Municipalities are Not Immune from Liability for Failure to Comply with the MISS DIG Act
In the recent case of Zezula v Brown, the Michigan Court of Appeals issued an opinion regarding potential liability of government agencies, including municipalities, for violations of the Michigan MISS DIG Underground Facility Damage Prevention and Safety Act (the “MISS Dig Act”).
The Zezula case arose from circumstances in which a sewage overflow occurred in the plaintiff’s home after a contractor struck a sewer lateral when it drilled into the ground to perform electrical line groundwork. The contractor stated that it had asked Independence Township to mark its facilities, but the township had failed to mark its sewer facilities. When the township was sued for this, it asserted that it was immune from liability under the Michigan Governmental Liability for Negligence Act (the “GTLA”). The Court of Appeals disagreed, holding that the township was not necessarily immune from the plaintiff’s claims, and remanded the case for further evaluation in the trial court. The basis for the Court’s decision is discussed below.
Exception to Tort Immunity Under the Michigan GTLA
Under the GTLA, governmental agencies, including municipalities, are generally immune from tort liability if they are engaging in the exercise or discharge of a governmental function. This means that municipalities are protected from tort claims for damages. However, there are several exceptions to the general rule, and municipalities are subject to liability if one or more of those exceptions applies.
Before 2014, there was no specific section of the GTLA or the MISS DIG Act that stated that the general rule of governmental immunity did not apply to the MISS DIG Act. However, both the GTLA and the MISS DIG Act were amended in 2014 to include a new exception from the general rule of governmental immunity related to the MISS DIG Act. Specifically, Section 7 of the GTLA now provides that immunity from tort liability does not apply to “liability of a government agency under the MISS Dig Act.” Before Zezula, the scope of the MISS DIG Act exception was not clear, because the GTLA did not explain whether “liability” under the MISS DIG Act included all claims under the MISS DIG Act, or only certain claims.
Scope of Liability under MISS DIG after Zezula
In Zezula, the Court concluded that the term “liability” includes “all legal responsibility under the MISS Dig Act.” This means that municipalities are not immune from liability for any failure to comply with their responsibilities under the MISS DIG Act. For example, in Zezula, the plaintiff argued that the township had failed to comply with its responsibility under the MISS DIG Act to mark its sewer facilities, after the contractor notified it that it was going to perform electrical work. If the Zezula plaintiff is able to prove, on remand to the trial court, that the township was required to mark its sewer facilities under the MISS DIG Act, the township could be held liable for the damages to the plaintiff’s home due to the sewage overflow.
Notice Requirements for Damages or Physical Injuries caused by Sewage Disposal Event
The Zezula case also involved a question about whether the plaintiff had provided proper notice of his claim for damages to the township. In that regard, Section 19 of the GTLA, provides that a claimant is not entitled to compensation related to a sewage disposal system event unless the claimant notifies the responsible governmental agency of its claim of economic damages or physical injury, in writing, within 45 days after the date the damage or physical injury was discovered, or should have been discovered if reasonable diligence was exercised.
There is an exception to the requirement of written notice within Section 19, under certain circumstances, but the Court clarified that its opinion about MISS DIG liability did not create a new exception to the notice requirement. Accordingly, plaintiffs must still follow the GTLA procedures and requirements for claims related to sewage disposal system events in Sections 17 through 19 of the GTLA, even when the liability arises out of an alleged violation of the MISS DIG Act.
Ongoing Litigation
Independence Township has filed an application for leave to appeal the Zezula decision to the Michigan Supreme Court. In the interim, however, Zezula remains binding law and will remain in effect unless it is overturned by the Michigan Supreme Court. We will continue to monitor developments surrounding this case.
If you have any questions regarding the Zezula decision or potential liability of your municipality under the MISS DIG Act, please contact a lawyer in our firm’s Local Government Law Practice Group.
