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Home My WebLink AboutE-mail from SB -Drainage Responsibility 08-02-20From:Susan H. Brock To:"Bill Goodman" Subject:RE: Drainage Responsibility Date:Friday, August 02, 2019 5:31:00 PM Bill, I began researching drainage issues shortly after we met on July 17 and have now done more research to synthesize the results. Here are the general rules. 1. Municipalities have no common law duty to control surface water runoff, control the natural course of surface waters, or keep streams free of obstructions they did not cause. (This rule is not about municipally installed/maintained drainage systems.) 2. Municipalities are immune from liability arising out of claims that they negligently designed a drainage system. A 2016 Third Department case (Watt v. County of Albany) rejected a claim that a county should have deepened a drainage ditch that overflowed and flooded plaintiffs’ property. The court said “to the extent that plaintiffs’ negligence claim alleges that defendant failed to adequately design or redesign the drainage system, it cannot be maintained. Decisions “ ‘determining when and where [drainage ditches] shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion ... [which] is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land’ ” (citations omitted). A 2017 Second Department decision likewise rejected a claim that a town should have improved or renovated a drainage system that periodically flooded plaintiff’s property over several decades, because that was really an inadequate design claim. But see #5 and #6 below. 3. Municipalities are liable for negligent construction of a drainage system. 4. Municipalities are liable for negligent maintenance of a drainage system. To avoid this liability, a municipality must routinely inspect the system, clear blockages and obstructions, and repair broken culverts, among other things. The municipality should document its inspections and maintenance activities. A municipality cannot wait for citizens to report problems—it must maintain “a reasonable degree of watchfulness.” 5. Because there is a duty to keep systems in good repair, some courts say that if a municipality learns of an inadequacy in its storm water drainage system, it may be legally bound to exercise reasonable care to timely address the inadequacy. This raised the following questions in my mind: Does this rule apply to flooding from ditches that once were adequate but no longer are due to now-increased stormwater amounts flowing through them? (So is this a way to get around the immunity for inadequate design?) Or does it apply only to problems in the physical infrastructure that are independent of stormwater volumes, such as blocked pipes/drains or rusted pipes that are more prone to burst? The answer appears to be that this rule applies in both situations. Some cases say if the construction of a drainage system was sufficient for its original purposes, but later became inadequate or overtaxed because of a change in conditions created by additional connections or change in street grade, the municipality can be held liable. This seems to be a way around the negligent design immunity. In the Watt v. County of Albany case, the Third Department did not talk about this #5 rule. But in examining whether the County was liable for negligent maintenance (#4), the Court seemed to say that maintenance could include widening a ditch that periodically overflows (which to me means an inadequate design might have to be addressed through “maintenance”—ditch widening). The County was not liable in the Watt case, because it had previously widened the ditch and done other things when the ditch had flooded in the past: “In support of its motion, defendant satisfied its initial burden of establishing that it made reasonable efforts to inspect and maintain its drainage system, primarily through the submission of deposition testimony from plaintiff Richard A. Watt and Robert Tanner, defendant’s assistant director of highway operations. Watt testified that, between 1999 and the 2011 weather event that gave rise to this action, overflow from the drainage ditch in question caused his property to flood on three separate occasions. Watt admitted that, when he contacted defendant’s highway department about these events, defendant’s regular response was to send a crew to clean out and attempt to widen the ditch. Indeed, Watt explicitly stated that the highway department was of “good assistance” and “seemed to be doing everything [it] could possibly do” to address the drainage issue. Tanner corroborated Watt’s testimony regarding defendant’s responsiveness to plaintiffs’ concerns, and he testified that the flooding resulted from a combination of torrential rainfall and the low-lying topography of plaintiffs’ property. He further stated that, in 2010, defendant had taken the additional step of regrading a portion of plaintiffs’ property in an effort to ameliorate the problem.” 6. Re: water flowing from the pipe under Updike Road onto Robert Nicholas’ property: A municipality is liable for damages caused by its affirmatively casting water upon a property, under theories of private nuisance and trespass. I think the Town would be liable under this rule for discharging the water onto Mr. Nicholas’ property. You said at our meeting that Jim said the Town has no liability, so you may want to ask him the basis for his statement. A few courts have used this rule #6 (liability for casting water onto a property) in a way that undercuts rule #2 (no liability for negligent design). These decisions do not directly discuss and discount the negligent design immunity shield, but the facts of the cases seem in essence to be about designs inadequate to contain drainage volumes. While none of these #6 cases deal with overflowing ditches, it is at least possible rule #6 could be used by a property owner whose property is flooded by an overflowing drainage ditch. I retrieved a number of cases and treatise sections dealing with drainage. Please let me know if you want me to send you any of them. Have a good weekend, Susan Susan H. Brock, Attorney at Law 12 Pheasant Way Ithaca, NY 14850 tel.: 607-277-3995 fax: 607-277-8042 brock@clarityconnect.com ******************************************************************** This electronic transmission contains legally privileged and confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone at (607) 277-3995 (collect) or send an electronic mail message to brock@clarityconnect.com. In addition, please delete all copies of this message from your computer. ******************************************************************** From: Bill Goodman [mailto:BGoodman@town.ithaca.ny.us] Sent: Thursday, August 01, 2019 2:00 PM To: Susan H. Brock <brock@clarityconnect.com> Subject: Drainage Responsibility Hi Susan, any luck with research on the Town’s responsibility/obligations re: road drainage that goes onto neighboring property? In addition to the issue on Updike Road I had mentioned, we’re getting emails now from a resident on Salem Dr. Thanks, Bill Ps – back from my trip now and noticed the email I just sent you about Jared and NCRE was still in my Outlook as a Draft so that’s why you hadn’t seen it last Friday. Still not used to the new user interface of Outlook.