The Michigan Court of Appeals in Fingerle v. City of Ann Arbor, No 310352
held that, absent a governmental action that diverts rain water onto private property, merely constructing drainage infrastructure will not lead to governmental liability when property is damaged by the natural flow of rain water.
Lawrence Fingerle owned a home in an Ann Arbor Subdivision which historically was prone to flooding. In order to reduce the flooding, Ann Arbor built drainage infrastructure in the early 1990’s: this drainage system largely decreased the flooding in the area. Fingerle, however, was unaware of the flooding risk, and completed a finished basement in 2002, which was then flooded during a large rain storm in 2010. Fingerle argued that the Michigan Sewage Act (MCL 691.1416-1419) and the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq
) allowed him to recover from Ann Arbor for the damage done to his basement. His claim stemmed largely from Ann Arbor informing residents that it would build drainage infrastructure of a certain size, and apparently, it did not comport with the stated dimensions.
The Court’s opinion sternly disagreed. It first held that under a plain reading of the Sewage Act, “it does not . . . apply to any events that exclusively involve rainwater [and do not involve] the collection treatment, and disposal of waste sewage and industrial waste.” Further, the Court determined, that Fingerle’s complaint was mainly a contract action, that did not permit recovery under either the GTLA or the Sewage Act, and that such claims were not even remotely possible. The Court stated, “What emerges from [Fingerle’s] claim is a cause of action that sounds in contract, not tort. Remove the words, there is no duty. Remove the words, there is no defect. Remove the words, there is no causation.”
Therefore, the Court, fearful of increasing governmental liability to actions based in contract and expanding the legislative intent of Sewage Act and the GTLA, dismissed Fingerle’s claim.