A San Jose appellate court sided with Los Altos Aug. 24 in a years-long sewage dispute between unincorporated Los Altos resident Dr. Tom Burns and the city. Burns has sought to recover damages after a sewage backflow into his Frontero Avenue home in 2003.
In a separate development, county Deputy District Attorney Stephen Lowney has closed an investigation related to allegations made by Burns against the Los Altos City Council. The allegations, which have been investigated for the past year and a half, included “perjury, subornation, tampering with evidence, or withholding or evidence,” according to a letter written by Lowney to Burns on Aug. 17.
The Court of Appeal, Sixth Appellate District, found “no error” in a previous court trial, affirming its decision that the city was not liable for damages related to sewage backflow into the Burns’ home. The court comprises three-member judicial panel.
The dispute began in February 2003 when raw sewage flowed into the Burns’ house through sinks, toilets and bathtubs, causing the family to move out of their home for several months while their house was repaired and decontaminated.
Burns filed a lawsuit in April 2003 against the city for at least $1.2 million in damages to rebuild his home. A Superior Court rejected his claim in 2005.
The city claims that Burns should have had a backflow device installed to prevent sewage from coming into his home and that he is liable for the damages to his house.
Burns claims that the city was negligent in maintaining the sewer system.
The appellate court took issue with several aspects of Burns’ arguments. Most notably, with his claim that “an inadequate sewer monitoring practice … in itself … constitutes a deliberate plan of inadequate maintenance,” according to court documents.
“We cannot indulge in this leap of logic in the absence of factual support,” according to the court’s statement.
In another setback, the court rejected “as unpersuasive the opinions of the plaintiff’s experts who testified” that the city knew it had implemented a maintenance plan that was inadequate and that it “created a calculated risk to users of the sewer system,” according to court documents.
The bulk of Burns’ appeal contended that the Superior Court erred in his lawsuit when it found that the city’s sewer maintenance practices did not cause the damage that occurred from the sewer intrusion.
“I am appalled at their decision. But I am not surprised,” said Burns. “Based on this appellate court’s decision, nobody without a non-required backflow device will ever be able to win a lawsuit against the city for sewer-related damages.”
The city, however, had a different opinion about the ruling.
“We are pleased but not surprised by the appellate court’s ruling in favor of the city,” Los Altos Mayor Ron Packard said by e-mail. “Since his house is more than 3 feet below street level, the law and simple physics required his contractor to install a backflow device. His contractor failed to do so. We all feel sympathy for Dr. Burns and his wife, but the city (i.e., residents of Los Altos) cannot be financially responsible for his contractor’s neglect.”
Lowney wrote that the evidence of perjury claims Burns submitted were not “clear and convincing.” There was not enough evidence to warrant further criminal investigation, he said.
“We believe that Dr. Burns got more than a fair hearing from our unit. We did not find evidence to support his claims,” Lowney said.
Some of Burns’ allegations included claims that the city’s sewer maintenance workers lied to the court when “they described the condition of the sewer line and how the flooding occurred,” Lowney said.
Staff writer Megan Ma contributed to this story.
