Tat–yik Jarvis Ka v. City of Indianapolis

• Decision Date: 26 September 2011
• Docket Number: No. 49A02–1103–CT–188.,49A02–1103–CT–188.
• Parties: Tat–Yik Jarvis KA and Amanda Beth Ka, Appellants–Plaintiffs,v.CITY OF INDIANAPOLIS, Appellee–Defendant.
• Court: Indiana Appellate Court

954 N.E.2d 974

Tat–Yik Jarvis KA and Amanda Beth Ka, Appellants–Plaintiffs,
v.
CITY OF INDIANAPOLIS, Appellee–Defendant.

No. 49A02–1103–CT–188.

Court of Appeals of Indiana.

Aug. 17, 2011.Publication Ordered Sept. 26, 2011.

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David E. Dearing, Indianapolis, IN, Attorney for Appellants.Gregory R. Clark, Assistant Corporation Counsel, Office of Corporation Counsel, Indianapolis, IN, Attorney for Appellee.OPINION BAILEY, Judge.Case Summary

Tat–Yik Jarvis Ka (“Jarvis”) and Amanda Beth Ka (“Amanda”) (collectively, “the Kas”) sued the City of Indianapolis (“the City”) for negligence, negligent infliction of emotional distress, trespass, and nuisance after sewage from a City pipe backed up into their home. The trial court granted summary judgment in favor of the City on all of the Kas' claims, and they now appeal,

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raising the single issue of whether the trial court erred by granting the City's motion for summary judgment. We affirm.Facts and Procedural History

On April 25, 2007, a City contractor (“United Water”) ¹ sent out a cleaning crew to clean the sewers on Fall Creek Drive in Indianapolis, near the Kas' residence.² The job was intended to be a multi-day effort, so the crew cleaned particular segments of the line, but stopped before finishing the entirety. The next day, instead of returning to finish the line on Fall Creek Drive, the crew was sent to another area.

While the crew was cleaning on April 25, the Kas were at home with their newborn and Amanda's mother when they heard a noise and began to smell sewage. Jarvis went outside and spoke with a crew member, who told them that they were cleaning the sewers. Aside from the foul smell, the Kas did not have any other problems with their sewer system that day.

The following day, however, at around 3:00 p.m., the Kas noticed that their toilets were not flushing properly and by 6:00 p.m., sewage was backing up into their home. Water emanated from the Kas' toilet and shower on the house's main level, and fell like a “little waterfall” into the basement. Appellant App. p. 53. Despite their best efforts with a sump pump, the house sustained extensive property damage. Amanda suffered physical injury carrying the couple's newborn baby and personal belongings while she evacuated the house, and the ordeal also caused her emotional suffering. At 8:30 p.m., the Township Coordinator arrived to assess the problem, and called for a United Water crew, who broke the blockage at approximately 11:40 p.m.

The Kas sued the City on April 27, 2009.³ The parties conducted several depositions, two of which elicited testimony from sewer engineering experts. Both experts concluded that the particular portion of the sewer line that was blocked has structural damage that has existed either since installation or developed over the years that may have contributed to the blockage. On November 26, 2010, the City moved for summary judgment on all of the Kas' claims, and on February 2, 2011, the trial court granted the City's motion. The Kas now appeal.

Discussion and Decision⁴ Standard of Review

“The purpose of summary judgment is to resolve quickly and inexpensively those

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disputes in which no genuine issue of material fact exists and in which one party is entitled to a judgment as a matter of law.” Bailey v. Shelter Mut. Ins. Co., 615 N.E.2d 508, 509 (Ind.Ct.App.1993). A trial court's grant of summary judgment is “clothed with a presumption of validity” and the appellant has the burden of demonstrating the trial court erred. Lytle v. Ford Motor Co., 696 N.E.2d 465, 468 (Ind.Ct.App.1998), trans. denied. However, we must carefully scrutinize the trial court's decision to ensure that the non-prevailing party was not improperly denied his day in court. Id.

On review of a trial court's decision to grant or deny summary judgment, this Court applies the same standard as the trial court. Wank v. Saint Francis College, 740 N.E.2d 908, 910 (Ind.Ct.App.2000), trans. denied. Pursuant to Indiana Trial Rule 56(C), summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. “A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.” Mahan v. American Standard Ins. Co., 862 N.E.2d 669, 675 (Ind.Ct.App.2007), trans. denied (quoting Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct.App.1991)).

The party moving for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Markley Enterprises, Inc. v. Grover, 716 N.E.2d 559, 564 (Ind.Ct.App.1999). “A summary judgment is appropriate where the moving party has negated at least one element of plaintiff's claims.” Brannon v. Wilson, 733 N.E.2d 1000, 1002 (Ind.2000). All evidence is construed in favor of the opposing party and all doubts as to the existence of a material issue must be resolved against the moving party. Mahan, 862 N.E.2d at 675. However, once the movant has met his burden of going forward under Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues, and if the nonmovant fails to meet his burden and the law is with the movant, summary judgment should be granted. Id. at 675–76.

Negligence Constructive Notice

The Kas assert that the trial court erred by granting the City's motion for summary judgment. To succeed on a claim of negligence, a plaintiff must show: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by allowing conduct to fall below the applicable standard of care; and (3) a compensable injury proximately caused by defendant's breach of duty. Schmitt v. City of Evansville, 868 N.E.2d 1127, 1128 (Ind.Ct.App.2007). A city is not strictly liable for injuries resulting from defects in the city's infrastructure, and is only liable when it had actual or constructive knowledge of the defect.⁵ Id. at 1129. Constructive knowledge of a defect means that the defect might have been discovered by the exercise of ordinary care and diligence. Templeton v. City of Hammond, 679 N.E.2d 1368, 1372 (Ind.Ct.App.1997) (citing

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Galbreath v. City of Logansport, 151 Ind.App. 291, 279 N.E.2d 578, 580 (1972)). “In other words, if the defect is latent, violation of ordinary care and diligence cannot be found to exist.” Gilson v. City of Anderson, 141 Ind.App. 180, 185, 226 N.E.2d 921, 924 (1967). If the City had actual or constructive knowledge of an unsafe condition, there is a breach of the duty of care if the City does not act. State v. Bouras, 423 N.E.2d 741, 745 (Ind.Ct.App.1981). However, where there is neither actual nor constructive knowledge of a dangerous condition so that the reasonably prudent person would not have been alerted to action, then there is no negligence. Id.

In Schmitt, we recently addressed the issue of constructive knowledge when a sewer connection to a residence was defective and sewage backed up into the home. 868 N.E.2d at 1128. In that case, the plaintiff had not complained of any problems before the incident, the sewer was underground and not subject to observation, the defect had existed for only three to six months, and there was no other evidence that the municipality knew or should have known of the defective condition. Schmitt, 868 N.E.2d at 1129. Given these circumstances, we concluded that the municipality lacked constructive knowledge of the defect so as to be charged with negligence. Id.

Similarly, in Czaja v. City of Butler, 604 N.E.2d 9 (Ind.Ct.App.1992), a case initiated after a tree fell on a car during a storm, we also concluded that a municipality lacked constructive knowledge that the tree was susceptible to falling. Id. at 10. There, we noted the lack of outward signs of tree rotting, that the plaintiffs themselves stated that they had no reason to believe the tree was likely to fall, that the storm was especially ferocious, and that a city inspector had noticed green foliage on the tree two years earlier. Id. We concluded that the municipality had sufficiently established the lack of constructive knowledge, and affirmed summary judgment in its favor despite evidence from the plaintiffs that branches had previously fallen and the sidewalk had buckled due to roots. Id. at 11.

These holdings should be contrasted with cases such as Spier v. City of Plymouth, 593 N.E.2d 1255 (Ind.Ct.App.1992), abrogated on other grounds by Reeder v. Harper, 788 N.E.2d 1236 (Ind.2003), and Tucher v. Brothers Auto Salvage Yard, Inc., 564 N.E.2d 560, 564 (Ind.Ct.App.1991), trans. denied. In Spier, we found that a genuine issue of material fact existed as to constructive knowledge of a rusted signpost after it broke and fell on a child. Spier, 593 N.E.2d at 1258. In reaching that finding, we noted that the post had rusted through at one point around its circumference, that mulch had been placed around the signpost and the post had rusted immediately above the mulch, that a number of signposts had rusted and fallen over the years, and the municipality had abandoned its maintenance and inspection program. Spier at 1258–59. In Tucher, gravel on a road caused a motorcycle accident, and, after two eyewitnesses testified to the presence of gravel both the day before the accident and several days before the accident, we held that...