Betty v. Metropolitan Government of Nashville and Davidson County

• Decision Date: 07 February 1992
• Parties: Ben R. BETTY, III and wife Nancy Betty, Plaintiffs/Appellees, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 1

835 S.W.2d 1

Ben R. BETTY, III and wife Nancy Betty, Plaintiffs/Appellees, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Defendant/Appellant.

Court of Appeals of Tennessee Middle Section, at Nashville.

Feb. 7, 1992.

Permission to Appeal Denied by

Supreme Court May 18, 1992.

James L. Murphy, III, Metropolitan Government Dept. of Law, Nashville, for defendant/appellant.

John W. Wagster, Nashville, for plaintiffs/appellees.

OPINION

KOCH, Judge.

This appeal concerns a city's liability for damages to a privately-owned dam caused by a rupture in one of its sewerage forced mains. The property owners filed suit in the Circuit Court for Davidson County after the city declined to pay for repairing the dam. A jury awarded the property owners $330,000 on their inverse condemnation claim. The trial court also awarded them $60,000 for their claims under the Governmental Tort Liability Act but merged its award into the jury's verdict and entered a judgment for $330,000. The city has appealed, asserting that the evidence does not support the verdict, that the jury instructions were improper, and that the trial court incorrectly applied the Governmental Tort Liability Act. We have determined that the evidence supports the jury's verdict and that, in the absence of objections from the property owners, the errors and inconsistencies in the jury instructions caused by granting the city's erroneous special requests do not provide grounds for a new trial.

I.

Ben and Nancy Betty live in a Norman style stone home on nine acres in the Madison community of Davidson County. Their property, which they purchased in 1979, adjoins Cheek Lake, a seven-acre lake created in 1927 when Newman Cheek built a forty-foot dam as part of the Lakewood Water Company. Mr. Cheek built the Bettys' house two years after he built the dam. A roadway across the dam is the only regular means of ingress and egress to and from the Bettys' house.

In November, 1967, Mr. Cheek and his wife granted an easement to the Metropolitan Government of Nashville and Davidson County to construct a sanitary sewer or storm drain over their property. The dam was included within this easement. The city later constructed a 14-inch sewerage forced main on the easement. A portion of the main is attached to the upstream face of the dam. The main transports sewerage under pressure from the Loves Branch Pumping Station across the easement to intersect with another sewerage forced main.

On the morning of August 23, 1986, Mr. Betty noticed the smell of sewage as he drove across the dam. Upon investigating, he discovered a considerable amount of raw sewage in Cheek Lake. He also saw raw sewage running out of the west bank of Cheek Lake above the dam and flowing over the dam's spillway into the Cumberland River. Mr. Betty immediately reported the problem to the Madison Suburban Utility District who, in turn, notified the Metropolitan Department of Water and Sewerage Services.

A city repair crew did not arrive until late in the afternoon. Their efforts to locate and repair the main were hampered by repeated equipment failures, by the proximity of other water mains to the broken main, and by their inability to shut off the pressure in the main. Thus, for the next thirty-six hours, thousands of gallons of raw sewage were pumped into the ground adjacent to the dam. The sewage infiltrated the dam and found its way into the crevices in the limestone bluffs adjacent to the dam. It eventually began to boil up from the bottom of the lake and to spew from the face of the dam and the limestone bluffs below the dam.

The repair crew was finally able to shut off the pressure in the main on the morning of August 25, 1986. Then they were able to begin repairing a broken pipe connecting the forced main to an air relief manhole near the dam. They completed the repairs to the main some time during the morning of August 26, 1986.

Even before the repairs were completed, Mr. Betty wrote a letter to the mayor complaining of the crew's "gross negligence" and requesting that "my place be restored to its condition prior to this." The mayor responded in a telephone call that the city would "repair any thing they had torn up and that he didn't want a legal fight over it."

Mr. Betty became concerned that the sewage had compromised the dam since it was constructed of soil, compacted clay, and silt covered by a shell of cobblesize pieces of limestone held together with mortar. He hired an engineering firm to evaluate the status of the dam. In October, 1986, the engineering firm reported that it had discovered voids in the interior of the dam. Further tests revealed that the soil from the interior of the dam was being carried out by seepage from the downstream face of the dam.

The engineering firm's final report stated that problems with the dam "combined to create a condition for the dam that suggests that it [is] going to continue to degrade until ultimately failure [will] occur." The engineer who prepared the report informed Mr. Betty that the break in the main had left the dam in a precarious and dangerous condition and that the dam could fail at any minute. He also recommended immediate repairs.

Mr. Betty saw to it that copies of the engineering reports were sent to various responsible city officials. He had a difficult time getting a response or even arranging a meeting with the city but was finally able to meet with the acting director of the Department of Water and Sewerage Services. The acting director declined to send a city engineer to evaluate the dam's condition and suggested that Mr. Betty make the repairs himself and then submit the bill to the city.

Mr. Betty believed that the city had placed him in an untenable position. He could either gamble that the dam would not fail or he could fix the dam and gamble that the city would pay for the repairs. Because of the serious consequences of the dam's failure, he elected to repair the dam. His engineer designed a remedial plan, and then Mr. Betty paid a contractor $401,553 to fill the voids in the dam and the bluffs by pumping grout into them.

Mr. Betty submitted the repair bill to the city. In April, 1987, the city declined to pay for the repairs. The Bettys filed suit against the city two months later. Their complaint contained nine theories of recovery, including causes of action based on Tenn.Code Ann. § 29-16-123(a) (1980), violation of Tenn. Const. art. 1, § 21, breach of the easement agreement, and negligence. ¹ Following a two-day trial, the trial court submitted the condemnation and breach of easement agreement claims to the jury and reserved the negligence claims for its own consideration under the Tennessee Governmental Tort Liability Act.

The jury awarded the Bettys $330,000. Later, the trial court awarded them $60,000 based on its determination that the city's negligence had caused "three separate accidents," each causing the Bettys "at least $20,000 ... in damages." However, the trial court decided that its award should be "included within" the damages awarded by the jury and, therefore, entered a judgment for the Bettys in the amount of $330,000.

II.

In its first two issues, the city asserts that the trial court should have set aside the verdict because the Bettys failed to make out an inverse condemnation claim. Specifically, it asserts that the proof is deficient because the Bettys did not show that the damages were permanent or that they were caused by an intentional, affirmative act. We find that the Bettys' proof was sufficient both as a matter of fact and as a matter of law.

A.

Actions brought pursuant to Tenn.Code Ann. § 29-16-123(a) are based on Article 1, Section 21 of the Constitution of Tennessee. ² They are actions against governmental defendants

to recover the value of property which has been taken in fact by a governmental defendant even though no formal exercise of the power of eminent domain has been attempted by the government.

Johnson v. City of Greeneville, 222 Tenn. 260, 264, 435 S.W.2d 476, 478 (1968).

These statutory actions are not strictly based upon contract, property law, or tort principles. See Coyne v. City of Memphis, 118 Tenn. 651, 670, 102 S.W. 355, 360 (1907); 11A E. McQuillin, The Law of Municipal Corporations § 32.132.20 (3d ed. 1991); Arvo Van Alstyne, Inverse Condemnation: Unintended Physical Damage, 20 Hastings L.J. 431, 431, 438 (1969). They provide a constitutional remedy, Brooksbank v. Roane County, 207 Tenn. 524, 530, 341 S.W.2d 570, 573 (1960), for unintended physical damage to private property caused by the government's construction, maintenance, and use of a public improvement, McMahan's v. City of Santa Monica, 146 Cal.App.3d 683, 194 Cal.Rptr. 582, 587 (1983), and are premised on the policy that the users of public improvements should absorb such losses, not just the affected property owner. Cumberland Tel. & Telegraph Co. v. United Elec. R.R., 93 Tenn. 492, 520, 29 S.W. 104, 111 (1894); Carter County v. Street, 36 Tenn.App. 166, 176, 252 S.W.2d 803, 808 (1952); see also Holtz v. Superior Court, 3 Cal.3d 296, 475 P.2d 441, 444, 90 Cal.Rptr. 345, 349 (1970); Albers v. City of Los Angeles, 62 Cal.2d 250, 398 P.2d 129, 137, 42 Cal.Rptr. 89, 96 (1965); 3 Nichols' The Law of Eminent Domain § 8.1, at 8-34 (Rev.3d ed. 1989); Daniel R. Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wis.L.Rev. 3, 8.

Like any other condemnation action, a Tenn.Code Ann. § 29-16-123(a) claim has three necessary ingredients. First, a person's "property" must be involved. Second, the governmental authority must have "taken" the property. Third, the property must have been taken "without just compensation being made therefor." While seemingly simple on their face, these elements have sometimes proved difficult in their application.

Tenn. Const., art. 1, § 21 applies to property of all types. Duck River Elec. Membership Corp. v. City...