OF JUDGMENT: 07/02/2018
COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. TRIAL
ATTORNEYS FOR APPELLANT: JOHN RAY GUNN PATRICK H. ZACHARY
ATTORNEYS FOR APPELLEE: WILLIAM ROBERT ALLEN JESSICA SUSAN
J. WILSON, P.J., McDONALD AND McCARTY, JJ.
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.
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
In light of the intervening change in the law, we reverse and
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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, ...