Appellate Court Explains Governmental Entity Responsibility for Compensation for Property Condemnation

In Welgosh v. City of Novi, et al.03.19.2015.unpub, the Michigan Court of Appeals provides a good explanation and outline of when a governmental entity (and individual governmental employees) might be liable to a property owner for condemnation through encroachments or other indirect actions that lead to property encroachment or other invasion of property rights.

Here, the alleged event that led to claims against the city was basement flooding.  The property owners sued the builders and the city inspectors, including the city itself, when it was discovered that the foundation of their home was built below the recommended level to prevent water seepage and flooding.

The property owners alleged inverse condemnation against the city, and gross negligence against the city inspectors who allegedly approved the building project despite the deficiencies.  The property owners sought compensation from the government for alleged “taking” of their property.

As the Court explains, the only way compensation can be awarded against the government for an invasion (or indirect (inverse) condemnation) of property rights is if the government action at issue was directly intended to cause the said invasion.  The Court provides this rationale in explaining a previous case in which a roadbed ditching and culvert project led to runoff waters spilling over onto the property owner’s land.  The spillage was incidental and no act on the part of the government or its individual employees was purposefully designed to have actually caused the diversion of water to be transferred to the property owner’s land.

The second aspect of this particular case that is of interest to anyone practicing in the area of municipal liability law in Michigan is the Court’s citation to the principle that in order to hold an individual governmental employee “grossly negligent” in avoidance of governmental immunity under Michigan’s governmental tort liability act, is to prove that the actor’s conduct was the, not just a, proximate cause of the injury complained of.  Here, the proximate cause of the property owner’s damages was the building company’s construction of the foundation in an unsuitable area.

Finally, the Court cites to the decision I secured in the Michigan Supreme Court Odom v. Wayne County, explaining the “intentional tort” exception and the “good faith” test implicated in that decision was not properly before the court because the property owners failed to adequately allege the intentional tort.

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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