Barnes v. City of Thompson Falls

• Decision Date: 20 April 1999
• Docket Number: No. 98-215,98-215
• Citation: 1999 MT 77,979 P.2d 1275
• Parties: Sally A. BARNES, Plaintiff and Appellant, v. CITY OF THOMPSON FALLS, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1275

979 P.2d 1275

1999 MT 77

Sally A. BARNES, Plaintiff and Appellant, v. CITY OF THOMPSON FALLS, Defendant and Respondent.

No. 98-215.

Supreme Court of Montana.

Submitted on Briefs Jan. 21, 1999.

Decided April 20, 1999.

Linda M. Deola; Reynolds, Motl & Sherwood, Helena, Montana, For Appellant.

Mark S. Williams; Williams & Ranney, Missoula, Montana, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶1 Sally A. Barnes (Barnes) filed suit against the City of Thompson Falls (Thompson Falls) in the Twentieth Judicial District Court, Sanders County, alleging negligence and nuisance in relation to a 1996 flood that damaged her home. The District Court denied, over objection, Barnes' request to instruct the jury on nuisance. Barnes appeals. We affirm.

¶2 The sole issue on appeal is whether the District Court abused its discretion in refusing Barnes' proposed jury instructions on nuisance.

Factual and Procedural Background

¶3 In 1978, Barnes purchased a duplex in Thompson Falls. The duplex was built in a low spot in Thompson Falls, and the basement door was virtually level with the alley behind the house. As a result, runoff from higher ground tended to drain towards Barnes' property and pool in the alley outside her basement door. Within six months of moving in, Barnes began to experience flooding problems in the basement of her duplex whenever significant rainfall occurred. At that time, Thompson Falls did not have a municipal storm sewer system.

¶4 To mitigate future flooding, Barnes constructed a small retaining wall in front of the basement door around 1980. Thompson Falls established a municipal sewer system in the early 1980s and, at that time, installed a storm drain in the alley behind Barnes' home. For a period of time, these measures prevented the flooding of Barnes' basement. However, regraveling of the alley over the years by Thomson Falls resulted in the height of the alley's surface rising, thereby lessening the margin of flood protection afforded by Barnes' retaining wall. Moreover, Barnes' flooding problem was noticeably exacerbated when the State of Montana decided to expand Highway 200 through Thompson Falls.

¶5 Due to the increased runoff, Barnes experienced flooding from a 1993 rainstorm more severe than anything she had previously endured. Barnes thus filed a complaint with Thompson Falls. In response, Thompson Falls replaced the existing storm drain line in the alley with a larger diameter line. Thompson Falls also chip-sealed the alley to help prevent sand and gravel from clogging the storm drain line.

¶6 Despite these precautionary measures, on July 30, 1996, a brief but "very heavy rainstorm" in Thompson Falls caused the storm drain line to back-up. As a result, runoff pooled in the alley, flowed over Barnes' retaining wall, and flooded the basement of her duplex with three inches of caustic sludge. Barnes therefore filed suit against Thompson Falls, alleging that the city's sewer and storm drain system was negligently designed and maintained, and that the system also constituted a private nuisance. Thompson Falls argued in response that the flooding that occurred at Barnes' home in July of 1996 was not caused by the city's negligence, and that the city could not be held accountable under Barnes' theory of nuisance because its sewer and storm drain system was statutorily authorized. The District Court agreed with Thompson Falls and, accordingly, denied Barnes' request to instruct the jury on nuisance. Thus, the jury decided the case solely on the question of whether Thompson Falls was negligent, and found the city not liable. Other facts will be set forth as necessary.

Discussion

¶7 Did the District Court abuse its discretion in refusing Barnes' proposed jury instructions on nuisance?

¶8 The standard of review of a district court's refusal to give proffered jury instructions is whether the court abused its discretion. Harwood v. Glacier Elec. Co-op., Inc. (1997), 285 Mont. 481, 487, 949 P.2d 651, 655. A trial court is imbued with broad discretion to determine whether or not it will give a proposed instruction to the jury, and this Court will not overturn a district court on the basis of alleged instructional errors absent an abuse of that discretion. Savik v. Entech, Inc. (1996), 278 Mont. 152, 158, 923 P.2d 1091, 1095.

¶9 Barnes contends that the District Court abused its discretion when it ruled that she could not prevail on a claim of nuisance absent proof of negligence. Under the facts presented by this case, the District Court determined that Barnes' proposed jury instructions on nuisance were not an accurate statement of Montana law pursuant to § 27-30-101, MCA, which provides in part:

(1) Anything which is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ... is a nuisance.

(2) Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. [Emphasis added.]

Section 27-30-101(1), (2), MCA.

¶10 As Thompson Falls points out, the nuisance alleged by Barnes is the city's sewer and storm drain system, which is specifically authorized by statute. See § 7-13-4301, MCA (statutory authorization for a city or town to establish sewage and water systems). Accordingly, Thompson Falls argues that since the city's storm drain system is expressly authorized by statute, Barnes can only prevail on her theory of nuisance against Thompson Falls by proving negligence. We agree.

¶11 Barnes relies upon Wilhelm v. City of Great Falls (1987), 225 Mont. 251, 732 P.2d 1315, wherein this Court held, in part, that "[u]nder the statutory definition of nuisance at § 27-30-101, MCA, a nuisance can exist without negligence." Wilhelm, 225 Mont. at 261-62, 732 P.2d at 1322. Pursuant to this holding, Barnes requested that the District Court instruct the jury as follows:

[Barnes] is not required to prove under this theory [of nuisance] that [Thompson Falls] acted negligently. Negligence of [Thompson Falls] in this case is immaterial in determining liability and is a separate claim from nuisance. A nuisance can exist without negligence.

¶12 Wilhelm involved a nuisance action arising out a city's alleged negligent operation of a statutorily authorized landfill. Instruction 21 in Wilhelm instructed the jury that it could find a nuisance, notwithstanding the fact that the landfill was statutorily authorized, if it found that the landfill was either " 'wholly unauthorized' " or " 'negligently done.' " See Wilhelm, 225 Mont. at 261, 732 P.2d at 1321. Following trial, the jury returned a verdict that the city's landfill constituted a nuisance, but that the nuisance was not caused by the city's negligence. According to this verdict, the District Court entered judgment for the city. See Wilhelm, 225 Mont. at 255, 732 P.2d at 1317. The plaintiffs in Wilhelm appealed and this Court affirmed.

¶13 In rejecting the plaintiffs' arguments on appeal, this Court held that Instruction 21 in Wilhelm was an accurate statement of Montana law because it allowed the jury "to find a nuisance if the act done was wholly unauthorized or negligently done." Wilhelm, 225 Mont. at 261, 732 P.2d at 1322. Thus, since the landfill in question was statutorily authorized, the plaintiffs in Wilhelm, in order to prevail, were required to prove that the acts complained of were either wholly outside of the statutory authorization or so negligently performed as to constitute a nuisance.

¶14 Regrettably, as this case illustrates, the Wilhelm decision is not as clear as it should have been. The lack of clarity in Wilhelm is due in large part to this Court's failure to expressly discuss how the first two subsections of § 27-30-101, MCA, interface with each other under general principles of nuisance law. We determine that although this Court reached the right result in Wilhelm, our analysis of the jury instructions in that case without an express discussion of § 27-30-101(2), MCA, is likely to breed more confusion than clarity. Accordingly, we take this opportunity to clarify the law of nuisance in Montana as it relates to statutorily authorized activities or facilities.

¶15 This Court in Wilhelm, without expressly referring to § 27-30-101(2), MCA, implicitly recognized the distinction between an absolute nuisance, in which negligence is immaterial, and a qualified nuisance, which is predicated upon negligence. See Wilhelm, 225 Mont. at 256, 732 P.2d at 1318, quoting 58 Am.Jur.2d Nuisances § 221 (1971) (holding that, " 'where a nuisance has its origin in negligence, as distinguished from an absolute nuisance,' " contributory negligence can constitute a defense). This distinction is crucial to understanding both the proper application of § 27-30-101, MCA, as well as the result reached in Wilhelm. ¹

¶16 A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous. Thus, "negligence is merely one type of conduct upon which liability for nuisance may be based." 58 Am.Jur.2d Nuisances § 9 (1989) (footnote omitted). This was the case in Wilhelm, where the plaintiffs claimed "that the nuisance ha[d] its origins in [the city's] negligence." Wilhelm, 225 Mont. at 256, 732 P.2d at 1318.

¶17 In general, nuisances may be classified as either a nuisance per se or at law, or as a nuisance per accidens or in fact. A nuisance per se or at law is an inherently injurious act, occupation, or structure that is a nuisance at all times and under any circumstances, without regard to location or surroundings, while a nuisance per accidens or in fact is one which becomes a nuisance by virtue of circumstances and surroundings. See 66 C.J.S. Nuisances § 5 (1998).

¶18 In turn, nuisances may be classified as either absolute or qualified. An absolute nuisance is often referred to as the same thing as a...