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Negligence action arising out of negligent storm water drain design and construction is dismissed

Royal Management Company and two individuals sued an engineer and Orchard Pine Investments, LLC, after their property flooded.  The Plaintiffs alleged that they suffered substantial property damage as a result of a defectively designed storm water drain.  The Defendants were allowed to file a late affirmative defense arguing that the Plaintiffs did not file their claim within the applicable three-year statute of limitations, and the Court then granted the Defendants summary disposition on that basis.  The plaintiffs appealed, arguing that their claim was not late--and that, in any event, the defendants should not have been granted relief from their own tardiness in raising the statute of limitations defense.

In typical Michigan jurisprudential fashion, the higher Court upheld both rulings, giving relief to the defendants from their technical error but denying relief to the plaintiffs. The Court noted that the Republican majority of the Michigan Supreme Court has eliminated the "discovery" exception to the statute of limitations and that where flooding gradually increases over time, the statute begins to run at the first visible "injury" to property:  it never "re-starts," no matter how severe the damage  becomes,  and there is no "continuing injury" exception to re-start the statute. 

By contrast, the Court reiterated that Michigan law which required that the statute of limitations be raised in the defendants' initial answer, may be waived by the court "in the interest of justice."  Thus "justice" trumps the written rule, when applied to the defendant's technical breach, but not with respect to the time limits applicable to the injury victim. This is called "Republican justice."

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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