City retains immunity from sewer backup claims as not evidence existed of specific, affirmative action by the city which caused damage

Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Robinson v. Gabriel and Irene Rodriguez., No. 10-21-00075-CV (Tex. App.—Waco Oct 6, 2021) (mem. op.).

In this appeal from a trial court’s denial of the city’s plea to the jurisdiction based on a takings claim, the Waco Court of Appeals reversed and rendered judgment against the plaintiff because the plaintiff had not provided sufficient evidence that a specific, affirmative act of the city had caused the sewer backup.

The plaintiffs sued the city after they experienced multiple sewer backups. The specific two backups at issue were both investigated by the city.  Both times the city stated that the issue was on the plaintiffs’ property, but this conclusion was disputed.  The plaintiffs sued under a takings claim.  The city filed a plea to the jurisdiction arguing that it was immune from suit because proof of negligent contact related to the sewer backups is insufficient for takings liability.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

To plead a takings claim under the Texas Constitution, the plaintiff has to show that the city intentionally damaged property for public use.  See Tex. Const. I, § 17; Gen’l Servs. Comm’n v. Little-Tex Insulation, Inc., 39 S.W.3d 591, 598 (Tex. 2001)(emphasis added).   This requires proof of the city knowing that a specific act would cause the damage or that that the specific damage was a consequential result of the specific action of the city.  “Evidence of a governmental entity’s failure to avoid preventable damage may be evidence of negligence, but it is not necessarily evidence of the entity’s intent to damage the plaintiff’s property.” See City of San Antonio v. Pollack, 284 S.W.3d 809, 821 (Tex. 2009).  Even finding that the sewer backup was caused by a blockage on the city side, without evidence of a specific act, the city’s immunity is not waived.  The Court of Appeals reversed and rendered on the trial court’s denial on the plea to the jurisdiction, and held that the city’s immunity was not waived.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray, and Justices Johnson and Rose.  Chief Justice Gray dissenting.  Opinion by Justice Johnson.