Court of Appeals of Texas, Second District, Fort Worth
THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
WALKER, MEIER, and GABRIEL, JJ.
MEMORANDUM OPINION 
primary question in this interlocutory appeal from the denial
of Appellant The City of The Colony, Texas's
jurisdictional plea is whether a nexus exists between the
City's use of a "Vac" truck to clear a blockage
in a sewer main and the property damage that Appellees Mark
and Kim Rygh sustained when their residence flooded with raw
sewage. Because we resolve that question in favor of the
City, and because the Ryghs did not otherwise establish a
waiver of the City's governmental immunity, we will
reverse and render a judgment of dismissal.
morning of April 23, 2014, the Ryghs awoke at their residence
at 4033 Heron Cove Lane to discover that their toilets were
stopped up and would not flush. Kim left around 7:15 a.m. to
take her grandson to school, but she was back home by 7:30
a.m. Between then and 8:00 a.m., her residence "was
completely flooded with raw sewage coming up from the toilets
and the showers."
at 7:15 a.m., Kim Rygh's neighbor Jimmy Harper notified
the City that the "overflow" pipe on the side of
his house at 4041 Heron Cove Lane was expelling sewage into
his yard. The City promptly responded by dispatching members
of its Water Distribution/Sewer Collection Division of its
Public Works Department to the area.
in the following image by a brown line, a 15" sewer main
runs under Heron Cove Lane and beyond that street's cul
de sac through an unimproved area, with manholes located at
the intersection of Heron Cove Lane and Avocet Way (marked
X-1), at the entrance of the cul de sac on Heron Cove Lane
(marked X-2), and at an unimproved area southeast of Holden
Circle (marked X-3):
by the City, the sewer main is "entirely gravity flow,
" flowing downstream in a northeasterly direction, as
denoted by the arrows in the image along its route.
Residential properties tie in to the sewer main via lateral
lines. The Ryghs' residence is adjacent to the manhole
located at the intersection of Heron Cove Lane and Avocet Way
employee Marco Chavez arrived in the area around 7:30 a.m.
and noticed sewage flowing out of the manhole located at the
intersection of Heron Cove Lane and Avocet Way (X-1).
Suspecting that the sewer main had a blockage, and knowing
that the sewer main flowed downstream in a northeasterly
direction, he determined that the blockage had to be located
at some point northeast of the manhole, causing sewage to
back up towards the residences located upstream along Heron
Cove Lane and into their laterals.Chavez therefore headed to
the next downstream manhole-located at the entrance of the
cul de sac on Heron Cove Lane (X-2)-but it too was full of
sewage. Chavez then made his way to the unimproved area
southeast of Holden Circle-where the next downstream manhole
is located (X-3)-but he was unable to open the manhole
because it was covered with brush. Chavez radioed Hollis
about the condition of the manhole and returned to Heron Cove
Lane to check on the upstream manholes.
Hollis arrived at the unimproved area southeast of Holden
Circle, he cleared the brush from around the manhole, opened
it, and discovered that it was dry inside, meaning that the
blockage was located somewhere between that manhole (X-3) and
the upstream manhole located at the entrance of the cul de
sac on Heron Cove Lane (X-2). Hollis radioed to his crew to
bring the Vac truck to nearby Holden Circle.
In his affidavit, Hollis explained what the Vac truck is and
how it functions:
The Vac truck consists of a Sterling Anterra vehicle. In the
front of the vehicle there is a reel that contains
approximately five hundred (500) feet of hose. The hose is
blue in color except for the leader hose which is black in
color and is approximately twenty (20) feet long. When used
to clean a blockage in a sewer main, a cleaning nozzle is
attached to the front of the leader hose. The Vac truck is
powered by the engine of the truck and switches which
activate a PTO ("power take off") [that] sends
pressurized water from the tank located on the back of the
truck through the hose and eventually to the nozzle.
. . . .
. . . [T]he nozzle . . . is lowered [down the dry manhole and
into the sewer main via a horseshoe shaped trough or invert],
the PTO is activated[, ] and pressurized water is propelled
downstream out of the back of the nozzle[, ] which
propels [the nozzle] upstream toward the blockage.
Initially, about 800 psi ("pressure per square
inch") is used so that the nozzle can begin moving
forward approximately 3 to 5 feet past the opening in the
invert and out of sight. At that point, the psi is increased
to approximately 2, 000 to 2, 500 psi[, ] and the nozzle is
propelled forward upstream in the main much like a jet ski
until it strikes and breaks through ...