An act of God, or man?

Aug. 28--SOUTH BEND -- As residents dry out from recent, devastating flooding, the question of blame is beginning to surface, with many pointing the finger not at Mother Nature but at the city or state for perceived negligence.

Both deny responsibility.

Addressing the Common Council this past Monday, Eileen Sullivan described how 10 inches of water backed up into her basement on Pyle Avenue, near Edison School, following the recent historic rainfall.

Sullivan blamed the "sewer system that is owned by the city," which backed up in spots, sending a combination of storm and sewer water pouring into people's basements.

"Could you guys imagine waking up to that mess in your home?" Sullivan told council members, holding up pictures of the damage. "Every time we have a heavy downpour, the ritual is run to the basement, move stuff over and hold your breath."

Farther south, Chris Davis blamed the Indiana Department of Transportation for flooding to his auto repair shop, Around the Corner Auto Service, on old U.S. 31, just south of the St. Joseph Valley Parkway.

As part of work to reroute U.S. 31 from South Bend to Plymouth, INDOT installed a drainage ditch behind the shop and erected a chain-link fence along the edge of the ditch.

As water flooded into the ditch, the fence "caught all the debris coming down the drainage ditch and created essentially a giant dam about 30 foot across," Davis said, sending about a foot of water flowing into his business.

Davis said the water destroyed hydraulic lifts and diagnostic equipment and undermined the building's foundation, resulting in hundreds of thousands of dollars' worth of damage.

He has since removed a portion of the fence himself, he said.

West of the new 31, water from Phillips Ditch flooded onto Chris Elmerick's property on East Jackson Road, causing significant damage to Elmerick's primary residence and multiple rental properties as well as several vehicles that he uses for work.

Elmerick said the water was two feet deep in his grandfather's 1934 farmhouse, which he is trying to renovate, and four feet deep in one of his rental properties. His own home took on several inches of water in the kitchen.

Like Davis, Elmerick blames the state for the mess. He claims INDOT funneled drainage from the new U.S. 31 -- specifically from the local bridges over the highway -- into Phillips Ditch without accommodating for the extra flow.

"Obviously, we had significant rainfall," Elmerick said. "But I do know that the new Johnson (Road) bridge, the Jackson Road bridge and the Kern Road exit bridges all drain into Phillips Ditch. And I've never seen any of the ditch widened any deeper than what it is now."

Elmerick said he is currently living with his sister while he figures out what to do. He also has an offer from Bethel College to stay in a home just south of campus.

"There's lots of damage and it will be a lot of time before I'll ever be able to be back in," he said.

Historic rainfall

Fed by tropical moisture from the Gulf of Mexico, an intense low-pressure system moved through the South Bend area Aug. 15 and 16, dropping more than 8 inches of rain on the city in less than 24 hours, including nearly 7 inches in one 12-hour period, according to the National Weather Service.

In the city proper, the record rainfall overloaded the city's combined sewer system, which conveys both storm and sewer water to the wastewater treatment plant, sending raw sewage backing up into people's basements and overflowing into streets.

This occurred despite recent improvements to the sewer system, including the separation of miles of combined pipes and work to increase the capacity of the treatment plant, as part of a $700 million, federally mandated sewer project.

The city previously suggested the flooding would have been worse without those improvements.

"We need to emphasize that we are dealing with the consequences of a major weather event that overwhelmed the system, not an act or omission by the city," city spokesman Kevin Lawler said in a statement.

"This is a natural disaster, comparable to a tornado or ice storm," Lawler said, "and while the city is not responsible for the damage created, we are working hard to help with the coordination of relief and recovery."

Doug Moats, with INDOT's northern Indiana office in LaPorte, also blamed the rain.

Regarding the fence behind Davis' property, Moats said, "It's a tough situation, it's our fence. Certainly we do feel bad, but it's hard to argue against such a major natural disaster and place blame."

He noted the ditch itself, from an engineering perspective, was designed to handle a 100-year rainfall, whereas this most recent event met the criteria for a 1,000-year rainfall.

More broadly, Moats said, engineers have found no evidence of drainage issues related to the new U.S. 31.

"We had area engineers out there looking at our ditches, and all seem to maintain water flow, even in excessive rains," he said, adding, "We're not suggesting we're not willing to continue to investigate and work with these residents, because certainly anyone dealing with a hardship like this is a terrible thing."

County Surveyor John McNamara, an ex officio member of the drainage board, did not return a call seeking comment.

Filing a claim

Residents who wish to seek relief from the state or city must complete a liability claim form, also known as a tort claim form, as a first step. The former are available online. State forms must be returned within 270 days of the incident, city forms within 180 days.

"Claims that are received by the city will be evaluated and determined on a case-by-case basis, through a careful application of the relevant statutes and case law," Cristal Brisco, head of the city's Legal Department, said in a statement.

Spokesman Kevin Lawler said the city has paid claims before related to sewer damage, but only for maintenance issues, not weather events -- and only in a few rare cases.

Karen Buranskas, a retired music professor, is in the process of filing for relief after her basement flooded on Danbury Drive in Crest Manor, soaking her furnace, sump pump, water heater, washer and dryer and "thousands of dollars" in sheet music.

Formerly part of the county, Crest Manor has experienced flooding in the past due to the overflow of retention ponds. The city spent $800,000 in 2007 to fix the issue, creating a control system to raise and lower the ponds during rainy periods.

"I'm very doubtful about getting anything," Buranskas said.

In that case, Buranskas may sue, something Elmerick is already contemplating.

But any such lawsuit faces long odds in Indiana, where governmental units and their employees enjoy immunity from losses resulting from "the performance of a discretionary" -- or planning -- "function."

The law distinguishes between planning functions, involving the formulation of basic policy (immune), and operational functions, involving the execution or implementation of that policy (not immune).

Regarding damage from sewer backups, two cases involving combined sewer systems in other parts of the state illustrate the law in action.

In Kevin Walsh et al vs. City of Valparaiso, the Walsh family sued the city for losses related to a sewer backup, alleging negligence in the maintenance, use and repair of the sewer line serving their house.

Although the city had identified problems with the line, including roots, cracks, offset joints and broken tiles, it did not immediately remedy those problems because it was engaged in a broader, policy-oriented approach to fix the city's sewer problems.

As such, the city enjoyed discretionary immunity from the loss, the court ruled, since the decision not to repair the pipe was a planning, rather than operational, decision.

In Farley vs. Hammond Sanitary District, residents complained about basement flooding from sewer backups following a severe storm.

A lower court granted summary judgment in favor of the sanitary district, declaring it immune from the loss under the Tort Claims Act.

But an appeals court later reversed that decision, finding genuine issues of material fact as to whether the district properly maintained the sewer system according to established protocol -- an operational function.

Complicating the situation here is the fact so much rain fell in so little time, flooding even natural features such as creeks and ponds.

"The plaintiff generally has the burden of proof in a tort action that the work of the city caused the damage, and here we have mixed cause, because there was incredible rainfall," said Cynthia Baker, a clinical professor of law with the Robert H. McKinney School of Law at Indiana University-Purdue University Indianapolis.

Said Brisco, the city attorney, "With respect to municipal liability for damage to private property caused by storm water, under Indiana law there must be some evidence that negligence was the cause of the damage for liability to be imposed," said Brisco, the city attorney.

"In addition, municipal entities are immune from liability for the performance of a discretionary function, which includes sewer system design and the implementation of storm water and combined sewer system management policies, as well as the temporary condition of streets and sidewalks that results from weather," Brisco said.

Brisco recommended residents contact their homeowners insurance companies for information on obtaining water damage remediation services, as well as instructions and advice on submitting insurance claims for property damage.

[email protected]

574-235-6187

@ErinBlasko

Filing a claim

Residents seeking compensation from the city or state for flood damage must complete and return a liability claim form, also known as a tort claim notice, before filing a lawsuit.

Claims against the state must be filed within 270 days. Claims against the city must be filed within 180 days.

The forms ask for basic information, including the claimant's name, address and telephone number, the time, date and location of the loss, the extent of the loss and a description of the incident.

The city requires two written estimates for property damage.

City forms are available online at www.southbendin.gov/government/content/claims-legal or by calling the Legal Department at 574-235-9241. State forms are available online www.in.gov/indot/2351.htm.

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