Rodman v. City of Wabash

• Decision Date: 04 September 1986
• Docket Number: No. 4-1085A300,4-1085A300
• Citation: 497 N.E.2d 234
• Parties: Gareth RODMAN and Louise Rodman, Appellants (Plaintiffs Below), v. The CITY OF WABASH and the Municipal Works Board of the City of Wabash, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 234

497 N.E.2d 234

Gareth RODMAN and Louise Rodman, Appellants (Plaintiffs Below), v. The CITY OF WABASH and the Municipal Works Board of the City of Wabash, Appellees (Defendants Below).

No. 4-1085A300.

Court of Appeals of Indiana Fourth District.

Sept. 4, 1986.

Rehearing Denied Nov. 12, 1986.

John Johnston, Johnston Lehman & Guenin, Wabash, for appellants.

Robert E. Magley, Wabash, for appellees.

MILLER, Judge.

Gareth and Louise Rodman filed negligence, contract, nuisance, and inverse condemnation causes of action against the City of Wabash (City) and the Municipal Works Board of the City of Wabash (Board) for injuries sustained as a result of repeated raw sewage back up into the Rodmans' basement from the city-owned and maintained sanitary and storm sewer system. The defendants filed a motion for summary judgment which was granted by the trial court on grounds that the City's acts, in installing and maintaining the sewer lines to the Rodman property, were not of such a nature as to affect the Rodmans in a manner different in kind from the effect on others' property. The trial court also concluded that the City and the Board had no special relationship with, nor owed any specific duty to, the Rodmans.

On appeal, the Rodmans claim the trial court erred in finding that the defendants' acts in installing and maintaining the sewer lines to the Rodmans' home were not of such a nature to affect the Rodmans in a manner different in kind from the effect on others' property, and in concluding that the City and the Board had no special relationship with, nor owed a specific duty to, the Rodmans. We find the City's decision to install the sewer system was the performance of a discretionary function and no liability attaches under the Indiana Tort Claims Act. IND.CODE 34-4-16.5-3(6). We further find that the City owed a duty of reasonable care to all sewage drain users as a class and no special duty to the Rodmans as individuals.

The Rodmans also claim the trial court erred in not finding an implied contract to furnish adequate sewer service which the City breached by permitting the system to exceed its capacity. We find that even if an implied contract existed between the Rodmans and the City, its terms and conditions are so vague and indefinite as to prevent enforcement.

Finally, the Rodmans argue that the City has "taken" their basement as an integral part of its sewage system and is required to pay just compensation for the taking of private property for public use. We find the Rodmans waived their claim to compensation by proceeding with the purchase of the home with actual knowledge of the previous sewage back ups. The trial court correctly concluded no genuine issue of material fact existed and granted summary judgment to the City.

We affirm.

FACTS

Gareth and Louise Rodman purchased their home at 997 North Wabash Avenue Wabash, Indiana in April of 1979. Before purchase the Rodmans inspected the basement and observed stains on the walls from previous sewage back ups. A city ordinance requires all drains to be connected with the city sewers if located on a street or alley accessible to the city sewer. The Rodmans' home was connected to a combined sanitary and storm water sewer at purchase. The City of Wabash and the Municipal Works Board of the City of Wabash owned, operated, and maintained the sewer system and charge the Rodmans and other homeowners for the sewage services provided to their property.

In the years before 1960, the City had combined storm water and sanitary sewers which discharged without treatment directly into the Wabash River or into creeks and eventually into the Wabash River. When these sewers were constructed is unknown, but they have been in existence and utilized for a number of years. In 1958, the City recognized the existing untreated sewage was a health problem and implemented engineering studies necessary to bring the system into compliance with health codes. It was not economically feasible to replace all of the combined sewers with new, separated sanitary sewers. Consequently, most of the sewers in the older sections of the city remained combined but were utilized in the overall system. In 1960, the City constructed two waste water treatment plants, interceptor sewers with lift stations, and allied facilities to transport the effluent flow from the existing sewer system to one of the new treatment plants.

Pat Ragan, Superintendent of Public Works for the City, admitted the combined sewer was not large enough to carry both sanitary sewage and storm water, and the sewer system had been inadequate for many years. During moderate to heavy rainfall, the combined system became full and water could not flow freely. Water and sewage backed up into homeowners' basements creating reservoirs which hold a small portion of the volume of water and sewage until the system can handle it. The City does not dispute the inadequacy of the sewer system or the amount of rainfall required to cause a backup.

Six times from the spring of 1980 through the spring of 1983, city sewers have backed up into the Rodmans' basement through a commode. The raw sewage contains human waste. Rodman repeatedly notified the City, orally and in writing, of the backup problems. Rodman also submitted a written claim to the City's insurance company. Pat Ragan, Superintendent of Public Works, inspected the Rodman basement and the sewers in that area, advising Rodman to install a shut-off valve to prevent back up at a cost of less than $100.00. The Rodmans' neighbor installed a shut-off valve and had no further back ups. Rodman did not purchase and install a shut-off valve.

In 1980, the City conducted a study of the sewage system which revealed ten (10) areas of the city with infiltration problems. A special study of the sewer serving the Rodmans revealed that the ten inch deep sewer has a bottom elevation of 744.82 and the Rodman basement's deepest elevation is 747.44. The study also showed a crack in the sewer near Charlie Creek, which was repaired in 1980 or 1981.

The overall sewage treatment facilities of the City meet state standards despite the ten areas with infiltration problems. The City's plans to separate the combined sewers and to increase the sewage treatment plant's secondary capacity at a cost of $4,000,000 are being reviewed by the Indiana State Board of Health.

The trial court granted the City's motion for summary judgment in the following decree:

"This matter comes before the court on the Motion for Summary Judgment filed January 30, 1985....

The Court now having taken the Motion for Summary Judgment under advisement and having reviewed the pleadings affidavits and matters before the Court now finds that the acts of the Defendant in installing and maintaining the sewer lines to the Plaintiff property, and other residents of Wabash, Indiana, was not of such a nature that it will effect [sic] the Plaintiffs, or any other resident, in a manner different from the way that it effects [sic] the property of any other owner who also utilizes the city sewers. Because of such finding the Court concludes that the Defendants had no special relationship with, nor owed any specific duty to, the Plaintiffs as individuals that would give rise to liability on the part of the Defendants for the damages which are alleged to have been incurred by the Plaintiffs in their complaint.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that there is no genuine issue of material fact as to the existence of a duty on the part of the Defendants owed to the Plaintiffs and that the Defendants are entitled to Summary Judgment as a matter of law in their favor and against the Plaintiffs.

Costs against the Plaintiffs. Judgment on the findings."

Record pp. 74-75.

Issues

The parties present the following issues for decision:

One: Whether a municipal corporation and/or its municipal works board are liable in negligence or nuisance for the discretionary performance of a purely public duty, in the absence of a private duty?

Two: Whether there exists an implied contract between the City and the Rodmans, the terms of which require the Rodmans to pay for sewage service furnished by the City and require the City to provide sewers adequate to handle the volume of sewage reasonably expected to be discharged into them, which has been breached by the City in permitting use of the sewer system to exceed its capacity?

Three: Whether the City has "taken" the Rodmans' basement as an integral part of its sewage system and is required under the Constitutions of the State of Indiana or the United States to pay just compensation for the taking of private property for public use?

DECISION

We note that the Rodmans challenge the trial court's grant of summary judgment in favor of the City. The standard of review for summary judgment is well settled. We will examine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C). A material fact is one which will facilitate resolution of any of the factual issues either for or against the party having the burden of proof. Id. Issue One: Municipal Government Tort Immunity

The Rodmans argue that when a city operates its municipally owned sanitary sewers, it acts in a proprietary capacity as a private enterprise subject to the same liabilities, limitations, and regulations as any other public utility and that the sewers must be adequate to handle the volume of sewage reasonably expected to occur. Further, the Rodmans assert the discharge of raw sewage into their basement constitutes a private nuisance for which they are entitled to recover because this intrusion into their basement is a special injury not inflicted upon the general public. The City argues that its decision to contract for the design and installation of the combined storm water and sanitary sewers more...