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City of Colony v. Rygh

Court of Appeals of Texas, Second District, Fort Worth

December 14, 2017

THE CITY OF THE COLONY, TEXAS APPELLANT
v.
MARK AND KIM RYGH APPELLEES

         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-00533-431

          PANEL: WALKER, MEIER, and GABRIEL, JJ.

          MEMORANDUM OPINION [1]

          BILL MEIER JUSTICE

         I. Introduction

         The 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.

         II. Background

         On the 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."

         Meanwhile, 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.

         Depicted 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):

         (Image Omitted)

         Maintained 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 (X-1).

         City 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.[2]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.

         When 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 ...

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