Delta Township Couple Can Sue Eaton County Drain Commissioner Over Property Flooding

by: Matt Newburg

02/08/2018 03:02 PM EST
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A negligence lawsuit over constant flooding in a Delta Township subdivision is moving forward against the Eaton County Drain Commissioner, despite the county’s argument that it is not responsible for the flooding problem.

In Nakfoor v Our Savior Lutheran Church, et al., the Michigan Court of Appeals recently ruled in favor of the plaintiffs, Deb and Larry Nakfoor. The Court of Appeals rejected the Drain Commissioner’s argument that the Nakfoors’ claims should be dismissed and, instead, said the allegations should be heard by an Eaton County jury.

Grand Ledge attorney Kristin Arnett, of Newburg Law, PLLC, represents the Nakfoors in the negligence lawsuit. Kristin successfully argued in Eaton County Circuit Court that governmental immunity does not apply to relieve the county of liability. Under the concept of governmental immunity, governmental entities are not liable for negligent acts if they are exercising a governmental function when the alleged negligence occurs.

Continuous Flooding

The flooding first began in the Nakfoors’ Delta Township subdivision about a decade ago. Since that time, the Nakfoors have been forced to spend thousands of dollars repairing their home. As a result, the home’s value has been significantly reduced, if not totally diminished.

The flooding is attributable to a $1.9 million drain project that took place in the 1990s, which included the installation of a berm along the east side of the subdivision. The flooding problems started after some 3,000 loads of dirt were dumped around Our Savior Lutheran Church, as it was being constructed in 2008. The dirt raised the church’s property level above the berm and, as result, flooding became routine.

To date, the Drain Commissioner has not attempted to remedy the situation, even though the county has been repeatedly notified of the problem and flooding concerns were raised at the time the church was initially being built.

The Nakfoors took legal action in 2015, asserting the Drain Commissioner is responsible for the persistent flooding. The Nakfoors also filed complaints in Eaton County Circuit Court against Delta Township, Our Savior Lutheran Church and various contractors.

The Drain Commissioner later asked the trial court to dismiss the Nakfoors’ claims, arguing the county was immune from suit under governmental immunity. The trial court disagreed and ruled the Nakfoors could sue both the Drain Commissioner and Delta Township because the so-called “sewage disposal system event” (SDSE) exception to governmental immunity applied.

The Drain Commissioner and Delta Township appealed the trial court decision, asserting they were not responsible for the flooding problems. The church and the contractors were not part of the appeal.

‘Defective’ Storm Water Drain System

In its January 30, 2018 decision, the Court of Appeals held the Nakfoors could pursue their claims against the Drain Commissioner. The Court of Appeals, however, held that Delta Township was entitled to governmental immunity and could not be sued.

In finding that the Nakfoors may maintain a negligence action against the Drain Commissioner, the Court of Appeals said the “sewage disposal system event” exception to governmental immunity applied because the Drain Commissioner failed to remedy the impact the fill dirt had on causing debris and water to overflow the berm. The Court of Appeals wrote: “[T]here was a change in the physical environment adjacent to the storm water drain system, resulting in storm waters that flowed into the system at a level that far exceeded the flow that occurred with predevelopment rainfalls. And there was evidence sufficient to survive summary disposition indicating that with the change in the landscape’s physical environment, the storm water drain system was inadequate to handle some rainfalls, causing flooding in the subdivision. Thus, there was evidence that the storm water drain system had a fault, shortcoming, or imperfection as to the operation or maintenance of the system following the increase in the elevation of [the church’s] property.”

According to the Court of Appeals, there was evidence the elevation increase resulted in a defect in the storm water drain system with respect to the system’s operation or maintenance, “even if the Drain Commissioner played no role whatsoever in the elevation change.”

The Court of Appeals also agreed with the trial court that there was sufficient evidence the Drain Commissioner was negligent for not taking corrective action with respect to the catch basins and drain pipe. The Court wrote: “It is evident from the record that the flooding problems that developed in 2008 forward were not merely the result of rains, heavy or otherwise, but rather rains in conjunction with the increased elevation of OSLC’s property; there were no flooding problems in the subdivision beforehand for approximately 17 years, during which there were certainly heavy rains at times. The Drain Commissioner conveniently ignores the increased-elevation component of this case in discussing whether a defect existed in the storm water drain system.”

Further, the Court of Appeals said there was sufficient evidence the Drain Commissioner knew, or should have known, about the problems with the drain system and there was sufficient evidence that reasonable steps were not taken to remedy the alleged defects. “[T]here was evidence that the repeated flooding of plaintiffs’ property and the subdivision was brought to [the Drain Commissioner’s] attention from the very beginning and that he was aware of the elevation change and the associated concerns,” the Court explained. “Indeed, there was evidence that the Drain Commissioner was alerted about the prospect of flooding before it even first occurred. … The problematic flooding has been ongoing for years, and the installation of the two additional catch drains did not halt the flooding.”

As a result of the Court of Appeals decision, the case is set to return to the Eaton County Circuit Court for further proceedings.

Lansing attorney Michael H. Perry served as counsel for the Nakfoors in the appeal.

 

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