Storm water damage claims; Statute of limitations; Governmental immunity; The Governmental Tort Liability Act; The sewage-disposal-system-event exception; MCL 691.1417(3); “Substantial proximate cause” (MCL 691.1416(l)); Distinguishing Fingerle v Ann Arbor; Ray v Swager; The continuing-wrongs doctrine; Negligence & trespass

Concluding Fingerle was distinguishable, the court reversed summary disposition for the governmental defendants in this action under the sewage-disposal-system-event exception to governmental immunity. But it affirmed summary disposition for defendant-Goodrich Country Club, holding that plaintiffs did not present sufficient evidence to support their negligence and trespass claims. It first found “the trial court misapplied the continuing-wrongs doctrine to the claims of” one group of plaintiffs. As they alleged “they were damaged by the flooding in the three-year period before” the complaint was filed, although “they had noticed the flooding many years earlier, the [trial] court erred by granting summary disposition of [their] claims during the limitations period.” As to the issue of governmental immunity for defendants-village and drain commissioner, the court agreed with plaintiffs that “they established each element of the sewage-disposal-system-event exception, including proximate cause.” Fingerle addressed the issue of substantial proximate cause pursuant to the statute. That case “involved a relatively new system that had never fully solved the problem and a plaintiff complaining that the city did not do a good enough job solving a problem it had no obligation to address to begin with. Therefore, having an expert opine that the system was inadequate did not establish that [it] was a substantial proximate cause without addressing other identified contributing causes[.]” However, in this case, “the area had become reliant on the system such that it was foreseeable . . . that allowing it to become inadequate would cause damage to neighboring property. Therefore, an expert’s opinion that the system’s deficiencies caused the damage was sufficient to survive summary disposition” even though it failed to “address all the other possible causes in existence.” The court rejected “the suggestion that Fingerle stands for the proposition that an expert must exclude any alternative explanation imaginable. Rather, the expert should address viable alternative contributing proximate causes for the flooding, which are supported by admissible evidence.” The court found Ray “instructive to the interpretation of ‘substantial proximate cause,’ and” and concluded it undermined the Fingerle holding “that a flooding event itself can be a contributing proximate cause for purposes of establishing liability under MCL 691.1417(3).” Remanded.