Snow v. City of Columbia

Decision Date18 February 1991
Docket NumberNo. 1696,1696
Citation305 S.C. 544,409 S.E.2d 797
CourtSouth Carolina Court of Appeals
PartiesDonald SNOW and Judith Snow, Respondents, v. The CITY OF COLUMBIA, Appellant. . Heard

H. Ronald Stanley, Columbia, for appellant.

Robert A. McKenzie and S. Bryan Doby, of McDonald, McKenzie, Fuller, Rubin & Miller, Columbia, for respondents.

BELL, Judge:

This is an action in tort for damage to real property. Donald and Judith Snow sued The City of Columbia for damage to their residence caused by the discharge of water from a water main owned and maintained by the City. They alleged causes of action for negligence, trespass, and strict liability. They made no claim for nuisance. The case was tried before a jury. At the close of the evidence, the judge directed a verdict for the City on the negligence claim. He then directed a verdict for the Snows on the trespass and strict liability claims. The jury awarded the Snows $5000.00 in actual damages. The City appeals. We reverse and remand.

The evidence showed the Snows built a house in 1985 at 122 Nursery Ridge Lane near the Town of Irmo, South Carolina. The City of Columbia provides water service to the subdivision in which the house is located.

On January 11, 1987, the Snows discovered water standing in their basement. Further investigation disclosed water was seeping through a crack in the foundation wall of the house. A few days later, Mr. Snow found water bubbling from the ground near his water meter. He reported the problem to the City. A City maintenance crew came and excavated about eight feet of earth at the point where the City's water main joined a lateral connecting pipe. They discovered water flowing from a flange joint fastened by a series of nuts and bolts. Several bolts were loose and had to be tightened. When tightening them failed to stop the leak, the maintenance crew placed a sleeve over the joint. The sleeve stopped the leak.

The City stipulated it owns and maintains the water line. It also stipulated water from the line intruded on the Snows' property. An expert witness for the Snows testified that water from the City's main built up pressure on the front side of their house, cracking a construction joint in the foundation wall and coming into their basement. The evidence also established the Snows suffered out of pocket damages of at least $4740.00 for repairs to the foundation wall and damage to their lawn and shrubbery. Mr. Snow testified visible cracks on the interior of the wall and other signs of water damage in the basement diminished the fair market value of the house by $5000.00 to $10,000.00. The City introduced no evidence.


We first address the claim for strict liability. The Snows assert the City is liable for the damage to their house under the rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330. The rule states that a person who for his own purposes brings on his lands and collects or keeps there anything likely to do mischief if it escapes must keep it at his peril, and if it escapes he is liable for damage caused to another which is the natural consequence of its escape. 1 In Rylands mill owner was held liable when water he collected in a reservoir built on his land burst through a series of old mineshafts leading from the reservoir to his neighbor's lands, flooding the neighbor's mines. The court saw no evidence that the mill owner acted other than in a careful and competent manner in collecting the water in the reservoir. He was liable merely because the water escaped to his neighbor's property causing damage thereto.

The rule in Rylands v. Fletcher forms no part of the common law of South Carolina. The decision of our Supreme Court in Allison v. Ideal Laundry & Cleaners, 215 S.C. 344, 55 S.E.2d 281 (1949), repudiates the rule. In Allison, the owner of a commercial laundry kept a large tank of propane gas on his land for the purpose of firing his boilers. Through no fault on the owner's part, gas escaped from the tank into the surrounding neighborhood. The escaped gas ignited, causing a catastrophic explosion which destroyed the plaintiff's house. The Court rejected the argument that the owner was strictly liable for the damage irrespective of negligence on his part. Since the owner had exercised reasonable precaution in storing the gas on his property and its escape resulted from no lack of due care on his part, the Court held him not liable to the plaintiff. The Court further concluded the use of propane gas for fuel was not an inherently dangerous activity that would remove the case from the normal rule of no liability without fault.

The Court's refusal to embrace the rule in Rylands v. Fletcher is supported by sound reasons. The risk of harm is an inescapable fact of human life. When a person seeks a remedy at law for some harm that befalls him, the court must decide among several possible responses. It may let the loss lie where it falls, leaving the injured person with no legal remedy . On the other hand, it may allocate the loss to another person according to some principle of liability. If the parties have already allocated the risk of a particular harm by agreement (private choice), the court may simply enforce the agreement. In that case, liability arises in contract. If the risk has been allocated by legislation (political choice), the court will enforce the legislation. Liability arises by statute. If the court itself must allocate the loss (adjudication), it has a range of legal theories upon which relief may be granted. The court may determine that the act of one party or another caused the harm and allocate the loss on the basis of causation alone. If the act of a party both caused the harm and was an unjustified act, the court may allocate the loss on the basis of fault. It may also conceivably allocate the loss to a party who neither directly caused the loss nor acted in an unjustified manner, but who is in a "better" position to bear the loss than the injured party. In all of these cases, liability is said to arise in tort by operation of law.

At common law, tort liability has primarily been grounded not on the notion that the defendant by his mere act or omission has caused harm to the plaintiff, but rather on the notion that the defendant by his wrongful act or omission has caused harm to the plaintiff. The root idea of tort law is that the defendant must be "in the wrong," "at fault," "unjustified," "blameworthy," or "culpable" for liability to attach to his conduct.

This idea, which we shall call the fault principle, underlies civil liability from the early history of the common law to modern times. 2 It is reflected in the very words the law has chosen to denote the nature of this liability--tort (law French), transgressio (Latin), trespass (English)--all of which mean "wrong." 3 It is manifested in the language by which the defendant pleaded the general issue in the early law: in nullo est inde culpabilis--"in no way is he at fault." Fault remains a foundational principle of tort liability today. In the words of our Supreme Court, "There is no tenet more fundamental in our law than liability follows the tortious wrongdoer." Fitzer v. Greater Greenville South Carolina Young Men's Christian Assoc., 277 S.C. 1, 3, 282 S.E.2d 230, 231 (1981).

The extent to which the common law recognizes liability without fault is quite limited. Traditionally, "no fault" or "strict" liability was confined to a few narrowly defined categories such as cattle trespass, public callings, certain kinds of nuisance, and so-called ultrahazardous activities. 4 In the nineteenth century, the English courts added two general exceptions to fault based liability: the rule in Rylands v. Fletcher and the modern doctrine of respondeat superior which imposes liability on a master for the wrongdoing of his servant even though the master himself is not at fault. See South Carolina Insurance Co. v. James C. Green, Inc., 290 S.C. 171, 178-183, 348 S.E.2d 617, 621-624 (Ct.App.1986).

Underlying these exceptions to the fault principle is a perception that as between two parties, neither of whom is at fault, the loss should be borne by the one who benefits from the enterprise that leads to the harm and who is in a better position to spread the risk of the harm. Id. This concept of enterprise liability introduces an alternative to the fault principle based on the concept of risk spreading rather than wrongdoing. In effect, it makes the person engaged in an enterprise an insurer against harm which results therefrom without regard to fault on his part. This idea which we shall call the insurance principle, 5 is a departure from fault based liability. Generally, the common law does not make a person an insurer against all harm that may result from his conduct. See Carter v. R.L. Jordan Oil Co., Inc., 294 S.C. 435, 365 S.E.2d 324 (Ct.App.1988), reversed on other grounds,299 S.C. 439, 385 S.E.2d 820 (1989).

The common law has been hesitant to embrace the insurance principle for good reasons. For one thing, no fault liability sometimes permits the injured party to recover even though he has failed to exercise reasonable care for his own welfare. See, e.g., Austin v. Lincoln Equipment Associates, Inc., 888 F.2d 934 (1st Cir.1989); McCown v. International Harvester, Co., 463 Pa. 13, 342 A.2d 381 (1975). This result conflicts with generally accepted notions of fairness and responsibility. For another, the insurance principle has inherent limitations that make it unsuitable as a general ground of legal liability.

In many, if not most cases, both parties, not one, benefit from the enterprise that occasions the injury. Thus, it is difficult to justify the rule on the ground that the loss is being allocated to the person who benefits from conducting the enterprise. The present case is a good example. Operating and maintaining a municipal water system is arguably of much...

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