“The sewer is backing up into my house…” “Grab the towels and a bucket!”

“Call the water department, maybe they can help!” “This smell is awful!”

Expletives fly, panic sinks in, and moving into a hotel seems like the only way to escape the nightmare. If this has happened to you, you are not alone. Fortunately, there is a path to reclaiming your home and your peace of mind. It is called the Oklahoma Governmental Tort Claims Act. 1 The “GTCA” was created by, you guessed it, the Oklahoma government in order to “(1) to promote prompt investigations, (2) to provide early opportunity for correction of dangerous conditions, (3) to promote speedy and amicable settlements of claims and (4) to permit the governmental entity to prepare for fiscal consequences.” 2 Sounds good, right?

As we all know, dealing with any government comes with obstacles. The GTCA is no different, but Buxton Law Group has been navigating through these hurdles on behalf of our clients for over a decade. This article explains some of the ways a municipality can prevent their sewer system from backing up and flooding homes and businesses before a problem arises. This should not serve as legal advice, but as a general guide for sewer backup victims. For more in-depth information or for a case review, contact our office or send an email to logan@buxtonlawgroup.com.

“I filed a tort claim but got denied…”

A common theme amongst municipalities and their insurance companies upon receipt of a Notice of Tort Claim is to deny it almost immediately. It probably says something like: “Oklahoma law has consistently held that a municipality is not an insurer of its sanitary sewer system.” This is their basis for denial, you ask? While it is not a valid reason to deny the claim, the statement is correct. The law, however, states that “[w]hen a municipal corporation assumes the control and management of a sewer system which has been constructed by it and under its supervision, it is bound to use reasonable diligence and care to see that such sewer is not clogged with refuse and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of such sewer.” They left that part out of their denial.

1 51 O.S. §§ 151 et al.
2 Calvert v. Tulsa Pub. Schools, Indep. Sch. Dist. No. 1 of Tulsa County, 1996 OK 106, ¶ 19.

There is good news, though. A denial means that the City has waived their 90-day immunity period and can now be sued. That leads to the next question: has every claim you are entitled to make after a sewer backup been included in the Notice of Tort Claim? Have you made claims for both property damage (negligent injury to property) and personal injury (nuisance)? The Notice of Tort Claim dictates what claims you can sue the City for, so they must all be included in order for you to obtain adequate compensation in a lawsuit. For more information on why these are so important to include, check out our previous article entitled “The sewer is backing up into my house…” Basically, you are leaving a lot of money on the table if you don’t include every claim in the Notice of Tort Claim.

What if the City never responded? Well, the Oklahoma legislature built in a rule for when that occurs. Your tort claim is deemed denied if the City has not admitted fault and paid your claim or explicitly denied it within 90 days. Many municipalities, hoping that you’ll be patient and allow all of the GTCA timelines to run, will simply allow 90 days to go by without so much as a response. They won’t tell you that your tort claim is inadequate, or that you are entitled to seek legal representation. They might tell you “it’s out of our hands now, we sent that to the insurance company when you gave it to us.” And then, as many have found out, the statutory deadlines pass and you cannot pursue legal action at all.

If you are lucky enough to be told, or vigilant enough to do your own legal research, you will find out that a lawsuit must be initiated within 180 days of the denial of your Notice of Tort Claim, whether it be expressly or by the passing of 90 days without a response. Six months may sound like a long time, but investigating the cause of the backup and obtaining all of the documentation to survive a motion to dismiss after filing is not a small task. Plus, if your tort claim needs to be revised to include all of the claims, you or your attorney will have to carefully calculate dates and file documents in a strategic manner to comply with the GTCA.

So, what should you do if your tort claim gets denied? Simple: call Buxton Law Group. Better yet, call us before you file a tort claim. We have represented sewer backup victims for more than a decade. Our knowledge of the GTCA, our trial experience and expertise, and our comprehensive understanding of sanitary sewer systems allows us to provide our clients with aggressive representation that is second to none. We will evaluate your case for free and inform you of every option you have, advise you on the proper way to proceed, and get you back on the road to recovery.

Oklahoma City v. Romano, 1967 OK 191, ¶ 9, citing City of Holdenville v. Griggs, 1966 OK 34.

If you find yourself in need of legal representation for a sewer backup matter, we are happy to discuss and review your case without charge.

For more information, check out some of our other articles on sewer backup litigation or give us a call. We’re here to help.

“The sewer is backing up into my house…” “Grab the towels and a bucket!”

“Call the water department, maybe they can help!” “This smell is awful!”

Expletives fly, panic sinks in, and moving into a hotel seems like the only way to escape the nightmare. If this has happened to you, you are not alone. Fortunately, there is a path to reclaiming your home and your peace of mind. It is called the Oklahoma Governmental Tort Claims Act. 1 The “GTCA” was created by, you guessed it, the Oklahoma government in order to “(1) to promote prompt investigations, (2) to provide early opportunity for correction of dangerous conditions, (3) to promote speedy and amicable settlements of claims and (4) to permit the governmental entity to prepare for fiscal consequences.” 2 Sounds good, right?

As we all know, dealing with any government comes with obstacles. The GTCA is no different, but Buxton Law Group has been navigating through these hurdles on behalf of our clients for over a decade. This article explains some of the ways a municipality can prevent their sewer system from backing up and flooding homes and businesses before a problem arises. This should not serve as legal advice, but as a general guide for sewer backup victims. For more in-depth information or for a case review, contact our office or send an email to logan@buxtonlawgroup.com.

“What should my city be doing to prevent sewer backups?”
The modern sanitary sewer system is far from bullet-proof.

Preventative Maintenance and Monitoring

Preventative maintenance is exactly what it sounds like: performing maintenance to prevent backups from occurring. This maintenance should not be done repeatedly and far in advance of any warning signs of a potential backup. The DEQ tells operators in their training manual that a good preventative maintenance can prevent up to 85% of sanitary sewer blockages. Sadly, most municipalities do not have a preventative maintenance program in place. This creates what is called responsive or reactive maintenance at best and a system with problems that the operator cannot keep up with.

1 51 O.S. §§ 151 et al.
2 Calvert v. Tulsa Pub. Schools, Indep. Sch. Dist. No. 1 of Tulsa County, 1996 OK 106, ¶ 19.

So, what goes into a preventative maintenance program? At its most basic, it requires operators to maintain an accurate map of the sewer system and create a schedule for monitoring the system. The term “popping manhole lids” gets thrown around a lot by operators, but do they really have a deliberate and methodical approach to the practice? Popping lids refers to the act of physically opening manhole lids in the sewer system to monitor flow. If one manhole is virtually empty, or “dry”, and the next manhole upstream is full, that is a clear indication that a line is blocked. Knowing what the normal flow rate looks like through repetition and familiarity with the system helps operators anticipate problems and resolve them before it’s too late. This cannot be a sporadic function of the municipal sewer workers; there must be a schedule where operators and their staff check every manhole in the system within a certain period of time, and more frequently in problematic areas.

Another way to monitor flow is at lift stations and at the lagoon or sewer plant, the “end of the line” so to speak. Lift stations are essentially sewer pumps that push sewage through the system where gravity alone is insufficient to do the job. At the plant, operators are tasked with treating the raw sewage so that it is free of harmful bacteria, parasites and viruses that can cause physical illness and environmental damage. Both the lift stations and the sewer plant should have functional flow monitors to accurately measure the amount of sewage coming through the lines and the rate of the flow. This can be tracked over time to reveal normal operating levels depending on the time of day or even time of year. Coupled with historical data, operators should be analyzing flow to see if there is a spike or drop in the amount and rate of sewage at a particular flow monitor, which is indicative of a possible problem.

Doing these little things can show sewer operators where the problematic areas in their system are. Armed with that knowledge, operators should set up a mechanical or chemical treatment schedule to counteract whatever issues are most common. For a list of those common issues, check out our recent article entitled “What causes a sewer backup anyway?” This is not to say that the entire system doesn’t need to be mechanically or chemically treated on regular basis, but problematic areas must be vigilantly treated. If there is no schedule to perform this type of maintenance in your municipality, you are tied to a sewer system that is destined for failure.

Municipalities should also have a replacement schedule, similar to a business accounting for depreciation of their assets. The sewer system is an asset of the municipality, and it will not last forever. Main lines have a life expectancy based upon manufacturers’ data and local environmental and usage data. That must be accounted for, with funds set aside to replace a main line at the end of its life expectancy. The same thing goes for every facet of the sewer system, such as pumps and equipment used to clean the lines like jet rodders.

Sanitary Sewer Evaluation Studies (SSES)

Municipalities need to know the integrity of their sanitary sewer system. Without that knowledge, they cannot adequately maintain the system and keep up with an infrastructure that is not designed to be self-sufficient. With advances in technology, there are many ways that a municipal sewer operator can test the integrity and function of the system and implement changes as needed. The simplest method of testing is a dye test, where colored dyes are introduced into one manhole, while other employee(s) monitor the manhole(s) downstream. This can be timed with a stopwatch to measure flow rate and, if the dye does not make it down the line, indicates a problem such as a blockage or crack in the line.

Smoke studies are another common version of an SSES. Smaller municipalities can get discounted or even free smoke studies from the Oklahoma Rural Water Association. Smoke studies are performed by blowing smoke into a manhole and watching to see where the smoke comes out. If smoke comes out of the ground in the general area where the line is buried, it shows that there are cracks in the main lines that allowed the smoke to escape (because smoke rises) and permeate through the soil to the surface. This is a clear indication of inflow and infiltration.

Cameras are another tool that municipal sewer operators should use to analyze the integrity of their system. These cameras come in all sizes and can be manually forced through the pipes or propelled by electric wheels or tracks like a remote-controlled toy car. Video evidence of blockages, cracks or other issues help operators visualize the problem so they can adequately address it. Many plumbing companies in Oklahoma offer some form of camera work to municipalities, and some government entities or their insurance companies offer grants to pay for the cost. Unfortunately, most municipal sewer operators don’t have a schedule for videoing lines in their system. Instead, they wait for a problem before sending in the camera, which could have already caused a sewer backup.

Finally, sewer operators should utilize the “SL-RAT” or Sewer Line-Rapid Assessment Tool. This little piece of technology works as an acoustic transmitter. One piece of the SL-RAT sends an acoustic signal, from inside a manhole, to another transmitter at the next manhole. The tool locates the particular section of line being studied with GPS and maps it for operators to review later. It also generates a score, from zero to ten, for how constricted or blocked the line is. A “zero score” means that no acoustic signal could reach the receiving transmitter, indicating a completely blocked line. This tool, as named, produces rapid results, some in as little as a few minutes. There is at least one municipal insurance group in Oklahoma that owns SL-RAT equipment, which is available to their insureds for free.

Oklahoma Sewer Lawyers has represented sewer backup victims for more than a decade. Our knowledge of the GTCA, our trial experience and expertise, and our comprehensive understanding of sanitary sewer systems allows us to provide our clients with aggressive representation that is second to none. If you find yourself in need of legal representation for a sewer backup matter, we are happy to discuss and review your case without charge.

For more information, check out some of our other articles on sewer backup litigation or give us a call. We’re here to help.

If this has happened to you, you are not alone. Fortunately, there is a path to reclaiming your home and your peace of mind.

It is called the Oklahoma Governmental Tort Claims Act. 1 The “GTCA” was created by, you guessed it, the Oklahoma government in order to “(1) to promote prompt investigations, (2) to provide early opportunity for correction of dangerous conditions, (3) to promote speedy and amicable settlements of claims and (4) to permit the governmental entity to prepare for fiscal consequences.” Sounds good, right?

As we all know, dealing with any government comes with obstacles. The GTCA is no different, but Buxton Law Group has been navigating through these hurdles on behalf of our clients for over a decade. This article explains some of the ways a municipality can prevent their sewer system from backing up and flooding homes and businesses before a problem arises. This should not serve as legal advice, but as a general guide for sewer backup victims. For more in-depth information or for a case review, contact our office or send an email to logan@buxtonlawgroup.com.

STEP TWO: “My sewer backup lawsuit against the city”

For many, it is hard to fathom getting to a point in any relationship where a person must resort to suing another person or entity to resolve a conflict. However, protecting yourself, your family and your property is about as American as it gets. And for all the misplaced stigma associated with suing another person or entity, there is only justice when those harmed by another stand up to hold them accountable. But when your own government caused the issues and refuses to accept responsibility, it is downright offensive. Fortunately for Oklahomans, there is a path for recourse. That is, if you play by their rules in the law they wrote, the GTCA. If you haven’t already, check out our article entitled “The sewer is backing up into my house…” to catch up on what steps are taken before you even find yourself in a lawsuit.

51 O.S. §§ 151 et al.
Calvert v. Tulsa Pub. Schools, Indep. Sch. Dist. No. 1 of Tulsa County, 1996 OK 106, ¶ 19.

Litigation 101

A “Petition” starts the litigation process after the Notice of Tort Claim has been denied. It is filed in the county in which your house is situated and served upon the municipality that was supposed to maintain and operate the sewer system properly. Then, the municipality or their insurance company will hire a lawyer that will be defending the suit, and he or she will deal with your attorneys on the case. There are three basic defenses that the municipality’s lawyer will employ.

As insulting as it is, their first defense is “WE DIDN’T DO IT!” This, we know in many cases, is just not true. This is because Oklahoma holds municipal sewer operators to what is known under the law as a “standard of care”. The Oklahoma Supreme Court has outlined the following as the standard of care for municipal sewer operators:

“When a municipal corporation assumes the control and management of a sewer system which has been constructed by it and under its supervision, it is bound to use reasonable diligence and care to see that such sewer is not clogged with refuse and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of such sewer.” 3 “The general rule is that where a municipal corporation assumes the control and management of its sewer system, which has been constructed by it and under its supervision, it is bound to use reasonable diligence and care to see that such sewer is not clogged with refuse and is liable for negligence in the performance of such duty to a property owner injured thereby after reasonable notice of the clogged condition of its sewer.” 4

Once the facts have established or at least shown to the municipality’s lawyer that there is no liability defense (aka “THEY DID IT!”), there will be another defense. This is the “WELL, WE DIDN’T HURT YOU THAT BAD” defense. As discussed in a previous article 5 , claims against municipalities have damage caps. The property damage is fairly easy to establish with remediation estimates, repair estimates, furniture replacement costs, etc. This is all subject to the GTCA limit of $25,000.00, so even if your home is going to cost more to fix, the municipality’s lawyer cannot legally offer more. So how are you made whole?

Oklahoma City v. Romano, 1967 OK 191, ¶ 9, citing City of Holdenville v. Griggs, 1966 OK 34.
City of Holdenville v. Moore, 1956 OK 34, ¶ 8

“The sewer is backing up into my house…”

From here, it’s all about the nuisance damages. Those are capped on a per person basis at $125,000.00 (or $175,000.00 for governments over with a population of over 300,000). 6 But how do you place a monetary value on annoyance, inconvenience and discomfort? Is being out of your house for months or wading through raw sewage in the middle of the night worth anything? What about the fear that it could happen again, or that future buyers will turn and run when you have to disclose the fact that the home has flooded with your neighborhood’s raw sewage? The answer from Oklahoma juries: a resounding YES!

But let’s not put the cart before the horse; it takes a long time from the date the Petition is filed to get in front of a jury. In the interim, there are many legal hurdles. First, the municipality’s lawyer is going to ask the judge to throw your case out with a motion to dismiss. When that fails, a scheduling order is put in place to let everyone know what the deadlines are. This is usually between six and nine months but can be longer. After that, they’ll write up a bunch of questions to ask you, call your neighbors, and subpoena records from anyone that had anything to do with the cleanup and repair of your home. This is called discovery. Then, they’ll ask your lawyer to present you for a deposition, which is where you answer live questioning under oath with a court reporter typing out the entire thing. They’ll use all that to, again, ask the judge to throw your case out with a motion for summary judgment.

Finally, after multiple failed attempts to make you or your claims look bad, the municipality’s lawyer may ask your attorney what you want to settle the case. Here is the last defense in response to your demand: “THAT IS WAY MORE THAN WE WOULD EVER PAY!” But is it? And more importantly, are they willing to risk that in a jury trial by your peers?

At Buxton Law Group, we don’t settle for any less than what our clients deserve. Multiple factors must be considered in evaluating a case, like how much property damage there is and what the damage cap is on a particular case. And settlement, while practical and reasonable in many circumstances, is not always feasible. Defense lawyers and municipalities know that litigation takes time to get to trial, and some prefer it that way. It is the hope of some municipalities that a sewer backup victim will get fed up with the long process and settle for a low-ball offer. We know their games, and if you find yourself here, we won’t stop fighting.

51 O.S. § 154

Litigation is never something that someone expects to find themselves in, especially against your own government. If you do find yourself in litigation, you need strong legal representation that is prepared to take your case to trial if necessary. Buxton Law Group will walk you through the entire process and fight to obtain the compensation you deserve after your house is destroyed by the negligence or the failing infrastructure of a municipality.

For more information, check out some of our other articles on sewer backup litigation or give us a call. We’re here to help.