“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 email@example.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.