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 claimant seeking compensation for property damage from a sewage disposal system event must show all of the following 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.
Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006)(citing MCL 691.1417(3)).
Murawski v City of Essexville, Unpublished Court of Appeals Case No. 341857 (Decided January 22, 2019) involved a dispute over whether there was a defect in a sewage system. The plaintiff homeowner experienced sewage flooding over a period of years that culminated in over fifty gallons of human waste and sewer water flooding his home in 2016. Following the flooding, the homeowner hired a sewer contractor to consult on the cause of the issues. The contractor hired by the homeowner found that “the sanitary sewer line was severed and/or cut and was not connected to any drain whatsoever.” The plaintiff subsequently filed suit alleging that city employees severed the sewage line while performing work on their drainage system in 2002.
The City moved for summary disposition arguing that there was no genuine issue of material fact as to whether there was a defect in the sewage system and that it was immune from liability. The trial court denied the City’s motion for summary disposition finding that there was a genuine issue of material fact “as to whether defendant’s employees caused a defect in the sewage disposal system, or whether the defect was in plaintiff’s sewage service lead for which he was responsible.” The Court of Appeals agreed finding that “accepting all allegations in the complaint with regard to the defect as true, in addition to [plaintiff’s experts] opinions about the cause of the defect, and contrasting them with [defendant’s city manager’s] opinion about the non-existence of a defect in the sewage disposal system,” a genuine issue of material fact existed “whether defendant’s sewage disposal system had a defect.”
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