Ely v. Kirk, 85-32

• Decision Date: 12 September 1985
• Docket Number: No. 85-32,85-32
• Parties: Ron ELY and ABC Utilities, Inc., a Wyoming corporation, Appellants (Defendants), Paul K. Ely and Delma J. Ely, Sagebrush Development, Inc., a Wyoming corporation; Clow Corporation, a Delaware corporation; Madera Pacific, Inc., a South Dakota corporation, d/b/a Knecht Building Supply; and R & P Rentals, Inc., a Wyoming corporation, Defendants, v. Sharon KIRK, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 706

707 P.2d 706

Ron ELY and ABC Utilities, Inc., a Wyoming corporation, Appellants (Defendants), Paul K. Ely and Delma J. Ely, Sagebrush Development, Inc., a Wyoming corporation; Clow Corporation, a Delaware corporation; Madera Pacific, Inc., a South Dakota corporation, d/b/a Knecht Building Supply; and R & P Rentals, Inc., a Wyoming corporation, Defendants, v. Sharon KIRK, Appellee (Plaintiff).

No. 85-32.

Supreme Court of Wyoming.

Sept. 12, 1985.

James W. Owens of Murane & Bostwick, Casper, for appellants.

Thomas E. Lubnau, II, Gillette, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellants appeal from a judgment finding them negligent in the operation of a sewage system by allowing it to back up into the basement of appellee's home on a number of occasions. Appellants contend that negligence was not established at trial, that damages were not properly determined, and that damages should not be assessed in any event against appellant Ron Ely inasmuch as the utility was operated as a corporate entity.

We affirm the judgment as it pertains to the issues on negligence and on Ron Ely's liability, and we reverse on the issue of damages to real property and remand for a trial only on the issue of damages to real property. ¹

Insofar as the issues require us to determine whether or not the evidence is sufficient to sustain the trial court, we assume the evidence in favor of the successful party to be true, disregarding entirely the

evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Pine Creek Canal No. 1 v. Stadler, Wyo., 685 P.2d 13, 17 (1984); Anderson v. Bauer, Wyo., 681 P.2d 1316, 1319 (1984); Yost v. Harpel Oil Company, Wyo., 674 P.2d 712, 716 (1983).

NEGLIGENCE

Appellants are successor owners and operators of the sewage system for Rawhide Village, a subdivision in Campbell County, which was the subject of concern in Sagebrush Development, Inc. v. Moehrke, Wyo., 604 P.2d 198 (1979). Appellee owned a home in the subdivision and finished the basement of it into a family room, a large bedroom and a second bathroom. On July 24, 1982, appellee found raw human sewage backing up into the basement with such force as to fountain six inches above the toilet seat. It filled the basement to the level of eight inches. Thereafter, it again backed up into the basement on July 25, 1982, August 11, 1982, August 15, 1982, January 1983, and August 1983. Three of these backups were due to infiltration of storm water into the sewer system; one was caused by power failure in the sewage treatment plant; one was caused by power failure and/or power fluctuations in the sewage treatment plant; and one was caused by failure of an air control valve in the compressor part of the sewer system.

Both parties recognize the necessary elements of negligence: Duty or standard of care on the part of the defendant, and a failure to perform the duty, proximately causing damage to plaintiff. ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925, 931 (1981); Danculovich v. Brown, Wyo., 593 P.2d 187, 195 (1979). The determination of the standard of care or duty is a matter of law and not the province of the jury. Medlock v. Van Wagner, Wyo., 625 P.2d 207, 208 (1981); Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832, 835 (1974).

Appellants argue that the duty was not evidenced and, in any event, the incidents were "Acts of God" and therefore were not proximately caused by appellants.

The duty or standard of care required of one to avoid risk of injury to another is that which is required of a reasonable person in the same or similar circumstances. Cervelli v. Graves, Wyo., 661 P.2d 1032, 1036 (1983); Vassos v. Roussalis, Wyo., 625 P.2d 768, 772 (1981). It is:

" '* * * [an] obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.' " (Emphasis in original.) ABC Builders, Inc. v. Phillips, supra, 632 P.2d at 930.

Appellants complain that the evidence did not contain a showing of Environmental Protection Agency requirements or other standards for operating a sewage disposal system and, thus, appellants' duty relative thereto was not established. A standard of care may be established by administrative regulations, but such may be otherwise established. The Restatement of Torts (Second) § 285 (1965), reads:

" § 285. How Standard of Conduct is Determined.

"The standard of conduct of a reasonable man may be

"(a) established by a legislative enactment or administrative regulation which so provides, or

"(b) adopted by the court from a legislative enactment or an administrative regulation which does not so provide, or

"(c) established by judicial decision, or

"(d) applied to the facts of the case by the trial judge or the jury, if there is no such enactment, regulation, or decision."

See Distad v. Cubin, Wyo., 633 P.2d 167, 171-172 (1981). In Vassos v. Roussalis, supra, 625 P.2d at 772, we noted:

"* * * Some circumstances have acquired particular legal significance which make it possible for the court to fix a more specific standard, * * * " and, we gave as examples, owners or occupiers of land, handling and dealing with a dangerous agency, and malpractice.

There is nothing in the operation of a sewage disposal plant that would require a standard of duty other than is required of a reasonable person in the same or similar circumstances. The duty may be a duty to act or a duty not to act. Failure to comprehend or recognize danger may, in itself, constitute negligence. Brittain v. Booth, Wyo., 601 P.2d 532, 535 (1979). We are not here concerned with a single back up of sewage. There was evidence in this case of such backups prior to those listed above. See Sagebrush Development, Inc. v. Moehrke, supra. The question is whether or not a reasonable person would take available means to avoid such backups under the circumstances. Would a reasonable man seal the sewer system from storm water? Would he provide a generator to back up power failure? Would he provide surge protectors to maintain steady power? Would he install one-way flow valves to prevent backward flow into residences? Under the circumstances of this case--the repeated backups and the serious nature of the resulting pollution--a reasonable person would take action to make the system effective from the standpoint of accomplishing its purpose, i.e., delivering sewage to the disposal plant and not to the basements of residences. Appellants did not do so.

In ABC Builders, Inc. v. Phillips, supra, 632 P.2d at 937, we quoted the following from 57 Am.Jur.2d Negligence § 58:

" 'The probability of injury by one to the legally protected interests of another is the basis for the law's creation of a duty to avoid such injury, and foresight of harm lies at the foundation of the duty to use care and therefore of negligence. The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances. Negligence is clearly relative in reference to the knowledge of the risk of injury to be apprehended. * * * The most common test of negligence, therefore, is whether the consequences of the alleged wrongful act were reasonably to be foreseen as injurious to others coming within the range of such acts.' "

The reasonably foreseen consequences of the failure to prevent regular sewer backups into appellee's residence are obvious. Raw human sewage in appellee's basement injured her in the enjoyment of her home, in the cost of removal of the sewage, and in its effect on the value of the property.

Additionally, the contract referred to and quoted from in Sagebrush Development, Inc. v. Moehrke, supra, was an exhibit in this case, and appellants had taken on the obligations thereof. The contract required appellants to

" * * * provide at all times for each of the * * * residences * * * sewerage service adequate for safe and sanitary collection, treatment and disposal of all domestic sewage * * *"

and to

"* * * operate and maintain the sewerage system * * * in a manner so as not to pollute the ground, air, or water in, under, or around said areas or subdivisions with improperly or inadequately treated sewage * * *."

A contract may create a relationship from which arises a duty to exercise care. Brubaker v. Glenrock Lodge International Order of Odd Fellows, Wyo., 526 P.2d 52, 59 (1974). In this instance, a violation of the contract, itself, occurred. As in Sagebrush Development, Inc. v. Moehrke, supra, a review of the record under the standard by which we determine whether or not the evidence is sufficient to sustain the trial court reflects ample grounds to find that appellants did not provide sewage service adequate for safe and sanitary collection, treatment and disposal of the sewage, and that they did not operate and maintain the sewage in a manner so as not to cause pollution with improperly or inadequately treated sewage as required by the contract under which appellee was a third-party beneficiary.

On appeal, we must affirm a judgment if it is sustainable on any legal ground or theory appearing in the record. Valentine v. Ormsbee Exploration Corporation, Wyo., 665 P.2d 452, 456 (1983); Agar v. Kysar, Wyo., 628 P.2d 1350, 1352 (1981); Wightman v. American National Bank of Wheatland, Wyo., 610 P.2d 1001, 1003 (1980); White v. Wheatland Irrigation District, Wyo., 413 P.2d 252, 257 (1966).

Appellants argued that the injury resulted from an "Act of God" and that they were not responsible for it, wherefore, "the proximate cause element of negligence was never proven." We defined an act of God in Sky Aviation Corporation v. Colt, Wyo., 475 P.2d 301, 304 (1970) as any accident, "due directly and exclusively to natural causes without human...