District of Columbia v. Billingsley

• Decision Date: 27 November 1995
• Docket Number: No. 93-CV-64.,93-CV-64.
• Citation: 667 A.2d 837
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Marjorie BILLINGSLEY, Appellee.
• Court: D.C. Court of Appeals

667 A.2d 837

DISTRICT OF COLUMBIA, Appellant, v. Marjorie BILLINGSLEY, Appellee.

No. 93-CV-64.

District of Columbia Court of Appeals.

Argued June 14, 1994.

Decided November 27, 1995.

James C. McKay, Jr., Assistant Corporation Counsel, with whom John Payton, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellant.

Othello G. Jones, Jr., Washington, for appellee.

Before WAGNER, Chief Judge, and SCHWELB, Associate Judge, and GALLAGHER, Senior Judge.

WAGNER, Chief Judge:

The District of Columbia (District) appeals from a $40,000 judgment in favor of appellee, Marjorie Billingsley, entered following a jury trial. Billingsley initiated the action against the District for property damages caused by the District's negligence in making repairs in the street and/or main sewer line which resulted in sewage flowing up into her property.¹ The District argues that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict because Billingsley failed to prove (1) the applicable standard of care for maintenance and repair of a municipal sewer system or (2) that the District's negligence proximately caused the sewage backup. We conclude that Billingsley failed to establish a prima facie case of negligence against the District. Therefore, we reverse.

I.

Billingsley testified at trial that during December 1989, she owned and resided in a home at 4220 Southern Avenue, S.E. At that time, she used the basement of her home as a showroom and meeting room for her businesses. In that connection, she stored Amway products,² clothing, jewelry, and accessories in the basement. On December 14, 1989, at about 7:00 p.m., she noticed three inches of "cloudy looking" water on her basement floor and called the D.C. government's Department of Water and Sewer Emergency. About two hours later, two District employees arrived and broke up the blockage in the sewer line under the street, which allowed the water to drain out.³ After the repairs were made, Billingsley asked the repairmen if the situation would occur again, as she used her basement for her business. The repairmen assured her that the problem had been corrected and that she could resume normal use of the basement. The workmen took a report. The leak caused extensive damage to the basement and the products which Billingsley kept there. She directed someone who performs maintenance work to put the basement back in order.

On the morning of December 23, 1989, Billingsley again found sewage coming out of the same drain in her basement floor as before. This time, it was at least five or six inches deep. She called the emergency number again, and District employees responded that afternoon. By the time they arrived, the water and sewage had damaged her property, but the liquid had drained out of the basement. Billingsley painted and had the floors, stairs and carpet cleaned.

Finally, on December 31, 1989, at about 10:30 p.m., a dark discolored substance, which came first from the drain and then from the toilet, after Billingsley tried to cover the drain, flooded Billingsley's basement. Floating in the approximately one foot of liquid were dead rodents and pampers. Billingsley called the water department immediately and several times thereafter. She succeeded in getting a fireman, who was attending to a similar problem at a neighbor's home, to come and turn off the gas and electricity. The water and sewage continued to pour in until it was about four feet deep. About 3:00 a.m., someone from the Sewer Department arrived, and the District's employees worked in the street and broke up the blockage at approximately 4:00 a.m. They worked on the problem until 8:00 a.m. the next morning, and they returned at approximately 4:00 p.m. that afternoon to clean up, which included shoveling the refuse from her basement. Again, the sewage caused damage to Billingsley's property.⁴ Billingsley also testified about the wholesale cost of the items damaged on each of the dates and the other expenses incurred as a result of the sewer backup.

Cuthbert Braveboy, the Chief of Inspection of the Sewer Inspection and Maintenance Division of the DPW, testified that this department is the agency exclusively responsible for operating and maintaining the sewer system. He testified that although the sewers are designed to be self-cleaning, commencing about 1986, the department began cleaning them once every eight to ten years with a "jet vac," a machine with water hoses and a vacuum pipe used to remove any debris (e.g., grease, roots, solids and household items flushed into the system) from the sewer. Braveboy testified that prior to December 1989, although the department maintains such records, there were no records of complaints about the sewer system in the 4200 block of Southern Avenue, S.E. He testified that the sewage leak in appellee's basement was caused by brick and gravel in the sewer line and that such materials are not normally expected to be found in a sewer line. He explained that brick and debris could get into the sewer in a number of ways, including as the result of a plumber making a connection or someone performing work around the sewer "or a plumber doing some work in someone's home and being careless or mistakenly the brick or gravel could go through that person's line into the sewer." Such work, he said, would not be performed solely by the District. Braveboy also testified that sometimes debris could enter through missing manhole covers, although he recalled no such complaints on or about December 14, 1989. Braveboy stated that he did not know what caused the blockage specifically on January 1, 1990, but he did "know that there was some brick and gravel in the sewer as he testified to before that caused blockages."

The witness stated that the city has a preventive maintenance plan, but he did not know the last time an inspection was made in Billingsley's block prior to the first incident. He further testified that the crew sent for repairs would normally clean out any debris they found, but he did not know what they would do to prevent further backups. He further testified that he did not know how the debris got into the sewer system.

Upon the close of the plaintiff's evidence, the District moved for a directed verdict on the grounds that Billingsley failed to demonstrate by expert testimony the applicable standard of care and causation and that there was no evidence regarding causation. The trial court granted the District's motion for a directed verdict with respect to damages caused by the sewer backup on December 14, 1989, on the theory that the District had no advance notice. Billingsley does not challenge that ruling. However, the trial court denied the motion with respect to the occurrences on the other two days.

The jury returned a verdict against the District for $40,000. The District filed a motion for judgment notwithstanding the verdict (j.n.o.v.), a new trial or remittitur, all of which the court denied. The trial court stated as its reasons the following:

There was more than sufficient evidence from which the jury could reasonably conclude that District employees were negligent in clearing the blocked sewer line, that they knew or should have known that, unless properly cleared, that raw sewage would enter plaintiff's basement, and that plaintiff reasonably relied upon the assurance of District employees that it was safe to use her basement to her detriment. The verdict on liability was thus well founded.

This appeal followed.

II.

The District argues that it was entitled to a judgment as a matter of law because Billingsley failed to present a prima facie case of negligence; therefore, the trial court erred in denying its motion for judgment as a matter of law. Specifically, the District argues that Billingsley failed to present sufficient evidence to establish the applicable standard of care or that the District's breach of the standard of care proximately caused her damages. Billingsley contends that the evidence was sufficient to establish the District's liability on a negligence theory.

A. Standard of Review

In reviewing the trial court's denial of a motion for judgment notwithstanding the verdict, this court applies the same standard as the trial court does in ruling on a motion for a directed verdict. Etheredge v. District of Columbia, 635 A.2d 908, 915 (D.C.1993). Thus, we must view the evidence in the light most favorable to the non-moving party, who is entitled to every reasonable inference. Id.; Washington v. Washington Hospital Center, 579 A.2d 177, 181 (D.C.1990); see Spain v. McNeal, 337 A.2d 507, 508 (D.C. 1975). Only when the evidence, viewed in that light, permits but one reasonable conclusion as to the proper judgment, may the motion be granted. Etheredge, 635 A.2d at 915; Washington Welfare Ass'n, Inc. v. Poindexter, 479 A.2d 313, 315 (D.C.1984). On this record, we hold that this is one of those exceptional cases in which the motion should have been granted.

B. Proof of Negligence

It has long been recognized that the District may be liable for negligence in the performance of a proprietary function such as maintenance of a sewer system.⁵Gee Gee Realty Corp. v. District of Columbia, 200 A.2d 378, 379 (D.C.1964); Bannagan v. The District, 2 Mackey 285, 286, 13 D.C. 285 (1883); see also City of Tucson v. Hughes, 23 Ariz.App. 350, 352, 533 P.2d 561, 563 (1975); Carlo v. City of Pittsfield, 339 Mass. 624, 161 N.E.2d 757, 758 (1959). In order to recover from the city for the operation or maintenance of the sewer system, a plaintiff must establish that the city's negligence proximately caused the harm. Id.; see generally Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 199 (D.C.1991); District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C.1984). As in any negligence case, the plaintiff bears the burden of proving the...