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Reverie Boutique LLC v. City of Waynesboro

Court of Appeals of Mississippi

October 29, 2019


          DATE OF JUDGMENT: 07/02/2018





          MCCARTY, J.

         ¶1. Reverie Boutique was flooded by sewage and alleged that it had lost tens of thousands of dollars of inventory because of it. The business sued the City of Waynesboro based on the premise that it was negligent in maintaining its sewer. The City conceded that for decades it had known of breakdowns in the sewage system, never corrected them, and lacked a written maintenance plan, but the City maintained that this was within its discretion.

         ¶2. The trial court found that the City was immune from suit and granted summary judgment. But just a few days before that ruling, the Mississippi Supreme Court overhauled the test to determine when negligence suits like this one could go to trial.

         ¶3. In light of the intervening change in the law, we reverse and remand.


         ¶4. The core facts of this case are not in dispute. Reverie Boutique was a family business owned by three women-two aunts and a niece. The store, located on Wayne Street in downtown Waynesboro, offered clothing and furniture. In the few years it had been in business, Reverie's owners had never had any problems with the toilets or sewer or even had to call a plumber, and no one could remember the location having problems before they moved in.

         ¶5. One week in 2015, the storeowners traveled to Dallas to purchase inventory. There were heavy rains that week in Wayne County. The store's salesclerk went in to open Reverie on Friday morning. After opening the door, she stepped in a puddle. The store was filled with wastewater. The sewer system had backed up, flooding the store with sewage. The backflow had come up from the boutique's toilets, which brought with it toilet paper, grass, rocks, and dirt.

         ¶6. The City responded by bringing a pump truck to force pressure through the pipes. After opening a manhole in front of the store, several city employees saw a commercial mophead shoot through the pipe, never to be seen again.

         ¶7. By the time of the foul flood in 2015, parts of the aging sewer system had been crumbling for decades. The sewer was intended to be a closed sanitary system; it was only intended to contain what was flushed into it by the homes and businesses of Waynesboro. That refuse would then flow through pipes to a local treatment center, which was permitted to process 2.25 million gallons of sewer waste a day.

         ¶8. Although this was the idea, it had not worked like this for many years. There was testimony that the original pipes of the sewer system were made out of clay, and sometimes concrete, and were eight inches in diameter. Over the decades, the noxious gases from the waste in the sewer would cause the pipes to sometimes completely disintegrate.

         ¶9. A former public-works director Joseph Walley explained that "when they put sewer lines in back in the '40s and '50s, they thought it was the best thing in the world. And then they found out the sewer gas eats the line out of the concrete, and we would dig them up and actually just have a trough the water would run in." In place of full pipes running through the sewer system, "[t]here would be nothing on top other than an open hole." This blank space would occasionally collapse like a miniature cave-in.

         ¶10. When the crumbling happened and was discovered, the City would "dig the pipe up and replace . . . the section till you got back to where there was a section you could tie into" with structurally sound pipe, according to Walley. "Sometimes it might be ten feet," and "[s]ometimes it might be a hundred feet." The City would dig until it found a stable section of pipe and then replace it with a thick PVC pipe. Another former public-works director Harvey Hull described the replacement pipe as "some of the best they got on the market now." Even when parts of a pipe might be missing, Hull explained the sewer might still generally carry wastewater because "the dirt will form what you have left up there," unless the pipe was put under heavy pressure.

         ¶11. In addition to the concentrated sewer gas, the City struggled against nature's growth. Roots were a problem for the clay and concrete pipes because the inexorable growth of trees and plants downward would intrude upon pipes, crack them, and then keep going. According to Walley, this was the primary problem because the City would "have to pull out sections of roots and then replace the lines after we got the roots out."

         ¶12. There was also the strain of population and business growth. More and more houses and businesses were hooked into the aging system, so even more waste was being pushed through pipes that had remained the same size since installation.

         ¶13. So even though the system was built to be a closed sanitary system, over years of natural decay and natural intrusion, it no longer worked that way. Multiple city workers testified that in their careers they had spotted various foreign objects in the "closed system"-inorganic matter like basketballs, bottles, and cans, and organic matter like turtles, snakes, frogs, and fish. These visitors could only come through breaches in the ideally closed system.

         ¶14. All parties agreed that one problem was runoff water from rain, or stormwater. One blunt way a city worker explained how to tell if there was stormwater in the drains was that the flow would run clear-since of course normally it would be a dark color. Waynesboro had a long history of the sewer system's manholes "boiling over" and coming up from the clogged pipes below. Even before Walley began working for the City in the late 1970s he remembered a manhole running over. In this way the manholes had been acting as release valves for an overfilled sewer, jammed with excess.

         ¶15. The City even had a measurement of just how over-filled the ideally closed sanitary system could get. The supervisor of the wastewater treatment plant, Rodney Parker, explained that the City's permit allows for a flow of 2.25 million gallons a day. On a usual day, the flow was only about 800, 000 gallons, which was well under the permit. But if there was "heavy rain" for a couple of days, the flow would "jump up to five million gallons[.]" It could be higher than that, but the flow meters could not calculate above a certain measurement. The plant supervisor explained, "I've had it so high we couldn't record it." Because this was a violation of their treatment permit, the Mississippi Department of Environmental Quality (MDEQ) had notified the plant and sent letters to the mayor but had never threatened to fine the City over the excess.

         ¶16. In the past, the City had tried to find the infiltration points. It had conducted a smoke test, pumping smoke through the pipes and hoping to see it puff out aboveground. At the same time, it ran cameras underground to try to find the breaks. Its efforts failed, ...

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