Callaway v. City of Odessa, 6913
| Decision Date | 11 June 1980 |
| Docket Number | No. 6913,6913 |
| Citation | 602 S.W.2d 330 |
| Parties | Weldon CALLAWAY et ux., Appellants v. CITY OF ODESSA, Appellee. |
| Court | Texas Court of Appeals |
The Plaintiffs sued the City of Odessa for damages resulting from the backup and overflow of sewage into their home. Trial was to a jury, which answered all the jury issues submitted in favor of the Plaintiffs. The Court then granted the City's motion for judgment non obstante veredicto under Rule 301, Tex.R.Civ.P., and a take nothing judgment was entered. The grounds in the motion, and the issues on appeal, present contentions of no evidence to support the jury findings, the defense of governmental immunity, the effect of the Texas Tort Claims Act, the City's defense against the alleged creation of a nuisance, and the two-year statute of limitations. We affirm.
The Plaintiffs, Weldon and Billie Callaway, purchased their home in Odessa in 1967. The City sewer line involved was in the alley behind the home, and had been maintained by the City as a part of its sewer system since that time. The Plaintiffs first encountered problems with the backup of the sewer about three or four years after moving into their home. They continued to have intermittent problems thereafter, most of which were of a minor nature, and repeatedly complained to the City. On June 26, 1978, they suffered a backup which caused damage to one of their bathrooms, and the City was again notified. Two days later, on June 28, 1979, a major backup occurred during the night, and the entire home was flooded with two or three inches of sewage. This resulted in considerable property damage to the home, and annoyance and discomfort to the Plaintiffs. Plaintiffs then brought suit against the City alleging, among other things, that the City was negligent in improperly maintaining the City's sewer line, that the City had created a nuisance which constituted a taking of their property, and they prayed for their damages. The City's answer alleged, among other things, that the City was immune to the suit as the operation of the sewer system was a governmental function, that it was still protected by the Texas Tort Claims Act, and that the claim was barred by the two-year statute of limitations.
By their answers to the issues submitting the Plaintiffs' theory of negligence, the jury, among other things, determined that (1) the City improperly maintained the City sewer line on or about June 28, 1978; (3) that such improper maintenance was negligence; and (4) that such negligence was a proximate cause of the Plaintiffs' damages. By their answers to the issues on the Plaintiffs' theory of nuisance, the jury determined (5) that the City was in exclusive control of the City's sewer line in question on or about June 28, 1978; (6) that the City allowed the City's sewer line to get out of repair on or about June 28, 1978; (7) that the City allowed the City sewer line in question to become a nuisance by the manner in which it was used; (9) that the City failed to abate the nuisance; (10) that the Plaintiffs suffered damages as a proximate (cause) of the nuisance; and (11) that August 22, 1976, was the beginning date on which the condition of the City sewer line began constituting a nuisance. By its answer to the damage issue 12, the jury determined that there was no permanent damage to the Plaintiffs' property; that the repair and replacement costs to various items was $5,107.44; and that the Plaintiffs suffered damages for annoyance and discomfort in the amount of $10,000.00.
In its motion for judgment non obstante veredicto, the City attacked the legal sufficiency of the evidence supporting the jury findings to special issues 1 through 11. Since the trial Court granted the motion, the Plaintiffs' first point is that the Court was in error, as each of the findings to those issues was supported by legally sufficient evidence. The City concedes the point, with the exception that it is not to affect its defenses raised by its subsequent reply points. For all practical purposes, this means that the City contests the finding that the sewer line ever became a nuisance. As later discussed, the City asserts that the evidence in the case was legally insufficient to justify any finding of nuisance under our present law. Since we will agree with that nuisance argument, we sustain the Plaintiffs' first point as to the jury findings, except for special issue number 7 and the subsequent ones insofar as they refer to the finding of nuisance. We also sustain the Plaintiffs' fourth point, and hold that the Plaintiffs' alleged cause of action on nuisance was not barred by the two-year statute of limitations. The jury determined by its uncontested findings that the nuisance began on August 22, 1976. The action complained of was in the nature of one of a continuing series of events, and it occurred within two years of the date the suit was filed, and damages were limited to that occurrence.
The Plaintiffs' evidence was to the effect that there was an obstruction of some sort in the City sewer which lay in the alley at a point some 93 feet down the alley; that a broken piece of the sewer pipe caused the obstruction; and that the City's maintenance or failure to maintain the defect had existed long enough for it to be a nuisance. This brings us to the real problem facing the Plaintiffs.
A municipality, such as Odessa, is immune from liability for negligence in the performance of governmental functions, except as may be otherwise provided by the Tort Claims Act, Art. 6252-19, Tex.Rev.Civ.Stat.Ann. It is also well settled that the maintenance and operation of a sanitary sewer system by a city is a governmental function. City of Texarkana v. Taylor, 490 S.W.2d 191 (Tex.Civ.App. Texarkana 1972, writ ref'd n. r. e.). Further, a municipality, although otherwise immune from liability, loses that immunity if the danger which caused...
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