Donna Banda and Robyn Worthen v. City of Galveston

Opinion

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued September 14, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00331-CV

DONNA BANDA AND ROBYN WORTHEN, Appellants

V.

CITY OF GALVESTON, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 00-CV-0576

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 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 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

          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.

          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.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Justice Keyes, dissenting.