Day on Torts
A city government cannot be held liable in tort for a drainage problem on a road it does not own or operate caused by a malfunctioning pipe it did not install.
In Walker v. Metropolitan Government of Nashville & Davidson County, No. M2016-00030-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2018), plaintiff homeowner sued defendant city “for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance.” Plaintiff alleged that storm water runoff from the road he lived on flooded his property, basement and foundation each time it rained, and that he had asked defendant several times to fix a malfunctioning drainage pipe. Defendant moved for summary judgment on the basis that a previous homeowner had actually installed the malfunctioning pipe and that the city was accordingly immune from suit under the GTLA. The trial court granted summary judgment for defendant, and the Court of Appeals affirmed.
The evidence submitted in support of defendant’s motion for summary judgment showed that the road plaintiff’s property was on was a state highway, not a city street, and that before plaintiff owned the property the state had “acquired a permanent drainage easement” from the former owners. The state had installed a drainage pipe that funneled water to a ditch, which then funneled water to a creek. Before plaintiff bought the property, however, the previous homeowners enclosed the ditch and put a drainage pipe under the ground where the ditch was previously located, using a mix of both concrete and corrugated metal pipe. Defendant city did not install the pipe or fill in the ditch in question.
Defendant argued that it was immune from suit under the GTLA, based on the fact that it did not own or operate any of the allegedly dangerous conditions. The GTLA removes immunity “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,” or for unsafe conditions related to “any street, alley, sidewalk, or highway owned and operated by a governmental entity.” (Tenn. Code Ann. § 29-20-204; §29-20-203(a); additional citation omitted). Because the street in question was owned by the state, and the drainage pipe in question was owned by plaintiff and never related in any way to defendant, defendant argued that its immunity was not removed, and the Court of Appeals agreed, affirming summary judgment. The Court cited from defendant’s brief:
The Trial Court was not presented with any evidence that Metro built the drainage, enclosed the ditch, or owns and controls the drainage pipe. …Because Plaintiff could not establish that Metro owns and controls the drainage pipe and there is not authority to mandate a local government repair a drainage pipe under these circumstances, the Trial Court was correct to grant summary judgment in favor of Metro.
Plaintiff wasted time and money pursuing claims against an entity that had no control over the situation.