City Liability For Private Nuisance Caused By Sewer Backups

By harley erbe

On February 3, 2017, the Iowa Court of Appeals issued a decision expanding the potential liability of cities for sewer backups. This has always been a complicated, difficult claim to make, as we discussed here. But in Wilma Kellogg v. City of Albia, the Iowa Court of Appeals confirmed the use of an alternate theory of liability against cities for sewer backups: private nuisance.

The storm sewer at issue in this case was constructed by the City of Albia in 1972 as part of a paving project. Kellogg’s home was built in
1983, and Kellogg purchased the home in 2008. A drainage pipe runs under Kellogg’s land and drains into the storm sewer located on the western edge of the property. Kellogg reported the property first flooded in 2009, resulting in ponding in the yard and water coming into the basement. Kellogg estimated the basement has flooded at least eight or nine times between 2009 and 2015. In 2010, 2012, 2013, and 2014, Kellogg spoke to city representatives and asked if anything could be done to stop the flooding. Kellogg claimed each time the city told her it would look into the flooding but took no steps to follow up or address the problem. Kellogg stated the property last flooded on July 7, 2015.

One of Kellog's claims was that the city was liable for maintaining a nuisance on her property in the form of the storm sewer water that was flooding her property. The city argued that it was immune becase Kellogg’s nuisance action arose out of a claim of negligent design or construction or failure to upgrade, improve, or alter the storm sewer, and therefore cannot be brought against the city for the reasons we discussed in this post. Kellogg contended that the city's immunity section did not apply to nuisance claims, and even if the immunity was applicable to nuisance claims in general, the city's immunity did not apply to her particular nuisance claim.

The court agreed with the city that the immunity would apply to nuisance claims based upon or arising out of a claim of negligent design or
construction or failure to upgrade, improve, or alter a public improvement. The issue thus became whether Kellogg's claim was based on one of those theories of fault. If it was, then the city was immune from Kellogg's nuisance claim. Kellogg argued that, even if the city's immunity applied to nuisance claims, her action was based upon the creation of a condition and not upon an act or omission of the city responsible for creating the condition.

The court of appeals noted that Iowa law permits claims against municipalities for the failure to repair and maintain existing sewer systems. “Repair” or “maintain,” as opposed to “upgrade,” denotes a restoration to former design standards to enable the existing facility to operate adequately. Thus, neither the purpose nor the literal terms of cities' sewer system immunity prohibit a claim based upon the failure to repair, maintain, or operate a storm sewer system. Consequently, a nuisance claim can escape the city's immunity from suit application of section if the claim relates to the repair, maintenance, or operation of a storm sewer system such that it creates a dangerous condition and is an unreasonable interference with an owner’s use and enjoyment of the property. 

Therefore, the court of appeals said, if Kellogg can prove that a nuisance was created or was being maintained by the city's operation of the sewer system without regard to design or specifications defects, the city may not be immune from suit. In this regard, the court observed that Kellogg experienced flooding on her property on at least eight or nine occasions over the course of seven years. That included reoccurring
flooding near electrical appliances, standing water, and resulting mold. That evidence was sufficient for Kellogg to have an opportunity to prove her nuisance claim against the city at trial.

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