Sewage back-up claim summarily dismissed because victims' proofs deemed inadequate; second claim will go to trial
One exception to governmental immunity for negligent actions is the statutory provision that allows a property owner to recover for a negligently-caused sewer system back-up. In Kerbyson v. Elba Township, the plaintiffs argued that the statute should make the defendants responsible for their clean up and repair costs because the Township "should have known" of a defective auto-dialer in its Wedgewood station. The Court concluded that despite prior static-filled calls, there was insufficient proof to document that the Township should have been aware of an operational defect in the system. It upheld summary disposition of the claim.
In a similar lawsuit, the Court of Appeals affirmed another trial judge's decision that a case brought by Cannon Township was entitled to go forward to trial against the Rockford Public School System. The school had argued that the Township lacked standing to sue on behalf of a homeowner that it had reimbursed, and that in any event, the failure in the school's filtration system was not a flaw or defect subject to the statutory sewage back-up liability scheme. The Court disagreed with the school and upheld the lower court on both issues.