                          STATE OF MICHIGAN

                           COURT OF APPEALS



WILLIAM WOODS and JANET GRAY-                                      UNPUBLISHED
WOODS,                                                             January 9, 2018

               Plaintiffs-Appellees,

v                                                                  No. 334733
                                                                   Genesee Circuit Court
GENESEE COUNTY DRAIN COMMISSION,[1]                                LC No. 14-103684-CE

               Defendant-Appellant.


Before: METER, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right a September 6, 2016, order denying its motion for summary
disposition based on governmental immunity.

        On May 8, 2015, plaintiffs, who own a home in Linden in Genesee County, filed an
amended complaint alleging that a homeowners’ association2 constructed a detention3 pond on
nearby property, and the pond “and associated drains and structures” comprise a sewage system.
Plaintiffs alleged that the system was defective and caused excessive water flow on plaintiffs’
property on May 12, 2014, leading to damages. Plaintiff set forth five counts, labeled as follows:




1
 The trial court entered an order changing the name of this party to “Jeffery Wright, Genesee
County Drain Commissioner, Division of Surface Water Management,” but the lower-court
documents, including the order being appealed, continued to display “Genesee County Drain
Commission” as the party. Accordingly, we employ this latter moniker.
2
  Plaintiffs sued the homeowners’ association as well as defendant, but reached a settlement with
the association; it was subsequently dismissed from the case.
3
 Various parties use the term “retention pond” instead of “detention pond” throughout the lower-
court record.


                                               -1-
(1) alteration of natural surface water flow, (2) negligence, (3) trespass, (4) nuisance, and (5)
“governmental liability for negligence under MCL 691.1416 et seq.”4

        On June 16, 2016, defendant filed a motion for summary disposition under MCR
2.116(C)(7). Defendant contended that plaintiffs had not set forth sufficient evidence to satisfy
the statutory requirements for imposition of liability on it. In particular, defendant stated that (1)
the system had merely become overwhelmed by a “100-year flood” on May 12, 2014, and
plaintiffs could not demonstrate that the system had any defect; (2) even if there had been a
defect, plaintiffs could not demonstrate that defendant knew or should have known about it; and
(3) any alleged defect was not the proximate cause of any damage to plaintiffs’ property; the
cause, instead, was the rare rain event.

        Defendant attached various exhibits to its motion, including deposition transcripts.
Plaintiff Janet Gray-Woods testified that there was “heavy rain” on May 12, 2014. She stated
that the water flowing towards the house5 was “very polluted [with] debris.” She stated that a
drain that was “supposed to take water” “couldn’t take it,” and she ran water pumps for “hours”
to try to stem the flooding. Gray-Woods stated that she did not “know of any defect in the
retention pond and/or retention pond system that caused [the] flooding.”

        Plaintiff William Woods testified that three detention ponds sat above the property and he
did not know from which pond or combination of ponds the excess water came on May 12, 2014.
Woods stated that he could not be sure, but it seemed as if the pipe that distributes water to
Byram Lake was distributing water that day “to the maximum.” He stated that no flooding event
like the one on May 12, 2014, had occurred in the 19 or 20 years he had lived at the location. He
stated that some flooding had occurred in the past but he did not specify any dates for this
flooding; he also stated that the water did not come from the same location (i.e., the detention
ponds) those times.

        Woods testified that firemen set up a pumping system on May 12, 2014, to deal with the
water in attempt to prevent homes from flooding and that this “helped.”

        When asked if the piping system “wasn’t performing properly or . . . possibly there was
just too much water for it to handle,” Woods answered, “I’m unsure.” He admitted that he did
not know what caused the overflow from the detention-pond system. He stated that he believed
the ponds were not being maintained properly because there was “a lot of debris” in two of them,
he had noticed erosion at some unspecified earlier date, and there had been ongoing “[d]ischarge
sediment into the lake.”



4
  The wording of the complaint is less than clear in that the first four counts refer to the plural
“defendants,” but from context and from plaintiffs’ briefing below and on appeal, it is apparent
that only the final count applies to defendant.
5
 Plaintiff William Woods indicated that the flowing water was from a detention pond or
multiple detention ponds situated above the property.


                                                 -2-
       Defendant attached to its motion a work-order summary showing that preventative
maintenance was performed on the drainage system in question on September 25, 2013.

        On August 17, 2016, plaintiffs filed a response to defendant’s motion. In arguing that
they had established a prima facie case, they relied, in part, on a report from Bruce Bawkon from
Asti Environmental. Bawkon set forth the capacity of the ponds servicing the area in question
and indicated that overflow from the ponds would discharge onto the road on which plaintiffs’
house is situated (Lakeview Park Drive). Bawkon stated that current “GCDC-WWS Design
Specification” (GWDS) standards “require[] overflow from detention ponds to be channeled to a
public body of water with the available capacity of [sic] contain the projected overflow.” He
stated that he could not determine if the system was in accordance with GWDS standards
because the GWDS standards for the date of construction were not available. He also stated:
“The capacity of the discharge pipes could also be affected by blockage. In order to determine if
there are additional restrictions to flow, the discharge pipes would require a camera inspection.”

         Plaintiffs claimed in their response brief that Bawkon testified that the system was
defective because overflow should have been directed to a body of water and not to Lakeview
Park Drive. Plaintiffs also claimed that Thomas Zeimet, the “original engineer on the drainage
system,” testified that “there must be accommodation for overflow of the detention pond and that
obviously the system had failed in this flooding event.” Plaintiffs attached an affidavit of their
attorney, Craig McAra, who stated that he was “mak[ing] this affidavit for the purpose of
verifying the current unavailability of deposition transcripts of [p]laintiffs’ expert witness Bruce
Balkon [sic] and [d]efendant’s expert witness Thomas Zeimet.” He averred that the court
reporter had been unable to complete the transcripts but that “Balkon [sic] and Zeimet both
testif[ied] at deposition that the relevant detention pond should have accommodated overflow
thereof to avoid damage to downgradient property. Both individuals are believed to have
testified that the detention pond failed in this respect.”

        Defendant filed an additional brief on August 22, 2016. Defendant attached records
showing a total of 3.2 inches of rain falling in the relevant area between 8 a.m. and 1:45 p.m. on
the date of the incident. Defendant also stated that Zeimet “testified that he does not know the
reason why water was moving over the land” and that “[o]ne . . . factor[]” could be that “the rain
event exceeded the design capacity of the detention pond.” Defendant did not provide a
transcript of Zeimet’s deposition.

        The motion hearing took place on August 22, 2016. Defense counsel argued that a very
unusual rain event had occurred that simply overwhelmed a system that normally functions
properly. He represented that Zeimet testified that “all the numbers worked out” when he
designed the drainage system. Plaintiffs’ counsel contended that defendant had not disputed the
pleadings on some issues and that, therefore, these issues must be construed in plaintiffs’ favor
because the summary-disposition motion was brought under MCR 2.116(C)(7) and not (C)(10).
Plaintiff then relied on the statements of Bawkon and referred to the affidavit regarding
Bawkon’s purported testimony. Defense counsel, in rebuttal argument, stated: “[p]laintiffs’
argument comes down to simply that if you poured too much water in [a] cup, the person who
designed that cup has defectively designed it.”



                                                -3-
       The trial court’s ruling, in its entirety, was:

               Well, I’ll view this under a theory that there was poor design, that the
       detention pond overflowed. It didn’t follow the swale which had drains for water
       flood. And once the flow was too powerful, then the pond overflowed toward the
       [p]laintiffs’ house. There was – [p]laintiff says there’s – [p]laintiffs’ expert –
       engineering expert says that the detention pond lacked a defined overflow
       channel.

               And really what it comes down to is is [sic] I can’t make that decision
       today just from written arguments by lawyers. I need to see and hear the
       testimony, probably inspect the site. There’s a disagreement about what
       predictions a design engineer is supposed to make in the first place. So I’m gonna
       have to hear from them what the standard is. Are they supposed to design for
       hundred-year floods or two[-]hundred-year floods?

               There’s too many issues for me to rule upon, so I’ll deny the motion.

         After the trial court’s ruling, the deposition transcripts for Bawkon and Zeimet became
available, and they have been provided to us on appeal. Normally, we limit our review to
documents in the lower-court record, but both parties cite to the transcripts in their appellate
briefs and therefore, given the de novo standard of review for summary-disposition rulings, we
find it appropriate to summarize the depositions.

        Bawkon agreed that the discharge pipes from the drainage system were “correct[.]”
When asked, “You don’t have an opinion that how they were installed wouldn’t handle a 100
year flood[?]” he answered, “Correct.” However, he later stated that “[t]he overflow discharge
channel . . . terminates at Lakeview Park Drive, which could cause the flow of water from the
detention pond that exceeded its capacity to go into the street.” He stated that this was “not
typical” and that Genesee County’s website indicates that “you have to discharge water from
your detention pond to a drain or body of water that has the capacity to accept that additional
quantity of water.” He admitted, however, that he did not know what standards were used to
determine excess flow (such as “a hundred year flood . . . , a 25 year flood . . . , a thousand year
flood”). He opined that the system was defective because “the overflow channel discharges to a
street which would cause flooding.” He stated that an underground culvert would address the
issue but admitted that he did not know if defendant had the authority to install such a culvert.

       Zeimet testified that he designed the detention-pond system. He stated that there is “no
national, international standard of how a detention pond needs to be constructed.” He stated that,
with regard to the system in question, overflow would “go to the existing swale, and then to an
enclosed 18-inch storm sewer down to the lake." He stated that “the outlet was approved,”
presumably referring to the 18-inch pipe. He stated that storm sewers are generally designed for
a ten-year storm and that “you can always come up with a larger storm than the pipes could
handle.” Zeimet stated that the system was designed in accordance with “whatever the standards
was [sic], I believe it’s a hundred year. I’m not sure.”




                                                  -4-
       We review de novo a trial court’s ruling regarding a motion for summary disposition.
Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). Under MCR
2.116(C)(7), the court considers the “affidavits, pleadings, depositions, admissions, and other
documentary evidence,” and “[t]he contents of the complaint are accepted as true unless
contradicted by documentation submitted by the movant.” McLean v McElhaney, 289 Mich App
592, 597; 789 NW2d 29 (2010) (quotation marks and citations omitted). “If the pleadings or
documentary evidence reveal no genuine issues of material fact, the court must decide as a
matter of law whether the claim is statutorily barred” because of governmental immunity. Id.

       MCL 691.1417(2) provides 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 “sewage disposal system event” is defined as

       the overflow or backup of a sewage disposal system onto real property. An
       overflow or backup is not a sewage disposal system event if any of the following
       was a substantial proximate cause of the overflow or backup:

              (i) An obstruction in a service lead that was not caused by a governmental
       agency.

              (ii) A connection to the sewage disposal system on the affected property,
       including, but not limited to, a sump system, building drain, surface drain, gutter,
       or downspout.

               (iii) An act of war, whether the war is declared or undeclared, or an act of
       terrorism. [MCL 691.1416(k).]

“ ‘Substantial proximate cause’ ” means a proximate cause that was 50% or more of the cause of
the event and the property damage or physical injury.” MCL 691.1416(l).

       MCL 691.1417(3) states:

               If a claimant, including a claimant seeking noneconomic damages,
       believes that an event caused property damage or physical injury, the claimant
       may seek compensation for the property damage or physical injury from a
       governmental agency if the claimant shows that all of the following existed at the
       time of the event:

              (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.




                                               -5-
               (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.

        Plaintiffs have failed to set forth a prima facie case under MCL 691.1417(3) because the
pleadings and documentary evidence show no genuine issue regarding a defect in the drainage
system about which defendant knew, or in the exercise of reasonable diligence, should have
known. The crux of plaintiffs’ argument is that the system was improperly designed because it
could not handle the amount of rain that fell on May 12, 2014. It is true that Bawkon opined that
the system was “defective” because of the discharge of overflow water to the street, but Bawkon
also stated that he did not know how the primary discharge pipes would handle a 100-year flood
and did not know what standards were used to determine excess flow. Zeimet stated that the
system was designed in accordance with “whatever the standards [were], I believe it’s a hundred
year” and gave unrebutted testimony that there could always be a larger storm than pipes are
designed to handle. Plaintiffs claim that “[t]he lack of accommodation for overflow for drainage
was apparent upon casual observation,” but given the unrebutted testimony that the system was
designed to standards existing at the time of construction and given the lack of a similar flooding
incident in the 19 or 20 years that Woods had lived at the address, there is simply no basis to
conclude that the system had a defect about which defendant knew or should have known.
Woods testified that there had been some less-extensive flooding on the property in the past, but
he stated that the water in those occasions had come from a different location than the water on
May 12, 2014, and he did not specify whether those earlier incidents were before or after the
installation of the system in question.6 Quite simply, the system had been functioning properly
as designed for many, many years, and defendant had no reason to believe that it was defective.

       Our dissenting colleague states that Woods testified “that his garage and porch had
previously flooded on at least three occasions during heavy rains and that he had notified the
defendant only to receive a response he described as ‘little to none.’ ” We emphasize, first, that
Woods stated that there had been flooding in his home in the past, but he could not specify a
timeframe; he had lived there for 22 years, before installation of the system in question. In
addition, he also specifically testified that the water “on all those [prior] occasions” did not come
from “the same location. This one came from the retention.” The testimony in question simply
does not support plaintiffs’ position.




6
  Plaintiffs stated in the complaint that “residents . . . have complained to various government
agencies about . . . flooding” since construction of the system, but again, Woods testified that the
water came from a different location in the prior incidents. He said that the water was “[n]ot
from the same location. This one came from the retention.”


                                                 -6-
        Reversed and remanded for entry of judgment in favor of defendant. We do not retain
jurisdiction.



                                                        /s/ Patrick M. Meter
                                                        /s/ Joel P. Hoekstra




                                            -7-
