Two Concord residents’ dispute with the city over a sewer system hookup has made its way to the New Hampshire Supreme Court.
James and Kath Marhan say their North State Street home was listed in the city’s assessment system as being connected to the city’s sewer system when they bought it 13 years ago and that they and their predecessors were being billed accordingly.
Then in 2015, when sewage started backing up in the Marhans home, they found out they weren’t connected to the city system after all, according to Supreme Court documents.
Instead, the home was connected to a non-conforming septic system in the backyard, the metal tank of which had collapsed. They hired Felix Septic Service to construct a replacement tank and the owners will have to connect their septic tank to the city’s sewer system at their own cost.
The Marhans accused the city of negligence last fall, saying it “had a duty to maintain accurate records within their respective departments” and that the city’s failure to do so caused damage to their home.
However, Merrimack County Superior Court Judge John Kissinger Jr. dismissed the case in March after the city argued they were immune from the damages since they didn’t own the septic system under state law.
RSA 507-B:2 says a municipality can only be held liable for bodily or personal injury and property damage stemming from its “ownership, occupation, maintenance or operation of all motor vehicles, and all premises.”
“The complainant fails to allege that the City’s alleged negligence arose out of ‘ownership, occupation, maintenance or operation’ of city motor vehicle or a city premises,” wrote attorney Charlies Bauer in a Feb. 11 motion to dismiss, representing Concord.
Additionally, Bauer argued the city is not legally required to keep accurate records of which properties are connected to its sewer system and that the Marhans should have confirmed the sewer connection themselves.
He also said the city would not be responsible for a septic system’s failure.
“Assuming as true that the city owed plaintiffs a legal duty to maintain accurate records, which is denied, the purported harm in this matter does not constitute a harm against which the duty of care protects against,” Bauer wrote.
Whether the residents will have their day at the highest court is unclear. The court accepted the case in June; it has since been referred to the state’s office of mediation and arbitration.
(Editor’s note: A previous version of this article said the Marhan’s new septic tank has been connected to Concord’s septic system.)(Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)