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Court rules that sometimes shit happens

The Massachusetts Appeals Court today dismissed a homeowner's suit against the city of Newton over the flood of sewage and debris that poured into her basement after two nearby sewer pumps failed, ruling the pumps didn't fail due to anything the city had done wrong.

On New Year's Day, 2014, a water main under Longfellow Road in Newton burst, flooding a nearby sewer pipe, which overwhelmed two sewage pumps - one stopped working altogether and the remaining unit was unable to keep up with the extra flow. "As a result several inches of water, silt, and sewage" backed up through Bryna Klevan's sewage pipe and into her basement, according to the court's summary of the case.

Klevan sued the city for allegedly being negligent in its maintenance of the sewer main and pumps and for "negligently failing to warn" that the pumps might fail and that she should have had a "backflow preventer valve," installed on her pipe to block incoming crap.

A Superior Court judge said she had no case on the maintenance issue - the city had inspected the pumps the day before and found them in working order, which led to the whole issue of government immunity for things - but ruled that she did have a case on the failure-to-warn issue and could proceed to make her case to a jury, in part because the city owned both water and sewer mains and it was the body that decided to put them so close together.

But in its ruling today, the appeals court sided with the city and said that, like the burst main, that argument didn't hold water, either.

The state law on government immunity in question bars suits against government agencies in which a problem was "not originally caused" by them. The court said that 1999 ruling by the Supreme Judicial Court - in a case involving a kid who was beaten up at school - further defined this as meaning that government workers had to have been shown to have committed "an affirmative act" that led to whatever the problem was.

In the Newton case, the appeals court continued, the "original act" that led to Klevan's basement flooding was the bursting of the water main.

Klevan's lawyers did not allege any possible negligence in the bursting of the water main, so nothing "affirmative" there.

But what about the original decision to put the two mains close enough together that one could flood the other? The court closed the valve on that argument as well:

The summary judgment record does not show that the original cause of the sewage backup was the design of the sewer system itself, or the placement of the sewer pumps near the water main. With respect to the plaintiff's home, the record shows that the sewer system had operated as designed for decades, without incident. In this instance, the backup occurred because the sewer pumps were flooded as a result of the water main break. Under the ordinary meaning of the word "cause," the flood from the water main break was the original cause of the plaintiff's harm. Critically, however, the plaintiff does not point us to any affirmative act by the city that caused the water main to break; indeed, she does not contend that the city was the cause of the break, and there is nothing in this record that would raise a triable issue in that regard.

We accordingly reject the contention that the city was the original cause of the plaintiff's harms. It is true, of course, that the plaintiff would not have been harmed if the city did not operate a sewer system. But here the condition or situation that caused the plaintiff's harms was the sewer backup, which in turn occurred because of a flood that has not been shown to have come about through any affirmative act of the city. Put another way, the plaintiff's claim is that the city failed to act to diminish the possibility that sewage might back up into her home, where the backup resulted from an unexplained flood. Such a claim falls within the immunity of [the relevant section of state law].

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PDF icon Complete ruling178.3 KB


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Why was the case brought to begin with? Did the homeowner not have insurance coverage or did the insurance company deny the claim somehow?

Voting closed 14

Most insurance companies only cover water damage from what comes down into a structure and does not cover water related damage from water coming up into a building.
A Water main broke in front of one of our buildings on Beacon Street. Water destroyed the heating system and electric system.
Now I live on top of a hill and have flood insurance. It was a very expensive lesson to learn.

Voting closed 16

I believe I have coverage for sewage backups, which I had to specifically request, but not coverage for any other kind of flooding.

In general, the way insurance works is that you pay your premiums for years, and then when you make a claim, they find a reason to deny it. They've been doing this far longer than you have, so they know how to add all kinds of exclusions which cover most circumstances.

If they do actually pay a claim, then they raise your rates. Or they drop you entirely, and then you're blacklisted by other insurance companies.

Voting closed 21

Shouldn't the city at least cover the actual clear-up costs? There's almost no way for a homeowner to shut off a sewer connection to a house nor is such a provision expected to be needed.

Voting closed 39

I know most municipalities require a backflow preventer for water supply, can’t that apply to sewage as well? I remember my dad saying “ you can’t fight city hall “. Maybe it’s true.

Voting closed 20

You'd think that, but I was under the impression that the state building code actual prohibits check valves on sewer pipes in building.

Voting closed 14


Voting closed 14

I thought my homeowners insurance covered this But it does not UNLESS you specifically ask (and pay) for it.
It stinks!

Voting closed 17