Claims for damages arising from sewer backups; The Governmental Tort Liability Act; Exception in MCL 791.1417(3); “Proximate cause”; “Substantial proximate cause” (MCL 691.1416(l)); Premature summary disposition; Whether plaintiffs had to investigate their claims & collect evidence to prove them before suing; MCR 1.109(E)(5)(b); Design defect; Effect of a lease on a defendant’s liability; Inverse condemnation claims; Gross negligence; Timeliness of a class certification motion; Sufficiency of a concurrence in summary disposition motions; Great Lakes Water Authority (GLWA); Detroit Water & Sewerage Department (DWSD)

In these consolidated appeals arising from sewer backups, the court held that summary disposition of claims by a group of plaintiffs (the Dubin plaintiffs) under MCL 791.1417(3) against some defendants was premature. It found that summary disposition for defendant-Detroit was proper as to defects existing in the portion of the sewerage system under defendant-GLWA’s control but not as to Detroit’s local system. As to the Johnson plaintiffs, it held that dismissal of their inverse condemnation claims was proper, but dismissal of their gross negligence claims against governmental employees (John Does 1-10) in their individual capacities was premature. As to their claims under MCL 691.1417(3), it affirmed summary disposition for Detroit and defendants-DWSD, Grosse Pointe, and Grosse Pointe Park but reversed as to GLWA and defendant-Grosse Pointe Farms. Plaintiffs claimed that GLWA, the regional sewerage system operator, was largely responsible for the backups, and that the other defendants, which “owned or operated local sewerage infrastructure connected to GLWA’s infrastructure, or which had agreements with GLWA,” were jointly responsible. The court first concluded “the trial court erred as a matter of law when it determined that the Dubin plaintiffs waived their right to seek class certification.” As to their claims against GLWA, it found they “did not have an adequate opportunity to conduct discovery on the issue of causation.” As to their claims against Grosse Pointe Shores, the court rejected its arguments that they “had to investigate their claims and collect evidence to prove them even before filing their complaint” and that their claims were “mere conjecture” not warranting further discovery. Further, it concluded the trial court erred in “granting summary disposition on the basis that they failed to show that a design defect existed under MCL 619.1417(3)(b).” As to the Johnson plaintiffs, the court held that they did not state a viable inverse condemnation claim. But they did not have a reasonable opportunity to conduct discovery as to their gross negligence “claims against John Does 1 through 10 and whether their alleged failure to respond properly to the rain event was a factual cause of the damage at issue, such as whether one or more of the Johnson plaintiffs’ homes would have suffered the sewer backups they did but for that failure.” As to their claim against GLWA, they identified reports suggesting “there was evidence that one or more defects in GLWA’s system may have exacerbated the flooding problem.” Affirmed in part, reversed in part, and remanded.