A Not-so-Common Enemy: PA Commonwealth Court Finds Exception to Stormwater Rule.

In the case of Bretz v. Central Bucks Sch. Dist., plaintiff Mary Bretz filed a complaint in equity against the Central Bucks School District for water damage the school district’s adjacent property caused to her downstream property. The school district’s land contains a middle school and high school, both of which expanded between 1997 and 1999. Bretz claimed that the school district’s expansion, which included the construction of a detection basin and 36-inch drainage pipe running onto her property, increased the amount and duration of stormwater discharged onto her property, leading to soil erosion, damage to trees and land and threats to septic fields and electrical transformers. Specifically, Bretz requested an injunction, requiring the school district to redesign their stormwater management system.

The trial court did not attribute any damage to Bretz’s property to school district’s negligence. Rather, the trial court pointed to the common enemy rule, that generally treats surface water as a common enemy and requires property owners to fight to get rid of it in any way they can. Further, the trial court held that the school district complied with SALDO provisions during construction, and noted that improvements to the stormwater system that the school district initiated in the course of the court proceedings would improve the impact on Bretz’s property.

On appeal, the Commonwealth court ruled that the school district’s construction qualified as an exception to the common enemy rule as the detection basin had actually increased water volume and duration on Bretz’s property. Additionally, the court overruled the trial court’s denial of Bretz’s request for an injunction.

The lesson to take from all of this is that while stormwater cases can be defended, construction work can create an exception. So plan accordingly and make sure your contractors have insurance!

Special thanks to Nicole Pedi for her contributions to this post. If you have any questions about it, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.