You hear about this all the time. Heavy rains hit, your city’s sewer system doesn’t do its job, and you suddenly have a swimming pool filled with sewage overflow where your basement used to be. Like anything else involving water damage, that can be a very expensive repair project because you have the cost of cleaning everything up, the cost of repairing any portions of the basement that were ruined by the water, and the cost of replacing any property items that were lost during the flooding. If you have insurance to cover those losses, that’s great and the flooding won’t have much of an impact on you. But many insurance policies provide minimal coverage in these circumstances, leaving you to pay out-of-pocket for everything that’s not covered by insurance.
So do you have any legal rights to recoup your losses in that situation? You do, and there’s various options. The obvious choices are to assert legal claims against whatever companies were responsible for designing, constructing, and installing the sewer system or connecting it to your property.
Another possible defendant is the city you live in, and that’s what I want to talk about. There are three main theories of liability against cities regarding sewer overflow damage: (1) negligent design or construction of the sewer system; (2) negligent inspection, including granting of permits or licenses, of the sewer system; and (3) negligent maintenance, repair, or operation of the sewer system.
The first category, negligent design or construction of a sewer system, is a very difficult claim to make. Iowa Code 670.4(8) provides cities with broad immunity for sewer design or construction liability on “[a]ny claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public improvement . . . or other public facility that was constructed or reconstructed in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction. A claim . . . shall not be allowed for failure to upgrade, improve, or alter any aspect of an existing public improvement or other public facility to new, changed, or altered design standards.” A sewer system is considered a “public improvement.” Iowa’s courts have stated that a violation of engineering or safety standards existing at the time the sewer system was constructed must be proved or the city is immune.
The second category, negligent inspection and licensing and permits, is frequently implicated when a city is accused of negligently granting a building permit or something similar during a construction project. Two laws govern those types of cases. Iowa Code 670.4(9) provides that cities cannot be sued on “[a]ny claim based upon an act or omission by an officer or employee of the municipality or the municipality’s governing body, in the granting, suspension, or revocation of a license or permit, where the damage was caused by the person to whom the license or permit was issued, unless the act of the officer or employee constitutes actual malice or a criminal offense.” Iowa Code 670.4(10) confers immunity to cities from “[a]ny claim based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise, and whether the statute, ordinance, or regulation is valid, if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.”
Iowa Code 670.4(10) and its statutory predecessors have made regular appearances in lawsuits against cities in which a third party causes physical injuries or property damage and the injured party seeks to blame the city for essentially failing to prevent the problem. Much of the fight in those cases concerns the “supervision or control” component of Iowa Code 670.4(10) because, if the city did not have supervision or control, then the injured party must meet the almost impossible burden of proving that the city acted with actual malice or committed a crime. So establishing a right to go after a city for regular negligence because it had supervision or control is essential.
The third and final category of city liability for sewer overflows is negligence in the maintainence, repair, or operation of a sewer system. In this category, cities are treated like any other property owner and have a duty to maintain their property (the sewer system) so that it does not injure anyone. Common examples in this category are claims for obstructions in sewers or failing sewers that are allowing seepage, overwhelming the system, and increasing the chance of an overflow. The city will be liable if the injured party can prove that the city negligently addressed the obstruction or the failing sewer.
As you can see, negligence claims against cities for sewer overflow flooding and damages are complicated and require a carefully nuanced legal approach. This is an area where the legal manner in which you present your claim can have a substantial impact on your city’s potential liability for the flooding damage to your home. If you approach your claim from the wrong legal direction, you will likely run into one or more of the city’s immunities, summarized above, and have your case dismissed by the judge before you ever get to trial. Please feel free to contact me if you’d like me to review a possible legal matter involving your city’s sewer system.
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