David Alley v. Charter Township of Mundy ( 2018 )

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DAVID ALLEY, JULIE ALLEY, ERIC UNPUBLISHED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,
and
GENESEE COUNTY DRAIN COMMISSIONER,
GENESEE COUNTY DEPARTMENT OF
PARKS AND RECREATION, and CITY OF
FLINT,
Defendants.
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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,
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. 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,
and
GENESEE COUNTY DRAIN COMMISSIONER,
Defendant-Appellant.
DAVID ALLEY, JULIE ALLEY, ERIC
BACKLUND, PAM BACKLUND, ANTONIO
FERREIRA, ELIZABETH FERREIRA, JOYCE
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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 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,
Defendants,
and
CITY OF FLINT,
Defendant-Appellant.
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
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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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