SARAH SHARP, GREG SHARROW, MARNE

SHARROW, BASIL SIMON, JOHN SMOLINSKI,

JOSEPH SOLOMON, BLERTA SPIRO, SUSAN

STANLEY, SHERILYN RUSSELL AND MARTIN

STEIGER, Trustees of the STEIGER REVOCABLE

LIVING TRUST, IAN STUDDERS, DEL SZURA,

ROBERT TICKNOR, PATRICE TICKNOR, ELVIS

TORRES, EMMA TORRES, LESLIE TRUDEL,

ARIF ULKU, HEATHER ULKU, JOHN VAN

OSDAL, AMY VAN OSDAL, JEROME

VANSLEMBROUCK, DENISE

VANSLEMBROUCK, JAMES VOGT, GRIFFIN

WAGNER, ELIZABETH WANG, JOHN

WHEELER, SAMANTHA WITTSTOCK, ANN

YEAMANS, TIM YINGER, MICHELE YINGER,

APRIL LEHMAN, JOEL VALDEZ, JAMES

SANDERCOTT, DEBBIE TAYLOR, ROBERT

JENDRUSINA, ELLEN DEVINE, FRANCIS

ORTIZ, CHERYL GATES, and MICHAEL STONE-

RICHARDS,

Plaintiffs-Appellants,

v No. 367531

Wayne Circuit Court

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GREAT LAKES WATER AUTHORITY, JOHN LC No. 21-013480-CZ

DOES 1-10, DETROIT WATER & SEWERAGE

DEPARTMENT, CITY OF DETROIT, and CITY

OF GROSSE POINTE PARK,

Defendants-Appellees.

TIMOTHY BRADY, MICHELLE BRADY, JEFF

AUSTIN, PAMELA BUTLER, JOHN CARTER,

NORMA CERVOLO, ERIN COLPAERT,

WILLIAM CONWAY, CHRIS COTZIAS, BRIAN

CRANE, CAREY CRANE, HARRY CRANE,

JENNIFER CRANE, JOHN DOERER, DAVID

FOY, THOMAS GIANCARLO, KATHLEEN

GIANCARLO, MARYBETH HALL, ERIK

HARMS, NICOLE HARMS, MATTHEW

HINDELANG, DAVID HUME, KATHRYN

HUME, TODD IFKOVITZ, KRISTEN IFKOVITZ,

DAN MAIDLOW, LARRY MANN, META

MARTINEZ, JAMES MATTHEWS, JULIE

MATTHEWS, JOHN PAPAS, LISA PAPAS,

CHARLES PARRENT, JOHN PECK, PATRICIA

REED, GIB RIST, BRIDGETTE RIST,

CHRISTOPHER SHEEREN, JULIE SHEEREN,

JAMES STOLAKIS, LARRY STONE, ROBERT

THIEL, PETER TORRICE, ANGELENA

TORRICE, DOUG TURNBULL, JANINE

TURNBULL, SARAH URBANI, WESLEY

VANDERBRINK, MARINA VANDERBRINK,

WALTER WALKER, KAREN WALKER, JOHN

WHEELER, DAVID WILSON, and SUSAN

WILSON,

Plaintiffs-Appellants,

v No. 367532

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, JOHN LC No. 21-013987-CZ

DOES 1-10, DETROIT WATER & SEWERAGE

DEPARTMENT, CITY OF DETROIT, and CITY

OF GROSSE POINTE,

Defendants-Appellees.

-7-

THOMAS BEARSE, SALLIE BEARSE,

ELIZABETH BOJALAD, MEGAN BROWN,

ROBBIE CRANDALL, JR., WILLIAM

EDWARDS, REBECCA EDWARDS,

JACQUELINE GABBANA-JAN, KENNETH

GEHLERT, SHANTERILL GRIFFIN-MCMILLAN,

KELLY KLEINER, PERRY KNIGHT, TOM

LAYMAN, DENISE MATTHEWS, DAVID

MAXWELL, ESTHER MAXWELL, COURTNEY

MCRILL, HELENA PEREZ, DANIELLE RYAN,

SUSAN SALHANEY, NABIL SHURAFA,

STEVEN SILVA, DAVID TESTA, JIM VICTOR,

and MARTHA VICTOR,

Plaintiffs-Appellants,

v No. 367534

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, DETROIT LC No. 21-013979-CZ

WATER & SEWERAGE, CITY OF DETROIT,

CITY OF GROSSE POINTE FARMS, and JOHN

DOES 1-10,

Defendants-Appellees.

DOUGLAS BULKA, AMANDA BE, KHENG BE,

JAMES BELLAMY, MELISSA BELLAMY,

HAYLEY BONAFEDE, MARCOS BONAFEDE,

LAURA BULKA, MARCY CHANTEAUX, ARON

ELLIS, KRISTY ELLIS, JESSE FORD, MEGAN

FORD, ERIC FRAKES, KAREN FRAKES,

BETTYE P. MOORE, ROBERT S. MOORE,

BARBARA PARKER, and KELLY VERGAUWEN,

Plaintiffs-Appellants,

v No. 367535

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, CITY OF LC No. 21-008465-CZ

DETROIT, DETROIT WATER & SEWERAGE

DEPARTMENT, CITY OF GROSSE POINTE

PARK, and JOHN DOES 1-10,

Defendants-Appellees.

-8-

MARLETTE LANELL, LINDA ASMUS, ROBERT

ASMUS, ALICE BLACKMORE, ANNA BOUMA,

KATIE CARETTI, DAVID CHUDY, JENNIFER

CHUDY, BRADLEY ETHERIDGE, JOAN

FERRARA, RACHELE KELLER, PETER

LACOMBE, BRIAN MCKENNA, DEREK

MULLER, BRIDGET O’SHEA, JOHN O’SHEA,

ALICE ODDO, WILLIAM ODDO, HOLLY RYAN,

SHAWN RYAN, CHARLES SMITH, KATHLEEN

STARR, ANDREW TRIPLETT, DANIEL

WEBSTER, and DANIEL WILK,

Plaintiffs-Appellants,

v No. 367536

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, CITY OF LC No. 21-009030-CZ

DETROIT, DETROIT WATER & SEWERAGE

DEPARTMENT, CITY OF GROSSE POINTE

PARK, and JOHN DOES 1-10,

Defendants-Appellees.

CHAS VERHEYDEN, INC., ALTELIER INC.,

doing business as CHEZ LOULOU, ALTER

DEVELOPMENT, LLC, HALEY BONAFEDE,

MARCOS BONAFEDE, BRIAN EVANS

TRANSMISSION, INC., JENNIFER CRAWLEY,

THOMAS DOW, BRANDY EDMONDS, JESSE

FORD, MEGAN FORD, KENNETH GRAY, JOHN

HAEDRICH, SARA HOEFLER, KENNETH

KOREJWO, MARYLAND INVESTMENT

GROUP, MB SALON, LLC, WILLIAM

MESTDAGH, LAURA MEYER, NARAYANA

MEYER, MR. ME APPLIANCE, ROBERT

NEDWICKI, OPEN DOORS PROPERTY

MANAGEMENT, AMY OTTERSON, JOHN

PECK, PRESENT TENSE HOLDINGS, LLC,

ROBERTA RILEY-JONES, RMB PROPERTY,

LLC, JOYCE ROBINSON, JEREMY SINGER,

THARSI SIVARAJAH, SPROUT HOUSE

NATURAL MARKET, MICHAEL STONE-

RICHARDS, JENNIFER SWANSON, LORI

TAYLOR-GRAY, TIERRA ESTE LLC, TRENTON

-9-

PROPERTIES, LLC, TRIPLE J APARTMENTS,

LLC, ARIF ULKA, HEATHER ULKA, JOHN

WHEELER, CHARLES WHITE, RYAN WILDE,

MICHELE YINGER, and TIM YINGER,

Plaintiffs-Appellants,

v No. 367538

Wayne Circuit Court

GREAT LAKES WATER AUTHORITY, CITY OF LC No. 22-003449-CZ

DETROIT, DETROIT WATER & SEWERAGE

DEPARTMENT, CITY OF GROSSE POINTE,

CITY OF GROSSE POINTE PARK, and JOHN

DOES 1-10,

Defendants-Appellees.

Before: GADOLA, C.J., and RICK and MARIANI, JJ.

PER CURIAM.

These consolidated appeals involve suits to recover damages arising from sewer backups

that happened during a severe rain event in the Metro Detroit area in June 2021. Plaintiffs are

homeowners and businesses whose properties had untreated wastewater flood into their basements

during the rain event. Plaintiffs claim that defendant, Great Lakes Water Authority (GLWA),

which operated the regional sewerage system, was largely responsible for the sewer backups.

Plaintiffs also allege that the various municipalities and municipal departments that owned or

operated local sewerage infrastructure connected to GLWA’s infrastructure, or which had

agreements with GLWA, were jointly responsible for the backups. These include defendants, the

cities of Detroit, Grosse Pointe Park, Grosse Pointe, Grosse Pointe Farms, Grosse Pointe Woods,

Grosse Pointe Shores, Harper Woods, the Detroit Water & Sewerage Department (DWSD) and

the Southeast Macomb Sanitary District (SMSD). Finally, plaintiffs in several of the lower court

cases sued a group of GLWA employees—identified as John Does 1 through 10—for negligently

responding to the rain event on behalf of GLWA.

In Docket No. 365363, plaintiffs, who were represented by Dubin Law, PLLC, in the lower

court (collectively, the Dubin plaintiffs), appeal by right the trial court’s order dismissing their

claims against GLWA, Detroit, Grosse Pointe Park, Grosse Pointe, Grosse Pointe Farms, Grosse

Pointe Woods, Grosse Pointe Shores, Harper Woods, and SMSD for damages permitted under the

act allowing recovery for sewage disposal system events. See MCL 691.1416 to MCL 691.1419.

For the reasons discussed below, we affirm in part the trial court’s decision to dismiss the Dubin

plaintiffs’ claims against the City of Detroit, but otherwise reverse the trial court’s decision to

dismiss the Dubin plaintiffs’ claims against all remaining defendants.

In Docket Nos. 367529, 367530, 367531, 367532, 367534, 367535, 367536, and 367538,

plaintiffs, who were represented by Johnson Law, PLC, in the lower court (collectively, the

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Johnson plaintiffs), appeal by delayed leave granted1 the trial court’s order dismissing all of their

claims against GLWA, Detroit, DWSD, John Does 1 through 10, Grosse Pointe, Grosse Pointe

Park, and Grosse Pointe Farms, after defendants successfully moved for summary disposition. We

affirm the trial court’s decision to dismiss the Johnson plaintiffs’ inverse-condemnation claims

against defendants, and to dismiss the claims under MCL 691.1417(3) against Detroit, DWSD,

Grosse Pointe, and Grosse Pointe Park. We reverse the court’s decision to dismiss the claims

against John Does 1 through 10, and the decision to dismiss the claims under MCL 691.1417(3)

against GLWA and Grosse Pointe Farms.

I. FACTUAL BACKGROUND

The city of Detroit operates DWSD. Detroit once operated its sewer system as a regional

sewer system that served wholesale customers—such as nearby municipalities—in addition to its

own retail customers. Local sewers collected wastewater from Detroit’s streets and retail

customers, which was then conveyed to a regional interceptor or trunk sewer. Wholesale

customers also sent wastewater to these regional interceptors or trunk sewers. The wastewater was

then conveyed to treatment facilities before eventual discharge. As of January 1, 2016, GLWA

leased Detroit’s regional sewerage infrastructure for a 40-year period. GLWA thereafter assumed

the obligation to maintain and manage the regional sewer system.

The regional sewer system, now operated by GLWA, is a combined stormwater and sewer

system that conveys both sewage and stormwater in the same sewers. Michigan generally requires

a combined system to have the ability to handle a 10-year, 1-hour storm. According to the

Michigan Combined Sewer Overflow Control Manual,2 first promulgated in 1994, the state

recommended that systems be able to handle more than that, although the state did not require a

system to be able to handle more than a 25-year, 24-hour storm under any circumstances. The

trunk sewers that Detroit leased to GLWA were designed to convey the flow for a 10-year, 1-hour

storm. A 1-year, 1-hour storm, for example, involves 0.8 to 1.2 inches of precipitation in one hour.

GLWA’s regional sewer system primarily relies on gravity to convey the wastewater. In

some locations, however, gravity is not sufficient and the system uses pumping stations to maintain

flow. To that end, Detroit constructed and owned the Conner Creek and Freud Pumping Stations,

which were leased to GLWA as part of the regional system. The Conner Creek and Freud Pumping

Stations serve Detroit’s east side. They also indirectly serve Grosse Pointe Park, Grosse Pointe,

and Grosse Pointe Farms. During storms, both pumping stations use pumps to convey sewage-

stormwater mixtures to the Conner Creek Combined Sewer Overflow (CSO), where it is then

treated and discharged. If problems at the pumping stations lead to a decrease in pumping capacity,

then the volume of wastewater reaching the Connor Creek CSO may cause backups. If that

1

Achtabowski v Great Lakes Water Authority, unpublished order of the Court of Appeals, entered

December 19, 2023 (Docket No. 367529).

2

State of Michigan, Combined Sewer Overflow Control Program Manual

<https://www.michigan.gov/-/media/Project/Websites/egle/Documents/Programs/WRD/CSO-

SSO/control-program-manual.pdf?rev=7bae5049694248829505eea3508fd343> (accessed

September 23, 2025).

-11-

happens, overflow gates in an area called the Fox Creek Structure normally open and discharge

water into Fox Creek. If that continues to be insufficient to relieve the pressure, other upstream

regional sewers might then back up, which in turn could cause local sewers to back up. If local

sewers that are tributary to these regional sewers are unable to discharge into the regional trunk

sewer, then private properties’ basements may flood.

The Conner Creek Pumping Station has four sanitary pumps and eight storm pumps. The

Freud Pumping Station has eight storm pumps. The purpose of these pumps is to prevent sewage

from backing up into homes and businesses during a rain event. As of 2016, GLWA rated all eight

pumps from the Freud Pumping Station as poor. Part of the problem with the pumping stations

was that a certain elevation of water was needed to prime the pumps and the water level had

dropped. During heavy rains, residents need all 16 storm pumps to operate properly.

A significant rainstorm pummeled the Metro Detroit area on June 25 and 26, 2021. In

some areas, it produced more than 8 inches of rain in a 24-hour period. The rainfall amounted to

a 1,000-year storm for some areas. During that rain event, hundreds of private property owners

experienced wastewater backups into their basements.

The Dubin and Johnson plaintiffs sued the various defendants to recover for the damages

that they suffered caused by these backups. In October 2021, the Dubin plaintiffs asserted a single

class action under MCL 691.1416 arising from the sewer backups. In April 2022, the trial court

consolidated the cases for purposes of the litigation. GLWA and Detroit, which also acted on

behalf of DWSD, each moved for summary disposition of the claims made by the Dubin and

Johnson plaintiffs. The other defendants concurred with those motions, and the trial court held a

combined hearing on the motions in August 2022. In March 2023, the court entered an opinion

and order dismissing the Dubin plaintiffs’ claims. In a separate opinion and order, the court

dismissed all of the remaining claims involving the Johnson plaintiffs.

As earlier noted, the Dubin plaintiffs appealed by right the opinion and order dismissing

their claims in Docket No. 365363. The Johnson plaintiffs appealed by leave granted the trial

court’s opinion and order dismissing their claims in each of the eight cases involving them in

Docket Nos. 367529, 367530, 367531, 367532, 367534, 367535, 367536, and 367538. This Court

consolidated all the appeals for the efficient administration of the appellate process.3

II. DUBIN PLAINTIFFS’ APPEAL IN DOCKET NO. 365363

A. CLASS CERTIFICATION

The Dubin plaintiffs first argue that the trial court erred when it determined that they failed

to timely move for class certification. We agree.

3

Dubrulle v Great Lakes Water Authority, unpublished order of the Court of Appeals, entered

June 20, 2024 (Docket Nos. 365363, 367529, 367530, 367531, 367532, 367534, 367535, 367536,

and 367538).

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“The analysis a court must undertake regarding class certification may involve making both

factual findings and discretionary decisions.” Mich Ass’n of Chiropractors v Blue Cross Blue

Shield of Mich, 300 Mich App 551, 559; 834 NW2d 148 (2013). Consequently, we review the

lower court’s factual findings for clear error and its discretionary decisions for an abuse of that

discretion. Id. “An abuse of discretion occurs when the trial court’s decision falls outside the

range of principled outcomes.” Duncan v Michigan, 300 Mich App 176, 185; 832 NW2d 761

(2013). This Court reviews de novo whether the trial court properly interpreted and applied the

relevant court rules. See Brecht v Hendry, 297 Mich App 732, 736; 825 NW2d 110 (2012).

After the trial court granted a motion to amend their complaint, the Dubin plaintiffs filed a

second amended complaint on March 1, 2022. The Dubin plaintiffs alleged in the amended

complaint that they were bringing the action on their own behalf, as well as on behalf of all

“similarly situated persons or entities that filed a Notice of Claim relating to a Sewage System

Disposal Event that occurred on June 25-26, 2021 in the cities of Detroit, Grosse Pointe, Grosse

Pointe Park, Grosse Pointe Woods, Grosse Pointe Farms, Grosse Pointe Shores, and Harper

Woods.” The Dubin plaintiffs further alleged the other elements necessary to establish a class. In

its opinion and order dismissing the Dubin plaintiffs’ claims, the trial court indicated that it

reviewed the register of actions and noted that the Dubin plaintiffs had not moved for class

certification. The court thus determined that they waived their class action.

Plaintiffs “must move for certification” of a class action within “91 days after the filing of

a complaint that includes class action allegations.” MCR 3.501(B)(1)(a). If a plaintiff fails to do

so, the defendant may file a notice of that failure in the trial court. “On the filing of such a notice,

the class allegations are deemed stricken, and the action continues by or against the named parties

alone.” MCR 3.501(B)(2). The trial court has the authority to reinstate the allegations if the failure

was “due to excusable neglect.” MCR 3.501(B)(2).

Our review of the record indicates that the Dubin plaintiffs’ second amended complaint

plainly contained class allegations. As such, they had to move to certify the class within 91 days

of the date that they filed the second amended complaint. They did not. Within that 91-day period,

however, the trial court entered a stipulated order to rectify all the competing scheduling orders

entered in the various consolidated cases. In that order, the parties stipulated that the

deadlines for the filing of any motions for class certification pursuant to MCR 3.501

in the consolidated cases are adjourned until such time that a new scheduling order

for the consolidated cases will be entered either by stipulation of the parties or

following a hearing on a currently pending motion for entry of a case management

order.[4]

4

Grosse Pointe Farms and Harper Woods argue that the trial court never entered this order. They

attempt to support that contention by noting that the copy of the order submitted on appeal was not

signed and by stating that the register of actions does not contain an entry for the order. The trial

court did not manually sign the order that appears in the lower court record, but it nevertheless has

the notation “/s/ Annette J. Berry 4/28/2022.” The register of actions for this matter likewise shows

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The trial court never entered a new case management order. Instead, it proceeded to consider the

motions for summary disposition.

The court rules specifically allow the parties to stipulate to the extension of the class-

certification deadline. See MCR 3.501(B)(1)(b). As such, the trial court’s stipulated order

effectively suspended the deadline for moving for class certification. Additionally, there is no

indication that any defendant filed a notice of failure in relation to the second amended complaint,

which would trigger the striking of the class allegations under MCR 3.501(B)(2). Moreover, the

Dubin plaintiffs’ reliance on that stipulated order would constitute—at the very least—excusable

neglect, which would in turn warrant reinstating the allegations even if stricken. See

MCR 3.501(B)(2). For these reasons, the trial court erred as a matter of law when it determined

that the Dubin plaintiffs waived their right to seek class certification. See Brecht, 297 Mich App

at 736. Consequently, the Dubin plaintiffs must be allowed to move for class certification on

remand.

B. MOTIONS BY CONCURRENCE

The Dubin plaintiffs next argue that the trial court erred when it allowed some defendants

to move for summary disposition by concurring in GLWA’s motion for summary disposition.5 We

disagree.

GLWA moved for summary disposition under MCR 2.116(C)(7). Detroit also separately

moved for summary disposition of the Dubin plaintiffs’ claims. The other defendants filed

concurrences, either to GLWA’s first or second motion. On appeal, the Dubin plaintiffs argue that

the trial court erred to the extent that it addressed whether Grosse Pointe, Grosse Pointe Park,

Grosse Pointe Farms, Grosse Pointe Woods, Grosse Pointe Shores, Harper Woods, and the SMSD

were entitled to immunity because those entities did not properly raise the defense of governmental

immunity in their own motions for summary disposition. More specifically, the Dubin plaintiffs

suggest that the aforementioned defendants had to file separate motions for summary disposition

and could not simply concur in GLWA’s motion.

There is no court rule that prevents a party from moving for summary disposition by

adopting a ground for summary disposition asserted by a different party. The sole question is

whether the concurrence at issue in this case was sufficiently clear to put plaintiffs on notice of the

need to respond, and whether plaintiffs had a meaningful opportunity to respond. See Al-Maliki v

LaGrant, 286 Mich App 483, 488-489; 781 NW2d 853 (2009); Barnard Mfg Co, Inc v Gates

Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). GLWA moved

for summary disposition on the ground that the Dubin plaintiffs could not establish causation

an entry on April 28, 2022 stating “Case Removed from Case Evaluation, Signed and Filed.” The

record thus shows that the trial court signed and entered this order.

5

The Dubin plaintiffs’ argument implicates whether the concurring defendants met the minimum

requirements for a motion for summary disposition as well. To the extent that this claim of error

can be understood as a challenge to the merits of the motions by the concurring entities, we address

the merits in the analysis of the following claims of error.

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because its sewer system was only designed to handle a 10-year, 1-hour storm, not a 1,000-year

storm like the one that hit Metro Detroit in June 2021. The concurrences by Grosse Pointe Farms,

Grosse Pointe Shores, Harper Woods, and SMSD indicated that these defendants were asserting

the same argument as GLWA. Accordingly, they were sufficient to place the Dubin plaintiffs on

notice of the need to establish causation as to those defendants on the same basis.

Grosse Pointe, Grosse Pointe Park, and Grosse Pointe Woods also concurred in GLWA’s

motion. They additionally clarified their belief that the Dubin plaintiffs had not identified a defect

in their specific systems beyond arguing that the systems should have been designed to handle

more wastewater than that produced by a 10-year, 1-hour storm. They asserted that such

speculation did not amount to an actual defect. This concurrence was also sufficient to place the

Dubin plaintiffs on notice of the need to respond to the claim that the Dubin plaintiffs could not

establish causation and had not adequately identified a defect in the systems specifically

maintained by Grosse Pointe, Grosse Pointe Park, and Grosse Pointe Woods.

At a hearing on the motions, counsel for Grosse Pointe, Grosse Pointe Park, and Grosse

Pointe Woods restated the argument that a lack of capacity was not a defect within the meaning of

the exception to immunity stated under MCL 691.1417(3). The lawyers for Harper Woods, Grosse

Pointe Farms, Grosse Pointe Shores, and SMSD orally adopted those arguments.

The concurrences by Grosse Pointe, Grosse Pointe Park, Grosse, Pointe Woods, Grosse

Pointe Farms, Grosse Pointe Shores, Harper Woods, and SMSD were sufficient to place the Dubin

plaintiffs on notice of the need to respond to GLWA’s arguments on causation, as those arguments

might apply to the concurring entities. The Dubin plaintiffs were also on notice of the need to

respond to the argument by Grosse Pointe, Grosse Pointe Park, and Grosse Pointe Woods, which

was adopted by the other concurring entities at the hearing: that a lack of capacity to handle a

1,000-year storm was not by itself a defect that could meet the requirements of

MCL 691.1417(3)(b). The Dubin plaintiffs were, therefore, on notice of the need to identify a

specific defect in the concurring entities’ systems that would support their claims.

By concurring in GLWA’s motion, the concurring parties limited their motion to the

arguments and evidence asserted by GLWA except as augmented in their concurrences. For that

reason, if there were a fatal deficiency in GLWA’s motion, that deficiency would apply equally to

their concurrences. Additionally, if GLWA’s evidence and arguments applied only to its own

system, that too might be fatal to the concurring defendants’ motions. Nevertheless, whether the

limitations in GLWA’s brief in support of its motion would warrant denying the motions by

concurrence is a separate matter. The trial court ultimately did not err to the extent that it

considered the motions for summary disposition made by concurrence.

C. GLWA’S MOTION FOR SUMMARY DISPOSITION

The Dubin plaintiffs next argue that the trial court erred when it dismissed their claims

under MCL 791.1417(3) against GLWA and the defendants who concurred in GLWA’s motion

(Grosse Pointe, Grosse Pointe Park, Grosse Pointe Farms, Grosse Pointe Woods, Grosse Pointe

Shores, Harper Woods, and the SMSD) on the ground that they could not establish that a defect in

the sewer systems proximately caused the backups at issue. We find that summary disposition in

this matter was premature.

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This Court reviews de novo a trial court’s decision on a motion for summary disposition,

Barnard Mfg, 285 Mich App at 369, and whether the trial court properly applied the law of

governmental immunity, Champine v Dep’t of Transp, 509 Mich 447, 452; 983 NW2d 741 (2022).

GLWA moved for summary disposition under MCR 2.116(C)(7) (governmental immunity) and

(C)(10) (no genuine issue of material fact). “In determining whether summary disposition under

MCR 2.116(C)(7) is appropriate, a 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.” Garrett v Washington, 314 Mich App 436, 441; 886

NW2d 762 (2016) (quotation marks and citation omitted). When reviewing a challenge to the

adequacy of the pleadings under MCR 2.116(C)(7), this Court must accept all well-pleaded factual

allegations as true and construe them in favor of the plaintiff. Dextrom v Wexford Co, 287 Mich

App 406, 428; 789 NW2d 211 (2010). To the extent that defendants relied on evidence in their

motions under MCR 2.116(C)(7), the motions had to be reviewed in the same way that a motion

under MCR 2.116(C)(10) would be reviewed. See Kincaid v Cardwell, 300 Mich App 513, 537 n

6; 834 NW2d 122 (2013). “If there is no factual dispute, the determination whether a plaintiff’s

claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law.” Allen Park

Retirees Ass’n, Inc v Allen Park, 329 Mich App 430, 444; 942 NW2d 618 (2019).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the claim. Maiden v

Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The trial court must consider all evidence

submitted by the parties in the light most favorable to the nonmoving party. Id. The court may

only grant a motion under MCR 2.116(C)(10) when the evidence shows that there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. See Lowrey

v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016). “A genuine issue of material fact

exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open

an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177,

183; 665 NW2d 468 (2003).

1. THE GOVERNMENTAL TORT LIABILITY ACT

Under the governmental tort liability act (GTLA), MCL 691.1401 et seq., “a governmental

agency is immune from tort liability if the governmental agency is engaged in the exercise or

discharge of a governmental function.” MCL 691.1407(1). The Legislature has defined a

“governmental agency” to include the state of Michigan and its political subdivisions.

MCL 691.1401(a). Political subdivisions include a “municipal corporation,” “a county,” or “a

district or authority authorized by law or formed by 1 or more political subdivisions; or an agency,

department, court, board, or council of a political subdivision.” MCL 691.1401(e). Defendants

are political subdivisions within the meaning of MCL 691.1401(e). As such, they have immunity

from tort liability unless an exception to that immunity applies.

Within the GTLA, the Legislature specifically abrogated the common law previously

applicable to an overflow or backup of a governmental agency’s sewer system and provided a

limited exception to tort immunity:

A governmental agency is immune from tort liability for the overflow or

backup of a sewage disposal system unless the overflow or backup is a sewage

disposal system event and the governmental agency is an appropriate governmental

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agency. [MCL 691.16 to MCL 691.19] abrogate common law exceptions, if any,

to immunity for the overflow or backup of a sewage disposal system and provide

the sole remedy for obtaining any form of relief for damages or physical injuries

caused by a sewage disposal system event regardless of the legal theory.

[MCL 691.1417(2).]

Thus, a political subdivision can still be liable in tort for an overflow or backup of sewage in their

systems if the overflow or backup amounts to a “sewage disposal system event” and the political

subdivision meets the definition of an “appropriate governmental agency.”

The Legislature also provided that a claimant who “believes that an event caused property

damage or physical injury . . . may seek compensation for the property damage or physical injury

from a governmental agency” if they can establish the following five elements:

(a) The governmental agency was an appropriate governmental agency.

(b) The sewage disposal system had a defect.

(c) The governmental agency knew, or in the exercise of reasonable

diligence should have known, about the defect.

(d) The governmental agency, having the legal authority to do so, failed to

take reasonable steps in a reasonable amount of time to repair, correct, or remedy

the defect.

(e) The defect was a substantial proximate cause of the event and the

property damage or physical injury. [MCL 691.1417(3).]

Accordingly, to avoid the immunity afforded to political subdivisions involving the overflow or

backup of a sewer system, the Dubin plaintiffs had to plead and prove each of the five elements

stated under MCL 691.1417(3). Relatedly, MCL 691.1416(e) defines a “defect” as “a

construction, design, maintenance, operation, or repair defect.” We note that the definition of a

“defect” under this subsection contains the word “defect,” which has previously been defined by

this Court as “ ‘a fault or shortcoming; imperfection.’ ” Willett v Waterford Twp, 271 Mich App

38, 51; 718 NW2d 386 (2006), quoting Random House Webster’s College Dictionary (1997).

2. THE DUBIN PLAINTIFFS’ COMPLAINT

In their complaint, the Dubin plaintiffs alleged that GLWA operated a regional system with

serious defects, particularly at the Freud and Conner Creek pumping stations. The Dubin plaintiffs

alleged that the defects in those pumping stations were well documented and that the stations had

experienced pump failures in the past. They stated that none of the problems with the pumping

stations had been rectified and that the pumping stations had only half their pumps operating during

the storm. They asserted that the pump failures caused the surcharging into the Dubin plaintiffs’

basements.

As for defendants who operated local sewer systems, the Dubin plaintiffs alleged generally

that those systems were aging and that there was a “risk of deterioration,” which could cause

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unexpected sewer backups. The Dubin plaintiffs also alleged that the local system entities had

inadequate maintenance regimens in place, which reduced the system’s overall capacity. The

Dubin plaintiffs further alleged that the entities that operated these local sewers knew or should

have known about the reduction in capacity. They alleged that the defects in the sewer systems

led to surcharging into the lateral sewer line attached to the Dubin plaintiffs’ properties, resulting

in backups and damage to plaintiffs’ basements.

The Dubin plaintiffs specifically alleged that Detroit’s local system allowed more water to

enter the system than it was designed to convey. They stated that Detroit should have designed

the system to convey all the water captured by inlets and that Detroit should have had a CSO that

could capture excess water. The Dubin plaintiffs concluded that these defects also caused

surcharging in Detroit’s local system, which led to sewer backups.

Turning to SMSD, the Dubin plaintiffs alleged that SMSD allowed excess water into its

system, which exceeded its pumping capacity. They maintained that SMSD should have regulated

the inflows or installed relief sewers to handle the excess flow. They further alleged that SMSD

tried to discharge its own flow into GLWA’s Fox Creek Enclosure when that enclosure had already

been overwhelmed, which led to surcharging in SMSD’s system.

The Dubin plaintiffs additionally alleged that Grosse Pointe, Grosse Pointe Farms, Grosse

Pointe Park, Grosse Pointe Shores, and Grosse Pointe Woods collected more water than the system

could handle and conveyed wastewater into GLWA’s system when that system was already

overwhelmed, which led to backups. They also alleged that these systems should have had a CSO

to handle excess water and should have had regulators to prevent excess water from entering the

system.

3. CAUSATION

In its second motion for summary disposition, GLWA argued that it was entitled to

summary disposition under MCR 2.116(C)(7) because the Dubin plaintiffs could not establish that

GLWA was the cause in fact or the proximate cause of any sewer disposal system event. Instead,

GLWA maintained that the record-setting rainfall was both the cause in fact and proximate cause

of the backups. GLWA presented evidence that a 10-year, 1-hour rain event for the Detroit area

was from 1.39 to 2.05 inches of rain, whereas a 1000-year, 1-hour rain event would be 2.45 to

4.99 inches of rain. GLWA relied on rainfall data to establish that the Metro Detroit area

experienced record-breaking rainfall amounts. GLWA explained:

On the night of Jun25, 2021, and continuing into the morning of June 26,

2021, a storm of record intensity and duration struck Southeast Michigan. Over six

inches of rain fell on most of the Detroit area, and as much as 8.9 inches of rain

were recorded in some areas. In Grosse Pointe Park, 7.33 inches poured down in

just the 5-hour period from 10:50 PM on the 25th to 4:00 AM on the 26th.

The rain came in three waves. The first two bursts delivered about one inch

of rain across a wide geographic area. After the second wave, the regional

collection and treatment systems were nearing their capacity. Then came the third

wave, which delivered approximately six inches of rain in most areas. During and

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following the third burst, the collection system was overloaded, most level sensors

were maxed out and water was flooding to the ground surface levels. Treatment

facilities were functioning at or near their maximum capacities and outfalls were

discharging untreated flow to both the Detroit and Rouge Rivers.

GLWA also submitted a report by meteorologist Paul H. Gross, who stated that the rainfall

for one hour in Grosse Pointe, Grosse Pointe Park, and Grosse Pointe Woods amounted to a 200-

to 500-year event. When calculated over more than one hour, the rain event was a 1000-year

event. GLWA also presented evidence that it was reasonable to design a system to handle storm

water generated only by a 10-year, 1-hour rain event. Thus, GLWA maintained that even if the

system was running perfectly, it was not designed to handle the level of water that occurred on the

night at issue. For that reason, it asked the trial court to grant its motion for summary disposition.6

On appeal, the Dubin plaintiffs argue that the trial court misapplied the law when it

determined that they could not establish that any defects in defendants’ sewer systems amounted

to a substantial proximate cause of their damages. The trial court recognized that GLWA

challenged the Dubin plaintiffs’ ability to establish proximate cause and agreed with GLWA’s

argument. The court stated that “because the June 25-26, 2021 rainfall volume exceeded the

system capacity and made flooding inevitable, the other issues cannot satisfy the ‘substantial

proximate cause’ prong.”7

Generally, in order to establish a tort claim, the plaintiff must prove that the defendant’s

acts or omissions proximately caused the plaintiff’s injuries. See Skinner v Square D Co, 445

Mich 153, 162; 516 NW2d 475 (1994). Causation encompasses two separate elements: cause in

fact and legal cause. Id. at 162-163. A plaintiff can show cause in fact by presenting evidence

that, but for the act or omission, the plaintiff’s injury would not have occurred. Legal cause, also

known as proximate cause, addresses whether the defendant should be held liable for his or her

actions or omissions that were the cause in fact of the plaintiff’s injuries. It usually involves

examining the foreseeability of consequences. A plaintiff must be able to prove cause in fact

before proximate cause becomes a relevant inquiry. Id. at 163.

The term “proximate cause” is a legal term of art. See Craig v Oakwood Hosp, 471 Mich

67, 86; 684 NW2d 296 (2004). When considering proximate causes, it is error to conflate factual

cause with proximate cause. See Ray v Swager, 501 Mich 52, 74; 903 NW2d 366 (2017). As our

Supreme Court has explained,

“the proximate cause” is not determined by weighing factual causes. Such an

approach distorts the meaning of “the proximate cause” by severing it from the

concept of legal causation . . . . Although some of our earlier decisions refer to

factual causation in connection with proximate cause, these cases merely reflect the

6

As already noted, defendants other than Detroit concurred in GLWA’s motion for summary

disposition.

7

The trial court apparently concluded that the Dubin plaintiffs could not establish that element for

each defendant, even though Detroit did not present an argument on proximate cause in its brief.

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unremarkable proposition that an actor cannot be a “proximate cause” without also

being a “but-for cause.” They do not contradict the well-established understanding

of proximate cause, which, as we have long recognized, involves the foreseeability

of the consequences of the conduct of human actors, regardless of whether “a

proximate cause” or “the proximate cause” is at issue. [Id. at 66.]

Under the GTLA, a governmental agency is only liable for a sewage disposal system

“event” if the system had a “defect” and the “defect was a substantial proximate cause of the event

and the property damage or physical injury.” MCL 691.1417(3)(e). An event is the “overflow or

backup of a sewage disposal system onto real property.” MCL 691.1416(k). The Legislature

defines substantial proximate cause as “a proximate cause that was 50% or more of the cause of

the event and the property damage or physical injury.” MCL 691.1416(l).

As earlier noted, GLWA contended that the record-breaking rain event was both the cause

in fact and the proximate cause of the sewer backups at issue. GLWA presented evidence that its

system was reasonably designed to handle rain amounting to a 10-year, 1-hour event. It further

presented evidence that the area it serviced experienced a rain event that vastly exceeded its

system’s capacity, which caused surcharging without regard to whether its system was operating

at its designed capacity. At most, GLWA’s motion and evidence demonstrated that its system was

overwhelmed by the rain, which directly led to surcharging and backups into the basements of

properties serviced by that system. By showing that its system could not have conveyed away

rainfall of the magnitude that fell that night under any circumstances, GLWA squarely placed at

issue the Dubin plaintiffs’ ability to prove cause in fact—that, but for defects in the system, the

Dubin plaintiffs’ basements would not have suffered backups.

On that point, the Dubin plaintiffs argue that the trial court’s grant of summary disposition

was premature because discovery was not yet complete when the motion was filed. The Dubin

plaintiffs assert that further discovery could lend support to their argument. Summary disposition

is generally inappropriate before discovery on a disputed issue is complete. See Oliver v Smith,

269 Mich App 560, 567; 715 NW2d 314 (2006). Summary disposition is only proper prior to the

close of discovery if further discovery does not stand a reasonable chance of uncovering factual

support for the opposing party’s position. Id.

We agree that the Dubin plaintiffs did not have an adequate opportunity to conduct

discovery on the issue of causation. Defendants objected to discovery requests, arguing that,

because they had moved for summary disposition on the basis of governmental immunity, it was

inappropriate to participate in discovery until after the trial court’s decision on the motions. But

our reading of the record indicates that further discovery might reveal the extent to which particular

defects may have contributed to the surcharging that caused backups on the night in question. It

was not sufficient for defendants and the trial court to merely announce that the backups were

inevitable. With additional discovery, the Dubin plaintiffs could potentially show that, but for the

defects, one or more of their properties would not have suffered the backups they did even with

the excessive rainfall. Moreover, the evidence might show that a particular governmental entity’s

defect was a substantial proximate cause of the damage. It was improper for the trial court to grant

summary disposition without first allowing the Dubin plaintiffs a reasonable opportunity to

conduct discovery. Accordingly, we reverse the trial court’s decision to dismiss the Dubin

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plaintiffs’ claims on the ground that the Dubin plaintiffs could not establish a question of fact on

the issue of causation.

4. ALTERNATIVE ARGUMENTS BY GROSSE POINTE SHORES

On appeal, Grosse Pointe Shores argues that the Dubin plaintiffs had to investigate their

claims and collect evidence to prove them even before filing their complaint.8 We disagree.

In support of its argument, Grosse Pointe Shores relies in part on MCR 1.109(E)(5)(b).

The rule indicates that if a person signs a document submitted to the trial court, their signature

constitutes certification that the signer has confirmed that the document is well grounded in fact

“to the best of his or her knowledge, information, and belief formed after reasonable inquiry.”

MCR 1.109(E)(5)(b). Notably, the rule does not govern the burden of production applicable to a

motion for summary disposition—those are instead listed under MCR 2.116. Moreover, the law

applicable to governmental immunity does not require a complainant to have enough evidence to

prove the complainant’s claims before filing a lawsuit. The complainant need only plead in

avoidance of governmental immunity at that stage, see Mack v Detroit, 467 Mich 186, 203; 649

NW2d 47 (2002), and its pleadings need only be grounded by knowledge, information, and belief

formed after reasonably inquiry, MCR 1.109(E)(5)(b). Accordingly, MCR 1.109(E)(5)(b) does

not establish a basis for denying the Dubin plaintiffs the right to conduct discovery.

Grosse Pointe Shores also argues that the Dubin plaintiffs’ claims do not warrant further

discovery because they are mere conjecture. We again disagree.

The Dubin plaintiffs alleged in their complaint that each defendant’s system had specific

defects. They further identified improvements that could have been made to the regional system

to prevent more extensive backups. At minimum, the allegations and report identified defects that

could have reduced the various systems’ ability to convey wastewater, which implicates whether

a particular defect or defects might have been the factual cause of a particular event. Accordingly,

the Dubin plaintiffs’ complaint was made in good faith, and discovery directed at identifying how

a particular defect contributed to the level of surcharging that actually occurred would constitute

more than a mere “fishing expedition.” See Davis v Detroit, 269 Mich App 376, 379-380; 711

NW2d 462 (2005). The arguments made by Grosse Pointe Shores on this issue therefore lack

merit.

5. DESIGN DEFECTS

Relatedly, the Dubin plaintiffs also argue that trial court erred by granting summary

disposition on the basis that they failed to show that a design defect existed under

MCL 619.1417(3)(b). We agree.

8

Because Grosse Pointe Shores did not file a cross-appeal in this matter, we review these issues

to the extent that they can be considered alternative grounds for affirmance. See Middlebrooks v

Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994) (indicating that an appellee may argue

alternative grounds for affirmance of a trial court’s ruling).

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After reciting the elements that the Dubin plaintiffs had to meet in order to prove their

claims, the trial court discussed the claims by GLWA and Detroit that their system designs met

statutory standards because the sewer systems were designed to handle a 10-year, 1-hour storm.

The trial court concluded that the Dubin plaintiffs could not show that “the system capacity could

handle or was required to handle the extraordinary June 25-26, 2021 rainfall.” According to the

court, even though it was “quite likely that the issues Plaintiffs raise contributed to the surcharge

events that led to the basement flooding, these factors do not establish a defect as required by

MCL 691.1417(3).” The court thus found that plaintiffs failed to meet their burden to show a

defect under MCL 691.1417(3)(b).

As earlier noted, to prevail on their claims, the Dubin plaintiffs must prove that the sewage

disposal systems at issue had a defect. See MCL 691.1417(3)(b). However, the Dubin plaintiffs

correctly point out that GLWA did not move for summary disposition on that basis. GLWA

instead moved for summary disposition on the ground that the Dubin plaintiffs could not establish

cause in fact or proximate cause. Indeed, at the hearing on its motions, GLWA’s lawyer conceded

that plaintiffs could establish a defect for purposes of its motions.

GLWA’s argument about capacity centered on whether the design of its system was

reasonable, which was a factor to consider when assessing whether GLWA adequately supported

its motion for summary disposition on the element of causation. More specifically, in the absence

of evidence that its system was reasonably designed to handle a 10-year, 1-hour storm, there would

be no basis for inferring that rainfall far in excess of that standard demonstrated that any defects

in its system were not the but-for cause of the backups at issue. Therefore, the trial court was

mistaken to the extent that it understood GLWA’s argument about capacity as an argument that

the Dubin plaintiffs’ claims should be dismissed for failing to identify a defect in GLWA’s

system.9

D. DETROIT’S MOTION FOR SUMMARY DISPOSITION

The Dubin plaintiffs next argue that the trial court erred by granting Detroit’s motion for

summary disposition under MCL 691.1417(3).10 We conclude that summary disposition was

proper as to defects that exist in the portion of the system under GLWA’s control. We also find,

however, that the trial court erred by rejecting the Dubin plaintiffs’ argument that Detroit remained

responsible for defects existing in Detroit’s local system. A genuine issue of material fact remains

9

We note that, with respect to the defendants that concurred in GLWA’s motion, the trial court’s

analysis of the issue of defect was limited to what is discussed above with respect to GLWA, and

we decline to reach any matters beyond the scope of that analysis in the first instance here.

10

On appeal, Detroit argues that the Dubin plaintiffs had to preserve their claim that the motion

for summary disposition was premature by meeting the requirements of MCR 2.116(H). That rule

provides that a party “may show by affidavit that the facts necessary to support the party’s position

cannot be presented because the facts are known only to persons whose affidavits the party cannot

procure.” MCR 2.116(H)(1). MCR 2.116(H) is plainly not a preservation standard. We

additionally conclude that the Dubin plaintiffs adequately preserved this claim of error.

-22-

as to whether those defects contributed to the June 2021 sewer backups, and summary disposition

as to Detroit’s local system should not have been granted.

Detroit moved for summary disposition on the ground that the Dubin plaintiffs had not

identified any known defects for which Detroit could be liable. The trial court addressed the

motion and agreed that Detroit could not be held responsible for GLWA’s defects. The court

further agreed that the Dubin plaintiffs had otherwise not identified any defects in Detroit’s local

system. The trial court then dismissed the claims against Detroit on that basis.

In order to establish their claims against Detroit, the Dubin plaintiffs had to allege that, “at

the time of the event,” Detroit was an appropriate governmental agency, see MCL 691.1417(3)(a);

Detroit knew or should have known about a defect in a sewage disposal system, see

MCL 691.1417(3)(b) and (c); and Detroit, “having the legal authority to do so, failed to take

reasonable steps in a reasonable amount of time to repair, correct, or remedy the defect,”

MCL 691.1417(3)(d).

Detroit moved for summary disposition under MCR 2.116(C)(7), but, unlike GLWA, it did

not move for summary disposition on the basis of causation. Instead, it argued that it was entitled

to summary disposition because it was not authorized to repair any defects in GLWA’s system and

thus could not be held liable for defects in that system. It further argued that the Dubin plaintiffs

had not identified any known defects in Detroit’s local system.

Detroit’s lease with GLWA leased all of Detroit’s

right, title, and interest in and to that portion of the real and tangible personal

property comprising a part of the Sewer System and owned by the City and

providing sewer service to the wholesale customers of the Regional Sewer System

and Retail Sewer Customers up to the point of connection to the Detroit Local

Sewer Facilities[.]

Accordingly, the lease provided that,

[b]y virtue of this Lease, the Authority acquires, succeeds to and assumes the

exclusive right, responsibility and authority . . . to occupy, operate, control and use

the Leased Sewer Facilities, including all lands, buildings, improvements,

structures, easements, rights of access, fixtures, equipment, materials, furnishings,

all other personal property and all other privileges and appurtenances comprising

or pertaining to the Leased Sewer Facilities . . . .

* * *

[GLWA] agrees to operate the Leased Sewer Facilities for the purpose of furnishing

sewer service to its customers . . . . In connection therewith, [GLWA] shall pay all

costs of operating, using, repairing, maintaining, replacing, enlarging, extending,

improving, financing and refinancing the Leased Sewer Facilities . . . . [GLWA]

shall not cause or permit any waste, damage or injury to the Leased Sewer Facilities

and shall keep the Leased Sewer Facilities in good condition and repair (reasonable

-23-

wear and tear, obsolescence and damage by act of God, fire or other causes beyond

the control of [GLWA] excepted).

The lease also addressed other matters pertaining to GLWA’s assumption of authority and

responsibility over the leased portion of Detroit’s system, including that GLWA “shall be solely

responsible for any noncompliance by the Leased Sewer Facilities with any Applicable Laws,”

that GLWA must remedy damage or destruction to the leased facilities “by fire or other casualty,”

and that GLWA “shall be entitled to make such rehabilitation of and replacements and

improvements to” the leased facilities that it deems “necessary.” As to the non-leased portion of

Detroit’s system, the lease made clear that Detroit “shall have the right to continue to operate and

retain employees to operate, maintain, repair and improve the Local Sewer System and the Detroit

Local Sewer Facilities, including capital improvements and repairs thereto.”

Thus, under the plain terms of the lease, the parties agreed that as of January 1, 2016,

GLWA acquired, succeeded to, and assumed the exclusive right, responsibility, and authority to

control and use the leased facilities—which essentially includes the entire regional sewer system,

as compared to the local sewer system, which is still managed by Detroit and DWSD.

In support of their claim, the Dubin plaintiffs rely on law purporting to show that Detroit

maintained responsibility for the assets notwithstanding the lease. They cited the definition of an

appropriate governmental agency under MCL 691.1416(b) and noted that Detroit met that

definition. However, merely meeting a definition does not ipso facto establish that, at the time of

the event at issue, Detroit had the legal authority to take steps to repair, correct, or remedy any

defect in any sewer system that was under GLWA’s control. See MCL 691.1417(3)(d).

The Dubin plaintiffs nevertheless contend that Detroit could be held liable for GLWA’s

defects under the decision in Foster v Cone-Blanchard Machine Co, 460 Mich 696; 597 NW2d

506 (1999). We find Foster inapplicable in this case. Foster dealt with the liability of a successor

entity for a product that had been designed by a predecessor in interest; it did not involve real

property leased to another party and under that party’s exclusive control, and it involved

exclusively private entities. See id. We likewise reject defendants’ reliance on Bosanic v Motz

Dev, Inc, 277 Mich App 277, 285-286; 745 NW2d 513 (2007). Bosanic is inapplicable to the

instant matter. The plaintiffs in Bosanic were attempting to hold a drain commissioner responsible

under MCL 691.1417. Those facts are distinct, and we fail to see how Bosanic is meaningfully

relevant to the matter at hand.

When it resolved this issue in favor of Detroit, the trial court analyzed the explicit language

of the lease and the mandates of MCL 691.1417(3)(d). It ultimately concluded that Detroit had no

legal authority to take reasonable steps to repair or remedy any potential defects. The court

reasoned, in relevant part:

Under the facts before it, the Court cannot envision a situation under the Regional

Sewage Disposal System Lease in which Detroit possessed the “legal authority” to

perform repairs, make alterations or improvements, or otherwise remedy the

alleged defects of the pump stations. Indeed, the Regional Sewage Disposal System

Lease provides that the Authority will perform these roles.

-24-

The Dubin plaintiffs maintain that Detroit certainly had authority to remedy defects over

the decades preceding the lease with GLWA and that, even after the lease, Detroit still retained

ownership of the leased property. The Dubin plaintiffs have failed to meaningfully explain how,

given the plain terms of the lease, either Detroit’s prior authority or its continued ownership would

be enough to create a genuine factual dispute that, “at the time of the event” at issue, Detroit had

the legal authority to take steps to repair, correct, or remedy any defect in the portion of the sewer

system that was under GLWA’s control. See MCL 691.1417(3). Nor have the Dubin plaintiffs

explained how, given the plain terms of lease, further discovery on the question might be warranted

or necessary to properly resolve this question. Accordingly, we do not see grounds to reverse the

trial court on this issue.

The Dubin plaintiffs, however, additionally argue that summary disposition was premature

because the trial court improperly disposed of their argument that Detroit remained responsible for

defects in the local sewer system. These defects, the Dubin plaintiffs argue, could have contributed

to the June 2021 sewer backups. In support of this argument, the Dubin plaintiffs presented a

report on the overall state of the combined sewer system (CSS) managed by Detroit and GLWA.

The report was published after a major rain event caused sewer backups in July 2016, largely in

the same areas affected by the June 2021 rain event at issue in the instant matter. The report

indicated that the peak flow capacity of stormwater inlets in the local system was greater than the

capacity of Detroit’s CSS, and advised that certain improvements be made to reduce the likelihood

of future sewer backups, including the installation of vortex valves to manage the flow of

stormwater into the sewer system and backwater valves on residential sewer lines to prevent excess

water from backing up into residential basements.

Detroit presented no evidence that either suggestion had ever been implemented, instead

relying on an affidavit from DWSD chief operating officer Sam Smalley, who averred that the

system is designed only to handle a 10-year, 1-hour storm and that “[t]he amount of inflow that

can enter the system is regulated by restrictive grates that cover the inlets.” In response to the

latter statement, the Dubin plaintiffs submitted an affidavit from Jacob Kane, an employee of

Dubin Law, PLLC, and a lengthy series of photographs depicting the sewer grates in the Jefferson

Chalmers and Cornerstone Village neighborhoods of Detroit. The inlet grates shown in the

photographs are in various states of disrepair, with many covered by dirt and debris. The grates

depicted in the photographs appear to prevent little to no stormwater inflow, according to the Dubin

plaintiffs.

In response to the Dubin plaintiffs’ argument, the trial court stated:

While Plaintiffs’ argument raises serious operational and policy questions, this is

not the standard. In reviewing this case and the related files, the Court has many

questions. Again, this is not the standard. To proceed with this suit, Plaintiffs must

establish an exception to governmental immunity under the GTLA.

MCL 691.1417. To do so, Plaintiff[s] must establish a known defect with Detroit’s

system. id. This case is factually distinguishable from Sinclair [v Grosse Pointe

Farms, unpublished per curiam opinion of the Court of Appeals, issued June 4,

2015 (Docket Nos. 319317, 319368, 319318, 319370, 319319, 319371)] and the

holding is not controlling nor does it establish a defect in this case. Plaintiffs failed

to establish a known system defect as required by the SDSE. MCL 691.1417.

-25-

On appeal, Detroit likewise argues that the improvements suggested in the report regarding the

2016 event do not support the argument that a defect existed in the system. But viewing the

evidence in the light most favorable to the Dubin plaintiffs, the fact remains that Detroit was

advised that improvements were necessary to prevent future sewer backups and apparently made

no effort to make those improvements. At minimum, this suggests that defects in the system as it

was designed, and as it existed in 2016, did potentially contribute to the sewer backups that later

occurred in June 2021. See MCL 691.1416(e).

As was the case with GLWA’s motion, the Dubin plaintiffs argue that Detroit’s motion for

summary disposition was premature because the Dubin plaintiffs had not yet had an opportunity

to conduct discovery. As to the leased portion of Detroit’s system, we disagree, but as to the non-

leased portion of Detroit’s system, we agree. For the foregoing reasons, the trial court erred by

dismissing the Dubin plaintiffs’ claims against Detroit with regard to defects in Detroit’s local

system, but did not err by dismissing their claims against Detroit with regard to the portion of

Detroit’s system leased to GLWA.

III. THE JOHNSON PLAINTIFFS’ APPEAL

In the remaining dockets, the Johnson plaintiffs argue that the trial court erred when it

granted the motions for summary disposition by the various defendants. Specifically, they contend

that the trial court erred by dismissing their inverse-condemnation claims against all defendants,

the claims premised on gross negligence against John Does 1 through 10, and the claims under

MCL 691.1417(3) against all defendants.11 We will address each claim in turn.

A. INVERSE CONDEMNATION

The Johnson plaintiffs first argue that the trial court erred by dismissing their inverse-

condemnation claims. We disagree.

The trial court rejected the contention that governmental immunity applied to a claim for

inverse condemnation and denied the motions for summary disposition of the inverse-

condemnation claims under MCR 2.116(C)(7). The trial court, however, agreed that defendants

were entitled to summary disposition of those claims under MCR 2.116(C)(8) (failure to state a

claim) because the Johnson plaintiffs did not establish that the governmental agencies’ actions

were a substantial cause of a decline in property value or that the governmental agencies took

affirmative actions directly aimed at the Johnson plaintiffs’ properties. We agree that

MCR 2.116(C)(7) did not apply to the inverse condemnation claim. To allow the government to

assert governmental immunity as a defense to an uncompensated taking “would be utterly to vitiate

the constitutional provision providing for just compensation for the taking of private property for

public use . . . .” Krieger v Dep’t of Environment, Great Lakes, and Energy, 348 Mich App 156,

172; 17 NW3d 700 (2023) (quotation marks and citation omitted). Thus, a challenge to the

11

The Johnson plaintiffs have not appealed the trial court’s decision to dismiss their trespass-

nuisance claims and their request for injunctive relief.

-26-

sufficiency of the allegations establishing a claim for inverse condemnation is a challenge under

MCR 2.116(C)(8), not MCR 2.116(C)(7). Id.

A motion under MCR 2.116(C)(8) tests the legal sufficiency of the allegations in a

complaint. Maiden, 461 Mich at 119. A reviewing court must accept all well-pleaded factual

allegations as true and must construe them in the light most favorable to the nonmoving party. Id.

A court should grant a motion under MCR 2.116(C)(8) only when the claim is so clearly

unenforceable as a matter of law that no factual development could possibly justify recovery. Id.

Review under MCR 2.116(C)(8) is limited to review of the pleadings alone. Id. at 119-120.

The Michigan Constitution prohibits the taking of private property for “public use without

just compensation.” Const 1963, art 10, § 2. To ensure the protections of Const 1963, art 10, § 2,

Michigan “recognizes a cause of action, often referred to as an inverse or reverse condemnation

suit, for a de facto taking when the state fails to utilize the appropriate legal mechanisms to

condemn property for public use.” Peterman v Dep’t of Nat Resources, 446 Mich 177, 187-188;

521 NW2d 499 (1994). It is not necessary to prove that the government physically intruded onto

the plaintiff’s property to establish a claim for inverse condemnation; rather, a claim will lie if the

government takes an action that effects a partial destruction or diminution of the value of property.

See id. at 189-190.

A claim for inverse condemnation may be premised on a physical taking or a regulatory

taking. Gym 24/7 Fitness, LLC v Michigan, 341 Mich App 238, 260-261; 989 NW2d 844 (2022).

A physical taking involves the seizure or physical occupation of private property by the

government, requiring just compensation. Id. at 262. A regulatory taking occurs when the

government imposes regulations that deprive a property owner of the beneficial use of his or her

property. Id. at 262-263. Either taking may be temporary or permanent. Id. at 263. This case

concerns a physical taking, as the Johnson plaintiffs allege that they suffered a temporary physical

invasion of their respective properties, which caused damage to both real and personal property.

This Court recently restated the law applicable to establishing a claim for inverse

condemnation:

There is no precise formula for determining when a taking has occurred; however,

a “taking” is not narrowly construed, nor does it require an actual physical invasion

of the property. Pertinent factors include whether the governmental entity abused

its exercise of legitimate eminent domain power to plaintiff’s detriment. When

considering whether a de facto taking has occurred, we must consider the form,

intensity, and the deliberateness of the government actions in the aggregate. In

most cases alleging inverse condemnation, the plaintiff is required to establish two

things: (1) that the government’s actions were a substantial cause of the decline of

the property’s value and (2) that the government abused its powers in affirmative

actions directly aimed at the property. There must also be a causal connection

between the damages claimed by the plaintiff and the actions of the government.

[Jackson v Southfield Neighborhood Revitalization Initiative, 348 Mich App 317,

367-368; 18 NW3d 27 (2023), rev’d in part on other grounds ___ Mich ___; ___

NW3d ___ (2025) (Docket No. 166320) (quotation marks, citations, and alteration

omitted).]

-27-

Additionally, a plaintiff must be able to show that he or she suffered a unique or special injury.

The injury must be different in kind—not simply in degree—from the harm suffered by all persons

similarly situated. Mays v Governor of Mich, 506 Mich 157, 174; 954 NW2d 139 (2020).

The trial court determined that dismissal of the inverse-condemnation claim was

appropriate in part because the Johnson plaintiffs could not “establish that Defendants, through

their actions or inactions, substantially caused the diminution of property values for the Plaintiffs.”

The court found that although the Johnson plaintiffs suffered financial and other types of loss,

“[n]othing in the record establishe[d] that Defendants substantially caused the required decline of

property values.” The trial court likewise determined that summary disposition was appropriate

under MCR 2.116(C)(8) because the Johnson plaintiffs did not establish the second element of

their inverse-condemnation claim. The trial court is correct that summary disposition under

MCR 2.116(C)(8) is warranted on this claim. Plaintiffs’ allegations, when taken as true, fail to

provide viable grounds to conclude that any defendant “abused its powers in affirmative actions

directly aimed at [the Johnson plaintiffs’] properties.” Jackson, 348 Mich App at 368 (quotation

marks and citation omitted).

As the Johnson plaintiffs state in their brief on appeal, their theory of inverse condemnation

is as follows: “by failing to remedy known defects and adequately maintain the sewer system,

Defendants created a situation where Plaintiffs[‘] properties would inevitably have to house the

flood waters that Defendants failed to pump as the rains fell.” Such allegations, however, sound

in the sort of “inaction and omissions” that this Court has deemed inadequate to meet the

“affirmative actions” requirement of an inverse-condemnation claim. Attorney General v

Ankersen, 148 Mich App 524, 562; 385 NW2d 550 (1986); see also, e.g., Marilyn Froling

Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 296; 769 NW2d 234

(2009); Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 549-550; 688 NW2d 550

(2004).

In arguing otherwise, plaintiffs stress this Court’s decision in Krieger, which in turn relied

heavily on our Supreme Court’s decision in Mays. Both of those cases, however, involved

allegations of affirmative decisions and actions by the defendants to specifically direct known

harms against the plaintiffs, as well as active efforts by the defendants to conceal or misrepresent

those harms. See Mays, 506 Mich at 175 (explaining that the plaintiffs satisfied this element by

alleging that the state defendants authorized the use of the Flint River as a water source despite

knowing it could cause property damage, and that they concealed data and misrepresented the

water’s safety to downplay the risks); Krieger, 348 Mich App at 185-188 (detailing how the

“plaintiffs’ allegations show[ed] active steps by defendants to authorize higher lake levels” by

blocking dam repairs, threatening enforcement if water was lowered, and concealing key

information about the dam’s risk to nearby properties). The allegations in this case are not

comparable, and neither Mays nor Krieger suggest that they are legally sufficient to sustain

plaintiffs’ claim. Accordingly, plaintiffs have failed to state a viable claim of inverse

condemnation. Plaintiffs likewise have not offered anything to suggest that an amendment to the

allegations would cure this deficiency. We thus affirm the trial court’s dismissal of plaintiffs’

inverse-condemnation claim.

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B. JOHN DOES 1 THROUGH 10

On appeal, the Johnson plaintiffs do not contest the trial court’s decision to dismiss their

claims against the governmental entities premised on the gross negligence of John Does 1 through

10. They instead argue that the trial court erred when it dismissed their claims against John Does

1 through 10 in their individual capacities. We agree.

A party may move for “dismissal of or judgment on all or part of a claim” under

MCR 2.116. See MCR 2.116(B). The moving party may assert as a ground for dismissal that he

or she has “immunity granted by law.” MCR 2.116(C)(7).

When reviewing a motion under MCR 2.116(C)(7), this Court must accept

all well-pleaded factual allegations as true and construe them in favor of the

plaintiff, unless other evidence contradicts them. If any affidavits, depositions,

admissions, or other documentary evidence are submitted, the court must consider

them to determine whether there is a genuine issue of material fact. If no facts are

in dispute, and if reasonable minds could not differ regarding the legal effect of

those facts, the question whether the claim is barred is an issue of law for the court.

[Dextrom, 287 Mich App at 428-429.]

When there is a question of fact as to whether the employees have immunity, the dispute must be

resolved by the finder of fact. See Guider v Smith, 431 Mich 559, 572; 431 NW2d 810 (1988).

Officers and employees of a government agency are “immune from tort liability for an

injury to a person or damage to property caused by” the officer or employee “while in the course

of employment or service” if the officer or employee “reasonably believ[ed] he or she [was] acting

within the scope of his or her authority,” the “governmental agency [was] engaged in the exercise

or discharge of a governmental function,” and the officer’s or employee’s “conduct [did] not

amount to gross negligence that [was] the proximate cause of the injury or damage.”

MCL 691.1407(2). John Does 1 through 10 had the initial burden to raise and demonstrate that

they had the immunity provided under MCL 691.1407(2). See Ray, 501 Mich at 62.

In its motion for summary disposition, GLWA argued that the trial court had to dismiss the

claims premised on the gross negligence of John Does 1 through 10 because MCL 691.1417(3)

provided the exclusive remedy for all claims under any legal theory to recover for injuries caused

by a sewer disposal event. It also argued that it could not be held liable for its employees’ negligent

conduct. GLWA argued generally that the rain was the cause of the injuries at issue as to the

claims under MCL 691.1417(3), but did not directly argue that John Does 1 through 10 could not

be the proximate or factual cause of the injuries at issue.

GLWA continues to argue on appeal that the Legislature effectively eliminated personal

liability for injuries related to sewer disposal system events under MCL 691.1417(2). The statute

provides:

A governmental agency is immune from tort liability for the overflow or

backup of a sewage disposal system unless the overflow or backup is a sewage

disposal system event and the governmental agency is an appropriate governmental

agency. Sections 16 to 19 abrogate common law exceptions, if any, to immunity

-29-

for the overflow or backup of a sewage disposal system and provide the sole remedy

for obtaining any form of relief for damages or physical injuries caused by a sewage

disposal system event regardless of the legal theory. [MCL 691.1417(2).]

A careful reading of the statute shows that it applies only to governmental agencies. The

Legislature introduced its statement about the abrogation of the common law “exceptions . . . to

immunity” by stating that a “governmental agency is immune from tort liability for the overflow

or backup of a sewage disposal system.” MCL 691.1417(2). This language strongly suggests that

the second sentence refers to the common-law exceptions that applied to governmental agencies

for overflows and backups of sewers before the enactment of MCL 691.1416 through

MCL 691.1419. The reference to other sections in the second sentence also bolsters that

understanding. None of those sections refer to government employees or other government

personnel. By contrast, the other sections repeatedly refer to a governmental agency. See

MCL 691.1417(1); MCL 691.1417(3); MCL 691.1418; MCL 691.1419. Read together, the proper

interpretation is that the Legislature abrogated only the common-law exceptions to governmental

immunity for sewer backups that previously applied to governmental agencies. See GC Timmis &

Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003). Therefore, the trial court

did not err when it declined to dismiss the claims against John Does 1 through 10 on that basis.

As alleged in the Johnson plaintiffs’ complaints, John Does 1 through 10 were plainly

engaged in the exercise or discharge of a governmental function when acting to operate, maintain,

and manage GLWA’s infrastructure. See MCL 691.1401(b). Accordingly, they would be immune

from liability for their acts or omissions unless their acts or omissions amounted to “gross

negligence that [was] the proximate cause of the injury or damage.” MCL 691.1407(2).

The trial court focused on whether John Does 1 through 10 were the factual and proximate

cause of the injuries. Because the Legislature stated in MCL 691.1407(2)(c) that the governmental

employee’s conduct must not amount to gross negligence that is “the” proximate cause of the

injury or damage, the Legislature must have intended to immunize governmental employees unless

their acts or omissions amount to “the one most immediate, efficient, and direct cause” of the

injury or damage at issue. Robinson, 462 Mich at 462. The trial court determined that, on the

record before it, John Does 1 through 10 could not be the factual cause of the injuries sustained by

the Johnson plaintiffs. More specifically, it determined that they could not be the factual and thus

proximate cause because the excessive rainfall was the factual and proximate cause of the sewer

backups.

In their complaint, the Johnson plaintiffs alleged that John Does 1 through 10 had a duty

to monitor GLWA’s operating systems to ensure that the pumping stations remained fully

operational. They further alleged that they should have brought the pumping stations to full

operational capacity once they knew about the oncoming rain. They alleged that John Does 1

through 10 willfully disregarded or failed to address various issues and that the failures amounted

to gross negligence that caused the Johnson plaintiffs to suffer damages.

In dismissing the Johnson plaintiffs’ gross-negligence claims on the basis of causation, the

trial court erred for similar reasons to those already discussed with regard to the Dubin plaintiffs’

claims. The record indicates that the Johnson plaintiffs did not have a reasonable opportunity to

conduct discovery with regard to their claims against John Does 1 through 10 and whether their

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alleged failure to respond properly to the rain event was a factual cause of the damage at issue,

such as whether one or more of the Johnson plaintiffs’ homes would have suffered the sewer

backups they did but for that failure. Accordingly, summary disposition was premature. See

Oliver, 269 Mich App at 567.

C. DISMISSAL UNDER MCL 691.1417(3)

Finally, the Johnson plaintiffs argue that the trial court erred when it dismissed their claims

under MCL 691.1417(3) against all of the named defendants. We agree in part and disagree in

part.

1. DETROIT AND DWSD

Detroit and DWSD moved to dismiss the Johnson plaintiffs’ claims under

MCL 691.1417(3). They argued that the Johnson plaintiffs failed to identify any defect in the

system about which they knew or should have known and that they were not responsible for defects

in the sewer system that had been leased to GLWA. Here, the Johnson plaintiffs failed to present

evidence establishing a question of fact as to whether Detroit or DWSD knew or should have

known about a specific defect for which it might be liable under MCL 691.1417(3). The Johnson

plaintiffs merely asserted that Detroit and DWSD were appropriate governmental agencies under

the definition of that phrase provided under MCL 691.1416(b) because Detroit still owned the

assets at issue within GLWA’s system and discharged wastewater into the regional system. Like

the Dubin plaintiffs, they then argued that Detroit and DWSD remained liable for the property that

it leased to GLWA because Detroit could not contract away its authority. As noted in the

discussion of the Dubin plaintiffs’ similar arguments above, we believe that the court’s rejection

of such arguments was correct. Summary disposition as to Detroit and DWSD with regard to the

Johnson plaintiffs’ claims was therefore appropriate.12

2. GLWA

GLWA moved for summary disposition of the Johnson plaintiffs’ claims for the same

reasons that it asserted against the Dubin plaintiffs and supported its motion with the same

evidence. More specifically, it stated that its system was reasonably designed to handle a 10-year,

1-hour storm and that a lack of capacity to handle a larger storm was not actionable. It then argued

that rainfall in excess of the amount that its system was reasonably designed to handle was the

cause in fact and the proximate cause of the sewer backups without regard to whether its system

had defects.

In response, the Johnson plaintiffs did not present any evidence that, had GLWA rectified

the defects in its system, one or more of the Johnson plaintiffs’ properties would not have

experienced a sewer backup. However, as was the case with the Dubin plaintiffs, it is clear from

the record that the Johnson plaintiffs did not have an adequate opportunity to conduct discovery

on this issue. The Johnson plaintiffs identified reports that suggested that there was evidence that

12

Unlike the Dubin plaintiffs, the Johnson plaintiffs raise no separate argument regarding defects

in Detroit’s local sewer system.

-31-

one or more defects in GLWA’s system may have exacerbated the flooding problem. With further

discovery, the Johnson plaintiffs might be able to gather support for their position on causation.

As such, summary disposition of their claims against GLWA was premature. See Oliver, 269

Mich App at 567.

3. GROSSE POINTE AND GROSSE POINTE PARK

Grosse Pointe and Grosse Pointe Park concurred in the motions for summary disposition

of the Johnson Plaintiffs’ claims by Detroit and GLWA, but they also asserted an independent

basis for granting summary disposition. Specifically, they asserted that the Johnson plaintiffs

failed to allege that there were any defects that Grosse Pointe and Grosse Pointe Park had the legal

authority to repair, correct, or remedy, which they failed to repair, correct, or remedy. They

claimed that the Johnson plaintiffs only identified defects in GLWA’s system and then asserted

that Grosse Pointe and Grosse Pointe Park could be liable for relying on GLWA’s system. Grosse

Pointe and Grosse Pointe Park asserted that these allegations were insufficient to state a claim

against them.

It was an essential element of the Johnson plaintiffs’ claims under MCL 691.1417(3) that

they plead and be able to prove that Grosse Pointe and Grosse Pointe Park knew or should have

known about a defect and, having the legal authority to do so, failed to take reasonable steps within

a reasonable time to repair, correct, or remedy that defect. It was undisputed that Grosse Pointe

and Grosse Pointe Park had no legal authority to do anything with GLWA’s system. Accordingly,

the Johnson plaintiffs could not rely on defects in GLWA’s system to satisfy that element. Yet, in

their complaints involving Grosse Pointe and Grosse Pointe Park, unlike the case with the

allegations in the Dubin plaintiffs’ complaint, the Johnson plaintiffs only alleged that Grosse

Pointe and Grosse Pointe Park should not have relied on the regional system for their sewerage.

Those allegations were insufficient to allege a claim under MCL 691.1417(3).

4. GROSSE POINTE FARMS

Grosse Pointe Farms apparently concurred in GLWA’s motion for summary disposition in

the Johnson plaintiffs’ cases. It did not, however, offer an alternate basis in support of summary

disposition, as did Grosse Pointe and Grosse Pointe Park. As such, it did not establish an

independent basis for dismissing the claims of the Johnson plaintiffs’ claims under

MCL 691.1417(3). For the reasons applicable to the analysis involving the Johnson plaintiffs’

claims against GLWA under that statute, summary disposition was premature. As such, we reverse

the trial court’s decision to dismiss the Johnson plaintiffs’ claims under MCL 691.1417(3) against

Grosse Pointe Farms.

IV. CONCLUSION

In Docket No. 365363, we reverse the trial court to the extent that it concluded that the

Dubin plaintiffs waived class certification. For all the reasons stated herein, we affirm the trial

court’s dismissal of the Dubin plaintiffs’ claims against Detroit with respect to the portions of

Detroit’s system leased to GLWA, but otherwise reverse the trial court’s decision to dismiss the

claims under MCL 691.1417(3) by the Dubin plaintiffs against all defendants.

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In the remaining dockets, we affirm the trial court’s dismissal of the Johnson plaintiffs’

inverse-condemnation claim under MCR 2.116(C)(8) and its dismissal of the Johnson plaintiffs’

claims under MCL 691.1417(3) against Detroit, DWSD, Grosse Pointe, and Grosse Pointe Park.

We reverse the trial court’s decision to dismiss the Johnson plaintiffs’ claims under

MCL 691.1417(3) against GLWA and Grosse Pointe Farms, and also reverse the dismissal of the

claims against John Does 1 through 10.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

/s/ Michael F. Gadola

/s/ Michelle M. Rick

/s/ Philip P. Mariani

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