Jennings Buick, Inc. v. City of Cincinnati

• Decision Date: 08 December 1978
• Docket Number: No. 77-1365,77-1365
• Citation: 384 N.E.2d 303,56 Ohio St.2d 459
• Parties: , 10 O.O.3d 545 JENNINGS BUICK, INC., Appellee, v. CITY OF CINCINNATI, Appellant.
• Court: Ohio Supreme Court

Page 459

56 Ohio St.2d 459

384 N.E.2d 303, 10 O.O.3d 545

JENNINGS BUICK, INC., Appellee, v. CITY OF CINCINNATI, Appellant.

No. 77-1365.

Supreme Court of Ohio.

Dec. 8, 1978.

Syllabus by the Court

1. Water escaping from a city water main, occasioned by a break in the main, does not per se constitute an absolute nuisance or trespass requiring the application of a standard of strict liability against the city.

2. Where the facts and circumstances of the case do not establish that the activity or operation under consideration constitutes an absolute nuisance, or trespass, the legal principles of strict liability established in Fletcher v. Rylands, L.R. 1 Exch. 265, affirmed in Rylands v. Fletcher, L.R. 3 H.L. 330, and Barberton v. Miksch, 128 Ohio St. 169, 190 N.E. 387, are not applicable.

3. Water in an underground pipe under the control of a city is not such a dangerous instrumentality as to require the municipality so conveying it to confine it at the city's peril, and no recovery can be had for an injury to property caused by the breaking of such a pipe unless negligence in its construction or maintenance is shown. (Interstate Sash & Door Co. v. Cleveland, 148 Ohio St. 325, 74 N.E.2d 239, applied and followed.)

This cause involves the appeal of a judgment of the Court of Appeals which reversed a judgment of the Court of Common Pleas rendered upon a jury verdict for the defendant, city of Cincinnati, in an action brought by the plaintiff, Jennings Buick, Inc., to recover damages caused by the break in a 12-inch water main occurring on April 16, 1971.

In essence, the background of the case is that after the incident of the broken water main, the plaintiff filed an action for resulting damages in the Court of Common Pleas of Hamilton County, claiming in its amended complaint that the city had been negligent in a number of respects including, "(a) (n) egligent design, construction and supervision of construction of that portion of the sewer line immediately in front of Plaintiff's property * * * ; (b) (n) egligent contracting and supervision of the cleaning and relining of the water main * * * ; (c) (n)egligent failure to repair or replace the water main immediately in front of Plaintiff's premises when the Defendant knew or should have known that said water main had so deteriorated that it was unsafe * * * ; (d) (n)egligent failure to have and maintain adequate equipment whereby the damage incurred could have been avoided or minimized * * * ."

The defendant city filed a motion for summary judgment which was granted by the trial court. The Court of Appeals reversed and remanded for a trial on the merits upon the basis that there were genuine issues for the trier of the facts.

Upon the trial hereof at the conclusion of all the evidence, both parties moved the court for a directed verdict. The plaintiff urged the court to direct a verdict upon the basis of strict liability. The trial court overruled both motions. The jury after a consideration of all the evidence returned a verdict for the defendant. Thereafter, the trial court denied the plaintiff's motion for judgment notwithstanding the verdict. The plaintiff appealed assigning a number of errors, including (1) the trial court's refusal to direct a verdict in favor of plaintiff on the theory of strict liability, and (2) that the trial court erred in not instructing the jury on the legal principle of Res ipsa loquitur.

The Court of Appeals sustained the first assignment of error, holding that the city should be held to a standard of strict liability. On this basis it ordered the cause remanded for trial solely on the issue of damages. The court also stated in its opinion that although the doctrine of Res ipsa loquitur should have been applied to this cause, inasmuch as the first assignment of error was sustained, no error would be found in the trial court not having given the charge on Res ipsa loquitur.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Graydon, Head & Ritchey, John B. Pinney and Thomas W. Kahle, Cincinnati, for appellee.

Thomas A. Luebbers, City Sol., Timothy L. Bouscaren and Patricia W. Morrison, Cincinnati, for appellant.

HOLMES, Justice.

The city of Cincinnati appeals, having set forth the following propositions of law:

1. "The Court of Appeals is bound by Stare decisis to follow established precedent which holds that a plaintiff cannot recover for injury from a water main break unless he proves by a preponderance of the evidence that the water supplier was negligent."

2. "The maintenance by a city of over three thousand miles of water mains is not an inherently dangerous activity to which the doctrine of strict liability would apply."

3. "Before a water supplier can be held strictly liable for a break in a water main, the court must determine that operation of the water system is inherently dangerous."

There was no appeal by the city on the issue of Res ipsa loquitur in that the Court of Appeals had dismissed that issue. Also, there was no cross-appeal by the plaintiff here on the issue of Res ipsa loquitur. Therefore, the issue of whether the trial court should have charged the jury upon the doctrine of Res ipsa loquitur is not before us in the stance of this appeal.

At the trial hereof, the facts that were adduced were that the plaintiff is an operator of an automobile agency located at 7707 Vine Street in the city of Cincinnati, Ohio, and that a 12-inch city water main, which was laid in the street in front of such business establishment, had broken and released a significant quantity of water into the showroom of the plaintiff occasioning extensive damage.

The evidence showed that the 12-inch cast iron water main was the same type that had been utilized throughout many miles of water system lines in the city of Cincinnati. Further, this main had been installed in 1926 in the area and a section of this main, at or about the location of the section which had burst, had been repaired on December 6, 1970, when a leak had appeared. The plaintiff argued at trial that the repair conducted in 1970 had been improperly carried out which resulted in the break some four months later. The plaintiff produced one Mr. William S. Kolwolski, an expert, who testified that the break in the main could have been occasioned by improper method of repair and backfill as utilized by the city, but that there were also other causal factors which have been known to occasion failure of water mains.

The defendant city introduced an expert from the Cast Iron Pipe Research Association, Mr. W. Harry Smith, who testified that there is no reasonable method of inspection of underground water mains to predetermine whether a pipe might rupture.

Also, Smith testified that the city had used the appropriate method of repairing the water main in 1970, and that the city had properly backfilled the area under and around the pipe in order to give it proper support.

Additionally, the city introduced the testimony of Mr. Charles Bolton, the superintendent of the Cincinnati Waterworks, who also testified as to the utilization of the proper method of repair and backfill of the water main in question.

I.

Appellant, in its basic proposition of law here presented, in essence urges that the correct legal principle to apply to this type of case, alleging damage occasioned by water escaping from a city water main is that a party alleging such damage should not prevail unless there is a preponderance of evidence that the city was negligent. Further, the appellant argues that the Court of Appeals improperly interpreted the established law of Ohio in holding the city responsible on a standard of strict liability.

The parties in their briefing of the issues in the Court of Appeals, and within this court, and the Court of Appeals within its opinion, cite a number of cases from Ohio and other jurisdictions which they advance as being controlling.

The historic English case of Fletcher v. Rylands (1866), L.R. 1 Exch. 265, affirmed Rylands v. Fletcher (1868), L.R. 3 H.L. 330, is cited by the plaintiff as establishing the basic foundation of strict liability upon which this case should rest. The legal principle enunciated in Fletcher v. Rylands, a case where the defendant had constructed a reservoir in his land, and water escaped through coal mining excavations resulting in damage to adjoining property, was stated, at pages 279-280, in the opinion of Blackburn, J., as follows:

"We think the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is Prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of Vis major, or the act of God * * * ."

The plaintiff argues that the legal principle as set forth in Fletcher v. Rylands was basically adopted by the Supreme Court of Ohio in the case of Barberton v. Miksch (1934), 128 Ohio St. 169, 190 N.E. 387. The facts in Barberton v. Miksch show that the plaintiff landowner claimed damages to his land which had been occasioned by years of seepage or percolation of water that had escaped from a reservoir which had been constructed by the city of Barberton. The pertinent law was set forth in paragraphs three and four of the syllabus as follows:

"3. Casting water upon the land of another by seepage or percolation resulting from the construction and maintenance of a reservoir by a municipality as a part of its system for supplying water to its inhabitants, constitutes a trespass.

"4. Liability for damage proximately resulting from such trespass is not dependent upon negligence."

The city of Cincinnati conversely argues that although the principle of strict...