Costruction company causes backup

In the below case a construction compoany cleared debris from a manhole by dumping it into the manhole. Easy way to get rid of it but later, that caused sewage to flood into a residence.

Since the circumstantial evidence of defendant-Nagle's role in the deposit of asphalt debris in a manhole went beyond speculation and conjecture, and the evidence submitted was sufficient to create a genuine issue of material fact to withstand Nagle's motion for summary disposition, the court reversed and remanded for further proceedings. In 4/07, plaintiffs-Kole's basement flooded with 8 to 10 inches of sewage. The parties did not dispute that the flooding resulted from a sewer system backup that was caused by excessive debris, including large chunks of asphalt in a nearby manhole. Plaintiffs alleged that Nagle was responsible for depositing the asphalt in the manhole in 2005 when it performed a paving project (the Cobblestone project) for defendant-Pinehurst, a subdivision developer in the area. Nagle denied responsibility. The trial court granted defendants' summary disposition motion on the basis that plaintiffs failed to sufficiently demonstrate that the asphalt was deposited by Nagle and plaintiffs' evidence that Nagle was the responsible party was too speculative. Plaintiffs contended that the affidavit of JB, Nagle's project manager, differed from his deposition testimony and should not have been considered. However, the court noted the affidavit was not offered to contradict his deposition testimony, rather his deposition testimony explained the subject matter of the affidavit. Thus, it had to be considered in the light most favorable to plaintiffs to determine whether there was a genuine issue of material fact. The court also noted that causation is generally decided by the trier of fact unless there is no genuine issue of material fact, in which case the issue may be decided as a matter of law by the court. The evidence submitted showed that the manhole at issue, as of 2003, was clear of any debris. On 5/4/07 two men (P and S) assisted in clearing the manhole of debris, which consisted of asphalt, gravel, brick, concrete, and "normal toilet paper and your sediments that come down the line." The majority of the material in the manhole was asphalt, which was large enough that it could not be carried up. P said "saw-cuts" were visible on the asphalt. The brick that was in the debris was "manhole brick," which is different than "house brick." P believed that the debris was deposited into the hole when the manhole structure was hit during excavation. Since 2003, P said the only paving project in the area was the Cobblestone project. S also believed that the source of the debris in the manhole was road construction during that project. JB stated in an affidavit that Pinehurst retained Nagle to pave a road and Nagle saw-cut part of an existing road before paving a new part of the road. In his deposition, JB acknowledged that heavy machinery does occasionally strike manholes causing damage from which asphalt can enter the manhole, and did not rule that out in this case. Plaintiffs' expert, N, opined that Nagle was responsible for allowing the asphalt and related debris to enter the manhole and caused the sewer backup. The court concluded that the evidence viewed in the light most favorable to plaintiffs created a genuine issue of material fact as to whether Nagle was responsible for the asphalt debris in the manhole.