Questions and Answers on PA 222

When are governmental agencies responsible for sewer back ups under the new law?

When proper notice of a sewer back up event is provided by an affected homeowner or business, a municipality may be responsible for certain damages if it knew or should have known about a defect in its sewage disposal system that was more than 50% the cause of the back up, and failed to take reasonable steps in a reasonable amount of time to fix it.

What constitutes a "defect"?

A construction, design, maintenance, operation or repair defect that is more than 50% the cause of the back up.

What is "proper notice"?

In general, this means written notice by the affected property owners within 45 days. Notice must include their name, address, phone, address of affected property, date of discovery of damages and a brief description of claim. The 45 day notice provision doesn't apply to claims for pain and suffering arising out of an injury which results in death, serious impairment of a body function or permanent serious disfigurement caused by a back up.

What damages may be recovered?

In general, only economic damages may be recovered. Unless an individual has suffered a permanent serious injury or death as a result of the sewer back up, they are not entitled to compensation for pain and suffering, inconvenience, emotional distress or other non-economic damages.

Does the law impose any obligations on the municipality?

The new law is intended to encourage governmental agencies to properly maintain their storm and sewer systems by ensuring that they are accountable for backups that are caused by defects in the system, while acknowledging that no system can prevent backups from occurring in all cases.

Public Act 222 requires that governmental agencies "shall make available public information" about the notice requirements of the Act. Failure to provide proper written notice by a property owner won't necessarily bar a claim if he/she can show that they notified the municipality orally (or in writing, but without all of the information required) within 45 days, and that the lack of proper notice occurred because the governmental agency failed to provide a sufficiently detailed explanation of the notice requirements to allow compliance.