Judge shoots down DEP's flooding excuse

From the SI Advance:

The city's claim that an "act of God" backed up a sewer and flooded a Grant City resident's basement during the April 2007 nor'easter just doesn't float, a judge in Small Claims Court has ruled in awarding the woman $5,000.

Judge Katherine A. Levine said the city failed to show it had periodically checked and maintained the sewer near Lucyann Sciacca's Hull Avenue home to prevent overflow during heavy rains.

Ms. Sciacca, who represented herself, sued the city last year for $5,000 -- the Small Claims Court limit -- for damages that occurred after a sewer backed up on April 15, 2007, and deluged her basement.

Advance records show that as of August 2008, borough residents also filed 64 claims against the city totaling $1.3 million.

Those claimants maintained the city lacked the proper sewage systems to handle stormwater overflow, which damaged their property. However, the city Department of Environmental Protection, which oversees city water and sewage systems, determined the city was not liable because the damage resulted from an "act of God."

The city reprised that defense in Ms. Sciacca's case, but Judge Levine didn't buy it.

The judge, who presides in Civil Court, West Brighton, cited a similar case in which now-state Supreme Court Justice Joseph J. Maltese previously shot down the "act of God" theory. In that case, Maltese concluded the backup of a sewer into a home "is not an event which normally occurs" absent negligence on the city's part.

Maltese ruled the city is required to use "reasonable care" to inspect and repair sewers to prevent damage to private property. The city is liable if it fails to do so and sewers become obstructed and overflows result.

In Ms. Sciacca's case, Judge Levine said the city never demonstrated the overflowed sewer was properly maintained to ensure it was debris-free.

The judge also noted that Ms. Sciacca documented damages to several nearby homes resulting from the "overtaxed" sewer system.