Court holds that property owner can sue water main contractor after flooding

Cheryl Boylan's property was flooded the season after a major water main project was completed in Lyon Township of Oakland County.  She alleged the flooding occurred because the contractors eliminated a nearby swale and changed the topography of her land to allow surface water to pool.  Her experts suggested that failures by the contractors building the new water main resulted in surface water overwhelming the septic system and causing it to fail.

The contractors argued that under the Fultz decision of the Engler Majority of Supreme Court justices, their contract duty to the Township eliminated any duty they might owe to third-parties injured by their negligence.  The  Court of Appeals unanimously rejected the defense argument.  It noted that by their entry upon Boylan's property and by reason of their creation of a "new hazard" through grading and other activities, the defendants assumed a "separate and distinct" duty to landowners such as her.