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 firstname.lastname@example.org.
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.
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.