Can new Detroit flooding lawsuits succeed where pa...

Can new Detroit flooding lawsuits succeed where past litigation failed?

"You can’t use thousands of basements as holding tanks for sewage, and we’re not going to take that anymore."

The contents of Jamie Turnbull’s basement. Courtesy photo.

In 1998, Detroit and Grosse Pointe Park residents hailed a class action lawsuit settlement that in part required the city to separate sewage and stormwater lines, a move that area leaders promised would end the flooding and backups that filled basements and property with sewage.

Among those who cheered was Detroiter Cindy Wile, who after heavy rains would find her lawn littered with hypodermic needles, condoms, and other “floatable waste.”   

“If we hadn’t done this class action lawsuit I believe that we still would have been experiencing this problem in 20 years [from now],” Wile said at the time.  

But the problem persisted over the next 20 years, and frustrated residents would file more lawsuits stemming from ongoing backups. After heavy rains in June and July once again filled basements throughout the region with sewage, at least three new class action lawsuits have cropped up. 

The suits represent the latest chapter in the legal saga around the region’s failing sewage system, and a look back at decades of litigation shows that they have brought some financial relief, but failed to convince local leaders to spend on a permanent fix.

However, residents and attorneys say the latest round of litigation is much larger in scope, and the outrage much deeper. The new cases seek damages to help thousands of residents cover cleanup costs and ask the court to compel local governments and sewer authorities to stop allowing basements to fill with sewage and water.  

“You can’t use thousands of basements as holding tanks for sewage, and we’re not going to take that anymore,” said Paul Doherty, an attorney with Ven Johnson Law who is leading one of the cases. “You’re going to have to figure out a way to get rid of the sewage without putting it in our basements.”

Doherty, whose basement filled with eight feet of sewage in June and whose house sustained tens of thousands of dollars in damage, said the Johnson suit includes about 700 plaintiffs in Detroit and Grosse Pointe Park and seeks damage of up to $300,000 per home. A similar suit by Brian Dailey Law is mostly seeking less than $75,000 in damages for about 700 plaintiffs, and the firm is also representing individual clients. 

The Johnson suit charges that the city of Detroit, City of Grosse Pointe Park, Great Lakes Water Authority and Detroit Water and Sewerage Department have known for years that sewer infrastructure is deficient, in disrepair incapable of handling heavy rain events, but still failed to upgrade equipment and put in place an emergency plan to deal with a scenario like the June downpour. 

A third suit brought by Liddle and Dubin targets DTE Energy, alleging that the company failed to maintain power at a critical pumping station. 

Each suit lays out how local leaders and utilities failed to protect residents’ property, and plaintiffs like Grosse Pointe Park’s Jaime Rae Turnbull are hopeful that the results this time around will be different.

“I feel like [local leaders] understand the level of panic and disaster we’re in, and it’s a matter of how do you proceed?” she said. “Fixing things that are broken is going to take money and time. Everybody wants things fixed overnight and the reality is there’s no quick fix.” 

‘A lot of people are suffering’

Last year, Turnbull, who owns a consulting and event planning business, moved her office out of a Midtown Detroit building and into her finished Grosse Pointe Park basement. 

Months later, four feet of sewage water destroyed everything from her office to family photos to clothing to furniture. The Turnbulls salvaged what they could, hiring a restoration company and spending weeks painstakingly saving their photos and personal mementos. Their home sustained significant damage of which insurance is only covering a small amount, and that partly motivated the family to join the Johnson lawsuit. 

“We’re fortunate that we have a roof for our head but there was a lot of loss,” Turnbull said. “A lot of people are suffering and there’s a lot of anxiety and a lot of stress.”

The family’s story reads like so many others’ in the region. Thousands of residents lost furnaces, hot water tanks, appliances and personal belongings. Plaintiffs, the Johnson suit alleges, suffered “extreme emotional upset and anguish.”

It not only seeks to collect on damages for local leaders’ failure to maintain the sewage system but also alleges constitutional violations for taking of property without compensation. 

“Destroying property is like taking property,” Doherty told Planet Detroit.  

Those on all sides of the issue agree that the flooding can largely be attributed to failures of pumps at the Freud and Connor pumping stations. During the downpour, nine of the stations’ 16 pumps completely failed, and the other seven never worked at full capacity, the Johnson suit alleges. 

The suit further spells out how local leaders knew of the problems. The GLWA in 2016 had rated all eight storm pumps in Conner as “poor” and recommended rebuilds or the replacement of the vacuum priming systems that are essential to their proper operation, according to the complaint.

“They chose to not remedy these multiple problems,” the complaint reads. “Instead, GLWA, DWSD and/or City of Detroit ignored the problems and put the onus on correcting the regular and repeated flooding of residences and businesses on local municipalities.” 

The suit also alleges that agencies and cities didn’t haven’t an emergency plan in place, and charges “gross negligence” in GLWA’s personnel management. Agency employees had trouble accessing one of the pump stations during the storm because it was chained shut and no one had a key, according to the suit. 

In a statement to Planet Detroit, GLWA general counsel Randal Brown said that the agency doesn’t comment on pending legislation. 

Meanwhile, a third-party contractor on June 22 accidentally cut an underground wire that supplied power to Freud, but the problem wasn’t fixed before the storm. A lawyer in the Dubin lawsuit argues that DTE didn’t do enough to ensure uninterrupted power to Freud. DTE has denied responsibility, arguing that it’s still in the process of taking over management of power to the city’s public assets, but Freud isn’t among those it currently controls. 

Still, the failure to restore power in time was another nail in the coffin, Doherty said.  

“You couple that with these multiple equipment failures, multiple maintenance failures … and multiple bureaucratic shortcomings — all that culminated in, at best, eight pumps running, which pretty much doomed this area to this massive amount of flooding,” he said. 

Past litigation

Among the forces driving flooding in Grosse Pointe Park is the city’s failure to fully separate its stormwater and sewage lines, which it claimed to have done following the 1998 class-action suit. 

The litigation grew out of a 1938 agreement between Detroit and Grosse Pointe Park that allowed the latter to dump sewage into Fox Creek during heavy rain. The passage of the Clean Water Act in the 1970s barred municipalities from dumping untreated sewage, but Grosse Pointe Park defied federal law until the 1995 class-action suit brought by Wile and others.  

Class action suits have also been made possible by a state law passed in the 1990s that carved out an exemption to governmental immunity on sewage system failures. Prior to the Wile suit, Grosse Pointe Park had used a single sewer line to transport both sewage and stormwater runoff, and, during heavy rains, the line would fill up, pushing water and sewage into basements. The city partially separated those lines and also began sending sewage to temporary tanks for storage during heavy rain. 

However, the city relies on GLWA’s pump stations to transport the sewage, Doherty noted, and despite that the stations have repeatedly failed in recent decades, Grosse Pointe Park has done little to address the problem. 

“Wastewater backups were not only foreseeable, but likely during a heavy rain event,” Doherty said. 

The failures continue to cost the city. It agreed to a $4 million settlement for nearly 600 claims in a class action filed over the 2011 sewage backups. Though the settlement was also supposed to include spending on sewage system improvements, backups have persisted. And following heavy rains in 2016, residents in the city of Grosse Pointe settled on a $1 million class-action suit after pumps failed during heavy rains and basements filled with sewage. 

Options for residents

Metro Detroit residents who suffered damage from flooding still have several options. 

Though the class action suits stemming from the June 26 rain event can no longer be joined, those who suffered property damage in a July 15 downpour can. Residents must file a Sewage Disposal System Event Notice Claim form within 45 days of that date, then contact Ven Johnson Law to join the suit. 

The Federal Emergency Management Agency (FEMA) is also offering grants to those in Wayne and Washtenaw counties who suffered damage to hot water tanks, furnaces, appliances, work equipment or vehicles. It also offers low-interest loans to pay for repairs or install equipment that will prevent future floods. The deadline to apply is Sept. 13.

Residents can find more information about FEMA here.

NOTE: A previous version of this story reported in error the FEMA application deadline as Sept. 15. It is Sept. 13. We apologize for the error.

Tom Perkins is a freelance reporter living in Hamtramck. Follow him at @PomTerkins on Twitter.