Public Act 222

Effective January 2, 2002, the state passed PA 222 which spells out municipal liability for sewer backups. This law covers both sanitary sewers and storm drains.

PA 222 provides the sole remedy for damages or injuries caused by a sewer backup causing basement flooding. Municipalities are subject to tort liability for the overflow or backup of a sewage disposal system only if the provisions of PA 222 are satisfied.

SEWAGE DISPOSAL SYSTEM EVENT
To determine whether the provisions of PA 222 apply, a municipality owning or operating a sewage disposal system must first determine whether a sewage disposal system event occurred.

Under the Act, a “sewage disposal system event” means the overflow or backup of a sewage disposal system onto real property. In three specific circumstances, the overflow or backup is not an event if any of the following was 50 percent or more of the cause of the overflow or backup:

1. An obstruction in a “sewer lead” not caused by a government agency.
2. A connection to the sewage disposal system including a sump system, building drains, surface drain, gutter, or downspout; or
3. An act of war or an act of terrorism.

STANDARD OF LIABILITY
If a sewage disposal system event occurs, a municipality is subject to PA 222 and a “claimant” may seek damages from the municipality for damages or injuries caused by the event if the claimant can prove ALL the following existed at the time of the event:

1. The governmental agency at the time of the event owned or operated the sewage disposal system that allegedly caused damage or injury (an “appropriate governmental agency”).
2. The sewage disposal system had a construction, design, maintenance, operation, or repair defect (a “defect”).
3. The governmental agency knew, or in the exercise of reasonable diligence should have known, about the defect.
4. The governmental agency, having the legal authority to do so, failed to take reasonable steps in a reasonable amount of time to repair, correct, or remedy the defect.
5. The defect was 50 percent or more of the cause of the event and the damage or injury (a “substantial proximate cause”).

45-DAY INSPECTION AND RESOLUTION PERIOD
PA 222 prohibits the filing of a civil action of 45 days after the provisions of written notice of an event. This period is intended to allow the investigation of the event, the potential resolution of claims, and payment of compensation prior to litigation. Only after a claimant and a governmental agency failed to reach an agreement on the amount of compensation for a sewage disposal system event within the 45-day period may a claimant initiate a civil action.