Opinion
No. 01-05-00331-CV
Opinion issued September 14, 2006.
On Appeal from the 10th District Court Galveston County, Texas, Trial Court Cause No. 00-CV-0576.
Panel consists of Justices TAFT, KEYES, and HANKS. Justice KEYES, dissenting.
MEMORANDUM OPINION
Appellants, Donna Banda and her daughter, Robyn Worthen (collectively, "the homeowners"), challenge the trial court's order granting summary judgment for the City of Galveston ("the City") on their negligence claim. We affirm.
Factual and Procedural Background
Banda and Worthen lived together in the upstairs apartment of Banda's home and used the downstairs apartment for storage. In March 2000, while cleaning a sewer line, the City blew sewage into Banda's home. A few days later, the homeowners noticed that sewage had backed up through the downstairs toilet and had covered the floor and walls of the downstairs area. They contacted the City and requested that it send someone to investigate the problem. The City hired ServPro Clear Lake to remove the sewage from Banda's home and to remove, inventory, and discard items that had been damaged. ServPro informed the homeowners that none of their belongings downstairs could be salvaged, and ServPro inventoried, photographed, and discarded all of the belongings that were located downstairs.
The record reflects that there was raw sewage approximately four inches deep. Fecal matter was in the bathroom, the hall, and partially in the bedrooms. In the bathroom, fecal matter had shot out of the commode onto the walls and ceiling. In addition, the sewer water penetrated the walls, and the sheetrock was visibly wet three to four feet up the walls.
The homeowners sued the City for damage to their personal and real property. As the owner of the home, Banda filed an inverse condemnation claim, and the homeowners both filed a non-negligent nuisance claim. The trial court granted the City's motion as to the inverse condemnation claim, but denied the motion as it related to the non-negligence nuisance claim. The homeowners amended their petition, abandoned their non-negligence nuisance claim, and sued the City "under a nuisance theory (negligence and waiver of liability) and unconstitutional takings claim." They asserted that, while using motor-driven equipment, the City negligently performed its governmental function because it (1) failed to maintain the sewer system, (2) failed to warn the homeowners of its impending operations, and (3) it was on notice because it had blown sewage into their home in 1995 or 1996. The homeowners re-asserted their unconstitutional takings claim, which the trial court had previously dismissed in its order granting the City's motion for summary judgment and which was pending in this Court on appeal.
The homeowners appealed the judgment disposing of their inverse condemnation claim. (Appellate cause number 01-04-00083-CV).
The City filed traditional and no-evidence motions for summary judgment asserting that there was no evidence of negligence. Specifically, it contended that there was (1) no evidence that it negligently failed to maintain the sewer; and (2) no evidence that such alleged negligent failure to maintain caused the damages in question; (3) no evidence of a duty to warn the homeowners; (4) no evidence that the alleged failure to warn was negligent; (5) no evidence that the alleged failure to warn caused the damages; (6) no evidence that it owed a duty not to perform the operation; (7) no evidence that it was negligent in deciding to perform the operation; and (8) no evidence that any such decision caused the sewage backup.
The City argued that governmental immunity bars the negligence claim because the Texas Tort Claims Act's waiver for damages caused by motor-driven equipment does not apply, and the complained-of conduct involves discretionary acts, which are protected by governmental immunity. The City attached to its motion excerpts from the deposition of Jacinto Salas, a crew leader at the sewer collection. Salas testified that he recalled one occasion where, under different circumstances than were present in this case, sewage backed up into a home. He explained that, in that case, the sewer main was full of grease, and he "got behind the grease with the nozzle of the hose," and, when he "went to pull back, there was so much grease that the line didn't get open," and "it shot back" into the home. Salas testified that "normally it doesn't go back into the home." The City also attached excerpts from the deposition of Ronnie Schultz, the pollution control director for the Galveston County Health District for eight years. Schultz testified that "this is actually the first [back up into a residence] that I heard about personally." Finally, the City attached excerpts from the deposition of Ben Broadnax, who had been employed in Galveston's sewer department for 19 years. Broadnax testified that he could only recall one other time when sewage backed up into a residence.
The trial court granted the City's motion for summary judgment without stating its reasons for doing so.
Negligence
The homeowners do not appeal the trial court's granting of the motion for summary judgment as to their second inverse condemnation claim asserted in their amended petition.
In their sole point of error, the homeowners assert that the trial court erred in granting the City's motion for summary judgment on their negligence claim. Specifically, they assert that the City's negligent acts in allowing sewage to enter the house and failing to adequately inspect and clean the house caused toxic mold to settle in the house, thereby making the house an uninhabitable nuisance.
Standard of Review
A party is entitled to a no-evidence summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
In reviewing a no-evidence summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. See Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is improperly rendered if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App.-Houston [1st Dist.] 2000, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
Negligence
Generally, governmental entities are immune from prosecution for negligence except as provided by the Texas Tort Claims Act (the "Act"). See Tex. Civ. Prac. Rem. Code Ann. §§ 101.001 (Vernon 2005). Under the Act, a municipality may be held liable in tort for damages caused in the carrying out of its governmental functions, including the operation and maintenance of sanitary sewers. See id. § 101.0215(9), (32) (Vernon 2005). It is not enough, however, to allege that such damages have occurred; it must be shown that the municipality has waived its governmental immunity from suit. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
The homeowners assert that the City has waived its governmental immunity under section 101.021(1)(A) of the Act because "the City used motor-driven equipment during its pumping operations and [the] clearing of the [sewage] lines." They also argue that the City knew or should have known that its procedure to remove blockages from the sewage system caused problems.
Section 101.021(1) provides as follows:
A governmental unit in the state is liable for:
(1) property damage . . . proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage . . . arises from the operation or use of a motor-driven vehicle or motor driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law. . . .
Tex. Civ. Prac. Rem. Code Ann. § 101.021(1) (Vernon 2005).
In order to survive summary judgment at the trial court level, the homeowners must have put forth more than a scintilla of evidence that a genuine issue of material fact existed such that reasonable and fair-minded people would differ in their conclusions as to whether the City's employees were negligent in using or operating motor-driven equipment while cleaning the sewer line behind the Banda home and that the damage arose from its negligent use or operation. See LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 51 (Tex. 1992) (holding that it must be governmental employee's negligent operation or use of motor-driven vehicle or piece of equipment that caused damage or injury). The homeowners must show that there is a fact question as to whether (1) the property damage arose from the operation or use of motor-driven equipment and (2) the City employee would be personally liable to the homeowners. See Tex. Civ. Prac. Rem. Code Ann. § 101.021(1).
The City claims that the homeowners did not put forth any evidence to support the claim that City employees negligently operated or used motor-driven equipment in their attempts to clear a stoppage in the main sewer line and that their property damage arose from such negligent use or operation. See Whitley, 104 S.W.3d at 543. We agree.
In their response to the City's motion for summary judgment, the homeowners state that they have presented the following summary judgment evidence that "establishes a genuine issue of material fact as to causation and whether the City was negligent or whether the harm was caused by the City in the course of their non-negligent performance of their governmental function" (emphasis added):
(1) The City had blown sewage into the [homeowners'] home back in 1995 or 1996;
(2) Three City representatives told Banda they were responsible;
(3) ServPro talked with the insurance adjuster. The adjuster said he talked with the City Manager, Mr. Ford, and Mr. Ford said the City is responsible for the damages and that the insurance company is definitely paying for all the damages;
(4) In a notice put out by the City around July of 2001, the City documents that it had a problem with grease in the sewer lines, and that the City has "realized for a few years now that the City is in need of a grease control initiative," that Galveston experiences an unacceptable number of Dry Weather Sanitary Sewer Overflows (DWSSOs) which results in wastewaters overflowing "in some cases into homes," and that 90 percent of the DWSSOs "are directly caused by grease accumulations in our main lines";
(5) A city work order form dated March 3, 2000, shows that a City crew "shot main line to clean stoppage" at 18th Street, Avenue N 1/2 — Avenue O;
(6) Water Complaint Investigation form from the Galveston County Health District Pollution Control Division shows that the responsible party for the sewage back up at the Banda home was "City of Galveston." Two earlier investigations (on October 28, 1999 and the other January 4, 2000), were also the fault of the City of Galveston;
(7) Ben Broadnax, technician in the City Sewer Department, confirmed that his crew blew out the line in the alley behind Banda's house with the use of a truck and cleaning machine but could not say how far past the complainant's address they went. The City crew did not check every house on Banda's block to see if their sewage was backed up, even if they blew the entire block. He also confirmed that the City has been having problems over the last few years with sewage stoppage and that the type of problems in the East End was due to grease. He remembered one other time when sewage backed up into a person's home from shooting out the line;
(8) J. Salas, Crew Leader, confirmed that a high-pressure machine was used to shot [sic] the main line in the alley behind Banda's home. Salas was also aware of another incident in which the main was full of grease and when they shot the line, the sewage shot into a house. He also testified that the only way they would know if the sewage shot into a house was if the homeowner notified the City;
(9) City workers tried to claim that the City was not liable by testifying that on March 3rd they had not shot the line behind Banda's house, but later recanted; and
(10) In Defendant's Second Supplemental Disclosures, the City stated that proper procedures for cleaning the sewer lines were followed.
(Internal record references omitted.) None of the evidence referenced in the homeowners' summary judgment response asserts that the City's employees negligently used the motorized equipment. See Tex. Civ. Prac. Rem. Code Ann. § 101.021(1) (To find waiver under the Act, one must have a finding that the damage was caused by a motor-driven vehicle or equipment and the employee would be personally liable).
We overrule the homeowners' sole point of error.
CONCLUSION
We affirm the order of the trial court.
DISSENTING OPINION
I respectfully dissent. I believe appellants Donna Banda and her daughter, Robyn Worthen (collectively, "the homeowners") have clearly presented evidence sufficient to raise a material fact issue as to whether the City of Galveston ("the City") was negligent when its employee, operating a motor-driven vehicle, blew sewage all over appellants' home. I would reverse and remand for trial.
The homeowners assert that the City waived its governmental immunity under section 101.021(1)(A) of the Texas Tort Claims Act because the City "used motor-driven equipment during its pumping operations and [the] clearing of the [sewage] lines." Section 101.021(1) provides:
A governmental unit in the state is liable for:
(1) property damage . . . proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage . . . arises from the operation or use of a motor-driven vehicle or motor driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law. . . .
Tex. Civ. Prac. Rem. Code Ann. § 101.021(1) (Vernon 2005).
The majority concludes that "[n]one of the evidence referenced in the homeowners' summary judgment response asserts that the City's employees negligently used the motorized equipment." This sentence is the sole basis for the majority's holding.
It is well established that, in determining waiver of immunity for property damage arising "from the operation or use of a motor-driven vehicle or motor-driven equipment," the term "`use' means `to put or bring into act or service; to employ for or apply to a given purpose'" and that the use of the equipment or vehicle must have actually caused the injury for the waiver in section 101.021 of the Tort Claims Act to apply. Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001) (holding that stationary electric motor-driven pump used to dissipate fumes from leaking underground gas tanks was "motor-driven equipment" under section 101.021); see City of Alton v. Sharyland Water Supply Corp., 145 S.W.3d 673, 679 (Tex.App.-Corpus Christi 2004, no pet.); 4 DG's Corp. v. City of Lockney, 853 S.W.2d 855, 857 (Tex.App.-Amarillo 1993, no pet.).
The law is also well established that the use of motor-driven equipment in a manner that causes property to be flooded with sewage can state a cause of action for which a city's governmental immunity is waived by section 101.021 of the Tort Claims Act. See City of Paris v. Floyd, 150 S.W.3d 224, 228 (Tex.App.-Texarkana 2004, no pet.) (holding that negligence action against city for failing to maintain electric pumps within lift station to control water entering system through open excavation and in using inadequate electric pumps, causing sewage to back up into house during heavy rainfall, stated claim for City's negligence in operation or use of motor-driven equipment for which sovereign immunity was waived by section 101.021(1)(A)); 4 DG's Corp., 853 S.W.2d at 857 (holding that fact question as to whether city employee's failure to restart sewage removal pumps after electrical power interruption was negligent "operation and use" of pumps prevented summary judgment in favor of City on claim by owner of sewage-damaged house); cf. White, 46 S.W.3d at 870 (holding that damages allegedly resulting from removal of gas pump did not result from operation or use of pump as necessary to invoke waiver of immunity); City of Tyler v. Likes, 962 S.W.2d 489, 494, 497 (Tex. 1998) (holding that homeowner whose property was damaged when city-owned drainage channel and culverts flooded stated cause of action for damages for City's alleged negligence in constructing culverts prior to enactment of Tort Claims Act, but observing that "[t]he flood damages to Likes's home did not arise from the use of a motor vehicle or motor-driven equipment, however, so she cannot avail herself of the Act's waiver of immunity for property damages"); City of Alton, 145 S.W.3d at 679 (holding that city did not waive immunity to suit for negligence in allegedly allowing water supply to become contaminated by allowing sewer lines to be laid over water lines where no evidence in record "would tend to show that the use or installation of the pumps is in any way related to the cause of property damage alleged . . . (i.e., the passive leakage of waste water into the surrounding substrate. . . .")).
It is also well established that sewage damages from efforts by a city to unclog a sewer line, without more, do not constitute a taking because "[w]hen damage is merely the accidental result of the government's act, there is no public benefit and the property cannot be said to be `taken or damaged for public use,'" as required for a taking. City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex. 2004) (emphasis in original; citation omitted); see also Tex. Const. art. I, § 17. Nor does such property damage state a claim under the `nuisance' exception to the Tort Claims Act because a nuisance claim against a city "is bottomed on the inhibition of the Constitution . . . that property cannot be appropriated without due compensation," i.e., it is grounded in a taking, and the requisite element of intent is missing when "there is no evidence that the City knew, when it unclogged the sewer line, that any flooding damage would occur" or that "the act of unclogging was substantially certain to lead to such damage" when the record reflects that "unclogging backups does not ordinarily cause residential flooding, and the plaintiffs themselves allege only that unclogging `sometimes' results in such damage." City of Dallas, 142 S.W.3d at 315; see also City of Van Alstyne v. Young, 146 S.W.3d 846, 850-51 (Tex.App.-Dallas 2004, no pet.).
Here, the homeowners presented competent summary judgment evidence, inter alia, that a City Sewer Department crew blew out the line in the alley behind appellants' house through the use and operation of a truck and a high-pressure cleaning machine; that the City had been having problems over the past few years with sewage stoppage due to grease; and that the crew leader and the crew technician in the City Sewer Department each knew of at least one instance in which sewage had backed up into a house from shooting out the line because the main line was full of grease, so that when the crew shot the line the sewage shot into the house. Appellants argue that the City crew's use of a high-pressure cleaning machine to shoot out a line known to have had problems with grease blockage caused the substantial property damage of which appellants complain. I would hold that appellants raised a fact issue as to the City's negligent operation of motor-driven equipment, for which section 101.021 of the Tort Claims Act waives immunity.
I would sustain appellants' point of error on the basis of the foregoing evidence and authority, reverse the judgment of the trial court, and remand the case for trial on the merits of appellants' negligence claim.