Homeowners facing issues in the wake of Harvey and other Texas storms need to be aware of the recent Texas Supreme Court opinion in Knox v. Eagle Water Management, Inc., that rejected testimony by homeowners as to the cause of damage to their property. 2018 WL 891239 (Tex. Feb. 18, 2018). In its opinion, the Texas Supreme Court upheld the trial court’s ruling that the homeowners’ testimony and evidence, alone, as to causation was insufficient. It further held that expert testimony regarding pump stoppage and/or failure was required. Because the homeowners failed to proffer expert testimony to support their claim that Eagle Water’s negligence caused waste water to flood their homes, the Houston-area homeowners were barred from reviving their suit that blamed the operator of a wastewater pumping facility for flood damage to their homes.

In Knox, the Harris County Water Control and Improvement District 114 (“the District”) owned a water production and distribution system, and waste water collection and treatment system. The District hired Eagle Water Management Inc. to operate and maintain its equipment and facilities. Under its contract with the District, Eagle Water assumed several specific duties related to the inspection and maintenance of the District’s facilities, which were enumerated in its contract. Other duties were omitted, such as repairing or providing repair materials for water line or sewer breaks or stoppages, etc. Id. at 2.

Homeowners Kyle and Denise Knox and Raymond and Jacqueline Muckleroy reside in the District 114 area. In 2015 and 2016, their neighborhood experienced heavy rain and flooding. During several of these storms, the District’s Lift Station No.1, which provided wastewater collection and transportation to the Knox and Muckleroy homes, stopped working. Tracy Riley, President of Eagle Water, testified that a severe rainstorm on May 25, 2015 caused a failure at the lift station. According to the homeowners, the stoppage caused wastewater to back up into their homes, which, in turn, caused extensive property damage.

Upon a de novo review of the trial court’s decision, the Texas Supreme Court found that: “[o]ur common law of negligence requires expert testimony when an issue involves matters beyond jurors’ common understanding. In this case, the homeowners designated experts as to the damages that they sustained and attorneys’ fees, but did not proffer expert testimony to support their claim that Eagle Water breached its legal duty and caused their flooding damage.” Id. at 4. The Court held that a determination as to the specific cause of the pump stoppage, and Eagle Water’s role, if any, in the cause, necessitated an expert opinion as to whether Eagle Water failed to act as a reasonably prudent operator. Cf. Simmons v. Briggs Equip. Tr. , 221 S.W.3d 109, 114–15 ( Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that expert testimony about the inspection process was required to establish whether maintenance and service of mobile rail-car mover’s hydraulic system fell below standard of care and observing that the mere fact that the company had agreed to perform operational maintenance on equipment, without more, did not establish breach of legal duty); Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex. App.—Amarillo 1999, pet. denied) (holding that inspection and repair of aircraft engine are not within experience of layman). Due to the fact that the record contained no expert testimony attributing the pump stoppage and the subsequent flooding to Eagle Water’s failure to act as a reasonably prudent operator, the Supreme Court found that the trial court properly granted summary judgment on the element of breach.

The Knox decision confirms that a homeowner’s opinion, or a lay opinion, will not be sufficient to determine the cause of damages sustained to the homeowner’s property. Homeowners should retain the appropriate subject matter experts to address the cause of damages, not just to support the amount of damages they have suffered and are seeking to recover. Although retaining an expert will initially add to the costs that homeowners face when looking at losses sustained as a result of Harvey, or waste waters as in Knox, it will provide the evidentiary foundation to support such an award.