Fingerle v. City of Ann Arbor

• Decision Date: 02 December 2014
• Docket Number: Docket No. 310352.
• Citation: 863 N.W.2d 698,308 Mich.App. 318
• Parties: FINGERLE v. CITY OF ANN ARBOR.
• Court: Court of Appeal of Michigan — District of US

308 Mich.App. 318

863 N.W.2d 698

FINGERLE

v.CITY OF ANN ARBOR.

Docket No. 310352.

Court of Appeals of Michigan.

Submitted June 5, 2013, at Lansing.

Decided Dec. 2, 2014, at 9:10 a.m.

Conlin, McKenney & Philbrick, P.C., Ann Arbor (by W. Daniel Troyka ), for Lawrence Fingerle.

Stephen K. Postema and Robert W. West, Ann Arbor for the city of Ann Arbor.

Before BECKERING, P.J., and SAAD and O'CONNELL, JJ.

Opinion

SAAD, J.

Defendant city of Ann Arbor appeals the trial court's denial of its motion for summary disposition of plaintiff's claim under MCL 691.1416 to MCL 691.1419 (the “Sewage Act”) of the governmental tort liability act (GTLA), MCL 691.1401 et seq.¹ For the reasons set forth in this opinion, we reverse and dismiss plaintiff's claim.

I. ANALYSIS

Plaintiff's home is located in the Landsdowne Subdivision in Ann Arbor. The neighborhood has historically been prone to flooding, and Ann Arbor, without any legal duty to do so, built drainage infrastructure to service the area in the early 1990s.² Yet, despite the fact that Ann Arbor's infrastructure helped to reduce the amount of rain-caused flooding—a fact that plaintiff concedes³ —flooding continued to occur during and after large rainstorms in the 1990s and 2000s. Plaintiff claims that he was unaware of the risk of flooding. In 2002, he built a finished basement and a large egress window directly across from a private retention basin that had overflowed in past rain events. In June 2010, an intense rainstorm caused substantial flooding in the Landsdowne Subdivision, and rainwater entered plaintiff's home through the egress window that faced the retention basin. Plaintiff's claim, reduced to its essence, is this: had Ann Arbor built its drainage infrastructure of the size it said it would,⁴ the rain would not have flooded and damaged his basement.

Plaintiff's theory of recovery is deceptively simple, yet novel and problematic. If adopted by our Court, it would impose unlimited and unprecedented liability, and create the potential for financially crippling damage awards against cities—and ultimately, their taxpaying citizens—never seen in American or Michigan law.⁵

What makes plaintiff's radical claim even stranger is that it is brought against a governmental entity that the Michigan Legislature has protected with significant governmental immunity laws.⁶ To further underscore the oddity of plaintiff's action, his specific claim is raised under a narrowly defined and strictly limited statutory exception⁷ to governmental immunity.⁸ Again, the Sewage Act⁹ is intended to provide comprehensive and broad immunity, and limited tort liability,¹⁰ to governmental entities, and any exceptions are interpreted narrowly and strictly.¹¹ Plaintiff's attempt to shoehorn his cause of action into this statutory framework would radically expand governmental liability in a statute expressly designed to do just the opposite.

In other words, plaintiff has brought suit for recovery under a statute that is simply inapplicable to his lawsuit. The reason is clear. The Sewage Act provides very limited and strictly circumscribed tort liability for sewage -related events, not contract -based liability for natural rainwater flooding.¹² Stated differently, because the causative “event” in issue is rain, not sewage, and because the statute provides relief for claims that sound in tort, not contract, plaintiff has no claim under the Sewage Act.

That is, absent action by a governmental entity that somehow diverts the natural flow of rainwater onto private property¹³ that would otherwise not have experienced rain-caused flooding, the Sewage Act literally does not address or apply to the consequences of severe weather such as rainstorms.¹⁴ Again, the reason is obvious. No law has ever imposed an obligation (and thus, liability) upon a governmental entity to protect private property owners from acts of God or consequences of severe weather.¹⁵ Historically, this has been an issue for private property owners and their insurers, not an area of liability for cities and their taxpaying residents.¹⁶ And there is nothing in this statute that remotely suggests that the Michigan Legislature made such a dramatic shift in public policy. We should think that if such a seismic change was intended, Michigan's Legislature would have made this very clear.¹⁷ The Sewage Act strongly suggests the opposite result. Again, its expressed intent is to strictly limit liability for sewage-related events caused by governmental entities.¹⁸

In brief, the city is not obliged by the Sewage Act to deal in any way with the consequences of rain that naturally flows from a higher to a lower elevation. In brief, the statute does not cover the event complained of, because it addresses sewage, not rain.

Because the Sewage Act does not create or impose the radical and dangerous theory advanced by plaintiff, and because plaintiff has no common-law cause of action against Ann Arbor, plaintiff cleverly couches his theory of recovery under a deceptively appealing contractual theory—“had the city built what it said it would,¹⁹ my basement would not have flooded.” But this is a tort statute, not a statute that addresses contract-based liability.²⁰ Nothing in the plain language of the statute imposes liability or creates a duty premised on representations of the city.²¹

Close examination of every paragraph, every sentence, and every word of the Sewage Act reveals nothing to support the idea that a city should be held liable for what it said or represented. To the contrary, the statute says expressly that it: (1) abrogates all common-law theories of liability (this would include plaintiff's contract-based claim)²² and (2) is the sole means of recovery for sewage -related events, regardless of the legal theory advanced by any plaintiff.²³ And, because plaintiff's entire theory of recovery is predicated on words and representations, his entire theory of recovery sounds in contract, not tort²⁴ —and contract theories of liability are expressly abrogated by the statute and prohibited by its clear definitions.²⁵

This can be clearly demonstrated by simply removing the statement or representation on which plaintiff relies—“the city said it would build drainage infrastructure of a certain size.” First, had the city built its infrastructure without saying a word, it would have no liability because it had no duty by law to do anything. Moreover, by plaintiff's own admission, Ann Arbor not only did not cause the flooding, or make it worse, but instead, reduced the amount of flooding.²⁶ Under these facts, there has never been a court decision in Michigan holding that the government breached a duty to an owner of private property.

Thus, the only duty alleged in plaintiff's telling arises because the city said it would build drainage infrastructure of a certain size.²⁷ In other words, the city's duty, under plaintiff's theory, is to do what it said it would do. But this is a contract theory, not tort, and not to be found in the Sewage Act. And what of the breach or defect? There is none. Unless it is premised on words, because the city did not build drainage infrastructure of the size it said it would—the defect is created by the words, the defect is the representation. Of course, as mentioned, the city's infrastructure reduced the amount of rainwater that otherwise would have been involved in the flooding. And what of causation? Clearly, the severe rainstorm and plaintiff's inexplicable building of a basement and an egress window in a flood plain across from a private retention basin that had overflowed in the past, would appear to be the cause in fact and proximate cause of plaintiff's damage.²⁸ Yet again, in plaintiff's telling, the cause is premised on the representation—“had the city only built to the size it said it would, my basement would not have experienced rain damage.”

What emerges from plaintiff's hybrid theory of recovery is a cause of action premised solely on words—a cause of action that sounds in contract, not tort. Remove the words, there is no duty. Remove the words, there is no defect. Remove the words, there is no causation. We again emphasize that nothing in the Sewage Act even remotely suggests liability premised on representations, and for good reason. Contract law, with its own peculiar principles and order and allocation of proofs, has no place in a tort statute, much less a self-defined tort statute that advances a public policy of broad governmental immunity, with strictly limited exceptions. Moreover, a cause of action that sounds in contract, such as plaintiff's, is in reality a common-law theory of recovery that is expressly abrogated by the Sewage Act. And, again, for good reason.

First, if we examine plaintiff's claim, he says he knew nothing about the historic flooding in his own neighborhood and presumably, therefore, is unable to claim that he relied on the representation of the city when he built his basement and egress window. Indeed, perhaps this anomaly is what led plaintiff to attempt to shoehorn his contract, representation-based theory of recovery under the Sewage Act. Second and more importantly, were we to accept a contract-based theory of recovery, this would create an endless and unpredictable stream of questions and problems. For example, would a plaintiff have to prove reliance on the representations in order to state a cause of action for detrimental reliance or promissory estoppel?²⁹ This theory or cause of action cannot be found anywhere in the Sewage Act. Further, if one administration were to make a statement of intent, would this bind a successor administration? The answer is certainly not in the Sewage Act. If the project is later judged to be too extravagant or expensive, or the city experiences financial crisis, can the project be modified, downsized, or abandoned, and when and by whom, and who could sue under such circumstances? Troubling questions with no answers in the Sewage Act, for obvious reasons.³⁰ This...