Andrea M. Alonso and Carl S. Sandel
*Originally published in the
New York Law Journal
September 24, 2012

The aftermath of Hurricane Irene in 2011 has given rise to a substantial increase in the number of lawsuits seeking to hold municipalities liable for property damage caused by flooding. In many cases the doctrine of sovereign immunity and the fact that flooding usually occurs after a supervening event outside of the municipality's control (such as a hurricane) may bar the plaintiff from recovery. This article explores the viability of the claims and defenses characteristic of cases brought against municipalities seeking to recover damages caused by flooding.

Sewer Systems

In determining what types of negligence claims are available relating to damages caused by municipal sewer systems, New York courts distinguish between claims based on the design of the sewer system and accidents stemming from negligent maintenance or construction of the sewer system.

New York courts have adopted the distinction established by the U.S. Supreme Court in Johnston v. District of Columbia.1 In Johnston, the court held that:

The duties of the municipal authorities, in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion ***[which] is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land.2

The court did recognize that a municipality could be held liable for damages caused by the negligent construction or repair of a sewer system because these municipal actions were ministerial as opposed to legislative:

But the construction and repair of sewers, according to the general plan so adopted, are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured.3

New York courts have repeatedly dismissed plaintiffs' claims that a municipal sewer system was poorly designed, or that it had too small a capacity to prevent flooding after a heavy rainfall.4 However, plaintiffs may recover for damage caused by flooding if they can establish that a sewer system suffers from construction defects or has been inadequately maintained.

Because of the difficulty of establishing that a potentially decades-old sewer system was defectively constructed, virtually all flood damage plaintiffs have sought instead to establish negligent maintenance on the part of the municipal defendant. Municipal defendants have typically been able to obtain summary judgment on these negligent maintenance claims if they can demonstrate that they conduct routine maintenance and inspection of their sewer system and the plaintiff proffers no evidence to the contrary.5 In contrast, evidence that, prior to the flooding, the sewers were visibly filled with large debris which had seemingly accumulated over a long period of time was sufficient to rebut evidence of regular inspections and raise a triable issue of fact in Pet Products v. City of Yonkers.6

In Holmes v. Incorporated Village of Piermont, engineering reports noting serious deterioration of the town's system coupled with the testimony of a plaintiff that he observed sewage in his driveway in the wake of Tropical Storm Floyd was sufficient to create a triable issue of fact regarding the plaintiff's negligent inspection claims.7

Evidence that a municipal defendant had actual notice of a blockage in its sewer systems but failed to take action between the receipt of the notice and the flooding of the plaintiffs' property may also be sufficient to overcome a defendant's summary judgment motion.8

One additional wrinkle in pending cases involving claims of negligent performance of ministerial governmental actions is the potential impact of the Court of Appeals' recent decision in McLean v. City of New York.9 In McLean, a decision of tremendous import to municipal defendants, the Court of Appeals held that a governmental agency was not liable for the negligent conduct of its officers absent the existence of a special duty between the governmental entity and the plaintiff.10 Since many lower courts did not require the establishment of a "special relationship" as a prerequisite to holding municipalities liable for negligent conduct prior to McLean,11 municipal defendants are likely to argue that the cases holding municipalities liable for negligent inspection of their sewer systems are no longer good law.

Water Main Breaks

Plaintiffs have also sought to hold municipalities liable for damages caused by burst water mains. Although municipalities have a duty to exercise care in the maintenance of their water main system, courts have been mindful of the practical problems inherent in maintaining a large network of underground pipes. In Gillette Shoe Company v. City of New York, the plaintiffs attempted to hold New York City liable for negligent maintenance of an approximately 75-year-old water main which broke, resulting in property damage.12 The plaintiffs' expert concluded that the pipe had been weakened based on the presence of a type of bacteria which was present in the surrounding soil.13 The expert contended that the bacteria could have been detected via the placement of cast iron "coupons" in the soil surrounding the water main.14 These coupons, once removed, would indicate if the bacteria were present in the soil.15

The First Department reversed a jury verdict for the plaintiffs and directed judgment in favor of the defendants, finding that the plaintiffs' proposed method of inspection was impracticable because it would effectively require the city to periodically unearth its entire piping system to perform the tests.16 The court concluded that liability could be maintained only where the city had some warning of a possible defect in a specific portion of its underground piping.17 Accordingly, plaintiffs seeking to establish that an inaccessible underground water main was negligently inspected should be mindful of the practical impediments they face if their claims would place upon a municipality the duty to periodically inspect a large network of inaccessible underground pipes.

Municipalities may still be held liable for water main breaks if the plaintiff can establish that inspections were performed negligently a short time before the break occurred. In K&S Realty v. City of New York, the city conducted inspections of a water main months before that water main broke.18 The inspectors had, but elected not to use, ground microphones designed to detect leaks.19 Despite finding that the use of microphones was discretionary and that there was no special duty to the plaintiffs, the First Department upheld a jury verdict for the plaintiffs, holding that the city was acting in a proprietary capacity as a water vendor rather than in its governmental capacity.20

Res Ipsa Loquitur

Some plaintiffs with flooded basements have tried to prevail on res ipsa loquitur theories of liability, with mixed results. In Bierniacki v. Village of Ravena, the Third Department reversed the denial of the municipal defendant's summary judgment motion.21 The court held that plaintiff's res ipsa loquitur argument based on the plaintiff's speculative lay testimony and the proximity of a municipal pipe near the basement was insufficient to raise a triable issue of fact in the absence of any expert analysis as to the source of the water in the plaintiff's basement.22

In contrast, in Pickersgill v. City of New York, the court allowed the plaintiff to establish negligent sewer maintenance via a res ipsa loquitur theory of liability based on his testimony that water had "backed up" into his basement through the pipes which connected his home with the defendant's sewer system during a storm.23 The court concluded that this backup could not have occurred but for the town's negligent maintenance.24

Given the possible inconsistency between Pickersgill and Biernacki, the viability of proving negligence solely via a res ipsa loquitur argument remains in doubt.

Plaintiffs who seek to establish municipal negligence based on a municipality's failure to remove a blockage from its drainage system face an additional hurdle to recovery in the form of statutes requiring that the city be provided with written notice of the obstruction before it can be held liable for failure to remove the blockage. For example, New York Village Law §6-628 immunizes villages from liability stemming from an out-of-repair or obstructed culvert unless written notice was given to the village clerk prior to the incident and the village failed to respond to this notice in a reasonable period of time. Courts have adopted a broad definition of the statutory term "culvert," defining it as "a conduit or tunneled drain conveying water across or beneath street or highway."25

The 'Act of God' Defense

Since flooding typically occurs after a significant rainfall, most defendants in flooding cases invoke the "act of God defense." Under this common law affirmative defense, defendants will be exempt from liability if they can demonstrate that the plaintiff's property damage was caused by a natural event outside of human control.26

While this defense may seem attractive to municipal defendants in flooding cases, New York courts have construed the act of God defense narrowly in recent decisions. In Pickersgill, the court rejected the defendant's claim that heavy rainfall, an "act of God," led to the backup of the municipal sewers into the plaintiff's basement. The court noted that "in order to invoke the Act of God theory of defense the city must establish that the weather conditions were so extraordinarily harsh as to not be anticipated by reasonable design engineers of the sewers."27 The heavy rainfall prior to the flooding of plaintiff's basement was deemed insufficient to meet this standard.

In Prashant Industries v. State, the Third Department applied a scientific approach when rejecting the defendant's "act of God" defense.28 The court concluded that the storm produced a water flow of 300 cubic feet per second.29 It then compared this figure to a "five year storm," (the most intense storm to occur in a typical five-year period), which would produce an estimated 580 cubic feet per second of water.30 This led the court to conclude that the storm in question was "by no means extraordinary and unprecedented," leading to the rejection of the "act of God" defense.31

Accordingly, attorneys relying on the act of God defense should be prepared to present the court with meteorological evidence establishing the unique or extraordinary features of the rainfall in question. This showing may be possible in cases stemming from damage caused during Hurricane Irene, one of the most damaging hurricanes in U.S. history, but may not be available in lesser acts of God.32

Andrea M. Alonso and Carl S. Sandel are partners at Morris Duffy Alonso & Faley. Michael Czolacz , a paralegal, assisted in the preparation of the article.

1. See   Biernacki v. Village of Ravena, 664 N.Y.S.2d 682, 683 (3rd. Dept. 1997).
2.   Johnston v. District of Columbia, 118 U.S. 19, 20-21 (1886).
3. Id.
4. See e.g., Biernacki, supra at 683;
5.   Briga v. Town of Binghamton, 778 N.Y.S.2d 545, 545-546 (3d Dept. 2004).
6. 736 N.Y.S.2d 699 (2d. Dept. 2002).
7. Holmes v. Incorporated Village of Piermont, 863 N.Y.S.2d 774 (2d. Dept. 2008).
8. De Witt Properties v. City of New York, 44 N.Y.2d 417, 424 (1978).
9. 12 N.Y.3d 194 (2009)
10. McLean, supra, at 199.
11. Signature Health Center v. State, 902 N.Y.S.2d 893, 906-907 (N.Y. Ct. Cl., 2010).
12. 86 A.D.2d 522 (1982)
13. Id. at 523.
14. Id.
15. Id.
16. Id.
17. Id at 524 [citing DeWitt Properties v. City of New York, 44 N.Y.2d 417, 424 (1978)].
18. 304 A.D.2d 349 (1st Dept. 2003).
19. Id.
20. Id. at 350.
21. Id. at 683-684.
22. Id.
23. Pickersgill v. City of New York, 642 N.Y.S.2d 469, 471 (Civ. Ct. Queens Cty. 1996).
24. Id.
25. DiLorenzo v. Village of Endicott, 333 N.Y.S.2d 456 (Sup. Ct., Broome Co. 1972).
26. See generally, Memphis & Charlestown RR v. Reeves, 77 U.S. 176 (1870) (recognizing that common carriers are not liable for unforeseeable forces of nature).
27. Pickersgill, 642 N.Y.S.2d, 469, 470.
28. Prashant Enterprises v. State, 614 N.Y.S. 2d 653, 654 (3d Dept. 1994).
29. Id. at 654.
30. Id.
31. Id.