Lovendahl v. JORDAN SCHOOL DIST., 20010274.
| Decision Date | 27 December 2002 |
| Docket Number | No. 20010274.,20010274. |
| Citation | 63 P.3d 705,2002 UT 130 |
| Parties | James LOVENDAHL, Sue Lovendahl, Wesley Lovendahl, Plaintiffs and Appellants, v. JORDAN SCHOOL DISTRICT, Defendant and Appellee. |
| Court | Utah Supreme Court |
Stephen G. Homer, Salt Lake City, for plaintiffs.
Blake T. Ostler, Salt Lake City, for defendant.
INTRODUCTION
¶ 1 This case addresses two issues. The first concerns the scope of Utah's Governmental Immunity Act (the Act). Utah Code Ann. § 63-30-1 to -36 (1997 Supp.2002). Section 63-30-10(18)(c) of the Act immunizes governmental entities from liability for injuries arising from "regulating, mitigating, or handling hazardous materials or hazardous wastes." Granting the defendant school district's motion for summary judgment, the trial court held as a matter of law the defendant school district immune from plaintiff's nuisance suit under section 63-30-10(18)(c) when defendant attached a vent pipe to a sewer line on its property and propelled sewer gas onto plaintiff's adjacent property, causing plaintiff's alleged injuries. The trial court reasoned that the school district was disposing of hazardous waste within the meaning of section 63-30-10(18)(c) of the Act.
¶ 2 Although the court unanimously reverses the trial court's decision on this issue, we are divided on the rationale supporting this result. Justice Howe and I agree that because the school district has no statutory authority to dispose of hazardous waste, it is not entitled to the protections of section 63-30-10(18)(c) of the Utah Governmental Immunity Act. Associate Chief Justice Durrant, joined by Justice Russon and Justice Wilkins, concludes that section 63-30-10(18)(c) allows the school district to retain immunity, but that the provision does not apply in this case because the school district has not proven that the sewer gas at issue is, as a matter of law, a hazardous waste within the meaning of section 63-30-10(18)(c). As such, Associate Chief Justice Durrant's concurring and dissenting opinion constitutes the majority view on this issue.
¶ 3 On the second issue, the plaintiffs claim that the installation of the vent pipe so interfered with the use and enjoyment of their property that they are entitled to damages for inverse condemnation. The trial court held that no inverse condemnation occurred because the actual value of the plaintiffs property did not decline. We uphold the ruling of the trial court on this issue.
¶ 4 Defendant Jordan School District (the school district or the District) is a duly organized school district and a political subdivision of the State of Utah. The District owns and operates Riverton Elementary School ("Riverton Elementary" or the "school"), located in Riverton, Utah. The plaintiffs, James Lovendahl, Sue Lovendahl, and their son Wesley Lovendahl (the "Lovendahls"), own and occupy a single family home on a parcel of property immediately adjacent to Riverton Elementary School.
¶ 5 Riverton Elementary was constructed by the school district and first opened during the 1995-96 school year. Not long after the school was opened, students and district employees began to complain about persistent, offensive odors in the school. To determine the origin and composition of the odors, the District engaged in repeated testing of the air in Riverton Elementary. The tests disclosed the presence of hydrogen sulfide in the school. Hydrogen sulfide has the chemical composition H2S, and is often described as smelling like rotten eggs.
¶ 6 The District determined that the presence of hydrogen sulfide (and accompanying rotten egg smell) in the school was the result of a back-up of naturally-occurring gas in the school's sewage system.1 To resolve this problem the District installed a vent pipe equipped with a mechanical blower to the sewer drain line leading away from the school. The purpose of the vent pipe was to draw the offending sewer gas out of the sewer line and pump the gas into the air, away from the school building. The sewer vent pipe consisted of a vertical pipe about twenty feet high and ten inches in diameter. A mechanical blower was attached to the top of the vent pipe to facilitate drawing the gas out of the school's sewer lateral and to aid in discharging the gas (and odor) into the air. The length of time that the District operated the vent pipe and blower is unclear from the record and appears to be in dispute based upon the parties' representations at oral argument.
¶ 7 The vent pipe was installed close to the outer boundary of the school grounds. However, the Lovendahls claim that the sewer vent pipe was located only a few feet away from their property line, and just seventeen feet from their single-family home. Following installation of the vent pipe, the Lovendahls began complaining to the District about offensive odors emanating from the vent pipe. Sue Lovendahl claims that the emissions from the vent pipe either caused or aggravated an ongoing asthmatic condition. The other plaintiffs, James and Wesley Lovendahl, do not claim any personal injuries resulting from the actions of the District. However, the Lovendahls claim that the sewer vent pipe has unreasonably interfered with the use of their property.
¶ 8 Dissatisfied with the response to their complaints, the Lovendahls filed suit against the District on December 12, 1997. The Lovendahl's suit initially included several causes of action against the District, including: (1) common law nuisance, (2) criminal nuisance, (3) public nuisance, (4) negligent infliction of emotional distress, (5) intentional infliction of emotional distress, and (6) inverse condemnation. The Lovendahls also sought an award of punitive damages.
¶ 9 The District moved to dismiss the Lovendahls' claims for negligent and intentional infliction of emotional distress, criminal nuisance, and punitive damages. The Lovendahls did not oppose this motion, and these claims were dismissed on March 3, 1998. On March 13, 1998, the District answered the complaint, and on that same day, the Lovendahls petitioned the court for a preliminary injunction requiring the District to cease operation of the vent and seal it off. Observing that the District had sealed the pipe just before the preliminary injunction hearing, the court denied the motion.
¶ 10 On September 13, 2000, the District filed a motion for summary judgment on the Lovendahls' remaining three claims: common law nuisance, public nuisance, and inverse condemnation. The District argued in its summary judgment motion that it was immune from liability for these claims under section 63-30-10(18)(c) of the Utah Governmental Immunity Act. Utah Code Ann. § 63-30-10(18)(c) (1997). Section 63-30-10(18)(c) immunizes government entities from liability for injuries arising from the "activities of ... regulating, mitigating, or handling hazardous materials or hazardous wastes." The District argued that the sewer gas being vented contained hydrogen sulfide, that hydrogen sulfide is a hazardous waste under Utah law, and that the District is thus immune from suit under section 63-30-10(18)(c) for any injuries resulting from efforts to dispose of such hazardous wastes. The District argued further that the Lovendahls' inverse condemnation claim must fail because the value of their property had actually increased, rather than declined, since the initial installation of the sewer vent pipe.
¶ 11 The Lovendahls opposed the District's motion on the grounds that the District was not authorized by the State to engage in the disposal of hazardous wastes, and therefore the District should not be entitled to claim the protections of section 63-30-10(18)(c). They also argued that the District should be held liable under section 63-30-9 of the Utah Code, which waives immunity from suit for all governmental entities for injuries resulting from, inter alia, a "dangerous or defective condition of any public building, structure... or other public improvement." Utah Code Ann. § 63-30-9 (1998). The Lovendahls further disputed whether hydrogen sulfide was a hazardous waste or hazardous material under Utah law. On the inverse condemnation claim, the Lovendahls did not dispute that the value of their property had increased since the vent pipe was installed. Rather, they simply argued that the District had "condemned," "taken," and "damaged" their property when it installed the sewer vent pipe.
¶ 12 On the nuisance issue, the trial court agreed with the District's analysis and granted its motion for summary judgment based on the retention of immunity for injuries arising from the disposal of hazardous waste under section 63-30-10(18)(c). On the inverse condemnation claim, the trial court also granted the District's summary judgment motion, relying on the fact that the value of the Lovendahls' property had not declined since the sewer vent pipe was installed. The Lovendahls appealed the grant of summary judgment on both issues. We reverse the trial court on the nuisance claim and affirm the trial court's ruling on the inverse condemnation claim.
¶ 13 A motion for summary judgment should be granted only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); Pigs Gun Club v. Sanpete County, 2002 UT 17, ¶ 7, 42 P.3d 379, 382. When reviewing a grant of summary judgment, we review the trial court's conclusions of law for correctness. Laney v. Fairview City, 2002 UT 79, ¶ 9, 57 P.3d 1007. As such, "we consider only whether [the trial court] correctly applied the law and correctly concluded that no disputed issues of material fact existed." Pigs Gun Club, 2002 UT 17 at ¶ 7, 42 P.3d 379, (citations omitted). We view all facts and reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id.
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