Fifth District Court of Appeals holds property owner’s pleadings adequately alleged waiver of immunity in sewer backup case due to overtaxed pumps

 

The City of Blue Ridge v. Rappold, 05-19-00961-CV (5th Cir. Dec. 3, 2020) (mem. op.)

This is an interlocutory appeal from a denial of the City’s plea to the jurisdiction, in a sewage backflow case.

The Rappolds brought a claim under the Texas Tort Claims Act (“TTCA”), alleging that the City’s wastewater treatment facility (“WWTF”) failed in its operation, causing raw sewage and stormwater to cover portions of the Rappolds’ property several times over the course of three years.  The City requested discovery to which Rappold objected.  The trial court considered the plea prior to the City’s motion to compel discovery. The first sewage backup event was allegedly due to an electrical failure in the pumps while the remaining were due to high levels of rain creating too much waterflow for the pumps to handle. The plea was denied and the City appealed.

The court first held that identifying a specific person in the pleadings is not necessary to establish causation, only that a City employee acted negligently within the course and scope of their duties. It also disagreed with the City’s claim that the Rappolds’ claim indicates non-use and, similarly, fails to show operation. The court points to allegations that the City failed to properly maintain the WWTF and that the City’s employees were not using the WWTF as designed. These additional allegations created a sufficient nexus between the damage and the City’s actions to adequately allege that the City was negligently using the motor-driven equipment. Similarly, the City employees’ knowledge that the WWTF is unable to handle large amounts of water it receives at times indicates negligence in continuing to operate the pumps in such a condition. The court also found proper pleading of the “condition or use of tangible personal property”  as different components failed at different times.  Finally, it held that the Rappolds were able to properly plead a takings claim by alleging that the City’s knowledge of the WWTF’s inadequacy resulted in the City using the Rappolds’ land as an overflow depository.

If you would like to read this memorandum opinion, click here. Panel consists of Justice Molberg and Justice Carlyle. Memorandum opinion by Justice Carlyle.