Mitts v. Village of Fowlerville ( 1982 )

119 Mich. App. 76 (1982) 326 N.W.2d 431

MITTS
v.
VILLAGE OF FOWLERVILLE

Docket No. 56714.

Michigan Court of Appeals.

Decided August 26, 1982.

Lavan, Hegarty & Harris, for plaintiffs.

Before: MacKENZIE, P.J., and D.E. HOLBROOK, JR., and D.S. DeWITT,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from the December 2, 1980, lower court order granting partial summary judgment in favor of the defendant on the ground that plaintiffs' negligence claim against defendant was precluded by the governmental immunity statute. MCL 691.1407; MSA 3.996(107). The gist of plaintiffs' complaint is that raw sewage from the defendant village's sewer system backed up into their home on at least six occasions between December 4, 1979, and March 29, 1980. Defendant's motion for partial summary judgment as to the negligence count of plaintiffs' complaint was premised on the argument that the establishment and maintenance of a municipal sewage system is a governmental function for which the governmental unit is immune from tort liability.

In Rubino v Sterling Heights, 94 Mich. App. 494; 290 NW2d 43 (1979), this Court held that the operation of a municipal water system is not a governmental function. Similarly, in Ross v Consumers Power Co, 93 Mich. App. 687; 287 NW2d 319 (1979), lv gtd 408 Mich. 959 (1980), this Court found that an analogous activity, the construction of a drain, also was not a governmental function. Although this Court did find that a six-county sewer project in southeastern Michigan was a governmental function in Davis v Detroit, 98 Mich. App. 705; 296 NW2d 341 (1980), lv den 410 Mich. 856 (1980), it did so because of the likelihood that it could not be undertaken by any private corporation.

Examining the governmental activity in the case before us, we find that it is more like that considered by this Court in Rubino and in Ross than that which was before us in Davis. Thus, we conclude that the operation of defendant's sewer system is not an activity that can only be accomplished by the government. For this reason, its operation does not constitute a governmental function.

The December 2, 1980, lower court order granting partial summary judgment in favor of defendant is reversed and this cause is remanded for further proceedings consistent with this opinion.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.