Metro Nashville rejects liability for broken water main damage

Merchants seek pay for damages By Jenny Upchurch • THE TENNESSEAN • January 20, 2010 Metro and some Second Avenue merchants are disputing whether it was a force of nature or negligence that sent water gushing through downtown streets this month. Metro's legal office has decided the city isn't responsible for damages from the Jan. 9 water main breaks, which happened during a prolonged cold spell. Merchants along Second Avenue are stunned because the breaks occurred in pipes that are some of Nashville's oldest, dating to the late 1880s. "Once you've been put on notice of a problem, it's hard to blame it on God. They knew the pipes were old … and they pretty much waited until they broke to come up with a plan," Brian Messer said. His building at 126 Second Ave. N. houses two shops. Messer estimates he is out $25,000. Water swept into his lower floor from the street when the main broke. It rose to four feet, destroying his electrical control box. He has had to tear out soggy drywall and carpet and pay for cleanup. A tenant, French's Shoes & Boots, was flooded. Kirk Evans of Piranha's Bar & Grille also was flooded. "We don't use the space," Evans said. It just had to be cleaned up. But his was the last spot with temporary water. "I'd estimate our business was down 90 percent over five days. It was devastating to us," he said, estimating the loss at more than $15,000. Messer said insurance carriers have told owners their policies won't cover the damage because it came from surface water, not a broken pipe within the building. Metro says it isn't liable Tom Cross, associate director at the Metro Law Department, said governments are liable if the infrastructure is defective or if an employee is negligent. "The breaks were not because the pipes were defective but because of a week of extreme cold weather," he said. "Age alone is not the deciding factor. We've got a lot of infrastructure on the sewer side that is brick and older, and it is functioning just fine." "We've all known those water mains were 100 years old. We all take risks, and we have to take responsibility for them. I won't be looking to the Water Services" for restitution, said Jim McGonagle, manager of the Hard Rock Café on Broadway. He had about a foot and half of water in the retail shop on the corner of Second Avenue and was shut down for a day. Cross said Metro's decision to speed up replacement of the downtown mains is not evidence of any liability. Metro received bids Tuesday on the first phase of a multimillion-dollar project to replace downtown water lines on Broadway and Second Avenue, including the section where the six breaks were. Replacing the pipes was in Metro's five-year capital expenses plans and will be moved up, Water Services spokeswoman Sonia Harvat said. Metro Water spends an average of $6 million a year to replace water infrastructure. Temporary lines serve Work will begin as soon as possible, Harvat said, but no start or finish date can be set. "Once we open the road, we will know more," she said. "There is a lot of infrastructure under Second Avenue we'll have to work around." Temporary water lines strung up and down Second Avenue are supplying businesses and residents. Water must be left trickling at night to prevent frozen pipes. But Metro will bill users based on past usage, not on the actual amount of water. Messer said it's crucial that the work be done by May and June for Nashville's busiest tourist time, the CMA Music Festival. And he and Evans say they are not looking for a windfall. "No one is looking at this as a big payday, for Metro to come down here and start writing checks. But for them to blame this on God is just shameful," Messer said.