David Alley v. Charter Township of Mundy

• Court: Michigan Court of Appeals
• Decided: November 15, 2018
• Docket: 341510
• Status: Unpublished

Opinion

STATE OF MICHIGAN

COURT OF APPEALS

DAVID ALLEY, JULIE ALLEY, ERIC UNPUBLISHED BACKLUND, PAM BACKLUND, ANTONIO November 15, 2018 FERREIRA, ELIZABETH FERREIRA, JOYCE JACK-HUGHES, PREMBAI KERAI, JOHN KOLTON, KATHLEEN KOLTON, ANTHONY MAHLER, RANDY MILLER, and ROCHEL MILLER,

Plaintiffs,

and

RACHEL GEER, ROXANNE HUGHES, SWARTZ FUNERAL HOME, INC, RICK LAMB, MICHAEL LIZOTTE, ELIZABETH LIZOTTE, GRAFTON MOORE, DIANE MOORE, GAROLD PARSONS, SUSAN PARSONS, ROBERT TATE, FRANK WEAVER, CONNIE WEAVER, HONEY BEAR CHILD CARE, MARGARET WITTBRODT, and SCOTT WILLIAMS,

Plaintiffs-Appellees,

v No. 341501 Genesee Circuit Court CHARTER TOWNSHIP OF MUNDY, LC No. 15-104736-NZ

Defendant-Appellant,

GENESEE COUNTY DRAIN COMMISSIONER, GENESEE COUNTY DEPARTMENT OF PARKS AND RECREATION, and CITY OF FLINT,

Defendants.

-1- DAVID ALLEY, JULIE ALLEY, ERIC BACKLUND, PAM BACKLUND, ANTONIO FERREIRA, ELIZABETH FERREIRA, JOYCE JACK-HUGHES, PREMBAI KERAI, JOHN KOLTON, KATHLEEN KOLTON, ANTHONY MAHLER, RANDY MILLER, and ROCHEL MILLER,

RACHEL GEER, ROXANNE HUGHES, SWARTZ FUNERAL HOME, INC, RICK LAMB, MICHAEL LIZOTTE, ELIZABETH LIZOTTE, GRAFTON MOORE, DIANE MOORE, GAROLD PARSONS, SUSAN PARSONS, ROBERT TATE, FRANK WEAVER, CONNIE WEAVER, HONEY BEAR CHILD CARE, MARGARET WITTBRODT, and SCOTT WILLIAMS,

v No. 341510 Genesee Circuit Court CHARTER TOWNSHIP OF MUNDY, GENESEE LC No. 15-104736-NZ COUNTY DEPARTMENT OF PARKS AND RECREATION, and CITY OF FLINT,

Defendants,

GENESEE COUNTY DRAIN COMMISSIONER,

Defendant-Appellant.

DAVID ALLEY, JULIE ALLEY, ERIC BACKLUND, PAM BACKLUND, ANTONIO FERREIRA, ELIZABETH FERREIRA, JOYCE

-2- JACK-HUGHES, PREMBAI KERAI, JOHN KOLTON, KATHLEEN KOLTON, ANTHONY MAHLER, RANDY MILLER, and ROCHEL MILLER,

RACHEL GEER, ROXANNE HUGHES, SWARTZ FUNERAL HOME, INC, RICK LAMB, MICHAEL LIZOTTE, ELIZABETH LIZOTTE, GRAFTON MOORE, DIANE MOORE, GAROLD PARSONS, SUSAN PARSONS, ROBERT TATE, FRANK WEAVER, CONNIE WEAVER, HONEY BEAR CHILD CARE, MARGARET WITTBRODT, and SCOTT WILLIAMS,

v Nos. 341763; 341764 Genesee Circuit Court CHARTER TOWNSHIP OF MUNDY, GENESEE LC No. 15-104736-NZ COUNTY DRAIN COMMISSIONER, and GENESEE COUNTY DEPARTMENT OF PARKS AND RECREATION,

CITY OF FLINT,

Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

RONAYNE KRAUSE, J. (concurring).

I respectfully concur with the majority in all respects other than its holding that plaintiffs failed to provide evidence that there was a defect in the sewage disposal system. Plaintiffs provided evidence tending to show that the sewer system should have been capable of handling the amount of rainfall brought by the storm. The fact that the sewer system failed to perform -3- according to its intended design is direct evidence of a fault, shortcoming, or imperfection in that system. Willett v Charter Twp of Waterford, 271 Mich App 38, 51; 718 NW2d 386 (2006). Plaintiffs have therefore established a genuine question of material fact whether “[t]he sewage disposal system had a defect.” MCL 691.1417(3)(b).

However, establishing the existence of a defect does not, by itself, necessarily establish the nature or location of that defect. As the majority explains, plaintiffs must also show that a defendant governmental entity knew or should have known about the defect, MCL 691.1417(3)(c), and had the authority to rectify that defect but failed to do so, MCL 691.1417(3)(d). I agree with the majority that plaintiffs have provided little more than speculation whether they can ever provide evidence of either element. I am constrained to conclude that, other than the bare fact of whether a defect was present, the majority otherwise arrives at the correct result on the basis of correct reasoning. Therefore, I concur.

/s/ Amy Ronayne Krause

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