A Hundred-Year Storm that Happens Every Five Years: Encouraging Detroit to Fix its Infrastructure and Changing the Liability Standard
Jennifer Meer
In June 2021, Detroit experienced one of the heaviest rains the area had seen since August 2014—though there had been at least four other incidents of extreme rainfall within the past five years.[i] The city’s poor infrastructure led to extensive flooding and subsequent damage on roadways, in businesses, and in neighborhoods.[ii] As late as March 2022, homeowners were still trying to get quotes from contractors to repair their houses.[iii] While the infrastructure remains unfixed and a class action suit on behalf of Detroiters is still pending, an analysis shows that the legal standard for residents looking to be compensated for damage is seemingly impossible to meet. And unfortunately, given the circumstances of this case, low-income Detroiters will be impacted the most. I argue for a more relaxed standard in order to provide fair compensation.
Before describing the legal issue, it is important to understand the context surrounding flooding in Detroit. In the words of one Wayne State University professor, “[t]he infrastructure was built for a different time and place.”[iv] A survey of over 4,500 Detroit households indicated that between 2012 and 2020, 46 percent of homeowners experienced flooding.[v] Unsurprisingly, the areas of Detroit with the highest risk of flooding were those that were hit the hardest during the 2021 floods,[vi] and a quick glance at the map of these afflicted areas[vii] shows that they are marked by lower income. The gentrified downtown and midtown areas did not experience the same extent of flooding.
In response to extensive water and sewage damage, Detroiters and other Wayne County residents filed lawsuits—one of which is a 700-victim class action suit against the city of Detroit, the City of Grosse Pointe Park, Detroit Water and Sewage Department, and the Great Lakes Water Authority (GLWA).[viii] Lawsuits in response to flooding in the Detroit area are nothing new.[ix] Detroiters have been filing them for over 20 years and the city has not fixed the underlying infrastructure problems.[x] Nevertheless, even though it appears this class action is still pending, there is very little information available on it, besides the fact that the plaintiffs sued for unconstitutional taking of property; trespass and nuisance; and gross negligence.[xi]
Absent from the complaint is any mention of Michigan’s Governmental Liability for Negligence Act (GLNA)[xii]—informally called the “Sewage Act.”[xiii] The goal of this act is to “make uniform” and to “define and limit” the liability of state and municipal entities “when engaged in the exercise or discharge of a governmental function, for injuries to property and persons.”[xiv] The act indicates that claimants can seek compensation from government agencies for property damage caused by sewage if they show that a) the government agency was “an appropriate government agency”; b) the sewage system had a defect; c) the agency knew or should have known about the defect; d) the agency failed to take reasonable steps to correct the defect; and e) the defect was a substantial proximate cause of the sewage event and the damage.[xv]
Despite the statutes absence from the complaint, in July 2022, the GLWA announced it would deny claims filed by more than 24,000 customers related to the flooding.[xvi] The GLWA pointed to the GLNA and declared that, though failures at pumping stations contributed to the flooding, they were not the “substantial proximate cause,”[xvii] therefore failing to satisfy prong (e) of the statute. It emphasized that the flooding can be attributed to the “historic rainfall” rather than deficiencies in the sewage system.[xviii]
However, the GLNA is flawed for practical and legal reasons. First,though the GLNA focuses on damage caused by sewage,[xix] it is located in a section of the MCL that focuses on government liability for negligence, and, specifically, government immunity.[xx] Sewage-related issues are generally treated as one of six “exceptions” to such immunity.[xxi] Thus, the law is framed to absolve the government from blame unless a plaintiff can meet the burden of proving that a government-caused defect was a “substantial proximate cause” of the damage, requiring that the defect be at least 50 percent the cause. In a situation like this—which involves arbitrarily determining at what point the government is no longer responsible for the poor infrastructure because it simply rained too much—this standard is unworkable.
Zooming out, it would be easy to satisfy prongs (b), (c), and (d) of the GLNA. There was evidence that the accused government agencies “have known for years that sewer infrastructure is deficient, in disrepair incapable of handling heavy rain events, but still failed to upgrade equipment and put in place an emergency plan to deal with a scenario like the June downpour.”[xxii] According to the class action complaint, there has been a long history of problems with the two pumping stations that are said to have been defective,[xxiii] and while sources are in conflict as to how many defects there were, it is widely agreed that pump failures contributed to the flooding.[xxiv]
The preceding discussion prompts a related question—how much contribution is enough? According to prong (e) of the GLNA, 50 percent. But it is unclear what would signal that the government is at least 50 percent responsible. The attorney leading the suit said, “[GLWA] takes the position this was a hundred-year storm, although we have them every five years.”[xxv] If it had rained an inch less and the flooding still occurred, would the government have conceded that it was to blame? Probably not. In this instance, they were able to hide behind the 50 percent threshold because there is no way to prove that the failure of the tanks and their failure to fix the issues contributed just enough to this problem.
The standard is flawed for legal reasons, as well. In Copus v. Lenawee County Drain Commissioner,[xxvi] the Michigan Court of Appeals applied this statute. It emphasized that “where the ‘probabilities’ of a causal connection between the harm at issue and other potential causes ‘are at best evenly balanced,’ there is no basis for a jury to attribute the injury to one cause rather than the other.”[xxvii] In other words, even if the GLWA were to concede that it is as much to blame as the rainfall itself, the plaintiffs cannot prevail. This seems unfair since the infrastructure was known to be faulty.
Given the unworkability of this standard, I would argue that the “substantial proximate cause” test should be replaced with a “substantial factor” test, which is often adopted in cases of products liability and is easier to satisfy.[xxviii] In this discussion, which turns on poor infrastructure, I would argue it makes sense to treat machines, like pumping stations, as products—because, in a literal sense, they are. Furthermore, this isn’t a typical consumer product—rather, it is a government product used to keep cities safe and clean. As such, it is a matter of government responsibility. Detroit residents have absolutely no control over drainage infrastructure, have repeatedly suffered from it, and have a government that is unwilling to correct it. The substantial factor test weakens government immunity and holds them accountable for issues that residents cannot solve. It may also prompt the government to take steps to fix the infrastructure.
Without relaxing this standard, plaintiffs will never prevail because it will be the government’s word against the amount of rainfall—and the government will win. In a situation like this, where thousands of low-income Detroiters have been repeatedly harmed by preventable government neglect, the statute should be modified to account for the city’s knowledge of the defects, failure to act, and subsequent contribution to the extensive damage.
Jennifer Meer is an Associate Editor with MJEAL. Jennifer can be reached at jkmeer@umich.edu.
[i] Louis Aguilar, Understanding Why Detroit Floods and Why It Keeps Happening, Bridge Magazine (Jul. 14, 2021), https://www.bridgemi.com/urban-affairs/understanding-why-detroit-floods-and-why-it-keeps-happening.
[ii] Id.
[iii] I learned this information when I spoke with Detroit residents through the Property Tax Appeal Project at Michigan Law in March 2021.
[iv] Aguilar, supra note 1.
[v] Id.
[vi] Id.
[vii] Id.
[viii] Tom Perkins, Can New Detroit Flooding Lawsuits Succeed Where Past Litigation Failed?, Detour Detroit (Aug. 23, 2021), https://detourdetroiter.com/can-new-detroit-flooding-lawsuits-succeed/. After Detroit declared bankruptcy in 2013, the GLWA was one of several entities created to privatize some of the city’s assets. Through leases it took over Detroit Water and Sewerage Department’s sewer and water assets so that they could continue operating and serving Southeast Michigan residents. Surviving Bankruptcy, The GLWA Assumes Operations of Detroit Water and Sewage, WJR (Dec. 5, 2015), https://www.wjr.com/2015/12/05/surviving-bankruptcy-the-glwa-assumes-operations-of-detroit-water-and-sewage/.
[ix] Id.
[x] Id.
[xi] Complaint, Douglas and Laura Bulka v. Great Lakes Water Authority (Jul. 13, 2021), https://www.dropbox.com/s/mdc0awuo2eqw6qi/TC%20Complaint.pdf?dl=0.
[xii] Mich. Comp. Laws Ann. §§ 691.1401-19 (West).
[xiii] See Fingerle v. City of Ann Arbor, 308 Mich. App. 318, (2014), aff’d, opinion vacated.
[xiv] Mich. Comp. Laws Ann. § Ch. 691, Refs & Annos (West).
[xv] Mich. Comp. Laws Ann. § 691.1417 (West).
[xvi] Nina Ignaczak, GLWA Denies All Flood Claims from 2021; Lawsuits Will Continue, Planet Detroit (Jul. 19, 2022), https://planetdetroit.org/2022/07/glwa-denies-all-flood-claims-from-2021-lawsuits-will-continue/.
[xvii] Id.
[xviii] Id.
[xix] Mich. Comp. Laws Ann. §§ 691.1401-19 (West).
[xx] See id.
[xxi] Mich. Comp. Laws Ann. § 691.1413 (West).
[xxii] Perkins, supra note 8.
[xxiii] Complaint, Douglas and Laura Bulka v. Great Lakes Water Authority (Jul. 13, 2021), https://www.dropbox.com/s/mdc0awuo2eqw6qi/TC%20Complaint.pdf?dl=0.
[xxiv] Beth LeBlanc, Class Action Suit Filed Against DTE Over Power Failure at Key Detroit Pump Station, The Detroit News (Jul. 29, 2021), https://www.detroitnews.com/story/news/local/detroit-city/2021/07/29/class-action-suit-filed-against-dte-over-pump-station-power-failure/5416031001/.
[xxv] Corey Williams, Detroit-Area Utility Denies Flooding Claims from 2021 Storm, Associated Press News (Jul. 19, 2022), https://apnews.com/article/floods-storms-michigan-detroit-a820d6cb89ff33578a48eb0fb613334b.
[xxvi] Copus v. Lenawee Cnty. Drain Comm’r, No. 355218, 2021 WL 5755140 (Mich. Ct. App. Dec. 2, 2021).
[xxvii] Id.,at *4.
[xxviii] § 29:11. Proving proximate cause—View that plaintiff need only prove defect was substantial factor in causing injuries, Am. L. Prod. Liab. 3d § 29:11