Breaks of City of Columbia water mains could cost property owners

COLUMBIA, Mo. (KMIZ)

The City of Columbia had almost 170 water main breaks in 2023, but what happens when one damages personal property?

The City will take responsibility for damage if it had knowledge of an issue and didn't take steps to resolve it or wasn't timely in making repairs, city spokeswoman Sydney Olsen said.

"We understand the burden it can be for a business or private property owner to deal with the cleanup efforts following a water main break, and we encourage anyone who experiences an issue like this to report it immediately so the City can assist in any way possible," Olsen said in an email.

If the city denies liability and someone feels a water main break is the City's fault, Jason Call at Call and Gentry Law Group said a city can be taken to court. There is no sovereign immunity because the City is charging for its water services.

However, he said water main break cases rarely get taken to court, and if they do, they usually get settled or disposed of.

He said people will be responsible for their attorneys' fees whether they win or lose the case.

"I think most people are going to be challenged to have the financial resources to fight against a municipality or a water company," Call said.

This is exactly the situation the owners of Columbia Welding and Machine found themselves in in 2022.

Records obtained by ABC 17 show there were 174 water main breaks in Columbia in 2022. Two of those breaks occurred on Poplar Road, which runs beside Columbia Welding and Machine on Business Loop 70 East.

Business owners Jay Curry, Steve Curry and Randy Ham said they came back to their location on Business Loop 70 East after a delivery in August 2022 and saw water leaking through the cracks in their parking lot.

"Water was pretty much pouring like a gusher out of a couple of spaces in the driveway," Jay Curry said. "It was bad, to a point."

This caused around $40,000 in damage to the business' parking lot. Insurance wouldn't cover any damages to the parking lot, so the business owners turned to the City of Columbia for help.

They made a claim for damages to the City, detailing the damage and how they believed the water main break on Poplar Street caused the asphalt in their parking to lift.

"A lot of the cracks and fissures that were made by the breakage itself was actually running under the asphalt and pushing the water up, which caused everything out there to heave and collapse," Jay Curry said.

But the city denied their claim.

The City's Risk Management team works with Brentwood Services Administrators to determine if the city is responsible for damage. In a letter to Columbia Welding and Machine, the company wrote, "While this was an unfortunate incident and we are sorry you may have sustained property damage, we cannot accept liability for your claim, as we find this was not an act of negligence on the City as a utility company cannot guarantee that no part of their system will ever fail. Such water main breaks occur from time to time, but it's not the result of any fault or lack of care."

Ham said he thought this was a cop-out.

"Your water runoff from your property damaged somebody else's property and you're just claiming ... we're not responsible for that?" Ham said. "If a private citizen damages their property, I think it'd be different."

But Call said this is how it goes. A city will pay for damage if they are negligent, but the lawyer said that can be hard to prove.

"You have to prove they were negligent," Call said. "That means you've got to show a duty, a breach of that duty, that the breach caused your damages and that you have damages that are recoverable."

He said examples of negligence could be that the city never checks its water mains, a lack of maintenance, that mains had been patched rather than replaced or if the break occurred due to city maintenance that shifted the soil.

To do this, he said people would have to take the city to court, and a trial court would likely say an expert needs to be hired to look into the potential negligence. At this point, a person is paying for an attorney and an expert, which Call said is a lot of money to spend on an uncertain outcome.

"At the end of the day, you're going to spend a ton of money in a court battle with an uncertain outcome, not knowing whether you're going to win or lose," Call said.

The owners of Columbia Welding and Machine looked into getting a lawyer after the water damaged their parking lot but realized they would be out more money than it would cost to repair the parking lot, so they decided against it.

After keeping their parking lot closed for about a year, they spent $5,000 to put patches over the damaged areas. A contractor told them it all needed to be dug up and scraped out to do a proper job, but the patches were all the small business owners could afford.

"We've exhausted all of our possibilities and we just have to suck it up and say it is what it is," Jay Curry said. "We just have to eat it."

After threatening litigation, the business owners said the city offered them $5,000 to sign a waiver claiming that the city wasn't responsible. But since $5,000 was only a fraction of the $40,000 worth of damage and the business owners felt the city was responsible, so they didn't sign.

"If we would have taken the money from the city, yes, we would have had our (patches) paid for, but it was the principle for us," Steve Curry said. "We just feel like that was a cop-out."

The City of Columbia declined to talk about the incident.

Records from the city show the water main break on Poplar Street on Aug. 16, 2022 that caused damage to Columbia Welding and Machinery's parking lot was due to an unknown reason.

A break the next day on the same street was caused by deterioration and flooded the business' side building. But, the business owners said they were still only concerned with the parking lot repairs.

The year before, in February of 2021, there had been two breaks along Poplar Street caused by deterioration. Records show all of the breaks were repaired.

"What if the day after I have it repaired, it busts again? Am I going to be out another $40,000?" Steve Curry said. "A small business cannot handle that."

The City is responsible for repairing the water mains promptly. City Utilities spokesman Matt Nestor said in an email these expenses are part of the Water Distribution budget, as there is not a budget specifically for main repairs.

"Repairing and replacing water mains that break is one component of the normal day-to-day functions of the Water Distribution crews, and the costs (staff time, materials, contractor time) are not tracked separately from other Water Distribution expenses," Nestor said.

The City of Columbia's adopted fiscal 2024 Water Distribution budget is $8,021,037.

There are, however, funds put in the City's Capital Improvement budget for planned main replacements due to age, size and other factors. In 2024, this includes mains at areas such as Glenwood Avenue and Business Loop.

In previous reporting, City of Columbia Engineering Supervisor Shawn Carrico told ABC 17 News water mains typically have a 100-year lifespan. Records show the cast iron main where the breaks all occurred along Poplar Street was installed in the mid- to late-1940s.

With Columbia Welding and Machine being 100 years old itself, the owners said they hoped they would've been treated better by the city.

"We're not looking to get over on them," Steve Curry said. "We're just trying to get our fair share."

Call said if someone has sustained damage due to a city water main break, his best advice is to be efficient, hire good contractors and make repairs.

"At the end of the day, you may spend less repairing than you do fighting the city," Call said.

ABC 17 News submitted a records request to the City to find out how many damage claims had been filed after city water main breaks from 2022-2023.

Nestor said in an email the City's adjuster, Brentwood Services, can't do this search, so the City's risk management department is searching through City files. The City is going to charge ABC 17 News to receive this information.

One local couple did take the City to court in 2020 over damage to their home. According to court documents, City crews were excavating near the home of Richard and Kimi Rother in 2018 when they damaged the foundation of the Rothers' house.

The estimated cost of repairs was $59,705. The Rothers, represented by law firm Jones, Schneider and Stevens, attempted to sue the City for negligence, trespassing and inverse condemnation.

Court documents show the two parties agreed to a settlement in October 2023.

Lawyers at the firm were not available for comment.