Leslie v. City of Bonesteel, 13135

• Decision Date: 18 March 1981
• Docket Number: No. 13135,13135
• Citation: 303 N.W.2d 117
• Parties: Anita LESLIE and Darwin Leslie, Plaintiffs and Appellants, v. CITY OF BONESTEEL, a Municipal Corporation, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 117

303 N.W.2d 117

Anita LESLIE and Darwin Leslie, Plaintiffs and Appellants, v. CITY OF BONESTEEL, a Municipal Corporation, Defendant and Appellee.

No. 13135.

Supreme Court of South Dakota.

Argued Nov. 24, 1980.

March 18, 1981.

J. M. Grossenburg of Day, Grossenburg & Whiting, Winner, for plaintiffs and appellants.

Donald E. Covey, Winner, for defendant and appellee.

HENDERSON, Justice.

ACTION

Appellants (Anita and Darwin Leslie) appeal from a judgment of the trial court dismissing their complaint against appellee (City of Bonesteel, South Dakota). Appellants sought damages under two causes of action: negligence and nuisance. By agreement of the parties, the case was tried before the trial court sitting without a jury. We reverse and remand.

FACTS

At the time of the commencement of this action, appellants owned a home in Bonesteel, South Dakota. On August 28, 1978, sewer water accumulated in the basement of appellants' home. This accumulation came from the sewer openings in appellants' home which were connected to appellee's sewer system. Appellee constructed its sewer system in the early 1950's and has since operated and maintained the system. Appellee had also constructed a municipal swimming pool in 1957 and has since operated and maintained this pool. The only drainage system incorporated into the pool is connected to appellee's sewer system by means of two four-inch gate valves which converge into one four-inch line which, in turn, empties into the main line of the sewer system.

At approximately 8:00 a. m. on August 28, 1978, Robert Michael Schmitz, an employee of appellee, began draining the pool into appellee's sewer system by opening one of the four-inch valves by approximately one-third. Prior experience had taught Schmitz that an excess of water released from the pool would cause water to overflow from the manhole cover located just below the pool and above appellants' home. This manhole was the site of a 1977 flooding due to the draining of the pool. In 1976 the pool's draining process was accomplished by pumping the water onto a local football field by means of a fire truck. Prior to 1976, the pool had been drained through appellee's sewer system.

Upon arising between 7:00 a. m. and 8:00 a. m. on August 28, 1978, appellant Darwin Leslie noticed that the upstairs and downstairs toilets of his home were gurgling and not draining normally. Appellant Darwin Leslie returned to his home from a short business trip at noon on August 28, 1978, and noticed that the toilets were functioning in the same manner as they had that morning. He telephoned a member of the Bonesteel City Council and also left a message with the brother of Schmitz, notifying both individuals that the pool should not be drained any further until his basement could be watched. Appellant Darwin Leslie then left his home on another short business trip. Schmitz, upon being advised at approximately 1:00 p. m. on August 28, 1978, of the possibility of difficulty at appellants' home, inspected the involved portion of appellee's sewer system and observed some clogging at a manhole which was located above appellants' residence. Schmitz removed an accumulation of tree roots from this manhole and continued checking the flow of water throughout the draining process. However, the release rate of the water was not reduced. The pool was drained by noon on August 29, 1978. Appellants experienced

an accumulation of sewer water in their basement sometime during the afternoon of August 28, 1978.

ISSUE

Did the trial court err in not holding appellee liable for damages caused to appellants' home on a theory of actionable negligence? We hold that it did.

DECISION

Initially, we note that this Court's "clearly erroneous" standard of review stated in SDCL 15-6-52(a) does not apply to trial testimony introduced by deposition. Pearson v. Franklin Laboratories, Inc., 254 N.W.2d 133 (S.D.1977). Appellants and Schmitz personally testified at trial; all other individuals testified by deposition.

Appellee can unquestionably be held liable for the negligent maintenance of its sewer system. Shipley v. City of Spearfish, 89 S.D. 559, 235 N.W.2d 911 (1975); Shann v. Rapid City, 72 S.D. 418, 35 N.W.2d 399 (1948). The three necessary elements of actionable negligence are: (1) A duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure. Johnson v. Straight's, Inc., 288 N.W.2d 325 (S.D.1980). In addition, to support a recovery in negligence the defendant's act must have proximately caused the plaintiff's injury. Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558 (1957). As this Court stated in Goff v. Wang, 296 N.W.2d 729, 730 (S.D.1980), "(t)he issues of whether the defendant owed a duty to the plaintiff and whether the defendant's conduct proximately caused the plaintiff's injury are, in effect, so interrelated that they are generally treated as one in the same."

For proximate cause to exist, "(t)he harm suffered must be found to be a foreseeable consequence of the act complained of.... (T)he negligent act must be a substantial factor in bringing about the harm." Williams v. United States, 450 F.Supp. 1040, 1046 (D.S.D.1978). In Mulder v. Tague, 85 S.D. 544, 549, 186 N.W.2d 884, 887 (1971) (citations omitted), this Court stated:

The term "proximate cause" contemplates an immediate cause which, in natural or probable sequence, produces the injury complained of. This excludes the idea of legal liability based on mere speculative possibilities or circumstances and conditions remotely connected to the events leading up to an injury.

This Court further stated in Mulder that for proximate cause to exist, "the defendant's conduct (must have) such an effect in producing the harm as to lead reasonable men to regard it as a cause" of the plaintiff's injury. 85 S.D. at 549, 186 N.W.2d at 887. Appellant has the burden of establishing that there is sufficient evidence for the factfinder "to reasonably conclude, without resort to speculation, that the preponderance favors liability. As such, (appellants are) not required to prove (their) case to a degree of absolute certainty." Engberg v. Ford Motor Company, 87 S.D. 196, 202, 205 N.W.2d 104, 107 (1973); Parham v. Dell Rapids Township in Minnehaha County, 80 S.D. 281, 122 N.W.2d 548 (1963).

At trial, Emmett Kotrba, an unlicensed civil engineer from Gregory, South Dakota, deposed on behalf of appellants that he believed that the draining of the pool contributed to the sewage back-up in appellants' home. When asked if it could be said that but for the draining of the pool this incident would not have occurred, Kotrba replied: "But for the draining of the swimming pool this probably would not have occurred. The possibility of this occurring was very remote. But for the amount of the water produced by the municipal swimming pool this probably would not have occurred." When asked to give his opinion as to the fact that the pool had been drained nearly every year through the sewer system without a similar sort of incident, Kotrba responded: "It indicates to me that in previous years they didn't have the exact right conditions of sewage, tree roots, everything coming together at one time." Kotrba further deposed that appellee's sewer system was not designed to handle the amount of water which was drained from the pool.

Bernie Schmucker, a civil engineer from Mitchell, South Dakota, deposed on behalf of appellee. Schmucker stated that the amount of water that would be let out of the swimming pool could not flood appellants' home without some kind of blockage.

The trial court concluded as a matter of law that:

The custom and usage of (appellee's) sewer system for draining (appellee's) swimming pool since 1957 without incident of injury, establishes a standard of due care for this practice. (Appellee) did not breach this standard of due care by draining its swimming pool into the sanitary sewer system on August 28, 1978, and thereby, defendant was not negligent in the conduct and operation of its sewer system on August 28, 1978, nor was its act of draining its swimming pool...