Moon v. City of Lawrence, No. 81

• Decision Date: 09 July 1999
• Docket Number: No. 516., No. 514, No. 513, No. 512, No. 81, No. 515
• Citation: 982 P.2d 388,267 Kan. 720
• Parties: ANDY MOON and MICHELLE MOON, CHARLES FITZGERALD and CHERYL FITZGERALD, EARL WATERS and DEE ANN WATERS, ROSALIE MCMASTER, and FRANCES WISDOM, Appellants, v. CITY OF LAWRENCE, Appellee.
• Court: Kansas Supreme Court

267 Kan. 720

982 P.2d 388

ANDY MOON and MICHELLE MOON, CHARLES FITZGERALD and CHERYL FITZGERALD, EARL WATERS and DEE ANN WATERS, ROSALIE MCMASTER, and FRANCES WISDOM, Appellants, v. CITY OF LAWRENCE, Appellee.

Nos. 81,512, 81,513, 81,514, 81,515, 81,516.

Supreme Court of Kansas.

Opinion filed July 9, 1999.

James L. Wisler, of Schroer, Rice, P.A., of Topeka, argued the cause and was on the brief for appellants.

Gerald L. Cooley, of Allen, Cooley & Allen, of Lawrence, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is an appeal by the above-named homeowners from the trial court's granting of summary judgment and dismissal of their cases wherein they seek damages from the City of Lawrence (City) for damages to their real and personal property caused by flooding.

The trial court held the 2-year statute of limitations applied and plaintiffs' cause of action is barred by the statute of limitations. The trial court then held that even if the cause of action was not time barred, plaintiffs could not recover for reasons set forth by the trial court in its decision.

The homeowners raise seven issues on appeal. We do not reach most of the homeowners' issues because we agree with the trial court that the homeowners' cause of action is time barred.

The homeowners live in a two-block area "upstream" from Third and Wisconsin Streets in Lawrence, Kansas, which has had water drainage problems for many years. In 1958, a 369-acre drainage area was formed. As a result of construction of an access road to the Kansas Turnpike and engineers' recommendations, some water has been diverted and the area now drains some 329 acres. The Second and Michigan Street Drainage System was installed in 1958. A 5-year return period was the accepted' standard in 1958. Oversimplified, the underground facility was designed to accommodate the surface water runoff from a rain that would be expected to occur on the average of once in a 5-year period.

The trial court sets out the facts as:

"13. The Second and Michigan Street Drainage System drains a three hundred eighty-five (385) acre, egg-shaped area encompassing (roughly) the Hillcrest area at Ninth Street and Iowa Street, the intersection of Sixth Street and Columbia Drive, Homestead Drive, and Second Street and Illinois Street.

"14. Surface water run-off from approximately one hundred twenty (120) acres of the above-described area drains directly into Centennial Park. At the north end of Centennial Park resides a pipe that drains the water from the park, underneath the Turnpike cloverleaf, into a culvert adjoining McDonald Drive.

"15. The surface water then travels down an open culvert on the east side of McDonald Drive. Eventually, the water passes behind the Lawrence Holidome at what is approximately Third Street and McDonald Drive.

"16. From that point, the water passes through an open channel to Third Street and Wisconsin Street. At Third Street and Wisconsin Street, the water enters a seventy-eight (78) inch inlet pipe and, from there, is intended to proceed underground. During times of heavy rain, the inlet pipe can no longer accommodate the surface water runoff.

"17. Underground, the water travels east down Third Street to Michigan Street where it makes a forty-five (45) degree turn. The water then enters an eightyone (81) inch pipe and travels north down Michigan Street. At Second Street and Michigan Street, the pipe makes a ninety (90) degree turn and flows east down Second Street.

"18. Once the water reaches Second Street and Arkansas Street, it is discharged from an outlet pipe into an open channel that feeds, ultimately, into the Kansas River.

"19. In general, the Second and Michigan Street Drainage System area slopes from its southern boundary to the northeast. In other words, the southern boundary, near Hillcrest Shopping Center, is at the top of a hill and the Wisconsin Street and Michigan Street area is at the bottom of a hill.

"20. Within a few years of the construction of the streets and storm sewers in the Michigan Street system, the City became aware that the underground stormdrainage system was inadequate to convey the runoff that had been carried in the natural streams which ran through the area prior to 1958.

"21. Those who have lived in that area for an extended period of time report that the flooding problem has existed for over (30) thirty years.

"22. In the late 1960s, defendant commissioned Black & Veatch Consulting Engineers to survey various drainage systems and to identify solutions to problems within those systems.

"23. Black & Veatch identified the Second and Michigan Street Drainage System, among others, as being inadequate.

"24. By April, 1969, at the latest, defendant was well-aware that the Second and Michigan Street Drainage System was inadequate to protect local areas from flooding.

"25. To rectify the drainage deficiencies in the Second and Michigan Street Drainage System, Black & Veatch recommended three courses of action: (1) `that a 60-inch R.C.P. relief sewer be constructed to carry the calculated 10-year flow (215 c.f.s.) from the large ditch along Third Street to the outlet at Second Street and Arkansas;' (2) `that runoff from tributary areas west of the Turnpike access road be retained on the west side of this road ... and that this flow be carried to the next drainage course to the north;' and (3) reduce `the inlet capacity of the 54-inch corrugated metal culvert ... in Centennial Park.'

"26. In its study, Black & Veatch estimated that the cost of complying with its recommendations would be $170,000.

"27. Defendant acted upon only two (2) of the recommendations. It retained the water on the west side of the Turnpike access road—now McDonald Drive— and it reduced the size of the culvert in Centennial Park by placing boards across the culvert so that water would pond in the park.

"28. Defendant did not construct a 60-inch R.C.P. relief sewer. While it is unknown why defendant abstained from adhering to that recommendation, it cannot be denied that the bulk of Black & Veatch's $170,000 estimate resided in the construction of that relief sewer.

"29. From the time that it was built in 1958 to the time of the June 5, 1996, flood, despite considerable development of the area and its knowledge of intermittent flooding, defendant never altered the underground section of the Second and Michigan Street Drainage System.

"30. Since 1958, other than to extend it and to implement two (2) of the recommendations of the Black & Veatch study, defendant has only, from time to time, inspected, maintained, and repaired the Second and Michigan Street Drainage System. Defendant has maintained it by removing debris that accumulates in open channels, catch basins, and pipes. Defendant has also repaired all broken pipes and catch basins.

"31. Between 1958 and June 5, 1996, additional catch basins or inlets were added as other streets within the system were developed.

"32. Since 1969, there has been significant development in the watershed's area upstream from the subject properties.

"33. The additional storm water runoff from these developments has increased the frequency and severity of flooding in the Michigan Street System.

"34. In 1980, the site and drainage plans for the Holidome development were submitted to the City for approval. The City was aware that the additional storm water runoff from the Holidome would aggravate flooding in the Michigan Street System. The City did not require the Holidome to provide on-site detention due to its proximity to the underground system and its position adjacent to the culvert.

"35. In 1985, the City approved the site plan for the Sallie Mae Office Building and parking lot. In 1989, the City approved the site plan for another Sallie Mae parking lot. Neither plan required storm water detention since the Sallie Mae site drains directly into the channel that enters the Michigan Street System's underground drain pipe at 3rd and Wisconsin.

"36. On November 28, 1995, and on April 25, 1996, the City approved the site plan for the Highpointe Apartments with no requirement for on-site detention of storm water due to its proximity to a drainage ditch.

"37. The City was aware that the additional storm runoff from these or any developments that increased the amount of impervious area would aggravate the flooding problem in the Michigan Street System.

"38. Plaintiffs Michelle Moon and Andy Moon did not receive water in their basement until 1990-91. At that time, they experienced water around the corners and the walls. The water was three (3) to four (4) feet deep in their backyard. Since 1990 or 1991, their basement has flooded several times a year.

"39. Plaintiffs Michelle Moon and Andy Moon were so concerned about the flooding that they took preventative measures. After the 1990-91 flood, they removed shrubbery from their property and put in a double gate to assist the flow of water. They placed sandbags near window wells. They removed various valuable items from the basement.

"40. In 1993, water overlapped the foundation of plaintiffs Michelle Moon's and Andy Moon's house, ran across the basement ceiling, and, from the seams in the ceiling, rained into their basement. At that time, the water was waist deep in the streets. Because the basement floor slopes down from the center to the walls, the entire basement floor was not covered with the water, but three (3) inches of water accumulated at the edges along the walls.

"41. Plaintiffs Michelle Moon and Andy Moon observe that the flooding `gets worse' every year.

"42. Twice during 1993 plaintiffs Charles Fitzgerald's and Cheryl Fitzgerald's backyard was flooded to a depth of two (2) feet. Plaintiff Cheryl Fitzgerald also noticed water in the yards abutting the rear of their property.

"43. During 1994 and 1995, (3) three feet of water came through plaintiffs Charles Fitzgerald's and Cheryl Fitzgerald's yard and, on each

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