Editor’s note: Robert Bruss is temporarily away. The following column from Bruss’ “Best of” collection first appeared Sunday, June 25, 2006.

David and Suzanne McKenna own their home on Maybell Way in Palo Alto, Calif. Their residence suffered serious damage as the result of two backups of the city sewer serving their home.

After the first backup, their homeowner’s insurance company paid to install a new lateral sewer pipe from the house to the sewer located in the street.

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But about a month later, the sewer again backed up into the McKenna home. This time the insurance company hired Spectrum Leak Locators to investigate the cause of the second backup. Their video inspection found the replaced lateral pipe was clear of debris and in perfect condition.

Spectrum discovered tree roots at the city’s “wye” joint connecting with the McKenna’s new lateral pipe to the city’s main sewer. The video inspection revealed toilet paper and effluent on the tree roots in the sewer main pipe, which was half-filled with standing water.

After paying the McKenna’s second homeowner’s insurance claim, the insurance company filed a lawsuit as subrogee against the city for damages from the second backup. The insurer argued the City of Palo Alto was liable for “inverse condemnation” damages, meaning the city’s action took the use of private property without payment.

But the city submitted evidence it has a maintenance program, including hydroflush of each main sewer line every two years. The Maybell Way sewer had been hydroflushed 18 months before these sewer backups. The city also noted no other homes on Maybell Way suffered sewer backup damages.

If you were the judge would you require the city to pay inverse condemnation damages for the second sewer backup?

The judge said yes!

There is no dispute as to the three elements of inverse condemnation damages: the McKenna property was taken or damaged, the damage was caused by the sewer backup, and the city’s sanitary sewer system is a public project, the judge explained. The only missing element was proximate causation, he emphasized.

At the trial, evidence was presented as to three possible causes, he continued. They were (a) tree roots in the main sewer line, (b) the sewer main had an inadequate slope to carry sewage away from the homes, and/or (c) there was standing water in the sewer line.

No matter what caused the sewer backup damage to the McKenna home, the public sewer failed to function as it was intended, the judge ruled. “The blockage occurred on city land and in piping strictly under the control of the city…in this case there was a substantial cause-and-effect relationship between factors entirely within the control of the city,” he noted. Therefore, there is no need to distinguish among them to determine the “how and why” the blockage occurred; the city is therefore liable for inverse condemnation damages, he concluded.

Based on the 2006 California Court of Appeal decision in California State Automobile Association Inter-Insurance Bureau v. City of Palo Alto, 41 Cal.Rptr.3d 503.

(For more information on Bob Bruss publications, visit his
Real Estate Center

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