Richardson v. Cnty. of Mobile

• Decision Date: 25 November 2020
• Docket Number: 1190468, 1190469
• Citation: 327 So.3d 1130
• Parties: Lewis A. RICHARDSON and Ellen G. Richardson v. COUNTY OF MOBILE Sherry E. Phelps v. County of Mobile
• Court: Alabama Supreme Court

327 So.3d 1130

Lewis A. RICHARDSON and Ellen G. Richardson

v.COUNTY OF MOBILE

Sherry E. Phelps

v.County of Mobile

1190468, 1190469

Supreme Court of Alabama.

November 25, 2020

William M. Cunningham, Jr., of Burns, Cunningham & Mackey, P.C., Mobile; and Herndon Inge III, Mobile, for appellants.

Aaron G. McLeod, Neal C. Townsend, and Garrett Zoghby of Adams and Reese LLP, Birmingham, for appellee.

SELLERS, Justice.

In these consolidated appeals, Lewis A. Richardson and Ellen G. Richardson (in case no. 1190468) and Sherry E. Phelps (in case no. 1190469) (hereinafter referred to collectively as "the landowners") contend that the Mobile Circuit Court erred in entering summary judgments in favor of Mobile County ("the County") in the landowners’ respective actions against the County. The landowners assert that the County is responsible for flooding that has damaged the landowners’ personal property, allegedly has decreased the value of their residential property, and has made travel over the roads in their neighborhood unsafe and inconvenient.

The trial court concluded that the County owes no duty to remediate the flooding. We agree with the County that the landowners have not demonstrated that the County owes them a duty to prevent the flooding of their property. However, we conclude that the County does owe a duty to keep its roads safe and convenient for travel and that the landowners can seek to enforce that duty. Accordingly, we affirm the trial court's judgments in part and reverse them in part.

The landowners are neighbors in a subdivision called Cottage Park Estates in an unincorporated area of Mobile County ("Cottage Park"). Cottage Park was constructed in 1977 by a private developer. Phelps's house and the Richardsons’ house are located across the street from one another in Cottage Park.

There is an open concrete drainage ditch in Cottage Park that is located east and southeast of the landowners’ houses. When it rains, storm water enters the concrete ditch and travels to an underground concrete culvert. After reaching the underground culvert, storm water makes its way to a manhole under one of the streets in Cottage Park and exits into an open ditch or creek to the north of the neighborhood. If too much water enters the concrete ditch, water overflows at various points in the drainage system, flooding the roads in Cottage Park and the landowners’ property.

The County had no input in designing, constructing, approving, or permitting any part of the drainage system in Cottage Park. In 1978, however, pursuant to a County resolution, the County accepted dedication of the roads in Cottage Park, "together with the drainage system as it affects said roads."

Cottage Park has a history of flooding problems, which were exacerbated by the construction of four subdivisions on land situated uphill and to the east and southeast of Cottage Park. The first two subdivisions were constructed in 1989 and the third was constructed in 1992. In 2015, the fourth subdivision, called the O'Fallon subdivision, was constructed. The construction of the O'Fallon subdivision made the flooding problem worse and prompted the landowners to file their actions against the County. As it did with Cottage Park, the County accepted dedication of the roads in the four referenced subdivisions, as well as drainage systems to the extent they affect the roadways therein.¹

The County approved the plans for the development of the four upland subdivisions, including the O'Fallon subdivision. The drainage system constructed in the O'Fallon subdivision was designed by a licensed engineer, and the plans for the subdivision were approved after review by the County's own engineer, Bryan Kegley. According to the landowners’ brief,² the developer's engineer submitted "a certification regarding pre and post construction stormwater and surface water drainage." The record suggests that the developer's engineer certified that, after completion of the O'Fallon subdivision, the amount of storm-water runoff in the area would be the same or less than it was before construction.

The O'Fallon developer's engineer was incorrect. Shortly after construction began on the O'Fallon subdivision, the flooding problem in Cottage Park worsened significantly. The evidence indicates that the roads in Cottage Park frequently flood and become impassable. There is also evidence indicating that portions of the roads in the subdivision have caved in multiple times, necessitating repairs. Water also tends to escape from the roads, flooding the residential lots.

Expert reports submitted to the trial court suggest that the recent increase in the severity of flooding is largely the result of a decision by the O'Fallon developer's engineer not to route certain portions of the O'Fallon subdivision's water runoff to the detention pond that is located in that subdivision. The water from the areas in question should have been routed to the pond or, if that was not possible, the discharge rate of the pond should have been set lower to account for the uncontrolled runoff coming from those areas. Design aspects of the Cottage Park drainage system, built in the late 1970s, render it unable to accommodate the increased storm water coming from the upland subdivisions.

The landowners sued the County and the developer of the O'Fallon subdivision. They eventually settled their claims against the developer and proceeded against only the County. Against the County, the landowners asserted negligence, nuisance, and trespass. They alleged that the flooding has made the roads in Cottage Park unsafe and that floodwater escapes from the roads and onto the landowners’ property. They asserted that the County has a responsibility to ensure that the drainage system in Cottage Park is sufficient to control flooding in that subdivision. They also criticized the County for approving the plans for the upland subdivisions, primarily the plan proposed by the developer of the O'Fallon subdivision. The landowners sought monetary awards and an injunction requiring the County to alleviate the flooding.

The trial court granted the County's summary-judgment motions, and the landowners filed two separate appeals. Those appeals were consolidated for the purpose of issuing one opinion.

" ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact -- "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." Ala. Code 1975, § 12–21–12 ; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).'

" Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004)."

Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 935 (Ala. 2006). As the appellants, the landowners bear the burden of demonstrating that the trial court erred in entering the summary judgments. Johnson v. Life Ins. Co. of Alabama, 581 So. 2d 438, 444 (Ala. 1991).

Flooding of Private Property

The landowners rely on Long v. Jefferson County, 623 So. 2d 1130 (Ala. 1993). In that case, Jefferson County constructed an underground sewer line within an easement it owned, which ran across a parcel of private property. A house was later constructed on top of the sewer line, and the plaintiffs purchased the property. Eventually, the sewer line collapsed, causing structural damage to the house. The plaintiffs sued Jefferson County, and the trial court entered a summary judgment in Jefferson County's favor.

On appeal, this Court pointed to analogous cases involving municipal drainage systems. Once a municipality chooses to provide such a system, " ‘a duty of care arises and a municipality may be liable for damages proximately caused by its negligence [in designing or maintaining the drainage system].’ " 623 So. 2d at 1136 (quoting City of Mobile v. Jackson, 474 So. 2d 644, 649 (Ala. 1985) ). According to Long, "[a] county, like a city, is under a duty to exercise due care when it constructs and operates a sewage or drainage system, and it may be liable for damages proximately caused by its negligence." 623 So. 2d at 1137. Jefferson County was aware when it installed the sewer line that a house likely would be built on top of the line, but the county failed to install a line that could withstand the weight of a house. It also failed to follow up after the house was constructed to determine whether the sewer line would hold up.

The landowners also point to Reichert v. City of Mobile, 776 So. 2d 761 (Ala. 2000). Reichert indicates that municipalities can be held liable if they are negligent in the design and construction of their drainage systems, if they negligently fail to correct design or construction problems in their drainage systems, or if they negligently fail to provide appropriate upkeep of their drainage systems.

As the County points out, it did not design or construct the drainage system in Cottage Park. But the County acknowledges that it did accept some responsibility over that system when it accepted dedication of the roads in Cottage Park. The County's primary response to the landowners’ reliance on Long and other authorities is that the County accepted dedication of the Cottage Park...