## Facts

- Homeowners on Butterfly Avenue in Rutland, Vermont experienced sewage backing up into their basements during an intense rainstorm in May 2014, causing property damage.
- The City’s combined sewage/stormwater system serving the street was over 100 years old and included two parallel lines originally made of vitrified clay pipe.
- A 1987 inspection indicated the pipes were cracked, structurally unsound, and had root intrusion.
- In 1988, the City “slip-lined” the existing pipes by inserting polyethylene pipe inside them, reducing internal diameters (from 12-inch to 10-inch in one line; from 15-inch to 12-inch in the other).
- Plaintiffs claimed the reduced capacity from slip-lining and a bend in one line impeded flow and caused or contributed to the backups; they relied on expert opinion.
- Plaintiffs sued the City seeking damages and injunctive relief, asserting negligence (design/construction/maintenance/repair), nuisance, trespass, and a takings claim under the Vermont Constitution.
- The trial court granted summary judgment to the City on all claims, and plaintiffs appealed.

## Issues

1. Whether plaintiffs produced competent evidence that the City’s alleged design or maintenance shortcomings proximately caused the sewage backups sufficient to support negligence and nuisance claims.
2. Whether plaintiffs produced evidence of an intentional invasion (or substantial certainty of invasion) sufficient to support trespass based on sewage entering their property.
3. Whether the backups and asserted ongoing risk amounted to a compensable taking under the Vermont Constitution.
4. Whether, viewing the record favorably to plaintiffs, any claim presented a genuine dispute of material fact precluding summary judgment.

## Decision

- The Vermont Supreme Court affirmed summary judgment for the City on all claims.
- Negligence and nuisance failed because plaintiffs’ proof—particularly expert testimony—did not provide a non-speculative basis to find that the slip-lining, pipe configuration, or bend proximately caused the backups as opposed to storm-related system overload and other factors.
- Trespass failed because plaintiffs did not show the City acted with intent to cause sewage entry or with knowledge to a substantial certainty that its specific acts would result in invasion of plaintiffs’ property.
- The takings claim failed because the record did not show a permanent physical occupation or a constitutional-level substantial interference; plaintiffs could not recast alleged infrastructure negligence into a taking absent evidence of appropriation-like conduct.
- The affirmance rested on failure of proof on essential elements rather than a definitive immunity holding.

## Legal Principles

- To withstand summary judgment on negligence and nuisance, plaintiffs must present competent, non-conclusory evidence establishing breach and proximate causation; speculative causation is insufficient.
- A nuisance claim premised on the same alleged negligent acts and causation theory fails where negligence proof fails.
- Trespass to land requires intentional entry or conduct undertaken with substantial certainty that an invasion will occur; negligence or general foreseeability does not satisfy intent.
- Property damage associated with public infrastructure does not become a constitutional taking absent evidence of permanent physical occupation or substantial interference of a constitutional dimension; tort principles generally govern sporadic, event-driven intrusions.

## Conclusion

The court held that plaintiffs’ sewer-backup claims could not proceed because the record did not support non-speculative causation for negligence or nuisance, did not establish the intent element required for trespass, and did not show the type of appropriation or substantial interference necessary for a constitutional taking.


Lorman v. City of Rutland, 207 Vt. 598, 193 A.3d 1174 (2018)