Ann Arbor residents who experienced sewage backups lose fight with city in court
The Michigan Court of Appeals has ruled in favor of the city of Ann Arbor in a case stemming from sewage backups in several residents' homes on the city's northeast side.
“The Court of Appeals correctly and in detail examined the record and found that there was no improper design or maintenance by the city of Ann Arbor of its sewage system," City Attorney Stephen Postema said in a statement today praising the court's decision.
The lawsuit, which lists 21 plaintiffs, arose out of an Oct. 3, 2008, water main break under Yellowstone Drive that allowed water to enter a sewer manhole. Water flowed through a portion of the city's sewer into private sewer leads, and then into residents' basements.
The residents whose basements were flooded filed suit against the city in January 2009 in Washtenaw County Circuit Court.
But in May 2010, the trial court found the water main break — not a defect in the sewage system — caused the residents' basements to flood. The judge said even if there was a defect, there was no evidence that city officials knew or should have known of one, therefore the residents' claims were barred by governmental immunity.
Stephen Postema
Jerry Schulte, one of the Yellowstone Drive residents whose home flooded, called the court's decision unfortunate.
"I think most of us were disappointed that there ever had to be a suit on this," he said. "I think many of us were very surprised that the city took the stance that they weren't responsible for this and apparently the court agreed with that."
Schulte recalled he and a number of his neighbors woke up to a "brown sludge" in their basements on the morning of the water main break.
"You had residents who had two feet of this stuff," he said. "I was fortunate to just have a couple inches, but it still required catastrophic cleaning, and that part the city did pay for. They just wouldn't compensate anyone for loss of a furniture, washers, dryers or floor coverings."
That surprised him, Schulte said.
"I'm kind of surprised they would fight their own residents on this," he said. "I think in most other places I've lived the city wouldn't fight their own residents on this."
Thursday's opinion includes a recap of what happened that day in October 2008, noting that it was Denny Zink, a supervisor in the city's water department, who first received the 4 a.m. phone call at his home about the water main break under Yellowstone Drive.
According to court records, Zink arrived at the scene within an hour and observed water coming out of the road through small cracks — primarily at the curb line and flowing downhill. Zink closed the closest water main valve as completely as possible, as it was impossible to close it completely without another person, and then partially closed a second valve.
According to Zink, leaving the second valve partially open was standard procedure for preventing back flow or siphoning of contaminated water into the water line. But about two hours later, a resident complained of water backing up in a basement.
The residents alleged there was a defect in the sewage system and had an expert produce a report. They claimed the city failed to maintain the sewer manhole in question, resulting in deterioration and "significant inflow and infiltration of water" from the water main break.
But the court found the only evidence residents could point to in making that assertion was the statements of their expert witness, Michael Williams, in his November 2009 affidavit.
The three-judge appeals court panel said Williams' affidavit was "voluminous" and required them to "unravel a number of theories" regarding the city's alleged failure to properly design and maintain its system.
But they said his conclusions regarding the manhole ultimately lacked factual support, and that was revealed at his deposition.
"We agree with defendant's assertion, and the trial court's implicit finding, that even if Williams could testify as an expert at trial, his conclusions are unsupported by facts of record," the appeals court stated in its opinion on Thursday.
At a January 2010 deposition, Williams testified he based his opinion that the manhole was not in proper repair on the fact that water had invaded it, and that had the manhole been properly maintained, there would have been no invasion, or at least no significant invasion. But the court found the mere fact that water entered the manhole was insufficient to establish that the manhole was defective or that any defect arose out of the city's failure to maintain it.
Chief Assistant City Attorney Abigail Elias primarily handled the case at the trial court and the Court of Appeals, with other attorneys also working on the case. That included Robert West who took the deposition of the residents' expert that helped win the case.
Postema noted the court had previously dismissed one count in the case and awarded attorney fee sanctions for the city attorney’s office having to defend that count.
Ryan J. Stanton covers government and politics for AnnArbor.com. Reach him at ryanstanton@annarbor.com or 734-623-2529. You also can follow him on Twitter or subscribe to AnnArbor.com's e-mail newsletters.
Comments
JerryS
Mon, Sep 5, 2011 : 7:11 p.m.
You can argue there is no basis for the suit and pat the City on the back for their victory but it is a loss for all residents of Ann Arbor. This case confirms that the City can continue to collect revenue for a systems they neglect and prevail in our courts. This watermain previously (about a year prior) broke 50 ft away from the location that caused the damage noted in this article. The street seasonally heaves up and down as much as 4 inches at the point of the repairs, so it is likely just a matter of time before another break for which the City has no responsibility.
GoBlueHockey
Sun, Sep 4, 2011 : 1:19 p.m.
I bet if these houses were on Aberdeen or Arlington instead of the NE side -- the city would have paid!
OLDTIMER3
Sun, Sep 4, 2011 : 12:22 p.m.
I would like to think the homeowners insurance would have covered for damages from a sewage backup. At least the way I read mine it does.
joe.blow
Sun, Sep 4, 2011 : 12:02 p.m.
You can never NEVER NEVER win against the city. Period.
Engineer
Sun, Sep 4, 2011 : 1:43 a.m.
My advice disconnect from the cities sewer and water. Put your own septic and well in and the you can maintain it properly. Depending on government run programs is NEVER a good idea.
say it plain
Sun, Sep 4, 2011 : 4:39 a.m.
Yeah, you'd not want well water in say Scio Township or parts of Ann Arbor right now either, because the relevant governments have failed to protect us from the Gelman Sciences/ Pall corporations' contamination of our ground water with dioxane and their desire to avoid 'liability' for cleaning it up!
johnnya2
Sun, Sep 4, 2011 : 4:11 a.m.
Yeah, because there has NEVER been a problem with septic or well water anywhere. If you believe that, I have plenty of property in Florida that some call a swamp you can buy.
YpsiLivin
Sun, Sep 4, 2011 : 12:27 a.m.
Ok, so here's the lesson. Homeowners insurance typically doesn't cover sewage backups into a home, but "for a few dollars more" you can buy a rider that will cover sewage overflows. These riders aren't expensive, and your insurance agent isn't doing you any favors if s/he isn't telling you about this coverage. Buy the rider and let the insurance company deal with the damage if this ever happens in your house.
a2reason
Sat, Sep 3, 2011 : 4:49 p.m.
What the Court of Appeals ruled clearly is that there was no basis for this suit. Interestingly, if you look up the opinion, the judges on the panel were all liberal Democrats, two of them appointed by Granholm. One of the judges was a well known plaintiff's personal injury lawyer before becoming a judge. They affirmed the ruling of the "conservative" judge, Archie Brown. By carefully looking at the expert's affidavit and the wording Mr. Stanton quotes, they are saying that even an affidavit, sworn under oath, by an expert had no factual basis. This is actually a serious charge and means that the plaintiff's attorney should never have even submitted it. Filing such an affidavit is probably sanctionable. But this is not from the "rightwing" judges on the Court that everyone seems to complain about in these comments. Therefore, thank you City Attorney Postema, and attorneys Elias and Wests for again protecting the City's interest from a claim that even the most plaintiff friendly judges on the Court of Appeals recognize had no merit. Rather than complain about the City Attorney's office evidently doing an excellent job picking apart a "voluminous" yet specious expert affidavit, perhaps we should just thank them for a job well done. And while I'm at it, I'm still thankful that the City Attorney's office (also thanks to the Mayor and Council) were allowed to "earn their keep" by ridding the 5th ward of the Michigan Inn. You can criticize the City Attorney's office all you want, but it appears that their work is quite well respected by the Courts--the place it actually matters.
say it plain
Sat, Sep 3, 2011 : 9:37 p.m.
For the record, I have not complained here or elsewhere about the judges, nor about the litigation abilities of the City Attorney's office. I have indicated that I wish our city would take a 'customer service' attitude with its citizens. I am not familiar with the state statutes about liability here, and I assume that since the case entailed an attempt to accuse the city of failing to properly maintain its sewer systems, there wasn't any breach of statute to speak of. Was the resident's case here very weak? Clearly. Was it unfortunate that the city, as per the comments of @cibachrome, had allowed for 'problems' with the sewer systems to persist in forms perhaps *not* explored/addressed in the current suit? Very! Was it 'illegal' or 'actionable' even for them to do this? I suppose not. But that wasn't really my point. Still, it's not even clear to me that the city attorney's office needed to rise to the level of 'excellent' in picking apart the 'specious' expert affidavit lol, given Mr. Stanton's reporting of the judges'comments..
Joan Lowenstein
Sat, Sep 3, 2011 : 4:48 p.m.
State statutes define what a city's liability is in these kinds of situations. The city attorney's office was not making up the law but simply applying it. I was there on Yellowstone and saw much of the damage. It's traumatic for the homeowners and the city crews' response was immediate, as was the city-funded clean-up. These homeowners were treated fairly according to Michigan law, they exercised their right to challenge the law, and the courts upheld the determination. There would be justifiable criticism if the city attorney had chosen to apply some other law or ignore state statutes.
cibachrome
Sat, Sep 3, 2011 : 4:23 p.m.
There are a lot more facts that should have been added to this case and this story. When this happened to me in the '80s, investigation showed that the principle cause of these problems was the use of a certain kind of sewer tile that was commonly used when these homes were built in NE Ann Arbor (Briarcliff, Prairie, etc.). It was called 'orangeburg' tile and was essentially cardboard rolled into a pipe and coated with tar. The City allowed this to be used because of a shortage of iron and clay pipe. When the sewer water with detergents, root killers, drain cleaners and other chemicals flowed through it, the tar was disolved and the pipe collapsed. Then when a rotorooter was drilled through it as a temporary fix, the pipe was opened to surrounding footing drains. That allowed water from rain and sewers to intermix and flood basements during rainstorms. The use of gutters who's downspouts ended at the side of the house added to the water flow problem. The sign of a collapsed sewer line was the sagging sidewalk in the area in the front yard where the sewer line ran to the street. Water flowing into the open sewer took fill dirt with it and the sidewalk weight dropped the cement. This dirt was reported as showing up at the sewer treatment plant, too. As you may easily observe in this neighborhood even now, there are a lot of sagging sidewalks and a lot of replaced sections of sidewalks, indicating that the sewers had to be repaired. I sued the City for allowing improper materials to be used for a sanitary sewer in building code, but lost because the use was common and the dangers were unforseen. Right: Cardboard sewer pipes were accepted practise. That's why these basements flooded.
thedime
Sat, Sep 3, 2011 : 3:45 p.m.
If it were not for the Detroit Water and Sewerage department, municipalities around the state could still be instituted through the Michigan Municipal League. Unfortunately, there are not to many options for coverage available to them.
say it plain
Sat, Sep 3, 2011 : 3:41 p.m.
Hey, Postema has to earn his salary doesn't he?! "Protecting" the city against residents who expect them to pay for their basement floor coverings, just because sewage backed up into their homes, is part of his beat. And our dear city officials are too busy working out their restaurant-lunch meeting schedule and new-city-hall-furniture-buying lists to worry about citizen satisfaction with city services. I'd love to see the cost-benefit analysis though...how much of his attorney-time was spent on preventing the city from needing to lay out some bucks for basement furniture replacement for these residents who had the sludge invade their homes?! I hope it saved AA some money they can spend on fixing the roads, or is that irrelevant because the 'sludge bucket' is separate and can't be tapped for road repair?!
johnnya2
Sun, Sep 4, 2011 : 4:07 a.m.
Or maybe the citizens who decided to sue should be billed for the frivolous nature of their claim. THIS is why all cities spend large sums on a city attorney. These homeowners had the opportunity to BUY insurance before there was a problem.
say it plain
Sat, Sep 3, 2011 : 3:50 p.m.
oh, wait...I initially missed the reporting of total attorney's office staff that worked on this! Wow, I'd *really* love to see how many hours of costly attorney time the city spent to avoid buying a couple washers and driers or square feet of linoleum! I don't know how 'belligerent' these residents were, but I'd guess they might have been happy if the city made even a token offer of support here, citizens usually are...
Buster W.
Sat, Sep 3, 2011 : 3:27 p.m.
This stinks!