                         STATE OF MICHIGAN

                          COURT OF APPEALS



ROBERT TSCHIRHART, MISTY A. PRILL,                            UNPUBLISHED
CECI PRATT, LELAND PRATT, MADALYN                             May 17, 2018
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, A. JAMES
BRAUN, and TODD A. KLOSKA,

              Plaintiffs-Appellees,

v                                                             No. 336668
                                                              Huron Circuit Court
PAMAR ENTERPRISES, INC.,                                      LC No. 14-105257-NI

              Defendant-Appellee,

and

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

              Defendants-Appellants.


Before: O’CONNELL, P.J., and HOEKSTRA and K. F. Kelly, JJ.

PER CURIAM.

       In this action involving the sewer system disposal event exception to governmental
immunity, defendants City of Bad Axe, City of Bad Axe Department of Public Works, and City
of Bad Axe Waste Water Treatment Facility (“the Bad Axe defendants”) appeal as of right the
order denying their motion for summary disposition on governmental immunity grounds under

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MCR 2.116(C)(7). Because reasonable minds could not conclude that defects in the sewer
system were a substantial proximate cause of the sewer event and the damage to plaintiffs’
properties, we reverse and remand for entry of summary disposition in favor of the Bad Axe
defendants.

                                             I. FACTS

       Plaintiffs are residents and property owners in Bad Axe, Michigan, who experienced
flooding in their homes caused by a backup of rain water and sewage in the Bad Axe sanitary
sewer system in July 2013.

        Before the backups into plaintiffs’ homes, Pamar Enterprises, Inc. (“Pamar”) was
engaged to perform construction work within the city of Bad Axe, including asphalt
reconstruction and storm and sanitary sewer projects. This construction was ongoing in July
2013. As part of the project, Pamar removed the existing pavement in the construction zone,
reducing the road to a “dirt/stone” base. The elevation of the construction zone was lower than
the surrounding area, creating a “bath-tub” like effect. Pamar also removed the manhole covers
in the construction zone, leveling them down to grade. To allow traffic to pass, the open
manholes were covered with steel plates. But, these steel plates did not prevent rain water in the
construction area from entering into the sewer system.

        On Saturday, July 6 and July 8, 2013, Bad Axe received a substantial amount of rain.
The construction area was covered in a large pool of water, approximately 100 yards long and 8
to 10 inches deep, and water entered the sewer system through a manhole at the construction site.
On July 8, 2013, the Michigan Department of Transportation (MDOT) instructed Pamar to build
up manhole “chimneys” around the exposed manholes to prevent water from infiltrating the
sanitary sewer system, and Pamar complied. However, at some point, a Pamar employee moved
a brick from a manhole chimney, allowing water to again seep into the manhole. Following the
substantial rains on July 6 and July 8, plaintiffs experienced backups in their homes, which
allegedly caused property damage.

        Plaintiffs initially filed suit solely against Pamar, alleging that Pamar’s negligence at the
construction site allowed water to enter the sewer system and caused the backups. However,
after Pamar filed a notice of non-party fault, plaintiffs amended their complaint to include the
Bad Axe defendants. With regard to the Bad Axe defendants, plaintiffs alleged there were
“systematic problems and insufficiencies of its sanitary sewer system” that were a substantial
proximate cause of the backups into plaintiffs’ homes. The Bad Axe defendants moved for
summary disposition under MCR 2.116(C)(7), which the trial court denied. The Bad Axe
defendants now appeal as of right.

                                          II. ANALYSIS

       On appeal, the Bad Axe defendants argue that the trial court erred by denying their
motion for summary disposition. According to the Bad Axe defendants, plaintiff failed to
present evidence to establish material questions of fact regarding the applicability of the sewer
system event exception to governmental immunity because there is no evidence: (1) that there
was a defect in the sewer system, (2) that the Bad Axe defendants knew, or should have known,

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of the defect, (3) that the Bad Axe defendants failed to take reasonable steps in a reasonable time
to remedy the defect, and (4) that the defect was a substantial proximate cause of the sewer
system event and the damage to plaintiffs’ properties. In contrast, both plaintiffs and Pamar
contend that the trial court properly denied the motion for summary disposition because material
questions of fact remain.

                                A. STANDARDS OF REVIEW

        We review de novo a trial court’s ruling on a motion for summary disposition. Willett v
Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). The applicability of
governmental immunity is also reviewed de novo. Id. When claims are barred by “immunity
granted by law,” summary disposition is properly granted under MCR 2.116(C)(7). “When it
grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary evidence
submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence
and pleadings in the light most favorable to the nonmoving party.” McLain v Lansing Fire
Dep’t, 309 Mich App 335, 340; 869 NW2d 645 (2015). “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.” Willett, 271 Mich App at 45
(quotation marks, citation, and brackets omitted).

                       B. THE SEWER SYSTEM EVENT EXCEPTION

        “[T]he government tort liability act (GTLA), MCL 691.1401 et seq., broadly shields and
grants to governmental agencies immunity from tort liability when an agency is engaged in the
exercise or discharge of a governmental function.” Moraccini v Sterling Hts, 296 Mich App 387,
391; 822 NW2d 799 (2012). There are exceptions to the GTLA. Nawrocki v Macomb Co Rd
Comm, 463 Mich 143, 156; 615 NW2d 702 (2000). However, these exceptions must be
narrowly construed. Id. at 158.

       One of the exceptions to governmental immunity is the sewage disposal system event
exception set forth in MCL 691.1416 et seq. Specifically, 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.” To avoid governmental immunity
under this exception, there are several requirements a claimant must satisfy. Linton v Arenac Co
Rd Com'n, 273 Mich App 107, 113; 729 NW2d 883 (2006). Among these requirements, a
claimant seeking compensation for property damage from a sewage disposal system event must
show all of the following elements:

               (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.




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               (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. [MCL 691.1417(3); Willett, 271 Mich App at
       49.].

As defined by statute, the term “defect” refers to “a construction, design, maintenance, operation,
or repair defect.” MCL 691.1416(3). Subject to certain caveats, a “sewage disposal system
event” is “the overflow or backup of a sewage disposal system onto real property.” MCL
691.1416(k). And, notably, for purposes of the sewer disposal system event exception, the
phrase “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).

         In the trial court and on appeal, the Bad Axe defendants have challenged whether
plaintiffs have sufficient evidence to establish four of these elements. However, in our judgment
the dispositive question in this case is whether, viewing the record in a light most favorable to
plaintiff, reasonable minds could conclude that the alleged defects identified by plaintiffs and
Pamar constitute a “substantial proximate cause” of the sewer system disposal event and the
damage to plaintiffs’ property. In this regard, we note that plaintiffs and Pamar have identified a
laundry list of purported defects in the Bad Axe sewer system, including the facts that the aging
vitrified clay system had leaks in the pipes, deteriorating concrete around manholes, an
obstruction in the system in the form of a large rock, leaking capped connections and a hole in a
pipe that are allowing groundwater to enter the system, as well as tree roots and mud in the
system.1 Plaintiffs and Pamar have also offered evidence—including testimony and video of the
sewer system—to support the existence of these conditions. However, even assuming that these
conditions amount to defects within the meaning of MCL 691.1416(3),2 we fail to see any
evidence in the lower court record that would allow reasonable minds to conclude that these
alleged defects were “a proximate cause that was 50% or more of the cause of the event and the
property damage.” MCL 691.1416(l).

        “[P]arties opposing a motion for summary disposition must present more than conjecture
and speculation to meet their burden of providing evidentiary proof establishing a genuine issue
of material fact.” Karbel v Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69 (2001)
(citation omitted). And, when it is a plaintiff’s burden to show causation, the plaintiff must “set


1
  We note that there is also evidence of a foundation drain on the property of one of the plaintiffs
and that there is evidence that some of the plaintiffs have had roots in their service connections
roto-rooted. However, these potential defects on plaintiffs’ properties cannot result in liability
for the Bad Axe defendants. See MCL 691.1416(k)(i) and (ii).
2
  For purposes of our analysis, we will also assume that the Bad Axe defendants knew, or should
have known, of these defects, MCL 691.1417(3)(c), and that the Bad Axe defendants failed to
take reasonable steps in a reasonable time to remedy these defects, MCL 691.1417(3)(d).


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forth specific facts that would support a reasonable inference of a logical sequence of cause and
effect.” Skinner v Square D Co, 445 Mich 153, 174; 516 NW2d 475 (1994). While causation
may be shown circumstantially, “a plaintiff's circumstantial proof must facilitate reasonable
inferences of causation, not mere speculation.” Id. at 164. The distinction between reasonable
inference and impermissible conjecture has been explained as follows:

       As a theory of causation, a conjecture is simply an explanation consistent with
       known facts or conditions, but not deducible from them as a reasonable inference.
       There may be 2 or more plausible explanations as to how an event happened or
       what produced it; yet, if the evidence is without selective application to any 1 of
       them, they remain conjectures only. On the other hand, if there is evidence which
       points to any 1 theory of causation, indicating a logical sequence of cause and
       effect, then there is a juridical basis for such a determination, notwithstanding the
       existence of other plausible theories with or without support in the evidence. [Id.
       (citation omitted].

In other words, a “mere possibility” of causation is not enough to establish a question for the
jury. Id. at 165. If reasonable minds could differ regarding the proximate cause of an event, the
question should be submitted to the factfinder. Terry v Detroit, 226 Mich App 418, 430; 573
NW2d 348 (1997). However, “litigants do not have any right to submit an evidentiary record to
the jury that would allow the jury to do nothing more than guess.” Skinner, 445 Mich at 174.

        Here, plaintiffs’ causation theory is that the sewer system was in a state of disrepair, unfit
to handle the July rainfalls, and that Pamar exacerbated “the effect of the existing poor condition
of the sewer system” such that “[t]ogether, the poorly maintained sewer system and the
negligence of” Pamar caused the flooding in plaintiffs’ homes. Under plaintiffs’ theory of
causation, there were multiple causes that contributed to the sewer backups, including the
rainstorm, an excavated construction zone that allowed rainwater to infiltrate the sewer, as well
as existing defects in the sanitary sewer. However, on the record before us, among these various
alleged causes, it would be pure speculation to suppose that any defects in the sewer system were
“a proximate cause that was 50% or more of the cause of the event and the property damage.”
MCL 691.1416(l).

       Notably, plaintiffs obtained an expert to investigate the cause of the flooding, and this
expert did not address the defects in the sewer system or apportion any responsibility for the
flooding to the defects in the system. Instead, plaintiffs’ expert opined that Pamar failed to
follow the applicable rules and procedures, and the expert attributes the entry of water into the
sewer system to Pamar’s actions. While noting that the rainfall was “significant,” the expert
concluded the amount of rainfall would have been within the storm system’s designed capacity
“had the appropriate grading and maintenance activities taken place” by Pamar. Indeed, the
expert stated that even one displaced manhole cover would permit water infiltration into the
sewer system in excess of the specifications that the sewer was designed to handle.




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         Plaintiffs do not deny that Pamar was negligent and that Pamar’s negligence in removing
manhole covers allowed water to enter the system. 3 Instead, plaintiffs maintain that Pamar’s
conduct exacerbated the poor condition of the sewer system. The problem with plaintiffs’
causation theory is that they provide no evidence apportioning causation between these multiple
alleged causes and, in particular, no evidence to establish that the defects in the system were a
50% cause. Specifically, plaintiffs surmise that leaking and obstructions in the sewer contributed
to the flooding in their homes; but, they offer no evidence in support of this contention. There is
no indication that, absent Pamar’s conduct and the substantial rainfalls, the flooding in plaintiffs’
basement would have occurred.4 Further, while there is evidence that Pamar’s conduct resulted
in excessive water entering the system, none of the experts quantified, or even considered, the
role of any preexisting sewer defects in the backups and the damage to plaintiffs’ properties.
There is simply no evidence establishing how—and to what extent—these defects interacted with
Pamar’s conduct and the rainfall to cause flooding in plaintiffs’ homes.

       At best, viewing the evidence in a light most favorable to plaintiffs, there is evidence of
defects in the system and the possibility that, along with other causes, these defects may have
played some unspecified role in the flooding. But, it is not enough to say that the defects might
be a contributing cause. A “mere possibility” of causation is not enough to establish a question
for the jury, Skinner, 445 Mich at 165, and “litigants do not have any right to submit an
evidentiary record to the jury that would allow the jury to do nothing more than guess,” id. at
174. Absent a logical basis on which to conclude that the defects contributed to the flooding and
to assess the portion of the backup and property damage attributable to the alleged defects,
reasonable minds could not conclude that the alleged defects were 50% or more of the cause of
the event and the property damage.” MCL 691.1416(l). Cf. Fingerle v Ann Arbor, 308 Mich
App 318, 341; 863 NW2d 698 (2014) (O’CONNELL, J., concurring).5 Consequently, because


3
 Pamar has also retained an expert. Pamar’s expert also did not state that defects in the sewer
caused the flooding. Instead, he opined only that Pamar was not negligent and that Pamar should
not be held responsible for the unforeseen amount of rain.
4
  In its discussion of causation, Pamar asserts that there were other backups in the City, and that
this shows that the defects in the sewer, and not Pamar, were responsible for plaintiffs’ floods.
To the extent that some of the plaintiffs experienced backups prior to having their service lines
roto-rooted, these defects in the service lines cannot result in liability for the Bad Axe
defendants. See MCL 691.1416(k)(i) and (ii). With regard to any other back-ups, the details and
circumstances surrounding these purported backups are unknown, meaning that they do not
support the assertion that plaintiffs’ flooding would have occurred absent Pamar’s conduct and
the unusually heavy rainfalls.
5
  The majority opinion in Fingerle was vacated by Fingerle v Ann Arbor, 498 Mich 910; 870
NW2d 920 (2015). However, the Supreme Court affirmed this Court’s decision in Fingerle “for
the reasons stated in [Judge O’Connell’s] concurring opinion, to wit, that the plaintiff cannot
make the requisite showing of ‘substantial proximate cause.’ ” Fingerle, 498 Mich at 910. In his
concurrence, Judge O’Connell explained that there were multiple causes of the flooding in
Fingerle, including an allegedly defective storm sewer, the construction of an egress window,
and an unusually intense rainstorm. Fingerle, 308 Mich App at 340 (O’CONNELL, J.,


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plaintiffs cannot establish the applicability of the sewer system disposal event exception to
governmental immunity, the trial court erred by denying the Bad Axe defendants’ motion for
summary disposition under MCR 2.116(C)(7).

       Reversed and remanded for entry of summary disposition in favor of the Bad Axe
defendants.



                                                            /s/ Peter D. O’Connell
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Kirsten Frank Kelly




concurring). Similar to the present case, the plaintiff in Fingerle failed to provide any evidence
that the city’s allegedly defective storm sewer “exacerbated” the flooding. Id. Further, as in this
case, the plaintiff’s experts in Fingerle did not address the multiple causes of the flooding, and
did not opine, based on a consideration of the multiple causes, that the alleged defect was more
than a 50% cause of the flooding. Id. at 341. On these facts, Judge O’Connell concluded that,
“no reasonable mind could conclude that the relief storm sewer was a substantial proximate
cause of the basement rainwater.” Id. at 341-342. The same is true in the current case.


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