A short one from the South Carolina Supreme Court. In Ray v. City of Rock Hill, No. 28045 (Aug. 4, 2021), the court held that the city's re-connecting its pipe that had previously flooded Ray's property qualified as the "affirmative, positive, aggressive act" required by S.C. law as an essential element of a new inverse condemnation claim.
Short version of the facts. The city ran a stormwater pipe under Ray's property. No record of any easement for the pipe. Ray's property had "a history of sinking and settling[,]" and this went on for many years. Slip op. at 2. Eventually she sued for inverse. The lawsuit alleged that the flooding and damage to her property and home was caused by the deterioration of the city's pipe.
Apparently unrelated to this, at about the time of the filing of the lawsuit, the city began maintenance work on a sewer line. To access the line, it had to sever three nearby stormwater pipes, which happened to stop the flow through the pipe under Ray's land. That stopped the damage to her property caused by the invasion of water. So naturally, Ray asked the city to not reconnect the three pipes. The city did not respond positively, and instead reconnected all three.
After Ray amended the complaint to allege that the re-connection of the pipes was the trigger to inverse liability, the trial court granted the city summary judgment, concluding that the city hadn't done anything affirmatively and that the re-connection was merely "maintenance." But the court of appeals reversed, concluding that a trial was needed to resolve the factual disagreement about whether what the city did qualified as affirmative conduct.
The Supreme Court agreed. Whether the city undertook an affirmative act is a question of fact and by the time the case reached the Supreme Court, the city had acknowledged that it severed, and then re-connected the three pipes, and as a result the water flowing under Ray's land stopped. It also acknowledged that "stormwater flow into the Pipe resumed when it reconnected its three pipes to its catch basin[.]" Slip op. at 6.
The court rejected the city's argument that its refusal to comply with Ray's demand that it not reconnect the pipes was merely a failure to act, and not an affirmative act. Wrong, the court held:
When the City reconnected its three pipes to the catch basin, it directed water into the catch basin and through the Pipe. This is sufficient evidence to overcome summary judgment on the issue of whether the City merely "failed to act" with respect to the water flowing through the Pipe. We also conclude Ray has presented sufficient evidence that the City's reconnection of its three pipes to the catch basin and the resumption of the flow of water through the Pipe caused damage to her property.
Slip op. at 7.
The court distinguished the damage and invasions resulting from earlier flooding that occurred pre-repair. Those damages were not recoverable because Ray knew of the damage as early as 2008, and her original lawsuit wasn't filed until 2012, one year after the three-year statute of limitations had expired. Slip op. at 7 ("Ray conceded this point during oral argument before this Court."). But that didn't prevent her from recovering from damage caused by the new act of the city (re-connecting the pipes, starting the problem all over again).
File this one under the "you sure you want to do that?" department.
Ray v. City of Rock Hill, No. 28045 (S.C. Aug. 4, 2021)
