WINNEMUCCA — The jury in Forney v City of Winnemucca needed just three hours before returning with a verdict that found the City of Winnemucca responsible for damages to the home of Kim and Danny Forney after raw sewage flooded their basement in 2008. Having found the city responsible, the jury awarded the family $144,031 to compensate for their losses.
The case was heard in 6th Judicial District Court and was presided over by Judge Richard Wagner. The Forneys were represented by Dane Anderson and Benjamin R. Johnson, of Woodburn and Wedge law firm in Reno, and the city was represented by Brent Kolvet, of Thorndal, Armstrong, Delk, Balkenbush, and Eisinger, also of Reno.
Events leading up to the lawsuit began in the evening hours of March 31, 2008 when raw sewage began flooding the basement of the Forney home.
The Forney’s basement was not just a place to store toys their three kids weren’t playing with anymore. The basement was where two of the Forney kids had their bedrooms. There was also a television for watching movies and a room Kim Forney intended as her office while she studied for her master’s degree. They had non-replaceable items, such as photos, old video tapes, and heirlooms. In addition, the family’s laundry room was in the basement.
As the sewage flooded in, Kim Forney made a desperate rush to save what she could, especially the photos, while her husband called her to come out of the basement because he was afraid she would be electrocuted.
When her attorney asked her why she did that, why she would wade into raw sewage, she replied, “I was in a state of shock that night.”
Eventually, much of the fluid was drained from the house – leaving a moist mass of feces, toilet paper, condoms, and tampons.
The mess had to be professionally cleaned and was twice checked for E. coli; the carpets and walls had to be removed and much of the Forney’s personal belongings in the basement were destroyed. Kim reported after the clean up she could stand at one end of the basement and look clear to the other side. Everything was gone.
The house sits on the lowest spot in that part of the subdivision. When the sewer clogged on the evening of March 31, all the waste from the line above the Forney’s home flooded into their basement.
It was the third time the Forney home had been flooded and the second time sewer waste backed up into the house.
This time, though, the damage was severe.
SUING THE CITY: While the Forney’s wanted to be compensated for their considerable losses, it can be challenging to sue the government – even the local government.
The government has immunity from such lawsuits because they frequently have large numbers of citizens to serve, and are operating on limited budgets with minimum personnel.
In order to successfully sue the City of Winnemucca, the Forney’s would have to prove the city knew there was a problem but failed to act appropriately.
CITY EASEMENT: As it turns out, the city had long known there was a problem in the Parkview subdivision.
For example, in the 40 plus years since the subdivision was built homeowners have encroached on the city’s 10-foot easement that runs behind the homes on Ballard Lane through to Minor St.
Homeowners have planted hedges, trees, and built fences.
According to Councilman Joyce Sheen, who testified at the trial, the city had been reluctant to use a heavy hand in getting homeowners to remove their bushes, trees, and fences because the council felt developing technology would allow them to remove the antiquated sewer pipes and replace them with something modern without interrupting the quality of life for homeowners.
In the mean time, the blocked easement represented a problem because there really wasn’t enough room for the city’s flusher trucks to easily gain access to the Parkview sewer line to flush the pipes when they needed flushing.
On the night the Parkview sewer line plugged up, causing raw sewage to flood the Forney’s basement, there was a 30 minute delay in response while city personnel tried to locate a homeowner to unlock a gate so they could have access to the Parkview sewer line.
CAPPED SEWER LINE: However, the easement-issue did not cause the sewer to clog then back-up into the Forney home.
One of the first things the Forney’s learned in the aftermath of the sewer flood at their house was city officials had discovered that sometime along the way the wrong sewer line had been capped above the Parkview subdivision.
To understand what happened, it’s important to understand the sewer system.
City Manager Steve West explained in 1992 a new sewer pipe was installed along Highland Dr. to accept sewer waste from the new subdivisions being built.
Once the new sewer line was in place, the Parkview sewer line was capped so waste from the new subdivisions would be diverted to the Highland Dr. pipe and the Parkview sewer line would handle the waste from one-half of the Parkview subdivision. The other half of the Parkview subdivision was on a different sewer line.
Somewhere along the way, the cap from the Parkview sewer line was removed and the Highland sewer line was capped.
At that point, the Parkview sewer pipe starting getting all of the waste from the new subdivisions above Highland Dr.
No one knows how long this went on.
WATER MAIN BREAK: It’s also important to understand the problems from March 31, 2008 incident actually went back to March 4, 2008 when a large water main broke. The force from the break was so great it reportedly lifted up asphalt and washed dirt and gravel into the sewer lines.
It should be noted, the Forney basement was flooded on that day, too, along with other basements in the Parkview subdivision.
Approximately two weeks later, the city was still flushing the dirt and gravel out of the sewer lines – including the Parkview sewer line.
The plaintiffs questioned whether or not that flushing of the Parkview sewer line was sufficient – or even occurred – because the city’s record keeping was not stellar.
THE EXPERT WITNESS: Addressing the issue of the city’s record keeping, and testifying on behalf of the Forneys, was John Shaw, of John Shaw Consulting, in Truckee, California.
Shaw reviewed the record keeping done by the City of Winnemucca and was very critical about what he found.
For example, the sewer back-up logs only contained a date and address. There was no information on the extent of the problem and what was done in response.
Shaw was also critical of the city’s response to the water main break. He noted the city did not send a camera down the Parkview sewer line to make sure it was cleared of dirt and debris following the flushing.
While the city has video equipment for the newer, larger concrete pipes, such as the 8-inch pipe installed alongHighland Dr. in 1992, they don’t have such equipment for the smaller 6-inch pipe used in the Parkview subdivision.
According to West, the city had previously contracted a camera for the 6-inch pipe but it didn’t work well.
THE CITY: West, Councilman Sheen, and former Public Works Supervisor Gino Bernardi were all called to testify by the plaintiffs (the Forneys).
Bernardi was asked to recount the actions taken in response to both the water line break and the sewer back-up into the Forney home.
Sheen was asked if there had been problems in the Parkview subdivision for years. Sheen replied, “Yes. Not so much sewer problems but there were easement issues.” She reiterated in order to clear the easement the bushes, trees, and fences would have to be removed. She commented, “It’s not an easy fix.”
She said while the capping of the Highland Dr. sewer line may have exacerbated the problem, it did not cause the plug in the system that caused the sewer line to back-up and flood the Forney’s basement with sewage.
Although there was testimony from the expert witness the city’s maintenance of the sewer lines was below national standards, West testified the city’s maintenance of the sewer lines was well within what was required of the city by the Nevada Department of Environmental Protection. Although the expert had been critical of the inspection process, West countered the city was not required to inspect at all.
West also countered the argument the capping of the Highland Dr. sewer line caused the problems in the Parkview sewer line. He said the Parkview line was capable of handling the flow.
It was the Forney’s position, however, if the Highland Dr. sewer line had not been capped the Parkview sewer line would not have been overwhelmed with waste from the newer subdivisions, and the damage to their home would not have been so severe.
THE CASE GOES TO THE JURY: In civil lawsuits the standards are different than in criminal trials, which the public may be more familiar with.
First of all, there are less jurors: eight instead of twelve. The jurors do not have the “beyond a reasonable doubt” standard. Instead, they use preponderance of evidence – meaning greater probability of truth.
The jury was tasked with determining whether or not the city had been negligent and whether they were guilty of trespass (meaning they let sewage, which they collected and controlled, trespass into the Forney home) and if reasonable effort was made to remove it.
The questions before the jury were: Were the defendants (City of Winnemucca) negligent? Were the plaintiffs (the Forneys) harmed? Did the defendants know they were causing the plaintiffs harm?
The Forney’s asked for just under $100,000 in damages plus an undetermined amount for the loss of the full use of their home during the incident and for month afterwards.
The damages included: clean up and repair, loss of the value to their home, loss of personal belongings, and lost wages while they dealt with the problems.
The jury gave them the amount just under $100,000. The jury also gave them $45,000 for the loss of the use of their home in the time following the sewer flood.