 

 

000553
 COURT OFAPPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95—00030-CV

David Winsman, Appellant
v.

City of Austin, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
N0. 216,901, HONORABLE STEVE RUSSELL, JUDGE PRESIDING

PER CURIAM

Appellant David Winsman sued appellee City of Austin for property damage
sustained when a sewer pipe operated and maintained by the City collapsed and raw sewage
flowed into his home. The trial court granted summary judgment in favor of the City, and

Winsman appeals. We will reverse in part and afﬁrm in part the trial court’s judgment.

Standard of Review
In reviewing a summary judgment record, this Court obserVes the following rules:
(1) the movant for summary judgment has the burden of showing that there is no genuine issue
of material fact and- that it is entitled to judgment as a matter of law; (2) in deciding whether a
disputed- material .fact precludes summary judgment, evidence favorable to the non-movant will

be taken as true; and (3) every reasonable inference must be indulged in favor of the non—movant

 

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and any doubts resolved in its favor. Nixon v. Mr. Property Management Co. , 690 S.W.2d 546,

548-49 (Tex. 1985).

Negligence

By point of error one, Winsman asserts that the trial court erred in granting the
City’s motion for summary judgment on the issue of negligence. A municipality is immune
from liability for its negligence in performing governmental acts except to the extent provided
by the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West
1986 & Supp. 1995); Duhart V. State, 610 S.W.2d 740, 741 (Tex. 1980); City of Houston v.
George, 479 S.W.2d 257, 258-59 (Tex. 1972). The operation and maintenance of a sanitary
sewage system by a city is a governmental function for which liability may be imposed, provided

that the speciﬁc requirements of section 101.021 of the Texas Tort Claims Act'are met. See

Tex. Civ. Prac. & Rem. Code § 101.0215(a)(9), (32) (WestSupp. 1995); Shade v. City of

Dallas, 819 S.W.2d 578, 581 (Tex. App.—Dallas 1991, no writ). Section 101.021 provides that

a governmental unit is responsible for:

(1) property damage, personal injury, and death proximately caused by the
wrongﬁtl act or omission or the negligence of an employee acting within the
scope of employment if.

(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor—driven equipment,
and ‘

the employee would be personally liable to the claimantaccording to
Texas law . . . .

(B)

Tex. Civ. Prac. & Rem. Code § 101.021 (West 1986) (emphasis added).

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00055"?

Winsman claimed in his response to the motion for summary judgment that the

_ City is liable for the property damage he sustained because the operation and maintenance of _ the

sewage line involves motor-driven vehicles and equipment. The motor-driven vehicles and
equipment involved includes (1)" a pump that lifts sewage to a lift station, (2) motor-driven
blowers that suck gases such as hydrogen sulﬁde out of a manhole before utility employees
enter, and (3) motorized trucks that carry cameras which televise the interior of the sewer
lines.1

The City, citing State Department of Highways v. Payne, 838 S.W.2d 235 (Tex.
1992), asserts that the decision whether particular equipment is motor-driven equipment
contemplated by the statute is a question of law rather than fact. Id. at 238 (whether special
defect exists is question of law). We agree.

Section 101.021 broadly waives liability for property damage caused by the
operation or use of motor-driven equipment. Section 101.001(3) deﬁnes "motor-driven

equipment" by exclusion:

Motor—driven equipment does not include:

(A) equipment used in connection with the operation (if ﬂoodgates or water
release equipment by river authorities created under the laws of this state;
.or '

' (B) medical equipment, such as iron lungs, located in hospitals.

1 Although the evidence conﬂicts, it appears that the motor involved is the winch motor that

pulls the television camera through the line’s interior. To the extent that it is not, the truck is

clearly a motor-driven vehicle under section 101.021. '

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000555

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (West 1986). As noted by the court in 4
DG'S Corp. v. City ofLockney, 853 S.W.2d 855, 856 (Tex. App—Amarillo 1993, no writ), the
term "equipment" includes "the implements (as machine or tools) used in an operation or
aetivity." Id. at 857; Webster’s Third New International Dictionary 768 (Philip B." Gove, at,
1986). The pump, blower, and truck ﬁt within the ordinary deﬁnition of "equipment."

We also believe that, by expressly excluding equipment used in Connection with
the operation of ﬂoodgates or water release and medical equipment, the legislature impliedly
included similar types of motor-driven equipment. State v. Richards, 301 'S.W.2d 597, 600
(Tex. 1957) (speciﬁc exceptions make plain legislature’s intent that statute should apply in all
cases not excepted). We hold that, as a matter of law, the term "motor—driven" equipment as
used in section 101.021 could include the sewage pump, the blower, and the truck.2

"On appeal, Winsman argues that although the City’s summary judgment evidence
established that the pipes collapsed because they had deteriorated due to the presence of
hydrogen sulﬁde gas in the sewer, the City failed to show that the presence of hydrogen sulﬁde
gas was not attributable to the motor-driven vehicles or equipment used in operating and
maintaining the lines. We agree. The City’s summary judgment evidence showed that hydrogen
sulﬁde is "usually" caused by some type of septic sewage that corrodes the concrete pipe. The
testimony of an interested witness or an expert offered to support a summary judgment may be

relied upon only if the evidence is clear, positive and direct, otherwise credible and free from

2 We decline to follow the court in Schaefer v. City of San Antonio, 838 S.W.2d 688' (Tex.
App—San Antonio 1992, no writ), which, in dicta, stated that a water pump was not motor-
driven equipment under the statute. Id. at 693.

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000557. .

contradictions and inconsistencies, and could have been readin controverted. Tex. R. Civ. P.
1.6_6a(c); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). The testimony that hydrogen
sulﬁde is "usually" caused by septic sewage is not clear, positive and direct: it leaves open the
possibility that hydrogen sulﬁde may be otherwise created, and does not negate Winsman’s
assertion that the buildup of gas may have been exacerbated by the use of the pump, the blower,
or the truck. At no point did the City attempt to negate Winsman’s assertion that motor—driven
equipment was involved in the accident.

We do not address Winsman’s other arguments under this point of error because
we conclude that the evidence does not prove that the operation or use of motor—driven vehicles

or equipment didnot cause the pipe to break.3 We sustain point of error one.

Nuisance
I ‘ P By point of error two, Winsman asserts that the trial court erred in granting the
City’s motion for summary judgment on the issue of nuisance. Nuisance is an action that looks

atthe damage or harm inflicted rather than the particular type of act or omission.‘ A nuisance

3 The city asserts that Callaway v. City of Odessa, 602 S.W.2d 330 (Tex. Civ. App.—Ei
Paso 1980, no writ), is dispositive'of this case. In Callaway, as in this case, homeowners sued”
for damages resulting from the backup and overﬂow of sewage into their home. While
Callaway does stand for the proposition that a city is not liable for negligence unless liability is
waived, the plaintiffs in Callaway did not allege that the negligence involved motor-driven
equipment or vehicles. Once that allegation was made, it became the City’s responsibility to
rebut it with proper summary judgment evidence. 4 19619 Corp. v. City of Lockney, 853
S.W.2d 855, 856(Tex. App—Amarillo 1993, no writ).

4 See City ofTexarkana 1!. Taylor, 490 S.W.2d 191 (Tex. Civ. App.—Texarkana 1973, writ
ref’d n..r.e.)_, for a discussion of the vagaries of the theory-behind a cause of action for nuisance.

 

000558

is a "condition which substantially interferes with the use and enjoyment of land by causing
unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and
enjoy it." Bible Baptist Church v. City of Clebume, 848 S.W.2d 826, 829 (Tex. App—Waco
1993, writ denied); Neyland v. Schneider, 615 S.W.2d 285, 286 (Tex. Civ. App.-—Eastland
1981, no writ); Meat Producers, Inc. v. McFarland, 476 S.W.2d 406, 410 (Tex. Civ.
App—Dallas 1972, writ ref’d n.r.e.).

Governmental immunity does not shield municipalities from liability arising from
the creation or maintenance of a nuisance. Gotcher v. City of Banner-smile, 151 S.W.2d 565,

566 (Tex. 1941);'Bible Baptist Church, 848 S.W.2d at 829; Shade v. City of Dallas, 819

S.W.2d 578, 581 (Tex. App.—~—Dallas 1991, no writ); City of Texarkana v. Taylor, 490 S.W.2d

191, 194 (Tex. Civ. App.--Texarkana 1972, writ ref’d n.r.e.). A municipal corporation has
no more right to create or maintain a nuisance than does a private person. Stein v. Highland
Park Indep. Sch. Dist, 540 S.W.2d 551, 553 (Tex. Civ. App-.—Texarkana 1976, writ ref’d
n.__r.e.). To constitute a nuisance coming within the exception, however, the condition must in
some way constitute an unlawful invasion of the property or the rights of others. Gotcher, 151

S.W.2d at 566; Shade, 819 S.W.2d at 581. And, since a municipality is immune from

negligence except to the extent provided by the Tort Claims Act, invasion of those rights must"

be inherent in the thing or condition itself, beyond that arising merely from its negligent or
improper use. Parson v. Texas City, 259 S.W.2d 333, 335 (Tex. Civ. App.—'Fort Worth 1953,
writ ref’d); City of Texarkana v. Taylor, 490 S.W.2d 191, 194 (Tex. Civ. App.—Texarkana

1972, writ ref’d n.r.e.); Jone-s v. City of Dallas, 451 S.W.2d at 274; Steele v. City of El Paso,

 

 

 

 

 

000.553.

417' S.W.2d 923, 924 (Tex. Civ. APP." El Paso 1967, writ ref’d n.r.e.). One cannot convert
a cause of action for negligence into an action for nuisance simply by so pleading. Steele, 417
S.W.2d at 924. The test is whether the damage would have occurred in the absence _of any
negligence. See, e.g., Schneider v. City of Guam, 749 S.W.2d 614, 618 (Tex. App._—Corpus
Christi 1988, writ denied).

In this case, the City’s summary judgment evidence showed that the line collapsed
because it had been corroded by hydrogen sulﬁde gas. Winsman complains that because the
evidence showed that hydrogen sulﬁde gas was "usually" produced by sewage, a question of fact
exists about whether the problem was caused by the City’s negligence or by a condition inherent
in the sewer system itself. See Bible Baptist Church, 848 S.W.2d at 830 (reversing summary
judgment in favor of city because fact issues existed regarding whether condition of sewage line
rose .to level of nuisance); Shade, 819 S.W.2_d 581 (reversing summary judgment because it was
unclear whether sewage backup was caused by problem inherent with line or negligence in
installation).

However, although sewer lines ordinarily contain corrosive hydrogen sulfide gas,
sewer lines do not ordinarily collapse. The City’s summary judgment evidence showed that only
one other line had collapsed due to hydrogen sulﬁde corrosion in the nineyears prior. Further,
the evidence showed that while most mains are designed to last for forty to ﬁfty years, this line
collapsed after only ten. Finally, the City implements a program to detect corrosion to prevent
such breaks. We conclude that the damage would not have occurred in the absence of
negligence. If the City is responsible at all for the line’s collapse after the completion of only

twenty to twenty-five percent of its anticipated useful life, the City must have been negligent'in

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approving or maintaining the lines We hold that on these facts, the only cause of action
presented is one for negligence. See Rowe v. City of Temple, 510 S.W.2d 173, 174—5 (Tex.
Civ. App.—Beaumont 1974, no writ) (instructed verdict on nuisance claim proper when theory
was that city employee had negligently disconnected him from city’s sewer line); Steele v. City
of El Paso, 417 S.W.2d 923, 924 (Tex. Civ. App.-—-—El Paso 1967, writ ref’d n.r.e.) (directed
verdict proper when inherent danger causing sewage backups not adequately pleaded or proven);
Jones v. City of Dallas, 451 S.W.2d at 274 (summary judgment appropriate when no inherent
danger or defect existed); compare City of Uvalde v. Crow, 713 S.W.2d 154, 157 (Tex.
App.—'Texarkana 1986, writ ref’d n.r.e.) (city liable for nuisance when evidence Showed that
it'discharged polluted efﬂuent in normal weather and under normal operating conditions). Point

of error two is overruled.

We reverse the trial-court judgment with regard to the negligence cause of action,
and remand that portion of the cause to the trial Court for'proceedings'consistent with this

opinion. The remainder of the trial-court judgment is afﬁrmed.

Before Justices Powers, Kidd and B. A. Smith
. Afﬁrmed in Part; Reversed and Remanded in Part
Filed: October 11, 1995

Do Not Publish

5 The line was manufactured, selected, and installed by other entities.

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