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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DEREK CAMPBELL and MEGHAN 

CAMPBELL,

Plaintiffs-Appellees,

UNPUBLISHED

October 19, 2017

v Nos. 332354; 334073

Lenawee Circuit Court

CITY OF HUDSON, LC No. 15-005307-NZ

Defendant-Appellant.

Before: SERVITTO, P.J., and JANSEN and STEPHENS, JJ.

PER CURIAM.

In Docket No. 332354, defendant appeals as of right a March 21, 2016 order denying its 

motion for summary disposition of claims brought by plaintiffs for damages caused by a sewage 

system backup and overflow into the basement of plaintiffs’ home. Defendant’s motion was 

brought under MCR 2.116(C)(7) and MCR 2.116(C)(10), and asserted governmental immunity 

from liability for plaintiffs’ damages under MCL 691.1417(2). The trial court denied 

defendant’s motion after determining that issues of fact remained. In Docket No. 334073, 

defendant appeals by leave granted1 the same order denying defendant’s motion for summary 

disposition on non-immunity grounds.

The relevant facts are not in dispute. At 2:45 p.m. on August 15, 2014, the City of 

Hudson Public Works Department (DPW) received a telephone call from a resident reporting a

sewer system malfunction. DPW Superintendent Philip Goodlock responded immediately to the 

area of the sanitary sewer main located on Jefferson Street and determined that an unknown 

object was creating a blockage in the system. Goodlock called for two DPW workers to report to 

his location with a “jet truck,” and the crew proceeded to jet the sewer line. According to 

Goodlock, the blockage was cleared almost immediately after they began the jetting process, 

about 15 minutes after the DPW received its initial report, and the water in the line began to flow 

as usual. 

 1 Campbell v City of Hudson, unpublished order of the Court of Appeals, entered September 21, 

2016 (Docket No. 334073).
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At around 5:00 p.m. on August 15, 2014, plaintiffs discovered that sewage had backed up 

into their basement sink and toilet and spewed onto the floor, spreading out over the carpet of the 

main basement area at a depth of about an inch. Plaintiffs were unaware of any prior sewer 

backups at their Jefferson Street home. Plaintiffs rounded up their children and vacated the 

premises. Thereafter, two neighbors informed plaintiffs that the DPW had been working on the 

sewer earlier that day. Plaintiffs brought a complaint in the circuit court against defendant

alleging gross negligence and inverse condemnation as a result of the “damage to and destruction 

of real and personal property” caused by the backup. 

Defendant moved for summary disposition under MCR 2.116(C)(7) based on 

governmental immunity, or MCR 2.116(C)(10), for judgment as a matter of law, in the 

alternative. Specifically, defendant asserted that plaintiffs had failed to allege facts to prove two 

of the necessary elements to support the exception to governmental immunity from liability for 

sewage disposal system events under MCL 691.1417(2). Defendant also asserted that it was 

entitled to summary disposition of plaintiffs’ inverse condemnation claim because “MCL 

691.1416 to MCL 691.1419 provide ‘the sole remedy for obtaining any form of relief for 

damages or physical injuries caused by a sewage disposal system event regardless of the legal 

theory,’ ” and there was no evidence that defendant abused its legitimate powers or aimed any 

affirmative actions at plaintiffs’ property. 

The trial court denied defendant’s motion after a hearing, concluding that “there are 

issues of fact that need to be heard by a jury.” The instant appeal followed. 

On appeal, defendant first argues that the trial court erred when it denied defendant’s 

motion for summary disposition of plaintiffs’ tort claim because plaintiffs failed to prove that 

their claim fell within an exception to the general rule of governmental immunity. We agree.

“Governmental immunity is a question of law that is reviewed de novo.” Pierce v City of 

Lansing, 265 Mich App 174, 176; 694 NW2d 65 (2005). This Court also reviews de novo a trial 

court’s decision on a motion for summary disposition. Loweke v Ann Arbor Ceiling & Partition 

Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). Although the trial court did not specify, in 

its oral conclusions or written order, which subsection it considered before denying defendant’s 

motion for summary disposition, defendant requested summary disposition on the ground of 

governmental immunity pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(10). 

“Under MCR 2.116(C)(7), the moving party is entitled to summary disposition if the 

plaintiff’s claims are barred because of immunity granted by law.” Odom v Wayne County, 482 

Mich 459, 466; 760 NW2d 217 (2008) (quotation marks and citation omitted). “The moving 

party may support its motion for summary disposition under MCR 2.116(C)(7) with affidavits, 

depositions, admissions, or other documentary evidence, the substance of which would be 

admissible at trial.” Id. (quotation marks and citations omitted). “When addressing a motion 

under subrule (C)(7), the trial court must accept as true the allegations of the complaint unless 

contradicted by the parties’ documentary submissions.” Tenneco Inc v Amerisure Mut Ins 

Co, 281 Mich App 429, 443; 761 NW2d 846 (2008). To survive a (C)(7) motion based on 

governmental immunity, the plaintiff must allege facts justifying the application of an exception 

to governmental immunity. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 

(2001). “If no [material] facts are in dispute, or if reasonable minds could not differ regarding 
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the legal effect of the facts, the question whether the claim is barred by governmental immunity 

is an issue of law.” Pierce, 265 Mich App at 177, citing Maiden v Rozwood, 461 Mich 109, 120-

122; 597 NW2d 817 (1999). 

Summary disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue as 

to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” West v 

Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Courts consider the affidavits, 

pleadings, depositions, admissions, and other documentary evidence in the light most favorable 

to the nonmoving party. Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 

NW2d 801 (2009). A party opposing summary disposition under MCR 2.116(C)(10) may not 

rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth 

specific facts showing that a genuine issue of material fact exists. Oliver v Smith, 269 Mich App 

560, 564; 715 NW2d 314 (2006). If the opposing party fails to present documentary evidence 

establishing the existence of a material factual dispute, the motion is properly granted. Id. 

“The scope of governmental immunity is construed broadly, while exceptions to it are 

construed narrowly.” Linton v Arenac County Road Com’n, 273 Mich App 107, 112; 729 NW2d 

883 (2006). Pursuant to MCL 691.1417(2), “[a] governmental agency is immune from tort 

liability for the overflow or backup of a sewage disposal system unless the overflow or backup is 

a sewage disposal system event and the governmental agency is an appropriate governmental 

agency.” A sewage disposal system event is defined as the overflow or backup of a sewage 

disposal system onto real property. MCL 691.1416(k). To circumvent the application of 

governmental immunity in cases involving a sewage disposal system event, a claimant must 

show that all of the following existed at the time of the event:

(a) The governmental agency was an appropriate governmental agency.

(b) The sewage disposal system had a defect.

(c) The governmental agency knew, or in the exercise of reasonable diligence 

should have known, about the defect.

(d) The governmental agency, having the legal authority to do so, failed to take 

reasonable steps in a reasonable amount of time to repair, correct, or remedy the 

defect.

(e) The defect was a substantial proximate cause of the event and the property 

damage or physical injury. [Willett v Charter Twp of Waterford, 271 Mich App 

38, 49; 718 NW2d 386 (2006), quoting MCL 691.1417(3).]

Here, the parties do not dispute that the first three elements of the exception have been 

met. Defendant is an appropriate governmental agency, and the sewage disposal system 

connected to plaintiffs’ residence suffered a defect—a blockage—on the date in question. See 

Willett, 271 Mich App at 51-52 (concluding that an obstruction of the sewer by a foreign object 

constitutes a “defect” for purposes of MCL 691.1417(3)(b)). And although defendant argues in 

its appellate brief that plaintiffs failed to prove that defendant knew or should have known of the 

defect, defendant concedes that it became aware of the defect when it received a report around 

2:45 p.m. on the day of the incident. Plaintiffs have not alleged or set forth facts to suggest that, 
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through an exercise of reasonable diligence, defendant should have known of the defect any 

earlier than that time. Thus, only the final two elements of MCL 691.1417(3)—that defendant 

“failed to take reasonable steps in a reasonable amount of time to repair, correct, or remedy the 

defect,” and that “the defect was a substantial proximate cause of the event and the property 

damage”—were in dispute during the summary disposition proceedings below. 

The trial court denied defendant’s motion for summary disposition, broadly concluding 

that issues of fact remained to be determined by a jury. However, the trial court failed to 

articulate on the record or in its written order what issues of fact precluded summary disposition 

in defendant’s favor. It is the trial court’s obligation to ensure that its reasoning is adequately 

presented for review, and the trial court here failed to meet this obligation. Regardless, this 

Court’s review is not precluded. The record is before this Court and a review of the trial court’s 

decision to grant or deny summary disposition is de novo. Loweke, 489 Mich at 162. 

Based on discussions at the hearing on defendant’s motion for summary disposition, this 

Court can infer that the trial court denied the motion because genuine issues of material fact 

remained on the matter of causation. Both parties spent a considerable amount of time at the 

hearing debating the issue of causation. On appeal, the parties devote much of their briefing to 

the same issue. Defendant argues that because plaintiffs failed to produce documentary evidence 

to rebut the affidavit of an expert opining that defendant’s actions were not a substantial cause of 

plaintiffs’ injuries, no genuine issue of material fact exists with respect to causation. In response, 

plaintiffs argue that their failure to rebut the opinion of defendant’s expert with the opinion of 

another expert does not negate the common sense dispute over this material fact. 

We agree with plaintiffs that production of a competing expert is not a requirement that a 

party must meet in order to establish a genuine issue of material fact regarding the issue of 

causation. “Summary disposition is not precluded simply because a party has produced an 

expert to support its position,” Amorello v Monsanto Corp, 186 Mich App 324, 331; 463 NW2d 

487 (1990), nor is it mandated. Credibility of experts is a matter for the jury, Ykimoff v Foote 

Mem Hosp, 285 Mich App 80, 88-89; 776 NW2d 114 (2009), and failure of causation is rarely an 

appropriate ground for summary disposition under MCR 2.116(C)(10), Nichols v Dobler, 253 

Mich App 530, 532; 655 NW2d 787 (2002). The expert opinion offered by defendant is itself 

inconclusive, suggesting only that “more likely than not,” defendant’s actions did not directly 

cause the sewage backup. Rather, the expert suggests that defendant’s actions in jetting the 

sewer main catalyzed “a suction effect from poor maintenance of the Plaintiffs’ lateral service 

lead.” Defendant’s expert does not suggest that this “suction effect” would have occurred absent 

defendant’s action in jetting the sewer main. 

Despite defendant’s argument to the contrary, there are facts in the record which, viewed 

in a light most favorable to plaintiffs, support an inference that defendant’s actions caused, either 

directly or indirectly, plaintiffs’ injury. Defendant admits that it jetted the sewer main to clear a 

blockage between 15 and 30 minutes before plaintiffs’ children discovered the backup of sewage 

into plaintiffs’ basement. Defendant admitted to jetting the sewer main on Jefferson Street, mere 

houses away from plaintiffs’ residence, pushing water through the sewer directly past the lateral 

line connected to plaintiffs’ home. Defendant’s expert confirms that defendant’s action in jetting 

the sewer main was, at least, an indirect cause of the backup of sewage into plaintiffs’ home. To 

preclude summary disposition on the issue of causation, plaintiffs only needed to set forth 
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specific facts to “support a reasonable inference of a logical sequence of cause and effect.” 

Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004) (quotation marks 

and citation omitted). Plaintiffs met that burden here. 

However, the fact that questions remain regarding the element of causation is not enough 

to preclude summary disposition in defendant’s favor. Plaintiffs were required to set forth 

evidence to meet all five elements of MCL 691.1417(3) before liability could be imposed on 

defendant for the sewage disposal system event, and their failure to meet any one of the elements 

should have resulted in summary disposition in favor of defendant. See Willett, 271 Mich App at 

49-50. Although in their amended complaint, plaintiffs broadly alleged that “[d]efendant failed 

to take reasonable steps in a reasonable amount of time to repair, correct, or remedy the defect,” 

they failed to present any evidence to support their allegation. After reviewing the record 

evidence in its entirety, we can find no factual basis to conclude that defendant failed to take 

reasonable steps within a reasonable amount of time to remove the sewer system blockage and 

restore the sewer system to its proper order. To the contrary, the record indicates that defendant 

responded to survey the area of the blockage within minutes after receiving the initial report, and 

deployed a jet truck to the area promptly. The blockage was cleared and the sewer system fully 

functional only 15 minutes later. 

In Willett, 271 Mich App 38, this Court considered a situation nearly identical to the one 

presented here. The plaintiff and one of the plaintiff’s neighbors experienced a backup of 

sewage into their basements shortly after a worker for the defendant was seen opening a manhole 

cover nearby. Id. at 40. The plaintiff’s neighbor reported the incident, and the defendant 

discovered a blockage in the sewer system. Id. Within an hour of the report, the defendant used 

a jet truck to dislodge the blockage. Id. at 41-42. The plaintiff later sued the defendant under the 

exception to governmental liability for sanitary sewer disposal systems, MCL 691.1417, arguing 

in part that the defendant had failed to take reasonable steps within a reasonable amount of time 

to cure the defect in the sewer system. Id. at 43. Ultimately, the trial court granted summary 

disposition in favor of the defendant. Id. at 44. This Court affirmed the decision, concluding as 

follows:

In fact, contrary to plaintiff’s allegations, the evidence indicates that within 

minutes after receiving notice of the problem [blockage by an unknown foreign 

object], defendant dispatched its crew to the area, and the crew remedied the 

problem promptly. In the early afternoon of the same day that plaintiff’s wife 

reported the sewage backup, defendant deployed a jet truck that dislodged the 

obstruction. Defendant accomplished this by approximately 1:30 p.m., after 

receiving the telephone call regarding the problem at approximately 11:00 a.m. 

We conclude that reasonable minds could not differ that 2 1/2 hours to locate and 

resolve a sewer backup of unknown cause or origin is a reasonable amount of 

time. Thus, plaintiff failed to support the fourth required element with evidence. 

[Id. at 53.] 

This case is on four corners with Willett, and we reach the same conclusion. Reasonable minds 

could not differ that 15 minutes to resolve a sewer system defect is a reasonable amount of time. 
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Further, the record contains no evidence to suggest that defendant’s use of a jet truck to

clear the blockage was an unreasonable method for remedying the sewer system defect. Again, 

to the contrary, the record evidence suggests that defendant’s use of the jet truck was customary 

and appropriate. Defendant presented evidence that use of the jet truck for periodic maintenance 

of the sewer lines and removal of unanticipated blockages was standard procedure, and had been 

for many years. There is no evidence that any other residents experienced sewage backups as a 

result of defendant’s use of the jet truck on the date of the incident or at any other time. 

Defendant presented the testimony of a professional engineer with over 20 years’ experience in 

water and sewer utility systems, who opined that defendant’s use of the jet truck to clear 

blockages was “customary and appropriate.” There is no evidence in the record to dispute the 

expert opinion, or any evidence to suggest that defendant could or should have employed any 

other method to remove the blockage. Reasonable minds could not differ that defendant’s use of 

the jet truck to remedy the sewer system defect was nothing other than a sound response. 

The trial court erred when it denied defendant’s motion for summary disposition because 

plaintiffs failed to set forth any evidence that defendant “failed to take reasonable steps in a 

reasonable amount of time to repair, correct, or remedy the defect,” and were therefore not 

entitled to invoke the exception to governmental immunity offered by MCL 691.1417(3). 

Summary disposition of plaintiffs’ tort claim in favor of defendants was appropriate under MCR 

2.116(C)(7) and MCR 2.116(C)(10). 

Next, defendant argues that the trial court erred when it denied defendant’s motion for 

summary disposition of plaintiffs’ inverse condemnation claim because (1) the claim is barred 

under the plain language of MCL 691.1417(2), and (2) plaintiffs failed to present evidence to 

support an inverse condemnation claim. We agree in part. 

This Court “review[s] de novo constitutional issues and any other questions of law that 

are raised on appeal.” Cummins v Robinson Twp, 283 Mich App 677, 690; 770 NW2d 421 

(2009). This Court also reviews the applicability of governmental immunity de novo. Marilyn 

Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 279; 769 

NW2d 234 (2009). 

Plaintiffs brought a claim of inverse condemnation against defendant, arguing that the 

backup of sewage into their basement from defendant’s sanitary sewer system represents a de 

facto “taking” of their property requiring just compensation. In response, defendant argues that 

plaintiffs’ inverse condemnation is barred by the plain language of MCL 691.1417(2), which 

states:

A governmental agency is immune from tort liability for the overflow or backup 

of a sewage disposal system unless the overflow or backup is a sewage disposal 

system event and the governmental agency is an appropriate governmental 

agency. Sections 16 to 19 abrogate common law exceptions, if any, to immunity 

for the overflow or backup of a sewage disposal system and provide the sole 

remedy for obtaining any form of relief for damages or physical injuries caused 

by a sewage disposal system event regardless of the legal theory. [Emphasis 

added.]
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Defendant asserts that the plain language of MCL 691.1417(2) prohibits any other cause of 

action against a governmental agency, regardless of legal theory, arising from a sewage disposal 

system event. 

Defendant’s argument lacks merit. “Both the United States and Michigan constitutions 

prohibit the taking of private property for public use without just compensation.” Wiggins v City 

of Burton, 291 Mich App 532, 571; 805 NW2d 517 (2011), citing US Const, Am V; Const 1963, 

art 10, § 2. “[A]n action that establishes an unconstitutional taking may not be limited except as 

provided by the Constitution because of the preeminence of the Constitution.” Hinojosa v 

Department of Natural Resources, 263 Mich App 537, 546; 688 NW2d 550 (2004); see also 

Burdette v Michigan, 166 Mich App 406, 408; 421 NW2d 185 (1988) (“Governmental immunity 

is not available in a state court action where it is alleged that the state has violated a right 

conferred by the Michigan Constitution.”). Inverse condemnation is a constitutional tort claim. 

Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 91 n 38; 445 NW2d 61 (1989). “The 

government, therefore, ‘cannot excuse its tortious taking of private property by invoking the 

shibboleth of governmental function.’ ” Peterman v State Dept of Natural Resources, 446 Mich 

177, 205; 521 NW2d 499 (1994), quoting Defnet v Detroit, 327 Mich 254, 258; 41 NW2d 539 

(1950). The prohibitions of the governmental immunity statute cannot preclude defendant’s 

liability for constitutional tort claims, including inverse condemnation. 

However, we agree that plaintiffs’ inverse condemnation claim fails on its merits 

regardless of whether it is barred by the governmental immunity statute. We conclude that the 

trial court erred when it denied defendant’s motion for summary disposition of plaintiffs’ inverse 

condemnation claim under MCR 2.116(C)(10) because plaintiffs failed to set forth any evidence 

of permanent deprivation or an affirmative action by defendant specifically directed at plaintiffs’ 

property. 

“Inverse condemnation is “ ‘a cause of action against a governmental defendant to 

recover the value of property which has been taken in fact by the government defendant, even 

though no formal exercise of the power of eminent domain has been attempted by the taking 

agency.’ ” Merkur Steel Supply, Inc v Detroit, 261 Mich App 116, 129; 680 NW2d 485 (2004) 

(citation omitted). “A taking for purposes of inverse condemnation means that governmental 

action has permanently deprived the property owner of any possession or use of the property.” 

Froling Trust, 283 Mich App at 294 (2009) (emphasis added). This Court has explained the 

concept of inverse condemnation as follows:

What governmental action constitutes a “taking” is not narrowly construed, nor 

does it require an actual physical invasion of the property. No precise formula 

exists. Pertinent factors include whether “the governmental entity abused its 

exercise of legitimate eminent domain power to plaintiff’s detriment.” Further, a 

plaintiff alleging inverse condemnation must prove a causal connection between 

the government’s action and the alleged damages. A plaintiff alleging a de facto 

taking or inverse condemnation must prove “that the government’s actions were a 

substantial cause of the decline of his property’s value” and also “establish the 

government abused its legitimate powers in affirmative actions directly aimed at 

the plaintiff’s property.” [Hinojosa, 263 Mich App at 548-549 (citations 

omitted).]
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Not every injury to property remotely associated with governmental actions will amount to a 

taking. Attorney General v Ankersen, 148 Mich App 524, 561; 385 NW2d 658 (1986). “In 

determining whether a taking occurred, the form, intensity, and deliberateness of the 

governmental actions toward the injured party’s property must be examined.” Froling Trust, 283 

Mich App at 295. Further, “[f]or a taking to occur, there must be some action by the government 

specifically directed toward the plaintiff’s property that has the effect of limiting the use of 

property.” Id. (quotation marks and citation omitted.)

As previously discussed, there are facts in the record which, viewed in a light most 

favorable to plaintiffs, support an inference that defendant’s actions caused, either directly or 

indirectly, plaintiffs’ injury. However, plaintiffs’ inverse condemnation claim fails, regardless of 

the remaining issue of causation, because plaintiffs have not alleged or set forth any evidence to 

support the crucial element of permanence—either in the form of permanent deprivation of 

property or decline in property value. “It is well settled that a governmental actor may cause a 

taking of private property by flooding the property or diverting excess surface water onto the 

property.” Wiggins, 291 Mich App at 572, citing Peterman, 446 Mich at 189 n 16. However, as 

the United States Supreme Court observed in Loretto v Teleprompter Manhattan CATV Corp, 

458 US 419, 427; 102 S Ct 3164; 73 L Ed 2d 868 (1982), courts have “consistently distinguished 

between flooding cases involving a permanent physical occupation, on the one hand, and cases 

involving a more temporary invasion, or government action outside the owner’s property that 

causes consequential damages within, on the other. A taking has always been found only in the 

former situation.” Even if defendant’s action of jetting the sewer main caused, directly or 

indirectly, the backup of sewage into plaintiffs’ home, plaintiffs’ inverse condemnation claim 

must fail on its merits because plaintiffs have not argued that the damage suffered is a permanent 

deprivation of the use of their property or a substantial decline in the value of their property. 

Indeed, in their amended complaint, plaintiffs requested damages only for “temporary” loss of 

real and personal property. Temporary damage simply does not support a cause of action for 

inverse condemnation. 

Further, although in their complaint plaintiffs allege that “[d]efendant’s affirmative 

actions of blasting and otherwise trying to remove the obstruction in the sewage line constituted 

and resulted in an unlawful damaging and taking and inverse condemnation by [d]efendant,” 

plaintiffs have failed to set forth facts suggesting that defendant took any affirmative action 

directly aimed at plaintiffs’ property. It was the plaintiffs’ burden to allege facts to support their 

claim. Oliver, 269 Mich App at 564. In this case, plaintiffs failed to establish that defendants 

directed any action toward their property and caused damage, or that any alleged damage was of 

a permanent nature. Summary disposition of plaintiffs’ inverse condemnation claim in favor of 

defendant was therefore appropriate. Id. 

Reversed and remanded for entry of summary disposition in favor of defendant. We do 

not retain jurisdiction. 

/s/ Deborah A. Servitto

/s/ Kathleen Jansen

/s/ Cynthia Diane Stephens