South Cheyenne Water and Sewer Dist. v. Stundon
| Decision Date | 31 March 1971 |
| Docket Number | No. 3911,3911 |
| Citation | 483 P.2d 240 |
| Parties | SOUTH CHEYENNE WATER AND SEWER DISTRICT, Appellant (Defendant below), v. Madeline STUNDON and Robert Stundon, Appellees (Plaintiffs below). |
| Court | Wyoming Supreme Court |
Carl Lathrop and R. Michael Mullikin, of Lathrop, Lathrop & Uchner, Cheyenne, for appellant.
Weston W. Reeves, of Graves & Smyth, Cheyenne, for appellees.
Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.
Action was brought in the district court by Madeline Stundon and Robert Stundon against the South Cheyenne Water and Sewer District for damages caused to their property when a sewer line of the defendant became clogged. The clogging caused waste in the sewer to back into the basement of plaintiffs' house.
Trial was to a jury and the result was a verdict in favor of plaintiffs. Damages were assessed at $2,500 plus costs of $90. The sewer district has appealed from judgment entered pursuant to the verdict.
Appellant's assignment of error is that the evidence was (1) insufficient to justify a finding of negligence; (2) insufficient to show that negligence on the part of defendant was a proximate cause of plaintiffs' damage; and (3) insufficient to support the jury's assessment of damages.
Appellant concedes it is established in Wyoming that a municipality is liable for negligence in the operation of its sewer system. In that regard it mentions our decision in Lore v. Town of Douglas, Wyo., 355 P.2d 367, 370, underscoring our statement therein to the effect that a municipality is not an insurer of the safe condition of its sewers.
We stated in the Lore opinion that the municipality is liable only for failure to exercise ordinary and reasonable care to keep its sewers in repair and free from obstruction. Arguing that negligence consists of a duty and violation of such duty, appellant asserts there is no duty on the part of defendant to make inspections of its sewer system, periodc or otherwise. It argues the evidence discloses no valid reason, prior to the flooding of plaintiffs' property, for defendant to inspect.
As we view the argument on behalf of the sewer district, its attorneys seem to believe plaintiffs could not succeed without proving the defendant had a duty to make periodic inspections of its sewer system; that it failed in this duty; and that such failure was a proximate cause of plaintiffs' damage.
Counsel argue, even if inspections were made, it would not insure that an accident like the one here involved would not happen, because it could happen between inspections. They also argue the district has some 390 manholes and periodic inspection of all of them would not be practical. Hence, they say, a failure of inspection was not a proximate cause of injury.
We do not agree the decision in this case must turn entirely on whether defendant had a duty to inspect and whether it failed to make reasonable inspections. The evidence as a whole reflects several areas where the jury might very well believe defendant was negligent. We deem it unnecessary to cite authority for the proposition that the question of negligence is for the jury, if there is substantial evidence of a failure on the part of defendant to exercise ordinary and reasonable care to keep its sewer free from obstruction.
This brings us to a review of some of the reasons for holding the verdict of the jury was warranted with respect to the district's negligence.
There was no material dispute in the evidence. It disclosed that, in close proximity to plaintiffs' property is a sewer manhole. The ring and cover of the manhold had been disturbed and material had gotten into the sewer which caused it to clog. The top of the manhole was about level with the surface of the ground; next to the manhole was a hill; approximately 0.97 inch of rain had fallen; water ran down the hill and into the manhole; the sewer being clogged, its contents backed up into the basement of plaintiffs' house.
Witnesses who had seen the displaced ring and cover of the manhole testified the lid had been pushed about six or eight inches to the side, leaving a crescentshaped opening. The cover weighs around 350 pounds and is cemented to a cone. It would take considerable force to move it, and the witnesses surmised the cover and ring had been hit and pushed over by a patrol or road grader.
Prior to the flooding of plaintiffs' property, children were observed playing in the vicinity of the partially uncovered manhole. A witness claimed they were building a dam or dike in the borrow pit next to the manhole. Following the accident which caused plaintiffs' damage, an employee of defendant found a lot of dirt in the manhole, together with bricks, broken tar, a number of small tin cans, and other things of that nature. Witnesses had observed the manhole in its disturbed condition approximately three weeks or a month prior to the accident.
The plant and line superintendent for defendant testified, 'on a number of occasions' he had seen a manhole cover and ring removed; that the circumstances were the same as in this case, where the ring and lid were knocked off to the side of the cone. The witness claimed, in these instances, he was usually called by the county road and bridge department which had disturbed the manhole and told of the disturbance.
It was of course for the jury to say whether defendant was exercising ordinary and reasonable care when it relied on this being done by a third party, in all cases. Likewise, it was for the jury to decide whether ordinary care required defendant to better mark or otherwise prevent covers from being struck. For example, when a manhole is at the side of a road, as the one here involved was, a post was sometimes used to mark it, but not so in this instance.
One of the officers of defendant likewise testified he was aware that in the past patrols had knocked manhole lids and covers off on several occasions. It is not for us to speculate on what could or should have been...
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...648 P.2d 543 (Wyo.1982); Oroz v. Board of County Com'rs of Carbon County, 575 P.2d 1155 (Wyo.1978); and South Cheyenne Water and Sewer Dist. v. Stundon, 483 P.2d 240 (Wyo.1971). In broad thesis for dissent as the majority directly displaces the progression and optimism of Stovall, 648 P.2d ......
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...therefore immunity is not a defense, and cite in support thereof Town of Douglas v. York, Wyo., 445 P.2d 760; South Cheyenne Water and Sewer District v. Stundon, Wyo., 483 P.2d 240; Ramirez v. City of Cheyenne, 34 Wyo. 67, 241 P. 710, 42 A.L.R. 245; and Lore v. Town of Douglas, Wyo., 355 P.......
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