Thomas v. City of Kansas City

• Decision Date: 10 September 2002
• Docket Number: No. WD 60046.,WD 60046.
• Citation: 92 S.W.3d 92
• Parties: Larry and Judy THOMAS, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent, City of Raytown, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 92

92 S.W.3d 92

Larry and Judy THOMAS, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent, City of Raytown, Missouri, Respondent.

No. WD 60046.

Missouri Court of Appeals, Western District.

Submitted July 2, 2002.

September 10, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 26, 2002.

Application for Transfer Denied January 28, 2003.

COPYRIGHT MATERIAL OMITTED

Dennis J.C. Owens, Kansas City, appellants.

Daniel G. Jackson, Kansas City, for City of Kansas City.

Brandon D. Mizner, Kansas City, for City of Raytown.

Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.

JAMES M. SMART, JR., Judge.

Larry and Judy Thomas appeal from the trial court's dismissal of their claim against the respondents, the City of Kansas City, Missouri, and the City of Raytown, Missouri, for damages and injunctive relief as a result of surface water flooding allegedly caused by the condition of the respective municipalities' property. The trial court dismissed the action, with prejudice, for failure to state a cause of action against the respondents. Because we determine that the Thomases stated a claim for personal injuries caused by the respective cities' unreasonable use of property causing flooding as a result of the diversion of surface waters, we reverse the trial court ruling and remand the case for further proceedings.

Procedural Background

The appellants filed their petition in this action on July 18, 2000. Seven months later, the Thomases filed their third amended petition, the one at issue in this case. In that petition, the Thomases stated that they own property at 8868 E. 52nd Terrace, Kansas City, Missouri, located downhill from property owned by the City of Raytown. They alleged that around April 1, 1991, their property began experiencing problems with flooding; that in the summer of 1991, they notified the City of Kansas City, Missouri, of "the flooding problem," but that Kansas City failed to address the matter; that in July and October of 1998, groundwater mixed with sewage overflowed and spilled out of a ditch and entered the Thomases' home; and that this continued to occur during periods of rain in 1999 and 2000.

The Thomases alleged that an engineer informed them that their property was subject to flooding as a result of negligently designed, constructed, and maintained sewer and drainage systems (owned, in part, by Kansas City and, in part, by the City of Raytown) that allowed storm water mixed with sewage to flood their home. The Thomases alleged that in October of 1998, they also notified the City of Raytown of the flooding problem, but that neither city had addressed the problems in any way. The petition stated that as a result of the flooding problems, the personal property of the Thomases has been destroyed, their real property has been ruined, and their home has been flooded by raw sewage. They claim this has resulted in bacterial contamination of their home, excessive illnesses, and sicknesses for the Thomases and for their children. They sought damages for past injuries, and sought also the issuance of injunctive relief restraining the cities from "permitting any ground water, sewage water, waste water or fluids" from flowing into any part of the Thomases' residence.

In response to the Thomases' third amended petition, the defendants Raytown and Kansas City filed motions to dismiss, asserting that the plaintiffs failed to comply with the court's order of January 18, 2001, requiring plaintiff to plead their claims with more specificity in certain respects. The cities also argued that the plaintiffs failed to adequately allege "any exception to the absolute bar of sovereign immunity" and, therefore, failed to state a claim. The City of Kansas City also contended the claims were barred by the applicable statute of limitations.

The Thomases failed to file any response to either city's motion to dismiss.

The trial court granted Raytown's separate motion to dismiss on April 11, 2001, and granted Kansas City, Missouri's separate motion to dismiss on May 1, 2001, dismissing the Thomases' cause with prejudice for failure to state a claim upon which relief may be granted. The Thomases appeal.¹

Failure to State a Claim

We turn now to Point I, in which Appellants contend the court erred in dismissing their claim because, they say, they stated a cause of action in trespass.

Count I

In Count I, the Thomases allege that public "sewer and drainage systems" were causing ground water and sewer water to flood their property and residence. They alleged that each city owned a "portion" of the sewer and drainage system. They assert that in October 1998, they notified the City of Raytown that its failure to clean up the drainage ditch (of trees the City of Raytown had cut down) blocked the flow of water. They also allege "there were problems" with the design of the sewage system on the "Raytown side of the sewer line." They allege that the City of Raytown was negligent in the design, construction, and maintenance of its sewer and storm drainage system. They further alleged that they requested on numerous occasions that the defendants do certain things to attempt to alleviate the problems, but defendants failed to "alleviate the problems." They claimed that, as a result, a dangerous condition exists in the sewer and storm drainage system owned and operated by the City of Kansas City. They alleged also that the ditch "as maintained by the Defendant City of Raytown" was defective and dangerous as a result of debris that the City of Raytown failed to clean up. They allege damages, including damage to personal property and personal injuries, including sickness.

Counts II and III

Count II is inapplicable to this appeal because it was a count asserted by other plaintiffs who are not appellants herein. Count III seeks injunctive relief, asserting that defendants have "permitted and/or caused" a "condition to exist" whereby ground water and sewage water floods the Thomases property. They allege the accumulation of water and contaminants has caused a health hazard to plaintiffs. They claim injury to their dwelling and personal property for the "intentional and/or negligent actions which have caused and/or permitted the aforementioned flooding." They claim irreparable injury has resulted and will continue to result unless the cities are restrained from permitting any water from flowing into the Thomases' residence.

Count IV

Count IV alleges that the cities knowingly permitted flood water and waste water to flow onto the Thomases property. It alleges that the Thomases are entitled to reasonable enjoyment and possession of their residential property. They allege that defendants are capable of making and designing a system which "does not allow for flood water, waste water, and sewage to flood plaintiffs' property causing injury to said property and interfering with plaintiffs' enjoyment and use of their property." They allege that, notwithstanding their requests, the cities have continued to commit and/or permitted the "unreasonable conduct which has caused the flooding and leakage of waste onto plaintiffs' property." They claim injury to their personal property, real property, and health.

Standard of Review

We review de novo the grant of a motion to dismiss for failure to state a claim, examining the petition to determine whether it invokes principles of substantive law. See Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 409-10 (Mo.App.W.D. 2000). The pleadings are liberally construed, and all alleged facts are accepted as true and construed in a light most favorable to the pleader. See Id. at 410. "In making our determination, we may not address the merits of the case or consider evidence outside the pleadings." Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App. W.D.1997).

The law generally favors trial upon the merits, and the criteria by which the sufficiency of petitions is judged have been developed to promote this purpose. Goe v. City of Mexico, 64 S.W.3d 836, 839 (Mo. App.2001). A pleading is sufficient where the facts necessary to constitute a cause of action can be obtained by a liberal construction of its averments. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. banc 1976). This is true even though the allegations may be uncertain or defective, or may be stated in an unskillful manner, but contain the necessary allegations to advise the defendant of the claim and the relief demanded. 71 C.J.S. Pleading § 257; See C. Bennett Bldg. Supplies, Inc. v. Jenn Air Corp., 759 S.W.2d 883, 890 (Mo.App.1988).

A trial court should not dismiss a petition merely because the factual allegations seem more consistent with something other than plaintiff's stated legal theory. The court must examine the petition to determine whether the allegations provide for relief on any possible theory. 71 C.J.S. Pleading § 259; Goe v. City of Mexico, 64 S.W.3d 836, 840 (Mo.App.2001). The character of a cause of action is determined from the facts stated in the petition and not by the name given the action. Goe, 64 S.W.3d at 840.

Characterizing the Claims

Looking at the pleaded contentions, and taking them at face value, it would appear that Count I is an attempt to plead a cause of action in negligence, at least as to the City of Raytown. Count III is a vaguely worded attempt to plead for injunctive relief, based on the defendants'"intentional or negligent actions which have caused and/or permitted the aforementioned flooding." Count IV is an attempt to plead a claim based on the cities' alleged unreasonable use of their property causing surface waters to invade plaintiffs' property causing damage to plaintiffs and interference with their possession and use of their property. Count IV asserts violations of rights of possession, like a claim of trespass; but it also asserts violation of rights of enjoyment of property along...