Perhaps this has happened to you. Historically, during a spring storm you simply sat outside on your porch and thought about how April showers bring May flowers. But now, because of increased flooding on your property, you dread the sight of every rain cloud. You wonder how this could have happened and what you can do to remedy it. Perhaps you are aware of defective municipal stormwater infrastructure is the causing the flooding on your property. Do you have any legal options?
While normally Michigan law prevents recovery for damages against any municipality for damage to your property caused by their actions or inaction, in Michigan there is a specific exception for Sewer Disposal System Events (SDSE) under MCLA § 691.1416–19.
Under these statutes, a municipality may be found liable for defective stormwater infrastructure which causes the “overflow or backup of a sewage disposal system onto real property.” MCLA § 691.1416 (k). Critically, stormwater drain systems are specifically included within the definition of a “sewage disposal system.” Id. at § 691.1416 (j).
This means that the backup or overflow of stormwater drainage systems onto your property may provide you with a cause of action against a municipality. However, this will only be available under specific conditions outlined in these statutes.
To recover against a municipality for an SDSE, you will need to first provide some kind of notice to the “appropriate governmental agency” who operates and controls the defective stormwater infrastructure. This notice normally must be in writing, but oral notice is also proper under certain circumstances as well. Id. at § 691.1419 (1)–(3).
Then, you will need to demonstrate the following (1) that the claimant you are seeking to recover from is the appropriate governmental agency, (2) that the stormwater drainage infrastructure has a defect, (3) that the governmental agency knew or should have known about this defect, (4) that the governmental agency failed to take “reasonable steps within a reasonable time” to remedy the defect, and (5) if personal property is damaged, the price of that property. Id. at § 691.1417 (3).
If these elements are satisfied, you can seek compensation for any damage to your property caused by flooding arising from defective stormwater infrastructure.
At this time, Michigan courts have not decided whether this statute also allows for injunctive relief against a municipality as well. See Sunrise Resort Ass’n, Inc. v. Cheboygan Cnty. Rd. Comm’n, 511 Mich. 325, 344, 999 N.W.2d 423, 432 (2023). In Sunrise Resort, the Michigan Supreme Court held that while a municipality could be found liable for an SDSE claim, that it would “leave open the question of whether a plaintiff can seek injunctive relief in connection with an SDSE claim properly pled under § 1417(3) for a later date.” Id. at 343, 999 N.W.2d 423, 432.
The attorneys at Dalton & Tomich, PLC would be happy to discuss with you whether you possess a viable SDSE claim against a municipality for flooding issues on your property. If you curious as to whether you possess a viable claim under this statute, give us a call.
