Why lawsuit over Flint water is a long shot

• Governmental immunity shields cities from most lawsuits.
• Government employees can be sued if they are found to have been grossly negligent.

If residents of Flint were harmed by lead-tainted water, can they sue the city?

Experts say maybe, though it's not an easy case to make because government agencies are typically immune from lawsuits related to the performance of required government functions.

"If it's a governmental function, the government itself has almost total immunity," said John Mogk, a law professor at Wayne State University. "But the employees can be liable if they are grossly negligent."

Mogk said Michigan law defines gross negligence as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."

The law does provide exceptions to that immunity, said Larry Dubin, a law professor at the University of Detroit Mercy.

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"One exception is when a governmental entity performs a proprietary function — which means an activity for the primary purpose of making a profit," Dubin said. "The law seems to favor this exception when the activity is not supported by taxes."

Flint residents receive bills for the water they use, but Michigan law doesn't allow municipalities to profit from selling water and sewer service. Rate are supposed to be set to cover the cost of providing the service.

Dubin said providing water can be considered primarily a government function, but Mogk said maybe not.

"Most of these are on the margin. It's open to interpretation," Mogk said. "Selling water might be viewed as a government function." But, he added, courts could conclude on a first impression that it's a proprietary function.

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Contact John Wisely: 313-222-6825 or jwisely@freepress.com.