Willett v. Waterford Twp., Docket No. 265264.

• Decision Date: 02 May 2006
• Docket Number: Docket No. 265264.
• Citation: 271 Mich. App. 38,718 N.W.2d 386
• Parties: Robert WILLETT, Plaintiff-Appellant, and Jackie Da Pra and Alisa Weaver, Plaintiffs, v. WATERFORD CHARTER TOWNSHIP, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

718 N.W.2d 386

271 Mich. App. 38

Robert WILLETT, Plaintiff-Appellant, and Jackie Da Pra and Alisa Weaver, Plaintiffs, v. WATERFORD CHARTER TOWNSHIP, Defendant-Appellee.

Docket No. 265264.

Court of Appeals of Michigan.

Submitted February 7, 2006, at Detroit.

Decided May 2, 2006, at 9:10 a.m.

Released for Publication July 25, 2006.

COPYRIGHT MATERIAL OMITTED

Schwartz Law Firm, P.C. (by Jonathan D. Sweik), Farmington Hills, for Robert Willett.

Cummings, McClorey, Davis & Acho, P.L.C. (by T. Joseph Seward and Karen M. Daley), Livonia, for Waterford Charter Township.

Before: DONOFRIO, P.J., and MURPHY and KELLY, JJ.

DONOFRIO, P.J.

Plaintiff,¹ Robert Willett, appeals as of right an order granting summary disposition in favor of defendant, Waterford Charter Township, in this action arising out of sewage backups into plaintiff's home. On appeal, plaintiff argues that the trial court erred by (1) considering evidence, instead of the pleadings alone, in granting summary disposition under MCR 2.116(C)(8), (2) determining that defendant was entitled to governmental immunity under MCR 2.116(C)(7), (3) determining that an obstruction of defendant's sewer was not a defect under MCL 691.1416(e), and (4) ruling as a matter of law that the conduct of defendant's employees did not constitute a failure to remedy the alleged defect in the sewer. Because we conclude that the trial court did not err in granting summary disposition to defendant under MCR 2.116(C)(7) on the basis of governmental immunity, and because plaintiff failed establish all the requirements of MCL 691.1417(3), specifically that defendant knew or should have known of the alleged defect, or that defendant failed to take reasonable measures within a reasonable time to remedy it, we affirm.

I

This action arises out of a sewage discharge into plaintiff's basement. The sewer line serving plaintiff's home on Coseyburn Road was constructed in 1968 and is located within defendant's jurisdiction. On July 12, 2004, plaintiff's wife was at home at 3542 Coseyburn Road when she saw one of defendant's trucks outside their home. The truck stopped near the manhole cover next to their driveway and a man got out of the truck, lifted the manhole cover for a few seconds, and then put it back in place. Shortly thereafter, raw sewage forcefully flooded plaintiff's basement through the drains in the floor. Mrs. Willett called defendant to inform it of the sewage backup and was told that defendant was aware of a sewage problem in the area. She later spoke with Kathryn Wallace, the safety coordinator of the Waterford Department of Public Works (DPW), who informed her "that there was nothing that the township would do about the sewage backup. . . ." Another homeowner, Chris Hurst,² of 3491 Coseyburn, also reported a sewage backup at his residence to Wallace that day. Hurst's initial call to defendant on July 12, 2004, was at approximately 11:00 a.m.; Mrs. Willett's was at approximately 11:35 a.m.

Between approximately 11:00 a.m. and 11:15 a.m., defendant sent an employee, Randy Bunce, to investigate the sewage backups on Coseyburn. Between approximately 12:00 p.m. and 12:30 p.m., Bunce called defendant's office, and then Tom Coburn, defendant's superintendent of water and sewer, took geographic information system (GIS) drawings to Bunce. The GIS drawings show the location of the sewer, the location of manholes, and the direction of flow. Also, additional crew members arrived on site and found the sewer to be blocked on Walton Boulevard. The crew members opened manhole covers along Coseyburn Road looking for a dry manhole. Once Coburn and Bunce had the GIS drawings at the site, they knew which manholes to open to discover exactly where the sewer was blocked.

In the afternoon of the same day, defendant deployed a "jet truck" in an attempt to dislodge the obstruction. Defendant's crew dislodged the obstruction after going through two tanks of water using the high-pressure jet. After the obstruction was dislodged, the water in the sewer went down immediately between approximately 1:00 p.m. and 1:30 p.m. Between approximately 1:30 p.m. and 2:15 p.m., Wallace conducted an investigation of plaintiff's residence at 3542 Coseyburn, including taking photographs and providing a sewage backup report form.

Although defendant successfully "broke free" the sewer obstruction, the evidence in the record does not definitively indicate the cause of the sewer obstruction. Defendant's position is as follows: "[S]omething was introduced into the Waterford Township sewer line that caused a backup in the sewer line. The item that was placed into the sewer line is believed to be a piece of concrete or asphalt."

Defendant prepared a digital video disc (DVD) of the sewer segments at issue³ in August 2004 using a scoping mechanism and camera that traveled along the sewer's length recording a continuous image of the inside. The DVD does not show any apparent abnormality in the sewers at issue, and the flow in the sewer segments, though slightly variable, is well below capacity. The DVD also shows still photographs of the condition of a basement after a sewage backup.

The township's procedure allowed a person reporting a backup to file a claim using a standard claim form, and the township would then have someone look into the reason for the event. In August 2004, plaintiff submitted a damage claim. Defendant denied plaintiff's claim, citing MCL 691.1416 through MCL 691.1419, contending that plaintiff failed to show that defendant's sewage disposal system had a defect and that defendant knew or should have known of the defect and failed to take reasonable steps to correct the defect.

II

Plaintiff filed a complaint stating one count for violations of MCL 691.1416 et. seq. Plaintiff alleged that he "inquired of the Waterford crew as to the cause of the sewage disposal event" and they told him "that a large piece of concrete or asphalt was blocking Waterford's sewage disposal system." Plaintiff asserted that he "later contacted [defendant's] Supervisor, Carl Solden, who confirmed that the blockage of the sewage disposal system was caused by a large piece of concrete or asphalt."

Defendant filed its motion for summary disposition under MCR 2.116(C)(7) and (C)(8), arguing that it was entitled to governmental immunity for a backup of a sewage disposal system because plaintiff could not establish a defect in the system or that defendant knew or should have known of such a defect. In response, plaintiff argued that defendant was not entitled to governmental immunity because MCL 691.1417 provides an exception to immunity where the overflow or backup is a sewage disposal event and the governmental agency is an appropriate governmental agency.

During a hearing on defendant's motion for summary disposition, the parties acknowledged that no one really knew the exact nature of the obstruction that caused the backup. Plaintiff acknowledged that he was not alleging a construction or engineering defect in the sewer line, but alleged a negligent maintenance issue in either defendant's failure to maintain the sewer lines before the event or as a result of the manner in which defendant corrected the problem.

The trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) and (8) stating as follows in its opinion and order:

Here, it is undisputed that the overflow or backup was caused by a foreign object of unknown origin that obstructed the line of the sewage disposal system. Plaintiff[] ha[s] not alleged another cause for the problem.

The Court finds that the foreign object does not constitute a defect under the statute and has no relation to the construction, design, maintenance, operation or repair of the system. The foreign object did not become a part of the sewage disposal system itself because of the risk of damage that it may have created. There is no evidence that the system was not operating as intended or defective, merely that there was a temporary blockage to the system. Based upon the foregoing, Plaintiff[] cannot establish the essential element of a `defect' and thus Defendant is entitled to governmental immunity.

As to Plaintiff['s] other argument that Defendant's employee acted negligently in opening manhole covers which caused additional backups in [his] basement[], the Court finds that this alleged negligence does not create an event under the Act so as to create an exception to governmental immunity. Moreover, there is no evidence that additional damage was created by the act or that the employee's actions were grossly negligent. Accordingly, Defendant's motion for summary disposition is granted.

This appeal followed.

III

"Governmental immunity is a question of law that is reviewed de novo," and decisions on summary disposition are also reviewed de novo. Pierce v. City of Lansing, 265 Mich.App. 174, 176, 694 N.W.2d 65 (2005), citing Mack v. Detroit, 467 Mich. 186, 193, 649 N.W.2d 47 (2002). Under MCR 2.116(C)(7), "all well-pleaded allegations must be accepted as true and construed in favor of the nonmoving party, unless contradicted by any affidavits, depositions, admissions, or other documentary evidence submitted by the parties." Pierce, supra at 177, 694 N.W.2d 65. But such materials "shall only be considered to the extent that the[y] . . . would be admissible as evidence. . . ." MCR 2.116(G)(6). "If no [material] facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred by governmental immunity is an issue of law." Pierce, supra at 177, 694 N.W.2d 65, citing Maiden v. Rozwood, 461 Mich. 109, 120-122, 597 N.W.2d 817 (1999).

IV

Plaintiff first argues that the trial court erred when it considered evidence outside the pleadings when it decided defendant's motion under MCR 2.116(C)(8). In that regard, plaintiff further argues that defendant's motion should fail because defend...