Lubin v. Iowa City

• Citation: 257 Iowa 383,131 N.W.2d 765
• Decision Date: 15 December 1964
• Docket Number: No. 51346,51346
• Parties: Jack LUBIN and Cele Lubin, Appellees, v. IOWA CITY, Appellant.
• Court: Iowa Supreme Court

Page 765

131 N.W.2d 765

257 Iowa 383

Jack LUBIN and Cele Lubin, Appellees, v. IOWA CITY, Appellant.

No. 51346.

Supreme Court of Iowa.

Dec. 15, 1964.

Rehearing Denied Feb. 8, 1965.

Wayne C. Collins, of Shuttleworth & Ingersoll, Cedar Rapids, for appellant.

Arthur O. Leff, of Leff & Leff, Iowa City, for appellees.

STUART, Justice.

Plaintiff's brought this action in three counts against the city seeking damages for injuries sustained when a city water main broke, flooding the basement of plaintiffs' store and damaging merchandise stored there. Count I was based on the doctrine of liability without fault announced in Rylands v. Fletcher, L.R.I.Exch. 265 (1866) L.R. 3HL 330 (1868). Count II was founded upon he doctrine of res ipsa loquitur. Count III contained allegations of specific acts of negligence. The trial court submitted to the jury only res ipsa loquitur and the specific charge of failing to act promptly in turning off the water. The jury retunred a defendant's verdict on both counts. The trial court, on plaintiffs' motion, granted a new trial on the ground that the verdict failed to do substantial justice. Defendant has appealed from the trial court's ruling on the motion for new trial.

I. The trial court has a broad, but not unlimited, discretion in determining whether the verdict effectuates substantial justice between the parties. We are more reluctant to interfere with a ruling which grants a new trial than one in which it is denied and will do so only upon a clear showing of abuse of discretion. Warrender v. McMurrin, 256 Iowa ----, 128 N.W.2d 285; Lantz v. Cook, Iowa, 127 N.W.2d 675; Larew v. Iowa State Highway Commission, 254 Iowa 1089, 120 N.W.2d 462; Coleman v. Brower Construction Company, 254 Iowa 724, 119 N.W.2d 256; In re Goretska's Estate, 234 Iowa 1080, 13 N.W.2d 432. However, such ruling must be founded upon sound judicial discretion and granted for reasons which fairly appear in the record. Mazur v. Grantham, Iowa, 125 N.W.2d 807; Jacobsen v. Gamber, 249 Iowa 99, 86 N.W.2d 147; Copeland v. Junkin, 198 Iowa 530, 199 N.W. 363. The court has no right to set aside a verdict just because it might have reached a different conclusion. Warrender v. McMurrin, supra.

In ruling upon the Motion for New Trial, the trial court was of the opinion there was no error except possibly the refusal to submit the absolute liability theory to the jury. He then holds: 'that no substantial, or any, justice was administered. The plaintiffs under the facts did nothing which contributed to their substantial injury to their property in any manner or degree. The defendant was in exclusive control of the instrumentality which caused the injury, and the occurrence of such (breaking of water main) in the ordinary course of things would not happen if reasonable care had been used.'

The trial court does not point to anything in the record to support his reason for granting a new trial. Our examination of the record did not disclose any matters from which it could be inferred the decision did not administer substantial justice under the law as submitted to the jury. The statement in the court's ruling is essentially based upon his disagreement with the jury's finding on res ipsa loquitur. There was evidence from which then jury could find that the break did occur without negligence on the part of the defendant.

Pipe with an estimated life of 100 years had been in the ground 80 years. There was no evidence of a previous break in this particular part of Iowa City. There was no possibility of inspection except when the pipe was exposed for other purposes. Plaintiffs had made a service connection on one side of the break and a third party had made a service connection on the other side. There was evidence that the ground under these connections was soft and that the break could have been caused by the resulting 'beaming action'. There was evidence that breaks could be caused by the shifting of the earth, electrolytic action and overhead traffic. The record does not show any reason which would justify the trial court in exercising his discretion to grant a new trial in the interest of substantia justice. The fact that it believes a different result should have been reached is not sufficient.

The trial court recognized this when he invited us to reverse his refusal to submit the case on the theory of absolute liability, saying: 'I am satisfied that the only protection that a property owner may, with some degree of certainty, have, is the absolute liability rule, and it should be adopted by the courts of this country. I respectfully ask the Supreme Court of Iowa to reverse me in this case for failure to submit said rule, and to give to the people of this state a genuinely true rule in this type of case, to provide for substantial justice.'

II. As 'we will affirm the ruling on any sufficient ground shown by the record even though the ruling was placed upon different reasons', McMaster v. Hutchins, Iowa, 120 N.W.2d 509, 514, we have examined the record to determine if the motion for new trial should have been granted for one of the specific errors claimed in the motion. We agree with the trial court that there was insufficient evidence to submit the three other allegations of specific negligence to the jury. We did not find anything in the record to justify a reversal on the other grounds urged, except for the failure of the trial court to submit the case on the theory of strict liability.

III. Plaintiffs argue the facts in this case are such that the docrine of Rylands v. Fletcher imposing strict liability, or liability without fault, should be applied. This leading and controversial case was decided in England in 1866 and has been the subject of much discussion by the legal scholars ever since. Bohlen, Studies in the Law of Torts, pp. 344-440; Prosser, the Law of Torts, 2d Ed. 329-349. There a millowner was held liable for damages sustained when water broke through the bottom of a pond into some unused mine shafts and flooded plaintiff's mine through connecting passages. No negligence was found. The facts did not satisfy the technical requirements of either trespass or nuisance. Justice Blackburn in the Exchequer Chamber said: 'We think that the true rule of law is that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is a natural consequence of its escape.' Fletcher v. Rylands (1866) L.R. 1 Ex. 265, 279-280.

On appeal to the House of Lords this broad statement was limited to a 'nonnatural' user of the land as distinguished from 'any purpose for which it might in the ordinary course of enjoyment of the land be used'. Rylands v. Fletcher (1868) L.R. 3 H.L. 330, 338.

While this doctrine was readily followed in England, it is generally thought that it has not been widely accepted in the United States. However, Prosser in 1955 found 20 jurisdictions including Iowa, which have accepted it in name or principle. Law of Torts, p. 332-333. In many other jurisdictions strict liability has been imposed on other theories for damages sustained when an escaping substance or force has invaded the real estate of another.

Many recent cases have applied strict liability on the theory of trespass. Casanover v. Villanova Realty Co. (1948), Mo. App., 209 S.W.2d 556, 559 (surface water and sediment case upn land by regrading); Martin v. Reynolds Metals Co. (1959) 221 Or. 86, 342 P.2d 790 (fluoride particles escaping from aluminum reduction plant); Hall v. DeWeld Mica Corp., 244 N.C. 182, 93 S.E.2d 56 (invisible particles of silicon dioxide); United Electric Light Co. v. Deliso Const. Co., 315 Mass. 313, 318, 52 N.E.2d 553 (grout escaping through the earth); Sheppard Envelope Co. v. Arcade Malleable Iron Co. (1956) 335 Mass. 180, 138 N.E.2d 777 (soot and grit); Gregg v. Delhi-Taylor Oil Corp. (1961) 162 Tex. 26, 344 S.W.2d 411 ('cracking sand' under surface to produce more natural gas); Reynolds Metal Co. v. Lampert (9 Cir. 1963) 316 F.2d 272 (fluoride particles); Mairs v. Manhattan Real Estate Ass'n (1882) 89 N.Y. 498 (water seepage); Loe v. Lenhardt (1961) 227 Or. 242, 362 P.2d 312 (spraying of chemicals from airplane held an extrahazardous activity).

Strict liability has frequently been imposed on the theories of absolute nuisance or private nuisance--Prosser--The Law of Torts, pp. 336-337, pp. 399-400, pp. 405-416; and cases cited. United Electrical Light Co. v. Deliso Construction Co., supra, 52 N.E.2d 557.

However, most of the broken water main cases have been founded upon negligence. Res ipsa loquitur was resorted to in Kind v. City of Seattle, 50 Wash.2d 485, 312 P.2d 811; Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P.2d 752; Koch Bros. Bag Co. v. Kansas City (Mo. 1958) 315 S.W.2d 743; Adam Hat Stores, Inc. v. Kansas City, Mo.App., 307 S.W.2d 36 and Mo., 316 S.W.2d 594; and Quigley v. Villege of Hibbing, Minn., 129 N.W.2d 765. Delay in shutting off the water was used as a basis of liability in Cole Drug Co. of Massachusetts v. City of Boston, 326 Mass. 199, 93 N.E.2d 556; Bond Pharmacy, Inc. v. City of Cambridge, 338 Mass. 488, 156 N.E.2d 34; Iver Johnson Sporting Goods Co. v. City of Boston, 334 Mass. 401, 135 N.E.2d 658 and National Mattress Co. v. City of Youngstown (1957) Ohio App., 153 N.E.2d 439, 78 Ohio Law Abst. 526. Failure to properly construct or maintain was the basis of liability in Yearsley v. City of Pocatello, 71 Idaho 347, 231 P.2d 743; Felsway Shoe Corp. v. Louisville Water Co., 311 Ky. 259, 223 S.W.2d 875. It was held that there was insufficient evidence of negligence in Stein v. City of Newark, 52 A.2d 66, 25 N.J.Misc. 170; Grace & Co. v. City of Los Angeles, 9 Cir., 278 F.2d 771; A Da Prato Co. v. City of Boston (1956) 334 Mass. 186, 134 N.E.2d 438.

In Kind v. City of Seattle Supra, the trial court...