Reichert v. City of Mobile

• Decision Date: 30 June 2000
• Citation: 776 So.2d 761
• Parties: Gordon P. REICHERT et al. v. CITY OF MOBILE.
• Court: Alabama Supreme Court

776 So.2d 761

Gordon P. REICHERT et al. v. CITY OF MOBILE.

1981155.

Supreme Court of Alabama.

June 30, 2000.

John W. Parker and Herndon Inge III, Mobile, for appellants.

Mark L. Redditt and J. Gregory Evans of Cherry, Givens, Peters & Lockett, P.C., Mobile, for appellee.

ENGLAND, Justice.

The plaintiffs are homeowners in the Greenwich Hills subdivision in Mobile. After their properties were flooded, they sued the City of Mobile, seeking damages on theories of negligent design, negligent construction, negligent maintenance, continuing trespass, and continuing nuisance, all related to the City's storm-drainage system. They appeal from a summary judgment entered in favor of the defendant City. The issues on appeal are (1) whether the plaintiffs' claims are barred by the statute of limitations and (2) whether the City proved that there were no genuine issues of material fact to be decided and that it was entitled to a judgment as a matter of law. We affirm in part, reverse in part, and remand.

Facts

The plaintiffs Ollie Cooper and Helen Cooper; Shirley H. Davis; Gordon P. Reichert and Linda J. Reichert; and Grace L. Edmisten, all own lots facing Cottage Hill Road, and their lots border one another. The plaintiff Maurice Martin's lot is at the corner of Wilshire Road and Shevlin Lane, immediately north of and adjacent to the Reicherts' property. The plaintiffs Francis D. Nolan and Donna Nolan do not live on the same block as the rest of the plaintiffs. They own the second lot from Cottage Hill on the west side of Wilshire Road.

One of the plaintiffs, Helen Cooper, purchased her home in 1968; at that time, Cottage Hill Road was a two-lane road. She testified that Cottage Hill Road was widened and elevated in 1973 or 1974. Mrs. Cooper experienced her first flood in 1981, and she experienced subsequent floods in 1982 and on May 28, 1997, January 7, 1998, and March 7 and 8, 1998.

Shirley Davis moved into Greenwich Hills in 1970. She experienced her first flood in 1981 and experienced subsequent floods on May 28, 1997, and in January 1998. She admits that after the 1981 flood had occurred she was aware that her home could potentially flood.

Mr. and Mrs. Reichert moved to Greenwich Hills in March 1979. Water entered their home in 1980, 1981, 1997, and 1998. Mr. Reichert testified that he was aware in 1980 or 1981 that his home was subject to flooding, and he testified that the City of Mobile cleaned out the drains in his neighborhood on more than one occasion before May 1997.

Ms. Edmisten moved into Greenwich Hills in 1992. She testified that she believed her home first flooded in 1995. Her home also flooded on May 28, 1997, and on January 7, 1998.

The Nolans purchased their home in April 1995. The source of their flooding is a ditch on the western end of their lot. They first experienced flooding on July 4, 1995, when water came from the drainage ditch and traveled under their back door and into their living room. Mrs. Nolan testified that after the July 1995 flood, water would come into their home every time a hard rain fell. The Nolans experienced flooding on the Wilshire Road side of their property on May 28, 1997.

Ms. Davis testified that after the May 28, 1997, flood she telephoned the City to complain about the drains getting clogged because, she said, the drain to the east of her property was "stopped up big time." She testified that she telephoned the "Action Line" several times about the drains. She testified that the City sent out a vacuum truck, and that she, Maurice Martin, and Mr. Reichert met with Bob Vogtner, the deputy director of public works, who works with the City's engineering department, regarding the clogged drains.

Mrs. Cooper testified that she and the other residents would telephone the City often whenever they thought the sewer drain needed to be pumped out, but that sometimes the City would not respond.

The plaintiffs alleged (1) that the City had negligently designed, constructed and/or maintained the storm-drainage system in their neighborhood, (2) that as a result of the City's negligent design, construction, and/or maintenance of the storm-drainage system their homes and property had been flooded on numerous occasions, and (3) that the flooding events constituted a continuing trespass and a continuing nuisance.

The plaintiffs offered expert testimony from Kenneth Underwood, a licensed professional engineer. Mr. Underwood, after reviewing documents produced by the City referencing construction on and around Cottage Hill Road in 1974, testified by affidavit that in his opinion Cottage Hill Road acts as a dam and prevents the floodwater from flowing south away from the plaintiffs' homes. He also testified by affidavit that he believed Cottage Hill Road was raised in 1974 or 1975 when the City widened Cottage Hill Road from two lanes to five; he said the widening elevated the center lane of the road by 3.5 feet. Mr. Underwood also testified that he believed subsequent development of the area around the Greenwich Hills subdivision has overburdened the storm-drainage system.

Standard of Review

A motion for summary judgment is granted only when the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala. R. Civ. P. "In order to defeat a properly supported motion for summary judgment, the plaintiff must present `substantial evidence,' i.e., `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Lewis v. Mobil Oil Corp., 765 So.2d 629, 630 (Ala.1999)(quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). "This Court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant." System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996).

Discussion

I.

A.

The trial court granted the City's motion for summary judgment, concluding that the statute of limitations barred the claims alleging negligent design and trespass and nuisance because the plaintiffs had had notice of the potential negligent-design claim more than two years before they filed their complaint. The trial court held that the City's duty to maintain the storm-drainage system was a continuing duty, but found that the plaintiffs had not presented substantial evidence indicating that the City had failed to maintain the drains or indicating that any lack of maintenance had proximately caused the harm suffered by the plaintiffs. The plaintiffs argue that the trial court erred in holding that their claims were barred by the statute of limitations.

Recently, in City of Birmingham v. Leberte, 773 So.2d 440 (Ala.2000), we reiterated the law applicable in these cases, as it was first stated in Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83 (1930):

"For an abatable nuisance the cause of action does not arise until the harmful consequences occur, and each occurrence or recurrence of such damages constitutes a separate cause of action. But for an injury by a permanent and unabatable condition the damages are estimated on the hypothesis of an indefinite continuance of the nuisance, and thus affecting the permanent value of the property. In such event, one may not recover in successive suits, but his damages are awarded in solido in one action."

Harris v. Town of Tarrant City, 221 Ala. at 560, 130 So. at 84. After noting that the principle regarding abatable and unabatable nuisances was controlled by § 235 of the Constitution of 1901, which makes a city liable for damage resulting from the construction or enlargement of its works, highways, or improvements, this Court further stated:

"[W]hen a city in the exercise of its duty adopts a system of drainage to care for the rainwater and constructs storm sewers or ditches for that purpose, ... it would be treated as of such character as to be embraced in section 235, and could not ordinarily be abated, but it would subject the city to liability for such compensation as is contemplated by the Constitution. But for the negligent maintenance of

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