Alan Secures Judgment in Sewage Backup Case

A Superior Court judge has handed Alan’s client a substantial judgment in a sewage loss case.

The client, a homeowner in Lynn, experienced a backup of raw sewage in her basement during a heavy rainstorm in the fall of 2011. The sewage reached a depth of nearly a foot.  The basement was full of personal property, nearly all of which was destroyed. The lower third of the basement walls also had to be taken down to the studs and new wallboard installed.

Through public records obtained prior to suit, Alan learned that the sewer pipes upstream from the client’s home had a series of fissures that allowed both groundwater and stormwater to infiltrate into the sewage system. Sewage flowed generally downhill to a relatively flat area (known as the “easement”) immediately adjacent to the home, where its flow toward the sewage treatment plant was slowed considerably.  This was an area that presented recurring difficulties for the defendant sewer commission and thus required frequent cleaning.

The public records obtained pre-suit also disclosed that groundwater from the subdivision that was being developed upstream from the house was also contributing to inflow into the sewage system. City personnel inspected the subdivision parcel after the backup and found that groundwater from several manholes within the parcel was seeping into the system. They informed the developer of the parcel that the manholes needed to be sealed. The evidence showed that the city, as a condition of approving the subdivision development, insisted that the developer clean the easement, which its own inspection showed was consistently flowing above acceptable capacity.

The city, which asserted a cross-claim against the developer, defended the case at trial on several grounds.  It argued that the client and her late husband had signed an indemnity agreement in which they agreed to “indemnify and hold harmless” the city from any loss “arising from” maintenance or repair of the easement.  It also contended that the loss was effectively caused by the upstream developer’s failure to seal the manholes.

After a four-day trial—which included the testimony of eight fact witnesses and two expert witnesses – the court found that the city’s negligence caused the client’s loss. In its decision the court concluded that the city had long known that the easement area could contribute to a sewage backup in the client’s home, yet for years failed to enforce the subdivision condition against the developer.  It did find that the developer was 50 percent responsible for the loss.

The court found that the city could not use the indemnity agreement to protect itself from liability. The court accepted Alan’s arguments that (a) the agreement likely violated public policy, and (b) that even if it did not violate public policy, it could not be used to immunize the city from liability for negligence arising outside the easement area.


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