City of McCrory, Arkansas v. Wilson
2022 Ark. App. 200
| Ark. Ct. App. | 2022Background
- The Wilsons sued the City of McCrory and council members, alleging that a city-constructed sewage relift/pump caused repeated sewage backflows into their property and amounted to an unlawful taking (inverse condemnation), claiming > $174,000 in damages.
- The backups occurred in 2018: four incidents between August and December (three minor; one larger after heavy rain).
- The City submitted affidavits showing the pump project was approved, the City installed a private-line backflow preventer at no cost after notice, and there were no further complaints. The City also stated it carried no liability insurance covering the incidents.
- The City moved for summary judgment asserting statutory immunity under Ark. Code § 21-9-301 and that the claim sounded in negligence, not inverse condemnation.
- The circuit court denied summary judgment, finding factual disputes about whether negligence had persisted long enough to ripen into a taking. The City appealed interlocutorily on the immunity issue.
- The Court of Appeals reversed, holding the incidents were not sufficiently long-lasting or severe to constitute inverse condemnation, the property value evidence did not show substantial diminution, and the City was entitled to statutory immunity because it had no applicable insurance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sewer backups amounted to inverse condemnation | Robinson: repeated/negligent conduct over time can ripen into a taking | Incidents were limited (four over four months), mostly minor, and were remedied promptly; not a taking | Not a taking; four episodes (three minor) over months—not long/severe enough to ripen into inverse condemnation |
| Whether the City is immune under Ark. Code § 21-9-301 | Immunity inapplicable because claim is inverse condemnation (not tort) | Claim sounds in negligence; §21-9-301 grants immunity absent insurance coverage | City entitled to immunity; claim characterized as negligence and City showed no liability insurance |
Key Cases Cited
- Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990) (negligent municipal conduct, if continuous and severe, may amount to inverse condemnation)
- City of Fort Smith v. Anderson, 241 Ark. 824, 410 S.W.2d 597 (1967) (single overflow promptly corrected does not constitute a taking)
- City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006) (interlocutory appeal permitted on denial of immunity; immunity questions are for immediate review)
- City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008) (whether a party is immune from suit is a question of law reviewed de novo)