City of Fayetteville v. Romine

• Decision Date: 01 May 2008
• Docket Number: No. 07-1088.,07-1088.
• Citation: 373 Ark. 318,284 S.W.3d 10
• Parties: CITY OF FAYETTEVILLE, David Jurgens, Mark Risk, David Fournet, Andrea Fournet, Appellants, v. Jeanny ROMINE, Appellee.
• Court: Arkansas Supreme Court

284 S.W.3d 10

373 Ark. 318

CITY OF FAYETTEVILLE, David Jurgens, Mark Risk, David Fournet, Andrea Fournet, Appellants, v. Jeanny ROMINE, Appellee.

No. 07-1088.

Supreme Court of Arkansas.

May 1, 2008.

Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark and Don A. Taylor, Fayetteville, for appellant David Jurgens.

Kit Williams, Fayetteville City Attorney, for appellant City of Fayetteville.

The Doss Law Firm, by: D. Westbrook Doss and Kyle T. Unser, Fayetteville, for appellee.

TOM GLAZE, Justice.

This case presents an issue of whether a city employee is immune from suit in a civil-rights action. The appellee, Ms. Jeanny Romine, lives at 11 Trenton Boulevard in Fayetteville. Around September of 1998, she began to notice the smell of raw sewage in her back yard. Romine notified the City of Fayetteville about the sewage odor, and subsequent testing by the City revealed that the source of the odor was raw sewage that was seeping downhill from her neighbors' clogged sewer lines and overflowing from a clean-out meter box in Romine's yard. Although, at the time, the City had determined that the sewer lines were private lines, rather than city-owned lines, it nonetheless cleaned out the sewer drains that were causing the problem. In addition, in October of 1998, the City offered to pay Romine $880 for an easement over her property. The easement would have allowed the City to go on to Romine's property, reline the existing sewer pipe, and replace the clean-out box with a manhole for future access.

However, Romine refused the offer of $880 for the easement, believing the offer was not sufficient compensation for her land. After she refused to accept the easement, the City informed her that, because the sewer lines were private, there was nothing else the City could do for her. For the next seven years, sewage continued to seep over Romine's land from the defective sewer lines, and Romine filed suit against the City of Fayetteville in 2005. In addition, Romine sued her uphill neighbors — David and Andrea Fournet and Mark Risk — and appellant David Jurgens, the Superintendent of the Water and Sewer Division for the City of Fayetteville.

Romine's complaint raised counts of inverse condemnation, outrage, and negligence against the City; outrage, negligence, public nuisance, and trespass against the neighbors; and "toxic assault and battery" against both the City and the neighbors. In addition, Romine brought a civil-rights claim against the City and Jurgens. Specifically, Romine alleged that Jurgens was personally aware of the presence of raw, untreated sewage on her property in 1998 and was aware of the hazards of exposure to raw sewage. Further, she contended that, after she declined the City's offer of $880 for an easement, "Jurgens informed [her] that the offer was withdrawn and that the City of Fayetteville would take no further steps to remedy the sewage problem." Jurgens's actions in "withdrawing" the offer for the proposed easement, Romine claimed, constituted a deprivation of her Fifth Amendment rights to be free from governmental takings of her property without just compensation.

Jurgens answered, contending that any contact he had with Romine was solely in his official capacity as a city employee, and as such, he was immune from suit. On July 23, 2007, Jurgens moved for summary judgment, arguing that, because he was sued in his official capacity, he was protected from suit by Ark.Code Ann. § 21-9-301 (Repl.2004). He alleged that, because he had acted in good faith in his dealings with Romine, and she had not pled any facts establishing that he acted with malice, he was entitled to summary judgment. After a hearing on September 7, 2007, the Washington County Circuit Court denied Jurgens's summary-judgment motion, finding that there were disputed facts as to whether Jurgens had acted with conscious indifference towards Romine's problems. Jurgens filed his notice of appeal on September 18 As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. See Arkansas River Educational Servs. v. Modacure, 371 Ark. 466, 267 S.W.3d 595 (2007). However, that general rule does not apply where the refusal to grant a summary-judgment motion has the effect of determining that the appellant is not entitled to immunity from suit, as the right of immunity from suit is effectively lost if a case is permitted to go to trial. See Modacure, supra. The issue of whether a party is immune from suit is purely a question of law, see Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005), and is reviewed de novo. Modacure, supra.

Arkansas affords a measure of immunity from suit to municipal corporations and their employees. Ark.Code Ann. § 21-9-301 (Repl.2004) provides as follows:

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

This court has consistently held that § 21-9-301 provides city employees with immunity from civil liability for negligent acts, but not for intentional acts. See Smith v. Brt, 363 Ark. at 130, 211 S.W.3d at 489; Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).

In this case, Romine sued Jurgens in his official capacity as Sewer and Water Maintenance Supervisor for the City of Fayetteville.¹ In cases involving the existence of immunity under § 21-9-301, this court has utilized the analysis performed in interpreting the counterpart qualified-immunity statute that applies to state employees, Ark.Code Ann. § 19-10-305 (Repl.2007). See Smith v. Brt, supra; City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006). Section 19-10-305 provides state employees with qualified immunity from civil liability for non-malicious acts occurring within the course of their employment. City of Farmington, supra; Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). In interpreting § 19-10-305, we have traditionally been guided by the analysis adopted by the United States Supreme Court for qualified-immunity claims in federal civil-rights actions. See Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

In both Smith v. Brt, supra, and City of Farmington v. Smith, supra, this court has explained the qualified immunity issue as follows:

Under that analysis, a motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation demonstrated the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Fegans v. Norris, supra (citing Baldridge v. Cordes, 350 Ark. 114, 120-21, 85 S.W.3d 511, 514-15 (2002)). An official is immune from suit if his or her actions did not violate clearly established principles of law of which a reasonable person would have knowledge. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800[, 102 S.Ct. 2727, 73 L.Ed.2d 396] (1982)). The objective reasonable-person standard utilized in qualified-immunity analysis is a legal inquiry. Baldridge v. Cordes, supra.

The inquiry outlined above is a restatement of the standard used by this court to evaluate motions for summary judgment on the ground of qualified immunity. See Baldridge v. Cordes, supra (citing Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir.2000)). The Eighth Circuit Court of Appeals has emphasized, however, that such a restatement of the standard is incomplete: "Courts deciding questions of qualified immunity must also recognize that `whether summary judgment on grounds of qualified immunity is appropriate from a particular set of facts is a question of law.'" Pace v. City of Des Moines, 201 F.3d at 1056 (citing Lambert v. City of Dumas, 187 F.3d 931, 935 (1999)).

City of Farmington v. Smith, 366 Ark. at 478-79, 237 S.W.3d at 5-6; Smith v. Brt, 363 Ark. at 131, 211 S.W.3d at 489.

Applying these rules, Romine's suit against Jurgens is therefore barred unless she has "asserted a constitutional violation, demonstrated the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right." Smith v. Brt, 363 Ark. at 131, 211 S.W.3d at 489; see also Fegans v. Norris, supra; Baldridge v. Cordes, supra. Because of the interlocutory nature of this type of appeal, our court is limited to determining whether the law or right Jurgens is alleged to have violated was clearly established at the time of the alleged violation, and whether a reasonable person would have known about it. City of Farmington, 366 Ark. at 479, 237 S.W.3d at 6.

Romine asserts that she had a constitutional right to be "free from uncompensated governmental takings of her property." Although Jurgens counters that there was no "taking" at all, let alone an uncompensated taking, Romine appears to be contending the fact that the sewage overflow on her property constituted a form of inverse condemnation. See Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). In Robinson, a homeowner sued the City of Ashdown because a city-owned sewer line consistently failed and caused sewage to overflow into the homeowner's home over a period of nine years. This court held that a continuing trespass or nuisance, in the form of constantly overflowing sewage, could ripen into inverse condemnation. More specifically, the Robinson court held that, "[w]hen a...