Tort/Negligence – Duty – Municipal – Sewer System Construction – Backup

Williams v. Devere Construction Co. (Lawyers Weekly No. 11-07-0860, 17 pp.) (Wanda G. Bryant, J.) Appealed from Randolph County Superior Court. (V. Bradford Long, J.) N.C. App. Click here for the full-text opinion.

Holding: Although plaintiffs allege the defendant-city would eventually take control of the sewer system being built by other defendants, plaintiffs failed to allege any duty the city had during the construction and establishment of the sewer system.

We affirm the trial court’s order granting the city’s motion to dismiss.

The sewer system being built for a new school allegedly caused sewage to back up into plaintiffs’ house.

Plaintiffs allege that  the defendant-city “was involved in the process of construction of the sewage system for the new school being constructed by [defendant] DeVere in preparation for taking over operation and control of said sewer system….“ Plaintiffs assert that the city’s negligence was its failure to “communicate with [defendants Terry’s Plumbing and Davis, Martin, Powell & Associates, Inc.] and properly establish and maintain a procedure for control over the sewage flowing through the sewer system for the new school….”

Because plaintiffs fail to assert a duty on the part of the city in the construction of the sewer system for the new school, they have failed to state a claim for relief.

Further, plaintiffs allege that the city’s involvement was only “in preparation for taking over operation and control” of the new sewer system; as such, the complaint reveals an absence of facts establishing the city’s duty, or conduct constituting a breach of said duty that would proximately cause plaintiffs’ damages. Therefore, plaintiffs have failed to make out a prima facie claim of negligence.

Affirmed.