Sandifer Motors, Inc. v. City of Roeland Park

• Decision Date: 15 May 1981
• Docket Number: No. 51137,51137
• Citation: 6 Kan.App.2d 308,628 P.2d 239
• Parties: SANDIFER MOTORS, INC., Plaintiff-Appellee, v. The CITY OF ROELAND PARK, Kansas, Defendant-Appellant.
• Court: Kansas Court of Appeals

Page 239

628 P.2d 239

6 Kan.App.2d 308

SANDIFER MOTORS, INC., Plaintiff-Appellee, v. The CITY OF ROELAND PARK, Kansas, Defendant-Appellant.

No. 51137.

Court of Appeals of Kansas.

May 15, 1981.

Review Denied July 15, 1981.

Syllabus by the Court

1. A nuisance is an annoyance, and any use of property by one which gives offense to or endangers the life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance.

2. A private nuisance is a tort related to an unlawful interference with a person's use or enjoyment of his land. The concept of a private nuisance does not exist apart from the interest of a landowner.

3. To constitute a nuisance, the interference with plaintiff's use of its property must be both substantial and unreasonable.

4. What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency, continuity or duration, and the damage or annoyance resulting. Each case of necessity must depend upon the particular facts and circumstances.

5. A nuisance may or may not be based on the negligent act of the one creating it. However, it frequently is the consequence of negligence, or the same acts or omissions which constitute negligence may give rise to a nuisance.

6. Liability for nuisance may rest upon (1) an intentional invasion of the plaintiff's interests, or (2) a negligent one, or (3) conduct which is abnormal and out of place in its surroundings, and so falls fairly within the principle of strict liability.

7. Where a nuisance has its origin in negligence, as distinguished from an absolute nuisance, contributory negligence is a defense.

8. In any situation where contributory negligence would have been a defense in the absence of the statute, comparative negligence now applies.

9. Contributory negligence is no defense to an intentional nuisance under common law principles.

10. In Kansas, where tort liability is predicated on conduct less culpable than "intentional," the general rule is to compare fault and causation.

11. To create an "intentional" nuisance, it is not enough to intend to create a condition causing harm; the defendant must either specifically intend to damage the plaintiff or act in such a way as to make it "substantially certain" that damage will follow.

12. Where a trial incident is claimed to be prejudicial and a party has an opportunity to remedy it at the time, the party may not adopt "wait and see" tactics and complain only if the result is unfavorable.

13. Ruling on whether a pretrial exclusionary order entered pursuant to a motion in limine has been violated is a matter for the sound discretion of the district court. The district court's determination will not be disturbed on appeal absent a clear showing of abuse of discretion.

14. In an action for damages for a private nuisance, it is held : The court did not err in (a) overruling defendant's motion for a directed verdict, (b) instructing the jury to compare the causal fault of the parties under the doctrine of comparative negligence, or (c) overruling defendant's motion for a new trial based on a claimed violation of a protective order.

Richard T. Merker, of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, for defendant-appellant.

J. Roy Holliday, Jr., of Speer, Austin, Holliday, Lane & Ruddick, Olathe, for plaintiff-appellee.

Before FOTH, C. J., and PARKS and SWINEHART, JJ.

FOTH, Chief Judge:

Plaintiff sued the City of Roeland Park for flood damage to its business sustained in September, 1975, by reason of a claimed nuisance maintained by the city on its adjoining property. The case was submitted to a jury on a theory of comparative negligence or comparative fault. The jury fixed plaintiff's damages at $30,607.03, allocating the fault 30% to plaintiff, 50% to defendant city, and 20% to unknown third parties. The city appeals from the judgment entered on the verdict raising two primary issues: that the evidence did not support a finding of nuisance, and that the doctrine of comparative fault should not have been applied. It also complains of certain evidence admitted which it claims violated a protective order entered on its motion in limine.

I. EVIDENCE OF NUISANCE

Our Supreme Court restated the long-standing definition of nuisance in Vickridge Homeowners Ass'n, Inc. v. Catholic Diocese of Wichita, 212 Kan. 348, 354, 510 P.2d 1296 (1973), observing:

"The question of what constitutes a nuisance has been considered in many decisions of this court. Most recently in the case of Culwell v. Abbott Construction Co., 211 Kan. 359, 506 P.2d 1191, it was held:

'A nuisance is an annoyance, and any use of property by one which gives offense to or endangers the life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance.

'A private nuisance is a tort related to an unlawful interference with a person's use or enjoyment of his land. The concept of a private nuisance does not exist apart from the interest of a landowner.' (Syl. PP 1, 2.)

"The subject has also been considered in depth and many decisions discussed in the recent cases of Baldwin v. City of Overland Park, 205 Kan. 1, 468 P.2d 168; Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P.2d 82; and Caywood v. Board of County Commissioners, 200 Kan. 134, 434 P.2d 780."

The court in Vickridge also quoted a passage from Hofstetter v. Myers, Inc., 170 Kan. 564, 228 P.2d 522 (1951), which defines nuisance this way:

"While the word nuisance is perhaps incapable of precise definition, yet in general it is held to be something which interferes with the rights of citizens, whether in person, property, or enjoyment of property, or comfort. It has also been held to mean an annoyance, and, in its broadest sense, that which annoys or causes trouble or vexation, that which is offensive or noxious, or anything that works hurt, inconvenience or damage. (See 66 C.J.S., Nuisances, § 1, p. 727). What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Each case must of necessity depend upon its own particular facts and circumstances." 170 Kan. at 568, 228 P.2d 522.

The sufficiency of plaintiff's evidence was raised by motion for a directed verdict. We therefore examine the evidence to determine whether there was evidence the city used its property in such a way as to obstruct the reasonable use of plaintiff's property. In so doing, we take the evidence in the light most favorable to plaintiff as the party against whom the motion was aimed. Frevele v. McAloon, 222 Kan. 295, Syl. P 5, 564 P.2d 508 (1977).

Plaintiff's property was utilized as, among other things, an automobile salvage yard. In connection with its business it commenced in 1964 to improve the premises by erecting an office building and a 40-foot by 120-foot parts storage building. Because the land was low, plaintiff faced potential flooding from surface water and therefore elevated the base of its improvements and installed surface drainage controls consisting of culverts and earthen dikes or berms.

In addition, it constructed over a period of years an underground drainage system or storm sewer which was the source of its problems in this case. The sewer consisted of a network of concrete pipe with surface inlets to collect surface water, covered by steel grates. At the north end the system drained into Turkey Creek. At the south end was an open (i. e., grateless) inlet, inadvertently placed several feet over the line between plaintiff's property and the city's. This inadvertent trespass was remedied while this action was pending; in our view it does not affect the issues before us.

It was admitted by plaintiff that the pipe sections of which the sewer was constructed were all factory seconds. Its evidence also showed, however, that the defects were minor and did not affect the system's capacity to function. It also appeared that the higher end of the system consisted of 30-inch diameter pipe which drained into 18-inch pipe in the lower part. This constriction would not impede the flow of anticipated water, but would be a natural catch point for any debris entering the system.

The defendant city owned the high land adjacent to plaintiff's on the south. Part of this land is a city park, but the portion immediately touching plaintiff's is unimproved and overhangs a ravine separating the two properties. Plaintiff's evidence was that the city used this portion of its property as an open dump for the deposit of assorted discarded street and traffic control signs, refrigerators, stoves, automobile parts, tires, brush, and other miscellaneous debris. Plaintiff's employees' testimony, although contradicted, was that the dumping was by city trucks as well as unidentified individuals. The mayor of the defendant city had inspected the premises and was aware of the condition.

Plaintiff's employees regularly patrolled that part of the city's property near the open sewer system inlet to remove debris which might wash into and clog it. Nevertheless, after a heavy rain the night of September 11, 1975, plaintiff's employees found debris (which they identified as coming from the city's property) had washed down the hill, through the ravine and into the sewer system. The system clogged and burst, and surface water which would otherwise have...