Generally, the government is immune from tort liability for damage or injuries caused when an agency is engaged in the exercise or discharge of a governmental function. However, there are exceptions to this grant of immunity. One such exception is the sewage disposal system event exception as set forth in MCL 691.1416 et seq. Specifically, MCL 691.1417(2) states that “[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.”
A sewage disposal event was at issue in Tschirhart v Pamar Enterprises, Inc, Unpublished Court of Appeals Case No. 336668 (Decided May 17, 2018). In Tschirhart, the Court of Appeals reversed a trial court grant of summary disposition in favor of the homeowners who suffered losses/damage after a backup of rain water and sewage in the Bad Axe sewer system. At the time of the occurrence, a construction company was replacing pavement in the city and as part of their work had leveled the road down, which created a “bath tub like effect.” Additionally, the construction company also removed the manhole covers with steel plates that did not prevent rain water from entering the sewer system. The plaintiffs initially filed suit solely against the construction company, but later amended their complaint to include the city as a defendant. The City filed for summary disposition, which the trial court denied.
The Court of Appeals reversed and remanded for entry of summary disposition in favor of the City citing the proximate cause prong as lacking in plaintiffs’ case. Specifically, plaintiffs identified a laundry list of purported defects in the Bad Axe sewer system, including the the aging clay system that had leaks in the pipes, deteriorating concrete around manholes, an obstruction in the system, leaking capped connections, a hole in a pipe that allowed groundwater to enter the system, as well as tree roots and mud in the system. Given these issues, plaintiffs' causation argument was that the sewer system was in a state of disrepair, and that the construction company exacerbated the problem, which caused the flooding in plaintiffs' homes. Under plaintiffs' causation theory, there were multiple causes that contributed to the sewer backups. However, on the record before the court, among the various alleged causes, the court found it would be pure speculation to find that any defect in the sewer system was a proximate cause that was 50% or more of the cause of the event and the property damage.
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