Revisiting the Topic of Liability for Damage Due to Water Main Breaks or Leaks

The topics of liability and negligence as they relate to water main failures are discussed from both a historical and current viewpoint. The historical perspective is provided in a 1948 Journal AWWA article, and we consider changes in liability issues from that time to the present. Case studies from various states are also presented that will provide water utilities insights into sovereign immunity and what constitutes discretionary function. Some of the key findings for water utilities were: that they should understand the laws and relevant legal decisions in their state because each state has its own laws related to how immunity is determined; that even immunity, in some states and or cases may not be the final determining factor that can relieve them from liability for breaks and leaks; that they should implement a written policy or plan to address deteriorating infrastructure; and that they should keep accurate and comprehensive records. 1.0 Sovereign Immunity Common law is the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the United States except Louisiana. “Sovereign immunity,” is a key English common law concept in understanding liability associated with government actions. The phrase “the King can do no wrong” embodies the meaning of sovereign immunity that comes from common law and took hold in the United States. As early as the 1821 case of Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, the Supreme Court recognized the sovereign immunity of the United States, and this immunity also applied to state and local governments. However, there was an undercurrent of controversy on this issue. Some thought that the government should not be immune from such liability, but nonetheless, the common law prevailed. There was at least one interesting exception to sovereign immunity in the common law; however, and that had to do with the provision of water. Under common law, a governmental entity was liable for negligence in the provision of water, if the water provided was done so as a proprietary function. The distinction in common law between the governmental function of furnishing water for fire purposes, for which there was immunity, and the proprietary function of furnishing water to individuals for compensation, in which there was no immunity, can be found in a number of historical legal cases, and was a key point in the 1948 Journal AWWA paper.