Suit Against Local Government Over Sewer Issues

In Nickels v. Metropolitan Govt. of Nashville and Davidson County, No. M2015-01938-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2016), the Court of Appeals went through a thorough analysis of Tennessee’s  Governmental Tort Liability Act (GTLA) as it related to a claim regarding the malfunction of a sewer and stormwater system.

Though the facts here were quite detailed, the gist of the matter was that plaintiff owned a dentist office in midtown Nashville, and the land surrounding the office “generally [rose] in every direction.” This area of Nashville has a combined sewage and stormwater system, and there was a catch basin behind the office parking lot where stormwater was intended to be integrated into the sewer line. From this catch basin, the mixed water was fed downstream “into a twelve-inch line,” which then connected to a much larger 108-inch pipe.

In 2005, plaintiff built an addition onto his dental office. Later that year, plaintiff’s office manager called Metro Water Services for the first time to report that plaintiff believed the storm drain was clogged, as there was flooding in the alley behind the office. Plaintiff called Metro again in May 2006 to report that water was coming out of the catch basin, after which Metro did a video inspection of the water line that showed concrete in the 12-inch line. This concrete was not removed. In September 2006, plaintiff’s office flooded from the back door and the shower drains, and the floodwater contained sewage. On June 3, 2007, the office flooded again. Metro inspected the pipe again, and found “four to five inches of concrete and debris in the line.” Metro removed two sections of the pipe but did not compensate plaintiff for repairs to his office. Metro did, however, install a back-trap device on plaintiff’s service line.

In April 2009, the office flooded again, and Metro denied plaintiff’s claim. Plaintiff paid to have a coffer dam, awning and sump pump installed to prevent flooding coming from the back door. In July 2009, sewage backed up again though the office’s floor drains. Then, during the flood of May 2010, sewage came into the office through the floor and shower drains.

During this period, Metro considered a proposal to increase the 12-inch pipe to a 36-inch pipe. The proposal was approved by the Tennessee Department of Environment and Conservation, but was ultimately not pursued due to “greater priorities for the budget.”

Plaintiff sued Metro for negligence under the GTLA, and the trial court dismissed all of plaintiff’s claims. On appeal, the Court agreed that some of plaintiff’s claims were barred but found that the trial court had erred in “concluding that Metro did not have a duty to repair a known dangerous condition in the combined line.” The Court also found that some comparative fault could be attributed to plaintiff.

GTLA Immunity

The Court of Appeals first looked at whether Metro could be held liable under the GTLA. This claim fell under Tenn. Code Ann. Section 29-20-204, which states that “[i]mmunity from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir, or other public improvement owned and controlled by such governmental entity.” While this statute does not create a duty, as argued by the plaintiff, it serves an “an initial step to remove” immunity.

The Court of Appeals found that the trial court erred in finding no claim under the GTLA in two ways. First, the trial court erred in its analysis by finding that that there was no “dangerous or defective condition caused by Metro.” As the Court of Appeals noted, “causation is not a requirement for the removal of immunity under Tenn. Code Ann. § 29-20-204(a).” Instead, the statute simply requires the presence of a dangerous condition. Here, much evidence was presented that the water coming out of the catch basin was polluted with raw sewage, and thus a dangerous condition clearly existed.

Next, the trial court erred by applying the discretionary decision exception to the GTLA analysis. Tenn. Code Ann. § 29-20-205(1) provides an exception for the removal of governmental immunity if the governmental entity is exercising a discretionary function. The trial court applied this exception to hold that Metro retained its immunity here. The Court of Appeals reversed this holding, however, finding that under current statutes and case law, “Tennessee Code Annotated section 29-20-205 does not apply to claims brought under Tenn. Code Ann. § 29-20-204.” Since the claim here was brought under -204, the discretionary function exception should not have been used to allow Metro to retain immunity. Moreover, even if the discretionary function exception applied, the Court held that “Metro’s decision not to correct a dangerous condition in the combined line does not qualify as a discretionary decision. Any finding otherwise would potentially mean that Metro would be immune under the GTLA for negligently failing to repair any sewer or other public improvement that creates a dangerous condition.” Accordingly, the suit could proceed under the GTLA.

Negligence

Because the Court of Appeals found that immunity was removed under the GTLA, they next looked at whether plaintiff had met the elements of negligence. As to duty, the Court noted that the issue here was “whether Metro has a duty to repair a known dangerous condition in a combined line,” and the Court concluded that it did. The Court noted that cases dealing only with stormwater drains were inapplicable here, as the line in this case included sewage. The Court cited a general rule that “a political subdivision owes a duty of ordinary care with respect to the proprietary functions of operating a sewer system and maintaining that system in repair.” (internal citation omitted). According to the Court of Appeals, Tennessee law is consistent with this general rule, and a municipality does have a duty “to repair a dangerous or defective condition, involving sewage in a combined system, of which it had notice.” The Court also specifically rejected Metro’s argument that cited the Storm Water Management Act as proof that it could not be held liable in this case, as the Court stated that such legislation did “not regulate the management of sewage.”

Having found a duty, the Court then looked at foreseeability regarding each flooding incident at issue in the case. For the June 2007 incident, the Court did not address foreseeability because it determined that claims regarding this incident were barred by the statute of limitations. Claims under the GTLA must be brought within one year after the cause of action arises. Plaintiff did not file suit until April 2010, but argued that the limitations period had not run because they “were not aware until discovery that Metro knowingly failed to remove concrete from the sewer” prior to this back up. The Court rejected this argument, holding that the plaintiff knew “they had sustained an injury as a result of Metro’s failure to remedy the dangerous condition of the combined sewer” in June 2007, and that plaintiff did not have to know the full extent of Metro’s actions in order for the clock to begin.

For the April 2009 incident, the Court found that Metro did breach a duty and that “the risk of further flooding was reasonably foreseeable.” The Court noted specifically that “there was evidence that Metro knew that the combined line remained dangerous despite repairs Metro had performed in June 2007,” and that Metro chose not to follow through with the plan to increase the size of the 12-inch pipe. The same analysis applied to the July 2009 flooding. The Court also specifically found that when plaintiff had a sump pump installed after this flooding event, he properly mitigated his damages.

As to the May 2010 flooding, the Court of Appeals affirmed the trial court’s ruling that this flooding event was an Act of God and that Metro could not be held liable for damages related thereto.

Comparative Fault

Finally, the Court analyzed the trial court’s finding that plaintiff was not negligent when he had an addition built. The Court pointed out that Metro had presented evidence that plaintiff’s addition “altered the natural surface flow of water and made the ponding of stormwater in the alley more severe.” The Court also noted that the first reported flooding incident did not occur until after the addition was construction.

Accordingly, the Court held that on remand, the trial court should analyze causation and “determine whether [plaintiff] was negligent and …assess the percentage of fault (if any) attributable to Metro and [plaintiff] with respect to the April 2009 and July 2009 flooding events.”

This opinion is quite long and fact-specific, but it serves as a good example of a thorough analysis of a GTLA claim. Plaintiffs filing suit against a governmental entity under the dangerous condition provision in Tenn. Code Ann. § 29-20-204(a) would be well served by reading this opinion and considering the issues it raises.