Wayne County judge dismisses lawsuit blaming GLWA for 2021 floods

Apr 08, 2023

A Wayne County judge has dismissed all claims related to a class action lawsuit blaming the Great Lakes Water Authority for damage caused in the summer 2021 floods in Detroit, Dearborn and the Grosse Pointes.

Two severe summer storms dumped more than 9 inches of rain — 6 inches in the first storm June 25-26, 2021, and 3.4 inches in the second, three weeks later — on parts of Metro Detroit, leaving thousands of basements and streets flooded. Streets in some areas were impassable and cars were abandoned on flooded freeways.

The most intense damage was in Inkster, across the southern portions of Dearborn, the city of Detroit and the Grosse Pointe communities, generally intensifying farther to the east. The east and south sides of Detroit were hit hardest, including the neighborhoods of Jefferson Chalmers and Cornerstone Village, according to the GLWA report.

The ruling in early March by Wayne County Circuit Court Judge Annette Berry was based on governmental immunity. Berry granted GLWA's motion to dismiss, which was joined by the other defendants: the Detroit Water and Sewer Department, the Southeast Macomb Sanitary District as well as the cities of Grosse Pointe Shores, Grosse Pointe Farms, Grosse Pointe Park and Harper Woods.

Berry's opinion noted that the GLWA system failures aggravated the water backups to some degree, but there was no evidence to show backups wouldn't have otherwise occurred as the water volume grew.

"While the Court recognizes the magnitude of the damage that arose from the June 25-26, 2021, storm and, in light of the evidence presented relative to this motion, the likelihood of it recurring, the Court cannot bend to the 'kind of hydraulic pressure that makes what previously was clear seem doubtful' and find liability where immunity is set," Berry wrote. "Plaintiffs cannot establish an exception to governmental immunity and Defendants are immune from suit."

Paul Doherty, who was representing more than 600 people in the class action lawsuit who suffered damage in the flood, said they were not able to get any documents or conduct any depositions before Berry dismissed the case, something he has never seen happen before in his 30 years as an attorney.

"I don't know how to explain it other than the judge accepted the argument that this was a historical rain, and no sewer system could have handled it," Doherty said. "Every sewer system seemed to handle it other than the ones serviced by Conner Creek and Freud on the east side."

In a statement, GLWA said it recognizes the importance of the litigation and appreciates the court's thoughtful consideration, but declined to comment further because other cases related to this flooding have not yet been decided.

GLWA issued an 800-page study about the impact of storms and lessons learned, but officials determined any rainfall over 1.7 inches per hour would lead to "unavoidable flooding."

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The investigation into the flooding found some of the surface-level flooding and basement backups were unavoidable because the amount of rain during the June 2021 storm was more than the system was designed to handle, according to the GLWA report. But some of the flooding could've been reduced had the wastewater collection system been properly working, the report found.

GLWA said in July that it would be denying all damage claims it received related to the summer floods because it is not liable for the damages. The agency said public entities are only liable for sewage backing up into a basement if a defect in its sewage disposal system was the main cause and resulted in property damage or physical injury.

Berry wrote in her opinion that Doherty failed to establish a defect existed, that Detroit possessed the legal authority to correct any defects, that Detroit knew of defects and that the defendants were the substantial proximity cause of the flooding.

Doherty called this standard "almost impossible to meet," according to Berry's ruling.

"It really just rings hollow because, yes, you have (evidence of) defects, but it's still not enough to get to the government," Doherty said. "It's still not enough to hold them accountable."

He said his clients are disappointed and shocked.

"There's the realization that you're gonna get no help on rebuilding or cleaning," Doherty said. "It's all falling on their shoulders and the responsible party, Great Lakes Water Authority, is gonna get by without paying anything. It just doesn't make sense."

GLWA Chief Executive Officer Suzanne Coffey said in 2022 no one was reprimanded for their performance related to the floods and everyone followed protocol. GLWA did, however, change protocols so executive leadership is notified when any pump stations are compromised, she said. Coffey was named interim CEO after former leader Sue McCormick stepped down amid public outrage over the handling of the floods.

GLWA said last year it had already begun working to implement key infrastructure and process improvements to help address stresses put on the infrastructure system.

In between the storms and summer 2022, GLWA installed three new transformers at the Freud Pump Station, converted power supply feeding transformers to DTE Energy Co. power and installed power quality monitoring systems on the Conner Creek, Freud and the Blue Hill pump stations.

During the first storm, only one transformer was available at the Freud Street Pump Station for two pumps, and a third pump was not able to be jump-started, according to the report. Connor Creek and Blue Hill pump stations experience power quality issues as wet levels reached its maximum of 86 feet.

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When the second wave of storms struck, the Freud station had three storm pumps offline with warranty and electrical issues, according to the report. At Connor Creek, all pumps but one were available. Blue Hill experienced issues that stopped all available pumps from operating or delayed operation as workers tried to use on-site generators, according to the report.

If the Conner Creek and Freud Street pump stations had been working properly, areas could have seen 5 to 7 feet less of flooding, the report found. But GLWA's General Counsel Randal Brown told the board members in 2022 that the problems exacerbated the flooding, but did not cause it — the intense rain did.

Hydraulic model studies determined the Freud pump station had a problem with its stormwater well design. In 2022, GLWA recommended spending $16 million to add devices to the Freud and Conner stations to address this issue within the next three years. It also recommended spending $19.5 million for two new pumping units at Connor Creek.

GLWA officials said in October 2021 that they believe it will take anywhere from "$5 billion to $20 billion" to shore up the regional infrastructure enough to prevent heavy storms from flooding basements in Metro Detroit.

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Staff Writers Sarah Rahal and Kayla Ruble contributed.