Mason v. City of Mt. Sterling, 2001-SC-0813-DG.

• Decision Date: 23 October 2003
• Docket Number: No. 2001-SC-0813-DG.,2001-SC-0813-DG.
• Citation: 122 S.W.3d 500
• Parties: Cortez MASON, Administrator of Jarrod C. Walker Estate; Cortez Mason; and Stephanie Walker, Appellants, v. CITY OF MT. STERLING, Kentucky; Glenn Potts; Danny Morton; and Debra Morton, Appellees.
• Court: United States State Supreme Court — District of Kentucky

122 S.W.3d 500

Cortez MASON, Administrator of Jarrod C. Walker Estate; Cortez Mason; and Stephanie Walker, Appellants, v. CITY OF MT. STERLING, Kentucky; Glenn Potts; Danny Morton; and Debra Morton, Appellees.

No. 2001-SC-0813-DG.

Supreme Court of Kentucky.

October 23, 2003.

Rehearing Denied January 22, 2004.

Dana E. Deering, Parry, Deering, Futscher & Sparks, P.S.C., Covington, Steven J. Franzen, Newport, Counsel for Appellants.

Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, Counsel for Appellee, City of Mt. Sterling, Kentucky.

Ernest H. Jones, II, Geralds, Moloney & Jones, Robert L. Swisher, Schrader & Rice, P.S.C., Lexington, Counsel for Appellee, Glenn Potts.

Pierce W. Hamblin, Bradley C. Hooks, Landrum & Shouse, LLP, Lexington, Counsel for Appellees, Danny Morton and Debra Morton.

Opinion of the Court by Justice JOHNSTONE.

Nine-year-old Jarrod Cortez ("J.C.") Walker drowned in Mt. Sterling, Kentucky, when floodwaters swept him away through a submerged/non-visible storm sewer system. Walker's estate filed this wrongful death action against multiple parties, including Appellee City of Mount Sterling (the "City") and private landowners, Appellees Glenn Potts and Danny and Debra Morton. The trial court granted summary judgment to all four Appellees. The Court of Appeals affirmed. We reverse and remand for trial.

The drowning occurred on Potts' property, which is located on the west side of Richmond Avenue near the intersection of Spring Street. Potts' property has two freestanding apartment buildings which share a common parking lot. The Mortons' lot is located across the road from Potts' property on the east side of Richmond Avenue and is bisected by Hinkston Creek.

On May 5, 1996, a rain storm caused substantial flooding on Potts' parking lot, resulting in submerged or "floating" cars. Officer White of the Mt. Sterling Police Department assisted with flood damage control. J.C. and a friend went to Potts' property to see the flood and floating cars. Upon their arrival, Officer White told J.C. that he could stay at the scene if he sat in the bed of a pick-up truck. However, other kids were sliding down a bank into the area of pooled water at the back of the parking lot. At some point, J.C. went to join the other kids. As he walked across the parking lot, J.C. stepped over a submerged culvert entrance (storm drain or headwall) which was covered by opaque muddy water. A strong undertow sucked J.C. down into the storm sewer system. He traveled through Potts' pipes, the City's culvert, and the Mortons' pipes. J.C.'s body was eventually found after midnight in a ball field 200 yards downstream from the system's discharge point into Hinkston Creek. As J.C. went under, a 19-year-old off-duty male soldier swam toward the headwall to rescue J.C. But, the current was too strong. The soldier also was sucked down into the culvert, pulled through the sewer system, knocked out, and dumped into Hinkston Creek where he was saved by other rescuers.

The storm sewage system was built in three stages: 1) the City built a freestanding fieldstone culvert under Richmond Avenue sometime in the 1930's or 40's; 2) adjacent landowners then built connecting drainage pipes to empty flood waters into the City's culvert; and finally, 3) the City built three catch basins at the Richmond/Spring intersection which connected into the privately built holding chamber on the west side of Richmond (the west chamber).

Potts' privately constructed drainage system begins at the back of his parking lot with an opening (headwall) consisting of two inlet drainage pipes: a 30-inch and a 48-inch pipe. J.C. was sucked through the 48-inch pipe; the 30-inch pipe was impassable as it was clogged throughout with large debris. Potts' pipes run under the parking lot into the west chamber which then connects with the City culvert under Richmond Avenue. Water passes through the culvert to another holding chamber (the east chamber) which connects to a privately built 42-inch pipe on the Mortons' property, which then empties into Hinkston Creek. Both Potts' and the Mortons' pipes were built by previous landowners and were existing artificial conditions acquired when they purchased the land.

The estate introduced expert testimony that: 1) the City's catch basin pipe was badly crushed, impeding the flow of water into the west chamber and exacerbating flooding problems; 2) the east and west chambers were so poorly maintained that the floor of the west chamber had been torn open due to the high force of water; 3) the 30-inch and 48-inch drainage pipes on Potts' property were not properly sized for the clearly foreseeable volume and velocity of storm waters flowing towards these pipes; 4) the asymmetrical size of the two Potts' pipes constitutes improper design which "guarantees" problems in functionality and safety; 5) the City had a duty to monitor the functionality of and properly maintain the storm sewer system; and 6) the flooding at the headwall, the intersection of Spring and Richmond, and/or the flooding in the back yards of houses on Spring Street created a safety hazard that should have alerted the City to serious problems with the sewer system.

MUNICIPAL LIABILITY FOR PRIVATELY CONSTRUCTED COMPONENTS OF SEWER SYSTEM

Municipalities in Kentucky are not immune from tort liability, except in the limited circumstances when they are exercising legislative or judicial or quasi-legislative or quasi-judicial functions. See Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144 (1985); Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964); Ashby v. City of Louisville, Ky.App., 841 S.W.2d 184 (1992). In delineating what constitutes legislative action, this Court has long held that a municipality's decision to establish or open a sewer system is a legislative function entitled to immunity protection. City of Maysville v. Brooks, 145 Ky. 526, 140 S.W. 665, 668 (1911). However, once a municipality establishes or opens a sewer, it has a ministerial duty to non-negligently construct, maintain, and repair the sewer system. Ibid.

Further, a municipality has the same duty of care to properly maintain and repair any sewer system where the municipality has "taken possession of and used it [the sewer] for municipal purposes." Maysville v. Brooks, 140 S.W. at 667. Thus, even if a municipality did not originally construct a sewer system, if it uses a sewer system for municipal purposes, the municipality's "duty to its inhabitants [is] the same as if the sewer had been originally constructed" by the municipality. Ibid.

J.C. drowned in a sewer system which was cobbled together over the years by various construction efforts of both private and municipal entities. The City argues that since it did not construct the entire sewer system it cannot be liable, especially since J.C. was sucked into the sewer system at the headwall located on Potts' property. The Court of Appeals agreed, holding (with no supporting authority) that "[t]he City's liability cannot extend beyond the portions of the drainage system which lie within its right-of way."

We disagree and hold that reliance on location or right-of-way alone is not the proper standard for determining municipal liability in situations where sewer systems have both publicly and privately built components. The proper legal standard for determining municipal liability for the maintenance and repair of sewer systems that are partially located on private property or partially built by private parties is whether the municipality, through use or possession, has converted the private discharge system into a public sewer. Maysville v. Brooks, 140 S.W. at 667; see also Town of Central Covington v. Beiser, 122 Ky. 715, 92 S.W. 973 (1906) and Price Brothers v. City of Dawson Springs, 190 Ky. 349, 227 S.W. 470 (1921). The question of duty is a matter of law. Green v. Hollingsworth, 35 Ky. 173, 174, 5 Dana 173, 174 (1837). Here, by structurally tying the private system into the public system, the City acquired a duty to properly maintain and repair the sewer system as a whole.

MUNICIPALITY'S MINISTERIAL DUTY TO MAINTAIN SEWER SYSTEMS

If a municipality builds a sewer system, which diverts the natural flow of water, the municipality has a duty to ensure that the sewer system can handle runoff from reasonably expected ordinary rainfalls. Ordinary rainfalls "are such heavy rainfalls as may reasonably be expected in the given locality." Price v. Dawson Springs, 227 S.W. at 472 (citation omitted). Determination of ordinary rainfall is a jury question: more specifically, it is a fact question for the jury whether, on the day J.C. drowned, the City experienced runoff that might be reasonably expected from ordinary rainfall in the Mt. Sterling area.

The amount of runoff and capacity needs of a sewer system change over time depending on a municipality's population growth and accompanying land development. Thus, even if the City's culvert was sufficient to handle existing water flow in the 1930's and 40's, the City had a "duty to exercise ordinary care and skill to keep it in condition to carry off the water collected thereby from such rainfalls as may be reasonably expected to occur in the neighborhood to be drained by such a sewer." Louisville v. Norris, 111 Ky. 903, 64 S.W. 958, 959 (1901) (citations omitted); see also Town of Wingo v. Rhodes, 234 Ky. 385, 28 S.W.2d 465, 467 (1930) and Louisville v. O'Malley, Ky., 53 S.W. 287 (1899). It is a jury question whether the City met this duty to properly maintain its 1930's sewer system so that it could function safely in the 1990's.

In Price v. Dawson Springs, supra, the sewer system in question was located on private property and maintained by private owners, except where it crossed a public street. Price v. Dawson Springs, 227 S.W. at 471. When one private landowner sought to alter the sewer configuration on his property, the City of Dawson Springs passed a...