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Court examines "speculative cause" for sewer back-up and reinstates dismissed claim

Michael and Joy Kole sued Nagle Paving Company after their basement flooded with sewage.  It was clear that the sewer backup occurred because there was excessive debris in a nearby manhole, including large chunks of asphalt and brick.  Since the Nagle Paving Company was the only company known to have performed significant asphalt work in the area in the past decade (since the manhole was last inspected), Koles sued them for depositing the debris in the manhole. 

Nagle produced an affidavit from its work supervisor claiming that Nagle did not damage or deposit debris in the manhole when it removed the asphalt from the road surface and re-paved it for a housing development entrance.  The Koles produced a development engineer who testified that Nagle was the only reasonable source of the debris, and also confirmed by deposition that Nagle's supervisor was not present most of the day when the nearby asphalt was cut up, removed and replaced. The supervisor also acknowledged that debris is commonly deposited in manholes during asphalt reconstruction without the construction crew necessarily recognizing that it has happened.

Based on these proofs, the Court of Appeals ruled that the trial judge had committed error in dismissing the Kole's case.  The judge had deemed the Kole's evidence "too speculative."  The higher court unanimously ruled that there was ample evidence to support a jury's decision that Nagle caused the debris deposit---if the jury actually reaches that conclusion after weighing the testimony.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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