Summit Hill Associates v. Knoxville Utilities Bd.

• Decision Date: 28 December 1983
• Citation: 667 S.W.2d 91
• Parties: SUMMIT HILL ASSOCIATES, Plaintiff-Appellant, v. KNOXVILLE UTILITIES BOARD, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 91

667 S.W.2d 91

SUMMIT HILL ASSOCIATES, Plaintiff-Appellant, v. KNOXVILLE UTILITIES BOARD, Defendant-Appellee.

Court of Appeals of Tennessee Western Section, at Knoxville.

Dec. 28, 1983.

Application for Permission to Appeal

Denied by Supreme Court

March 19, 1984.

John O. Threadgill and James C. Wright of Butler, Vines, Babb & Threadgill, Knoxville, for plaintiff-appellant.

Robert R. Campbell of Hodges, Doughty & Carson, Knoxville, for defendant-appellee.

TOMLIN, Judge.

The plaintiff has appealed from a judgment entered in the Circuit Court of Knox County, sitting without a jury, in favor of the defendant. The plaintiff seeks compensation for damages sustained by it when its construction site was flooded with water, resulting from a break in an underground water main which was located in one of the public streets in Knoxville and operated by the defendant as part of the water system of the City of Knoxville. The plaintiff's appeal presents four issues for us to review: (1) the failure of the trial court to apply the doctrine of strict liability; (2) the failure of the trial court to apply the doctrine of res ipsa loquitur; (3) the failure of the trial court to hold the defendant to a high degree of care commensurate with the risk involved; and (4) whether or not the evidence preponderates against the judgment of the court. We are of the opinion that the trial judge properly applied the law of this state, and that the evidence does not preponderate against his decision.

The facts material to this litigation are as follows: The plaintiff, a partnership, had contracted for the construction of a multi-story Quality Inn in downtown Knoxville. The construction site covered most of a square block, and was located on the south side of Vine Avenue. Construction began in July, 1980.

In the early morning hours of December 1, 1980, an eight-inch cast iron water main running in an east-west direction between Gay Street and South Broadway, and located under Vine Avenue, ruptured. This pipe had been installed in 1894 or 1895. At the time of the rupture the ground level of the hotel project was well below the elevation of Vine Avenue and the property adjacent to the project on the west. The point of the rupture under Vine Avenue was just west of a point opposite the center of the hotel tower. The entire construction site was flooded to an approximate depth of two to three feet. At the time of the water main rupture, and for some period of time prior thereto, the block of Vine Avenue which adjoined the north side of the construction project was closed to traffic by means of a fence. This section of the street was used for the parking of trailers that served as temporary job offices.

In the early morning of December 1, 1980, the maintenance foreman was notified by telephone from the pumping station of the water department that there had been a sudden drop in pressure. A maintenance crew immediately began touring the downtown area of the city looking for a rupture of some type. At 4:20 a.m., the maintenance crew received a call from the Knoxville Police Department, reporting a large water leak near the intersection of Vine Avenue and Gay Street. The maintenance crew immediately went to the scene, and upon observing the discharge of water shut off the valves controlling the supply of water to that section of the water main.

The water department's records indicate that the section of the main containing the rupture was "valved off" at 4:35 a.m. This time was controverted by the plaintiff's construction foreman, who testified that the water was shut off closer to 5:00 a.m. The section of the main where the rupture was located was in that part of Vine Street that was fenced off. After the water was valved off, the maintenance crew dug up the street, cut the line, and plugged it on both ends so that service could be restored.

Insofar as damages are concerned, not only did the water have to be pumped out, but also, sink holes formed at the construction site, certain foundations had to be reinforced and reconstructed, and some of the retaining walls shoring up the ground around the construction site were washed down and had to be replaced. The opening of the hotel was thus delayed beyond its target date. The plaintiff contended that a substantial portion of this delay was caused by the flooding of the construction site.

I. STRICT LIABILITY.

The first issue we address is to the effect that the trial court should have applied the doctrine of strict liability to the facts of the case at bar. Simply stated, this means that once the plaintiff proved causation, then without the showing of any negligence on the part of the defendant, it would be held liable for all damages naturally and reasonably ensuing from the proven cause.

The doctrine of strict liability stems from the landmark English case of Rylands v. Fletcher, L.R. 3 H.L. 330, 1 E.R.C. 257 (1868). In support of its insistence that the trial court (and this Court) should apply the doctrine of strict liability, the plaintiff cites cases from several jurisdictions that have applied this doctrine to suits for damages resulting from ruptured water lines. Our research indicates that these jurisdictions are in the distinct minority. The cases cited are Lubin v. Iowa City, 257 Iowa 383, 131 N.W.2d 765 (1964), which relied upon an earlier case styled Bridgeman-Russell Company v. City of Duluth, 158 Minn. 509, 197 N.W. 971 (1924); Smith v. City of Morgantown, 289 S.E.2d 223 (W.Va.1982); Bierman v. City of New York, 60 Misc.2d 497, 302 N.Y.S.2d 696 (Civ.Ct.N.Y.1969); and Smith v. Town of Logansport, 395 So.2d 888 (La.App.1981), which was decided on the basis of a Louisiana statute.

On the other hand, the general rule in this country is stated in the beginning of a very thorough annotation on this subject, found in 20 A.L.R.3d 1294, 1301:

[a] In general

The liability of a water company for damages arising from the operation of a waterworks is generally determined by the rules governing liability for negligence. It has accordingly been held (or tacitly assumed) in the majority of the cases involving the escape of water from a main that the water distributor is not an insurer and that a showing of negligence on its part is a necessary prerequisite to recovery.

In 78 Am.Jur. 2d, Water Works and Water Companies, § 62 (1975), beginning at page 951, the general rule is stated as follows:

§ 62 Injuries caused by water escaping from mains.

....

With regard to the liability of a water distributor for damage caused by water escaping from a main, it has been held or tacitly assumed in the majority of cases considering such liability that the water distributor is not an insurer and that a showing of negligence on its part is a necessary prerequisite to recovery.

Writing as to the extent to which the American courts have applied the principles laid down in the English case of Rylands v. Fletcher, Dean Prosser, in his Law of Torts 4th Ed. (1971), states at pages 510 through 512 that:

On the other hand, the conditions and activities to which the American courts have refused to apply Rylands v. Fletcher whether they purport to accept or to reject the case in principle, have been with few exceptions what the English courts would regard as "natural" use of land, and not within the rule at all. They include water in household pipes, the tank of a humidity system, or authorized utility mains; ... The conclusion is, in short, that the American decisions, like the English ones, have applied the principle of Rylands v. Fletcher only to the thing out of place, the abnormally dangerous condition or activity which is not a "natural" one where it is.

The grounds on which other states have rejected the applicability of the doctrine of strict liability to water systems are enlightening. In Interstate Sash & Door Company v. City of Cleveland, 148 Ohio St. 325, 74 N.E.2d 239 (1947), the Ohio Supreme Court said that "[T]he laying of mains in public streets for the purpose of furnishing water for protection against fire and for use of inhabitants is universally recognized as proper, necessary and legal in modern cities." Id. 74 N.E.2d at 241.

The Supreme Court of South Dakota, when it rejected the applicability of the doctrine of strict liability in cases similar to the one sub judice in Midwest Oil Company v. City of Aberdeen, 69 S.D. 343, 10 N.W.2d 701 (1943), said:

The present facts disclose water being sent through a ten-inch main in the manner now generally accepted for the purpose of furnishing a water supply to city dwellers. We think it clear that such a distribution of water does not constitute an ultra-hazardous activity .... Water mains are universally in use in cities, and to hold that a proper and reasonable use of such mains "necessarily involves a risk of serious harm to the person, land or chattels of others" would be contrary to the experience of at least several generations.

Id. 10 N.W.2d at 702-3.

The Washington Supreme Court in Pacific Northwest Bell Telephone Company v. Port of Seattle, 80 Wash.2d 59, 491 P.2d 1037 (1971), and the Oregon Court of Appeals in McDaid v. City of Pendleton, 4 Or.App. 380, 478 P.2d 642 (1970), both found that the maintenance of a pressurized water main by the defendant municipality was not an abnormally dangerous activity, the Oregon court stating that, "There is nothing 'extraordinary,' 'exceptional,' or 'unusual' about such activity." Id. 478 P.2d at 643.

We are...