Immunity: Michigan Governor and State/Local Officials are Subject to Tort Liability for their Flint Water Actions

Immunity: Michigan Governor and State/Local Officials are Subject to Tort Liability for their Flint Water Actions

Mays v. Governor, no. 157335 (Mi. July 29, 2020).

In a 4-2 opinion affirming the courts below, the Michigan Supreme Court declined to dismiss a class action for inverse condemnation and bodily harm against former Michigan Governor Rick Snyder and other state and local officials for their actions which resulted in toxic water from the Flint River being supplied  to Flint residents, causing a major health crisis, damage to residential water systems and a precipitous drop in property values.

For more than 50 years, Flint, Michigan (Flint) received its water supply from Lake Huron.  In 2013, then-Governor Rick Snyder (Snyder) authorized an alternative water delivery system, which resulted in the Flint River serving as an interim water source for the residents of Flint—despite his alleged knowledge of a 2011 study that cautioned against the river as a source of drinking water because millions of dollars in water treatment upgrades would be needed to ensure safety.  The switch to the Flint River was made in April 2014. By June 2014, residents complained that they were becoming ill after drinking the water, later reporting hair loss, skin rashes, lead poisoning and Legionnaire’s disease, from which 12 people ultimately died.  In October 2014, General Motors announced that it was discontinuing the use of Flint water due to concerns about its corrosive nature.  In February 2015, the EPA found that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure it, and the state was advised that black sediment found in some of the tap water was lead.

Plaintiffs alleged that during this time, state officials failed to take any significant remedial measures to address the growing threat and instead continued to downplay the risks, advising Flint water users that it was safe to drink the tap water–while arranging for state employees in Flint to drink water from water coolers installed in state buildings.  Additionally, plaintiffs alleged that the state advised the EPA that Flint was using a corrosion-control additive with knowledge that the statement was false.  In October 2015, Snyder acknowledged that the Flint water supply was contaminated with dangerous levels of lead and ordered Flint to reconnect to its prior water source.

In January 2016, plaintiffs initiated a four-count class action in the Court of Claims against Snyder, the state of Michigan, the Michigan Department of Environmental Quality (MDEQ), and the Michigan Department of Health and Human Services (collectively, the state defendants) and against former Flint emergency managers Darnell Earley and Jerry Ambrose (the city defendants). They alleged, in part, claims for bodily injury and inverse condemnation and sought damages.

After surviving defendants’ motions for summary disposition at the Court of Claims and Court of Appeals, plaintiffs’ case reached the Michigan Supreme Court. It affirmed the Court of Appeals inverse condemnation judgment, finding that the pleadings established that defendants’ actions were a substantial cause of the decline in plaintiffs’ property value, that defendants took affirmative actions directed at plaintiffs’ property, and that plaintiffs suffered a unique or special injury different in kind, not simply in degree, from the harm suffered by all persons similarly situated.  While state and municipal agencies performing governmental functions are generally immune from tort liability, the government may voluntarily subject itself to liability.

Following United States Supreme Court precedent in comparing plaintiffs to a generalized group of similar individuals—other municipal water users who generally experience harms such as service disruptions and externalities associated with construction—the Flint plaintiffs alleged injuries that were different in kind, not just degree, from other municipal water users when they alleged that water contaminated with Legionella bacteria and toxic levels of iron and lead flowed through their pipes, service lines, and water heaters, which damaged the infrastructure and diminished their property’s value.  Accordingly, plaintiffs’ allegations were sufficient to conclude that plaintiffs had alleged a claim of inverse condemnation sufficient to survive a motion for summary disposition.

Defendants continued to argue that plaintiffs failed to satisfy statutory notice requirements: MCL 600.6431 provides that in actions for property damage or personal injuries, the claimant must file with the clerk of the Court of Claims a notice of intention to file a claim or the claim itself within six months following the happening of the event giving rise to the cause of action–the date on which the defendant’s breach harmed the plaintiff.  While defendants asserted that the April 2014 switch to Flint River water was the operative breach, predating plaintiffs’ complaint by nearly two years, the Michigan Supreme Court found that questions of fact remained as to when plaintiffs sustained their injuries, meaning  summary disposition at this stage of the litigation was premature.  And while the Michigan legislature has never expressly created an exception to immunity for a constitutional tort, one case (Smith v Dep’t of Pub Health, 428 Mich 540 (1987), aff’d sub nom Will v Mich Dep’t of State Police, 491 US 58 (1989), held that when a plaintiff brings a constitutional-tort claim against the state, in certain instances, the government is not immune from liability for violations of its Constitution.  Recognizing that discovery had not yet occurred and accepting plaintiffs’ allegations as true, the majority found that dismissal of monetary damages claims at this stage of the litigation would be premature.

A concurrence dealt more explicitly with the Court of Claims’ Act six-month notice rule, citing the “harsh-and-unreasonable-consequences” exception to the notice requirement which the Court of Appeals had relied on, and further affirming the Court of Appeals’ ruling that the fraudulent-concealment exception of a related provision would apply to the notice requirement: “The omission of a fraudulent-concealment exception to MCL 600.6431 is not reconcilable with the Legislature’s intent to provide claimants with two years from the date of discovery to bring suit for harm that was fraudulently concealed.”

Two justices dissented. One issue of contention was the majority’s view that defendants’ actions shocked the conscience: there were various inconsistent studies about the safety of Flint River water, Snyder testified that he was repeatedly assured by the MDEQ that the water was safe, and there was no broad consensus that using the Flint River as a water source would cause a serious public health crisis.  More specifically, the dissents focused on the notice issue: “Plaintiffs filed their complaint on January 21, 2016, and thus the event giving rise to the cause of action must have happened on or after July 21, 2015, for plaintiffs’ action to have been filed in a timely manner,” they wrote. “Because plaintiffs alleged in their complaint and in their amended complaint that the event giving rise to the cause of action was the switching of the water supply on April 25, 2014 … plaintiffs’ action was untimely.”

Click here to read the opinion.