Leonard Gust v. Lenawee County Road Commission
329062
| Mich. Ct. App. | Feb 21, 2017Background
- Plaintiffs Leonard and Sharon Gust own land bisected by Sandy Beach Road; they allege natural drainage runs north-to-south and that the road (with an under-road drain) now acts as a dam causing multi-acre ponding and property damage.
- Plaintiffs sued the Lenawee County Road Commission for inverse condemnation, trespass, and negligence, alleging the road’s construction/maintenance and failure to maintain an under-road drain caused flooding.
- The Road Commission denied it constructed or installed the buried drainage pipe and argued any flooding resulted from failure of a private drainage tile system.
- Procedurally, the case survived early summary-disposition challenges, produced multiple appeals and remands, and proceeded to a seven-day jury trial on inverse condemnation.
- The jury answered “No” to whether the Road Commission engaged in affirmative acts specifically directed at the Gusts’ property such that there was a taking; the trial court entered judgment for the Commission.
- Post-trial, the court denied plaintiffs’ JNOV and their challenge to dismissal of claims against the managing director (Gregg), holding he was entitled to absolute governmental immunity as the highest appointive executive official acting within his authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs were required to prove an affirmative governmental act directed at their property to establish inverse condemnation | Gusts argued they need not prove an affirmative act because the physical invasion (flooding) and the Commission’s concession on causation established a taking as a matter of law | Road Comm’n argued plaintiffs had to prove a deliberate affirmative act directed at their property; negligent omission or refusal to act is insufficient | Court held plaintiffs waived this alternative theory at trial and, in any event, plaintiffs failed to prove an affirmative act as a matter of law |
| Whether trial evidence established the Road Commission constructed, improved, elevated, or otherwise took affirmative actions (including installing/maintaining the drain) causing the flooding | Gusts claimed the Commission constructed/maintained/elevated the road and installed/failed to maintain the drainage pipe, causing the taking | Commission presented testimony and records that the road predated the Commission, that alleged work was maintenance (not elevation), and that the under-road tile was a private system, not installed/maintained by the Commission | Held that, viewing evidence favorably to defendant, reasonable jurors could differ; the jury verdict (no affirmative act) stands and JNOV was properly denied |
| Whether failure to maintain a drain can alone constitute an affirmative act for inverse condemnation | Gusts argued failure to maintain the under-road drain (and statutory duty to maintain) was an affirmative act causing the taking | Commission argued failure to maintain (or any omission) is not an affirmative, deliberate governmental act and that it had no duty for a private tile | Court reiterated that negligent failure or inaction is insufficient; deliberate, overt governmental conduct is required and plaintiffs did not prove it |
| Whether Gregg (managing director) is entitled to absolute governmental immunity | Gusts argued Gregg was not entitled to absolute immunity under MCL 691.1407(5) and thus claims against him should not have been dismissed | Gregg argued he was the highest appointive executive official of the Road Commission and acted within the scope of his authority, so he has absolute immunity | Court held Gregg qualifies as the highest appointive executive official of a “level of government” (Road Commission) and acted within scope; he is entitled to absolute immunity and dismissal was proper |
Key Cases Cited
- Wiggins v. City of Burton, 291 Mich. App. 532 (Mich. Ct. App. 2011) (governmental actor can cause a taking by flooding or diverting surface water)
- Hinojosa v. Dep’t of Natural Resources, 263 Mich. App. 537 (Mich. Ct. App. 2004) (inaction/omission by government generally does not constitute a taking; affirmative deliberate acts required)
- Peterman v. Dep’t of Natural Resources, 446 Mich. 177 (Mich. 1994) (government construction that directly causes property loss can constitute a taking)
- Petipren v. Jaskowski, 494 Mich. 190 (Mich. 2013) (elements for absolute immunity under MCL 691.1407(5))
- Nawrocki v. Macomb County Road Comm’n, 463 Mich. 143 (Mich. 2000) (governmental immunity under the GTLA broadly limits tort liability of governmental agencies)