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After a water main break, who pays for damage – the city or its residents?

Nov 19, 2021, 6:35 AM

PARK CITY, Utah – When a city water main breaks and sends water flooding into homes and businesses, someone must take care of the mess. But who is responsible for paying for the damage: the city, or its residents?

Park City resident Mark Stemler believes the city should be responsible for the damage to his home. But court filings show the city denies negligence, pointing to the Governmental Immunity Act.

A River Runs Through It

“The water raced down through the floorboards into the crawlspace,” said Stemler as he described to the KSL Investigators the damage done to his century-plus-old home near Main Street in downtown Park City.

A water main burst on the night of July 11, 2019, creating a huge sinkhole right next to Stemler’s home. It also sent thousands and thousands of gallons of water into the house, soaking carpet and furniture in the basement and ruining much of the drywall. The flood left a watermark nearly a foot above the floor.

Thousands of gallons of water entered Mark Stemler’s historic Park City home through its basement and into the crawlspace after a water main break on July 11, 2019. A structural engineer’s report found the water destabilized the foundation and footings of Mark Stemler’s Park City home. Public works crews worked to repair a massive sinkhole that opened next to Stemler’s home.

As bad as that damage was, the foundation got it much worse.

A structural engineer found the water pooled up to two feet high. It saturated the soil that provided support to footings, enough to reduce the soil’s density. All that movement destabilized the foundation, including two piers of stacked concrete blocks, according to the engineer’s report.

So how much will all that damage cost to repair?

“Well, I’m thinking a few hundred-thousand dollars,” said Stemler.

Who is Responsible?

Stemler said his home insurance will cover the drywall, but the policy will not touch the foundation. He believes Park City should be responsible for that. After all, it was their water main that broke. He said in the 29 months since the break, he still has not received one dime from the city.

In most situations, a city’s liability for damages caused by a broken water main stop at the meter between the main and the home’s supply line. From that point on, it is up to the homeowner to take care of damages. But Stemler’s situation isn’t like most.

On the day after the break, Park City municipal officials told KSL TV the cause could be related to new pavement. Hours before the water main burst, a road crew contracted by the city put down fresh asphalt above the pipeline, right next to Stemler’s house.

“The gentleman from the city said the rupture was most likely created by the compaction and the work that had been done with the asphalt that day,” Stemler said.

On the night of the water main break, a viewer sent KSL this video of the torrent of water running on Park City’s Main Street.

Making matters worse, that crew covered lids in the street that would have given responders access to the main’s valves. And the access lids were covered without their location being marked. On the night of the break, public works and fire crews had dig through that new asphalt to find those valves.

“They spent over three hours trying to locate them so they could get them open, so they could turn them off,” Stemler explained.

Governmental Immunity & Negligence

Stemler has filed suit against Park City and its asphalt paving contractor, alleging that the covering up of the valve access covers, among many other things, amounts to gross negligence. But does his argument — hold water?

Attorney Robert Sykes does not represent Stemler or Park City or its asphalt paving contractor, but he researches and practices government claims law and believes Stemler may have a case.

Attorney Robert Sykes explains to KSL’s Matt Gephardt how a city could still be held liable for a water main break under the Governmental Immunity Act of Utah. (KSL TV)

Sykes said in general, under the Governmental Immunity Act of Utah, municipalities cannot be held liable for acts constituting a government function, such as delivering water to homes or businesses, unless negligence can be proven. Under its Waivers of Immunity provision, a government entity can be liable if its work creates a defective, unsafe or dangerous condition of any highway, road, culvert, bridge, tunnel, alley, crosswalk, viaduct or structure located on them or other public improvement.

“It seems to me that you’ve got the defective, dangerous condition of a highway or a road,” said Sykes. “And the reason you have that is because they cover it up and didn’t get in there fast enough so they could fix something.”

Park City officials also told media that the cause was a broken valve. And there was another complication: A city spokeswoman told KSL the day after the break that the “valves were somewhat rusted and that was contributing to the incident.”

“I would argue that a rusted valve is negligence,” Sykes said. “Because that’s very predictable that you turn a rusty valve, and it breaks.”

Through KSL and other media outlets, the city also asked residents and businesses to contact the city to report property damage.

“They’re making an admission against interest,” Sykes explained. “That’s admissible in court.”

So, what does Park City have to say about all this now? In an emailed statement to the KSL Investigators, not much. “As is standard with matters of pending litigation, Park City Municipal has no comment on this case.”

However, in court filings, the city’s attorneys deny Stemler’s allegations of negligence, saying there is no proof. And they invoke Utah’s Governmental Immunity Act.

The Growing Risk of Water Main Breaks

But issues caused by water main breaks will not end in a Park City courtroom, or in Stemler’s crawlspace.

A 2018 survey of over 300 utilities in the U.S. and Canada by Utah State University researchers found water main breaks surged 27% overall between 2012 and 2018. Breaks in old water mains built out of cast iron or cement asbestos increased by over 40%. Pipes made of those two materials alone make up 41% of all water mains in North America according to the report. And at that time, only 58% of those utilities said they had a regular pipe replacement program. Most of those old water mains have only gotten older since.

It’s not very hard to find examples.

This past July, a water main break impacted 15 homes in Murray. Another break created a geyser that shut down a freeway offramp near downtown Salt Lake City in September. That same day, another broken Park City water main sent mud and water onto Snow Creek Plaza’s parking lot. And in October, St. George News reported the rupture of a 50-year-old main in St. George’s Bloomington Hills area that sent water into a home’s basement.

Don’t Bank on Insurance

If proving a city is negligent is an uphill battle, how can homeowners protect themselves? Well, don’t count on your homeowner’s policy, explained insurance expert Les Masterson of Insure.com.

“It’s just not a covered peril. It’s not like a fire or vandalism — those types of things that are usually covered,” Masterson said. “The insurers think that’s not their responsibility. That’s the city or town’s responsibility to make sure that doesn’t happen.”

Masterson says most flood insurance policies will not cover water main breaks. They’re for covering damage caused by weather. However, an add-on policy for a homeowner might be available.

“If it’s something that concerns someone, they should definitely ask about it and see if it’s possible to be added to the policy, understanding that it will cost more money,” said Masterson.

As for Stemler and his damaged home, he vows to keep fighting Park City’s city hall.

Mark Stemler explains to KSL’s Matt Gephardt why he believes the city is liable for the damage to his home.

“If you damage your neighbor’s property, you don’t look for legal angles to try to avoid paying for it,” he said. “You go in and make it right.”

Pipe Replacement Program

The KSL Investigators asked Park City Municipal if it does have some sort of pipe replacement program in place. In a statement they told us:

“Park City Public Utilities’ asset management program includes an inventory of all significant assets, including underground infrastructure — this involves monitoring age, size, type, condition, and performance. We use this information to establish our replacement priorities. Our goal is to minimize water service interruption to our customers and minimize potential damage associated with water pipe failures.”

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After a water main break, who pays for damage – the city or its residents?