Maciejko v. Lunenberg Fire Dist. No. 2

• Decision Date: 21 August 2000
• Docket Number: No. 98-385.,98-385.
• Citation: 758 A.2d 811
• Court: Vermont Supreme Court
• Parties: John and Suzanne MACIEJKO v. LUNENBURG FIRE DISTRICT NO. 2.

758 A.2d 811

John and Suzanne MACIEJKO v. LUNENBURG FIRE DISTRICT NO. 2.

No. 98-385.

Supreme Court of Vermont.

August 21, 2000.

PRESENT: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Plaintiffs John and Suzanne Maciejko sued defendant Lunenburg Fire District No. 2 (the district) for damages that resulted when water backed up into the basement of the apartment they were renting from Keith Desrochers (landlord). The small claims court concluded that the district was liable for failing to properly maintain its sewer system. The superior court disagreed but nonetheless affirmed, holding that the district was liable for failing to enforce its sewage ordinance against landlord. We reverse.

The small claims court found the following facts which, on appeal, are not in dispute. Plaintiffs rent half of a duplex house, and Barbara Walker rents the other half. The basement is separated by a partition. A drainage system, located in the basement floor, drains water from plaintiffs' side into Walker's side; a removable cap covers the drain on Walker's side. The system is connected by a service line to the municipal sewage system's sewer main. The district operates the municipal sewage system, but has no plan or policy regarding maintenance of the system. The system was likely installed in the 1930's, and the connections of the individual service lines to the main are precarious.

On Christmas morning 1996, plaintiffs discovered approximately four feet of water and sewage in their basement. Plaintiffs called landlord, who lives next door to them. Landlord called Calvin Colby, a member of the district's Prudential Committee. Colby went to the duplex and spent approximately four hours pumping the water and sewage out of the basement. He also discovered an obstruction in the sewer main directly in front of landlord's house. The district flushed out the line and removed the obstruction. Neither Colby nor the district ever determined what the obstruction was composed of. The small claims court made no finding as to how long the obstruction had been in the sewer main.

The district had no actual knowledge of either the obstruction in the sewer main or the backup in plaintiffs' basement until landlord called Colby on December 25, 1996. Approximately five years earlier, in a similar incident, sewage and water backed up into the basement of the duplex.

At the hearing before the small claims court, Mr. Maciejko testified that, when he discovered the flood, the removable cap was not on the drain. Based on this testimony, the small claims court concluded that landlord had a practice of discharging water into the sewer through the drain on Walker's side of the basement, in violation of a sewage ordinance that the district adopted pursuant to 24 V.S.A. § 3617.

Plaintiffs sued the district in small claims court, seeking to recover damages they sustained as a result of the flooding. The court concluded that the district was negligent because: (1) it had a duty to properly maintain the sewer system; (2) in not having a maintenance plan or policy, the district breached that duty, particularly given the age and condition of the system; (3) that breach was the proximate cause of the flooding in plaintiffs' basement; and (4) plaintiffs sustained damages as a result of the flooding. The court entered a $680.00 judgment against the district.

The district appealed to the superior court. The court held that there was insufficient evidence to support the conclusion that the district's lack of a maintenance plan was the proximate cause of the backup. However, the court affirmed on other grounds. According to the court: (1) landlord was required, under the district's sewage ordinance, to cap the drain on Walker's side of the basement with cement; (2) landlord "had been warned in a similar incident five years previously to cement the basement plug in this house;¹. . . he had not done so; and . . . [the district] had taken no steps to enforce the ordinance to require him to do so"; and (3) if landlord had cemented the drain plug, "the sewer backup would not have occurred, despite the blockage in the line." Thus, the court held that the district was liable to plaintiffs because, had the district enforced its ordinance against landlord, the backup would not have occurred.

On appeal, the parties do not challenge the lower courts' findings of fact.² Thus, we review only the lower courts' conclusions of law, and our review is "nondeferential and plenary." N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 439, 736 A.2d 780, 783 (1999). Where the lower courts have correctly applied the law, we will affirm their conclusions if they are reasonably supported by the findings. See Schnabel v. Nordic Toyota, Inc., 168 Vt. 354, 357, 721 A.2d 114, 118 (1998).

We agree with the superior court that the small claims court's findings were insufficient to support its conclusion that the district's failure to have a regular maintenance plan or policy was the proximate cause of the backup. However, we conclude that the superior court erred in holding the district liable to plaintiffs for the district's alleged failure to enforce its sewer ordinance. We address the decision of the small claims court first.

The small claims court based its holding regarding proximate cause in part on its conclusion that the obstruction in the sewer main was the result of the district's lack of a maintenance plan or policy.³ However, there was no evidence to show that a regular maintenance plan or policy would have led to the discovery or prevention of the obstruction. As noted, the small claims court found that Colby discovered the obstruction on December 25. However, the court made no finding as to how long the obstruction had been in the sewer main. Without this finding, it is impossible to conclude that regular maintenance would have prevented the obstruction. For example, if the district had a maintenance policy under which it was required to clean out the sewer main on the first of every month, but the obstruction had only been in the main since the 15th of the month, then, even if the district had abided by its policy, the obstruction might still have been in the main on the 25th. Thus, without a finding as to how long the obstruction had been in the main, the court erred in holding that the district's lack of a maintenance plan or policy was the proximate cause of the backup.⁴

Next, the superior court concluded that the district was liable to plaintiffs for failing to enforce its sewer ordinance against landlord. The court was referring to the above-mentioned portion of the ordinance which prohibits the discharging of water and other specified materials into sewers. From this, the court apparently inferred that the ordinance required caps to be cemented, and that landlord's use of a removable cap therefore violated the ordinance. It is not clear whether the court's inference in this regard was correct. However, even if the court's inference was correct, its conclusion was in error.

In Corbin v. Buchanan, 163 Vt. 141, 657 A.2d 170 (1994), a seven-year-old boy died in a fire in his father's apartment in the Town of Brattleboro. Shortly before this incident, the town enacted a housing code pursuant to 24 V.S.A. chapter 123. In relevant part, the code required the inspection of buildings and the enforcement of orders to correct dangerous conditions. However, unless a building was new, the town would enforce its code only in response to specific complaints.

Soon after the code was enacted, in response to complaints about plumbing, wiring and sewer problems, the town sent an inspector to the decedent's father's apartment. The inspector noticed that there was no smoke detector in the apartment, but took no further action, instead limiting his investigation to the scope of the complaints. Shortly thereafter, the boy died in a fire. His estate sued the town, arguing that the town was negligent for failing to enforce its code because the inspector did not require the decedent's father or the landlord to install a smoke detector.

The town filed a motion for summary judgment, arguing that its failure to enforce its code created no private right of action. The trial court denied the motion, and the jury returned a verdict in favor of the plaintiff. We reversed, holding that an individual plaintiff may not recover in tort against a municipality for its failure to enforce an ordinance whose purpose is protection of the public as a whole. See id. at 143, 657 A.2d at 172.

In so holding, we first noted that, under the common law, a private citizen has no cause of action against a municipality for failure to enforce its ordinances. See id. at 144-45, 657 A.2d at 172-73. Next, we concluded that, in enacting 24 V.S.A. chapter 123, the Vermont Legislature did not intend to create such a cause of action. See id. at 146, 657 A.2d at 173-74 ("[T]he social, fiscal, tax, and public policy implications of a statute creating a private right of action based on a town's adoption of building code regulations would be enormous, and there is no indication in this record that the Legislature contemplated any such consequences."). Finally,...