RADER FAMILY LTD. v. City of Columbia
| Decision Date | 13 April 2010 |
| Docket Number | No. WD 70907.,WD 70907. |
| Citation | 307 SW 3d 243 |
| Parties | RADER FAMILY LIMITED PARTNERSHIP, L.L.L.P., Appellant, v. CITY OF COLUMBIA, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
RADER FAMILY LIMITED PARTNERSHIP, L.L.L.P., Appellant,
v.
CITY OF COLUMBIA, Missouri, Respondent.
No. WD 70907.
Missouri Court of Appeals, Western District.
April 13, 2010.
Michael R. Tripp, Columbia, MO, for Appellant.
Debbie S. Champion, St. Louis, MO, for Respondent.
Before: THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and CYNTHIA L. MARTIN, JJ.
THOMAS H. NEWTON, Chief Judge.
Rader Family Limited Partnership, L.L.L.P. (Rader) sued the City of Columbia (the City) for damages to its property caused by a sewer backup. Rader alleged that the City failed to maintain the sewer system and sought damages under a theory of inverse condemnation. The jury decided in favor of the City. We affirm.
Factual and Procedural Background
On March 14, 2004, the sewer backed up into the finished basement of a downtown building owned by Rader. It was determined that the cause of the backup was grease in the sewer line and that the grease originated from restaurants upstream of the blockage. As a result of the backup, Rader incurred $14,970.49 in cleaning and removal costs. It sued the City under, inter alia,1 a theory of inverse
condemnation, contending that its building had been reduced in value because of the damage to the basement.
At trial, Radar argued that the City had notice that concentrations of restaurants were likely to cause grease blockages, that it failed to take preventative measures, and that this unreasonable operation of the sewer system caused the damage to Rader's building. It was adduced that the City's preventative maintenance of its sewer system included a goal of cleaning the lines every five years—though it actually cleaned the lines on an average of three years—and placing problem locations on a six-month cleaning schedule. In September of 2002, a routine cleaning and inspection of the sewer line leading to Rader's building had shown a "little grit and grease," but no further investigation was performed. It was also adduced that a city ordinance prohibited the introduction of large amounts of grease into the sewer system and food establishments are normally outfitted with "grease traps," which prevent grease from going into the sewer line and require periodic maintenance by the property owner.
The jury rendered a verdict 10-2 for the City, and the trial court entered judgment consistent with the verdict. Rader appeals, raising four points.
Legal Analysis
Under the Missouri Constitution "private property shall not be taken or damaged for public use without just compensation." Mo. Const. art. I, § 26. "This concept encompasses inverse takings, where the government takes or damages land, sometimes unintentionally, without going through an official process." Collier v. City of Oak Grove, 246 S.W.3d 923, 925-26 (Mo. banc 2008). This type of "taking" may occur where an entity with the power of eminent domain causes damage to land which has not been intentionally condemned or appropriated. Harvard Props., LLC v. City of Springfield, 262 S.W.3d 278, 281 (Mo.App. S.D.2008). Although a property owner formerly might have maintained an action for nuisance, "inverse condemnation is now the exclusive remedy when private property is damaged by a nuisance operated by an entity having the power of eminent domain." Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo. App. S.D.2008). In this type of inverse condemnation action, the "taking" is the entity's creation of a nuisance: an unreasonable interference with the rights of the property owner. Id. The cause of action requires a showing of notice and unreasonable operation in spite of that notice. Id. at 654.
Evidence of the City's subsequent preventative measures
In its first point, Rader argues that the trial court erred in refusing to allow evidence of measures the City implemented to prevent grease-related sewage backups after Rader's building was damaged. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Stinson v. E.I. DuPont De Nemours & Co., 904 S.W.2d 428, 432 (Mo.App. W.D. 1995). The trial court abuses its discretion when its decision is arbitrary, unreasonable, or against the logic of the circumstances. Id.
Admissibility of subsequent remedial measures
The trial court excluded evidence of changes later implemented by the City because of the rule against the admission of subsequent remedial measures. This exclusionary rule provides that:
when after an event, measures are taken which, if taken previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Rule does not require the exclusion of evidence as subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Id. (quoting FED.R.EVID. 407). Two primary reasons for the rule are: (1) "if precautions taken could be used as evidence of previous improper conditions, no one, after an accident, would make improvements"; and (2) subsequent changes are irrelevant to proving the previous condition. Id.
Rader argues that the evidence was admissible because its claim was for inverse condemnation, not negligence, and the exclusionary rule therefore did not apply. The rule against admission of subsequent remedial measures applies in negligence cases, but it does not apply to all tort claims. Id.; see also Pollard v. Ashby, 793 S.W.2d 394, 402 (Mo.App. E.D. 1990) (finding the exclusionary rule inapplicable in strict liability cases because the underlying rationales did not apply). As noted, this type of inverse condemnation claim arises from an underlying nuisance. Nuisance and negligence are fundamentally different "not only in legal classification, but in their essential features." Proper v. City of Independence, 328 S.W.2d 55, 60 (Mo.App.1959). As far as our research reveals, Missouri has not addressed whether the rule against admission of subsequent remedial measures applies in inverse condemnation cases; nor has it addressed more broadly whether the rule applies in nuisance cases.
However, we believe the public policy rationale for the exclusion applies here, perhaps even more so than in a typical negligence case. If plaintiffs were allowed to introduce evidence of subsequent remedial measures to prove a prior nuisance by an entity with the power of eminent domain, this could deter these entities from implementing preventative measures protecting the public. We also believe the evidentiary rationale has some application to inverse condemnation cases: while that the entity subsequently takes preventative measures could be probative of whether its prior operation was reasonable, such measures are not pertinent to showing the entity had prior notice of a problem. Hence, the trial court's decision to apply the rule against admission of subsequent remedial measures to this inverse condemnation suit was not arbitrary, unreasonable, or against the logic of the circumstances.
Rader next argues that, even if the rule against admitting evidence of subsequent remedial measures applies, the evidence it sought to introduce was admissible under exceptions to the rule. As stated in the rule, subsequent remedial measures are not required to be excluded for the purposes of showing ownership or control, to rebut claims that precautions were not feasible, or to impeach. Stinson, 904 S.W.2d at 432; see also Dick v. Children's Mercy Hosp., 140 S.W.3d 131, 142 (Mo.App. W.D.2004).
Rader contends its evidence was proper to rebut the City's claim that the preventative measures at issue were unnecessary and not feasible. In its opening statement, the City asserted that its witnesses would testify "the only way they know of to keep grease out of the sewer system is to turn the water off. And the only way that they know of to keep a backup from occurring for sure ... is to turn the water off." It emphasized that the City had over 500 miles of sewer to maintain and that there are 544 food establishments in the City. This argument was continued throughout the trial. For example, the City's sewer
utility manager, Terry Hennkens, testified that to his knowledge, there was no other way the grease blockage could have been prevented. Mr. Hennkens also attested that it was not feasible to place areas of the sewer system with a high concentration of restaurants on a shorter cleaning schedule. The sewer maintenance superintendent, William Weitkemper, similarly testified that it would be "difficult and time-consuming" to place areas with high concentrations of restaurants on a six-month cleaning list and that "past history" did not bear out that it would be reasonable.
However, Rader was allowed to impeach Mr. Hennkens by asking about the City's subsequent increased inspection of areas with a high concentration of...
To continue reading
Request your trial