United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY MICHELLE LYNETT
L. LITKOVITZ, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on the Request for Review of the
denial of a Sewer Backup ("SBU") claim by Michelle
Lynett Bruce (Doc. 1046) and the response of the Metropolitan
Sewer District of Greater Cincinnati ("MSD") (Doc.
1190). On December 20, 2017, the Court held a hearing on Ms.
Bruce's request for review at which Ms. Bruce and Tom
Fronk, MSD Engineering Technical Supervisor, testified and
documentary evidence was submitted. (Doc 1209).
Bruce's request for review is filed under the Sewer
Backup program (formerly known as the
Water-in-Basement [WIB] Claims Process Plan) (Doc. 131,
Consent Decree, Exhibit 8). The Plan states in relevant part:
Subject to the requirements of this Plan, occupants who incur
damages as a result of the backup of wastewater into
buildings due to inadequate capacity in MSD's Sewer
System (both the combined and the sanitary portions) can
recover those damages. This plan also provides a means for
occupants to recover damages arising from backups that are
the result of MSD's negligent maintenance, destruction,
operation or upkeep of the Sewer System. The Claims Process
is not intended to address water in buildings caused by
overland flooding not emanating from MSD's Sewer System
or caused by blockages in occupants' own lateral sewer
(Id. at 1). In determining the cause of SBU, MSD
must exercise its good faith reasonable engineering judgment
and consider the following non-exclusive factors: amount of
precipitation, property SBU history, condition of the sewer
system in the neighborhood, results of a visual inspection of
the neighborhood to look for signs of overland flooding,
neighborhood SBU history, capacity of nearby public sewer
lines, and topography. (Doc. 131, Consent Decree, Ex. 8 at
2). Damages arising from basement backups for which MSD is
responsible are limited to documented real and personal
property. Id. Homeowners who are dissatisfied with
MSD's disposition of a claim under the SBU program may
request review of the decision by the Magistrate Judge, whose
decision is binding and not subject to any further judicial
review. (Docs. 154, 190).
Bruce is the tenant of the property located at 3260 Gobel
Avenue, Cincinnati, Ohio. Ms. Bruce's landlord, Carol
Roehling, is the owner of the property. On March 1, 2017, the
area in which 3260 Gobel Avenue is situated experienced heavy
rainfall and the basement of the building flooded, causing
damage to real and personal property. Both Ms. Bruce and Ms.
Roehling filed claims with MSD seeking compensation for
property damage under the SBU Claim Program. MSD investigated
both claims and determined that the damage to the property
arose out of overland flooding and not a sewer backup. MSD
therefore denied both Ms. Roehling's and Ms. Bruce's
Roehling, the owner of 3260 Gobel Avenue, filed a Request for
Review of the denial of her claim in this Court. (Doc. 1052).
The Court upheld MSD's denial of Ms. Roehling's
claim, finding there was insufficient evidence that the
damage to the property was caused by a sewer backup for which
MSD was responsible. (Doc. 1160).
Bruce, the tenant at 3260 Gobel Avenue, similarly seeks
review of MSD's denial of her claim. At the hearing on
Ms. Bruce's Request for Review, Mr. Fronk from MSD
testified that there was a substantial rain event on March 1,
2017 and approximately two and one-half inches of rain fell
in a short period of time in the vicinity of 3260 Gobel
Avenue. He testified that 3260 Gobel Avenue is situated in a
low lying area that sustained extensive overland flooding.
The property sat in a "bowl'Mike area and a
topography map of the area shows elevations rising to 90 feet
on either side of 3260 Gobel Avenue. (Doc. 1209, Ex. 1). Mr.
Fronk testified that an MSD crew did find evidence of sewer
surcharge rising to 10 feet below the rim of the manhole
directly downstream from the property. He testified that this
level of surcharge was well below the level of the basement
of the property and, therefore, the sewer surcharge could not
have reached the basement level of the building. He also
testified that the building is connected to a 45-inch
combined sewer; however, Gobel Avenue is served by a separate
storm sewer to collect the storm water from the public
right-of-way. Mr. Fronk presented evidence of overland
flooding in the area, including photographs showing extreme
flooding in the street. (Doc. 1209, Ex. 2). In addition, he
testified that the amount of debris found in the immediate
area also signified overland flooding. (Id.). He
testified that when MSD's crew observed the garage door
of the building, they found a water line at three feet, eight
inches above the garage threshold, which again pointed to
evidence of overland flooding.
request for review filed in this Court, Ms. Bruce states
there was six feet of water in her basement. (Doc. 1046). She
has presented photographs depicting the damage from the
flooding in her basement, including what appears to be
approximately a four-foot water line on her basement walls.
(Id.). Ms. Bruce states that MSD agreed it was
MSD's responsibility when it sent a cleaning crew to
clean her basement. She seeks reasonable compensation for her
property loss. (Id.).
the Consent Decree, property owners may recover damages to
personal or real property caused by (1) the inadequate
capacity in MSD's Sewer System, or (2) MSD's
negligent maintenance, destruction, operation or upkeep of
the Sewer System. (Doc. 131, Consent Decree, Exhibit 8 at 1).
Claimants like Ms. Bruce who seek review of the denial of an
SBU claim bear the burden of proof of showing that the backup
of water into their property was caused by inadequate
capacity in MSD's sewer system (a sewer discharge) and
not by overland flooding or blockages in the homeowner's
privately owned building sewer line. (Doc. 131, Consent
Decree, Ex. 8 at 1).
initial matter, the Court notes that under the Consent Decree
that governs the Court's review of SBU appeals,
"MSD's provision of cleanup services under this
program does not constitute an admission of any liability by
MSD with regard to any claims that the occupant may have
against MSD for real or personal property damage caused by
the building backup." (Doc. 131, Ex. 7 at 4). MSD will
provide cleaning services when doubt exists about the cause
of the backup after an initial investigation based on the
health risks posed by floods and water damage. (Doc. 640, Ex.
B). Therefore, the fact that MSD provided cleaning services
to the property at 3260 Gobel Avenue is not evidence that the
water in Ms. Bruce's basement was the result of a backup
of the public sewer.
Bruce has not established that the water backup into her
basement on March 1, 2017 was caused by inadequate capacity
in MSD's sewer system. MSD has presented persuasive
evidence that given the relative elevation of the sanitary
sewer that services Ms. Bruce's home and the elevation of
her basement as compared to the level of sewer surcharge, it
is unlikely that the water damage to Ms. Bruce's basement
was caused by a backup of the public sanitary sewer and it
was more likely due to overland flooding. In addition, as
noted during MSD's investigation and as depicted on the
topography map submitted at the hearing, Ms. Bruce's
property is situated in a low lying area that sustained
extensive overland flooding. Given the topography of the
area, overland flooding not emanating from MSD's sanitary
sewer system was the most likely cause of the backup in Ms.
Bruce's basement. There has not been any evidence
presented that the public sewer overflowed and comingled with
the overland flooding. The preponderance of the evidence does
not establish that the cause of Ms. Bruce's basement
backup was inadequate capacity of MSD's public sanitary
Court is not unsympathetic to claimants like Ms. Bruce who
experience a basement backup such as occurred in this case.
Yet, this Court is bound by the terms of the Consent Decree
in this matter, which places the burden of proof on the
homeowner to show that a capacity-related public sewer
problem was the cause of the damage to a property. The
undersigned is responsible for ensuring that any costs for
damages to an individual's private property that must be
paid by MSD (and ultimately the rate payers of Hamilton
County) under the Consent Decree are the result of the backup
of wastewater into the property due to inadequate capacity in
MSD's Sewer System. In the absence of evidence
establishing Ms. Bruce's property ...