LaForm v. Bethlehem Tp.

• Decision Date: 18 October 1985
• Citation: 346 Pa.Super. 512,499 A.2d 1373
• Parties: Mary LAFORM and Mary Kolleogy, Administratrices of the Estate of Debbie Laform v. BETHLEHEM TOWNSHIP, and Brown-Borhek Company, and Pennsylvania Department of Transportation, and City of Bethlehem. Appeal of CITY OF BETHLEHEM, Pennsylvania League of Cities. 00168 Phila. 1983
• Court: Pennsylvania Superior Court

Page 1373

499 A.2d 1373

346 Pa.Super. 512

Mary LAFORM and Mary Kolleogy, Administratrices of the Estate of Debbie Laform v. BETHLEHEM TOWNSHIP, and Brown-Borhek Company, and Pennsylvania Department of Transportation, and City of Bethlehem.

Appeal of CITY OF BETHLEHEM, Pennsylvania League of Cities.

00168 Phila. 1983

Superior Court of Pennsylvania.

Argued Oct. 16, 1984.

Filed Oct. 18, 1985.

Charles W. Craven, Philadelphia, for appellant.

William S. Hudders, Allentown, for appellees.

Before SPAETH, President Judge, CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE, ^* JJ.

CIRILLO, Judge:

The City of Bethlehem appeals from a judgment entered in the Court of Common Pleas of Northampton County after a jury awarded wrongful death and survival damages to the plaintiffs. The appeal was certified to the Court en banc to decide an important issue concerning the liability of a municipality for storm water runoff that flows out of the municipality into a lower-lying municipality and there contributes to a dangerous condition which injures a third person.

I. Procedural Posture

This case began at the flooded intersection of William Penn Highway and Santee Road in Bethlehem Township, Pennsylvania. During a rainstorm, Debra LaForm stepped or slipped into a drainage ditch along Santee Road and was literally sucked through a drainpipe under William Penn Highway to her death. Debra's mother and sister commenced this suit against the Township, which owned and maintained Santee Road and the appurtenant ditch, and Brown-Borhek Company, owner of the adjacent property. The Township joined as additional defendants the Commonwealth of Pennsylvania Department of Transportation (PennDOT), proprietor of William Penn Highway and the underlying drainpipe, and the City of Bethlehem, from which over three quarters of the surface water flooding the intersection originated. The Township, Brown-Borhek, and PennDOT settled with the plaintiffs out of court and entered into joint tort-feasor releases. The case proceeded to trial, whereupon the jury found $1,000,000 in damages and apportioned liability as follows: City, 51%; Township, 34%; PennDOT, 15%. The court had directed a verdict in favor of Brown-Borhek. The City's post-verdict motions were denied by the trial court sitting en banc. Judgment was entered on December 22, 1982, and later corrected to include delay damages and interest against the City.

On appeal the City contends that it is entitled to judgment notwithstanding the verdict. In considering the merits of this claim, we must regard the evidence in the light most favorable to the plaintiffs as verdict-winners, and give them the benefit of every fact and inference of fact reasonably deducible from the evidence. Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Miller v. Checker Yellow Cab Co. of Bethlehem, 465 Pa. 82, 348 A.2d 128 (1975).

II. Facts

The tragedy in this case began to unfold on the evening of February 24, 1977, when Debra LaForm's car stalled at the intersection of William Penn Highway and Santee Road. It had been raining heavily that evening and the intersection was completely flooded with storm water. Another motorist, Ross McLennan, soon found himself in the same predicament as his car stalled out in the deep water flowing over the roadway. Together Ross and Debra tried unsuccessfully to restart their cars. Debra then walked to a nearby hotel to phone for help. She returned to the scene across the parking lot of Brown-Borhek Company on the west side of Santee Road. Between the lot and the road lay a five-foot-wide by three-foot-deep drainage ditch owned by the Township of Bethlehem. At the time, the ditch was completely invisible to an onlooker because the water in the ditch was overflowing its sides, forming a flat, even surface with water flooding the roadway itself. As McLennan watched from across William Penn Highway, a car passed between him and Debra, temporarily obstructing his view, and in the same instant Debra cried out and disappeared from sight.

Inside the ditch, water was rushing with ferocious velocity through an 18-inch drainpipe which took flowage from the ditch under William Penn Highway, where it discharged at right angles into a 48-inch pipe. This larger pipe in turn disgorged its contents into a stream called Nancy Run.

McLennan at first was dumbfounded by what he thought he had seen. After overcoming his initial disbelief, he began to search near the place where the girl had just been. Wading into the water, he felt around with his hands but managed to find only the drainpipe embedded in a concrete bulkhead and submerged in the coursing water. As realization shook him, he decided to contact the police.

Rescuers arrived at the scene and sealed off the intersection. A fireman was sent down into the ditch attached to a lifeline secured to the bumper of a firetruck. When he had advanced to within a few feet of the mouth of the drainpipe, the powerful suction yanked him off his feet and drew him into the pipe by his legs. The strength of several men had to be applied to haul him to safety.

Eight hours after Debra's calamitous plunge, searchers discovered her drowned body in Nancy Run.

The intersection of Santee Road and William Penn Highway had been a problem spot for years. It stood at a low point in the Nancy Run watershed. At least once or twice a year, usually during a winter rainstorm, it would be inundated with runoff from the surrounding locale. Precisely how long this flooding had been going on is not of record, but according to Leonard Fraivillig, Sr., former Township engineer and an expert witness for the plaintiffs, the condition probably predated 1959.

That year is significant because in that year PennDOT undertook general improvements on William Penn Highway, including installation of the drainpipes in question. Before installing the new system, PennDOT submitted the plans for the Township's approval. Fraivillig, however, refused to approve installation of the pipes because in his opinion a straight 96-inch pipe would be necessary to drain the ditch on the west side of Santee Road. PennDOT nevertheless went ahead with its plan and installed the smaller pipes.

At no point thereafter did PennDOT or the Township erect fences, guardrails, grates, or warning signs to protect passersby from the potential hazards of the ditch and drainpipes.

About a half mile north of the intersection, surface water flowed through a natural drainage swale into Bethlehem Township from the City of Bethlehem. Studies based on comparative acreage in the watershed had determined that 76.8% of the surface water that reached the intersection first fell within the City of Bethlehem, with the remainder coming from the Township. A sanitary sewer easement serving both municipalities was located in the course of the swale, but the swale itself was unimproved and basically followed the natural contours of the land downhill. Surface water ran overland through the swale until it came upon Santee Road about five blocks above the intersection. There the water took an abrupt turn and flowed down the roadway, wending its way around several streets in the Township before arriving at the intersection.

In the course of development, the City of Bethlehem had installed several storm sewers that emptied into the swale from streets in the northeast quadrant of the City. Major lines were opened onto the swale in 1958, 1967, and 1974. The City's storm sewers did not alter the natural course of water in the watershed nor direct water to the intersection from new sources. However, a study done in 1974 contained the following conclusions, which were stipulated into the record at the trial of this case:

Prior to any development in northeast Bethlehem storm water runoff followed a natural channel into Bethlehem Township. It is estimated that maximum flow due to a 10-year storm was 310 c.f.s. from fields and woodlands.

As the City was developed the runoff rate increased due to roofs, paving, graded lawns and some store drains; the present rate for that area may be 440 c.f.s. for an equivalent storm. When all streets, storm sewers and home construction is completed it is estimated that 10-year peak flows will be 500 c.f.s., and higher for 20 and 50 year storms.

Although the same channel continues to carry the water into the township the slight increase in total flow is concentrated in a shorter time resulting in much higher flow rates.

The "10-year storm" referred to in the report is that level of rainfall which, according to sound engineering practice, storm water disposal facilities should be designed to accommodate. Rainfall in the Bethlehem area on the date of the LaForm incident was significantly less than the level of a 10-year storm.

In 1974-75, the City bulldozed and flattened a portion of the drainage swale and built a large detention basin in the course of the swale about a half mile upstream from the city line. Typically a detention basis acts to retard the rate at which surface water flows off the land to points downstream. However, according to the plaintiffs' expert witnesses the City's basin failed to reduce flow rates downstream because it was too small and improperly designed. In practical operation, the basin prevented storm water from accumulating on properties within the City, but had a negligible effect on the flooding problem at William Penn and Santee. The plaintiffs' experts testified to other engineering options open to the City which would have alleviated downstream flooding.

One such option became the subject of a great deal of evidence in the case. Fraivillig, the Township's engineer, and engineers for the City had independently been studying the situation and had come to the same general conclusions about the best way to solve the flooding problems plaguing the Township. In 1967, Fraivillig devised a comprehensive plan for storm water...