                         STATE OF MICHIGAN

                            COURT OF APPEALS



ROBERT TSCHIRHART, MISTY A. PRILL,                 UNPUBLISHED
CECI PRATT, LELAND PRATT, MADALYN                  June 28, 2016
O’CONNOR, CHRISTOPHER A. NATZEL,
SHIRLEY A. MURRAY, DUSTIN R. MAURER,
MARILYN R. MCALLISTER, JANEL
MAYWORM, ANN MINNICK MASSEY,
DOLORES LEONARD, MICHAEL J. KOHLER,
KENNETH A. HACKER, SR., ESTHER EVANS,
SAMUEL M. GAGE, RUTH ANN ETZLER,
LEONARD J. ETZLER, WILLIAM H.
EPPENBROCK, PETER B. CAPLING, SUE
CAPLING, ROBERT R. BECHTEL, JAMES A.
BRAUN, and TODD A KLOSKA,

              Plaintiffs-Appellees,

v                                                  No. 327125
                                                   Huron Circuit Court
PAMAR ENTERPRISES, INC.,                           LC No. 14-105257-NZ

              Defendant-Appellant,
and

CITY OF BAD AXE, CITY OF BAD AXE
DEPARTMENT OF PUBLIC WORKS, and CITY
OF BAD AXE WASTE WATER TREATMENT
FACILITY,

              Defendants.


Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.




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        This action stems from plaintiffs’ claims that defendant Pamar Enterprises and the three
municipal defendants1 negligently caused damage to their homes and negligently inflicted
emotional distress upon them. The trial court entered an order denying defendant’s motion for
partial summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim) with respect
to the negligence infliction of emotional distress claim. Defendant appeals by leave granted.2
For the reasons set forth in this opinion, we reverse and remand for entry of an order of partial
summary disposition in favor of defendant.

                                 I. FACTUAL BACKGROUND

        Plaintiffs are 24 individuals that reside in or own property in Bad Axe, Michigan. They
alleged that in 2013, the Michigan Department of Transportation (DOT) contracted with
defendant to perform asphalt resurfacing and other road construction tasks on highway M-53
within the city of Bad Axe. According to plaintiffs, defendant closed off the roadway, removed
the roadway surface leaving a sunken gravel base, and cut the sanitary sewer system openings
level with the ground. On July 6 and 8, 2013, plaintiffs asserted, the Bad Axe area received
heavy rainfall, and rainwater accumulated in the worksite and entered the sanitary sewer system
because of the roadway construction. The large amount of water that entered the sewer system
allegedly caused sewage and water to backup into plaintiffs’ homes.

        Plaintiffs alleged negligence, contending that defendant’s construction method and failure
to monitor the worksite caused the water and sewage damage to their property. Plaintiffs also
alleged negligent infliction of emotional distress (NIED), asserting that they suffered anxiety and
sleep loss due to worry about future backups and emotional trauma with respect “to lost
irreplaceable heirlooms, memorabilia, and livelihoods.” They also alleged that they might have
suffered other injuries and physical manifestations that would be uncovered during the course of
discovery.

        Defendant moved for partial summary disposition under MCR 2.116(C)(8) alleging that
the NIED claim should be dismissed, arguing that Michigan caselaw does not recognize damages
for NIED arising from economic losses. Plaintiffs countered that their complaint asserted
noneconomic damages resulting from NIED, making the caselaw cited by defendant
distinguishable. They further asserted that their NIED claim was about the emotional toll the
sewage backups had on them, not about damaged property.

        The trial court denied defendant’s motion, concluding that “there’s a distinction . . .
between the damages in the case that [defendant] cited and . . . what’s being sought here . . . .”
Defendant then again moved for summary disposition under both MCR 2.116(C)(8) and (10) and
also filed an application for leave to appeal with this Court, arguing that the trial court erred in


1
 Because only defendant Pamar Enterprises has appealed, all references to “defendant” in this
opinion refer only to it.
2
  Tschirhart v Pamar Enterprises, Inc, unpublished order of the Court of Appeals, entered
September 10, 2015 (Docket No. 327125).


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denying its first motion for partial summary disposition. This Court then granted leave to appeal
and limited it to the issues raised in defendant’s application and supporting brief.3 The trial court
reserved its ruling on the second motion for summary disposition pending the resolution of this
appeal.

                                          II. ANALYSIS

        We review de novo a trial court’s decision on a motion for summary disposition. Oliver
v Smith, 290 Mich App 678, 683; 810 NW2d 57 (2010). “A motion under MCR 2.116(C)(8)
tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff
has stated a claim on which relief may be granted.” Maple Grove Twp v Misteguay Creek
Intercounty Drain Bd, 298 Mich App 200, 206; 828 NW2d 459 (2012) (citation and internal
quotation marks omitted). “All factual allegations supporting the claim are accepted as true, as
well as any reasonable inferences or conclusions that can be drawn from the facts.” ETT
Ambulance Serv Corp v Rockford Ambulance, Inc, 204 Mich App 392, 395; 516 NW2d 498
(1994). “However, the mere statement of a pleader’s conclusions, unsupported by allegations of
fact, will not suffice to state a cause of action.” Id.

       In Price v High Pointe Oil Co, Inc, 493 Mich 238; 828 NW2d 660 (2013), our Supreme
Court held that noneconomic damages are not recoverable in cases premised on a claim of
negligent destruction of property, explaining as follows:

              The measure of damages for negligent injury to real property, if permanent
       and irreparable is the difference between its market value before and after the
       damage. Accordingly, the long-held common-law rule in Michigan is that the
       measure of damages for the negligent destruction of property is the cost of
       replacement or repair. Because replacement and repair costs reflect economic
       damages, the logical implication of this rule is that the measure of damages
       excludes noneconomic damages and the latter are not recoverable for the
       negligent destruction of property. [Id. at 246-248 (quotation marks and citations
       omitted) (emphasis added).]

        In this case, reading plaintiffs’ complaint as a whole, it is apparent that, with respect to
the NIED claim, plaintiffs alleged that defendants acted in a negligent manner, that the
negligence caused damage to their homes, and that the damage to the homes in turn, caused them
to suffer emotional distress. See Adams v Adams, 276 Mich App 704, 710-711; 742 NW2d 399
(2007) (noting that “[i]t is well settled that the gravamen of an action is determined by reading
the complaint as a whole, and by looking beyond mere procedural labels to determine the exact
nature of the claim.”) Specifically, plaintiffs alleged that they had “sewage flow into their homes


3
 Defendant argues in its brief on appeal that summary disposition should be granted under MCR
2.116(C)(10). However, defendant based its application for leave to appeal solely on MCR
2.116(C)(8); consequently, we decline to address defendant’s argument relating to MCR
2.116(C)(10).


                                                -3-
because of [defendant’s] negligence,” that plaintiffs were “anxious regarding additional sewage
backup in their basements. . .” that plaintiffs lost sleep “due to worry about future sewage
backups,” and that plaintiffs “suffered emotional trauma with respect to lost irreplaceable
heirlooms, memorabilia, and livelihoods.” Plaintiffs also alleged that they “have suffered other
injuries and physical manifestations which will be discovered during the course of discovery in
this matter.” The gravamen of these claims arise from the alleged damage that defendant caused
to plaintiffs’ properties. Thus, plaintiffs sought noneconomic damages arising from damage to
property and, accepting all of the allegations in the complaint as true, plaintiffs have failed to
assert a claim on which relief can be granted. Price, 493 Mich at 246-248. Because we are
bound by our Supreme Court’s decision in Price, we must find that defendant was entitled to
summary disposition with respect to the NIED claim. Maple Grove Twp, 298 Mich App at 206.

       Moreover, plaintiffs’ NIED claim fails to allege facts relevant to any of the four elements
required to establish a prima facie claim of NIED. “Michigan has recognized a cause of action
based on negligence in a parent who witnesses the negligent infliction of injury to his or her
child and suffers emotional distress as a consequence.” Wargelin v Sisters of Mercy Health
Corp, 149 Mich App 75, 80; 385 NW2d 732 (1986) (citations omitted). The four elements of
NIED are:

       (1) the injury threatened or inflicted on the third person must be a serious one, of
       a nature to cause severe mental disturbance to the plaintiff; (2) the shock must
       result in actual physical harm; (3) the plaintiff must be a member of the
       immediate family, or at least a parent, child, husband or wife; and (4) the plaintiff
       must actually be present at the time of the accident or at least suffer shock fairly
       contemporaneous with the accident. [Id. (quotation marks and citations omitted).]

         In this case, plaintiffs did not allege facts to support any of these elements. First,
plaintiffs do not allege that the sewage backup physically inflicted a serious injury on any third
person. Instead, plaintiffs base their claim entirely on distress caused by harm to their real and
personal property. Second, plaintiffs do not allege that they suffered any physical harm because
of the shock of witnessing an injury to a third person. Instead, plaintiffs allege anxiety about
future overflows, lost sleep, and emotional trauma. Their assertion that plaintiffs “may have
suffered other injuries and physical manifestations which will be discovered during the course of
discovery” is entirely speculative. Furthermore, any physical manifestation that plaintiffs might
suffer from is not connected to their witnessing of harm to a third party. Third, plaintiffs’ failure
to identify a third party necessarily means that they have no close familial relationship with any
such party. Fourth, plaintiffs do not allege that they contemporaneously witnessed any accident,
i.e., any physical injury to a third party caused by the sewer backup. In short, plaintiffs did not
assert facts supporting any of the elements of NIED. Wargelin, 149 Mich App at 81.

       In sum, there is no factual development that could support plaintiffs’ theory of recovery
with respect to their NIED claim; accordingly, the trial court erred in denying defendant’s
motion for partial summary disposition as to that claim under MCR 2.116(C)(8).




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       Reversed and remanded for entry of an order granting partial summary disposition in
favor of defendant. No costs awarded. MCR 7.219(A). We do not retain jurisdiction.



                                                       /s/ William B. Murphy
                                                       /s/ Henry William Saad
                                                       /s/ Stephen L. Borrello




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