Sewer backups can become a memorable problem for a municipal government, and an expensive one for the responsible party. A sewage backup can damage or destroy a building’s floors, walls, electrical systems and contents quickly.
Deciding who is liable for the cleanup and repairs means determining where the backup originated — potentially inside the city-owned sewer main, or in the sewer connection between the city’s sewer main and the building, which falls under the property owner’s responsibility. When backups happen, public works staff need to know what to do, and even what to say. They also need to know what steps to take in the first place to prevent backups.
Inspection and maintenance
Ongoing inspection and maintenance of a sewer system can help prevent backups, and documenting those efforts can help a city reduce its legal risks. Cities should develop a formal written plan for inspections, cleanings, repairs and customer calls, while considering that staff resources limit how frequently they can perform checks.
Consider, for example, a plan that requires inspecting 25% of the entire system each year, meaning that a system-wide inspection occurs every four years. From one inspection to the next, a problem can occur, but even if the city had not reached this line yet, or the flaw was not there the last time it was inspected, having documentation would be better than having to testify in court that there was no inspection process in place.
Communicating before a backup
Municipalities can be proactive about backups with communication materials that explain the causes of sewer backups. This can be educational material that explains how sewer users should keep items that can clog systems — especially cooking grease — out of their drains.
Communicating after a backup
The communication efforts of city staff play a key role in whether a backup turns into a lawsuit. Cities can also risk accepting fault in a situation where they were not at fault, depending on how staff communicates about the issue.
Employees should be familiar with the city’s recovery policies and procedures, and be able to answer questions about what steps the city will take after a problem. However, they should avoid premature discussions about who has liability in a particular case, since an insurance claims adjuster needs to investigate who has liability.
A good approach is for officials to encourage a property owner to work with a disaster restoration company, and indicate that the city’s insurance provider will investigate the claim. The city should not become involved in any aspect of the aftermath if the homeowner will not sign a non-waiver-of-defenses agreement. This puts in writing that the homeowner acknowledges any city assistance does not mean the city is admitting liability for the incident.
Cases where the city is likely liable
A court is likely to hold a city liability for damages in a case where its actions are believed to have caused the backup. For example, if public works staff used excess water pressure when cleaning a sewage line, a court could find that this action backed sewage up into a home, or if workers incorrectly installed the city’s lines in a way that clogged them.
Other cases where the city is likely liable are those when it had notice that a problem existed, but did not correct it. For example, a resident could call to report a backup, but the city did not act in a timely manner, or an inspection identified a problem, but the city took no action. Documenting the issue, properly communicating about it, addressing it and documenting the steps the city took are all critical for minimizing liability.
For more information on managing sewer backups, contact Municipal Association of SC Risk Management Services loss control staff.