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Walker v. Metropolitan Government of Nashville & Davidson County

Court of Appeals of Tennessee, Nashville

February 13, 2018

CHARLES WALKER
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

          Session Date: December 5, 2017

         Appeal from the Circuit Court for Davidson County No. 15-C-659 Joe P. Binkley, Jr., Judge

         Homeowner brought an action against the Metropolitan Government of Nashville and Davidson County ("Metro") for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance. Homeowner alleged that each time it rained, the drainage overflow from the street caused his property to flood. Homeowner sought to compel Metro to repair or replace the broken drainage pipe on his property. The trial court granted summary judgment to Metro based on the doctrine of sovereign immunity. Finding no error, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Charles E. Walker, Nashville, Tennessee, Pro se. [1]

          Lora Barkenbus Fox and Catherine J. Pham, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville & Davidson County.

          Frank G. Clement Jr., P.J., M.S. delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Charles Walker ("Plaintiff") owns property located at 550 Bell Road, Antioch, Tennessee. Each time it rains, storm water runoff from Bell Road causes his property to flood, which in turn floods the basement and the foundation, and damages the heating and cooling system. Plaintiff contends that a broken/defective storm pipe is the cause of the flooding, and he has made several service requests to state and local officials asking that the drainage pipe be repaired or replaced. Both the state and local officials refused to repair or replace the drainage pipe claiming the alleged defect was not their responsibility.

         On April 7, 2014, Plaintiff filed an inverse condemnation action in chancery court against the State of Tennessee asserting that his property located at 550 Bell Road, Antioch, Tennessee, had diminished in value due to the State's failure to maintain a drainage facility that was allegedly diverting water onto Plaintiff's property beginning on April 30, 2013. Plaintiff sought damages in the amount of $212, 500. Plaintiff amended his complaint in July 2014 to add Metro as a defendant and to request an injunction requiring repair and maintenance of the drainage facility. Soon thereafter, the State of Tennessee was dismissed as a party.

         Upon Metro's Tenn. R. Civ. P. 12.02(6) motion, the trial court subsequently dismissed the claim for inverse condemnation for failure to state a claim. In February 2015, the chancery court transferred the case to the Circuit Court for Davidson County to proceed under a nuisance theory and the Governmental Tort Liability Act ("GTLA"). Thereafter, Metro filed a Motion for More Definite Statement, which was granted. Plaintiff then filed a Second Amended Complaint asserting, inter alia, that Metro's immunity under the GTLA was removed pursuant to Tenn. Code Ann. § 29-20-204 because Metro created a dangerous or defective condition on a public roadway that it owned and controlled.

         In September 2015, Metro filed a Motion for Summary Judgment on the grounds that (1) the lawsuit was barred by the statute of repose and statute of limitations, and (2) Metro did not own and control the drainage facility at issue. The motion was based in part on the contention that a previous owner of Plaintiff's property installed the drainage pipe at issue, and that defects in that pipe are the cause of the flooding on Plaintiff's property. Based on these facts, Metro contended that its immunity from suit was not removed.

         Following a hearing on October 16, 2015, the trial court afforded Plaintiff the opportunity to amend his complaint to (1) allege a continuing nuisance, allege the date when each nuisance occurred, and allege the damages incurred from each occurrence, and (2) present any evidence or authority to demonstrate that Metro was responsible for the drainage at issue. On October 28, 2015, Plaintiff filed his Third Amended Complaint with various supporting exhibits.

         The Third Amended Complaint alleged that Metro caused a temporary continuous nuisance on Plaintiff's property, attributing most of the damage to his property to flooding on October 21, 2013, and stated that "[i]t is impossible to estimate the amount of additional damage caused by each individual flood." The complaint specifically referenced Articles I and II of the Metro Charter, Tenn. Code Ann. §§ 54-4-406 and 54-5-201, documents related to improvements to Bell Road, and Metro ...


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