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Click here for the full text of this decision FACTS:James and Charlotte Jennings sued the city of Dallas after the city’s sewer main backed up and flooded their home with raw sewage. They alleged two claims: unconstitutional taking and nuisance. Specifically, their pleadings asserted that the city’s maintenance of the sewer line “constituted an unconstitutional taking, damaging, or destruction of plaintiffs’ property for public use without adequate compensation” and that “the pipeline created, operated, and maintained by the City of Dallas constituted a nuisance.” HOLDING:The court reverses the judgment of the court of appeals and render judgment that the Jenningses take nothing. The court hold that when a governmental entity physically damages private property in order to confer a public benefit, that entity may be liable under Texas Constitution Article I, �17 if it 1. knows that a specific act is causing identifiable harm; or 2. knows that the specific property damage is substantially certain to result from an authorized government action � that is, that the damage is “necessarily an incident to, or necessarily a consequential result of” the government’s action. There is no evidence that the city knew, when it unclogged the sewer line, that any flooding damage would occur. Nor is there evidence that the act of unclogging was substantially certain to lead to such damage; the record reflects that unclogging backups does not ordinarily cause residential flooding, and the plaintiffs themselves allege only that unclogging “sometimes” results in such damage. Because there was no evidence that the city possessed the knowledge required to establish an intentional taking, the trial court correctly granted the city’s summary judgment motion, and the court of appeals therefore erred in reversing the trial court. The court considers whether the city conclusively established governmental immunity from the Jenningses’ nuisance claim. A city is immune from liability for its governmental actions unless that immunity is waived. City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995). Operation of a sewer system is a governmental function. Texas Civil Practice & Remedies Code �101.0215(a)(32). Therefore, the city will not be liable for damage resulting from its operation of the sewer system without a clear waiver of governmental immunity. Plaintiffs’ reliance on Gotcher v. City of Farmersville is misplaced. That case did not create an exception to the general rule of municipal immunity. The court of appeals opinion affirmed by this court in Gotcher made clear that governmental liability for nuisance arose from Article I, �17 of the Texas Constitution. Gotcher v. City of Farmersville, 139 S.W.2d 361 (Tex. Civ. App. � Dallas 1940, writ granted) aff’d 151 S.W.2d 565 (Tex. 1941). The court of appeals explicitly noted that while cities may be “held liable for depreciation in value of land and for physical discomfort resulting from nuisances in the exercise of governmental functions [and] in the operation of sewerage plants,” liability in such cases is “bottomed on the inhibition of the Constitution, both Federal and State, that property cannot be appropriated without due compensation, even though appropriated in the exercise of governmental functions.” The court agrees that nuisance liability arises only when governmental immunity is clearly and unambiguously waived. In some cases, the Tort Claims Act may waive immunity from certain nuisance claims. In other cases, a city may be held liable for a nuisance that rises to the level of a constitutional taking. This court concluded that the city lacked the requisite intent to be held liable under Article I, �17 of the Texas Constitution. Because the plaintiffs do not assert any other potential waiver of immunity, the court concludes that the city is immune from the plaintiffs’ nuisance claim. Nothing in the statute indicates a legislative intent to waive governmental immunity for nuisance claims; rather, the statute merely allows local governments to summarily abate such conditions. Therefore, the court need not decide whether the provisions of this statute apply to the city’s maintenance and operation of its sewer system. For the purpose of governmental immunity, it makes no difference whether the condition is characterized as a nuisance in fact or a nuisance per se. In either event, the city cannot be held liable in the absence of a clear and unambiguous waiver of immunity. OPINION:Schneider, J., delivered the court’s opinion.

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