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Reducing Liability for Sewer Backups

Since sewer blockages and backups can lead quickly to standing sewage inside of a home, they are among the most dramatic ways that public works infrastructure can fail. And considering they can be very expensive, damaging floors, walls, electrical systems and belongings, they will immediately lead to discussions about who has responsibility for the damage. 

Did the backup, for example, occur in the city-owned sewer main, or did it occur in the sewer connection, which falls under the homeowner’s responsibility? City personnel need to know what to do and what not to do both before and after these backups occur. How the city and its employees handle these situations often determines whether the municipality is in fact liable for any damages.

Before the backup happens 
Damage created by sewer backups can lead to legal challenges. The municipality can manage risk in these cases by being able to show that it engaged in ongoing inspection and maintenance of its system, and can sometimes stop the backups before they ever happen. The key step is to develop a formal plan and follow it, while keeping in mind the city’s limited resources for inspection.

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. Problems could still occur in the portions not inspected in a given year, but the plan can still help with legal challenges. Even if the city had not reached this line yet or the flaw was not there the last time it was inspected, that would be better than having to testify in court that there was no inspection plan in place. 

The city should document its inspection plan, results and any customer calls. Documentation will show the precautions taken to avoid the mishap. 

Communicating after a backup 
When backups occur, city employees need to be aware of the city’s recovery policies and procedures and be able to communicate them to residents. Standing in the thick of a sewage mess, it can be tempting for staff to give assurances to the property owner that the city will handle the problem. 

The best approach, though, is to encourage the homeowner to contact a disaster restoration company, and note 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 municipality is likely liable 
The city will likely be held liable for damages in cases where its actions cause a backup. For example, if the city uses excess water pressure when cleaning a line, it could back sewage into a home, or if it incorrectly installs pipes in a way that clogs 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. Alternately, an inspection could identify a problem, but the city took no action. In these cases, documenting the issue, properly communicating about it with necessary staff, addressing it and documenting the steps the city took are all critical for minimizing potential liability. 

For questions, contact John Ciesielski, loss control consultant, at or 803.354.4752.