Maly v. Arbor Manor, Inc.

• Decision Date: 24 April 1987
• Docket Number: No. 85-687,85-687
• Citation: 225 Neb. 276,404 N.W.2d 419
• Parties: LeRoy P. MALY and Sue E. Maly, Appellants, v. ARBOR MANOR, INC., a Nebraska Corporation, Defendant and Third-Party Plaintiff, and Kinning & Reil, Inc., a Nebraska Corporation, and Rump's, Inc., a Nebraska Corporation, Third-Party Defendants, Appellees.
• Court: Nebraska Supreme Court

Page 419

404 N.W.2d 419

225 Neb. 276

LeRoy P. MALY and Sue E. Maly, Appellants, v.ARBOR MANOR, INC., a Nebraska Corporation, Defendant and Third-Party Plaintiff andKinning & Reil, Inc., a Nebraska Corporation, andRump's, Inc., a Nebraska Corporation, Third-Party Defendants, Appellees.

No. 85-687.

Supreme Court of Nebraska.

April 24, 1987.

Syllabus by the Court

1.Negligence: Evidence.The doctrine of res ipsa loquitur is that where the instrumentality causing the injury is shown to be under the defendant's exclusive control and management and the accident is one that in the ordinary course of things does not occur if those who have its management or control use proper care, reasonable evidence is afforded, in the absence of an explanation by the defendant, that the accident arose from want of proper care.

2.Negligence: Evidence.One relying upon the doctrine of res ipsa loquitur must establish that the instrumentality causing the damage was in the exclusive control and management of the party sought to be held liable.

3.Negligence: Evidence: Proof.If specific acts of negligence are alleged or there is direct evidence of the precise cause of the accident, the doctrine of res ipsa loquitur is not applicable.The doctrine is applicable only where the plaintiff is unable to allege or prove the particular act of negligence which caused the injury.However, the plaintiff may and must allege and prove the physical cause of the damage inflicted.

4.Nuisances: Words and Phrases.The use made by one of his or her property which works an irreparable injury to the property of his or her neighbor, the use made by one of his or her property whereby the unwritten but accepted law of decency is violated, the use made by one of his or her property whereby his or her neighbor is deprived of the reasonably comfortable use and enjoyment of his or her own property, and the use made by one of his or her property which will probably or likely endanger the health and the life of his or her neighbor are private nuisances.

Sidner, Svoboda, Schilke, Wiseman, Thomsen & Holtorf, Fremont, for appellants.

P. Shawn McCann and Joseph S. Daly of Sodoro, Daly & Sodoro, Omaha, for appellee Arbor Manor.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

HASTINGS, Justice.

Plaintiffs appeal the judgment of the district court for Dodge County, Nebraska, sustaining the defendant's motion for summary judgment in an action for damages to their property arising out of two sewer backups into their home.

In their amended petitionthe plaintiffs alleged the following facts: that the defendant owned certain property in Fremont, Nebraska, upon which it built a nursing home in 1966; that near the time the defendant constructed the nursing home it also constructed a manhole on that property, which tied the nursing home into the Country Acres sewer system which provides sanitary sewer services for both the plaintiffs and the defendant; that the manhole was defective in that there was a hole at the base of it which caused water from outside of the sanitary sewer system to infiltrate into the system, which caused the sewer system to back up and discharge raw sewage into the plaintiffs' home on August 1, 1981, and May 21, 1982; that these sewer backups caused damage to the plaintiffs; that the manhole was under the control and management of the defendant; that the sewer backups were such that in the ordinary course of things they would not have occurred if the defendant had used proper care; that these facts permit an inference of negligence under the doctrine of res ipsa loquitur; and that the maintenance of the manhole constituted a nuisance which impaired the comfort and health of the plaintiffs to their damage.

The defendant answered with a general denial and alleged that the damages suffered by the plaintiffs, if any, were proximately caused by the negligence of a third party.

The matter came before the district court on the defendant's motion for summary judgment, during which a third-party defendant's answers to interrogatories, LeRoy P. Maly's affidavit and supporting photographs, the third-party complaint, the answer to the third-party complaint, and an affidavit and report of a civil engineer were submitted for the court's consideration.The court sustained the defendant's motion for summary judgment, and the plaintiffs, after their motion for a new trial was overruled, appealed.

The plaintiffs contend the court erred in sustaining the defendant's motion for summary judgment.In support of this argument, the plaintiffs assert that the doctrines of res ipsa loquitur and nuisance apply to the facts in this case.We agree, and therefore reverse the order of the district court.

The plaintiffs' first cause of action was based on the doctrine of res ipsa loquitur.

The doctrine of res ipsa loquitur is that where the instrumentality causing the injury is shown to be under the defendant's exclusive control and management and the accident is one that in the ordinary course of things does not occur if those who have its management or control use proper care, reasonable evidence is afforded, in the absence of an explanation by the defendant, that the accident arose from want of proper care.

Beatty v. Davis, 224 Neb. 663, 665, 400 N.W.2d 850, 852(1987).From this, the plaintiffs assert there were genuine issues of fact on the propositions(1) that the defendant was in exclusive control of the instrumentality which caused the sewer backups and (2) that the backups would not have occurred in the ordinary course of things if the defendant had used proper care.

Addressing this first contention, we note that in the plaintiffs' amended petitionthey alleged that the manhole was under the control and management of the defendant at all times relevant to the lawsuit.They did not, however, allege that the manhole was under the defendant's exclusive control and management.Although it would have been better had the plaintiffs alleged that the manhole was under the defendant's exclusive control and management, it was not fatal for them to have not included the word "exclusive."This is because we sometimes have used "exclusive" when describing the elements of a res ipsa loquitur case, sometimes have not, and sometimes have used "control and management" in one paragraph and "exclusive control and management" in another.For an example of the first, seeBeatty v. Davis, supra; for the second, seeFynbu v. Strain, 190 Neb. 719, 211 N.W.2d 917(1973); and for the third, seeAsher v. Coca Cola Bottling Co., 172 Neb. 855, 112 N.W.2d 252(1961), a case in which we stated that the instrumentality causing the injury only had to be under the defendant's "control and management" but then went ahead and discussed what "exclusive" control and management meant when applying the doctrine to a manufacturer of bottled goods sold to a retailer, which in turn sold them to a consumer.Despite these somewhat equivocal recitations of the elements of the res ipsa loquitur doctrine, whenever control and management were really at issue we have held that the plaintiff must prove that the instrumentality was in the defendant's "exclusive" control and management.See, e.g., Asher v. Coca Cola Bottling Co., supra;McCall v. St. Joseph Hospital, 184 Neb. 1, 165 N.W.2d 85(1969);Weston v. Gold & Co., 167 Neb. 692, 94 N.W.2d 380(1959).Thus, even though they left out the word "exclusive" in their petition, the plaintiffs in this case still must show there is a material issue of fact as to whether the defendant was in the "exclusive" control and management of the manhole.

The evidence presented at the hearing on the motion for summary judgment raised a question of fact as to the exclusiveness of the defendant's control and management of the manhole.The plaintiffs' petition alleged that the defendant built the manhole and has maintained it since.Supporting these allegations is information supplied by the third-party defendantRump's, Inc., in its answer to the third-party complaint and in its answers to interrogatories.Rump's stated that it replaced, at the defendant's request, a 6-inch fiber pipe with a 6-inch clay tile pipe running easterly from the manhole.Rump's also stated that on September 1, 1982, the president of the defendant called Rump's to ask whether it would help make temporary repairs to the manhole.These statements directly...