Ward v. City of Charlotte, 7926SC1093

• Decision Date: 29 August 1980
• Docket Number: No. 7926SC1093,7926SC1093
• Citation: 269 S.E.2d 663,48 N.C.App. 463
• Parties: John WARD and wife, Bonita Louise Ward v. CITY OF CHARLOTTE, a Municipal Corporation.
• Court: North Carolina Court of Appeals

Page 663

269 S.E.2d 663

48 N.C.App. 463

John WARD and wife, Bonita Louise Ward v. CITY OF CHARLOTTE, a Municipal Corporation.

No. 7926SC1093.

Court of Appeals of North Carolina.

Aug. 29, 1980.

Newitt & Bruny by Richard M. Koch, Charlotte, for plaintiffs-appellants.

Jones, Hewson & Woolard by Harry C. Hewson and Hunter M. Jones, Charlotte, for defendant-appellee.

PARKER, Judge.

In their complaint, plaintiffs sought recovery of damages on the grounds of negligence, breach of contract, breach of an implied warranty of fitness, and trespass "on the case." Their appeal from the trial court's granting of defendant's motion for directed verdict presents the question whether their evidence, viewed in the light most favorable to them, was sufficient to justify a verdict in their favor on any of these grounds. We agree with the trial court that it was not and accordingly affirm.

It is, of course, well settled that in passing on a motion by defendant for a directed verdict in a jury case, the court must consider the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). The evidence in the present case, viewed in the light most favorable to the plaintiffs, shows the following:

The sewerage system in the area in which plaintiffs reside was originally installed by a private developer. The City of Charlotte accepted the system for maintenance on 18 October 1974. Insofar as it affects plaintiffs' home on Foxworth Drive, the system consists of three lateral sewage lines which intersect at a manhole one block above the home and directs the sewage from other parts of the residential area into an eight-inch lateral line which runs down beside plaintiffs' house in a generally north-south direction perpendicular to Foxworth Drive. Plaintiffs' home is connected to the eight-inch lateral line by a four-inch pipeline. The lateral line then continues and intersects into a manhole on the main line on Foxworth Drive in front of the home. Although the level of plaintiffs' house is about three feet higher than the elevation of that manhole, it is lower than the manholes upstream from plaintiffs' home on the eight-inch lateral line to which the four-inch line from plaintiffs' home is connected.

On 22 November 1976, Bonita Ward arrived at the parties' home and discovered sewage flowing out of the back door. Raw sewage backflowed into the house through two of the bathrooms in the house and flooded a substantial portion of the first story in the house causing extensive damage. John Ward contacted the Charlotte-Mecklenburg Utility Department, and city crews arrived that afternoon to help clear the sewage. The emergency crew inspected the line and discovered "a rock approximately baseball size and a small handful of what appeared to be plumber's yarn" in the lateral line running beside the house. The following day, a city crew dug a hole a few feet south of the southerly margin of Foxworth Drive in front of plaintiffs' house to determine what caused the partial blockage and found one joint of pipe in the lateral line which had dropped approximately two inches as the result of a broken bell.

Prior to 22 November 1976, plaintiffs had never experienced any problems with their own sewerage system. Occasionally, the manhole below the house on Foxworth Drive had overflowed, and city employees had washed the street down with water. Plaintiffs' expert witness, Ralph D. Johnson, Jr., a civil engineer, testified that overflow from that manhole could not have been caused by any blockage in the lateral line running on the side of plaintiffs' house, but rather would have been caused by a stoppage downstream the line on Foxworth Drive. Neither of the plaintiffs ever saw any city employees inspect or clean the sewer lines servicing their home. Because its record system was not comprehensive enough in the period prior to November 1976 to permit retrieval of such information, the City of Charlotte showed no record of inspection or cleaning of the system in plaintiffs' area before the sewage backflow into plaintiffs' home occurred, although the City does periodically clean any system accepted for maintenance.

Plaintiffs' expert witness, who works for an engineering firm specializing in sanitary engineering, testified that, in his opinion, a municipality should inspect lines at least every two or three years, which would include an inspection of the manholes and the lines leading from any manhole which the city has reason to believe are in need of attention. If the sewage flow is sluggish in a particular line, a procedure known as "lamping," by which lights are shone through opposite ends of the pipe, should be used. There is also a method of inspection using t. v. cameras, although that method is expensive and time consuming. Mr. Johnson testified that he had no personal knowledge as to how many feet along plaintiffs' line it would have been possible to see had the lamping procedure been used.

We hold as a matter of law that plaintiffs' evidence establishes that they have no basis for relief and that the directed verdict for defendant was properly entered. The...