Fletcher v. City of Independence

• Citation: 708 S.W.2d 158
• Decision Date: 28 January 1986
• Docket Number: No. WD,WD
• Parties: Larry FLETCHER and Anita Fletcher, Respondents, v. CITY OF INDEPENDENCE, Missouri, Appellant. 35947.
• Court: Court of Appeal of Missouri (US)

Page 158

708 S.W.2d 158

Larry FLETCHER and Anita Fletcher, Respondents, v. CITY OF INDEPENDENCE, Missouri, Appellant.

No. WD 35947.

Missouri Court of Appeals Western District.

Jan. 28, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 27, 1986.

Application to Transfer Denied

May 13, 1986.

George E. Kapke, Joe F. Willerth, Independence, for appellant.

James C. Wirken, Sue A. Sperry, Kansas City, for respondent.

Before PRITCHARD, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

The plaintiffs Fletcher, husband and wife, sued the City of Independence for injury to their persons and damage to their property from recurrent sewer backups into the basement of their home. The claims were submitted on the theory of nuisance, and the plaintiffs recovered. The jury returned a total of $39,000 in awards: $15,000 to husband Fletcher for personal injury, $6,000 to wife Fletcher for personal injury, and $18,000 to both Fletchers for property damage. The City of Independence contends on appeal, among other grounds, that under the evidence the issue was submissible--if at all--as a negligent nuisance and not as a per se or intentional nuisance, and hence the jury was required to compare the relative faults of the parties for verdict under the Gustafson v. Benda principle. We determine that the contentions of error are without ground, and affirm the judgment.

In May of 1971, the plaintiffs Fletcher purchased a home at 823 South Savage in the City of Independence and continued to live there until December of 1983. The purchase price was $14,000. The structure had been removed from another location in the city sometime earlier and placed on a new basement at the South Savage site. The home is located in a declivity at the southeast corner of the intersection of Savage and Sea, and faces west onto Savage. [Savage runs north and south, and Sea runs east and west.] The terrain slopes uphill from the home structure in three directions: Savage to the north, Savage to the south, and Sea to the east. In the middle of the intersection of those streets is located manhole 40 of the municipal sanitary sewer system. In the southeast of the intersection is an open catch basin--a component of the underground storm sewer system--which emerges from place to place to capture and carry off rain water. Thus, the Fletcher residence rests in the bottom of a watershed.

The Fletchers were not aware of any sewer backup concerns in the neighborhood at the time they came to own the premises in 1971. In early 1972, the Fletchers experienced the first sewer backup episode. It was raining, Fletcher heard the sound of gurgling water and discovered the basement covered with water to a depth of two to three feet. It gave off the stench of an open sewer--of offal and human waste. When the sewage receded, it left behind a film of slime and a residue of feces, worms and toilet paper. The sewage induced in Fletcher the urge to vomit. He shoveled and swept and scooped up the solids, removed them, and sprayed the basement. He then telephoned the City of Independence offices and was directed to the municipal Health Department, by that office to the Sewer Maintenance Department, by that office to City Engineering Department, and by that office back to the Health Department. He was then advised to consult a plumber.

The incidence of sewer backup continued thereafter intermittently and regularly. The Fletchers kept no record of the occurrences, but "a good shower" would result in a sewer backup of from one to four inches in the basement, and a "gully-washer," from two to three feet. The backups continued through 1972, and Fletcher recalled such incidents in 1972, 1974, 1977 and 1979--among other times. He specifically recalled a sewer backup on October 12, 1974, when the sewage backed up approximately one foot over the basement. That occasion destroyed the furnace motor and induced Fletcher to install a special rig so that the new motor could be disconnected should a backup recur. It was necessary, also, to contrive ceiling hooks to prevent articles stored in the basement from destruction. The recurrence of the backups dislocated the domestic activity: the washer and dryer were moved upstairs and the family members were obliged to bathe and to launder elsewhere when the furnace and hot water heater were extinguished by the sewage--and also to wear heavy apparel indoors during the winter. Memorabilia and other property were lost, a dryer had to be replaced. There were consequences to the persons of the Fletchers from the recurrent and prolonged episodes of exposure Over the course of the eleven years--from 1972 to 1983--Fletcher, at one time or another, reported the backup phenomenon to the municipal Health Department, the Public Works Department, the Sewer Maintenance Department, the Engineering Department, the City Council and to the Mayor of Independence. Fletcher appeared before the City Council on October 7, 1974 to advise them of "the problem in the neighborhood" and to enlist a solution. Fletcher also talked to a local television newscaster about the problem "[t]o try and get the city motivated after a report was done to do something." Nothing came of those initiatives. The years 1975 and 1976 were dry, and hence uneventful. In 1977--the year of the Plaza flood--however, the sewage in the basement backed up to a level of five feet. Two municipal employees came to the Fletcher home to investigate a complaint--Keeran, a health inspector, and Cox, a city engineer. Keeran went to the basement and there saw human debris and fecal matter, four to six inches deep, from the backup. He took samples and Health Department tests determined that the water was sufficiently saturated with fecal matter to be considered human sewage. Keeran recounted conversations with personnel of the Engineering Department that the sewer system in the area was not adequate to service the housing. He recounted conversations with personnel of the Sewer Maintenance Department that at times of heavy storm runoffs, the manhole cover [No. 40] in the intersection of Savage and Sea "stands up" on the water--as high as three feet off the pavement--from the backflow. Keeran then made an appointment for the Fletchers with the City of Independence Mayor King "about this problem," and later accompanied them to his office. They conversed, and King told the Fletchers that the city would have the problem solved or "have an answer for them" within two weeks. The mayor ultimately advised the Fletchers to sue in the small claims court, and in 1979 the Fletchers brought such an action. The backups recurred in 1980, 1981, 1982, and 1983. The Fletchers dismissed the small claims action without prejudice, and this suit followed.

to the raw sewage. Mrs. Fletcher experienced shortness of breath on those occasions, suffered nightmares, and ultimately became depressed. The noxious odors from the sewage caused Mr. Fletcher to heave and vomit; his eyes burned, and his lungs hurt. Also, each episode put him to the physical effort and discomfort of sewage removal--clad in boots, mask and rubber gloves--to clean out the accumulated fecal substances, tampons, and the like, and then to hose down the slime from the walls and basement and to sanitize the area with undiluted Clorox.

The plaintiffs presented witness Nissen, an analytical chemist with Aztec Laboratories. He visited the Fletcher home on four occasions to test samples from the sump basin in the basement. The analysis disclosed 760 fecal coliform organisms in the 100 mms. sample tested. The witness concluded that there was some contamination in the Fletcher basement caused by the fecal matter.

The plaintiffs also called James F. Merideth, a licensed professional engineer, and Director of Public Works/Engineering for the City of Independence. He is responsible for the design and oversight of the construction of sanitary sewer lines. The witness testified that the sewer district which services the area of the Fletcher home was constructed in the period from 1954 to 1956. Merideth then described the configuration of the sewer system which serves the Savage and Sea area of the Fletcher home: at that intersection, three eight-inch pipes conjoin to empty into one eight-inch pipe. He testified that the Fletcher backups were caused, in part by storm water infiltration into the sanitary sewer system. Merideth distinguished between infiltration and inflow to a sanitary sewer system. Infiltration occurs when ground water comes into the sewer system from the water table, whereas inflow comes into the system from surface runoff. He testified that under the present sanitary sewer system design some infiltration is Merideth testified that the City of Independence was familiar with the Fletcher backup problem. In 1978 a portion of the sewer system was rerouted by the construction of a line from manhole 15 to manhole 14 [one block north or uphill from Savage and Sea]. The purpose was to eliminate the hydraulic pressure and turbulence in manhole 30, and hence avoid the sewage backup into the lateral line in that area. The 1978 construction did not seal off the system, but was merely a diversion of some of the sewage away from the area where the three eight-inch pipes conjoined at the Savage and Sea location. The purpose was to eliminate the hydraulic pressure and turbulence in manhole 30, and hence avoid the sewage backup into the lateral lines in that area. The result was to move the point of hydraulic pressure concentration further down the system. Merideth testified that in addition to that response at correction, roots were removed and pipes grouted in the areas of infiltration.

expected, but no allowance for inflow is made. The cause of infiltration is the separation of the joints of a sewer line from long use or from the force of root growth.

In early 1980 the city developed a plan to construct a new sewer main. The...