Burt v. Beautiful Savior Lutheran Church of Broomfield

• Decision Date: 25 October 1990
• Docket Number: No. 89CA1198,89CA1198
• Citation: 809 P.2d 1064
• Parties: Wayne BURT, Curtis Draper and Donna Draper, Plaintiffs-Appellees and Cross-Appellants, v. BEAUTIFUL SAVIOR LUTHERAN CHURCH OF BROOMFIELD, a Colorado non-profit corporation, Defendant-Appellant and Cross-Appellee. . A
• Court: Colorado Court of Appeals

Page 1064

809 P.2d 1064

Wayne BURT, Curtis Draper and Donna Draper, Plaintiffs-Appellees and Cross-Appellants, v. BEAUTIFUL SAVIOR LUTHERAN CHURCH OF BROOMFIELD, a Colorado

non-profit corporation, Defendant-Appellant and

Cross-Appellee.

No. 89CA1198.

Colorado Court of Appeals,

Div. A.

Oct. 25, 1990.

Rehearing Denied Nov. 23, 1990.

Certiorari Denied May 6, 1991.

Law Offices of Gordon and Walder, Philip A. Gordon, David G. Walder, Boulder, for plaintiffs-appellees and cross-appellants.

Quigley & Bruce, Neil Quigley, Denver, for defendant-appellant and cross-appellee.

Opinion by Judge DAVIDSON.

Defendant, Beautiful Savior Lutheran Church of Broomfield, appeals a judgment entered on a jury verdict in favor of plaintiffs, Wayne Burt, Donna Draper, and Curtis Draper, for water damage to Burt's real property resulting from defendant's negligence and trespass. We affirm in part, reverse in part, and remand with directions.

Defendant and Burt are adjoining landowners. The Drapers are Burt's daughter and son-in-law, and are tenants in the Burt residence. Defendant's property, which is immediately west of Burt's, is markedly sloped downwards directly toward the Burt property. Both properties have been plagued with water drainage problems for many years.

In 1964, Burt's property was flooded by surface water from a heavy rain. At that time, he installed an underground drain from his backyard to his front yard which emptied into the street. Then, in 1979, defendant converted the area immediately west of Burt's property into a paved parking lot.

Approximately four years later, in August 1983, after another heavy rain caused flooding on his property, Burt dug a ditch, in part on defendant's property, to drain water into a storm drain on the street. At the same time, in response to flooding on its property, defendant constructed a 15-foot manhole with a sump pump at a corner of its foundation wall and installed a drainpipe underground from the sump pump to the street. This drainpipe extended along the boundary between defendant's and Burt's property emptying into the street just west of the Burt property. According to defendant's evidence, at the time the drainpipe was installed, the church pastor asked Burt if he objected to the removal of certain trees which Burt had planted on defendant's property in 1961. The pastor testified that, although he told Burt there was a danger of roots clogging the new drainpipe, Burt replied he did not want the trees removed.

In 1984, approximately six months after defendant's drainpipe was installed, Burt noticed that water was coming into his basement through cracks in the foundation. Responding to Burt's complaint, defendant constructed a dirt berm on its property to deflect surface water flowing down towards Burt's property. Nevertheless, Burt's foundation continued to crack and deteriorate.

Evidence at trial indicated that defendant had installed a drainpipe which was inadequate in size and had unsealable joints that were virtually certain to leak. The evidence also showed that the drainpipe had been improperly installed and was clogged with tree roots. In June 1987, defendant replaced the drainpipe and the water flow into Burt's basement stopped.

Burt then brought this action seeking damages for the repair of his basement foundation, alleging theories of negligence and trespass. At the close of the evidence, the court instructed the jury, without objection, on both trespass and negligence. The trial court, however, refused defendant's request to instruct the jury on comparative negligence. In its ruling, the trial court reasoned that comparative negligence was not appropriate because "it's just for the jury to decide whether there is ground water that was there historically or whether it was created by the church's actions." The trial court also refused defendant's requested instruction on plaintiffs' failure to mitigate damages.

The jury returned a verdict for plaintiffs on both trespass and negligence, and defendant appeals, alleging the refusal to so instruct the jury, and other actions by the trial court, constituted reversible error. Plaintiffs cross-appeal on the issues of costs and interests. We affirm the judgment and reverse and remand on the issue of costs and interest.

I.

Defendant first contends that the trial court's refusal to submit an instruction to the jury on the defense of comparative negligence was error. We disagree.

Preliminarily, we note that, even if refusal to give a comparative negligence instruction was error as to the negligence theory, since the jury also found for plaintiffs on trespass, the verdict can be upheld on the trespass theory alone. See O'Brien v. Wallace, 145 Colo. 291, 359 P.2d 1029 (1961). Therefore, although defendant argues that comparative negligence is a defense to both negligence and trespass, because we disagree that it applies to the latter, we find no error.

Defendant argues, however, that an instruction on comparative negligence should have been given to the jury on the trespass theory because trespass is "founded upon negligence principles." We disagree.

Contrary to defendant's contention, the concept of trespass developed much earlier than the concept of negligence. Publix Cab Co. v. Colorado National Bank, 139 Colo. 205, 338 P.2d 702 (1959). See C. Gregory, Trespass to Negligence to Absolute Liability, 37 W.Va.L.Rev. 359 (1951).

In early English law, the writ of "trespass" had a basic criminal character and provided a cause of action for all direct and immediate injuries to person or property. "Trespass on the case," a separate writ which developed later, originally allowed remedies for all indirect injuries. It was from this latter writ that negligence emerged as a separate cause of action. Later, the original writ of "trespass" also evolved into separate torts. W. Prosser & W. Keeton, The Law of Torts § 6 (5th ed. 1984).

In defining the modern tort of trespass to property, some jurisdictions still make a distinction between direct and indirect injuries, labeling the former an intentional or "simple" trespass and the latter, negligent trespass. These jurisdictions apply the defense of contributory or comparative negligence to the tort of negligent trespass. See Smith v. McCullough Dredging Co., 152 So.2d 194 (Fla.Dist.Ct.App.1963).

In Colorado, however, the present tort of trespass to property has no reference to the nature or immediacy of the harm, nor do we recognize the tort of "negligent trespass." See Verzuh v. Rouse, 660 P.2d 1301 (Colo.App.1982).

Consequently, the fact that, as defendant alleges here, the trespass in this case may have been caused by a negligent act is irrelevant. In Colorado, liability for trespass requires only an intent to do the act that itself constitutes, or inevitably causes, the intrusion. Miller v. Carnation Co., 33 Colo.App. 62, 516 P.2d 661 (1973). Specifically, trespass is the physical intrusion upon property of another without the permission of the person lawfully entitled to the possession of the real estate. Magliocco v. Olson, 762 P.2d 681 (Colo.App.1987). "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally ... enters land in the possession of the other, or causes a thing or a third person to do so...." Miller v. Carnation, supra; Restatement (Second) of Torts § 158 (1965).

Thus, a landowner who sets in motion a force which, in the usual course of events, will damage property of another, is guilty of trespass on such property. Cobai v. Young, 679 P.2d 121 (Colo.App.1984) (snow sliding from a roof into plaintiff's house); Docheff v. City of Broomfield, 623 P.2d 69 (Colo.App.1980) (discharge of drainage water onto property of adjoining landowner); Miller v. Carnation Co., 39 Colo.App. 1, 564 P.2d 127 (1977) (failure to remove chicken manure resulting in pests intruding on plaintiff's property). Here, defendant's act of constructing the drainpipe in such a way as to cause water leakage into Burt's property amounted to a trespass.

Comparative negligence, however, is an affirmative defense only to negligence actions, that is, to liability based on fault. Section 13-21-111(1), C.R.S. (1987 Repl.Vol. 6A); see Carman v. Heber, 43 Colo.App. 5, 601 P.2d 646 (1979). Hence, it is not a proper issue for consideration in a trespass action.

This analysis is consistent with other jurisdictions which have a similar definition of trespass and which have considered this issue. These jurisdictions have also refused to extend contributory or comparative negligence to trespass. See Fresno Air Service v. Wood, 232 Cal.App.2d 801, 43 Cal.Rptr. 276 (1965); Mountain States Telephone & Telegraph Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148 (1960). See also 4 F. Harper, F. James, & O. Gray, The Law of Torts § 22.5 (1986).

Here, defendant does not dispute that the evidence was sufficient to support the jury's verdict for plaintiffs on their trespass claim. Therefore, because the defense of comparative negligence is inapplicable to trespass, the failure of the court to instruct the jury thereon was not error.

II.

Defendant next contends that the trial court erred by failing to submit to the jury an instruction on failure to mitigate damages. Because defendant's arguments differ as to Burt and the Drapers, we consider them separately.

A.

Defendant alleges that Burt was aware of the repairs that needed to be done to his basement in 1987 and that his failure to implement these repairs at that time dramatically increased his damages. Defendant contends this evidence was sufficient to allow the jury to consider a mitigation of damages defense. We disagree.

Failure to mitigate damages refers to the injured party's failure to take such steps as are reasonable under the circumstances to minimize the resulting damages. However, the plaintiff is not required to take...