Sharon v. Connecticut Fire Ins. Co.

• Decision Date: 26 June 1972
• Docket Number: No. 8864,8864
• Citation: 270 So.2d 900
• Parties: Joseph Emile SHARON, Jr., et al. v. CONNECTICUT FIRE INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 900

270 So.2d 900

Joseph Emile SHARON, Jr., et al. v. CONNECTICUT FIRE INSURANCE COMPANY et al.

No. 8864.

Court of Appeal of Louisiana, First Circuit.

June 26, 1972.

On Rehearing Jan. 5, 1973.

Robert W. Smith, Seale, Smith & Phelps, Baton Rouge, for appellants.

Robert L. Freeman, Freeman & Pendley, Plaquemine, for appellees.

Before LANDRY, BLANCHE and TUCKER, JJ.

LANDRY, Judge.

Connecticut Fire Insurance Company (Appellant), liability insurer of the City of Plaquemine, Louisiana (City), appeals from a judgment in favor of plaintiff, Joseph Emile Sharon, Jr. (Appellee), and members of Appellee's family, in compensation for personal injuries and property damage allegedly incurred and sustained by the flooding of Appellee's home with water from the City's sanitary sewerage system. The primary issue on appeal is whether the doctrine of res ipsa loquitur applies in an instance of this nature. The secondary determination to be made is whether plaintiff has borne the burden of proving negligence on the part of the City. The trial court found the City negligent, but did not specify in what respect. We reverse on the finding that the doctrine of res ipsa loquitur is inapplicable, and on further finding that Appellee has failed to establish any negligence on the part of the City.

Appellee's home is built upon a concrete slab in an area of the City which utilizes open ditches for the drainage of surface water. The flow of drainage is from east to west through culverts under Louisiana Highway 1 and the parallel railroad right of way adjoining the highway on the west. After exiting through the outlet culverts under the highway and railroad, drainage water then flows into a system of canals maintained by the Police Jury of Iberville Parish. From these canals, the flow is into major bayous and other primary drainage facilities, none of which are under the control of the City .

The record establishes that the sewerage system is constructed as a gravity flow system, meaning that the underground conduits are installed on an incline so that water and waste deposited therein are propelled by gravity flow to a sump pit which is emptied by means of automatically controlled, electrically operated pumps. The system contains one lift station which is also operated by an automatically controlled electric pump. The lift station, however, is not situated on Appellee's street, and has no direct connection or effect upon the flow of sewerage from Appellee's home into the system and from thence to the sump pit.

It is undisputed that between October 3, 1964, and March 1, 1965, Appellee's home was flooded, on four or five occasions, with sewer water containing varying amounts of human waste from the City's sanitary sewer system. In each instance the flooding occurred either during or immediately following a heavy or prolonged rain when either the streets were flooded over or there was considerable water in the open drainage ditches. On each occasion water entered the residence by leakage through the bottom of the bathroom commode. On at least one occasion, sewerage water leaked from around the bottom of the commode and rose approximately one foot in Appellee's bathtub. The leakage did not, however, occur after each heavy rain, and never occurred during dry weather.

Appellee's home was constructed by his uncle, Joseph A. Pinell, since deceased, who did the plumbing work beneath the slab as well as the carpentry work involved. The tie in line from the residence to the city main was installed by Frank E. Murphy, licensed plumber.

According to Appellee, his home flooded initially on October 3, 1964, and at least five times thereafter. Three of the floodings, he described as 'real bad', the others being of lesser degree. On the first occasion, Appellee noted water seeping or leaking between the base of his commode and the bathroom floor. Immediately following this incident, Appellee and his father removed the toilet and replaced the seal at the base of the commode. After the second instance, the seal was again replaced. On no occasion did the level of the water overflow the toilet bowl. On at least one occasion the water rose approximately half-way Appellee's bathtub. Appellee noted that on two occasions water commenced pouring in after the toilet was flushed, but all other times water flowed at the base of the toilet although it had not been flushed. Appellee also noted that the flooding occurred each time after a heavy rain. On some occasions the leakage occurred when the streets were completely inundated, and on others when there was no water covering the streets but merely water in the ditches. In addition, Appellee attested to having complained to municipal officials. Appellee also testified to the damage to his residence and the inconvenience and illnesses resulting to himself and his family as a result of the flooding.

Frank E. Murphy, licensed plumber, attested to having run the sewer line from Appellee's residence to the city main. He did not perform any plumbing work inside the house. After one flooding instance, he checked the plumbing fixtures in Appellee's residence and found them satisfactory. He concluded the line was stopped up thus preventing the water from flowing out properly. He could not say, however, whether such stoppage was between Appellee's residence and the city mains or in the mains themselves. Murphy explained that the purpose of the seal at the base of the commode is primarily to prevent sewer gases from entering a residence, and not to retain water pressure. He also stated that if a seal were improperly installed or was in some manner defective, water would seep from the base of a toilet each time it was flushed.

Other residents of the area related similar problems. Ralph Laurent, neighbor, noted that his carport rests on a slab about four inches above street surface level. A shower located on the slab emitted sewer water approximately one foot high through the shower drain on one occasion when Appellee's home flooded. Mr. Laurent plugged the drain and ceased using the shower. He observed that the problem was eliminated, and did not occur again after the City performed some corrective drainage work in the area.

Another neighbor, Alvin P. Simoneaux, testified that in one instance when Appellee experienced trouble, the water rose an inch or two in Simoneaux's toilet bowl but did not overflow or cause any damage.

David John Carville, Mechanical Engineer, in the employ of the firm which designed the sewer system, testified in detail regarding the nature of the system and its method of operation. He observed that the system operated by gravity flow to the treatment plant, and was designed to accommodate waste from residences, schools, motels and similar establishments. In essence he testified that the system was constructed according to sound, acceptable engineering practices . It is not a storm sewer system intended to take care of storm surface drainage and ground water. He explained that a sanitary sewer system contemplates the infiltration of a certain amount of ground and sub-surface water because construction of a system so 'tight' as to exclude all exterior moisture and ground water would be prohibitive in cost to the point of impracticality. For these reasons, design includes allowance for infiltration of water around manholes, pipe joints and other means of entry. Carville noted that if the system became inundated with water due to infiltration of ground water during heavy rains, water would exit the system at the lowest point whether it be a manhole, commode or any other type opening in the system. From the plans of the system, Carville noted that Appellee's home was constructed in one of the lowest elevations in the area.

Mr. Carville explained that the collection point or sump pit is drained into the treatment plant by means of two pumps of three and five horsepower, respectfully. The pumps are electrically run and automatically controlled by floats. The smaller pump operates at normal pit levels. Should the level rise, the larger pump comes on automatically and the smaller pump goes off. If the water rises above the capacity of the larger pump, the smaller pump again comes on to assist. As the pumps clear the pit, they operate in reverse order.

Although Mr. Carville could not state exactly the cause of Appellee's difficulty, he was of the definite opinion that had Appellee's commode had a proper seal, water would have risen in the toilet bowl and have overflowed the top of the bowl, if at all. In his opinion, a proper seal would have prevented leakage at the base of the commode. In explaining why Appellee had no difficulty when water was standing on his property and covered the street, but had trouble when there was only water in the drainage ditches, Mr. Carville explained that the sewer system was probably not filled by infiltered water by a hard, fast rain which left water standing on the ground, but then drained off properly. He pointed out that it would take a long sustained rain for the system to become completely infiltered to such extent that water would exit at the lowest available outlet.

C. Z. Breaux, Mechanical Engineer, in general corroborated the testimony given by Carville. It was his opinion that if Appellee's trouble occurred during or after heavy rains, the most likely conclusion would be that infiltration of surface water contributed to the problem. He also noted that a detailed study would be required to determine how much of such a problem was caused by inadequate surface drainage.

Two City Councilmen, Warren Hebert and D. J. McDuffie, testified in substance that upon complaint from Appellee, they visited Appellee's residence during one instance that the flooding occurred. Both stated that Henry Vadnais, Superintendent of the City Sanitation Department, told them that on one occasion when he went to investigate a complaint by Appellee, Vadnais checked and...