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  1. #1
    Join Date
    Jul 2011
    Posts
    1

    Default Liability for Damage from Storm Water Easement

    My question involves an easement in the state of: New Jersey

    I live in a hilly neighborhood, about halfway down from the top of the hill. A small stream runs behind all of the houses on my side of the street. During a rain storm the water is directed under the street through storm sewers, turns left at my property and runs through a roughly 5-foot diameter pipe to my back yard (easement). Halfway into my back yard, it makes a 45-degree right turn (where there is a clean-out lid in my yard) and runs about 40 feet to the outlet, which directs the water to the stream bed.

    The town has an easement to maintain this pipe under my property. All was fine until a downpour last week. The storm water pipe clogged at the turn in my back yard, and overflowed, causing the iron lid to pop off and creating a raging river in my yard.

    The resulting damage was not terrible, but there was a lot of erosion that needs to be repaired - I estimate 2 loads of topsoil and some kind of small rock/stone retaining wall to prevent further damage.

    The town responded quickly to unclog the drain and restore the free flow of water, but I am left with the damage and mess all over my back yard. I estimate about $2,000 to repair, and I am certain this is not covered by insurance.

    Question: Simple logic tells me that the town should be responsible for the clean-up and repairs since it was caused by their negligence in maintaining "their" easement.

    Is this indeed the case, and it is supportable by legal precedent?

    If so, how do I pursue this if they continue to refuse any further responsibility?

  2. #2
    Join Date
    Sep 2005
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    Default Re: Liability for Damage from Storm Water Easement

    I expect that the municipality will claim (a) governmental immunity and (b) "act of God", and perhaps tell you to contact your homeowner's insurance. Have you in fact asked them for compensation? If not, why not ask?
    Quote Quoting NJSA Sec. 59:4-2. Liability generally
    A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
    a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

    b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
    Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
    I expect that you're correct, that your homeowners insurance will call this flood damage and decline coverage (I'm inferring that you don't have flood insurance).

  3. #3
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,376

    Default Re: Liability for Damage from Storm Water Easement

    I would recommend that you contact your elected town officials and follow up your contact with a written complaint about the damage. You could also contact your local newspaper or tv station, especially if the mess is a real eyesore.

    The law quoted by Mr. K appears to provide protection for the town, but there are avenues left to pursue a claim. The "reasonableness" clause would leave the town open to expert witness testimony (civil engineering) which could be telling in the instance that there was never any regular inspection and maintenance of the easement, or if the design were palpably defective.

    But that is just conjecture, as any legal action taken is going to well exceed the $2000 damage you have, and the burden of proof would be on you.

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