Jivelekas v. City of Worland

Decision Date02 February 1976
Docket NumberNo. 4499,4499
Citation546 P.2d 419
PartiesKostas JIVELEKAS and Helen Jivelekas, Appellants (Plaintiffs below), v. CITY OF WORLAND, Wyoming, a Municipal Corporation, Appellee (Defendant below).
CourtWyoming Supreme Court

John W. Davis, Worland, for appellants.

Elmer J. Scott, of Scott & Jones, Worland, for appellee.

Before GUTHRIE, C. J., and RAPER and ROSE, JJ.

ROSE, Justice.


The plaintiffs charge that damage to their home was caused from a sewer backup which occurred as a result of the defendant-city's negligent planning, construction and maintenance of its sewer line. Plaintiffs ask money damages and injunctive relief to compel the city 'to take necessary steps to replace the sewer line.' Additionally, the plaintiffs-appellants rely upon the doctrine of res ipsa loquitur to supply evidence of defendant's failure to exercise due care. 1

In response, the defendant-appellee-City of Worland contends that it was not negligent in the construction-design-operation or maintenance of the sewer line, nor was its alleged negligence a proximate cause of the purported damage. The city also asserts the doctrine of res ipsa loquitur is not available under the applicable law and the facts of this case. Moreover, the city says that the plaintiffs cannot rely upon negligent construction and design of the sewer nor the doctrine of res ipsa loquitur because construction and design of a sewer is a governmental function for which, contends Worland, the city enjoys governmental immunity. 2


With the legal position of the parties thus defined, we address ourselves to these issues:

A. Was the city's alleged negligence in the planning, construction and maintenance of the sewer line a proximate cause of the plaintiffs' damages?

B. Is the doctrine of res ipsa loquitur available to the plaintiffs, absent immunity?

C. Does the doctrine of sovereign immunity apply in Wyoming in a way such as to make the concepts of negligence in design and construction D. Is the doctrine of sovereign immunity any longer applicable in Wyoming?

and res ipsa loquitur moot in this case?


An expert testified the sewer line in question was a six-inch line which emptied into an eight-inch line-that the line would probably be an eight-inch line if it were built today-he judged that it had not been anticipated that the line would be extended at the time it was built and said that at one time he had suggested it be replaced. He agreed that the grade could have some effect on the plugging propensities of a sewer line and he noted the grade for this line was not constructed as originally planned. The witness prepared a study of the line which shows that it is adequate to serve the 287 people now served by it. There was testimony to the effect that the way the line was designed and built was not the way it should be designed and built and that the city should have gone to an eight-inch line. A witness said it was bad practice to have a minimum flow of less than two feet per second and the minimum flow of this line was less than that in its west segment. It was the expert's observation that in designing, all possibility of plugging cannot be eliminated, but:

'. . . (Y)ou try and design as best you can to eliminate as many problems as possible . . .'

There was testimony to the effect that there was no way to prevent a sewer from becoming plugged with foreign objects. Officials of the city testified that this was the first plugging in this line in this area since its construction in 1950.

The plaintiffs-householders testified about the water in the basement and in the manhole behind their house and further said that the city crew, once it located the plug, had no trouble in unplugging the line.

Except for damages, this was the essence of the proof as shown by the record and as summarized by the appellants' brief.

Appellants contend that they have made a prima facie showing of the appellee's negligence and have adequately proven such negligence to be a proximate cause of the damage complained of.


At the end of the plaintiffs' case, the appellee-city made a motion to dismiss which was granted. A judgment was entered, the court stating:

'. . . (T)he Plaintiffs have failed to prove by a preponderance of the evidence that any negligence on the part of the City was the proximate cause of Plaintiffs damage; . . .'

We agree with the holding of the trial court, except that we would have omitted the words 'a preponderance of the evidence' so that the sense of the pronouncement would read that the plaintiffs had failed to prove proximate cause with any evidence. There is no causal relationship shown by this record connecting any alleged negligence of the defendant with damage claimed by the plaintiffs.

Plaintiffs have to show in the trial of their cases that the negligence caused the injury and damage unless some other acceptable proof theory comes to their rescue. Furthermore, negligence cannot be presumed from the mere happening of the accident. Elite Cleaners and Tailors, Inc. v. Gentry, Wyo., 510 P.2d 784, 788.

We do not pass upon the question of whether or not the plaintiffs made a prima facie showing of negligence in the area of construction, design or maintenance, but we do affirm the trial court and hold that there was no proof that any such purported negligence was the proximate cause of plaintiffs' claimed property damage.

In Savage v. Town of Lander, 77 Wyo. 157, 175, 309 P.2d 152, 158, where a verdict was directed against the plaintiff who charged negligent maintenance of a gutter, we held that, although there was some proof of negligence, there was no proof of proximate cause and said 'To justify a recovery the wrongful act charged must be the proximate or legal cause of the injury complained of. See Lemos v. Madden, 28 Wyo. 1, 200 P. 791; 15 Am.Jur., Damages, § 65; 38 Am.Jur., Negligence, § 51; 52 Am.Jur., Torts, § 30; 65 C.J.S. Negligence, §§ 104, 106.'

That rule is applicable here.

Where is the evidence of negligent planning, construction or maintenance from which the trial court or this court could find the damages to have flowed?

The engineering experts were never asked whether or not, in their opinion, the alleged faulty design, construction and/or maintenance was or could have been a contributing cause of the clogged sewer line under the proven facts of this case. Furthermore, they did not testify that, in their opinion, such was the case.

To satisfy the plaintiffs' proof requirements in a way which would have withstood the onslaught of a motion to dismiss (unless res ipsa supplies the evidentiary deficiency) it was necessary either to have testimony as to the cause of the plugging or an opinion of an expert based upon evidence from which he could draw an acceptable conclusion. There was no proof that the defendant's purported negligence was the proximate cause of the plaintiffs' damage.

We do not pass upon whether there was sufficient evidence in the record to furnish the foundation for a hypothetical question from which an opinion could be elicited. We do hold, however, that without properly-founded expert opinion and absent hard evidence connecting the plugging with the alleged negligent construction, design and/or maintenance, the causation requirements were not fulfilled.


The appellants-plaintiffs further assign error charging that the doctrine of res ipsa loquitur applies and, because of it, the court should have ruled the plaintiffs to have been rescued from the severe result which comes with the sustaining of the defendant's motion to dismiss.

The defendant-appellee contends that res ipsa is not applicable for the reason that the consulting engineer, Robert L. Champlin, in his testimony, stated that there was no way to prevent a sewer from becoming obstructed by foreign objects. Defendant therefore reasons that appellants are precluded by Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1, 62 P.2d 1297, 1301-1302, where we held that the doctrine does not apply unless the 'apparatus' (sewer line) is such

'that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; . . .'

It is true that the essence of Dr. Champlin's testimony is as contended by appellee. The witness testified:

'Q. What has your experience or familiarity shown you?

'A. All sorts of things are found in sewer lines. The Denver system has their main sewer plant is downstream from several meat packing areas and have had cows (sic) heads, steers (sic) heads, coming down the sewer lines, tremendous limbs. How they get in the sewer line I have no idea. All sorts of materials show up in sewer lines, yes, sir.

'Q. If the experience in Worland have been they have long pieces of two by four, large boulders and foreign objects like that, could you accept that as being true?

'A. Yes, sir, I would.

'Q. And there isn't any way that the City by design or maintenance can prevent clogging from those causes, is there?

'A. From my experience every city seems to have some of this happening at certain periods, yes, sir.'

At page 66, line 12, these questions were asked 'Q. You do know that sewers generally plug every place, don't they?

'A. Occasionally.

'Q. It isn't only in the four or six inch but in the eight and ten inch too, isn't it?

'A. That is a possibility . . .

'Q. There isn't any way for the-for a municipality to anticipate where and when a sewer is going to be plugged, is there?

'A. No, sir. Cities do have certain areas of towns certain areas of the town or city that they have problems with. This is a normal thing. A certain section might have more problems than other sections. Again, it has to do with the velocities and the use of the sewers themselves and so forth. You cannot predict that, no, sir.' (Italics supplied)

There is no evidence elicited to refute the witness' position that all sewers occasionally become...

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