Sewer damage liability disputed

By Marlena Hartz: CNJ staff writer

MULESHOE — Todd Shipman woke up one November morning not to a sound, but to a smell. He stepped out of bed into a swamp of sewage which reached to his ankles.
“It just kept coming,” the Muleshoe resident said, “through the faucets, the toilet, the bathtub and the shower.”

He and his friends, as well as a company he hired from Lubbock, spent a month cleaning up the damage. But just as Shipman, his wife, and his three boys were ready to move back into their home, the sewage line ruptured again, filling his three-bedroom home with potentially hazardous, black sewage.

The second eruption left his family homeless during the holidays. If his wife’s grandmother hadn’t opened her doors to the family, and if his own grandparents hadn’t helped monetarily, Shipman said he and his family “would have lived on the streets.”

To add insult to injury, neither his insurance company nor the city of Muleshoe, who owns and maintains the line, would pay for the damages to his home. His insurance policy with Germania Insurance covers water damage, but not sewage damage, he said. And under Texas law, the city of Muleshoe is free from any financial responsibility.

“I feel like we haven’t been treated fairly,” Shipman said. “I don’t know why (the city) would not take responsibility when this stuff came from their sewage line.”

Shipman’s home was among three which were damaged when the roots of a tree obstructed the city’s clay tile mainline, causing sewage to pour out of toilets, faucets, and shower heads, according to Muleshoe City Manager David Brunson.

The city has since addressed the problem, he said, by chopping the roots of the offending tree, treating them with a strong chemical, and adopting a maintenance program.

The insurance firm the city hired, called the Inter-governmental Risk Pool, denied the Shipman’s damage claim, Brunson said.

Furthermore, a common law in Texas and most other states, referred to as sovereign immunity, protects cities from being sued, according to Brunson and local attorneys.
“It’s basically called the king can do no wrong,” said attorney Michael Garrett, who practices in Clovis and Texas, and said a similar statute applies in New Mexico.

“Under the doctrine of sovereign immunity, the state of Texas is immune from liability and from suit with respect to most causes of action,” which means it cannot be sued in its own courts without the legislature’s consent, according to the University of Texas Office of General Counsel.

The Texas Tort Claims Act provides some exceptions. For instance, if a motor vehicle or motor-driven city equipment caused the damage, the city could be liable.

But governments are generally not held liable for negligence or a wrongful act if they are performing proprietary duties, Garrett said.

Operating a sewage line is indeed a proprietary duty, said Brunson, who believes such immunity is absolutely essential.

Without it, he said cities would be paralyzed.

“If cities were not protected from some liability they would be more hesitant about building subdivisions, building parks, building roads,” Brunson said.

“Cities,” he said, “don’t have money. We manage the citizen’s money.”

Shipman and his family are left feeling betrayed.

“It’s (city immunity) terrible,” said Shipman’s grandmother and landlord, Bettie Fitzgerald, a resident of Clovis. “People ought to get after them.”

She estimates she and her husband, who are retired, and her grandson, who owns an auto-body shop in Muleshoe, will have spent about $10,000 on repairs to their home, not including the cost of replacing property, including mattresses and furniture, which were ruined by the sewage.
“We are very strapped right now,” Shipman said. “The city doesn’t want to stand behind us.”

The family hopes to move back into their home sometime this week, Shipman said, with fears of another disaster lingering in their minds.