Louis v. Louis

• Decision Date: 09 September 2003
• Docket Number: No. ED81496.,ED81496.
• Parties: The Junior College District of St. Louis, Plaintiff/Respondent v. City of St. Louis, Defendant/Appellant.
• Court: Missouri Court of Appeals

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The Junior College District of St. Louis, Plaintiff/Respondent v. City of St. Louis, Defendant/Appellant.

No. ED81496.

Court of Appeals of Missouri, Eastern District.

September 9, 2003.

Appeal From: Circuit Court of the City of St. Louis, Hon. Michael P. David.

Patricia A. Hageman and Edward J. Hanlon, Counsel for Appellant.

Martin M. Green, Joe D. Jacobson and Allen P. Press, Counsel for Respondent.

TRANSFERRED TO MISSOURI SUPREME COURT. Robert G. Dowd, Jr., Presiding Judge; concurs and George W. Draper III, Judge; concurs in result only and files separate opinion.

Opinion

Mary K. Hoff, Judge.

The City of St. Louis (City) appeals from the judgment entered in favor of The Junior College District of St. Louis (College) in the total amount of $8,259,757.30 on College's negligence claims, which were submitted on a stipulation of facts. We transfer this case to the Missouri Supreme Court. On October 23, 1997, flooding occurred at College due to water line breaks on property owned by College, which was not part of the City's water main. College filed a three-count petition against City seeking monetary relief for property damage resulting from the flooding that occurred because a shutoff valve(¹) and valve box for a fire line(²) were inaccessible and could not be located for about five hours after the flooding began. The fire line shutoff valve and valve box were not visible and were inaccessible at the time of the flood in 1997 because in 1987 City had paved over the manhole cover providing access to the fire line shutoff valve and no markings indicated the location of that manhole cover.

The trial court granted City's motion to dismiss College's second count, which alleged City was liable based on its noncompliance with its 1993 Ordinance No. 23.04.185. In summary, the trial court decided that City was exercising a proprietary function with respect to the water line causing College's damage and was not entitled to sovereign immunity from the negligence claims here, but that City's non-compliance with Ordinance No. 23.04.185 could not be a basis of liability, although it could be used as evidence of liability for the negligence claim in the first count.

The trial court resolved the two remaining negligence claims after the parties waived trial by jury and submitted a stipulation of facts. In the stipulation, the parties characterized College's two remaining claims as claims that the City Water Division had a duty to maintain the shut-off valve so that it was both visible and accessible, that the City Water Division had a duty to otherwise mark the existence and location of the shut-off valve at its location, and that the City Water Division had a duty to properly train and equip its employees to locate, access, and operate shut-off valves so as to reduce the damages suffered by the City's water customers from flooding resulting from the rupture of underground lines.

In part, the parties stipulated that "the principle amount of the damages to which the College is entitled if the City is found liable is $5,825,161" and, absent sovereign immunity or a determination College had the duty to maintain the accessibility and visibility of the valve box, the trial court "must enter judgment against the City for the entirety of the College's damages." After briefing by the parties, the trial court entered judgment in favor of College and against City in the amount of $8,259,757.30, which consists of $5,825,161.00 in principal, plus $2,434,596.30 in interest at the daily rate of $1,436.34 from October 23, 1997, to June 14, 2002. This appeal followed.

City raises six points on appeal. First, City urges the trial court erred in finding City owed College a duty to maintain the visibility and accessibility of the shutoff valve, or to mark the valve's location, because the pertinent City ordinance, Ordinance 23.12.010, which was in effect in 1987 when the street was re-paved and the shutoff valve was covered, made it the responsibility of the owner of the premises to maintain the valve box's visibility and accessibility. Second, City urges the trial court erred in entering judgment in favor of College because the public duty doctrine protects City from liability on College's negligence claims in that any duty City owed College regarding the shutoff valve's accessibility or exposure and regarding the training of City personnel to locate and access concealed shutoff valves is a duty owed to the general public and not to College individually. Third, City argues the trial court erred in entering judgment in favor of College to the extent College's negligence claims are based on insufficient training, improper training, or an insufficient response at the scene of City personnel because there was no evidence of such training or response and no evidence that any such training or response was the proximate cause of the continued flooding of College's property. Fourth, City contends the trial court erred in entering judgment in favor of College for an amount exceeding $100,000.00 because College's negligence claims arise out of City's allegedly defective property, the re-paved road over the valve box, and therefore City's damages liability is limited by Section 537.610 RSMo 1994. Fifth, City urges the trial court erred in not apportioning fault between the parties because the rupture of College's own water service line was a proximate cause of its damage and College failed to comply with the duty it had under Ordinance 23.12.010 to raise access to the fire line valve box when the street was re-paved in 1987. Sixth, City argues the trial court erred in rendering a judgment in favor of College that included an award of prejudgment interest on College 's negligence claims when College failed to establish City's conduct conferred a benefit on City and College did not make, by certified mail, a written settlement offer of a readily ascertainable amount pursuant to Section 408.040(2) RSMo 1994.

When we review a judgment based upon a stipulation of facts, the only question before us is whether the trial court drew the proper legal conclusions from the facts stipulated. Sheldon v. Board of Trustees, 779 S.W.2d 553, 554 (Mo. banc 1989) (while we usually review non-jury cases under Murphy v. Carron, the only question on review from a case tried on a stipulation of facts not involving the resolution of conflicting testimony is "whether the trial court drew proper legal conclusions from the facts stipulated"); Newfeld v. Chemical Dynamics, Inc., 784 S.W.2d 240, 240 (Mo. App. E.D. 1989) (using this standard of review in a rent and possession case submitted on a stipulation of facts). Here, we conclude in light of the City ordinance in effect in 1987, that the trial court erred in finding City had a duty to College on which College's negligence claims may be based. Therefore, we grant reversal on point one and do not address the remaining five points pursued by City in its appeal.

In its first point, City urges the trial court erred in finding City owed College a duty to maintain the visibility and accessibility of the shutoff valve, or to mark the valve's location, because the pertinent City ordinance, Ordinance 23.12.010, which was in effect in 1987 when the street was re-paved and the shutoff valve was covered, made it the responsibility of the owner of the premises to maintain the valve box's visibility and accessibility. City further contends the subsequent enactment in 1993 of Ordinance 23.04.185, which makes it City's obligation to insure valve boxes are visible and accessible after re-paving by City, cannot be applied retrospectively.

With respect to the duty element of College's negligence claims, the trial court stated: City may be held liable for a breach of duty arising from the performance of its proprietary function of maintaining and operating a municipal water distribution system.

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In the present case, the focus is on the City's function with respect to maintaining and operating its water service for customers. Part of this function entails the proper maintenance of, and accounting for, equipment necessary to carry out its operation, including marking and locating shutoff valves, and making such shutoff valves accessible. That function, as indicated above, is proprietary. Accordingly, City owes the duty of reasonable care that would be owed to a customer. City next suggests that no duty attaches because the Water Division was not apprised of the Street Department's re[-]paving activities, and states that College was in a superior position to know of the Street Department's re[-]paving work. In determining foreseeability, the focus is not whether it was foreseeable that one City department would communicate with another, but whether College's damages, arising from the supply of water from City, were foreseeably the result of City's act or omission.

The facts indicate that the City performed the re[-]paving work, that it had prepared drawings showing the location of the stop boxes, and that College lacked access to these drawings as a result of the flood damage. . . . The ordinances cited, together with the excerpts from the City's Foreman's Manual, underscore the need for accessible, exposed stop boxes, placed at street level, as part of the City's duties in providing water for its customers.

City cites Section 23.[12].010 as imposing a duty on College to make the stop box accessible. However, it was the Street Department, not the College, that made the stop boxes inaccessible. City has not articulated any act or omission on the part of College that would constitute a breach of duty.⁴ Further, the 1993 ordinance clearly imposes this duty on City when, as was the case[] here, City assumed responsibility for covering stop boxes during street repair or resurfacing.

⁴ Section 82.190 RSMo [1986] gives the City exclusive control over public streets, highways, avenues, alleys, and public places, such as [the...