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A trial court properly allowed a suit to go forth against a city whose clogged sewer system resulted in damage to Plaintiffs home

The trial court properly denied in part the defendant-road commission's motion for summary disposition premised on governmental immunity where the plaintiffs-homeowners stated a claim under the "sewage disposal system event exception," and established a factual issue to support their claim. Plaintiffs claimed that the mold that allegedly contaminated their home was "caused by an infiltration of water . . . which occurred because a storm sewer system under the jurisdiction and control of defendant became clogged, resulting in storm water backing up and overflowing onto plaintiffs' property and into their home." The defendant argued that they could not rely on the sewage disposal system event exception to governmental immunity because "the sanitary sewer line was eliminated as the cause of the water infiltration" onto their property. The court disagreed, finding that the statute clearly provides that "a 'sewage disposal system event' includes the backup or overflow of storm sewers and storm water drain systems; notwithstanding the lack of the human waste found in the water that would colloquially be called 'sewage.'" Because the "defendant's system of catch basins and a culvert also was intended to divert storm water away from the road for purposes of drainage[,] . . . they qualify as a 'sewage disposal system.'" Also, there was evidence offered that a "maintenance defect" in the storm water drainage system caused a sewer disposal system event. "[I]t was for the jury to determine whether inadequate repairs by defendant caused the continued water problems on plaintiffs' property." The court rejected the defendant's reliance on Fingerle, and held that the plaintiffs established "a genuine issue of material fact" as to whether "the alleged defect in the sewage disposal system was a substantial proximate cause of the flooding" on their property. It also concluded that that they established a genuine issue of material fact whether the mold created "'an objectively manifested impairment of an important body function.'" As to plaintiffs' cross-appeal, the trial court properly denied them summary disposition because genuine issues remain regarding the defendant's liability under the Sewage Act.

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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