SAAD, J.

Defendant city of Ann Arbor appeals the trial court's denial of its motion for summary disposition of plaintiffs claim under MCL 691.1416 to MCL 691.1419 (the "Sewage Act") of the governmental tort liability act (GTLA), MCL 691.1401 et seq.1 For the reasons set forth in this opinion, we reverse and dismiss plaintiff's claim.

I. ANALYSIS

Plaintiff's home is located in the Landsdowne Subdivision in Ann Arbor. The neighborhood has historically been prone to flooding, and Ann Arbor, without any legal duty to do so, built drainage infrastructure to service the area in the early 1990s.2 Yet, despite the fact that Ann Arbor's infrastructure helped to reduce the amount of rain-caused flooding — a fact that plaintiff concedes3 — flooding continued to occur during and after large rainstorms in the 1990s and 2000s. Plaintiff claims that he was unaware of the risk of flooding. In 2002, he built a finished basement and a large egress window directly across from a private retention basin that had overflowed in past rain events. In June 2010, an intense rainstorm caused substantial flooding in the Landsdowne Subdivision, and rainwater entered plaintiff's home through the egress window that faced the retention basin. Plaintiff's claim, reduced to its essence, is this: had Ann Arbor built its drainage infrastructure of the size it said it would,4 the rain would not have flooded and damaged his basement.

Plaintiff's theory of recovery is deceptively simple, yet novel and problematic. If adopted by our Court, it would impose unlimited and unprecedented liability, and create the potential for financially crippling damage awards against cities — and ultimately, their taxpaying citizens — never seen in American or Michigan law.5

What makes plaintiff's radical claim even stranger is that it is brought against a governmental entity that the Michigan Legislature has protected with significant governmental immunity laws.6 To further underscore the oddity of plaintiff's action, his specific claim is raised under a narrowly defined and strictly limited statutory exception7 to governmental immunity.8 Again: the Sewage Act9 is intended to provide comprehensive and broad immunity, and limited tort liability,10 to governmental entities, and any exceptions are interpreted narrowly and strictly.11 Plaintiff's attempt to shoehorn his cause of action into this statutory framework would radically expand governmental liability in a statute expressly designed to do just the opposite.

In other words, plaintiff has brought suit for recovery under a statute that is simply inapplicable to his lawsuit. The reason is clear. The Sewage Act provides very limited and strictly circumscribed tort liability for sewage-related events, not contract-based liability for natural rainwater flooding.12 Stated differently, because the causative "event" in issue is rain, not sewage, and because the statute provides relief for claims that sound in tort, not contract, plaintiff has no claim under the Sewage Act.

That is, absent action by a governmental entity that somehow diverts the natural flow of rainwater onto private property13 that would otherwise not have experienced rain-caused flooding, the Sewage Act literally does not address or apply to the consequences of severe weather such as rainstorms.14 Again, the reason is obvious. No law has ever imposed an obligation (and thus, liability) upon a governmental entity to protect private property owners from acts of God or consequences of severe weather.15 Historically, this has been an issue for private property owners and their insurers, not an area of liability for cities and their tax-paying residents.16 And, there is nothing in this statute that remotely suggests that the Michigan Legislature made such a dramatic shift in public policy. We should think that if such a seismic change was intended, Michigan's Legislature would have made this very clear.17 The Sewage Act strongly suggests the opposite result. Again, its expressed intent is to strictly limit liability for sewage-related events caused by governmental entities.18

In brief, the city is not obliged by the Sewage Act to deal in any way with the consequences of rain that naturally flows from a higher to a lower elevation. In brief, the statute does not cover the event complained of, because it addresses sewage, not rain.

Because the Sewage Act does not create or impose the radical and dangerous theory advanced by plaintiff, and because plaintiff has no common-law cause of action against Ann Arbor, plaintiff cleverly couches his theory of recovery under a deceptively appealing contractual theory — "had the city built what it said it would,19 my basement would not have flooded." But this is a tort statute, not a statute that addresses contract-based liability.20 Nothing in the plain language of the statute imposes liability or creates a duty premised on representations of the city.21

Close examination of every paragraph, every sentence, and every word of the Sewage Act reveals nothing to support the idea that a city should be held liable for what it said or represented. To the contrary, the statute says expressly that it: (1) abrogates all common-law theories of liability (this would include plaintiff's contract-based claim)22, and (2) is the sole means of recovery for sewage-related events, regardless of the legal theory advanced by any plaintiff.23 And, because plaintiff's entire theory of recovery is predicated on words and representations, his entire theory of recovery sounds in contract, not tort24 — and contract theories of liability are expressly abrogated by the statute and prohibited by its clear definitions.25

This can be clearly demonstrated by simply removing the statement or representation on which plaintiff relies — "the city said it would build drainage infrastructure of a certain size." First, had the city built its infrastructure without saying a word, it would have no liability because it had no duty by law to do anything. Moreover, by plaintiff's own admission, Ann Arbor not only did not cause the flooding, or make it worse, but instead, reduced the amount of flooding.26 Under these facts, there has never been a court decision in Michigan holding that the government breached a duty to an owner of private property.

Thus, the only duty alleged in plaintiff's telling arises because the city said it would build drainage infrastructure of a certain size.27 In other words, the city's duty, under plaintiff's theory, is to do what it said it would do. But this is a contract theory, not tort, and not to be found in the Sewage Act. And what of the breach or defect? There is none. Unless it is premised on words, because the city did not build drainage infrastructure of the size it said it would — the defect is created by the words, the defect is the representation. Of course, as mentioned, the city's infrastructure reduced the amount of rainwater that otherwise would have been involved in the flooding. And what of causation? Clearly, the severe rainstorm and plaintiff's inexplicable building of a basement and an egress window in a flood plain across from a private retention basin that had overflowed in the past, would appear to be the cause in fact and proximate cause of plaintiff's damage.28 Yet again, in plaintiff's telling, the cause is premised on the representation — "had the city only built to the size it said it would, my basement would not have experienced rain damage."

What emerges from plaintiff's hybrid theory of recovery is a cause of action premised solely on words — a cause of action that sounds in contract, not tort. Remove the words, there is no duty. Remove the words, there is no defect. Remove the words, there is no causation. We again emphasize that nothing in the Sewage Act even remotely suggests liability premised on representations, and for good reason. Contract law, with its own peculiar principles and order and allocation of proofs, has no place in a tort statute, much less a self-defined tort statute that advances a public policy of broad governmental immunity, with strictly limited exceptions. Moreover, a cause of action that sounds in contract, such as plaintiff's, is in reality a common-law theory of recovery that is expressly abrogated by the Sewage Act. And, again, for good reason.

First, if we examine plaintiff's claim, he says he knew nothing about the historic flooding in his own neighborhood and presumably, therefore, is unable to claim that he relied on the representation of the city when he built his basement and egress window. Indeed, perhaps this anomaly is what led plaintiff to attempt to shoehorn his contract, representation-based theory of recovery under the Sewage Act. Second and more importantly, were we to accept a contract-based theory of recovery, this would create an endless and unpredictable stream of questions and problems. For example, would a plaintiff have to prove reliance on the representations in order to state a cause of action for detrimental reliance or promissory estoppel?29 This theory or cause of action cannot be found anywhere in the Sewage Act. Further, if one administration were to make a statement of intent, would this bind a successor administration? The answer is certainly not in the Sewage Act. If the project is later judged to be too extravagant or expensive, or the city experiences financial crisis, can the project be modified, downsized, or abandoned, and when and by whom, and who could sue under such circumstances? Troubling questions with no answers in the Sewage Act, for obvious reasons.30 This is a tort statute, not a statute that creates contractual-type liability.

II. RESPONSE TO THE DISSENT

We respectfully disagree with the dissent's view of this case. As an introduction, let's make clear what this case does not involve. It does not involve a governmental entity that caused a flood. Plaintiff makes no allegation that Ann Arbor, by its direct action, diverted naturally flowing water or rainwater onto property that otherwise would not have been flooded. Nor did it fail to remove an obstruction in its drainage system that then led to a flood. And this case does not involve a sewage backup.

Again, this case involves a heavy rainstorm that caused a flood in a low-lying area of Ann Arbor that had historically experienced rain-caused floods. By plaintiff's own admission, Ann Arbor, without any legal obligation to do so, built drainage infrastructure that helped reduce the amount of rainwater on his property. Nonetheless, plaintiff has brought suit against Ann Arbor because a large storm caused a flood of rainwater that broke through his basement window and caused him damages. To substantiate his action, plaintiff points to a 1990 statement made by the private engineering firm that designed the drainage infrastructure near his property, which indicated that the infrastructure could drain a specific amount of water. However, the drainage infrastructure, as built, can drain less than this specific amount of water. Plaintiff claims and the dissent insists this is a "defect" under MCL 691.1416(e), which abrogates governmental immunity, and that Ann Arbor should pay him money for the damages his property suffered during the flood.

There is a fatal flaw to this claim, of which the dissent is aware. As it admits, neither the Sewage Act, the wider GTLA, nor any common law has ever imposed a duty upon governmental entities to prevent damage to private property caused by extreme weather, such as flooding caused by a rainstorm. This state of affairs raises a serious problem and question for plaintiff and the dissent: If a city has no duty to provide drainage infrastructure to remove rainwater from private property, how can it have a duty to remove more rainwater than it said it would from plaintiff's property? In other words, if the city has no duty to capture any rain, how can it have a duty to capture more rain?

Simple, according to the dissent. Because Ann Arbor's relief sewer is "undersized" — i.e., it isn't as big as the private engineering firm that designed it said it would be — it is "defective" by design under MCL 691.1416(e). The supposed "defects" cataloged by the dissent are merely restatements of the above sentence in new terms.

But the dissent's answer to our original question — "if the city has no duty to capture any rain, then how can it have a duty to capture more rain?" — isn't really an answer at all. Because its answer — "a relief sewer with an inadequate capacity is a defective relief sewer" — invites yet another question, which circles back to the first: on what does plaintiff base his assertion that the relief sewer is of "inadequate" capacity and thus "defective" under MCL 691.1416(e)? The answer, of course, is: plaintiff's entire suit, and the dissent's analysis, hinges on a single statement made by the private engineering firm about the capacity of the relief sewer.

To see how, let's deconstruct the dissent's argument. The dissent notes that the private engineering firm professed an intention to design a relief sewer that could collect 3.25 inches of rainfall. This statement provides the dissent with its point of entry to MCL 691.1417: because the relief sewer, as built, did not actually collect 3.25 inches of rainfall, it is "defective" under MCL 691.1416(e), and thus creates liability for Ann Arbor under MCL 691.1417(3)(b). The statement is also the root of Ann Arbor's supposed breach of duty, because Ann Arbor knew the relief sewer had not solved all the flooding problems in plaintiff's neighborhood. And it is the so-called "substantial proximate cause" of plaintiff's damages, because if the sewer had been able to accommodate 3.25 inches of rainfall, as the private engineering firm said it would be able to, plaintiff's basement would not have been flooded during the rainstorm.

Plaintiff's and the dissent's reliance on the private engineering firm's statement is their undoing. The less flattering corollary of "the dissent's entire analysis hinges on a single statement" is "without that single statement, the dissent's analysis is wrong." Indeed, under plaintiff's theory, it is — if the private engineering firm had said nothing regarding the intended capacity of the relief sewer, plaintiff would unquestionably have no cause of action under MCL 691.1417. The sewer would not be "defective" under MCL 691.1416(e), because governmental agencies have no duty to build drainage infrastructure, nor does MCL 691.1417 create any such duty. The fact that Ann Arbor did build infrastructure would be inconsequential, because plaintiff would have no frame of reference by which to claim that the relief sewer was "defective," or that the relief sewer's capacity "caused" him damages under MCL 691.1417(3)(e). Duty, breach, causation — the dissent provides no independent justification for any of these essential tort concepts and relates each back to the private engineering firm's statement.

The testimony of plaintiff's expert witness, engineer Clif Seiber, only serves to further illustrate this fatal flaw. Seiber's report is replete with references to what the private engineering firm stated it would build — how much water the relief sewer was supposed to accept, how much rainfall the sewer was intended to handle. Plaintiff's own statements at the April 2012 hearing on the motion for summary disposition and his appellate brief echo this analysis, stressing that the sewer was undersized based on the statement of the private engineering firm.

The singular importance of the private engineering firm's statement to plaintiff's claim, then, is relevant for two reasons. First, it reveals that plaintiff's claim does not sound in tort. Insofar as it sounds anywhere, it sounds in contract. Again: "a tort requires a wrong independent of a contract ... the distinguishing feature of a tort [is] that it consists in the violation of a right given or neglect of a duty imposed by law, and not by contract." In re Bradley Estate, 494 Mich. 367, 383, 835 N.W.2d 545 (2013) (quotation marks and citation omitted). Plaintiff does not allege that Ann Arbor owes him any legal duty independent of the statement the private engineering firm made about the relief sewer's capacity.

Second, were plaintiff to do so — were he to claim that the private engineering firm's 1990 statement about the capacity of the relief sewer created a duty for Ann Arbor to build drainage infrastructure of exactly that capacity — his claim would contravene centuries of common law and statutory law, and radically expand the scope of municipal liability.31 To repeat: governmental entities do not have a duty to build drainage infrastructure. Accordingly, they have never been liable under the Sewage Act or common law for acts of God, such as rain-caused floods. The Sewage Act does not mandate that governmental entities prevent all harm caused by natural rainwater flooding of private property. Rather, it mandates that governmental entities do no harm, by making them liable for drainage backups that are "substantial[ly] proximate[ly] cause[d]"32 by their affirmative actions.33 The dissent does not recognize this distinction, which is crucially important when interpreting a statute that is explicitly intended to limit — not expand — governmental liability.34

The dissent also does not apply these legal principles to the factual background of this case. Again, the Sewage Act does not mandate that governmental entities prevent all harm — rather, it mandates that governmental entities do no harm. Here, Ann Arbor did not take any affirmative action that led to plaintiff's damages. In fact, its actions, which, again, it was not required to take, actually helped plaintiff by lessening the damage plaintiff otherwise would have suffered during the June 5-6, 2010 rainstorm.

The dissent devotes considerable energy to rehashing plaintiff's "evidence" of how the "defective" — i.e., undersized — nature of the relief sewer "caused" his injuries. But "undersized" means nothing legally if the city has no duty to collect any rain — or in plaintiff's telling, more rain — than the relief sewer actually did. The "evidence" of the relief sewer's "undersized" nature includes the (hardly scientific) statement of plaintiff's neighbor that the relief sewer "never made things better," in that it supposedly did not "solve" the problem of the rain-caused flooding in plaintiff's neighborhood. This statement is illogical. Whatever its alleged shortcomings (if any), the relief sewer had some capacity to remove water from the surface — it is an unobstructed hole in the ground, and unobstructed holes collect rain and surface water.35 Again, plaintiff admits as much in his brief when he states: "[d]ue to design defects, the Relief Sewer was able to handle only about one-fifth of the rainfall generated by the June 2010 rain event...." (Emphasis added.)36

The dissent's analysis misses this crucial point. To repeat: nothing Ann Arbor did made the flooding worse. Nothing Ann Arbor did diverted more water into plaintiff's basement. Again, Ann Arbor's actions actually reduced the amount of rain-water that would have been involved in the flood absent the relief sewer. Therefore, as a matter of objective reality, the relief sewer cannot conceivably be the cause of the flooding at issue.

Nor does the dissent address the obvious outcomes of adopting plaintiff's theory of liability as binding precedent. Ideas have consequences, and the dissent's refusal to grapple with the consequences of its ideas are indicative of the weakness of its ideas.

As noted, the adoption of plaintiff's legal theory will cause municipalities to face unprecedented liability for mere statements of intent related to drainage infrastructure. Under the dissent's interpretation of the Sewage Act, if a governmental entity says it is going to build drainage infrastructure of a specific capacity, and the infrastructure, as built, does not drain that exact amount of water, the drain will be "defective" and the governmental entity will be liable for damages.

Municipalities will move to eliminate such liability in two ways. First, they will refuse to be transparent about new storm-sewer infrastructure, and will not inform residents about the intended capacity or design specifications of the new projects. Or, worse, municipalities may simply refuse to build new drainage infrastructure altogether. If a municipality has no duty to help its citizens (read: future plaintiffs) with rain-caused floods, and will face potentially crippling liability if it seeks to alleviate the flooding (meaning its taxpayers would pay for suits and damage awards), why offer any assistance at all? Under such a legal regime, Michiganders would face more floods, more water damage, and more safety risks. This was certainly not the intent of the Legislature when it enacted the Sewage Act and we refuse to construe the statute in a way that will create that outcome.

III. CONCLUSION

For the reasons stated above, the Sewage Act simply provides no relief to plaintiff. Accordingly, his claim is hereby dismissed.

Reversed.

O'CONNELL, J., concurred with SAAD, J.

O'CONNELL, J. (concurring).

I concur with both the result and the reasoning of Judge SAAD's well written majority opinion. I write separately to address the provisions of the governmental tort liability act (GTLA), MCL 691.1401 et seq., as it is applicable to the facts of this case.1 This case presents a governmental immunity issue, which is a question of law under MCR 2.116(C)(7). Because the material facts are undisputed, and because reasonable minds could not differ regarding the legal effect of those facts, the trial court's decision must be reversed.

I. GOVERNMENTAL IMMUNITY FOR SEWAGE DISPOSAL SYSTEM EVENTS

As both the majority and the dissenting opinions correctly recognize, the city is immune from liability for plaintiff's claims unless plaintiff can establish an exception to immunity under the applicable provisions of the GTLA, see MCL 691.1417. Accordingly, to avoid summary disposition, plaintiff was required to show as a matter of law that during the June 2010 downpour:

The exception to governmental immunity applies only if plaintiff can show that at the time of the deluge, all of these factors existed. Willett, 271 Mich.App. at 50, 52, 718 N.W.2d 386.

II. NO SUBSTANTIAL PROXIMATE CAUSE

In this case, plaintiff cannot make the requisite showing of substantial proximate cause.2 To establish substantial proximate cause under the GTLA, plaintiff must show that the alleged defect was "a substantial proximate cause of the event and the property damage...." MCL 691.1417(3)(e) (emphasis added). The GTLA defines "substantial proximate cause" as "a proximate cause that was 50% or more of the cause of the event and the property damage...." MCL 691.1416(l) (emphasis added). In turn, the GTLA defines an "event" as "the overflow or backup of a sewage disposal system onto real property." MCL 691.1416(k). According to these definitions, plaintiff was required to show that during the rainstorm on June 5-6, 2010, the alleged defects were 50% or more of the cause of the rainwater overflow, and the alleged defects were 50% or more of the cause of rainwater entering plaintiff's basement.

The undisputed facts in this case establish that there were multiple causes of the rainwater in plaintiff's basement on June 5-6, 2010. Those causes included the unusually intense rainstorm, the allegedly defective relief storm sewer, and the installation of plaintiff's basement egress window. The record confirms that both before and after the 1990 construction of the relief storm sewer, rainwater periodically flooded into basements in plaintiff's neighborhood. Plaintiff has provided no evidence to establish that the relief storm sewer exacerbated the flooding, or, for that matter, that the relief storm sewer failed to divert water. Instead, plaintiff contends that although the city had no duty to build any relief storm sewer, the city should nonetheless have built a bigger, better system than the one actually built. However, plaintiff provides no evidence to establish that bigger would be better in this case. Plaintiff's evidence establishes, at best, that on the night of the intense rainstorm, the relief storm sewer did not divert enough rainwater to prevent water from entering plaintiff's basement egress window. This evidence does not establish that the alleged defects were a substantial proximate cause of the overflow and of the rainwater in plaintiff's basement.

The trial court and the dissent conclude that there is a factual issue regarding whether the alleged defects were a substantial proximate cause of the overflow and the influx of rainwater. This conclusion is incorrect, for two reasons. First, the factual issues in the record, if any, are not material to substantial proximate cause. Plaintiff contends, and the trial court and the dissent accept, that the affidavit and report of plaintiff's expert create a factual issue on the substantial proximate cause of the overflow and the damage. This contention is misplaced, because plaintiff's expert does not address the multiple causes of the overflow and of the basement rainwater. Nothing in plaintiff's expert's report assesses the effect of the relief storm sewer on the degree of basement flooding that had historically occurred or that would have occurred without the relief storm sewer. Nor does plaintiff's expert assess the effect of plaintiff's decision to add a basement egress window in an area prone to flooding. Instead, plaintiff's expert addressed solely the alleged defects in the relief storm sewer. Given the multiple causes of plaintiff's basement rainwater, the expert's report does not establish that the alleged defects were 50% or more of the cause of the overflow, or of the basement rainwater.

Second, the trial court and the dissent assume that reasonable minds would overlook the multiple causes of plaintiff's basement rainwater. I disagree with this assumption. This Court must address the causation issue as a matter of law, unless reasonable minds could differ on the legal effect of the facts. See Willett, 271 Mich. App. at 45, 53-54, 718 N.W.2d 386. The facts in this case establish that plaintiff's basement flooded because an egress window failed to withstand historic flooding from an unusually heavy rainfall. Although reasonable minds might differ regarding whether the relief storm sewer was defective, no reasonable mind could conclude that the relief storm sewer was a substantial proximate cause of the basement rainwater.

III. CONCLUSION

Rain happens. To my knowledge, the only faultless rain management system in history was constructed according to design specifications given in cubits, not in cubic feet.3 The GTLA does not hold city governments to that historic standard of omniscience. In my view, to allow plaintiff's claim to go forward would be to open literal and figurative floodgates for litigation; our courts would be swamped in a torrent of sewage. Therefore, I concur in the majority decision to reverse the order of the trial court and to remand for entry of summary disposition in favor of the city.

BECKERING, P.J. (dissenting).

With all due respect, I disagree with the analysis of my colleagues. The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides a statutory framework that establishes when a governmental agency is liable for defects in its sewage disposal system. According to the express language of the GTLA, a governmental agency that knows, or in the exercise of reasonable diligence should know, about a defect in its sewage disposal system — whether it be a defect in the design or a malfunction — must take reasonable steps in a reasonable amount of time to repair, correct, or remedy the defect. Failure to do so exposes the governmental agency to liability for damages proximately caused by the defect. In this case, plaintiff, Lawrence Fingerle, produced evidence to establish that the relief storm sewer system at issue contained defects in its design and construction, which defendant city of Ann Arbor1 knew about and had plenty of time to fix, that caused it to back up during a rainstorm and flood his home. I agree with the trial court's finding that genuine issues of material fact exist, entitling plaintiff to a jury trial on the issues of defects and causation. Therefore, I would affirm the trial court's denial of defendant's motion for summary disposition under MCL 2.116(C)(7).

I. STANDARD OF REVIEW

This Court reviews de novo both the applicability of governmental immunity and a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7). Roby v. Mount Clemens, 274 Mich.App. 26, 28, 731 N.W.2d 494 (2007). "When reviewing a motion under MCR 2.116(C)(7), a reviewing court must consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings and evidence in favor of the nonmoving party." Anzaldua v. Neogen Corp., 292 Mich.App. 626, 629, 808 N.W.2d 804 (2011). See also Dextrom v. Wexford Co., 287 Mich.App. 406, 428-429, 789 N.W.2d 211 (2010). "To overcome a motion brought under MCR 2.116(C)(7), the plaintiff must allege facts warranting the application of an exception to governmental immunity." Roby, 274 Mich.App. at 28-29, 731 N.W.2d 494. "If no facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred by governmental immunity is an issue of law." Pierce v. City of Lansing, 265 Mich.App. 174, 177, 694 N.W.2d 65 (2005).

II. ANALYSIS

Defendant argues that it was entitled to summary disposition under MCR 2.116(C)(7) because plaintiff failed to satisfy all of the elements of MCL 691.1416 through MCL 691.1419 in order to establish an exception to governmental immunity and that plaintiff failed to establish that defendant breached a duty under the circumstances presented in this case. I disagree.

A. APPLICABILITY OF THE GTLA TO THIS CASE AND EXISTENCE OF A STATUTORY DUTY

Absent the applicability of a statutory exception, the GTLA provides a broad grant of immunity from tort liability to governmental agencies that are engaged in the discharge or exercise of a governmental function. MCL 691.1407(1); Maskery v. Univ. of Mich. Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003). "MCL 691.1417(2) provides an exception to governmental immunity for sewage disposal system events...." Linton v. Arenac Co. Rd. Comm., 273 Mich.App. 107, 114, 729 N.W.2d 883 (2006). The statute provides as follows, in pertinent part:

Moreover, MCL 691.1417(3) states the following:

"To successfully bring an action, a plaintiff cannot merely satisfy subsection 2 but must, instead, establish all the requirements of subsection 3." Bosanic v. Motz. Dev., Inc., 277 Mich.App. 277, 282, 745 N.W.2d 513 (2007), citing Willett v. Waterford Charter Twp., 271 Mich.App. 38, 49-50, 718 N.W.2d 386 (2006). Moreover, the statute provides not only an exception to immunity if its requirements are satisfied, but also a cause of action. Bosanic, 277 Mich.App. at 282-284, 745 N.W.2d 513. Bosanic rejects the idea that the statute itself does not provide a cause of action:

Thus, if plaintiff can establish the elements set forth in MCL 691.1417, he can recover for his losses.

The majority views plaintiff's action as being predicated on the idea that defendant did not build a storm water drainage system that would divert as much water as defendant said it would, amounting to an alleged breach of promise; thus, the majority concludes that plaintiff's claim sounds in contract law, not tort law. As such, the majority concludes that the GTLA is completely inapplicable under the circumstances. I do not agree with this characterization of plaintiff's case. Plaintiff has alleged, consistent with the plain language of the GTLA, defects in defendant's storm sewer system of which defendant was aware or should have been aware, and which, according to plaintiff, proximately caused damage to his home. For instance, plaintiff alleged that the storm sewer at issue suffered from a host of defects, including: (1) inadequate design capacity for regularly recurring peak flows leading to recurring collection of storm water outside the detention easement, (2) inadequate inlet capacity resulting in storm water backup and surface pooling, (3) drainage into the storm sewer from areas outside of the planned drainage area (including runoff from upstream development), (4) failure to increase capacity in response to increased load from upstream development, (5) inadequate or defective upstream detention, (6) misalignment in pipes and inlets, (7) inadequate capacity at downstream restrictions resulting in backup into the detention easement, and (8) failure to provide an adequate emergency storm water overflow route. These defects, according to plaintiff, proximately caused his damages. When examining plaintiff's complaint, it is evident that the nature of the liability sought to be imposed is tort liability grounded in MCL 691.1417, not contract liability. See In re Bradley Estate, 494 Mich. 367, 383-385, 835 N.W.2d 545 (2013) (explaining that the GTLA requires courts to look past the label of a claim to the nature of the liability sought to be imposed).

Defendant does not claim that plaintiff's case sounds in contract. Instead, defendant essentially argues that because it owed no duty to build a storm sewer system in the first place, once it undertakes to build one it cannot be held to owe a duty to design and build an adequate one. But the plain language of the GTLA expressly requires a governmental agency to repair any defects — including defects in the design of the system. In direct contrast to the limitations on liability set forth in the GTLA's public buildings exception, MCL 691.1406,2 and the public highway exception, MCL 691.1402(1),3 wherein the Legislature did not include design defects among the exceptions for which a governmental agency may be held liable, the GTLA expressly holds governmental agencies accountable for design defects. MCL 691.1416(e), which defines the language used in MCL 691.1417 to MCL 691.1419, defines the word "defect" to mean "a construction, design, maintenance, operation, or repair defect."4 (Emphasis added.) For purposes of MCL 691.1416(e), this Court has determined that a "defect" means "`a fault or shortcoming; imperfection.'" Willett, 271 Mich.App. at 51, 718 N.W.2d 386, quoting Random House Webster's College Dictionary (1997).

Here, plaintiff alleges shortcomings in the storm sewer's design and construction, and the GTLA expressly provides a cause of action for such claims. MCL 691.1417. See also Bosanic, 277 Mich.App. at 283, 745 N.W.2d 513 ("[MCL 691.1417(3) ] clearly provides that a `claimant may seek compensation' if the listed requirements are satisfied. In sum, while some semantic challenges may exist, it is difficult to imagine a statutory scheme that more clearly provides a potential cause of action."). When the Legislature has made the policy choice to provide a theory of recovery in cases involving design defects in sewage disposal systems, this Court should not second-guess that decision. Wells Fargo Bank, NA v. Cherryland Mall Ltd. Partnership (On Remand), 300 Mich.App. 361, 376, 835 N.W.2d 593 (2013) (quotation marks and citations omitted) ("the Legislature possesses superior tools and means for gathering facts, data, and opinion and assessing the will of the public"). Put simply, defendant's argument that it owed no duty to build a storm sewer system in the first place and, thus, it should not owe any duty to repair design defects in the system it builds, flies in the face of the plain language of the GTLA.

Defendant also argues that it does not owe plaintiff a duty under the GTLA because the GTLA does not impose a duty on defendant to remove all naturally collecting surface water and rainwater from private property. I agree that the GTLA does not impose such a duty on defendant. And so does plaintiff, because this is not the duty that plaintiff is alleging, expressly or implicitly. Indeed, plaintiff expressly states the following in his brief on appeal:

Although defendant does not have a general duty to remove naturally collecting surface water and rainwater from private property, it is well established that a duty may be imposed on a defendant that "voluntarily assumed a function that it was under no legal obligation to assume." Baker v. Arbor Drugs, Inc., 215 Mich.App. 198, 205, 544 N.W.2d 727 (1996). In this case, defendant voluntarily undertook to construct, assess the residents for, become the operator of, and exert jurisdiction and control over the relief storm sewer system, which is a sewage disposal system under the GTLA. The documentary evidence submitted to the trial court illustrates that defendant implemented the relief storm sewer system to alleviate significant flooding, including basement flooding, by being able to accommodate a 10-year, 24-hour storm event. Because defendant voluntarily assumed this function, it had a duty under the GTLA to take reasonable steps in a reasonable amount of time to repair, correct, or remedy a known defect in the system or a defect in the system that it should have known of through the exercise of reasonable diligence. See MCL 691.1417(3). Defendant's failure to timely correct any known design or construction defects in the system exposed it to liability according to the plain language of the GLTA.

To the extent that the majority questions the applicability of the GTLA to sewage disposal events involving rainwater, I respectfully disagree. The majority suggests that defendant's storm sewer is not a sewage disposal system under the plain language of MCL 691.1416(j), which provides as follows:

The majority construes the phrase "used or useful in connection with the collection, treatment, and disposal of sewage and industrial wastes" as modifying all the types of sewers and systems listed in MCL 691.1416(j). Thus, the majority opines that an appropriate governmental agency only has a duty to repair, correct, or remedy defects in disposal systems that handle the collection, treatment, and disposal of sewage and industrial wastes. However, this Court has previously held, in a case involving flooding after heavy rainfall, that a "sewage disposal system" under the GTLA is not limited to instrumentalities dealing with sewage or waste matter. Linton, 273 Mich.App. at 121, 729 N.W.2d 883. Even if the majority were correct in construing the phrase "used or useful in connection with the collection, treatment, and disposal of sewage and industrial wastes" as modifying all the types of sewers listed before it, it fails to account for critical language in the remainder of the statute; MCL 691.1416(j) specifically includes "a storm water drain system under the jurisdiction and control of a governmental agency" within the meaning of a sewage disposal system. The phrase "used or useful in connection with the collection, treatment, and disposal of sewage and industrial wastes" does not modify this later inclusion of a storm water drain system. A storm water drain system undoubtedly serves events involving rainwater; after all, storm water is rainwater; and, thus, the GTLA applies to events involving rainwater. Had the Legislature not wanted the GTLA exception to apply to rainwater, it would not have included the words "storm water" in the statute. As this Court explained in Linton, 273 Mich.App. at 116, 729 N.W.2d 883, "if the Legislature had intended that the exception only apply to sewage, then it would ... not have made a point of specifically clarifying that the exception applies to `a storm water drain system.'" To interpret the statute otherwise would render nugatory the phrase "and includes a storm water drain system." Defendant's relief storm sewer system is "a storm water drain system under the jurisdiction and control of a governmental agency" and, thus, it is a sewage disposal system. MCL 691.1416(j).

B. PLAINTIFF HAS PRESENTED EVIDENCE TO EITHER ESTABLISH OR CREATE GENUINE ISSUES OF MATERIAL FACT CONCERNING THE ELEMENTS SET FORTH IN MCL 691.1417(3)(a) THROUGH (e)

Upon review of the evidence presented in this case, I would find that plaintiff has produced sufficient evidence to either establish or create genuine issues of material fact with regard to the elements set forth in MCL 691.1417(3)(a) through (e), which, if met, would entitle plaintiff to recovery.

1. MCL 691.1417(3)(a), APPROPRIATE GOVERNMENTAL AGENCY

As already noted, MCL 691.1417(3)(a) requires plaintiff to establish that defendant was "an appropriate governmental agency." Defendant argues that it is not "an appropriate governmental agency" for purposes of MCL 691.1417. I disagree.

The Legislature defined the phrase, "appropriate governmental agency" to mean "a governmental agency that, at the time of a sewage disposal system event, owned or operated ... the portion of the sewage disposal system that allegedly caused damage or physical injury." MCL 691.1416(b). MCL 691.1416(j) defines a "sewage disposal system" to include "storm sewers" and "a storm water drain system under the jurisdiction and control of a governmental agency."

In this case, plaintiff alleges that the relief storm sewer system caused damage to his home during the June 2010 storm because the system was defective. The relief storm sewer system is a storm water drain system. See MCL 691.1416(j). There is evidence demonstrating that the relief storm sewer system is owned or operated by and under the jurisdiction and control of defendant. MCL 691.1416(b); MCL 691.1416(j). Specifically, the pleadings and documentary evidence demonstrate that defendant commissioned the relief storm sewer study in 1989, constructed it in approximately 1991, and funded the construction through special assessments and improvement charges on its residents. A map submitted to the trial court by defendant indicates that the relief storm sewer system is a public storm main. Defendant admitted in interrogatories that it maintains, repairs, and cleans the system, and there was evidence identifying the system as being under defendant's jurisdiction and control.

Defendant contends that it is not an "appropriate governmental agency" because there is no record evidence that the flooding of plaintiff's basement was caused by an overflow of the relief storm sewer. This contention lacks merit. MCL 691.1416(b) includes as an appropriate governmental agency one that owned or operated a sewage disposal system that "allegedly" caused damage. Plaintiff's complaint alleges that the relief storm sewer system caused damage to his home during the June 2010 storm; thus, defendant is an "appropriate governmental agency" under the facts of this case.5

2. MCL 691.1417(3)(b), (c), and (d), DEFECT IN SEWAGE DISPOSAL SYSTEM ABOUT WHICH DEFENDANT EITHER KNEW OR SHOULD HAVE KNOWN AND THAT DEFENDANT FAILED TO TAKE REASONABLE STEPS IN A REASONABLE AMOUNT OF TIME TO REPAIR, CORRECT, OR REMEDY

Subsections (b) through (d) of MCL 691.1417(3) collectively prescribe the duty imposed on governmental agencies when a defect exists in one of their sewage disposal systems. Specifically, a governmental agency that owns or operates a sewage disposal system must take reasonable steps in a reasonable amount of time to repair, correct, or remedy a defect in the system that the agency either knew about or should have known about through the exercise of reasonable diligence.

Here, as noted already, plaintiff identified a host of defects in defendant's storm sewer, including: (1) inadequate design capacity for regularly recurring peak flows leading to recurring collection of storm water outside the detention easement, (2) inadequate inlet capacity resulting in storm water backup and surface pooling, (3) drainage into the storm sewer from areas outside of the planned drainage area (including runoff from upstream development), (4) failure to increase capacity in response to increased load from upstream development, (5) inadequate or defective upstream detention, (6) misalignment in pipes and inlets, (7) inadequate capacity at downstream restrictions resulting in backup into the detention easement, and (8) failure to provide an adequate emergency storm water overflow route. In support of his defect claims, plaintiff submitted evidence from Clif Seiber and Mark Pribak, civil engineers, and John and Nancy Yalonen, plaintiff's neighbors.

Seiber testified that the relief system was designed to accommodate a 10-year, 24-hour storm event, but that the system failed to do so during the June 2010 storm. He opined that unless something was wrong with the system's design, the amount of rainfall should not have caused flooding. Seiber identified several specific defects in the relief storm sewer system, including under-capacity catch basin covers and undersized piping. He explained that upstream water could not enter the relief storm sewer in sufficient rate flows. There was not capacity for 23 acres of runoff. He opined that the catch basin covers restricted inlet capacity. And he explained that the design for the relief system included errors in the calculation of upstream runoff. Pribak testified specifically that the design of the relief sewer erroneously assumed a 4.4 cubic feet per second (cfs) peak flow for a 10-year, 24-hour storm, but that the actual expected peak rate of upstream flow is 35.7 cfs. Nancy Yalonen testified that defendant told her that the installation of the relief storm sewer system would "take care of your issue," i.e., take care of the flooding problem.6 Yet, the Yalonens testified that they received no benefit from the relief system that they paid for through a special assessment — according to Nancy, "it never made things better."

In addition, plaintiff presented evidence that defendant knew or should have known about the defect in the relief storm sewer system. See MCL 691.1417(3)(c) (requiring the plaintiff to prove that the governmental agency "knew, or in the exercise of reasonable diligence should have known, about the defect"). Notably, plaintiff's neighbors testified that they repeatedly notified defendant, over an eight-year period, of severe flooding in the area. In addition, Seiber opined that, based on the persistent flooding, defendant should have known about serious design defects. Pribak, who was defendant's expert witness, agreed that the repeated flooding "raises some indication that there's something different going on with the system," and that it was fair to say that the repeated flooding indicated a problem.

Supporting defendant's position that the relief storm sewer system did not contain a defect, Cresson Slotten, the manager of defendant's systems planning unit, testified that he was involved in the construction of the relief system and that he was not aware that it had any problems or that it was not operating as designed. Similarly, Gerald Hancock, defendant's storm water and floodplain programs coordinator, testified that he was not aware of any defects in the relief system. He also was not aware that the system could not handle the flow of northerly water from upstream. Hancock explained that the relief system was designed to handle a 10-year, 24-hour storm event. He testified that the June 2010 storm leading to the damage of plaintiff's home was less than a 10-year storm event over the course of 24 hours. Suggesting an explanation for why the relief system did not accommodate the June 2010 storm despite being designed to handle a 10-year, 24-hour storm event, Hancock explained that there were peaks during the storm that exceeded a 10-year storm event.

In light of this documentary evidence, I would find that reasonable minds could differ regarding whether the relief storm sewer system contained a fault, shortcoming, or imperfection, i.e., a defect, in design, particularly inadequate piping and inlet capacity, and whether defendant knew or should have known about such a defect. See MCL 691.1417(3); MCL 691.1416(e); Willett, 271 Mich.App. at 51, 718 N.W.2d 386. It is undisputed that nothing was done to repair the system or remedy the problem before plaintiff's flooding incident. Therefore, I would conclude that the trial court properly denied defendant's motion for summary disposition with regard to whether plaintiff submitted enough evidence to satisfy the elements set forth in MCL 691.1417(3)(b) though (d). See West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

3. MCL 691.1417(e), DEFECT AS A SUBSTANTIAL PROXIMATE CAUSE OF THE EVENT AND PROPERTY DAMAGE

Although the trial court determined causation to be a genuine issue of material fact and defendant does not raise this issue on appeal, the majority concludes that there is no evidence of causation. The GTLA requires that the defect in the sewage disposal system be "a substantial proximate cause of the event and the property damage or physical injury." MCL 691.1417(3)(e). The GTLA defines a "substantial proximate cause" as "a proximate cause that was 50% or more of the cause of the event and the property damage or physical injury."7 MCL 691.1416(l). Causation is generally a question for the trier of fact. Holton v. A+ Ins. Assoc., Inc., 255 Mich.App. 318, 326, 661 N.W.2d 248 (2003).

Here, plaintiff produced documentary evidence of an accumulation of storm water onto his property that was caused by inadequate piping and inlet capacity, i.e., defects in the storm sewer. Seiber opined that had the defects in the relief system not been present, the relief system would have adequately accommodated the storm event that caused plaintiff's flooding. Seiber opined that the predominant cause of plaintiff's flooding was the inadequate design of the relief storm sewer system. And he stated that he had a reasonable degree of professional certainty that the defects in the system were 50% or more of the cause of the flooding and damage. Defendant built the relief storm sewer system in response to flooding at Chaucer Court. And the documentary evidence illustrates that the system was intended to accommodate a 10-year, 24-hour storm event. It is undisputed that the June 2010 storm was less than a 10-year, 24-hour storm event. Thus, the evidence supports the conclusion that the June 2010 storm was reasonably foreseeable. An intervening cause is not a superseding cause if it was reasonably foreseeable. McMillian v. Vliet, 422 Mich. 570, 576, 374 N.W.2d 679 (1985). Given the evidence in this case, I would conclude that whether the defect in the relief storm sewer system was a proximate cause that was 50% or more of the cause of the sewage disposal system event and plaintiff's basement flooding, see MCL 691.1416(l), is a question for a jury to consider along with the fact that plaintiff built the basement window in an area with both a storm water detention basin and a history of flooding. Accordingly, I would conclude that the trial court properly denied defendant's motion for summary disposition on the basis that causation was a genuine issue of material fact.

C. MCL 691.1417(2), SEWAGE DISPOSAL SYSTEM EVENT

Finally, although not addressed by the majority, I note that defendant raises the additional, unpreserved argument that plaintiff's flooding was not the result of a "sewage disposal system event" under MCL 691.1417. See, generally, In re Smith Trust, 274 Mich.App. 283, 285, 731 N.W.2d 810 (2007) ("Because this argument was not raised in the trial court, it is not preserved."). Because this issue is unpreserved, I would decline to address it. See, generally, Wiggins v. City of Burton, 291 Mich.App. 532, 574, 805 N.W.2d 517 (2011) ("We decline to address this issue for the first time on appeal."); Bombalski v. Auto Club Ins. Ass'n, 247 Mich.App. 536, 546, 637 N.W.2d 251 (2001) ("We decline to address this unpreserved issue, which the trial court did not expressly consider."). However, in the event this Court were to exercise its discretion to overlook the preservation requirements and review this issue, see generally, Smith v. Foerster-Bolser Constr., Inc., 269 Mich.App. 424, 427, 711 N.W.2d 421 (2006), I would conclude that defendant's argument lacks merit.

A "sewage disposal system event," or simply an "event" as referred to in MCL 691.1417, "means the overflow or backup of a sewage disposal system onto real property." MCL 691.1416(k). The statute does not define the terms "overflow" or "backup." Therefore, this Court may refer to a dictionary to ascertain their plain meaning. See Willett, 271 Mich.App. at 51, 718 N.W.2d 386. See also Coventry Parkhomes Condo. Ass'n v. Fed. Nat'l Mtg. Ass'n, 298 Mich.App. 252, 259, 827 N.W.2d 379 (2012). "Overflow" is defined as "to flow or run over, as rivers or water," "to have the contents flowing over or spilling," "flood; inundate," "to flow over the edge or brim of," "something that flows or runs over," and "a portion crowded out of an overfilled place." Random House Webster's College Dictionary (2005). "Backup" means "an accumulation due to stoppage." Id.

In this case, Seiber concluded that upstream water could not enter the relief storm sewer system in sufficient rate flows because of inadequate design of the capacity of the inlets and piping. Seiber noted that there were errors in the calculation of upstream runoff during the system's design. During his deposition, Arthur Herold, another one of plaintiff's neighbors, described the flow of upstream water to the two relief storm sewer drains (beehives) on his property:

This documentary evidence illustrates that there was a "backup" of the relief storm sewer system, i.e., an accumulation of water onto real property because of a stoppage of the system, and, thus, a "sewage disposal system event" for purposes of MCL 691.1417. See MCL 691.1416(k). Specifically, there was a stoppage of storm-water intake into the relief storm sewer system because of the inadequate capacity of the system's inlets and piping, and the stoppage caused an accumulation of storm water. Therefore, defendant's unpreserved argument that plaintiff's flooding was not the result of a "sewage disposal system event" lacks merit.

For the reasons provided in this dissenting opinion, I would affirm the trial court's order denying defendant's motion for summary disposition under MCR 2.116(C)(7).