DR8802-CS 900927 SALLINGER. NICHOLS. JACKSON.
KIRK & DILLARD
...... 1800 Linet.ln Plaza =r-:- ? s.- --
September 27, 1990
~s. Shohre Daneshmand
Acting City Engineer
City of Coppell ---
P. O. Box
Coppell~ Texas 75019
Re: Our File No. 445
Kay Street Drainage
Dear Shohre:
Concerning your memorandum dated September 18, 1990, I respond
as follows:
Dnder our legal system a court suit may be brought against
person (individual or corporation) seeking money damages resulting
from the persons negligent act or omission. ~here the negligent
acts of more than one person contribute to the damage~ the court
(or jury) must determine the percentage of negligence of each
negligent party. The party bringing the suit has the burden of
proving to the court or jury the negligence of each party, that
such negligence was a proximate cause of the damage and facts
sufficient to permit the court or 3ury to make a determination as
to the percentage of liability on each such party.
The party that is damaged is the one who has the right to
bring the action against those alleged to have been negligent. The
party bringing the lawsuit also must show the dollar amount of the
damage.
Concerning the Kay Street Drainage problem, the individual
property owners whose property is being subjected to flooding are
the proper parties to bring an action against any person or persons
whose negligent acts proximately caused their damage.
Your report and indeed all of the information that has come
forward over many months concerning this drainage problem appears
to place some degree of fault on almost everyone involved including
the city and the specific property owners who are being damaged.
Actually, I don~t think the city has been negligent or is in
anyway directly liable, however the city has intervened on behalf
of the property owners to assist in finding a solution to the
problem, even to the extent of spending city funds to correct the
drainage problem and getting those parties who may have some
responsibility to help finance the corrective procedures.
With respect to the viability of some legal action to recover
the costs of correcting the drainage problem we must consider the
fact that the evidence which would have to be presented would have
to be offered by an "expert in this field" who could offer opinion
testimony concerning specific acts of negligence attributable to
specific parties that caused the drainage problem.
I think that it would be ill advised for any damaged party
(individual property owner or the city on behalf of the property
owners) to file suit until such time as there is a highly qualified
expert who, based upon his study of all the matters pertaining to
the problem, can offer evidence in the form of an expert opinion in
regard to the above mentioned matters.
Also, in evaluating a damage case, one must also consider the
"statute of limitations" which is the law that prevents a plaintiff
from recovering damages where suit is not filed within a certain
period of time after a cause of action accrues.
This Kay Street drainage problem may very well be a situation
where we will be unable to get a qualified expert witness who can
offer sufficient opinion evidence to make a case of liability
against any one or more parties.
If I can be of any further help in this matter, or if you have
any additional information you would like for me to review in
regard to my response to your letter, do not hesitate to contact
me.
Very truly yours,
SALLINGER, NICHOLS, JACKSON,
KIRK & DILLARD
J Lawrence,/Jackson %
LWJ/wp
CL90-0927
Enclosures
cc:
Alan Ratliff (w/encl)
Steve Goram (w/encl)