Calabrese v. City of Charleston
| Decision Date | 13 May 1999 |
| Docket Number | No. 25430.,25430. |
| Citation | 515 S.E.2d 814,204 W.Va. 651 |
| Court | West Virginia Supreme Court |
| Parties | William Joseph CALABRESE and Debra Calabrese, Plaintiffs, v. The CITY OF CHARLESTON, a municipal corporation, Defendant. |
Michael J. Del Giudice, Esq., Ciccarello, Del Giudice & LaFon, Charleston, West Virginia, Attorney for Plaintiffs.
G. Kenneth Robertson, Esq., Brian D. Morrison, Esq., Shuman, Annand, Bailey, Wyant & Earles, Charleston, West Virginia, Attorneys for Defendant.
In this decision, we address certified questions from the Circuit Court of Kanawha County. We agree with the circuit court's determination that a Charleston couple may proceed in a lawsuit in which they claim that their basement was repeatedly flooded because of the City of Charleston's alleged failure to use due care in the operation and maintenance of the City's sewer system.
The instant case involves a claim of immunity made by the City of Charleston, West Virginia ("the City") in a lawsuit in the Circuit Court of Kanawha County. The lawsuit was filed against the City by the plaintiffs, William and Debra Calabrese ("the Calabreses").
The Calabreses' lawsuit claims that the City was negligent in the maintenance and operation of the City's sewer system, and that such negligence caused injury to the Calabreses and their property.
Specifically, the Calabreses allege that the City was or should have been aware of obstructions and defects in the City's sewer system, and that the City did not exercise due care to correct these obstructions and defects. As a result, say the Calabreses, water and sewage up to 20 inches deep have backed up into the Calabreses' basement on at least five occasions, causing substantial damage to their carpets, furniture, etc.
In response to the Calabreses' lawsuit, the City argued to the circuit court that if one assumes arguendo that the Calabreses are factually and legally correct in their allegations of negligence, proximate causation, and damages, the City is nevertheless immune from the Calabreses' lawsuit—by virtue of the Governmental Tort Claims and Insurance Reform Act, W.Va.Code, 29-12A-1 to -18.
Specifically, the City relies upon provisions contained in W.Va.Code, 29-12A-4 [1986]1 and -5 [1986].2 The City also claims that it is immune from suit pursuant to the provisions of Section 25-17 of the Charleston City Code.3
Following the filing of a motion for summary judgment by the City asserting the City's claims of immunity, the circuit court certified four questions to this Court. Those questions, and the circuit court's answers to the questions, are as follows:
1. When the plaintiffs' claim against the City of Charleston arises from an alleged clogged, blocked or negligently designed/maintained City sewer line and/or storm drain, does the plaintiffs' claim fall within § 29-12A-4(c)(3) of the Governmental Tort Claims and Insurance Reform Act (hereinafter "the Act"), stating "political subdivisions are liable for injury ... or loss to persons or property that is caused by their negligent failure to keep public... aqueducts, ... within the political subdivision open, in repair or free from nuisance ..." thereby constituting an exception to the immunity generally provided to political subdivisions in § 29-12A-4(b)(1) of the Act?
Ruling by the Circuit Court: Yes X No__
2. If the plaintiffs' claim against the City of Charleston in this case falls within § 29-12A-4(c)(3), does the claim, in turn, fall within the specific exception to liability set forth in § 29-12A-5(a)(16) providing that "a political subdivision is immune from liability if a loss or claim results from [t]he operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision?"
3. If the plaintiffs' claim against the City of Charleston in this case falls with § 29-12A-4(c)(3), does the claim, in turn, fall within the exception to liability set forth in § 29-12A-5(a)(10) providing that "a political subdivision is immune from liability if a loss or claim results from [i]nspection powers or functions, including failure to make an adequate inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety"?
4. Is § 25-17 of the Charleston City Code, providing that "neither the City nor the Sanitary Board shall be liable for any damage resulting from bursting of any sewer main, service pipe or valve ... or from the accidental failure of the sewage collection, treatment and disposal facilities from any cause whatsoever..." a valid and enforceable exercise of municipal power and authority pursuant to W.Va.Code § 8-20-10, thereby insulating the City from suit in this case?
We proceed by identifying the applicable standard of review. We then discuss the issues of liability and immunity.
The appellate standard of review of questions of law answered and certified by a circuit court is de novo. Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
There are two liability-creating provisions of W.Va.Code, 29-12A-4(c) [1986] that may be read to apply to the Calabreses' claim against the City.
The first of these two provisions, W.Va.Code, 29-12A-4(c)(2) [1986], creates general "negligent act" liability for political subdivisions, stating that:
Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.
(See note 1, supra, for the full text of W.Va. Code, 29-12A-4 [1986]).
This statutory provision was not referred to by the circuit court in its certified questions. However, because this provision is germane to the issues of liability and immunity in the instant case, we discuss it briefly at III.B.1. infra.4
The second liability-creating statutory provision, W.Va.Code, 29-12A-4(c)(3) [1986]— the provision that is referenced by the circuit court in its certified questions—states that:
The City's position is that neither of these liability-creating provisions of W.Va.Code, 29-12A-4 [1986] are implicated by the allegations in the Calabrese lawsuit.
The City further argues that even if provisions of W.Va.Code, 29-12A-4 [1986] do impose potential liability on the City—nevertheless, 2 of the 17 specific immunity-creating provisions of W.Va.Code, 29-12A-5(a) [1986] eliminate any such liability.6
The first of these two provisions, W.Va.Code, 29-12A-5(a)(10) [1986], creates "inspection" immunity, stating that:
A political subdivision is immune from liability if a loss or claim results from: ... [i]nspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety[.]
(See the full text of W.Va.Code, 29-12A-5 [1986] at note 2 supra). We discuss this provision at III.C. infra.
The second provision that is relied on by the City, W.Va.Code, 29-12A-5(a)(16) [1986], creates "landfill" immunity, stating that:
A political subdivision is immune from liability if a loss or claim results from ... [t]he operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision[.]
(See note 2, supra, for full text of W.Va.Code, 29-12A-5 [1986]). We also discuss this provision at III.C. infra.
In determining whether the foregoing statutory provisions regarding liability and immunity bar the Calabreses from maintaining their lawsuit against the City, this Court applies the principle that:
Syllabus Point 2, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996).
Syllabus Point 1, Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998). See also Randall v. Fairmont City Police Dept., 186 W.Va. 336, 347, 412 S.E.2d 737, 748 (1991); Hose v. Berkeley County Planning Com'n, 194 W.Va. 515, 522, 460 S.E.2d 761, 768 (1995); Parkulo v. West Virginia Bd. of Probation and Parole, 199 W.Va. 161, 174, 483 S.E.2d 507, 520 (1996).7
Liability Provisions
The applicability of the "negligent act" liability provision of W.Va.Code, 29-12A-4(c)(2) [1986] to the Calabreses' claim seems clear and straightforward.
W.Va.Code, 29-12A-4(c)(2) [1986] creates liability by political subdivisions for "injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment." Id.
The Calabreses assert that the City's employees, acting within the scope of their employment, negligently performed their duties with respect to the City's storm sewer system—and that the Calabreses were proximately injured by such negligence.
Therefore, if the Calabreses can prove this to...
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