Lawrence Washington Jr v. Governor

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

HAZIM GULLA, IKHALAS GULLA, HEATHER UNPUBLISHED
GULLA, HOLLY GULLA, HEIDI GULLA, January 24, 2019
DARRELL DAVIS, BARBARA DAVIS, ELISA
KLINE, MASON KLINE, ELIZABETH
EBERHARDT, JIMMY JAMES, LAROSA E.
PATRICK, HELEN CHAPMAN, DAMARIUS
CHAPMAN, SADE CHAPMAN, DIONTE
CHAPMAN, TAJUANA CHAPMAN,
TASHIANA CHAPMAN, KYEIRA HOWELL,
LASHONDA JONES, DOROTHY CHAPMAN,
individually and as conservator of ESTATE OF
LULA PEARL ATKINS-NELSON, SHAMIYA
CHAPMAN, DUQUAN CHAPMAN, HARRY
CHAPMAN, MICHAEL LYMON, DEBORAH
CHAPMAN-MARSHALL, FREDERICK
MARSHALL, ESSIE CHAPMAN, INEZ MARIE
WALKER, RONNIE L. WALKER, SHAWANA
M. WALKER, STEVEN W. REDMOND,
JEROME CHAPMAN, JEANETTE CHAPMAN,
MAURICE CHAPMAN, MAY J. CHAPMAN,
JOHN W. CHAPMAN, BOBBIE RODGERS,
HENRY C. BIGGS, RENITA M. COLEMAN,
MELEISA A. BETTS, ANGELA PRICE,
D’ANNA N. PRICE, AA’NIYAH EVANS,
ARTAYAH PRICE, BOBBY DEAN GRACE,
TERRY GRAVELLE, MARILYN DONEY-
GRAVELLE, ANGELINA DONEY, ANNE M.
HICKS, JOSHUA HICKS, LAQUANTUS
CARDELL, RAVEN NEAL, ROMERO
CARDWELL, SIRQRON CARDWELL,
KATHLEEN CLIFTON, CARLTON BUTLER,
DANIEL CLIFTON, DEBBIE MITCHELL-
BUTLER, MAGNOLIA YOUNGER, RYAN
YOUNGER, GOWON YOUNGER, TIESHA
TAYLOR, DAMARRION E. TAYLOR,
MARIAH A. TAYLOR, KANIYA TAYLOR, and
PAULA BROWN,
 Plaintiffs-Appellants,

v No. 340017
Court of Claims
STATE OF MICHIGAN, GOVERNOR, LC No. 16-000298-MZ
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DEPARTMENT OF HEALTH AND
HUMAN SERVICES, EDWARD KURTZ,
DARNELL EARLEY, and JERRY AMBROSE,

Defendants-Appellees,
and

DAN WYANT,

Defendant.

LAWRENCE WASHINGTON, JR., individually
and next friend of TAYLOR WASHINGTON,
minor, MORGAN WASHINGTON, minor,
CHLOE WASHINGTON, minor, MADISON
WASHINGTON, minor, and LAWRENCE
WASHINGTON, minor, AARON SWINGER,
ANGELA WAY, and CONNIE MCNEAL,

Plaintiffs-Appellants,

v No. 340275
Court of Claims
GOVERNOR, STATE OF MICHIGAN, LC No. 16-000300-MM
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DARNELL EARLEY,
GERALD AMBROSE, and MIKE BROWN,

Defendants-Appellees,
and

ED KURTZ,

Defendant.

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HAZIM GULLA, IKHALAS GULLA, HEATHER
GULLA, HOLLY GULLA, HEIDI GULLA,
DARRELL DAVIS, BARBARA DAVIS, ELISA
KLINE, MASON KLINE, ELIZABETH
EBERHARDT, JIMMY JAMES, LAROSA E.
PATRICK, HELEN CHAPMAN, DAMARIUS
CHAPMAN, SADE CHAPMAN, DIONTE
CHAPMAN, TAJUANA CHAPMAN,
TASHIANA CHAPMAN, KYEIRA HOWELL,
LASHONDA JONES, DOROTHY CHAPMAN,
individually and as conservator of ESTATE OF
LULA PEARL ATKINS-NELSON, SHAMIYA
CHAPMAN, DUQUAN CHAPMAN, HARRY
CHAPMAN, MICHAEL LYMON, DEBORAH
CHAPMAN-MARSHALL, FREDERICK
MARSHALL, ESSIE CHAPMAN, INEZ MARIE
WALKER, RONNIE L. WALKER, SHAWANA
M. WALKER, STEVEN W. REDMOND,
JEROME CHAPMAN, JEANETTE CHAPMAN,
MAURICE CHAPMAN, MAY J. CHAPMAN,
JOHN W. CHAPMAN, BOBBIE RODGERS,
HENRY C. BIGGS, RENITA M. COLEMAN,
MELEISA A. BETTS, ANGELA PRICE,
D’ANNA N. PRICE, AA’NIYAH EVANS,
ARTAYAH PRICE, BOBBY DEAN GRACE,
TERRY GRAVELLE, MARILYN DONEY-
GRAVELLE, ANGELINA DONEY, ANNE M.
HICKS, JOSHUA HICKS, LAQUANTUS
CARDELL, RAVEN NEAL, ROMERO
CARDWELL, SIRQRON CARDWELL,
KATHLEEN CLIFTON, CARLTON BUTLER,
DANIEL CLIFTON, DEBBIE MITCHELL-
BUTLER, MAGNOLIA YOUNGER, RYAN
YOUNGER, GOWON YOUNGER, TIESHA
TAYLOR, DAMARRION E. TAYLOR,
MARIAH A. TAYLOR, KANIYA TAYLOR, and
PAULA BROWN,

Plaintiffs-Appellees,

v No. 340458
Court of Claims
STATE OF MICHIGAN, GOVERNOR, LC No. 16-00298-MZ
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and DEPARTMENT OF HEALTH

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AND HUMAN SERVICES,

Defendants-Appellants,
and

EDWARD KURTZ, DARNELL EARLEY,
JERRY AMBROSE, and DAN WYANT,

Defendants.

LAWRENCE WASHINGTON, JR., individually
and next friend of TAYLOR WASHINGTON,
minor, MORGAN WASHINGTON, minor,
CHLOE WASHINGTON, minor, MADISON
WASHINGTON, minor, and LAWRENCE
WASHINGTON, minor, AARON SWINGER,
ANGELA WAY, and CONNIE MCNEAL,

Plaintiffs-Appellees-Cross-
Appellants,

v No. 340890
Court of Claims
GOVERNOR, STATE OF MICHIGAN, LC No. 16-000300-MM
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and DEPARTMENT OF HEALTH
AND HUMAN SERVICES,

Defendants-Appellants-Cross-
Appellees,
and

DARNELL EARLEY, GERALD AMBROSE ,
MIKE BROWN and ED KURTZ,

Defendants.

Before: Servitto, P.J., and K. F. KELLY, and SHAPIRO, JJ.

PER CURIAM.

In these consolidated appeals, plaintiffs (residents of and property owners in the City of
Flint) appeal as of right the Court of Claims’ opinions and orders granting summary disposition
in favor of defendants Edward Kurtz, Darnell Earley, and Gerald Ambrose (the emergency
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manager defendants) due to a lack of subject matter jurisdiction, and granting, in part,
defendants’ State of Michigan, Governor, Department of Environmental Quality, and
Department of Health and Human Services (the state defendants) motions for summary
disposition. The state defendants also appeal as of right the Court of Claims’ opinions and
orders denying, in part, their motions for summary disposition. We reverse and remand for
further proceedings.

The salient background facts of this case were succinctly set forth in Mays v Snyder, 323
Mich App 1, 19-22; 916 NW2d 227 (2018) and, accordingly, need not be restated here. Suffice
it to say, these matters arise from the situation commonly referred to as the “Flint water crisis.”
In docket nos. 340017 and 340458, plaintiffs filed an action on December 8, 2016, against
defendants for their alleged actions and decisions which resulted in the contamination of
plaintiffs’ water supply and their exposure to toxic and hazardous substances. Plaintiffs’ causes
of action were for violation of due process-bodily integrity, and inverse condemnation, as well as
claim for injunctive relief under the Michigan Natural Resources and Environmental Protection
Act or, alternatively, an action of relief for diagnostic medical and psychological/counseling
services and treatment. The state defendants moved for summary disposition in their favor
arguing that plaintiffs failed to plead in avoidance of governmental immunity, that they cannot
state an inverse condemnation claim, and that the court lacks jurisdiction over one of plaintiffs’
claims. The Court of Claims denied, in part, the motion with respect to the violation of the
Michigan Natural Resources and Environmental Protection Act, and granted the motion with
respect to the remaining claims. The emergency manager defendants also moved for summary
disposition in their favor, and the Court of Claims granted the motion, finding that it lacked
subject matter jurisdiction.

In docket nos. 340275 and 340890, plaintiffs brought an action against defendants on
December 13, 2016. Plaintiffs alleged that defendants violated their right to due process based
on a state created danger, right to due process based on the bodily integrity doctrine, and right to
fair compensation for the government taking of private property (inverse condemnation). As in
the case above, all defendants moved for summary disposition. The Court of Claims denied the
state defendants’ motion, in part, with respect to plaintiffs’ claim of an unconstitutional taking of
property, and granted summary disposition in the state defendants’ favor on the remaining two
claims in plaintiffs’ complaint. The Court of Claims granted summary disposition in favor of the
emergency manager defendants, finding that it lacked subject matter jurisdiction.

Plaintiffs and the state defendants appealed the Court of Claims’ rulings and this Court
consolidated the matters on appeal.

I. Emergency Manager Defendants

Plaintiffs first assert on appeal that the Court of Claims erred in holding that the
emergency manager defendants were not “state officers” and that the court thus did not have
subject matter jurisdiction over plaintiffs’ claims against them. We agree.

We review de novo a lower court decision on a motion for summary disposition.
Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). A motion for
summary disposition brought under MCR 2.116(C)(4) tests the trial court's subject-matter

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jurisdiction. Braun v Ann Arbor Charter Tp, 262 Mich App 154, 157; 683 NW2d 755 (2004).
When reviewing a motion pursuant to MCR 2.116(C)(4), this Court must determine whether the
pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether
the affidavits and other proofs show that there was no genuine issue of material fact. Weishuhn v
Catholic Diocese of Lansing, 279 Mich App 150, 155; 756 NW2d 483 (2008).

Whether a court has subject matter jurisdiction over a claim is a question of law that is
reviewed de novo. Harris v Vernier, 242 Mich App 306, 309; 617 NW2d 764 (2000).
Consideration of the Court of Claims Act is a question of statutory construction, which is also
reviewed de novo as a question of law. Parkwood Ltd Dividend Hous Ass'n v State Hous Dev
Auth, 468 Mich 763, 767; 664 NW2d 185 (2003).

The Court of Claims has exclusive jurisdiction:

(a) To hear and determine any claim or demand, statutory or
constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any
demand for monetary, equitable, or declaratory relief or any demand for an
extraordinary writ against the state or any of its departments or officers
notwithstanding another law that confers jurisdiction of the case in the circuit
court. [MCL 600.6419(1)]

Relevant to the instant matters, “the state or any of its departments or officers” means

this state or any state governing, legislative, or judicial body, department,
commission, board, institution, arm, or agency of the state, or an officer,
employee, or volunteer of this state or any governing, legislative, or judicial body,
department, commission, board, institution, arm, or agency of this state, acting, or
who reasonably believes that he or she is acting, within the scope of his or her
authority while engaged in or discharging a government function in the course of
his or her duties. [MCL 600.6419(7)]

The issue of whether the emergency manager defendants meet the definition of “state
officers” as set forth in MCL 600.6419(7), such that the Court of Claims has jurisdiction over
claims against them, was squarely and conclusively addressed by this Court in Mays, 323 Mich
App at 49. In that case, the plaintiff water users and property owners in the city of Flint,
Michigan, brought an action against the Flint emergency manager defendants and the state
defendants for state-created danger, violation of plaintiffs' due-process right to bodily integrity,
denial of fair and just treatment during executive investigations, and unconstitutional taking via
inverse condemnation. Id. at 23. The emergency manager defendants moved for summary
disposition, arguing that they were not considered “state officers” under the Court of Claims Act
(CCA) and that the court thus had no jurisdiction over claims against them. The Court of Claims
denied the motion. Id. at 45. On appeal, a panel of this Court held that the emergency manager
defendants “clearly fall within the act's own definition and, as intended, within the Court of
Claims' jurisdiction.” Id. at 49. The Mays Court stated that we need, and may, not look past the
CCA for a definition of “state officer” as it is used in the act and that the emergency managers
took the challenged actions “while acting within the scope of their official authority and in the
discharge of a government function.” Id. The Court held:

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 We agree that the totality of the circumstances indicates that an emergency
manager operates as an administrative officer of the state. Further, it is beyond
dispute that at a minimum, an emergency manager must be characterized as an
employee of the state. Although the CCA does not provide a specific definition
for “employee,” this Court may look to dictionary definitions to “construe
undefined statutory language according to common and approved usage.” In re
Casey Estate, 306 Mich App 252, 260; 856 NW2d 556 (2014). Black's Law
Dictionary (10th ed.) defines “employee” as “[s]omeone who works in the service
of another person (the employer) under an express or implied contract of hire,
under which the employer has the right to control the details of work
performance.” Emergency managers, who are appointed by the governor, serve at
the governor's pleasure, are subject to review by the state treasurer, and operate
only within the authority granted by the state government, easily fall within this
definition. Indeed, our Court has recognized that political appointees, like the
emergency managers here, serve as at-will employees of the governmental agency
that appointed them. See James v City of Burton, 221 Mich App 130, 133–134;
560 NW2d 668 (1997). An emergency manager, as an appointee of the state
government, is an employee of the state government. Claims against an
emergency manager acting in his or her official capacity therefore fall within the
well-delineated subject-matter jurisdiction of the Court of Claims. [Id. at 50-51]

We are bound, by the doctrine of stare decisis, by opinions published by the Court of
Appeals after November 1, 1990. Catalina Mktg Sales Corp v Dept of Treasury, 470 Mich 13,
23; 678 NW2d 619 (2004); MCR 7.215(C)(2). Under Mays, then, the emergency manager
defendants are “state officers” or “employees” under the CCA and the Court of Claims thus has
jurisdiction over claims against them. Nevertheless, the state defendants assert that Mays was
wrongly decided and urge this Court to note its disagreement with that decision and convene a
conflict panel under MCR 7.215(J). We decline to do so.

We agree with the Mays Court ruling that the emergency manager defendants are officers
or employees of the state. This Court noted the same conclusion in Boler v Governor, ___ Mich
App ___; __NW2d ___ (2018). We also agree with the Mays Court that the question is not, as
the state defendants contend, whether the Legislature, in passing 2012 PA 436, intended to make
emergency managers state officers, but whether they are, in fact, officers or employees under the
CCA definition of the same. Mays, 323 Mich App at 48. But, even if PA 436 governed the
decision, “[u]nder PA 436, an emergency manager is granted the express authority to bring suits
in the Court of Claims ‘to enforce compliance with any of his or her orders or any constitutional
or legislative mandates, or to restrain violations of any constitutional or legislative power or his
or her orders.’ MCL 141.1552(1)(q).” Id. at 52. Because the public act specifically
contemplates proceedings involving emergency managers in the Court of Claims, this must
necessarily include all proceedings. It would be illogical for the Legislature to provide that an
emergency manager is to bring any suit in the Court of Claims that arises from the powers
exercised by the emergency manager under the public act, yet preclude suits against the
emergency manager in the Court of Claims arising from the same exercises of power. It would
also be nonsensical to find that the emergency manager defendants acted only on behalf of the
City of Flint, particularly when the City voted to return to the Detroit water system rather early
on, and the emergency managers exercised their powers to veto that decision. If the emergency

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manager defendants were, in fact, acting only on behalf of the City, they would have cooperated
with City leaders and residents and ensured that the City’s residents were provided potable
water. We also find the Mays Court’s analysis concerning emergency managers as receivers
particularly compelling. Id. at 53-56.

Whether or not the emergency managers had contracts labeling them as independent
contractors is irrelevant. It is undisputed that an emergency manager is appointed by the
governor and serves at the pleasure of the governor. MCL 141.1549(1) and (1)(d). Political
appointees serve as at-will employees of the governmental agency that appointed them. See
James, 221 Mich App at 133–134. Moreover, as pointed out by the emergency manager
defendants themselves, the distinction between an employee and an independent contractor is
determined by applying the “economic reality test.” Adanalic v Harco Nat Ins Co, 309 Mich
App 173, 190–91; 870 NW2d 731 (2015). Factors to be considered under this test include: “(a)
control of the worker's duties, (b) payment of wages, (c) right to hire, fire and discipline, and (d)
the performance of the duties as an integral part of the employer's business towards the
accomplishment of a common goal.” Id. at 191.

The state controls the emergency managers’ actions. See, MCL 141.1549(1), providing
that an emergency manager is appointed by and serves at the pleasure of the governor; MCL
141.1549(2), providing for the powers of an emergency manager; MCL 141.1549(5), requiring
an emergency manager to submit quarterly reports to the state treasurer; and MCL 141.1562
requiring the governor to review and approve a determination by the emergency manager
whether the financial emergency has been rectified. The state also pays the financial manager’s
wages. See, MCL 141.1549(2)(e). The state, through the governor, has the sole authority to
hire, fire and discipline an emergency manger. See, MCL 141.1549(1); MCL 141.1549(9),
subjecting an emergency manager to the standards of conduct and ethics for public officers and
state officers. Finally, the performance of an emergency manager’s duties is integral to the
state’s business toward the accomplishment of a goal. MCL 141.1543 specifically declares:

(a) That the health, safety, and welfare of the citizens of this state would
be materially and adversely affected by the insolvency of local governments and
that the fiscal accountability of local governments is vitally necessary to the
interests of the citizens of this state to assure the provision of necessary
governmental services essential to public health, safety, and welfare.

(b) That it is vitally necessary to protect the credit of this state and its political
subdivisions and that it is necessary for the public good and it is a valid public
purpose for this state to take action and to assist a local government in a financial
emergency so as to remedy the financial emergency by requiring prudent fiscal
management and efficient provision of services, permitting the restructuring of
contractual obligations, and prescribing the powers and duties of state and local
government officials and emergency managers.

(c) That the fiscal stability of local governments is necessary to the health, safety,
and welfare of the citizens of this state and it is a valid public purpose for this
state to assist a local government in a condition of financial emergency by
providing for procedures of alternative dispute resolution between a local

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 government and its creditors to resolve disputes, to determine criteria for
establishing the existence of a financial emergency, and to set forth the conditions
for a local government to exercise powers under federal bankruptcy law.

(d) That the authority and powers conferred by this act constitute a necessary
program and serve a valid public purpose.

The state defendants contend that Mays creates confusion because in Kincaid v City of
Flint, 311 Mich App 76, 87; 874 NW2d 193 (2015), this Court rejected an argument that an act
of an emergency manager is an act of the governor. First, this case differs from Kincaid in that
plaintiffs do not contend that the acts of the emergency managers were acts of the Governor.
Rather, plaintiffs assert that acts of the emergency managers were undertaken by them as officers
or employees of the state. Second, the rejection is dicta, since the issue for resolution by the
Kincaid Court was whether the emergency manager was authorized to take the ratification action
that it did. Id. at 82-83. The Kincaid Court concluded that it was not. Id. at 91.

While the state defendants have sought leave with our Supreme Court in both Mays and
Boler, the Supreme Court has not granted leave in those matters and both remain binding
precedent. The Court of Claims’ rulings that the emergency manager defendants were not
officers of the state for purposes of the CCA were thus in error. While the emergency manager
defendants posit that they were entitled to summary disposition in any event due to plaintiffs’
failure to comply with the statutory notice requirement in MCL 600.6431(3), we reject that
argument, as addressed below.

II. Inverse Condemnation

The state defendants argue on appeal that the Court of Claims erred in finding that
plaintiffs properly pleaded claims of inverse condemnation in avoidance of governmental and
that plaintiffs satisfied the notice of intent requirement of MCL 600.6431(3) for this claim. We
disagree.

We review the trial court's ruling on a motion for summary disposition de novo and
review a determination as to governmental immunity de novo as a matter of law. Kendricks v
Rehfield, 270 Mich App 679, 681–82; 716 NW2d 623 (2006). A party is entitled to summary
disposition under MCR 2.116(C)(7), if the plaintiff's claims are “barred because of immunity
granted by law . . . .” The moving party may support its motion with admissible affidavits,
depositions, admissions, or other documentary evidence and the contents of the complaint are
accepted as true unless contradicted by the evidence provided. Odom v Wayne Co, 482 Mich
459, 466; 760 NW2d 217 (2008). Whether MCL 600.6431 requires dismissal of a plaintiff's
claim for failure to provide the designated notice is a question of statutory interpretation, which
this Court reviews de novo. Mays, 323 Mich App at 24–25.

A. Failure to State a Claim

MCL 691.1407 broadly grants immunity to governmental agencies and officers and
employees of governmental agencies so long as they are engaged in the discharge of a
governmental function, or are acting in their employment or service while acting on behalf of a

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governmental agency. Further, an officer or employee of a governmental agency is only entitled
to immunity if:

(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.

(c) The officer's, employee's, member's, or volunteer's conduct does not amount to
gross negligence that is the proximate cause of the injury or damage. [MCL
691.1407(2)]

In order to assert a viable claim against a governmental agency, a plaintiff must plead facts
establishing that an exception to governmental immunity applies to his or her claim. Wood v
City of Detroit, 323 Mich App 416, 420; 917 NW2d 709 (2018). If a claim is brought against an
officer or employee of a governmental agency, the burden is on the governmental officer or
employee to raise and prove his entitlement to immunity as an affirmative defense. Odom, 482
Mich at 479.

The state defendants first assert that plaintiffs failed to state claims of inverse
condemnation. We disagree.

The Fifth Amendment of the United States Constitution and Article 10 of the
Michigan Constitution both prohibit the taking of private property for public use
without just compensation. Through its power of eminent domain, however, the
state may follow the procedures outlined in the Uniform Condemnation
Procedures Act and condemn, or “take,” private property for public use by
providing the requisite compensation. A property owner may bring an inverse
condemnation action seeking just compensation for a “de facto taking,” when the
state fails to follow those procedures. “While there is no exact formula to
establish a de facto taking, there must be some action by the government
specifically directed toward the plaintiff's property that has the effect of limiting
the use of the property.” When considering whether a de facto taking has
occurred, we must consider “the form, intensity, and the deliberateness of the
government actions” in the aggregate. [Dorman v Twp of Clinton, 269 Mich App
638, 645; 714 NW2d 350 (2006)]

A governmental entity need not physically take the property of a citizen for an action in inverse
condemnation to lie. “Any injury to the property of an individual which deprives the owner of
the ordinary use of it is equivalent to a taking, and entitles him to compensation. So a partial
destruction or diminution of value of property by an act of government, which directly and not
merely incidentally affects it, is to that extent an appropriation.” Peterman v State Dept of Nat
Res, 446 Mich 177, 190; 521 NW2d 499 (1994). An inverse condemnation action is one
instituted by a private property owner whose property, while not formally taken for public use,
has been damaged by a public improvement undertaking or other public activity. Merkur Steel
Supply Inc v City of Detroit, 261 Mich App 116, 129; 680 NW2d 485 (2004) (citation omitted).

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The action is thus against a governmental defendant to recover the value of property which has
been taken in fact by the governmental defendant, even though no formal exercise of the power
of eminent domain has been attempted. Id.

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.

The decision to have plaintiffs’ water source be the contaminated Flint River was clearly
an affirmative act by defendants specifically directed towards plaintiffs’ properties. See, e.g.,
Wiggins v City of Burton, 291 Mich App 532, 572; 805 NW2d 517 (2011) (construction and
installation of a drain on the plaintiff’s property to address surface water was an affirmative act
by the City or its agents, specifically directed toward the plaintiffs property). The City was
under emergency management at the time the decision was made and, as we have already
determined, these defendants were officers or employees of the state. The decision to change the
water source was made by defendants, without the input of plaintiffs, and defendants
affirmatively acted to impose their decision on plaintiffs. And, plaintiffs alleged that the
emergency manager defendants and other defendants vetoed and otherwise rejected the City of
Flint’s decision/request to return to the Detroit water system when it was suspected that the water
was contaminated. The change or refusal to change the water source that flows through one’s
pipes and into one’s home is specifically directed toward those properties receiving the water.
Looking at the form, intensity, and the deliberateness of the government actions in the aggregate
(Dorman v Twp of Clinton, 269 Mich App at 645), plaintiffs properly plead a claim of inverse
condemnation in both cases.1

1
Defendants assert that only seven of the plaintiffs specifically asserted that they owned property
that was damaged. However, it is not difficult to understand that if a home is in an area
publically known to not have had safe, potable water, the value of the home is affected, as is the
owner’s use and enjoyment of their property.

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 B. Statutory Notice

MCL 600.6431 provides as follows:

(1) No claim may be maintained against the state unless the claimant, within 1
year after such claim has accrued, files in the office of the clerk of the court of
claims either a written claim or a written notice of intention to file a claim against
the state or any of its departments, commissions, boards, institutions, arms or
agencies, stating the time when and the place where such claim arose and in detail
the nature of the same and of the items of damage alleged or claimed to have been
sustained, which claim or notice shall be signed and verified by the claimant
before an officer authorized to administer oaths.

(2) Such claim or notice shall designate any department, commission, board,
institution, arm or agency of the state involved in connection with such claim, and
a copy of such claim or notice shall be furnished to the clerk at the time of the
filing of the original for transmittal to the attorney general and to each of the
departments, commissions, boards, institutions, arms or agencies designated.

(3) In all actions for property damage or personal injuries, claimant shall file with
the clerk of the court of claims a notice of intention to file a claim or the claim
itself within 6 months following the happening of the event giving rise to the
cause of action.

The statute does not provide further guidance on what is meant by “the happening of the
event giving rise to the cause of action.” In Beasley v State, 483 Mich 1025, 1028; 765 NW2d
608 (2009), however, our Supreme Court found the statutory language clear and clarified that,
“[s]ubsections 1 and 3 [of MCL 600.6431] together provide that in all actions for personal
injuries, “[n]o claim may be maintained against the state” unless the claimant files the required
notice of the claim or the claim itself within 6 months of the accrual of the claim.” A claim
accrues, for purposes of MCL 600.6431, only when suit may be maintained thereon. Cooke
Contracting Co v State, 55 Mich App 336, 338; 222 NW2d 231 (1974). “The time of ‘taking’ in
an inverse condemnation action is not necessarily coincidental with the time plaintiff's cause of
action accrues. Hart v City of Detroit, 416 Mich 488, 503–04; 331 NW2d 438 (1982). This is
because it is common for such actions to involve a continuous wrong by the condemnor rather
than a single act. Id. While a claimant's knowledge of each element of a cause of action is not
necessary for claim to have accrued, a claim does not accrue until each element of the cause of
action, including some form of damages, actually exists. Mays, 323 Mich App at 29.

“[P]laintiffs must adhere to the conditions precedent in MCL 600.6431(1) to successfully
expose the defendant state agencies to liability.” Fairley v Dep't of Corr, 497 Mich 290, 298;
871 NW2d 129 (2015). A failure to comply with the notice verification requirements of MCL
600.6431 provides a complete defense in an action against the state or one of its departments. Id.
at 292. This is so even if the claim alleges a state constitutional tort. Rusha v Dept of Corr, 307
Mich App 300, 304; 859 NW2d 735 (2014). An exception, however, to the enforcement of a
statutory notice requirement exists where it can be demonstrated that it is “so harsh and

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unreasonable in [it’s] consequences that [it] effectively divest plaintiffs of the access to the
courts intended by the grant of the substantive right.” Id. at 311 (citation omitted).

Notices for some plaintiffs in docket no. 340458 were filed as early as April 4, 2016.
Pursuant to MCL 600.6431(3), then, “the happening of the event giving rise to the cause of
action” (here, inverse condemnation) must have after occurred after October 4, 2015. With
respect to their inverse condemnation claim, plaintiffs alleged that their plumbing, water heaters,
and service lines were damaged due to contaminated water repeatedly flowing through them.
They also alleged that Governor Snyder belatedly and publicly recognized that Flint residents
were potentially exposed to unsafe levels of lead in October 2015 and once the crisis became
public, property values plummeted and they experienced a substantial loss in the value of their
homes.

The damage to the plumbing, water heaters, and service lines, along with the devaluation
of their homes, likely did not occur when the contaminated water first began flowing through the
pipes. The property damages occurred gradually, such that “the event giving rise to the cause of
action was not readily apparent at the time of its happening.” Mays, 323 Mich App at 35. The
property damages were not immediately occurring or immediately readily apparent because the
evidence of injury was concealed in the water supply infrastructure buried beneath Flint. Id. at
35-36. And, according to plaintiffs’ complaint, there was no public acknowledgement of the
water issues until October 2015; rather, plaintiffs were continually publically reassured by
defendants that the water was safe. “Plaintiffs' claim for lack of marketability did not accrue
until the values of their homes decreased, which would have occurred when the water crisis
became public and marketability of property in Flint became significantly impaired in October
2015.” Mays, 323 Mich App at 29. More importantly, “accepting defendants' position would
require a finding that plaintiffs should have filed suit or provided notice at a time when the state
itself claims it had no reason to know that the Flint River water was contaminated.” Mays, 323
Mich App at 27–28. Given the above, it is unclear when plaintiffs knew or should have known
of their property damage claims. Plaintiffs filed notices within six months of the public
acknowledgement the water was unsafe. Thus, there are genuine issues of material fact with
respect to when the property damage of irreparably damaged service line pipes and substantial
loss in the value of their properties occurred and when plaintiffs knew or should have known of
the injuries.

In addition, as set forth in Mays, supra, application of the harsh-and-unreasonable-
consequences exception to a notice requirement is clearly supported here. Id. at 35. In Rusha v
Dept of Corr, 307 Mich App 300, 311; 859 NW2d 735 (2014) this Court recognized an
exception to the enforcement of procedural requirements (specifically statutes of limitations and
notice provisions) lies “where it can be demonstrated that the procedural requirement is so harsh
and unreasonable in its consequences that it effectively divests plaintiffs of the access to the
courts intended by the grant of the substantive right.” (citation omitted). As in Mays, supra,
plaintiffs here alleged “affirmative acts undertaken by numerous state actors, including named
defendants, between April 25, 2014, and October 2015 to conceal both the fact that the Flint
River water was contaminated and hazardous and the occurrence of any event that would trigger
the running of the six-month notice period.” Id. at 36. As the Mays Court recognized, “[u]nder
these unique circumstances, to file statutory notice within six months of the date of the water
source switch would have required far more than ordinary knowledge and diligence on the part

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of plaintiffs and their counsel. It would have required knowledge that defendants themselves
claim not to have possessed at the time plaintiffs' causes of action accrued.” Id.

Because there are material questions of fact concerning when the damage of irreparably
damaged service line pipes and substantial loss in the value of plaintiffs’ properties occurred and
when plaintiffs knew or should have known of the injuries and because the harsh-and-
unreasonable-consequences exception to the notice requirement applies, these claims, in both
cases, are thus not time-barred.

With respect to plaintiffs’ claim of property damage in the form of loss of use and
enjoyment of their property, in docket no. 340458, plaintiffs stated in their complaint that
“[w]ithin days of the introduction of Flint River water into the Flint pipelines, the noxious sight,
taste, and smell of water flowing from the taps was apparent.” The Flint River water began
flowing into their homes on April 25, 2014. Clearly, then, plaintiffs’ use and enjoyment of their
homes was affected on April 25, 2104, and apparent to them within days of that date. Plaintiffs
also alleged that they were placed on “boil water” advisory in January 2015 and a lead advisory
warning was issued to them in September 2015. At the latest, then, their use and enjoyment of
their homes was affected in September 2015, which falls outside the statutory notice period.
This claim, then, would be time barred by the application of MCL 600.6431(3) due to their
failure to comply with the notice requirement set forth therein.

In docket no. 340890, only two notices of intent were filed with respect to two of the
plaintiffs, and they were filed on June 10, 2016. The first filing for the other plaintiffs was the
December 13, 2016 complaint. Plaintiffs’ claim of property damage in the form of loss of use
and enjoyment of their property are barred for the same reasons discussed in docket no. 340458.
Though the dates of notice in this case are later than those in docket no. 340458, it still remains
unclear when the damage of irreparably damaged service line pipes and substantial loss in the
value of plaintiffs’ properties occurred and when plaintiffs knew or should have known of the
injuries. Because of these material questions of fact and because the harsh-and-unreasonable-
consequences exception to the notice requirement applies, the Court of Claims appropriately
determined that summary disposition in favor of defendants on these issues was improper in
docket no. 340890.

III. Violations of Due Process

Plaintiffs cross-appeal the Court of Claims’ rulings that they did not satisfy the notice of
intent requirements of MCL 600.6431(3) concerning their right to due process arising from a
state-created danger and the bodily integrity doctrine. We agree that the Court of Claims erred
with respect to these claims.

As previously indicated, some plaintiffs in this matter (docket nos. 340275 and 340890)
filed notices of intent on June 10, 2016. The first filing for the other plaintiffs was the December
13, 2016 complaint. Pursuant to MCL 600.6431(3), then, “the happening of the event giving rise
to the cause of action” (here, due process claims) must have after occurred after December 10,
2016 and June 13, 2016, respectively. With respect to plaintiffs’ claims of violation of due
process based on a state created danger plaintiffs alleged that defendants used their unlimited
power, which subsumed the power of the local government of the City of Flint, to use the Flint

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River, for which there was no fee, as water source in furtherance of a fiscally motivated plan.
Plaintiffs alleged that defendants disconnected their water from a safe water source and engaged
in coordinated, systematic misrepresentations that the Flint River water was safe and fit for its
intended use despite actual knowledge that this was false, and perpetuating the damages caused
to the plaintiffs by manipulating and obfuscating data possessed by defendants. Plaintiffs
asserted that they justifiably relied upon the misrepresentations of defendants to their detriment,
causing them to suffer irreversible personal injuries and property damages.

Plaintiffs also claimed that defendants violated their due process rights to bodily
integrity:

The systematic and coordinated actions of the Defendants' continuously,
fraudulently misrepresenting and concealing the dangers or the toxic unsafe Flint
River despite having knowledge to the contrary that there already existed a
serious and imminent health crisis created by the switch from DWSD to the
unsafe, untreated, and toxic free Flint River which destabilized the metallurgically
intact Flint water infrastructure, and hereafter exposed and re-exposed the Flint
residents and Plaintiffs to lead and other toxins, which irrevocably damaged
Plaintiffs bodies and property; and whose misrepresentations were justifiably
relied upon by the Plaintiffs to their detriment and which violated and infringed
on their right to bodily integrity.

Plaintiffs generally alleged that soon after the switch to Flint River water on April 25, 2014,
residents began to complain about the odor and discoloration of their water. However, they were
reassured by defendants that the water was safe. Plaintiffs alleged that defendants created and
then perpetually concealed the ongoing exposure and re-exposure to contaminated water, with
deliberate indifference to the known risks of harm and that the exposure caused harm to
plaintiffs. They alleged that defendants fraudulently and continuously misrepresented and
concealed that the Flint River was unsafe and was known to be unsafe and failed to take
adequate steps to remediate the harm they created, which was justifiably relied upon by plaintiffs
to their detriment. The Court of Claims, however, found that the happening of the event give rise
to plaintiffs’ personal injuries (i.e., plaintiffs’ personal injury claims accrued) occurred on April
25, 2014, when the water source was switched, such that their constitutional personal injury
claims were time-barred.

As previously indicated, a claimant's knowledge of each element of a cause of action is
not necessary for claim to have accrued, but a claim does not accrue until each element of the
cause of action, including some form of damages, actually exists. Mays, 323 Mich App at 29. It
is not clear from plaintiffs’ complaint when, exactly, each plaintiff’s damages in the form of
personal injuries occurred. While the exposure of plaintiffs to contaminated water began on
April 25, 2014, there is no indication that plaintiffs immediately suffered personal injury
damages on that date. Rather, as with damage to plaintiffs’ properties, the personal injury
damages likely took time to develop and become known. And, as many of those exposed to the
contaminate water were children, whether any of the children suffered personal injury damages
(or whether their own children would) may not be known for many years. Lacking an exact date
when the personal injury damages to each plaintiff occurred, summary disposition was not
appropriate in favor of defendants on these claims.

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 Moreover, as also previously indicated, an exception to the enforcement of a statutory
notice requirement exists where it can be demonstrated that it is “so harsh and unreasonable in
[it’s] consequences that [it] effectively divest plaintiffs of the access to the courts intended by the
grant of the substantive right.” Id. at 311 (citation omitted). This case presents the exact type of
claim to which the harsh and unreasonable consequences exception was intended to apply. The
state defendants undertook to continually assure the public that the water was safe, while at the
same time taking actions to ensure that its own agencies, agents, officials, servants and
employees were not exposed to the contaminated water (plaintiffs alleged that as early as January
2015, the state provided purified water coolers to the Flint State offices). Due to the
reassurances by the state, any personal injury damages that were suffered by plaintiffs could
have been believed by plaintiffs to have occurred for reasons other than the switch to Flint River
water. Plaintiffs cannot be charged with having or obtaining conclusive knowledge that
contaminated water caused any personal injury damages when any information suggesting that
the water may not be safe was contradicted by the state defendants at every turn, until October
2015, and they did not declare a state of emergency until January 5, 2016. It would be a harsh
and unreasonable consequence to deny plaintiffs the access to the courts intended by
constitutional due process if we were to require them to have filed suit or provided notice at a
time “when the state itself claims it had no reason to know that the Flint River water was
contaminated.” Mays, 323 Mich App at 27–28. We therefore reverse the Court of Claims
dismissal of plaintiffs’ claims of constitutional due process claims.

Finally, although we ordinarily do not address issues not raised on appeal (Tingley v
Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004)), this Court possesses the discretion to
review a legal issue not raised by the parties. See Mack v Detroit, 467 Mich 186, 206–209; 649
NW2d 47 (2002). Thus, though the plaintiffs in docket no. 340458 did not assert that on appeal
that the Court of Claims erred in dismissing their constitutional claim for violation of bodily
integrity, we reverse that decision of the Court of Claims for the same reasons we reverse the
Court of Claims decision on that issue in docket no. 340890.2

Conclusion

In docket no. 340017, we reverse the Court of Claims dismissal of plaintiffs’ claims
against the emergency manager defendants. In docket no. 340275, we reverse the Court of
Claims dismissal of plaintiffs’ claims against the emergency manager defendants. In docket no.
340458, we affirm the Court of Claims dismissal of plaintiffs’ claim for inverse condemnation
with respect to plaintiffs’ claim of loss of use and enjoyment of their property, affirm the Court
of Claims denial of summary disposition in defendants’ favor with respect to plaintiffs’ inverse
condemnation claim based upon property damage of irreparably damaged service line pipes and
substantial loss in the value of their properties, and reverse the Court of Claims dismissal of
plaintiffs’ personal injury claims based on constitutional violations of their right to due process

2
Plaintiffs alleged in their complaint in docket no. 340890 that they suffered personal injury
damages including skin rashes, hair loss, bacterial infections, liver damage, other medical issues,
“unknown physical injuries,” and a death that occurred on January 15, 2016.

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based on constitutional claim for violation of bodily integrity. In docket no. 340890, we affirm
the Court of Claims dismissal of plaintiffs’ claim for inverse condemnation with respect to
plaintiffs’ claim of loss of use and enjoyment of their property, affirm the Court of Claims denial
of summary disposition in defendants’ favor with respect to plaintiffs’ inverse condemnation
claim based upon property damage of irreparably damaged service line pipes and substantial loss
in the value of their properties, and reverse the Court of Claims dismissal of plaintiffs’ personal
injury claims based on constitutional violations of their right to due process based on a state
created danger and right to due process based on the bodily integrity doctrine. We remand for
further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro

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