Day on Torts
Where a reasonable juror could have found that defendant allowed sewage to flow into a malfunctioning septic tank under plaintiff’s property for at least a short period of time after the issue was discovered, defendant was not entitled to summary judgment on plaintiff’s negligence claim.
In Heatley v. Gaither, No. M2018-00461-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2018), plaintiff and defendant owned neighboring property that had been owned as one large parcel many years ago. Part of plaintiff’s property was “always damp and muddy,” and during an attempt to re-grade the area, plaintiff discovered that a malfunctioning septic tank with pipes leading to defendant’s building was located on his property. Before this discovery, neither plaintiff nor defendant had been aware of this septic tank.
Defendant’s employee “arranged to have the newly discovered tank emptied on November 4,” and he later stated in an affidavit that shortly after that date, the facilities that were connected to the tank were identified and not used anymore. The septic line between the two properties was permanently severed the following February.
Plaintiff filed this suit asserting claims for negligence and trespass. Plaintiff alleged that defendant “breached their duty of care by failing to maintain the septic system or to correct a known sewage discharge,” and that defendant committed trespass by “knowingly and intentionally continuing to transfer their sewage onto [plaintiff’s] property.” The trial court granted summary judgment to defendant on both claims, and the Court of Appeals affirmed for the trespass claim, but reversed on the claim for negligence.
For the trespass claim, the court noted that it was “undisputed that an easement to use the septic system arose by implication from the previous common ownership,” and that the easement bound plaintiff “even though they purchased the property without knowledge of the easement.” (internal citations omitted). Due to this easement, the Court found that even if defendant continued using the septic system after its discovery, that use would not constitute trespass, as “an easement holder only becomes a trespasser when the holder’s use of the servient tenement is inconsistent with the original purpose of the easement.” (internal citation omitted). Here, the original purpose of the easement was sewage disposal, so defendant could not trespass by continuing with such action. Summary judgment was thus affirmed.
On the negligence claim, however, the Court of Appeals reversed summary judgment. Plaintiff argued that once the tank was discovered, defendant “had a duty to use [it] safely, maintain it, and to protect the [plaintiff’s] property from harm,” and pointed to the alleged continued pooling of water on their property after the tank was emptied. Rather than focusing on plaintiff’s proof, though, the Court of Appeals found that defendant, as the moving party, “failed to affirmatively negate causation.” The Court stated that while defendant undisputedly had the tank emptied on November 4th, his representative testified that use of facilities to that tank ceased “shortly after” that date, and the permanent disconnection was not accomplished until the following February. The Court ruled that “a reasonable juror could find that sewage from [defendant’s property] continued to flow onto [plaintiff’s property] for at least a short period after the tank was emptied.” Summary judgment on the negligence claim was accordingly reversed.
Plaintiff’s attorney must have done a good job here of presenting the timeline of events in a clear way, showing that there was a time when defendant both knew about the malfunctioning septic tank and possibly continued using it. This evidence allowed the court to overturn summary judgment, giving plaintiff the chance to try his negligence claim on the merits.
That said, it seems to me that it will be a difficult task for plaintiff to prove what damage occurred before defendant knew of the problem with the tank and what damage occurred thereafter.