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Court reverses trial judge; summarily dismisses utility authority after sewage overflow

Kenneth and Sally Zmudzinski sued the Cassopolis Area Utiltities Authority after they suffered extensive property damage from a sewer overflow.  They argued that their claim survived governmental immunity because of an explicit exception in the Governmental Tort Liability Act.  The Cassopolis Authority claimed that the overflow was not a "sewage disposal system event" proximately caused by the government and that it was immune because the event was caused by a third-party obstruction.  The Trial judge ruled this was a question of fact for jurors, and Cassopolis appealed.

A two-judge majority of the three-judge Court of Appeals panel reversed and granted summary disposition to the Authority.  The majority reached this decision in reliance on the Authority's expert opinion that a cause for the "event" could not be determined, and in rejection of the suing couple's expert's opinion. Two judges of the Court concluded that the couples' expert's "opinions amount to nothing more than speculation and conjecture...because [his] opinion is based not on the evidence, but on assumptions without support in the factual record." 

The dissenting Judge filed a blistering opinion, pointing out that the Authority's retained expert proffered the unlikely suggestion that the couple's home experienced a coincidental fresh water flood on the date it was admittedly flooded with sewage.   As the dissenting judge noted, it was not the Court of Appeals' role to decide which retained expert was right:  it should limit itself to an analysis of whether there was sufficient evidence of causation to place before a jury.  The dissenting judge believed that the chronology of events and the expert's opinion evidence offered ample foundation for a jury verdict that a sewage "event" was responsible for the couple's damages.

To be inundated by sewage material both in one's basement and in one's appeal is adding insult to injury.

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