Storm Water Drainage and Subdivision Water Issues Craig
Storm Water, Drainage, and Subdivision Water Issues Craig S. Dillard Webb & Eley, P. C. P. O. Box 240909 Montgomery, Alabama 36124 Telephone: (334) 262 -1850 E-mail: cdillard@webbeley. com
Do Counties have a Duty to Provide & Maintain the Proper Drainage of Surface Water? �In Alabama, county commissions are authorized under Ala. Code 1975, § 11– 3– 11 to construct and operate sewer and drainage systems.
Although not required to exercise the authority provided in 11 -3 -11, counties are under a duty to exercise due care when: 1. A county designs and constructs a sewer and/or storm water drainage system, or 2. A county engages in the regular maintenance of a sewer and/or drainage system that it did not construct.
In other words, under Alabama law, in order to be potentially liable for negligence related to a drainage system’s maintenance or construction, a county must have: ownership and/or control of the drainage system at issue.
No Duty to Upgrade Existing System �Although a county has a duty to exercise due care in maintaining a drainage system that it has assumed the maintenance of, under Alabama law, the county does not have a duty to upgrade or improve the existing system. �A county’s duty to maintain is just that: �a duty to sustain the performance of the system as it was originally constructed to function
No Duty to Upgrade Existing System � For example, in Glisson v. City of Mobile, homeowner plaintiffs brought an action against the city alleging that after assuming the maintenance of a drainage system, it failed to properly upgrade, expand, and design it so as to accommodate expanding development of surrounding areas and that failure was proximate cause of water damage to homeowners’ house and property.
No Duty to Upgrade Existing System In Glisson, the Alabama Supreme Court affirming judgment in favor of city held the following jury instruction to be valid: [C]ity was not liable to property owners for increased flow of surface water over or onto property, arising wholly from changes in character of surface produced by opening of streets, building of houses, and the like, in ordinary and regular course of expansion of city.
Negligent Maintenance v. Negligent Design and Construction �Typically, in flooding cases, plaintiffs claim that the county either negligently maintained or negligently constructed a sewer and/or drainage system.
What Must a Plaintiff Prove to Support a Successful Claim for NEGLIGENCE? 1. 2. 3. 4. Duty Owed Breach of Duty Proximate Causation Damages
Negligent Maintenance: Negligent Design/Construction: �Each flood event is an abatable nuisance and gives rise to a separate cause of action. �The two-year statute of limitations starts over after each flooding event. �Treated as a permanent condition. �Statute of Limitations starts to run after the first flooding event. �The limitations period does not start over after subsequent flooding events.
Proof of Causation �In order to prevail on summary judgment, a county is not required to prove that the flooding at issue was not a result of its negligent maintenance or construction. �Rather, a plaintiff must present substantial evidence demonstrating that the county’s negligent behavior proximately caused the flooding that result in damage or his or her property.
Proof of Causation �For example, the Alabama Supreme Court in Byrd v. City of Citronelle held that the plaintiff’s expert did not describe specific facts that indicated negligent maintenance on the part of the defendant. � The Court explained that the evidence demonstrates “the existence of conditions having the potential to cause flooding, but, without more, it is not substantial evidence indicating any negligence by the City in maintaining the ditch. ” � The Court agreed with the trial court’s opinion that the expert’s affidavit was insufficient because it provided, “no explanation of what specific facts he used to form his opinion. ”
- Slides: 31