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Court addresses factual issues arising out of Wexford County's allegedly proprietary operation of landfill

Neighboring landowners have sued Wexford County, alleging it should be responsible for the contamination of groundwater in the area.  The County argued that it enjoys governmental immunity from any liability arising out of the operation of the landfill.  The trial court heard arguments on the issue and concluded that factual discrepancies precluded it from summarily determining the legal question of immunity.  In short, the court was required to decide whether the landfill had grown to such an extent that it was inconsistent with the County's normal governmental responsibilities and instead constituted a "proprietary" function for which no immunity existed.

The Court of Appeals noted the extensive nature of the landfill and the profit it had generated for a decade.  It also noted that for many years the profits from the landfill had been dedictated to its operation, but that in recent years, income had been diverted to support other clearly "traditional" governmental functions.  Lastly, it noted that there was a factual dispute with regard to when the contamination of groundwater actually occurred.  On this basis, it agreed with the local judge and ruled that a factual hearing must be held to allow the judge to make a legal determination of whether the landfill was of a scope and nature that it had out-grown traditional municipal functions.

The Court also rejected the County's argument that the lower court should not have considered the landowners' expert's affidavit regarding the date contamination occurred.  The County had suggested that the affidavit did not adequately address the foundation of the expert's opinion by listing his qualifications and methodology.  The Court of Appeals panel explained that in addressing a Motion for Summary Disposition, a party need not establish the foundational basis for an expert's opinion.

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Traverse City, Michigan 49684
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