Lee v. City of Flint (In re Flint Water)

OPINION AND ORDER DENYING DEFENDANTS VEOLIA NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND VEOLIA WATER NORTH AMERICA OPERATING SERVICES, LLC'S MOTION FOR RECONSIDERATION [95]

JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

This is one of the many cases that are collectively referred to as the Flint Water Cases. The Plaintiff in this case, Joel V. Dennis Lee, was employed as a delivery driver in the City of Flint. (ECF No. 73-1, PageID.662.) Mr. Lee alleges he was exposed to the Legionella bacteria while working in Flint. Id. He filed suit against a number of corporate and governmental Defendants. (See ECF No. 88, PageID.1123-24.) Relevant to this opinion are Plaintiff's claims for professional negligence against Veolia North America, Inc., Veolia North America, LLC, and

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Veolia Water North America Operatizing Services, LLC (together “VNA”). In previous Flint Water decisions, the Court has set forth descriptions of these Defendants and of Mr. Lee's claims against them; this background is adopted as if fully set forth here. See In re Flint Water Cases, No. 17-cv-11776, 2021 WL 1178059, *1-3 (E.D. Mich., Mar. 29, 2021) (“Lee”) (describing Mr. Lee's claims and their procedural history); In re Flint Water Cases, 384 F.Supp.3d 802, 824-25 (E.D. Mich. 2019) (describing VNA Defendants).

On March 29, 2021, the Court denied VNA's motion to dismiss the professional negligence claims. (ECF No. 88.) Now before the Court is VNA's motion to reconsider that decision. (ECF No. 95). For the reasons set forth below, VNA's motion is DENIED.

I. Legal Standard

To prevail on a motion for reconsideration under Eastern District of Michigan Local Rule 7.1, a movant must “not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). “A palpable defect is a defect that is obvious, clear,

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unmistakable, manifest or plain.” Saade v. City of Detroit, No. 19-cv-11440, 2019 WL 5586970 at *1, (E.D. Mich., Oct. 30, 2019) (quoting Witzke v. Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997)). The “palpable defect” standard is consistent with the standard for amending or altering a judgment under Federal Rule of Civil Procedure 59(e), which requires “(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.” Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006).

Motions for reconsideration should not be granted if they “merely present the same issues ruled upon by the court, either expressly or by reasonable implication, ” E.D. Mich. LR 7.1(h)(3), or if the “parties use ... a motion for reconsideration to raise new legal arguments that could have been raised before a judgment was issued, ” Roger Miller Music, Inc. v. Sony/ATV Publ'g, 477 F.3d 383, 395 (6th Cir. 2007).

II. Analysis

In its decision to deny VNA's motion to dismiss, the Court relied on Loweke v. Ann Arbor Ceiling and Partition Co., 489 Mich. 157, 166 (2011) to find that VNA had a duty to use “ordinary care to avoid physical harm

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to foreseeable persons and property, ” while it performed its contract for the City of Flint. Lee, 2021 WL 1178059 at *4-5 (quoting Loweke, 489 Mich. at 166). Because it is foreseeable that individuals employed in Flint will consume Flint water, Mr. Lee was a “foreseeable person[]” within the meaning of Loweke and VNA owed him a duty to use ordinary care. Id. Accordingly, the Court declined to dismiss Mr. Lee's claims against VNA. Id.

In its motion for reconsideration, VNA argues that the Court misapplied Michigan law because it failed to consider whether there was a relationship between Mr. Lee and VNA that could give rise to a duty. (ECF No. 95, PageID.1168-72.) According to VNA, Michigan law recognizes a duty of ordinary care only upon a showing of both a relationship between the parties and foreseeable harm to the plaintiff. (ECF No. 95, PageID.1169.) Because the Court did not address the relationship between the parties, VNA argues, it palpably erred. Id. And, VNA argues, because there is no relationship between Mr. Lee and VNA,

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VNA owed him no duty under Michigan law, and Mr. Lee's claims should have been dismissed.^[1] (Id. at PageID.1170.)

The Court has carefully considered VNA's arguments and agrees that it should have addressed the relationship factor under Michigan law. However, VNA misunderstands what that factor requires. While Michigan no longer recognizes a duty “to protect everybody from all foreseeable harms, ” In re Certified Question, 479 Mich. 498, 508 (2007), it has not limited tort claims to cases where the plaintiff has a connection to the defendant. Instead, as is explained below, when professionals such as VNA employed on the Flint water project voluntarily begin an undertaking on behalf of a customer, they thereby also take on a duty to prevent physical harm to all foreseeable persons and property. That duty, reiterated in Loweke, 489 Mich. at 166, clearly applies in this case. The Court therefore did not err when it denied VNA's motion to dismiss.

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A. Establishing Legal Duty under Michigan Law

Common sense suggests that each person should ordinarily exercise reasonable care to prevent harm to others. Many states recognize this as a basic precept of tort law. See, e.g., Huang v. The Bicycle Casino, Inc., 4 Cal.App. 5th 329, 341 (Cal.Ct.App. 2016) (“California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.”) (collecting cases and quoting Cal. Civ. Code §1714(a)); Coffey v. City of Milwaukee, 74 Wis.2d 526, 536 (1976) (everyone owes an obligation of due care to refrain from acts that will cause foreseeable harm) (citing De Bauche v. Knott, 69 Wis.2d 119 (1975)); Turpen v. Granieri, 133 Idaho 244, 247 (1999) (“every person...has a duty to exercise ordinary care to ‘prevent unreasonable, foreseeable risks of harm to others.'”) (quoting Sharp v. W.H. Moore, Inc., 118 Idaho 297, 300 (1990)).

Michigan once recognized this general duty. Clark v. Dalman, 379 Mich. 251, 261 (1967) (“every person is under the general duty to so act, or to use that which he controls, as not to injure another”) (citing Pinnix v. Toomey, 242 N.C. 358 (1955)). But this is no longer the case. The Michigan Supreme Court is now of the view that “a defendant does not

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have a duty to protect everybody from all foreseeable harms.” In re Certified Question, 479 Mich. at 508 (2007) (emphasis added). Instead, “before a duty can be imposed, there must be a relationship between the parties and the harm must have been foreseeable.” Id. at 509.^[2] Even once these factors are satisfied, courts still need to assess “the nature of the risk to determine whether a duty should be imposed.” Id.

Accordingly, In re Certified Question makes clear that establishing a legal duty generally requires at least (1) a relationship that gives rise to a duty, and (2) harm that was foreseeable. See id. VNA, appealing to the “between the parties” language, argues that the Michigan Supreme Court went much further than rejecting the universal duty to take ordinary care. According to VNA, In re Certified Question stands for the proposition that plaintiffs cannot sue unless they have a relationship with the defendant. (ECF No. 95, PageID.1172.) But that is not what In re Certified Question sets forth-and it is certainly not the law in Michigan today.

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First, In re Certified Question's discussion of the “relationship” factor relied heavily on Buczkowski v. McKay, 441 Mich. 96 (1992) and Murdock v. Higgins, 454 Mich. 45 (1997). See In re Certified Question, 479 Mich. at 505-506. Both Buczkowski and Murdock make clear that while duties arise out of relationships, those relationships need not always be between the defendant and the plaintiff bringing suit.

In Buczkowski, a drunk customer purchased shotgun ammunition from a retailer and subsequently used that ammunition to shoot and injure a bystander with no connection to the retailer. Buczkowski, 441 Mich. at 97-87. The victim then brought suit against the retailer. Id. The Court did not discuss the plaintiff's relationship with the retailer-there was none-but instead analyzed the retailer's relationship with its customer. 441 Mich. at 104 (“the relationship in this case is simply that of retailer and customer.”) While the Court ultimately declined to hold the retailer liable (in large part because intervening criminal actions are ordinarily not foreseeable as a matter of law, 441 Mich. at 104-5), it plainly did not require a relationship between the plaintiff victim and the retailer.

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Murdock makes the same point even more explicitly. It explains that tort duties can arise “from a ‘special relationship' either between...