Family sues for home damage

After two years of trials and appeals, Bloomington residents whose property was destroyed by sewer damage still have another trial awaiting them.

The Indiana Court of Appeals ruled on April 15 that the City of Bloomington Utilities could be held liable for the damages caused by a backup of city sewer lines, resulting in 300 gallons of sewage flooding into a residential home on Hillside Drive.

At about 8 a.m. Nov. 15, 2005, residents Misty Day and Micky Walter noticed their bedroom rug was wet. The two called the property owners, Leslie and Hernan Cadavid, who called the City of Bloomington Utilities immediately, according to the Court of Appeals’ decision.

The damage was caused by a blockage in an 8-inch sewer line that led to the renters’ home.

The Cadavids’ insurance company denied their claim because the blockage occurred within a portion of the sewage system that was within the city’s jurisdiction.

The Cadavids filed a lawsuit against Bloomington Utilities on the basis that the utilities department “negligently maintained and controlled the sewer lines by failing to clear severe root invasion from the sewer pipes,” according to the Court of Appeals.

The City of Bloomington Utilities attested they were not given proper notice to prevent the damages done to the Cadavids’ property, said Attorney Andrew Wirick, lawyer for Bloomington Utilities.

To file a lawsuit against the city, the Cadavids had to file a tort claim that gives the city 180 days notice to file suit and provides them with the opportunity to deny the Cadavids’ claim, said Attorney Michael Scarton, a lawyer for the Cadavids, Day and Walter.

“The Tort Act gives the government some immunities,” Scarton said. “Immunities mean that even if the City of Bloomington Utilities were to blame, they’re not liable for the damages.”

The judge of the trial court ruled that Bloomington Utilities was not protected by immunities in this case, Scarton said.

Bloomington Utilities decided to appeal the case and took the trial to the Court of Appeals.

During the Court of Appeals trial, the City of Bloomington Utilities claimed that it was immune to responsibility under the Tort claim, Wirick said.

“Even if everything the plaintiffs are saying is true, they would still lose because the (City of Bloomington Utilities) gets immunity under the Tort claim,” Wirick said.
Because city divisions have many policy-making decisions, they are granted certain immunities in case of something that might be overlooked.

“We get immunity because there are a lot of factors that go into what we’re going to have to clean and how often we’re going to have to clean,” Wirick said.

Despite the City of Bloomington Utilities’ appeal, the court agreed again with the plaintiffs, saying the defendants failed to show that these facts negate essential claims of the plaintiffs, according to the Court of Appeals.

The City of Bloomington Utilities appealed the case and has 30 days to decide if it wants to take the case to the Indiana Supreme Court.

Scarton said all he and his clients want is compensation for the damage and are ready to proceed with the next step in the trial.

“All we want is justice to be served,” Scarton said.