Creighton v. Town of Windsor

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 89-237
 
 
 
Jeffrey and Donna Creighton                  Supreme Court
 
                                             On Appeal From
     v.                                      Windsor Superior Court
 
Town of Windsor                              January Term, 1990
 
 
Matthew I. Katz, J.
 
William J. Donahue, White River Junction, for plaintiffs-appellants
 
Jeffrey W. White of Theriault & Joslin, P.C., Montpelier, for defendant-
  appellee
 
 
PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   Plaintiffs, Jeffrey and Donna Creighton, appeal from a
summary judgment by the Windsor Superior Court in favor of defendant, the
Town of Windsor, in a suit in which plaintiffs sought damages arising from a
sewage blockage, asserting that the town breached its duty to maintain the
sewer system against back-ups.  We reverse and remand.
     The Town of Windsor operates a municipal sewage system.  Plaintiffs
own a home on Central Street, which is connected to the town's six-inch
sewer main through their four inch pipe.  The six-inch main, which has been
under the plaintiffs' property since 1948, connects to a twenty-four inch
line coming from the north end of Central Street and running south toward
the sewage treatment plant.  The six-inch main services two additional
residences and a church and parsonage.  On December 22, 1986, it backed-up
and, as a result, raw sewage ran out of the plaintiffs' ground floor commode
and into their home.
     Plaintiffs brought suit against defendant, alleging initially that the
sewer back-up was caused by the negligent operation and maintenance of its
sewage system and that the damage in plaintiffs' house was caused by the
actions of defendants' agents in attempting to eliminate the back-up. (FN1)  The
complaint also included a count alleging breach of an implied contract to
provide reasonable sewage disposal services. (FN2)
     Relying on the deposition of its public works director, defendant moved
for summary judgment.  Plaintiffs responded with affidavits from a neighbor
who lives directly across the street from plaintiffs and from a master
plumber.
     Defendant relied on a number of statements in the deposition of the
public works director.  The director stated that the town had received five
or six complaints of sewage back-ups on Central Street over the past twenty-
five years.  However, the back-ups were caused by a surcharge of storm
waters which occurred when the sewer pipes overflowed due to heavy rainfall.
According to the director, there had been no back-ups caused by obstructions
in the pipes in the area.
     Plaintiffs responded with an affidavit from a neighbor stating that he
had experienced a severe blockage ten or twelve years earlier and that he
had notified the town fire chief.  A second affidavit from a plumber stated
that the town was providing poor service, that it was not meeting its
obligation to keep the system in adequate repair, that it did not know where
the lines were and that it should perform dye tests to determine where the
lines were.
     The town then submitted an affidavit of the public works director
stating that he could find no record of a sewer back-up at the neighbor's
residence and, in any event, a back-up at the neighbor's residence could not
cause one at the plaintiffs' residence.
     The trial court granted the motion for summary judgment, holding that
the town was not liable because it never had notice of the existence of an
obstruction in one of its sewers as required by Stoneking v. Orleans
Village, 127 Vt. 161, 167, 243 A.2d 763, 767 (1968).  The court found that
the neighbor's affidavit did not create a genuine issue of fact as to notice
because it was not based on personal knowledge and was too vague in locating
the blockage.  The court stated "a blockage somewhere in the system, twelve
years ago, is not notice of this blockage in 1986."  The court rejected the
theory that defendant was responsible for not finding the cause of the
blockage earlier and ruled that the plumber's affidavit did not raise a
genuine issue as to defendant's responsibility.  Finally, the court rejected
plaintiffs' argument that Vermont law should require defendant to make a
"reasonable, periodic inspection."
     Plaintiffs argue on appeal that the grant of summary judgment was
improper, for three reasons:  (1) the town had constructive notice of the
blockage; (2) the town had a duty to periodically inspect its municipal
sewage system; and (3) plaintiffs should be allowed to recover on a theory
of implied contract.
     When considering the correct disposition of a summary judgment motion,
we apply the same standard upon review as applied by the trial court. See
Thomas v. Farrell, ___ Vt. ___, ___, 568 A.2d 409, 410 (1989); Cavanaugh v.
Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985).  The
standard is as follows:
	In order to succeed on a motion for summary judgment,
	the moving party must satisfy a stringent two-part test:
	first, no genuine issue of material fact must exist
	between the parties, and second, there must be a valid
	legal theory that entitles the moving party to judgment
	as a matter of law.
Price v. Leland, 149 Vt. 518, 521, 546 A.2d 793, 796 (1988).  See also
Reporter's Notes to V.R.C.P. 56(c).
     Vermont law on municipal sewer blockage liability has been summarized
as follows:
	   Liability arises, of course, where it is shown that a
	 municipality had actual or constructive notice of the
	 existence of an obstruction in one of its sewers and
	 fails to act. . . .  A municipality is not liable for
         damage resulting from the clogging of a drain or sewer,
         if there is no negligence on its part either in the
         prevention or the removal of the obstruction.
 
           In the construction and maintenance of sewers and
         drains such a corporation is required to exercise
         needful prudence, watchfulness, and care.
 
           Ordinary or reasonable care and diligence are the
         standard of municipal duty in this respect, by which is
         meant such as a [person] of average prudence and
         discretion would exercise to protect his [or her] own
         property under like conditions.
 
Stoneking v. Orleans Village, 127 Vt. at 167, 243 A.2d  at 767 (citations
omitted).
     In Stoneking, plaintiff appealed from an adverse jury verdict.  Her
case consisted of evidence that there were recurring blockages in a
different line closer to plaintiff's house, that trees were close to the
line and that the line was old and was not maintained.  This Court noted
that the case was "correctly submitted to the jury."  Id.
     Plaintiffs emphasize the similarity of the facts in this case to those
in Stoneking -- the prior incident of blockage in a related line, the pre-
sence of trees and the absence of routine maintenance.  They suggest two
theories under which liability could be found under Stoneking:  (1) defend-
ant had "constructive" notice of the blockage because of the incident in-
volving the neighbor ten to twelve years ago; and (2) defendant failed to
properly maintain the system, and that caused the blockage.
     We agree with the trial court that there was inadequate evidence to
withstand summary judgment on the question of constructive notice.  Assuming
the affidavit of the neighbor was properly based on his personal knowledge,
see Department of Social Welfare v. Berlin Development Assoc., 138 Vt. 60,
62, 411 A.2d 1353, 1355 (1980), and that the neighbor's blockage was in the
same line as the one servicing plaintiffs' home, a factual assertion that is
not clearly supported by the evidence, we still do not believe that notice
of a prior blockage ten years earlier is "constructive knowledge" of the
blockage that caused the sewage to enter plaintiffs' house. (FN3)  With respect
to this part of the Stoneking opinion, plaintiffs must show defendant's
knowledge, constructive or actual, of the obstruction that caused the
damage; knowledge that such an obstruction could occur is insufficient.
     We think, however, that the evidence before the court was sufficient to
withstand summary judgment on the theory of negligent maintenance.  Before
we examine the facts bearing on this theory, we note that in responding to a
motion for summary judgment, the opponent of the motion "is to be given the
benefit of all reasonable doubts and inferences in determining whether a
genuine issue exists."  Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388,
1389 (1981), rev'd on other grounds, sub. nom. Soucy v. Soucy Motors, Inc.,
143 Vt. 615, 618, 471 A.2d 224, 226 (1983).  The facts of the case bearing
on the issue involved must be "'clear, undisputed or unrefuted.'"  Pierce v.
Riggs, 149 Vt. 136, 140, 540 A.2d 655, 658 (1987) (quoting State v. Heritage
Realty, 137 Vt. 425, 428, 407 A.2d 509, 511 (1979)).
     The deposition of the public works director indicates that he believed
that the blockage was caused by "panty hose type of material."  He also
found "roots or something of that nature" in the line, and it is a
reasonable inference that the roots caught the panty hose.  The director
believed that the tree roots came from two fifteen-inch silver maples which
were growing above the sewer line.  He indicated that the tile material used
to make the sewer line was subject to penetration by tree roots and that the
moisture inside the line attracted the tree roots.  Although the director
indicated that he had not received complaints of blockage of the line
serving plaintiffs, he stated that he had received complaints of blockage of
other six-inch mains and that two or three times a year he responds to
blockages "so severe that the sewage will back up and overflow the
commodes."
     The town does not have an accurate map of its sewer system.  The public
works director stated that "much of this [piping] . . . was put in ages ago
with people that didn't take measurements and have maps."  He did have an
old map that showed some of the piping near plaintiffs' residence, although
the measurements weren't very accurate.  He stated that he learned about the
system by trial and error.
     Stoneking requires the town to exercise "needful prudence, watchful-
ness, and care" in the maintenance of the sewer system.  127 Vt. at 167, 243 A.2d  at 767.  This statement of the town's duty is consistent with the
holdings in other states:
         [A] municipal corporation . . . is bound to use ordinary
         care or exercise due diligence to keep the sewers and
         drains it constructs in proper condition and repair and
         free from obstructions, and will be held liable to
         property resulting from its failure to do so. . . .
 
11 E. McQuillin, Municipal Corporations { 31.33 at 236 (3d ed. 1981).  See
also 18 E. McQuillin, Municipal Corporations { 53.125 (3d ed. 1984).  In
detailing the municipal obligation with respect to sewer maintenance, the
Rhode Island Supreme Court stated:
         [T]he duty to exercise due care in the maintenance of a
         sanitation sewer main may include the obligation to make
         reasonably periodic inspections when, by passage of
         time, deterioration or obstructions are reasonably
         foreseeable.
 
Rotella v. McGovern, 109 R.I. 529, 535, 288 A.2d 258, 261 (1972).  See also
City of Tucson v. Hughes, 23 Ariz. App. 350, 352, 533 P.2d 561, 562-563
(1975) (mere absence of notice does not necessarily absolve city from negli-
gence; city's failure to exercise of a reasonable degree of watchfulness in
ascertaining sewer's condition from time to time, and preventing sewer from
becoming dilapidated or obstructed renders city liable); Floyd v. City of
Butte, 147 Mont. 305, 310, 412 P.2d 823, 826 (1966) (municipality becomes
chargeable with notice of what a reasonable inspection would disclose).
     We are mindful that the duty in cases like this cannot be unlimited.
In Rotella v. McGovern, 109 R.I. at 535, 288 A.2d  at 261, the Court quoted
from McCarthy v. City of Syracuse, 46 N.Y. 194, 198 (1871) as follows:
         "Where the obstruction or dilapidation is an ordinary
         result of the use of the sewer, which ought to be
         anticipated and could be guarded against by occasional
         examination and cleansing, the omission to make such
         examinations and to keep the sewers clear is a neglect
         of duty which renders the city liable."
 
In keeping with the quote from McCarthy, we do not believe that a municipal
corporation is an insurer of the condition of its sewage system.  Nor is it
responsible for uses of the system that are so extraordinary that a
resulting blockage is not reasonably foreseeable.
     Defendant did not offer any evidence in support of summary judgment
that inspection of sewer lines, in areas where tree roots may invade the
lines, was an unreasonable duty to impose on a municipality.  Thus,
plaintiff was not required to come forward with opposing evidence on the
question of the duty of care in these circumstances.  See Pierce v. Riggs,
149 Vt. at 138, 540 A.2d  at 657.  When we give plaintiffs the benefit of
all reasonable doubts and inferences, we still believe that there was a
material issue of disputed fact on whether the town had a duty to inspect
its line, whether inspection would have avoided plaintiffs' damages, and
whether the blockage was an ordinary result of use of the sewer.
     Finally, plaintiffs allege that the court erred in granting summary
judgment on their implied contract count.  The duty imposed on defendant by
its contract with plaintiffs is no greater than imposed by the negligence
principles set forth in Stoneking.  See Scholbrock v. City of New Hampton,
368 N.W.2d 195, 198 (Iowa 1985); Ward v. City of Charlotte, 48 N.C. App.
463, 469, 269 S.E.2d 663, 667 (1980).  Thus, the contract claim is super-
fluous and adds nothing to plaintiffs' case.  Granting summary judgment on
this count was harmless.
     Reversed and remanded.
 
 
 
 
 
 
 
 
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice
 
 




FN1.      Plaintiffs have not pursued either here or in the trial court the
claim based on the action of defendant's agents in attempting to eliminate
the blockage once they received notice of it.  We have, therefore, not
considered this claim.

FN2.      By subsequent amendment to the complaint, plaintiffs sought a
declaration that it could plug defendant's six-inch sewer main where it ran
under plaintiffs' land since it was placed there without an easement and was
not being maintained.  In response to defendant's motion for summary
judgment, the trial court ruled that the town had acquired an easement by
prescription for the use and maintenance of the line and granted judgment to
defendant on the added count.  Plaintiffs have not appealed this ruling.

FN3.      We recognize that we have generally been reluctant to approve
summary judgment where notice is in issue.  For example, in Bennett Estate
v. Travelers Ins. Co., 138 Vt. 189, 192, 413 A.2d 1208, 1210 (1980), we
stated:  "The possibility that there is an issue of fact as to notice,
regardless of plaintiffs' likelihood of success on this issue, mandates a
full adjudication."  In this case, however, we find no possibility of an
issue of fact as to notice of the blockage that caused plaintiffs' damages.