2020 Environmental Real Estate Issues

During a very intense rain event, a city employee closed a flood gate. Flood waters damaged upstream homes. The homeowners sued the city, alleging the city’s employee was negligent in closing the gate and not reopening it during the storm.

Jurisdiction at this Stage
Asserting sovereign immunity, the city requested dismissal for lack of jurisdiction. The trial court denied the city’s request, but an intermediate appellate court agreed with the city and ordered dismissal. The Supreme Court of Texas reversed the appellate court and sent the case back to the trial court. The Supreme Court determined the homeowners’ pleadings and evidence were sufficient to maintain the suit, at least at this stage.

Texas allows suits against governmental entities for property damage that “arises from the operation or use of…motor-driven equipment.” The gate has a motor, although the parties dispute if the city employee used the motor during this storm. The Court said the case should go forward. If discovery conclusively establishes the employee did not use the motor, pretrial dismissal would be appropriate at that time.

“Substantial Factor” Causation
The City argued the homeowners’ real complaint is that the city did not operate the gate after initially closing it. The Court said that if the homeowners prove the city used the motor to close the flood gate, then the complaint about failing to reopen it during the same storm “arises from” the “operation of motor-driven equipment.”

The Court agreed with the City that adequate evidence of causation was required for jurisdiction but disagreed that the storm was the only cause. The Court said the homeowners had sufficient evidence that operation of the flood gate was a “substantial factor” in causing the injury. The homeowners could prevail if they proved “the same storm could have happened without…flooding, and it was the use of the gate that made the difference.”

To see the opinion: https://www.txcourts.gov/media/1455989/200975.pdf