Pohutski v. City of Allen Park

Decision Date02 April 2002
Docket NumberDocket No. Calendar,Docket No. 9.,Docket No. 8,Docket No. 117935,Docket No. 116949
Citation465 Mich. 675,641 N.W.2d 219
PartiesRobert POHUTSKI, Amy Pohutski, Kierk Sanderlin, Joelle Sanderlin, Alan Bullion, Anthony Corbell, Pietro Fusco, Norma Fusco, Kaye Gardner, Beverly Gardner, Shirley Karapetoff, Karen Kerezi, Brian LaFuente, Michelle LaFuente, Richard Refalko, Dolores Rafalko, William Shamus, Kathleen Shamus, and all others similarly situated, a certified class, Plaintiffs-Appellees, v. CITY OF ALLEN PARK, a Michigan Municipal Corporation, Defendant-Appellant, and John Doe Representatives, Employees, or Agents of the City of Allen Park, Jointly and Severally, Defendants. Jeanne Jones, James Jones, Roger Trost, Carol Trost, Mike Robert, Mike Barthlow, Cindy Barthlow, Susan Brown, Kenneth Brown, Shirley Bryant, David Burhans, Magdalena Chavez, William Chunn, Ivan Gadjev, Florence Gadjev, Rex Glasson, Barbara Glasson, Kevin Hall, Sonia Hall, Lon Hamilton, Diane Hamilton, William Hatton, Elizabeth Hatton, Bill Hofsess, Joan Hofsess, James Hubble, Virginia Hubble, Souren Merucci, Enera Merucci, Mary Pegoraro, Phil Pegoraro, Luis Peressini, Michal Allen Peters, Miguel Prieto, Jill Prieto, Todd Snider, Betty Zaher, and all other similarly situated, Plaintiffs-Appellees, v. City of Farmington Hills, a Michigan Municipal Corporation, and John Doe Representatives, Employees, or Agents of the City of Farmington Hills, Jointly and Severally, Defendants-Appellants.
CourtMichigan Supreme Court

Macuga & Liddle, P.C. (by Steven D. Liddle, Peter W. Macuga, II, and David R. Dubin), Detroit, for the plaintiffs-appellees.

Plunkett & Cooney, P.C. (by Christine D. Oldani and Mary Massaron Ross), Detroit, for city of Allen Park.

Cummings, McClorey, Davis & Acho, P.L.C. (by Timothy S. Ferrand and Joseph Nimako), Livonia, for city of Farmington Hills.

Garan Lucow Miller, P.C. (by Rosalind Rochkind and John J. Gillooly), Detroit, for amicus curiae the city of Dearborn.

Hubbard, Fox, Thomas, White & Bengston, P.C. (by Phillip M. Stevens, Geoffrey H. Seidlein, and Stacy L. Hissong), Lansing, for amicus curiae the Michigan Association of County Drain Commissioners.

Michael J. Beale, Midland, in support of amicus curiae plaintiff-appellee Jones. Reed Stover, P.C. (by Richard D. Reed, Michael B. Ortega, and Patricia R. Mason), Kalamazoo, for amici curiae Mollhagen and Clement.

Kotz, Sangster, Wysocki & Berg, P.C. (by Frederick A. Berg, Jeffrey M. Sangster, Ava K. Ortner, and John T. Below), Detroit, for amicus curiae the Bray plaintiffs.

Secrest, Wardle, Lynch, Hampton, Truex & Morley (by Edward D. Plato and Janet Callahan Barnes), Farmington Hills, for amici curiae the cities of Inkster, Taylor, and Lincoln Park.

Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Marcia L. Howe), Farmington Hills, for amici curiae the cities of Southgate, Ecorse, and Allen Park.

Bodman, Longley & Dahling L.L.P. (by R. Craig Hupp and Kurt M. Brauer), and Wayne County Corporation Counsel (by Mary Rose MacMillan), Detroit, for amicus curiae Wayne County.

Mellon, McCarthy & Van Dusen, P.C. (by James T. Mellon and AnnMarie DeVito), Troy, for amicus curiae Michigan Municipal Risk Management Authority. CORRIGAN, Chief Justice.

In these consolidated cases, this Court once again faces whether the plain language of § 7 of the governmental tort liability act, M.C.L. § 691.1407, permits a trespass-nuisance exception to governmental immunity. Because the Legislature's definition of the word "state" is clear and unambiguous, we hold that it does not. In so holding, we overrule Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), and other cases to the contrary. However, because we are mindful of the effect our holding will have on the administration of justice, we conclude that limiting our holding to prospective application is appropriate.





The city of Allen Park experienced a "ten year storm" on February 17 and 18, 1998. As a result of the high volume of rainfall, raw sewage from the city's sewer system backed up through plaintiffs' floor drains and into their basements. Plaintiffs filed a class action against the city of Allen Park for trespass, nuisance, trespass-nuisance, negligence, and unconstitutional taking in April 1998. Plaintiffs thereafter sought summary disposition of their trespass-nuisance claim under MCR 2.116(C)(10). Plaintiffs argued that defendant was liable as a matter of law under the doctrine of trespass-nuisance and that Hadfield barred governmental immunity as a defense. Defendant opposed the motion, arguing that a claim of trespass-nuisance required a showing of causation, and that it could not be held strictly liable solely on the basis of its ownership of the sewer system.

In a brief opinion rendered from the bench, Wayne Circuit Judge Edward Thomas granted plaintiffs' motion for partial summary disposition, holding that defendant was strictly liable under the "trespass-nuisance" exception to governmental immunity. The Court of Appeals denied defendant's application for interlocutory review. Unpublished order, entered May 23, 2000 (Docket No. 222238).



On August 6, 1998, a "one hundred year storm" dropped approximately 4.6 inches of rain in less than six hours on the city of Farmington Hills, causing flooding throughout the community. As a result, raw sewage from defendants' sewer system traveled up through plaintiffs' floor drains and into their basements. Thirty-seven plaintiffs filed suit against the city of Farmington Hills, alleging claims of trespass, nuisance, trespass-nuisance, negligence, and unconstitutional taking. Plaintiffs moved for summary disposition of their trespass-nuisance claim, arguing that defendant was liable as a matter of law under Hadfield. Defendant opposed the motion and filed a counter motion for summary disposition, arguing that trespass-nuisance is not a strict liability tort and that plaintiffs had failed to establish causation or improper construction, engineering, or maintenance of its sewer system.

Oakland Circuit Judge Jessica Cooper denied defendants' motion and granted plaintiffs' motion for summary disposition of their trespass-nuisance claim. Judge Cooper held that trespass-nuisance was a recognized exception to the governmental immunity statute, M.C.L. § 691.1407, and that no genuine issues of material fact existed regarding the exception's three elements: (1) a condition (nuisance or trespass), (2) cause (physical intrusion), and (3) causation or control (by government).

After the trial court denied reconsideration, defendant applied for leave to appeal in the Court of Appeals. The Court of Appeals granted the application and stayed the pending trial date. Plaintiffs then filed an emergency motion for rehearing. The Court of Appeals granted plaintiffs' motion, vacated its earlier order, and denied leave to appeal. Unpublished order, entered September 29, 2000 (Docket No. 227657).



This Court reviews a trial court's decision to grant summary disposition de novo. Wickens v. Oakwood Healthcare System, 465 Mich. 53, 59, 631 N.W.2d 686 (2001). Questions of statutory interpretation are also reviewed de novo. In re MCI Telecommunications, 460 Mich. 396, 413, 596 N.W.2d 164 (1999).



From the time of Michigan's statehood, this Court's jurisprudence has recognized that the state, as sovereign, is immune from suit unless it consents, and that any relinquishment of sovereign immunity must be strictly interpreted. Manion v. State Hwy. Comm'r, 303 Mich. 1, 19, 5 N.W.2d 527 (1942). Sovereign immunity exists in Michigan because the state created the courts and so is not subject to them. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 598, 363 N.W.2d 641 (1984).

It is important to distinguish between "sovereign immunity" and "governmental immunity":

"[S]overeign" immunity and "governmental" immunity are not synonymous. True, they have been over the years used interchangeably in decisions, but a delineation may be helpful. Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State. The reason is the State is the only sovereignty in our system of government, except as the States delegated part of their implicit sovereignty to the Federal government.

* * *

... Over the years, by judicial construction, this "sovereign" immunity has been transmogrified into "governmental" immunity and made applicable to the "inferior" divisions of government, i.e., townships, school districts, villages, cities, and counties, but with an important distinction. These subdivisions of government enjoyed the immunity only when engaged in "governmental" as distinguished from "proprietary" functions. [Myers v. Genesee Auditor, 375 Mich. 1, 6, 8-9, 133 N.W.2d 190 (1965) (opinion of O'HARA, J.) (emphasis in original).]

In Williams v. Detroit, 364 Mich. 231, 250, 111 N.W.2d 1 (1961), Justice EDWARDS, joined by Justices T.M. KAVANAGH, SMITH, and SOURIS, wrote: "From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan. In this case, we overrule preceding court-made law to the contrary." Justice BLACK, in his concurring opinion, stated that governmental immunity would be abolished only for municipalities, not the state and its subdivisions. Id. at 278, 111 N.W.2d 1.

As we noted in Ross, supra at 605, 363 N.W.2d 641, the Legislature enacted the governmental tort liability act in 1964 in reaction to Williams' abolition of common-law governmental immunity for municipalities, and in anticipation of a similar abrogation of immunity for counties, townships, and villages. The act "was intended to provide uniform liability and immunity to both state and...

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