WATER, WATER, EVERYWHERE
Keith Howarth owned property in the bed of a valley near a shallow creek. Falls Township owns Creek Hollow Drive that runs next to Howarth’s property. The Township had installed an 18-inch storm water pipe that runs under Creek Hollow Drive that dumps storm water onto Howarth’s property. The storm water discharge created a 14-inch deep ditch that has to be continually filled, and washes garbage and silt onto the property. Howarth file a lawsuit against the Township claiming continuing trespass, continuing private nuisance, negligence and a violation of the Storm Water Management Act. The Township raised several defenses including governmental immunity, assumption of the risk, estoppel, and comparative negligence. There was conflicting evidence about when the storm water pipe was installed, but the Township’s own witness established that the pipe was not functioning when Howarth purchased the property, the Township had not maintained the pipe for years, and the Township installed a new pipe after Howarth purchased the property. The Township presented an expert report that found that 78% of the flooding came from the overland flow of water, and 22% came from the pipe. Howarth withdrew his claims for trespass and nuisance, leaving the nuisance claim and violation of the Storm Water Management Act. The trial court granted the Township’s motion for summary judgment on those two claims.
On the negligence claim, the trial court held that the Township could not be held liable for an inadequate storm water system because it was under no duty to build such a system in the first place. The Township could be held liable for negligent construction or maintenance, but those situations were not alleged. Since a claim for negligence could not be shown, governmental immunity applied under the Political Subdivision Tort Claims Act.
On the claim for violation of the Storm Water Management Act for failing to manage storm water runoff, the trial court found that that there was no evidence such as an expert report to support the claim that the Township had “altered” or “developed” the land in a way that would increase storm water runoff on Howarth’s property.
The Commonwealth Court reversed the trial court’s order granting summary judgment to the Township. Howarth v. Falls Township, 447 C.D. 2021 (filed 2/14/2024). The Commonwealth Court found that the Storm Water Management Act requires anyone engaged in “the alteration or development of land” which may affect storm water runoff to take measures to: (1) assure that the maximum rate of storm water runoff is no greater after development than prior to development; and (2) manage the quantity, velocity and direction of storm water runoff in a manner that adequately protects health and property from possible injury.
The Commonwealth Court held that the trial court erred in holding that Howarth was required to offer expert testimony to establish that the Township’s installation of a new pipe constituted an alteration of land since the Storm Water Management Act did not mandate such a requirement. The phrase “alteration or development” of land means a “substantial, human-created change to land.” Since the new pipe installed by the Township increased the flow of water onto Howarth’s property, that was enough to establish a human-created substantial change to land.
As for the negligence claim, a storm water system is a utility under the Political Subdivision Tort Claims Act and is an exception to governmental immunity. Howarth’s claim that the Township created an artificial channel of water when it was on notice that Howarth resided at the property, and that the damage to his property was a foreseeable consequence of the installation of a new pipe was sufficient to state a claim for negligence under the common law. Since Howarth stated a claim for negligence under the common law, governmental immunity under the Political Subdivision Tort Claims Act would not apply.