Maciejko v. Lunenburg Fire District No. 2

Maciejko v. Lunenburg Fire District No. 2  (98-385); 171 Vt. 542; 758 A.2d 811

[Filed 21-Aug-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-385

                              APRIL TERM, 1999

Lunenburg Fire District No. 2	       }	APPEALED FROM:
                                       }
     v.	                               }	Essex Superior Court
                                       }
John and Suzanne Maciejko	       }	DOCKET NO. 9-3-98Excv     

                                                Trial Judge: Merideth Wright                  
 	
             In the above-entitled cause, the Clerk will enter:


       Plaintiffs John and Suzanne Maciejko sued defendant Lunenburg Fire
  District No. 2 (the  district) for damages that resulted when water backed
  up into the basement of the apartment they  were renting from Keith
  Desrochers (landlord).  The small claims court concluded that the district 
  was liable for failing to properly maintain its sewer system.  The superior
  court disagreed but  nonetheless affirmed, holding that the district was
  liable for failing to enforce its sewage ordinance  against landlord.  We
  reverse.  

       The small claims court found the following facts which, on appeal, are
  not in dispute.   Plaintiffs rent half of a duplex house, and Barbara
  Walker rents the other half.  The basement is  separated by a partition.  A
  drainage system, located in the basement floor, drains water from 
  plaintiffs' side into Walker's side; a removable cap covers the drain on
  Walker's side.  The system is  connected by a service line to the municipal
  sewage system's sewer main.  The district operates the  municipal sewage
  system, but has no plan or policy regarding maintenance of the system.  The 
  system was likely installed in the 1930s, and the connections of the
  individual service lines to the  main are precarious.

       On Christmas morning 1996, plaintiffs discovered approximately four
  feet of water and  sewage in their basement.  Plaintiffs called landlord,
  who lives next door to them.  Landlord called  Calvin Colby, a member of
  the district's Prudential Committee.  Colby went to the duplex and spent 
  approximately four hours pumping the water and sewage out of the basement. 
  He also discovered an  obstruction in the sewer main directly in front of
  landlord's house.  The district flushed out the line  and removed the
  obstruction.  Neither Colby nor the district ever determined what the
  obstruction  was composed of.  The small claims court made no finding as to
  how long the obstruction had been  in the sewer main.

 

       The district had no actual knowledge of either the obstruction in the
  sewer main or the  backup in plaintiffs' basement until landlord called
  Colby on December 25, 1996.  Approximately  five years earlier, in a
  similar incident, sewage and water backed up into the basement of the
  duplex. 
 
       At the hearing before the small claims court, Mr. Maciejko testified
  that, when he discovered  the flood, the removable cap was not on the
  drain.  Based on this testimony, the small claims court  concluded that
  landlord had a practice of discharging water into the sewer through the
  drain on  Walker's side of the basement, in violation of a sewage ordinance
  that the district adopted pursuant to  24 V.S.A. § 3617.

       Plaintiffs sued the district in small claims court, seeking to recover
  damages they sustained as  a result of the flooding.  The court concluded
  that the district was negligent because:  (1) it had a  duty to properly
  maintain the sewer system; (2) in not having a maintenance plan or policy,
  the  district breached that duty, particularly given the age and condition
  of the system; (3) that breach was  the proximate cause of the flooding in
  plaintiffs' basement; and (4) plaintiffs sustained damages as a  result of
  the flooding.  The court entered a $680.00 judgment against the district.
	
       The district appealed to the superior court.  The court held that
  there was insufficient  evidence to support the conclusion that the
  district's lack of a maintenance plan was the proximate  cause of the
  backup.  However, the court affirmed on other grounds.  According to the
  court:  (1)  landlord was required, under the district's sewage ordinance,
  to cap the drain on Walker's side of the  basement with cement; (2)
  landlord "had been warned in a similar incident five years previously to 
  cement the basement plug in this house;  (FN1) . . . he had not done so;
  and . . . [the district] had  taken no steps to enforce the ordinance to
  require him to do so;" and (3) if landlord had cemented the  drain plug,
  "the sewer backup would not have occurred, despite the blockage in the
  line."  Thus, the  court held that the district was liable to plaintiffs
  because, had the district enforced its ordinance  against landlord, the
  backup would not have occurred.

       On appeal, the parties do not challenge the lower courts' findings of
  fact. (FN2)  Thus, we  review only the lower courts' conclusions of law,
  and our review is "nondeferential and plenary."   N.A.S. Holdings, Inc. v.
  Pafundi, ___ Vt. ___, ___, 736 A.2d 780, 783 (Vt. 1999).  Where the lower 
  courts  have correctly applied the law, we will affirm their conclusions if
  they are reasonably  supported by the findings.  See Schnabel v. Nordic
  Toyota, Inc., 168 Vt. 354, 357, 721 A.2d 114,  118 (Vt. 1998).

       We agree with the superior court that the small claims court's
  findings were insufficient to  support its conclusion that the district's
  failure to have a regular maintenance plan or policy was the 

 

  proximate cause of the backup.  However, we conclude that the superior
  court erred in holding the  district liable to plaintiffs for the
  district's alleged failure to enforce its sewer ordinance.  We address  the
  decision of the small claims court first.

       The small claims court based its holding regarding proximate cause in
  part on its conclusion  that the obstruction in the sewer main was the
  result of the district's lack of a maintenance plan or  policy. (FN3) 
  However, there was no evidence to show that a regular maintenance plan or
  policy  would have led to the discovery or prevention of the obstruction. 
  As noted, the small claims court  found that Colby discovered the
  obstruction on December 25.  However, the court made no finding  as to how
  long the obstruction had been in the sewer main.  Without this finding, it
  is impossible to  conclude that regular maintenance would have prevented
  the obstruction.  For example, if the district  had a maintenance policy
  under which it was required to clean out the sewer main on the first of 
  every month, but the obstruction had only been in the main since the 15th
  of the month, then, even if  the district had abided by its policy, the
  obstruction might still have been in the main on the 25th.   Thus, without
  a finding as to how long the obstruction had been in the main, the court
  erred in  holding that the district's lack of a maintenance plan or policy
  was the proximate cause of the  backup. (FN4)

       Next, the superior court concluded that the district was liable to
  plaintiffs for failing to  enforce its sewer ordinance against landlord. 
  The court was referring to the above-mentioned portion  of the ordinance
  which prohibits the discharging of water and other specified materials into
  sewers.   From this, the court apparently inferred that the ordinance
  required caps to be cemented, and that  landlord's use of a removable cap
  therefore violated the ordinance.  It is not clear whether the court's 
  inference in this regard was correct.  However, even if the court's
  inference was correct, its  conclusion was in error.

       In Corbin v. Buchanan, 163 Vt. 141, 657 A.2d 170 (1994), a
  seven-year-old boy died in a fire  in his father's apartment in the Town of
  Brattleboro.  Shortly before this incident, the Town 

 

  enacted a housing code pursuant to 24 V.S.A. chapter 123.  In relevant
  part, the code required the  inspection of buildings and the enforcement of
  orders to correct dangerous conditions.  However,  unless a building was
  new, the Town would enforce its code only in response to specific
  complaints.

       Soon after the code was enacted, in response to complaints about
  plumbing, wiring and sewer  problems, the Town sent an inspector to the
  decedent's father's apartment.  The inspector noticed that  there was no
  smoke detector in the apartment, but took no further action, instead
  limiting his  investigation to the scope of the complaints.  Shortly
  thereafter, the boy died in a fire.  His estate  sued the Town, arguing
  that the Town was negligent for failing to enforce its code because the 
  inspector did not require the decedent's father or the landlord to install
  a smoke detector.

       The Town filed a motion for summary judgment, arguing that its failure
  to enforce its code  created no private right of action.  The trial court
  denied the motion and the jury returned a verdict in  favor of the
  plaintiffs.  We reversed, holding that an individual plaintiff may not
  recover in tort  against a municipality for its failure to enforce an
  ordinance whose purpose is protection of the  public as a whole.  See id.
  at 143, 657 A.2d  at 172.

       In so holding, we first noted that, under the common law, a private
  citizen has no cause of  action against a municipality for failure to
  enforce its ordinances.  See Corbin, 163 Vt. at 144-45,  657 A.2d  at
  172-73.  Next, we concluded that, in enacting 24 V.S.A. chapter 123, the
  Vermont  Legislature did not intend to create such a cause of action.  See
  id. at 146, 657 A.2d  at 173-74 ("[t]he  social, fiscal, tax, and public
  policy implications of a statute creating a private right of action based 
  on a town's adoption of building code regulations would be enormous, and
  there is no indication in  this record that the Legislature contemplated
  any such consequences").  Finally, we noted that the  ordinance at issue
  expressly provided for the safety of the general public, and that, "[i]f
  allowed  under its charter, the Town itself might have created a private
  right of action," but did not do so.  Id.,  657 A.2d  at 174.  We also noted
  that the ordinance at issue in Corbin expressly prohibited a private  cause
  of action against the Town.  See id. at 147, 657 A.2d  at 174. 

       As we stated in Corbin, there is no common-law private right of action
  against a municipality  for failure to enforce its codes.  Further, the
  statute at issue here, 24 V.S.A. § 3617, was enacted as  part of 24 V.S.A.
  chapter 101, which is entitled "Sewage Disposal System."  Section 3617 is
  the  enabling statute that authorizes municipalities to enact sewage
  ordinances.   In this case, the district  enacted the ordinance at issue
  pursuant to its authority under 24 V.S.A. § 3617.  As in Corbin, there  is
  no indication that, in enacting 24 V.S.A. chapter 101, the Legislature
  intended to create a private  right of action based on a municipality's
  adoption of a sewage ordinance.  Finally, as in Corbin, the  ordinance at
  issue here expressly states that its purpose is "the protection of the
  health and safety of  Fire District No. 2 and of the general public . . .
  ."  Nowhere does the ordinance create a private right  of action. 
  Therefore, as in Corbin, plaintiffs here have no cause of action against
  the district for  failing to enforce its ordinance.  The superior court
  erred in assuming otherwise.

       Reversed.


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                                 Dissenting



       MORSE, J., dissenting.  The issue in this appeal may not seem to be
  significant and the  damages are relatively small, but this is the first
  small claims appeal we have decided with a

 
 
  published opinion under 12 V.S.A. § 5538 stating the standard of review in
  a negligence case.  I  write separately because I disagree with that
  standard.

       We are presented with facts that are not challenged as clearly
  erroneous, yet the Court  believes it can decide the outcome of this case
  with no deference to the judgment of the trial court.  It  is axiomatic,
  however, that the ultimate issue in a negligence case is comprised of a
  mixed question  of law and fact. See, e.g., Latremouille v. Bennington &
  Rutland Ry. Co., 63 Vt. 336, 344-45, 22 A. 656, 658 (1891) (negligence is
  a "mixed question of law and fact, always, under the decisions of this 
  state, to be submitted to the jury"); Michaud v. Gurney, 362 A.2d 857, 859
  (Conn. 1975) (in  negligence cases, "the ultimate issue in contention
  involves a mixed question of law and fact, and  requires the trier of fact
  to determine whether the standard of care was met in a specific
  situation.").   Accordingly, we may reverse the judgment only where the
  facts are so conclusive that but one  reasonable inference may be drawn
  therefrom.  See Hudson v. Town of East Montpelier, 161 Vt.  168, 179-80,
  638 A.2d 561, 568 (1993) (in reviewing finding of negligence by trier of
  fact, standard  is whether any evidence fairly and reasonably tended to
  support verdict); LaFaso v. LaFaso, 126 Vt.  90, 96, 223 A.2d 814, 819
  (1966) (existence of negligence is ordinarily question for finder of fact, 
  and can be ruled as a matter of law only where facts are so undisputed and
  conclusive that but one  reasonable inference is available).

       The salient facts, which were essentially the basis for the trial
  court's judgment that the  district was negligent, may be briefly
  summarized. 
	
       The sewer backup was caused by at least two probable antecedents, one
  attributable to the  owner of the duplex and the other to the defendant
  district.  The owner violated the sewer ordinance  by regularly discharging
  waste water into the sewer. The cause of the backup, an obstruction in the 
  discharge pipe, may have originated from this practice.  The sewer system
  is old, having been  installed in the 1930's.  The line in question, like
  all such lines, was known to be in "precarious"  condition and there had
  been considerable construction near the duplex before the backup.  Similar 
  trouble at the Maciejko sewer connection occurred five years earlier, yet
  nothing had been done by  the district to inspect the condition of the
  lines or monitor improper use. There simply had not  enough money in the
  district budget to inspect, maintain and upgrade the lines.  It is readily
  apparent  that had the district inspected and maintained the sewer lines,
  the improper discharge of waste water  by the duplex owner, or whatever
  else may have caused the backup, might have been discovered and  remedied. 
  In fact, the district had been on notice that this was occurring.  

       This court reverses because "there was no evidence" that lack of
  inspection and preventative  maintenance would have avoided the sewer
  backup. I submit there could never be such "evidence"  because there is no
  way to back up the clock and implement an inspection and maintenance plan
  to  see if no backup would occur.  Rather, logic suggests that, had there
  been a plan, the chances would  have been greatly improved that this
  accident would not have occurred. That's the purpose of  preventative
  maintenance. 

       In short, the district's negligent maintenance policy deprived the
  Maciejkos of either (1)  protection against illegal and destructive use of
  the sewer or (2) an upgraded sewer, which could  have withstood the abuse.
  It is not their burden to prove conclusively that an inspection and 
  maintenance would have done so.  They need prove only the probability of
  it. 

 


       I would affirm.



Dissenting:	                       BY THE COURT:


__________________________________     _______________________________________
James L. Morse, Associate Justice      Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  The superior court made this additional finding of fact after
  listening to the audiotape of the  hearing before the small claims court.

FN2.  The district does challenge the authority of the superior court to
  make factual findings on  appeal from the small claims court.  However, we
  need not reach that issue.

FN3.  The court's holding was also based on its conclusion that the
  obstruction was the cause of  the flooding in plaintiffs' basement. 
  However, because of our disposition of this matter, we do not  address
  whether there was sufficient evidence to conclude that the obstruction
  caused the flooding.

FN4.  Because of our conclusion in this regard, we do not reach the question
  of whether, under  the facts of this case, the district had a duty to
  properly maintain the sewer system, and if so, whether  it breached that
  duty.  In holding that the district had a duty and breached it, the small
  claims court  relied on Stoneking v. Orleans Village, 127 Vt. 161, 243 A.2d 763 (1968).  There, we stated:  "[W]here a municipality assumes the
  management of its sewer system, it is bound to use reasonable  diligence
  and care to see that such sewer is not clogged with refuse and is liable
  for negligence in the  performance of such duty to a property owner injured
  thereby." Id. at 166-67, 243 A.2d  at 766.   Furthermore, we stated:
  "Liability arises . . . 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."  Id. at 167,  243 A.2d  at 766.  Moreover, "[o]rdinary or
  reasonable care and diligence are the standard of  municipal duty in this
  respect."  Id.  In Creighton v. Town of Windsor, 154 Vt. 348, 577 A.2d 681 
  (1990), we further clarified the standard for determining a municipality's
  negligence in cases of  sewer backups.