Moore v. Standard Paint & Glass Co. of Pueblo

• Citation: 358 P.2d 33,145 Colo. 151
• Decision Date: 23 December 1960
• Docket Number: No. 18959,18959
• Parties: Sarah M. MOORE and Moore-Hughes Company, Plaintiffs in Error, v. STANDARD PAINT & GLASS CO. OF PUEBLO and Parkrite Denver Co., Ltd., Defendants in Error.
• Court: Supreme Court of Colorado

Page 33

358 P.2d 33

145 Colo. 151

Sarah M. MOORE and Moore-Hughes Company, Plaintiffs in Error, v. STANDARD PAINT & GLASS CO. OF PUEBLO and Parkrite Denver Co., Ltd., Defendants in Error.

No. 18959.

Supreme Court of Colorado, En Banc.

Dec. 23, 1960.

Alden T. Hill, Ralph H. Coyte, Fort Collins, for plaintiffs in error.

Phelps, Fonda & Hays, Pueblo, for defendant in error Standard Paint & Glass Co. of Pueblo.

Petersen, Evensen & Evans, Pueblo, for defendant in error, Parkrite Denver Co. Ltd.

SUTTON, Chief Justice.

The parties will be referred to as they appeared in the trial court or by name.

On August 29, 1953, the Central Building in Pueblo, Colorado, was destroyed by fire. The same fire destroyed the adjoining building owned by Standard Paint and Glass Company. Shortly thereafter, Standard commenced to rebuild its building. In doing so, it lowered its former basement level, put in a reinforced wall between its basement and the hole in the ground that had once been the basement of the Central Building. The owners of the property upon which the Central Building had been located did not reconstruct their building. Instead, they cleaned out the debris from the basement and entered into a lease with Parkrite under the terms of which Parkrite was to operate an automobile parking lot on the site for a period of ten years. As contemplated by the parties to the lease, Parkrite leveled and graveled the basement area, built a ramp from the street, and converted the former one-story basement into an open parking area, some nine feet below the street level. Subsequent to the leasing, Moore-Hughes purchased the Central property from the former owners.

On the night of October 7, 1957, a rain of cloudburst proportions fell in the area. The combined storm and sanitary sewers of the City of Pueblo were inadequate to carry off the rainwater, which collected in the streets, overflowed the curb, and flooded the leased substreet parking area, filling it to a level of some seven or eight feet along the wall of the Standard Paint building. This accumulation of water occurred during the night. At eight in the morning an employee of Standard Paint reported to work and found some three inches of water covering approximately fifty percent of the floor of the basement in its building. This water did damage to Standard's merchandise stored there in the amount of $1,075.50. After the storm Parkrite proceeded to have the water in its parking area pumped out as soon as possible.

Standard commenced the instant action against both the owner of the parking area and its lessee to recover damages allegedly caused by the water accumulation in its basement, urging that the water had come from the parking lot and that both were guilty of negligence and had committed a nuisance in the maintenance and operation of the parking lot below the surface of the street.

Moore-Hughes answered denying both negligence and nuisance, alleged an act of God and that the negligence was that of the City in maintaining an inadequate sewer system. It also filed a cross complaint against Parkrite, asserting that under the terms of its lease with Parkrite it was entitled to judgment over in the event of any judgment against it.

Parkrite answered denying negligence and nuisance, alleging assumption of the risk and contributory negligence by Standard and further pleading act of God, failing to take steps to have the alleged nuisance abated, and denied responsibility on the ground that it had not changed the topography or physical condition of the property leased by it. It also denied each allegation of Moore-Hughes' counterclaim.

Trial was had to the court on the merits, culminating in an order dismissing the cross complaint of Moore-Hughes, dismissing Parkrite from the case, and entering judgment in favor of Standard against Moore-Hughes. In doing so, it based its determination upon the negligence of Moore-Hughes in permitting a large excavation directly adjacent to plaintiff's building to remain open for a period of over four years. Nuisance was not indicated as a basis of the court's decision, and we thus limit our discussion to an analysis of whether recovery may be permitted under the negligence theory.

Moore-Hughes, who sued out their writ of error in this court in 1959 to review the judgment of the trial court, urge two separate and distinct grounds for reversal: (1) that the proximate cause of the damage was not its negligence but rather the combination of an act of God and the inadequate storm sewers, and (2) that the court erred in dismissing its cross complaint against Parkrite.

A review of the record discloses sufficient evidence to support a determination that one of the causes of the damage to Standard was that water had seeped through the wall between the parking area and Standard's basement. The unrebutted testimony of one eye witness was that he had seen the water actually coming in. There was, however, in addition, testimony to the effect that other basements in the area had been flooded by water backing up through the sewers. The record discloses sufficient evidence to support a conclusion that it was foreseeable that flooding of the parking area would occur if an especially heavy rain were to fall, since the excavation was in the lowest part of the city and prior flooding had occurred.

Since there is ample evidence in the record to support a conclusion that at least some of the flooding of plaintiff's basement occurred as a result of water flowing through the wall from the parking area, although it was impossible to prove that some of it did not in fact come in through backed up sewers, it thus becomes necessary to determine whether such evidence is adequate to support the finding of the trial court that the owners of the property were negligent in permitting such a large excavation directly adjacent to plaintiff's building to remain open for a period of over four years, and, if so, that such negligence was the proximate cause of plaintiff's injury.

The general duty of the owner or occupier of land to persons outside the premises is set forth in 2 Harper and James; The Law of Torts 1521, Sec. 27.19, as follows:

'The occupier of land generally owes a duty of reasonable care to prevent activities and conditions on his land from injuring persons or property outside his land, i. e., persons or personal property on public land or on other private land, or on navigable water or in the navigable air space; or other real property.

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'To the general duty to use care there is one principal exception. According to the statements once widely made by commentators, the occupier's duty to prevent injury to persons or property outside his land from natural conditions on his own land is limited, if it exists at all. * * *. It would be consistent with such a rule however, to require affirmative care with respect to the natural result of the occupier's alteration of his land, as where he plants trees, or alters his land so that water is collected and discharged onto other land or the highway in unnatural quantities.' (Emphasis supplied.)

Applying these rules to the instant case, we must hold that Moore-Hughes was under an affirmative duty not to permit its land to remain in an altered state if such altered state created a condition the natural and foreseeable result of which would result in injury to the adjoining property, and the breach of this duty constitutes actionable negligence.

It still must follow, however, that such negligence must be the proximate cause of plaintiff's injury. Such a determination must rest upon established precedent.

In 1896 Colorado adopted the 'but--for' test of proximate causation. Thus, in Denver v. Johnson (1846) 8 Colo.App. 384, 390, 46 P. 621, 623, the court approved the language of Campbell v. City of Stillwater, 32 Minn. 308, 20 N.W. 320, which stated:

'In cases of tort, the application of this court of the rule as the proximate cause is that, where several concurring acts or conditions of things--one of them the wrongful act or omission of the defendant--produce the injury, and it would have not been produced but for such wrongful act or omission, such act or omission is the proximate cause of the injury if the injury be one which might reasonably be anticipated as a natural consequence of the act or omission.'

This rule was followed in Willson v. Colorado & Southern Ry. Co. (1914) 57 Colo. 303, 317, 142 P. 174. Thus, even if it were to be established that some of the water may have entered Standard's basement through its own sewer, such would not relieve defendants of liability. Cf. Restatement Law Of Torts, Ch. 16, Sec. 432(2).

It is readily apparent that if the owners of the parking lot had not permitted the dangerous condition to exist upon their property, and had taken active measures to prevent such an occurrence, at least some of the water would not have entered the basement. This record discloses that defendants' negligence was a substantial factor in bringing about plaintiffs' damage.

Defendants further urge that the damage was created by an act of God, thereby relieving them from liability. This court has on at least three occasions ruled that one whose wrongful acts cooperate with an act of God is liable for injuries which are the natural result thereof, the defense of an Act of God being available only to defendants who can prove that the injury resulted solely from the Act of God without any contributory negligence on the part of the defendant. See Barlow v North Sterling Irrigation District (1929) 85 Colo. 488, 277 P. 469, followed in Maggard v. North Sterling Irrigation District (1929), 85 Colo. 491, 277 P. 470; and Ryan Gulch Reservoir Co. v. Swartz (1928), 83 Colo. 225, 263 P. 728.

There being sufficient evidence in the record to support the conclusion that the owner of the land here involved knew or should have known that this...