Deanna Ray v. City of Lansing

STATE OF MICHIGAN

COURT OF APPEALS

DEANNA RAY and All Others Similarly Situated, UNPUBLISHED

a Certified Class, April 17, 2018

Plaintiff-Appellee,

v No. 337058

Ingham Circuit Court

CITY OF LANSING, LC No. 13-001242-NZ

Defendant-Appellant.

Before: O’BRIEN, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

Defendant appeals as of right the trial court’s opinion and order granting in part and

denying in part defendant’s motion for summary disposition. 1 We affirm but remand for further

proceedings.

On June 12 and 13, 2013, the City of Lansing experienced a severe rainstorm. Heavy

rain fell for approximately six hours from 9:00 p.m. on June 12 to 3:00 a.m. on June 13. The

storm overwhelmed parts of defendant’s sewer system, and sewage, water, and debris flooded

the basements of plaintiffs’ homes. There was a dispute below regarding the severity of the June

12 and 13 rainstorm. Defendant’s meteorologist, Linda Kozura, asserted that the amount of rain

varied throughout the Lansing area, and that the area receiving the most significant rainfall

experienced a “rainfall frequency of and in excess of a 100 year rain event.”2 In contrast,

plaintiffs’ meteorologist, Bryan Rappolt, asserted that, based on “the rain event that occurred

1

The trial court granted defendant’s motion for summary disposition for class members who

either failed to adhere to the notice requirements in MCL 691.1419(1) or who did not live in

Lansing. Neither party contests this ruling on appeal.

2

In the industry, a 100-year storm is one which has a 1% chance of occurring in any given year,

a 50-year storm has a 2% chance of occurring in any given year, and a 25-year storm has a 4%

chance of occurring in any given year. See Henry v Dow Chemical Co, 484 Mich 483, 491 n 7;

722 NW2d 301 (2009).

-1-

throughout . . . Lansing,” the rainfall for the June 12 and 13 storm constituted less than a 25-year

rain event.3

On November 8, 2013, plaintiffs filed a class action complaint and jury demand.

Plaintiffs set forth a claim solely under MCL 691.1416 et seq. Plaintiffs alleged that on June 12

to 13, 2013, defendant’s sewer system backed up into plaintiffs’ homes, flooding the homes with

sewage and water and causing significant property damage. The complaint alleged that

defendant’s sewer system had a construction, maintenance, design, and/or operation defect that

caused the sewer system to backup into plaintiffs’ homes. Defendant filed an answer generally

denying the allegations and claiming governmental immunity. Plaintiffs subsequently filed a

motion for certification as a class action, which the trial court granted.

On May 15, 2015, defendant filed a motion for summary disposition pursuant to MCR

2.116(C)(7) and (C)(10). Relevant to this appeal, defendant argued that plaintiffs’ claim failed

as a matter of law because plaintiffs failed to establish a question of fact for the elements of

MCL 691.1417(3).4 Specifically, defendant contended that plaintiffs could not establish a

genuine issue of material fact (1) that a defect existed in defendant’s sanitary sewer system

which defendant failed to take reasonable steps to correct, and/or (2) that the defect was a

substantial proximate cause of the surcharging/flooding in plaintiffs’ basements. Defendant

concluded that plaintiffs’ failure to create a question of fact for issues under MCL 691.1417(3)

entitled defendant to governmental immunity.

In support of its motion, defendant relied heavily on a report prepared by its expert,

Steven Kalinowski. Kalinowski, a professional engineer, based his report on Kozura’s

meteorological report and a number of studies regarding defendant’s sewer system.

Kalinowski’s report concluded that defendant’s sewer system was not a substantial proximate

cause of plaintiffs’ damages. He opined as follows:

3

The significant difference in the experts’ estimated storm severity is, to a degree, attributable to

the meteorologists’ disagreement about how the storm’s severity should be calculated. Kourza

determined that it was a 100-year rain event by looking at the area of Lansing that received the

most rain, whereas Rappolt contended that the storm was less than a 25-year rain event by

estimating rainfall throughout the entire city and averaging those estimates. A review of both

meteorologists’ maps estimating the rainfall throughout the city shows that, although the exact

estimates differ, the southwest area of Lansing—where most residents lived—received

significantly more rain than the other parts of the city.

4

The elements of MCL 691.1417(3) are (1) the governmental agency was an appropriate

governmental agency, (2) the sewage disposal system had a defect, (3) the governmental agency

knew, or in the exercise of reasonable diligence should have known, about the defect, (4) 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, and (5) The defect was a

substantial proximate cause of the event and the property damage or physical injury.

-2-

I have concluded that the tremendous and intense rainstorm in numerous areas of

the City on June 12-13, 2013 constituted the overwhelming cause of the

surcharging of the City’s sanitary sewer system and basement flooding that was

reported in connection with that storm. The storm produced torrential rain in

areas of the City well in excess of the 25 year rainfall frequency standard

presently used by the [Michigan Department of Environmental Quality (MDEQ)],

and, in substantial areas of south Lansing, in excess of 100 year and 50 year

rainfall events. I have concluded that the City’s sanitary sewer system was not a

substantial proximate cause of the basement flooding reported by residents during

or shortly after the June 12-13 storm.

Kalinowski’s report included a map that showed the locations of plaintiffs’ residents laid over a

“detailed storm event rainfall analysis contour map.” The purpose of the map was to compare

where plaintiffs lived with areas of the city that received the most rain. The report emphasized

that “the areas [on the map] with the highest number of claimants match areas receiving rainfall

in excess of the 100-year, 50-year, and 25-year storm rainfall.”

Kalinowski’s report also referenced a model that he ran for defendant’s sewer system.

According to Kalinowski, the model was based on Koruza’s rainfall data and the conditions of

defendant’s sewers as they existed on June 12 and 13, 2013. Kalinowski claimed that this model

showed that the backup of the sewer system was caused by the excessive rainfall, and that there

was no defect in defendant’s sewer system on June 12 and 13. Kalinowski also opined that

defendant’s sewer system would have been able to handle the rainfall without surcharging if it

were not for “private residential footing drains that [were] improperly connected to the sanitary

sewer system on residential properties.” Kalinowski stated that he ran a model of the June 12

and 13 storm that confirmed this assertion.

In response to defendant’s motion, plaintiffs argued that defendant’s motion under MCR

2.116(C)(7) should be denied because governmental immunity for this case was governed solely

by MCL 691.1417(2) and did not require plaintiffs to prove their substantive claim in MCL

691.1417(3). Plaintiffs claimed that they satisfied the burden in MCL 691.1417(2) and,

therefore, defendant was not entitled to governmental immunity.

Plaintiffs further contended that defendant’s motion should be denied under MCR

2.116(C)(10) because plaintiffs had presented a genuine issue of material fact for all the elements

in MCL 691.1417(3). Plaintiffs contended that, based on admissions by defendant, it was

uncontested that “excessive [inflow and infiltration5] entered [defendant’s] sanitary sewer and

that this caused Plaintiffs’ damages.” In support of its contention, plaintiffs pointed to

Kalinowski’s statement that there would have been no backup of the sewer system if the footing

drains—which contributed additional inflow during rains—had been disconnected. Plaintiffs

also asserted that, based on studies done by defendant, defendant knew of “numerous locations

[in its sewer system] where capacity limitations [restricted] the ability to utilize the full available

5

“Inflow” refers to water that enters the sanitary sewer system when it rains, and “infiltration”

refers to ground water that enters the sewers.

-3-

capacity of” the sewer system “to convey wet weather flow.” Plaintiffs referred to these

locations as capacity “bottlenecks.”6

Plaintiffs’ expert, Michael Williams, opined that a bottleneck was a defect. Williams

identified bottlenecks that “Defendant’s own studies and/or documents indicate[d] the presence

of,” which included “Francis Park Pump Station, Sycamore-Lindberg Interceptor [SLI] and

Syphon [sic] 11.” Plaintiffs presented some of the studies that their expert relied on. Plaintiffs

submitted a 2012 report prepared on behalf of defendant that identified bottlenecks in

defendant’s sewer system, including the Frances Park Pump Station and Siphon 11. Plaintiffs

also presented a 2002 report that recognized that “Siphon No. 11 is a capacity ‘bottleneck’ in the

SLI and southwest interceptor system.” Plaintiffs asserted that defendant had known since “at

least 1979 that the Frances Park pump station was under capacity,” and that defendant had

similarly known for over 10 years that the other identified areas were “capacity bottlenecks.”

Plaintiffs also presented evidence that, they contended, showed that “Defendant had

actual knowledge that on numerous occasions, this lack of capacity caused widespread instances

of basement backups.” For instance, plaintiffs pointed to the 2012 report, which stated that

“[w]idespread basement flooding in HH North and HH South are a direct result of Siphon 11

capacity limitations.” Williams opined as follows:

It is my opinion that the modeling performed on Lansing’s sewer system

demonstrates that Lansing had actual knowledge that Lansing’s sanity sewers

could not convey the design storm without surcharging and/or basement

backups. . . . It is not disputed that surcharging and basement backups occurred

as a result of the storm of June 12-13, 2013. It is also my opinion that based on

the report of Mr. Rappolt and Defendant’s modeling, that the substantial

proximate cause of Plaintiffs’ damages was not heavy rain but was the known

inability of Defendant’s sewer system to convey the design storm.

Williams acknowledged that many plaintiffs lived in areas that had a separated sanitary sewer

system which, when combined with infiltration and inflow from sources such as footing drains,

caused surcharging. However, Williams believed that this was not the cause of the sewer-system

backup. Rather, according to Williams, the bottlenecks, which “are a well known cause of

surcharging and basement backups,” caused the sewer system to backup into plaintiffs’ homes,

resulting in plaintiffs’ damages.

Plaintiffs further argued that, at the very least, there was a question of fact whether

defendant’s actions in not addressing the bottlenecks were reasonable. Plaintiffs pointed to

6

A bottleneck occurs when there is a difference in capacity between upstream and downstream

areas. When an area downstream has a smaller capacity than the upstream area, it creates a

bottleneck and causes water to backflow upstream. In this case, plaintiffs contended that, when

the bottlenecks caused the water to backflow, defendant’s sewers could not hold the excess

water, which caused backups in plaintiffs’ basements.

-4-

testimony from Williams that, based on the amount of time that defendant was aware of capacity

issues with its sewer systems, its failure to correct those issues was not reasonable.

After a hearing on defendant’s motion, the trial court eventually issued a written opinion.

With respect to defendant’s motion for summary disposition under MCR 2.116(C)(7), the trial

court found that “MCL 691.1417(2) is the sole regulator of governmental immunity in this

matter.” The trial court held that, because plaintiffs satisfied the requirements of MCL

691.1417(2), defendant was not entitled to governmental immunity. Accordingly, the trial court

denied defendant’s motion under MCR 2.116(C)(7).

With respect to defendant’s motion under MCR 2.116(C)(10), the trial court found that

defendant needed to show that plaintiff failed to establish a genuine issue of material fact for at

least one of the elements under MCL 691.1417(3). The trial court held that defendant failed to

do so because defendant “relied primarily on discrediting Plaintiffs’ expert” in favor of its own

expert, which was “a credibility determination regarding expert testimony, a determination that

must be made by a jury.” Accordingly, the trial court denied defendant’s motion under MCR

2.116(C)(10).

On appeal, defendant argues that the trial court erred by denying its motion for summary

disposition. We disagree.

“We review de novo a trial court’s grant of summary disposition.” Innovation Ventures v

Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). Likewise, the availability of

governmental immunity presents a question of law that is reviewed de novo. Norris v Lincoln

Park Police Officers, 292 Mich App 574, 578; 808 NW2d 578 (2011). Although defendant

brought its motion for summary disposition under MCR 2.116(C)(7) and (C)(10), defendant only

needed to bring its motion under MCR 2.116(C)(7) because plaintiffs’ only claim was brought

under MCL 691.1416 et seq. See Willett v Charter Twp of Waterford, 271 Mich App 38, 47; 718

NW2d 386 (2006) (“Although factual development may be necessary, motions brought to defeat

claims under MCL 691.1416 through MCL 691.1419 are properly raised under MCR

2.116(C)(7).”). Therefore, we will review defendant’s motion for summary disposition only

under MCR 2.116(C)(7). As explained by this Court in Dextrom v Wexford Co, 287 Mich App

406, 428-429; 789 NW2d 211 (2010),

MCR 2.116(C)(7) provides that a motion for summary disposition may be raised

on the ground that a claim is barred because of immunity granted by law. 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. However, if a question of fact exists to the extent that factual development

could provide a basis for recovery, dismissal is inappropriate. [Footnotes

omitted.]

-5-

“A question of fact exists when reasonable minds could differ as to the conclusions to be drawn

from the evidence.” Id. at 416.

Under the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq.,

“governmental agencies are immune from tort liability when engaged in a governmental

function.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156; 615 NW2d 702 (2000).

“This grant of immunity is subject to six statutory exceptions.” Wesche v Mecosta Co Rd Comm,

480 Mich 75, 84; 746 NW2d 847 (2008). At issue in this appeal is “the sewage-disposal-system-

event exception, MCL 691.1417(2) and (3).” Id. at 84 n 10.

To begin, we note that the trial court erred as a matter of law by concluding that the

sewage-disposal-system-event exception to governmental immunity is governed solely by MCL

691.1417(2). MCL 691.1417(2) provides as follows:

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

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(3) states as follows:

If a claimant, including a claimant seeking noneconomic damages, believes that

an event caused property damage or physical injury, the claimant may seek

compensation for the property damage or physical injury from a governmental

agency if the claimant shows that all of the following existed at the time of the

event:

(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.

In Willett, 271 Mich App at 47, the plaintiff argued that the defendant was not entitled to

governmental immunity because the plaintiff had established the elements of MCL 691.1417(2).

This Court rejected that argument and held that “MCL 691.1417(3) [imposed] several

requirements for a claimant to avoid governmental immunity for a sewage disposal system

-6-

event,” and that the plaintiff must show all of those elements “in order to avoid governmental

immunity.” Willet, 271 Mich App at 49. Since Willet, this Court and the Michigan Supreme

Court have repeatedly indicated that the sewage-disposal-system-event exception to

governmental immunity is governed by MCL 691.1417(2) and (3). See Linton v Arenac Co Rd

Comm, 273 Mich App 107, 113-114; 729 NW2d 883 (2006); Hannay v Dep’t of Transp, 497

Mich 45, 60 n 34; 860 NW2d 67 (2014); Odom v Wayne Co, 482 Mich 459, 478 n 62; 760

NW2d 217 (2008).

Despite that the trial court did not apply the proper framework for reviewing defendant’s

motion, we ultimately agree with the trial court’s conclusion that questions of fact exist for the

elements of MCL 691.1417(3),7 and, therefore, summary disposition for defendant was

precluded.

There is no dispute that defendant is the proper governmental agency. See MCL

691.1417(3)(a). Defendant contends on appeal that plaintiffs failed to identify a “defect” in its

sewer system. MCL 691.1417(3)(b). “ ‘Defect’ means a construction, design, maintenance,

operation, or repair defect.” MCL 691.1416(e). According to defendant, plaintiffs “failed to

provide evidence of any particular defect or defects in the City’s sewage system.” However,

defendant admits that plaintiffs identified “bottlenecks” as a defect in defendant’s sewer system.

And plaintiffs identified numerous bottlenecks in defendant’s sewer system, including Siphon 11

and the Frances Park Pump Station. In an affidavit, Williams testified that a bottleneck was a

defect.8 Williams explained that a bottleneck was a defect because it “reduces the system-wide

7

Defendant’s appellate brief includes one sentence contending that plaintiffs “failed to submit

sworn competent testimony from experts to establish that a ‘sewage disposal system event’ took

place” as required by MCL 691.1417(2). The trial court ruled that plaintiff established the

elements of MCL 691.1417(2). Pursuant to MCL 691.1416(k), a “ ‘[s]ewage disposal system

event’ or ‘event’ means the overflow or backup of a sewage disposal system onto real property,”

subject to three exceptions. Defendant does not argue that there was no backup or overflow of a

sewage-disposal system onto plaintiffs’ property or that one of the three exceptions to the

sewage-disposal-system event applied. Defendant’s brief does not provide any caselaw to

support its position, and does not even reference MCL 691.1416(k). The single sentence

referenced above is the only instance where defendant challenges the trial court’s ruling with

respect to MCL 691.1417(2). Therefore, this issue is deemed abandoned, and we do not address

it further. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).

8

Plaintiffs’ briefs at trial and on appeal are somewhat unclear regarding what constituted the

alleged “defect.” The only “defect” explicitly identified by plaintiffs or Williams was the

bottlenecks in defendant’s sewer system. However, plaintiffs appear to contend that the excess

inflow and infiltration of defendant’s sewer system was also a defect. If this is plaintiffs’

argument, we would hold that plaintiffs failed to establish that the inflow and infiltration

satisfied MCL 691.1417(3)(b) because the identified “defect” must be part of the “sewage

disposal system.” Pursuant to MCL 691.1416(k),

“Sewage disposal system” means all interceptor sewers, storm sewers, sanitary

sewers, combined sanitary and storm sewers, sewage treatment plants, and all

-7-

storage in that excess sewage cannot pass through the bottleneck into an area where there may be

extra storage in the collection system.”

In support of their assertion that a bottleneck was a defect, plaintiffs provided a report

prepared for defendant from 2012 that recommended a “balanced system approach” to help

improve the city’s sewer system. The 2012 report provided as follows:

The balanced system approach attempts to maximize the peak wet weather flow to

the [Waste Water Treatment Plant (WWTP)]. . . . The investigation to eliminate

bottlenecks in the wastewater collection system identified several capacity

restrictions. These restrictions result from inadequate pump station or siphon

capacity while the existing upstream and downstream trunk sewers have adequate

capacity. Removing these bottlenecks will increase the flows to the WWTP.

Plaintiffs argued that the “balanced system approach” identified by defendant as a way to utilize

the existing sewer capacity demonstrates that bottlenecks prevent the sewer system from

operating as it was designed, thereby demonstrating a defect. In response, defendant points to

Kalinowksi’s testimony that the sewer system can still operate as intended in spite of the

bottlenecks. While Kalinowski’s testimony supports defendant’s position, reasonable minds

could differ as to whether the evidence demonstrated that the bottlenecks were a defect. See

Dextrom, 287 Mich App at 416.

Defendant does not contest that it knew or should have known about the bottlenecks.

MCL 691.1417(3)(c). Even if it did contest this element, there is evidence that defendant

published studies discussing the bottlenecks and their effect of limiting the sewer system’s

capacity. At the very least, plaintiffs have established a question of fact whether defendant knew

of the capacity bottlenecks in its sewer system. See Dextrom, 287 Mich App at 416.

other plants, works, instrumentalities, and properties used or useful in connection

with the collection, treatment, and disposal of sewage and industrial wastes, and

includes a storm water drain system under the jurisdiction and control of a

governmental agency.

Unrebutted deposition testimony established that only a homeowner could remove a footing

drain connected to the sewer system. Therefore, footing drains could not be considered a defect

to the “sewage disposal system” because they were not “under the jurisdiction and control of a

governmental agency.” Plaintiffs make no effort to distinguish inflow added to the sewer system

by footing drains from other sources of inflow and infiltration. Accordingly, plaintiffs’ attempt

to broadly define inflow and infiltration as a “defect” would fail. Moreover, even were we to

accept that inflow and infiltration—not including inflow from footing drains—constituted a

defect, we would conclude that plaintiffs failed to present any evidence to establish a question of

fact whether the other sources of inflow and infiltration were a substantial proximate cause of the

sewer-system backup. See MCL 691.1417(3)(e).

-8-

Defendant briefly contends that it took reasonable steps in a reasonable amount of time to

remedy the defects. MCL 691.1417(3)(d). In 2004, defendant entered into an Administrative

Consent Order (ACO) with the MDEQ in which defendant agreed that its sewer system would

“operate during a 25-year, 24-hour storm . . . without causing basement backups” by December

31, 2020. Kalinowski opined that defendant had “been proactively” developing a plan to meet

this standard in a “fiscally responsible” way. Kalinowski asserted that defendant’s plan was

“developed in accordance with [the Environmental Protection Agency’s] Capacity Management

Operation and Maintenance (CMOM) Program guidelines[.]” Defendant argues that, based on

the steps it has and is taking to comply with the ACO, there is no question of fact that it is taking

reasonable steps in a reasonable amount of time to repair or remedy the bottlenecks.

However, plaintiffs presented evidence that defendant was aware of the bottlenecks

before the 2004 ACO. A 1979 report prepared for defendant indicated that Frances Park Pump

Station was under capacity and that it would cost $2,800,000 to correct the problem. A 2003

report indicated a number of pump stations that were “under capacity,” including Frances Park

Pump Station. A different study by defendant issued in 2003 identified Siphon 11 as a “capacity

‘bottleneck’ ” that would “likely require relief capacity in order for” other parts of the sewer

system “to function as designed.” Williams opined that “it was not reasonable for the City of

Lansing to wait 36 years to address the known capacity limitations at the Frances Park Pump

Station when the cost to fix this known bottleneck was $2,800,000.” Williams also opined that it

was not reasonable for defendant to fail “to address the known problems with [S]iphon 11”

because, based on defendant’s own documents, defendant was aware of its capacity issues since

at least 2003.

Following the June 12 and 13, 2013 storm, defendant stated in a presentation to residents

that one solution to stopping basement backups was to eliminate capacity bottlenecks in the

system, and it identified the “Low Hanging Fruit” as “Siphon 11 Capacity Upgrade” and

“Frances Park Pump Station Capacity Upgrade.” Despite the fact that these capacity upgrades

were “low hanging fruit,” defendant failed to address the issue nine years after it entered into the

ACO.

In sum, despite defendant’s efforts to comply with the 2004 ACO, plaintiffs presented

evidence that defendant knew of capacity bottlenecks in its sewer system before the 2004 ACO,

and reasonable minds could differ whether it was reasonable for defendant to wait until it entered

into the ACO before it began addressing the known bottlenecks. Plaintiffs also presented

sufficient evidence to establish a question of fact whether defendant’s actions since entering the

ACO, specifically its failure to address the “low hanging fruit” nine years after the ACO, were

reasonable. See Dextrom, 287 Mich App at 416.

Lastly, defendant contends that plaintiffs failed to establish a question of fact whether the

bottlenecks were “a substantial proximate cause of the event and the property damage.” MCL

691.1417(e). “ ‘Substantial proximate cause’ means 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). “The

event” refers to “the overflow or backup of a sewage disposal system onto real property.” MCL

691.1416(j).

-9-

To establish this element, plaintiffs submitted a 2012 study that was prepared on behalf

of defendant stating that “[w]ide spread basement flooding in HH North and HH South are a

direct result of Siphon 11 capacity limitations.” Plaintiffs also provided reports showing the

difference in capacities between the areas upstream and downstream of the bottlenecks. For

instance, the 2012 report provided that “[t]he current capacity of Siphon 11 is 33 million gallons

per day (MGD) and the upstream and downstream sewer capacities are approximately 44 MGD.”

Another report prepared for defendant in 2002 likewise indicated that “Siphon No. 11 has a

lower capacity than the interceptors immediately up and downstream of the siphon.” The report

went on to state that “[s]everal rainfall events produced surcharge upstream of the siphon,”

which was recorded in areas where many plaintiffs lived. Other reports provided a comparison

between the bottlenecks’ capacities and the peak flow rates from a 25-year rain event. The

report estimated that the capacity of the Frances Park Pump Station was 12.7 MGD, while its

peak flow rate for a 25-year rain event was 29.9 MGD. Plaintiffs also provided a table of the

flow rates for Siphon 11 indicating that the capacity flowrates both upstream and downstream of

the siphon were greater than the siphon’s nominal capacity. Williams stated the following in an

affidavit:

I have reviewed Defendant’s documents which indicate that the presence of the

bottlenecks reduces the ability of the Defendant’s sewer system to store excess

sewage. Specifically, on June 12-13, 2013, there were areas downstream of the

various bottlenecks where the rainfall was limited. It is my opinion that without

the presence of the bottlenecks, the sewer systems located in the area that had

very little rain could have provided excess capacity that would have limited, if not

entirely eliminated the surcharging and basement backups that occurred on June

12-13, 2013.

Based on the evidence submitted by plaintiffs, reasonable minds could differ whether the

capacity bottlenecks were a substantial proximate cause of the backup of defendant’s sewer

system into plaintiffs’ basements and subsequent damage to plaintiffs’ property on June 12 and

13, 2013.

Defendant argues that this Court should reject plaintiffs’ argument because Williams

failed “to offer calculations, studies or modeling of the June 12-13, 2013 storm.” However,

defendant cited no law or court rule requiring plaintiffs to submit calculations, studies, or

modeling to establish causation. As the evidence discussed demonstrates, plaintiffs have

submitted ample evidence for reasonable minds to differ whether the capacity bottlenecks were a

substantial proximate cause of the backup of defendant’s sewer system into plaintiffs’ basements

on June 12 and 13, 2013, and the resulting damages. See Skinner v Square D Co, 445 Mich 153,

164; 516 NW2d 475 (1994) (explaining that circumstantial evidence indicating a logical

sequence of cause and effect can be sufficient to create a reasonable inference of causation).

Defendant also argues that this Court should reject plaintiffs’ argument because

Williams’s analysis did not “exclude other reasonable causes.” In support of its argument,

defendant relies on Fingerle v City of Ann Arbor, 498 Mich 910 (2015), in which our Supreme

Court vacated the majority’s opinion in Fingerle v City of Ann Arbor, 308 Mich App 318; 863

NW2d 698 (2014), and adopted the concurring opinion of Judge O’Connell. In Fingerle, the

plaintiff’s home was in an area that was historically prone to flooding, and, in the early 1990s,

-10-

the defendant built a relief storm sewer to help service the area. Id. at 321 (opinion by SAAD, J.).

While this infrastructure reduced the amount of flooding, flooding still occurred. Id. In 2002,

the plaintiff built a large egress window directly across from a private retention basin that had

overflowed in past rain events. Id. Following an intense rainstorm in 2010, rainwater entered

the plaintiff’s home through the egress window. Id. The plaintiff argued that this flooding

occurred because the relief storm sewer was defective; namely, the sewer was too small and the

defendant should have built a bigger one. Id. at 340 (O’CONNELL, J., concurring). Judge

O’Connell held that the plaintiff’s claim failed because the plaintiff failed to establish “that the

alleged defects were a substantial proximate cause of the overflow and of the rainwater in the

plaintiff’s basement.” Id.

Contrary to defendant’s contention in this case, Judge O’Connell’s holding in Fingerle

was not that the plaintiff failed to establish that the alleged defect was a substantial proximate

cause because the plaintiff’s expert failed to address other possible causes. Rather, Judge

O’Connell held that the plaintiff failed to establish that the defect was a substantial proximate

cause because the plaintiff “provided no evidence to establish that the relief storm sewer

exacerbated the flooding, or, for that matter, that the relief storm sewer failed to divert water,”

and the plaintiff’s “evidence [established], at best, that on the night of the intense rainstorm, the

relief storm sewer did not divert enough rainwater to prevent water from entering plaintiff’s

basement egress window.” Id. In other words, the plaintiff failed to establish that the relief

storm sewer was the cause in fact of the plaintiff’s injury,9 and “[i]f factual causation cannot be

established, then proximate cause, that is, legal causation, is no longer a relevant issue.” Ray v

Swager, 501 Mich 52, 64; 903 NW2d 366 (2017).

In this context, Fingerle addressed the fact that the plaintiff’s expert failed to create a

question of fact regarding whether the relief storm sewer, in fact, caused the plaintiff’s damages.

Judge O’Connell explained as follows:

Nothing in plaintiff’s expert’s report assesses the effect of the relief storm sewer

on the degree of basement flooding that had historically occurred or that would

have occurred without the relief storm sewer. Nor does plaintiff’s expert assess

the effect of plaintiff’s decision to add a basement egress window in an area prone

to flooding. Instead, plaintiff’s expert addressed solely the alleged defects in the

relief storm sewer. [Fingerle, 308 Mich App at 341.]

Therefore, contrary to defendant’s assertion, Fingerle did not require plaintiffs’ expert “to

exclude other reasonable causes.”10 Instead, to survive summary disposition, plaintiffs needed to

9

As explained by our Supreme Court, “a court must find that the defendant’s negligence was a

cause in fact of the plaintiff’s injuries before it can hold that the defendant’s negligence was the

proximate or legal cause of those injuries.” Craig v Oakwood Hosp, 471 Mich 67, 87; 684

NW2d 296 (2004).

10

We find further support for our conclusion in the text of the statute. “It is not uncommon that

more than one proximate cause contributes to an injury.” Ray, 501 Mich at 65. MCL

691.1417(3)(e) provides that the defect must be a “a substantial proximate cause” of the backup

-11-

establish a question of fact whether the bottlenecks were a substantial proximate cause of the

backup or overflow of defendant’s sewer system and plaintiffs’ damages, which, as explained,

plaintiffs did. See MCL 691.1417(3)(e); Dextrom, 287 Mich App at 416.

Defendant insists that “[u]nder any analysis, the June 12 and 13, 2013 storm was [a]

substantial proximate cause” as demonstrated by its experts’ analyses. The Michigan Supreme

Court recently discussed the meaning of proximate cause in cases involving the GTLA. In Ray,

501 Mich at 71-72, our Supreme Court stated as follows:

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 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.

We find this language instructive and reject defendant’s argument that the severe storm could

have been a substantial proximate cause of the backup of defendant’s sewer system and the

resulting damages. Rather, the severity of the storm may constitute a superseding cause that

relieves defendant of liability if it was not reasonably foreseeable. See id. at 72. The parties’

meteorologists contest the severity of the storm, and we conclude that a question of fact remains

regarding the severity of the storm and whether it was a superseding cause of the backup of

defendant’s sewer system into plaintiffs’ basements.

Accordingly, plaintiffs presented sufficient evidence upon which reasonable minds could

differ as to whether the bottlenecks were a substantial proximate cause of the backup of

defendant’s sewer system and plaintiffs’ damages. See Dextrom, 287 Mich App at 416. Because

plaintiffs established a question of fact with regard to each element of MCL 691.1417(3), the

trial court properly precluded summary disposition in favor of defendant.

of the sewer system and damages, and MCL 691.1416(l) defines a substantial proximate cause as

a “a proximate cause that was 50% or more of the cause of the event and the property damage or

physical injury.” (Emphasis added). MCL 691.1416(l) does not state that a substantial

proximate cause must be “more than 50%” of the cause, meaning that two proximate causes that

were each 50% the cause of the sewer-system backup and damages would both be a substantial

proximate cause under MCL 691.1417(3)(e). This is further supported by MCL

691.1417(3)(e)’s use of “a substantial proximate cause” instead of “the substantial proximate

cause.” See Robinson v City of Detroit, 462 Mich 439, 460; 613 NW2d 307 (2000) (noting that

“it is particularly indefensible” for a court “to read ‘the proximate cause’ as if it said ‘a

proximate cause’ ” given the Legislature’s history of differentiating the two). Although the

statute requires a plaintiff to establish that the defect was at least 50% of the cause, it does not

require a plaintiff to exclude all other reasonable causes.

-12-

However, the trial court ordered that the remaining factual issues were questions for a

jury. Although MCL 691.1417(3) “clearly provides [plaintiffs’] a potential cause of action,”

Bosanic v Motz Dev, Inc, 277 Mich App 277, 283; 745 NW2d 513 (2007), the sewage-disposal-

system-event exception to governmental immunity is governed by MCL 691.1417(2) and (3), see

Willet, 271 Mich App at 49. Therefore, the remaining factual issues to be resolved in this case

deal with an exception to governmental immunity under MCR 2.116(C)(7). As this Court

explained in Dextrom, 287 Mich App at 430, “[a] trial is not the proper remedial avenue to take

in resolving the factual questions under MCR 2.116(C)(7) dealing with governmental

immunity.” Instead, because the sewage-disposal-system-event exception to governmental

immunity remains a question of law for the court, a remand for an evidentiary hearing is

appropriate. See id. at 432.

Accordingly, we instruct the trial court to hold an evidentiary hearing for the purpose of

obtaining such factual development as is necessary to determine whether defendant is subject to

the sewage-disposal-system-event exception to governmental immunity in MCL 691.1417(2) and

(3). See id. at 432. On the basis of the further factual development presented at that hearing, if

the trial court determines that defendant is subject to the sewage-disposal-system-event

exception to governmental immunity as a matter of law, then it should deny defendant’s motion

for summary disposition under MCR 2.116(C)(7). See id. at 432-433. However, if the trial court

determines that defendant is not subject to the sewage-disposal-system-event exception to

governmental immunity as a matter of law, then the trial court should grant defendant’s summary

disposition motion under MCR 2.116(C)(7). See id at 433.

We affirm but remand for further proceedings consistent with this opinion. No taxable

costs pursuant to MCR 7.219, neither party having prevailed in full. We do not retain

jurisdiction.

/s/ Colleen A. O'Brien

/s/ Mark J. Cavanagh

/s/ Cynthia Diane Stephens

-13-