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STATE OF MICHIGAN 

COURT OF APPEALS 

HOLIDAY PARK REALTY, LLC, 

 Plaintiff-Appellant, 

UNPUBLISHED 

July 14, 2015 

v No. 321269 

Ingham Circuit Court 

CITY OF LANSING, LC No. 13-000245-NZ 

 Defendant-Appellee, 

and 

INGHAM COUNTY DRAIN COMMISSIONER, 

COUNTY OF INGHAM and PAWLOWSKI 

CREEK DRAIN DRAINAGE DISTRICT, 

 Defendants. 

Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ. 

PER CURIAM. 

 Plaintiff, Holiday Park Realty, LLC, appeals by right the trial court’s order granting the 

motion for summary disposition by defendant, City of Lansing.1

 Because we conclude there 

were no errors warranting relief, we affirm. 

I. BASIC FACTS 

 In July 2011, water flooded property owned by Holiday Park after rain events. In March 

2013, Holiday Park sued the City on the grounds that the City’s sewage disposal system had a 

defect that was a substantial proximate cause of the flooding and property damage. 

 

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 The other defendants were dismissed from the case and are not parties to this appeal. 
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 The City moved for summary disposition under MCR 2.116(C)(7) and (C)(10) in 

February 2014. It argued that the undisputed evidence showed that its drain was not a substantial 

proximate cause of the flooding of Holiday Park’s property. 

 The City relied in part on the affidavit of its expert professional engineer, Steven 

VandenBrink. He averred that there was no basis for believing that the drain was impeded by 

obstructions during the time of the rainfall at issue. VandenBrink evaluated the onsite storm 

drainage for Holiday Park’s property and determined that the open drain was not inadequate or 

defective. He opined that the substantial proximate cause of the flooding in 2011 was Holiday 

Park’s inadequately sized private storm sewer system, combined to a lesser extend with 

surcharged conditions produced by the unprecedented storm events. The surcharged conditions 

downstream of the site, VandenBrink stated, caused high water levels resulting in overflows into 

the subject property. 

 Holiday Park’s expert, Thomas Deneau, who is a licensed professional engineer, testified 

at his deposition that there was a defect in the condition of the City’s open drain behind the 

property—namely, that the drain could have been blocked by debris. However, he did not know 

for a fact that pallets or other debris were actually in the drain on the days at issue, let alone that 

the debris caused plugging. He acknowledged that his assumption about pallets being in the 

drain at the time of the incident was “conjecture.” Deneau nevertheless disagreed with 

VandenBrink’s statements concerning the contribution to the flooding caused by the onsite 

drainage system, which he opined was at most only 7.45 percent the cause of the flood. 

 The trial court determined that the City had presented evidence that its drain did not have 

a defect that was a substantial proximate cause of the flooding on Holiday Park’s property. 

Because Holiday Park failed to present evidence to establish a question of fact on that issue, the 

sewage disposal system event exception to governmental immunity did not apply. See MCL 

691.1417(2). Accordingly, it dismissed Holiday Park’s claim against the City. 

II. SUMMARY DISPOSITION 

A. STANDARDS OF REVIEW 

 On appeal, Holiday Park argues that the trial court erred when it determined that there 

was no question of fact as to whether the sewage event exception to governmental immunity 

applied. This Court reviews de novo a trial court’s decision on a motion for summary 

disposition. Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013). This Court 

also reviews de novo the trial court’s interpretation and application of the statutes establishing an 

exception to governmental immunity. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 

(2004). 

B. SUMMARY DISPOSITION 

 A trial court properly dismisses a claim under MCR 2.116(C)(7) when the moving party 

is entitled to immunity granted by law. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 

(2008). A governmental entity can establish that it is entitled to immunity in two ways: it may 

show that the plaintiff failed to plead in avoidance of governmental immunity or, if the plaintiff 

effectively pleaded in avoidance of governmental immunity, it can present evidence, which if left 
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unrebutted, shows that the exception to governmental immunity pleaded by the plaintiff does not 

apply. See Yono v Department of Transportation (On Remand), 306 Mich App 671, 678-680; 

858 NW2d 128 (2014). If the nonmoving party responds with evidence sufficient to establish a 

question of fact as to whether immunity applies, the trial court must deny the motion. Id. at 680. 

 A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Maiden v 

Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The moving party must support the 

motion with evidence that, if left unrebutted, would establish that the moving party is entitled to 

judgment as a matter of law. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 

Mich App 362, 369; 775 NW2d 618 (2009); MCR 2.116(G)(3). If the moving party properly 

supports his or her motion, the burden shifts to the nonmoving party to establish a genuine issue 

of fact. Barnard Mfg, 285 Mich App at 370. 

 The City is generally immune from tort liability whenever it is engaged in the exercise or 

discharge of a governmental function. Ross v Consumers Power Co (On Rehearing), 420 Mich 

567, 595; 363 NW2d 641 (1984). Under MCL 691.1417(2), the City is immune from 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.” MCL 691.1416(k) defines a “sewage disposal system event” to mean the “backup of a 

sewage disposal system onto real property.” In relevant part, an overflow or backup is not a 

sewage disposal event if a connection to the sewage system on the affected property was a 

substantial proximate cause of the overflow or backup. MCL 691.1416(k)(ii). Substantial 

proximate cause means “a proximate cause that was 50% or more of the cause of the event and 

the property damage or physical injury.” MCL 691.1416(l). 

 In its motion for summary disposition, the City presented evidence that its drainage 

system was not obstructed and that the cause of the flooding was the extraordinary rainfall 

coupled with the inadequate onsite drainage for Holiday Park’s property. In response to the 

City’s motion, Holiday Park endeavored to establish a material question of fact as to whether its 

system was a substantial proximate cause of the flooding with Deneau’s expert testimony. 

 In order to establish a question of fact, an expert’s testimony must be more than mere 

conjecture and speculation. Bennett v Detroit Police Chief, 274 Mich App 307, 319; 732 NW2d 

164 (2006). Assuming that VandenBrink’s calculations were correct regarding the amount of 

water that drained directly into the subject property, Deneau opined that this amount would only 

account for 7.45 percent of the water in the subject property as a result of the July 2011 flood. 

He further stated that the size of the pipes that are part of Holiday Park’s onsite drainage system 

and the size of the sump pumps were irrelevant to the flooding at issue. Based on these opinions, 

Holiday Park argues that its onsite drainage system was not more than 50 percent the cause of 

the flooding. But Deneau admitted that he had not assessed the onsite drainage system and sump 

pumps and repeatedly stated that he did not know when asked about the specific capabilities of 

the onsite system. Thus, his opinion was mere conjecture and did not establish that Holiday 

Park’s onsite drainage system was not a substantial proximate cause of the flooding. Id. Even 

assuming that his testimony established that the onsite system was not more than 7.45 percent at 

fault for the flooding, that conclusion does not permit an inference that the City’s drainage 

system was responsible for the balance of the flooding. 
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 Even if there is a sewage disposal system event, the governmental agency will not be 

liable for the event unless the claimant can show that the “sewage disposal system had a defect” 

and the defect “was a substantial proximate cause of the event and the property damage or 

physical injury.” MCL 691.1417(3); see also Willett v Waterford Twp, 271 Mich App 38, 49-50; 

718 NW2d 386 (2006) (characterizing the elements stated under MCL 691.1417[3] as 

requirements that must be met to avoid governmental immunity). A “defect” for purposes of the 

act is “a construction, design, maintenance, operation, or repair defect.” MCL 691.1416(e). 

 Holiday Park contends that there was evidence that the City’s drainage system was 

defective. Specifically, it presented evidence that the City failed to maintain the drainage system 

and that it had vegetation overgrowth that allowed for debris to become stuck and dam the drain. 

The evidence on which Holiday Park relied for this proposition were statements that drain 

maintenance was generally necessary to prevent vegetation overgrowth that could lead to the 

accumulation of debris and that if the drain had been clean there was a good chance that no 

flooding would have occurred. Holiday Park presented expert opinion that anything like a pallet 

or a shopping cart in the drain that got stuck in the trees along the bank could cause a plugging 

and create flooding. However, merely presenting an expert’s opinion that debris could cause a 

drain to plug was not sufficient to establish that the drain actually had become plugged. Bennett, 

274 Mich App at 319. Such an opinion is “simply an explanation consistent with known facts or 

conditions, but not deducible from them as a reasonable inference.” Karbel v Comerica Bank, 

247 Mich App 90, 98; 635 NW2d 69 (2001) (quotation marks and citation omitted). 

 When asked whether pallets caused the drain to be plugged, Deneau testified that the 

pallets “could have” plugged the drain, but stated that he did not know for a fact that they had. 

He conceded that he did not know where the pallets were during the events at issue. He did not 

know what debris—if any—was in the drain during the rain events and agreed that the only thing 

that was known for sure was that there was vegetation or trees along the bank. This testimony 

was insufficient to establish that the pallets actually played a role in the flooding. While 

circumstantial evidence may be sufficient to establish a case, a party opposing a motion for 

summary disposition must present more than speculation or conjecture to meet its burden of 

establishing a question of fact sufficient to defeat a motion for summary disposition. Karbel, 

247 Mich App at 97. Deneau’s testimony was that the pallets might have played a role, but he 

could not state whether they in fact played a role; it was just as plausible—if not more 

plausible—that the unprecedented rainfall caused the flooding. No witness indicated that the 

pallets were actually present in the drain at the time of the July 2011 flood period. Holiday Park 

failed to present any evidence that flooding at issue was caused by inadequate maintenance of 

the drain. The mere fact that the overgrowth of vegetation could lead to the accumulation of 

debris in the drain is insufficient to establish that the drain was defective, and particularly, that 

such defect arose out of the City’s failure to maintain it. 

 There was no question of fact as to whether there was a defect in the drain that was a 

substantial proximate cause of the flooding. MCL 691.1417(3)(b). Consequently, the trial court 

did not err when it dismissed Holiday Park’s claim against the City. Barnard Mfg, 285 Mich 

App at 375. 
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 There were no errors warranting relief. 

 Affirmed. 

/s/ Peter D. O'Connell 

/s/ Donald S. Owens 

/s/ Michael J. Kelly