Tyler Court of Appeals holds District is immune from sewer backup as 20 year old plastic coupler which failed was not part of the motor system

Sean Self v. West Cedar Creek Municipal Utility District, 12-20-00082-CV, (Tex. App – Tyler, Jan. 6, 2021)

This is an appeal from the granting of a plea to the jurisdiction in a sewage backup case in which the Tyler Court of Appeals affirmed the order.

Self and his wife Kimberly entered into a contract with the District in 2012  water and sewer services. After sewage backed up into their home in April 2015, the District made some repairs to the vault system. Another backup occurred in 2016 and Sean Self sued the District alleging negligent use of motor-driven equipment, premises defect, unconstitutional taking, non-negligent nuisance, and breach of contract. The District filed a plea to the jurisdiction, which was granted. Self appealed.

It is undisputed that a plastic coupler (known as a quick connect) failed causing the backup. Self argued the motors, pipes and couplers are all one system. The court explained in detail how the Self system worked. The coupler gives District employees the ability to remove the pump without cutting pipes. There is no motor in the coupler. It merely assists in disconnecting the pump if it needs to be worked on. If the coupler fails, gravity will cause any sewage coming from a higher-grade property to backfill Self’s property. Self’s expert plumber testified the pumps used can cause high pressure, which could potentially break the coupler, but he did not know that is what occurred in this instance.  However, there was no evidence that the coupler assists in sewage collection other than to the extent it helps maintain the connection between the pump and the discharge line. The evidence shows that, if the coupler breaks, whether the pump is on or not, the sewage in the tank would flow out to the ground or through the line in the tank and back into the house, due to the force of gravity, not the operation or use of motorized equipment. Under a premise defect theory, the duty owed by an owner of premises to an invitee is not that of an insurer. The coupler was placed in 1995. The fact that materials deteriorate over time and may become dangerous does not itself create a dangerous condition, and the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. No evidence of actual knowledge existed. In the context of an inverse condemnation claim, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” A taking cannot be established by proof of mere negligent conduct. No knowledge of intent is present. While Self alleged a claim for non-negligent nuisance, there is no separate waiver of governmental immunity for nuisance claims. Finally, as to the breach of contract claim, no goods are services were provided to the District, it was the District providing services to Self. As a result, no waiver of immunity exists.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Affirmed. Opinion by Justice Neeley. Docket page with attorney information found here.