City immune from suit alleging negligent use of Vac Truck to clear blockage in sewer line

The City of The Colony, Texas v. Mark and Kim Rygh 02-17-00080-CV (Tex.App- Fort Worth, December 14, 2017)

This is a Texas Tort Claims Act (“TTCA”), negligent operation of motor-driven equipment case where the Fort Worth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

The Rygh’s home was flooded when raw sewage backed up into their home. Prior that morning, Rygh’s neighbor, Harper, advised the City a pipe outside his home was expelling sewage into this yard. City repair crews arrived and determine a blockage was causing a backup witnessed by Harper. The City used a “Vac” truck to clear the line. The Vac truck is powered by the engine of the truck and uses a nozzle to break the blockage. The truck uses pressurized water which is propelled downstream out of the back of the nozzle[,] which propels [the nozzle] upstream toward the blockage. When used, the nozzle broke the blockage causing the sewage to immediately begin flowing downstream away from the residences. The Ryghs later sued the City, alleging that its employees’ negligent use of the Vac truck to break through the blockage in the sewer main had caused the sewage to back up into their residence.  The trial court denied the City’s plea to the jurisdiction and the  City appealed.

The Texas Supreme Court has repeatedly clarified that the phrase “arises from” requires a nexus between the operation or use of the motor-driven vehicle and the plaintiff’s personal injuries and property damage.  As the uncontroverted evidence established, no water was sent upstream toward the residences. Employees were monitoring the sewage levels upstream and noted no sewage reversed course when the nozzle was deployed.  Only a physical object was thrust upward into the line 20 or so feet to break the blockage. The nexus requires more than mere involvement of property; the vehicle’s operation or use must have actually caused the injury. Further, the timing in the different affidavits does not conflict as the Ryghs’ affidavit asserted their home flooded at approximately 7:45 a.m. and the City’s crew did not arrive at the location until after 8:00 a.m.  The jurisdictional evidence conclusively establishes that the property damage sustained by the Ryghs did not arise from the City’s use of the Vac truck. Finally, no waiver of immunity exists for the claims the City failed to notify the Ryghs of work on the sewer line. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justices Walker, Meier, JJ, and Gabriel. Memorandum Opinion by Justice Meier. To see the attorneys listed for the Appellants and Appellee click here.

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