284 S.W.3d 10 (Ark. 2008), 07-1088, City of Fayetteville v. Romine

Docket Nº:07-1088.
Citation:284 S.W.3d 10, 373 Ark. 318
Opinion Judge:TOM GLAZE, Justice.
Party Name:CITY OF FAYETTEVILLE, David Jurgens, Mark Risk, David Fournet, Andrea Fournet, Appellants, v. Jeanny ROMINE, Appellee.
Attorney: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.
Case Date:May 01, 2008
Court:Supreme Court of Arkansas
 
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Page 10

284 S.W.3d 10 (Ark. 2008)

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

Page 11

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.

Page 12

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

TOM GLAZE, Justice.

[373 Ark. 319] 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 [373 Ark. 320] 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,

Page 13

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 [373 Ark. 321] 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...

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