Robert Tschirhart v. Pamar Enterprises Inc
336668
Mich. Ct. App.May 17, 2018Background
- July 2013 heavy rains caused backups of rainwater and sewage into multiple Bad Axe homeowners’ basements.
- Pamar Enterprises was performing road and sewer-related construction in the area, including removing pavement and manhole covers and creating a low "bathtub" construction zone that collected water.
- Plaintiffs originally sued Pamar; after Pamar filed a non-party-fault notice, plaintiffs amended to add the City of Bad Axe and its public works entities, alleging the city’s sanitary sewer system had multiple defects that contributed to the backups.
- Plaintiffs and Pamar offered evidence (including video and testimony) of sewer-system conditions: leaking vitrified-clay pipes, deteriorated manholes, obstructions, tree roots, mud, and other infiltration sources; plaintiffs also produced an expert who blamed Pamar’s handling of manholes and grading.
- The Bad Axe defendants moved for summary disposition on governmental-immunity grounds under MCR 2.116(C)(7), arguing plaintiffs failed to prove elements of the sewage-disposal-system-event exception; the trial court denied the motion.
- On appeal the Court of Appeals reversed, holding plaintiffs failed to present evidence that any municipal defects were a "substantial proximate cause" (defined as 50% or more) of the backups and property damage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sewer-system-event exception to governmental immunity applies | Plaintiffs: City defects (leaky pipes, manholes, obstructions, roots, etc.) combined with Pamar’s actions caused the backups | City: No evidence of a sewer "defect" as legally significant, no notice, no failure to remediate, and no proof defects were a substantial proximate cause | Held: No. Plaintiffs failed to show defects were 50% or more of the cause, so exception does not apply |
| Whether plaintiffs presented sufficient evidence of causation (substantial proximate cause) | Plaintiffs: Multiple causes combined; city defects contributed materially so question for jury | City: Plaintiffs’ proof is speculative; expert attributed flooding to Pamar and rain, not city defects | Held: Plaintiffs’ evidence only shows a mere possibility; lacking quantification or logical sequence, reasonable minds could not conclude defects were ≥50% cause |
| Whether plaintiffs’ expert supported apportionment to municipal defects | Plaintiffs: Expert supported that system capacity was exceeded and that poor condition exacerbated effects | City: Expert did not apportion responsibility to municipal defects; no opinion that defects caused a majority share | Held: Expert did not apportion or attribute >50% causation to defects; absence fatal to exception claim |
| Whether summary disposition under MCR 2.116(C)(7) was appropriate | Plaintiffs: Material factual disputes remain, so summary disposition improper | City: Immunity applies because plaintiff cannot meet statutory elements; entitlement to judgment as a matter of law | Held: Summary disposition for defendants required; trial court erred in denying motion |
Key Cases Cited
- Willett v. Waterford Charter Twp., 271 Mich. App. 38 (discussing de novo review and GTLA analysis)
- McLain v. Lansing Fire Dep’t, 309 Mich. App. 335 (procedures for MCR 2.116(C)(7) review)
- Moraccini v. Sterling Hts., 296 Mich. App. 387 (GTLA broadly grants immunity)
- Nawrocki v. Macomb Co. Rd. Comm’n, 463 Mich. 143 (exceptions to GTLA construed narrowly)
- Linton v. Arenac Co. Rd. Com’n, 273 Mich. App. 107 (elements required for sewage-disposal-system-event exception)
- Skinner v. Square D Co., 445 Mich. 153 (causation standard: circumstantial proof must support reasonable inference; mere possibility insufficient)
- Karbel v. Comerica Bank, 247 Mich. App. 90 (opponent’s burden to present more than conjecture in resisting summary disposition)
- Terry v. Detroit, 226 Mich. App. 418 (proximate-cause issues to factfinder only when reasonable minds could differ)
- Fingerle v. Ann Arbor, 308 Mich. App. 318 (no substantial proximate cause where multiple causes and experts failed to apportion causation)
- Fingerle v. Ann Arbor, 498 Mich. 910 (Supreme Court affirmed inability to show substantial proximate cause)