Beck v. City of Evansville

• Court: Indiana Appellate Court
• Writing for the Court: Baker
• Citation: Beck v. City of Evansville, 842 N.E.2d 856 (Ind. App. 2006)
• Decision Date: 21 February 2006
• Docket Number: No. 82A04-0505-CV-248.,82A04-0505-CV-248.
• Parties: Mary BECK, et al., Appellants-Plaintiffs, v. CITY OF EVANSVILLE, et al., Appellees-Defendants.

842 N.E.2d 856

Mary BECK, et al., Appellants-Plaintiffs, v. CITY OF EVANSVILLE, et al., Appellees-Defendants.

No. 82A04-0505-CV-248.

Court of Appeals of Indiana.

February 21, 2006.

Leslie C. Shively, Shively & Associates, Evansville, for Appellants.

Robert W. Rock, Bowers Harrision, LLP, Evansville, for Appellees.

OPINION

BAKER, Judge.

This litigation arose as the result of extraordinary rainfall and flooding that occurred in certain Evansville neighborhoods during the summers of 2003 and 2004. Plaintiffs-appellants Mary Beck, et al.¹ (the homeowners) appeal the trial court's grant of summary judgment in favor of the appellees-defendants, the City of Evansville et al.² (the City) with regard to their claim against the City for negligence, nuisance, and inverse condemnation, following flood damage to their residences in 2003 and 2004. Specifically, the homeowners argue that the trial court erred in finding that the City was immune from liability on their negligence and nuisance claims and in determining that there had been no taking of their property for purposes of inverse condemnation. Finding that the trial court properly granted the City's motion for summary judgment based on governmental immunity, and further concluding that the homeowners failed to establish as a matter of law that any taking of their property occurred with respect to their inverse condemnation claim, we affirm the judgment of the trial court.

FACTS

The homeowners reside in naturally low-lying areas on the City's southeast side where surface water flows. In fact, various topographical maps indicate that the homeowners' residences were constructed in swamp areas and marshes. On occasion, flooding from rain would occur in those neighborhoods for the following reasons: (1) these are naturally low-lying areas which were swamp areas prior to development; (2) when the City receives extraordinarily heavy rainfall, flooding is likely to occur in these areas because they are low-lying and the sewers are beyond their capacity; and (3) expansion and development over the years in this area, along with the associated increase in impervious surfaces, has exacerbated surface water problems in these locations.

Sometime in 1996, the City, through its common council, enacted a sewer rate increase and incurred approximately $45 million in debt to address the storm water and sanitary wastewater problems. However, the storm water and sanitary wastewater problems exceeded the amount of debt that the City incurred in 1996. Because it was not economically feasible to address all of the Evansville's chronic storm water and sanitary wastewater problems at one time, the City commissioned the "Storm Water Master Plan" (the Plan), to adopt a long-term plan and goals to correct the problems in coordinated phases as funding became available.

On June 12, 1996, the Board of Public Works issued a "Notice of Request for Proposals." The Board of Works sought professional engineering advice to develop the Plan to improve its storm water collection system by identifying problem areas, providing solutions to the problems, prioritizing the listed areas that needed attention, and providing cost estimates for the proposed improvements. Ultimately, on July 31, the Board of Public Works selected Clark Dietz, Inc. (Clark Dietz) in Indianapolis to conduct an engineering study and prepare the Plan.

In adopting the completed Plan, the City—through the Board of Public Works— weighed competing priorities, budgetary considerations, and the allocation of resources. The Plan identified the homeowners' neighborhoods as areas that needed to be addressed for chronic storm water and sanitary wastewater problems; however, these areas were identified as second tier projects to be addressed when additional funding could be obtained. The Board of Public Works also awarded a contract to Clark Dietz to manage all of the consultants and engineering firms who were to be selected to perform design work for the Plan. Thereafter, the Board of Public Works awarded the first design contracts under the Plan for the first tier projects that were identified as the most problematic.

On July 9, 2003, at approximately 1:00 p.m., a severe thunderstorm developed over Evansville that produced torrential rain, wind gusts of approximately sixty miles per hour, and dime-sized hail. For nearly one hour, flash flooding occurred that caused some of the roads to be impassable. The airport registered 1.33 inches of rain in two hours. As a result of this storm, the homeowners experienced surface water and sewage flowing onto their property and into their homes. Following this incident, the homeowners filed their initial complaint against the City on September 26, 2003, seeking damages for nuisance and negligence. They also alleged that inverse condemnation had occurred as a result of the flood damage.

The homeowners filed an amended complaint on February 23, 2004, seeking damages from the City as the result of the flooding. In particular, the homeowners alleged that the City was negligent in failing to adequately control the flooding that resulted in the loss of use of their residences. The complaint also sought damages for nuisance, and the homeowners sought damages on a claim for inverse condemnation, contending that the City's negligence amounted to an unconstitutional taking and/or acquisition of their real property without the payment of just compensation. Specifically, the homeowners asserted that "due to the impact of the unhealthy sanitary living conditions created by the overflowing of combination sewers, [they have] suffered interference with the quiet enjoyment and use of [their] property." Appellant's App. p. 45. Hence, the homeowners claimed entitlement to damages for personal injury, emotional distress and mental suffering.

Thereafter, on July 31, 2004, Evansville again sustained extraordinary rainfall and extensive flooding over a two-hour period. The streets were impassable, some were under two feet of water, and residents paddled down the streets in canoes in some areas. Rainfall during that two-hour period was estimated to have measured 3.0 inches. In response, the Board of Public Works hired Clark Dietz to perform a detailed study of its preliminary recommendations in the 1997 Plan to address and provide possible solutions for the chronic storm water problems in the homeowners' residential areas. Additionally, on June 16, 2004, Mayor Weinzapfel formed a fifteen-person task force (Task Force) to analyze the proposed solutions presented in the Plan and the updated study that Clark Dietz had performed. The Task Force's mission was to choose a course of action to ameliorate the storm water problems at issue in the homeowners' neighborhoods as outlined by Clark Dietz in the previous studies.

On September 16, 2004, the Task Force recommended that the City create a storm water utility to fund future projects. Specifically, it was recommended that the City construct a separate storm sewer system for these areas, and construct an underground detention basin with a pump station. In addition to these recommendations, it is undisputed that the City already had a comprehensive maintenance and service plan for its storm water sewers. Moreover, the City's wastewater treatment facilities meet both state and federal standards and were approved for operation by the Indiana Department of Environmental Management.

On November 9, 2004, the City moved for summary judgment on the homeowners' complaint, claiming that it was entitled to judgment as a matter of law because the designated evidence demonstrated that the homeowners purchased their property with the knowledge that the area suffered flooding and water problems. The City also pointed out in its motion that the designated evidence demonstrated that the homeowners suffered only short-term interference with the use of their homes caused by the rainfall and flooding. Hence, the City claimed that there had been no "taking" of any actual part of the homeowners' real estate, and that no important rights attached to the real estate had resulted in a taking. The City also argued that the homeowners had not been deprived of the beneficial use and enjoyment of their properties, and they continued to have an economically viable use for the property because they continued to live in their residences.

The City further claimed that the homeowners' claims for negligence and nuisance were barred on the grounds of governmental immunity. In particular, the City claimed immunity because it was performing a discretionary function when it commissioned and adopted the storm water Plan. The City also asserted that there was no designated evidence establishing that any alleged negligent operation or maintenance of the sewer system caused the damage to the homeowners' property. Following a hearing on the motion, the trial court granted summary judgment in favor of the City on April 29, 2005. The homeowners now appeal.

DISCUSSION AND DECISION

I. Summary Judgment

Summary judgment is appropriate only if the pleadings and evidence considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind.2001); see also Ind. Trial Rule 56(C). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. Owens Corning, 754 N.E.2d at 909. And all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Mullins v. Parkview Hosp., Inc., 830 N.E.2d 45, 53 (Ind. Ct.App.2005).

We also note that this court faces the same issues that were before the trial court. Owens Corning, 754 N.E.2d at 908. The party appealing from a...