The "Flint water crisis," which, as the opinion of the Michigan Court of Appeals in Gulla v. State of Michigan, No. 340017 (Jan. 24, 2019), noted, is "the contamination of
plaintiffs’ water supply and their exposure to toxic and hazardous substances," is all over the front pages. Which means it also spawned lawsuits.
The plaintiffs raised several claims across several cases, alleging (among other claims) inverse condemnation. In one series of cases, the defendants sought dismissal, arguing that the facts as alleged would not support takings liability. In the other, the court denied the defendants summary judgment. The court of appeals consolidated the appeals.
This is an unpublished opinion, so there's not a whole lot of controversy or deep analysis by the court. But it is still worth reading because the court considered (and rejected) the defendants' immunity argument. And the opinion gives a good rundown of Michigan takings standards, under which the court must consider "'the form, intensity, and the deliberateness of the government actions' in the aggregate." Slip op. at 10 (Take that, Penn Central!). Here's what the complaints alleged:
In both docket no. 340458 and docket no. 340890, all plaintiffs, collectively, alleged in their complaints that defendants specifically decided to send water they knew or had reason to know was unsafe through the pipelines and into plaintiffs’ homes and businesses. Plaintiffs detailed the specific actions and inactions of defendants which resulted in the contaminated water flowing into their homes as well as the information available to defendants regarding the safety of the water at various points. Plaintiffs referenced Article 10 § 2 of the Michigan Constitution’s requirement that "'[p]rivate property shall not be taken for public use without just compensation." They also asserted that the actions and inactions of the state constitutes a de facto taking of private property without just compensation because the actions of the state were unreasonable, unwarranted, and reckless. Plaintiffs claimed that the defendants took affirmative actions that directly targeted their properties and they sustained property damage, including irreparably damaged service line pipes, loss of use and enjoyment of their property, and substantial loss in the value of their properties.
Slip op. at 11.
Applying the Michigan takings test, the court concluded that "[t]he decision to have plaintiffs' water source be the contaminated Flint River was clearly an affirmative act by defendants specifically directed towards plaintiffs' properties." Slip op. at 11. This and the other facts alleged (the decision to not return to the Detroit water system even after it was suspected the Flint Rives was contaminated, and directing the contamination towards plaintiffs' homes and properties) was sufficient to properly plead a claim for inverse condemnation.
Check it out.
Gulla v. State of Michigan, No. 340017 (Mich. Ct. App. Jan. 24, 2019) (unpub.)...
