Cunningham v. WV American Water Co.
Annotate this Case
January 1995 Term
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No. 22288
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I. V. CUNNINGHAM AND JOYCE CUNNINGHAM,
Plaintiffs Below, Appellants,
v.
WEST VIRGINIA-AMERICAN WATER COMPANY
AND THE CITY OF CHARLESTON,
Defendants Below, Appellees
_______________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Circuit Judge
Civil Action No. 91-C-1426
AFFIRMED IN PART;
REVERSED IN PART;
and REMANDED
______________________________________________
Submitted: January 18, 1995
Filed: March 24, 1995
J. Randolph Query
Charleston, West Virginia
Attorney for the Appellants
For WV-American Water:
David F. Nelson
Shuman, Annand & Poe
Charleston, West Virginia
For City of Charleston:
Joanna I. Tabit
Steptoe & Johnson
Charleston, West Virginia
The Opinion of the Court of delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "'A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the
application of the law.' Syl. pt. 1, Karnell v. Nutting, [166] W.
Va. [269], 273 S.E.2d 93 (1980) citing syl. pt. 3, Aetna Casualty
and Surety Co. v. Federal Insurance Company of New York, 148 W. Va.
160, 133 S.E.2d 770 (1963)." Syl. Pt. 1, Perlick & Co. v. Lakeview
Creditor's Trustee Comm., 171 W. Va. 195, 298 S.E.2d 228 (1982).
2. "A circuit court's entry of summary judgment is reviewed
de novo." Syl. Pt. 1, Painter v. Peavy, W. Va. , 451 S.E.2d 755 (1994).
3. "The circuit court's function at the summary judgment
stage is not to weigh the evidence and determine the truth of the
matter, but is to determine whether there is a genuine issue for
trial." Syl. Pt. 3, Painter v. Peavy, W. Va. , 451 S.E.2d 755
(1994).
4. "'Before the doctrine of res ipsa loquitur is applicable,
three essentials must exist: (1) the instrumentality which causes
the injury must be under the exclusive control and management of the defendant; (2) the plaintiff must be without fault; and, (3)
the injury must be such that in the ordinary course of events it
would not have happened had the one in control of the
instrumentality used due care.' Syllabus Point 2, Royal Furniture
Co. v. [City of] Morgantown, 164 W. Va. 400, 263 S.E.2d 878
(1980)." Syl. Pt. 1, Baxter v. Cramco, Inc., 188 W. Va. 515, 425 S.E.2d 191 (1992).
5. "'" 'The doctrine of res ipsa loquitur cannot be invoked
if the defendant does not have control or management of the
premises or operations where the accident occurred; or where there
is divided responsibility, and the unexplained accident may have
been the result of causes over which defendant had no control.'
Point 1, Syllabus, Laurent v. United Fuel Gas Co., 101 W. Va. 499,
133 S.E. 116 [(1926)]." Syllabus point 3, Walton v. Given, 158 W.
Va. 897, 215 S.E.2d 647 (1975).' Syllabus Point 2, Bronz v. St
Jude's Hospital Clinic, 184 W. Va. 594, 402 S.E.2d 263 (1991)."
Syl. Pt. 2, Baxter v. Cramco, Inc., 188 W. Va. 515, 425 S.E.2d 191
(1992).
Per Curiam:
This is an appeal by I. V. and Joyce Cunningham (hereinafter
"the Appellants") from a November 12, 1993, order of the Circuit
Court of Kanawha County granting summary judgment to the Appellee,
West Virginia-American Water Company (hereinafter "the Appellee" or
"the Water Company"). The Appellants contend that genuine issues
of material fact exist and that the lower court erred by granting
summary judgment. We agree with the Appellants' contentions and
reverse the decision of the lower court.
I.
The Appellants filed a civil action against the Appellee on
April 23, 1991, alleging that the Appellee's failure to adequately
install and maintain a water main located behind the Appellants'
home caused the rupture of the water main on July 20, 1990, and
allowed several thousand gallons of water to escape onto the
Appellants' property.See footnote 1
Approximately four years prior to the rupture of the water
main, the Appellants had experienced an unexplained separation of
their private water service line from the Water Company's main
line. For some time prior to the major break in July 1990, the
Appellants had also noticed an increase in the amount of moisture
in their yard, including the unusual presence of sporadic patches
of green grass when the remainder of the yard was brown from dry
weather. Further, they noticed slippage of the hillside near the
water main, cracking and settlement of the road surface above the
water main, and progressive quantities of water in their basement
and water pressure against the outside walls of the basement. In
an effort to remedy the basement leakage problems, the Appellants
hired a contractor, Mr. Thomas Parker, to install a drainage system
along the side and rear foundation of the home. Mr. Parker began
his excavation on July 16, 1990, four days prior to the water main
rupture.
The Water Company moved for summary judgment on September 13,
1993, based upon the affidavit of Mr. Thomas E. Kirk, a licensed professional engineer.See footnote 2 Mr. Kirk opined that Mr. Parker's removal
of the support at the foundation of the Appellants' residence
"contributed to the movement of the earth which surrounded and
supported the West Virginia American Water Company water main."
In a September 24, 1993, response to the Appellee's motion of
summary judgment, the Appellants maintained that Mr. Kirk's
affidavit was insufficient to address the issues in the case. The
Water Company thereafter submitted a second affidavit from Mr.
Kirk, and an affidavit from Mr. Harold Franck, another licensed
professional engineer. In Mr. Kirk's second affidavit, a minor but
very consequential alteration was made in Mr. Kirk's descriptive
language regarding the effect of the trench excavation on the water
main. Having previously concluded that the digging had
"contributed" to the movement of the ground supporting the water
main, Mr. Kirk's second affidavit states that the digging "caused"
the movement of the earth supporting the water main. Similarly,
Mr. Franck opined that the water main showed no signs of "aging,
fatigue, or deterioration prior to failure" and that the
Appellants' own action of directing the removal of soil near their
home created an external force upon the water main.
The lower court, by order dated September 29, 1993, granted
the Water Company's motion for summary judgment.See footnote 3 The Appellants
filed a motion for relief from judgment under Rule 60(b) of the
West Virginia Rules of Civil Procedure, contesting the lower
court's ruling that the doctrine of res ipsa loquitur was
inapplicable and asserting that they could prevail on their
negligence claim even without reliance on that doctrine. On
October 7, 1993, the lower court heard oral argument concerning the
Rule 60(b) motion and permitted the Appellants to respond to the
additional affidavits filed by the Water Company. In their
responsive affidavits, the Appellants and their contractor, Mr.
Parker, explained that unusual ground movement had been evident
near the water main for several months prior to the failure of the
water main, that the Appellants' water service had been separated
from the water main due to ground slippage four years prior to the
failure of the water main, and that the road surface above the
water main had cracked and settled. The contractor also explained
that the trench around the foundation had not yet been completed at
the time of the rupture, stated that he had placed supportive braces around the excavation, and observed that there was no
evidence of earth movement toward the trench or the house after the
failure of the water main.
By order dated November 12, 1993, the lower court denied the
Appellants' Rule 60(b) motion, granted the Water Company's motion
for summary judgment, and granted a separate summary judgment
motion by the City. The lower court held that the Appellants'
affidavits failed to demonstrate a genuine issue of material fact
and restated that the doctrine of res ipsa loquitur was not
applicable because the Water Company did not have exclusive control
over the instrumentality of the water main.
In their appeal to this Court, the Appellants contend that
genuine issues of material fact regarding the cause of the water
main failure exist and preclude summary judgment. The Appellants
also contend that the doctrine of res ipsa loquitur applies and
necessitates recovery by the Appellants.
II.
We have consistently held that summary judgment is an
appropriate mechanism for the prompt resolution of controversies
only where there is no real dispute as to the salient facts
involved or where only a question of law exists. See Oakes v. Monongahela Power Co., 158 W. Va. 18, 21, 207 S.E.2d 191, 194
(1974). In syllabus point one of Perlick & Company v. Lakeview
Creditor's Trustee Committee, 171 W. Va. 195, 298 S.E.2d 228
(1982), we explained the following:
'A motion for summary judgment should be
granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to
clarify the application of the law.' Syl. pt.
1, Karnell v. Nutting, [166] W. Va. [269], 273 S.E.2d 93 (1980) citing syl. pt. 3, Aetna
Casualty and Surety Company v. Federal
Insurance Company of New York, 148 W. Va. 160,
133 S.E.2d 770 (1963).
We have traditionally adopted a conservative stance toward the
use of summary judgment, reasoning that "[a] party is not entitled
to summary judgment unless the facts established show a right to
judgment with such clarity as to leave no room for controversy and
show affirmatively that the adverse party cannot prevail under any
circumstances." Aetna Casualty & Sur. Co., 148 W. Va. at 171, 133 S.E.2d at 777 (citing 3 Barron and Holtzoff, Federal Practice and
Procedure, Rules Edition, § 1234); see Wheeling Kitchen Equip. Co.
v. R. & R. Sewing Ctr., Inc., 154 W. Va. 715, 719, 179 S.E.2d 587,
590 (1971). We also stated in syllabus point one of Painter v.
Peavy, W. Va. , 451 S.E.2d 755 (1994) that "[a] circuit
court's entry of summary judgment is reviewed de novo." Clarifying
the responsibility of the circuit court in this matter, we
explained in syllabus point three of Painter that "[t]he circuit
court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine
whether there is a genuine issue for trial." Id. at , 451 S.E.2d
at 756. Furthermore, in reviewing a lower court's determination
regarding summary judgment, we must construe the facts in a light
most favorable to the party against whom summary judgment was
granted. Alpine Property Owners Ass'n, Inc. v. Mountaintop Dev.
Co., 179 W. Va. 12, 17, 365 S.E.2d 57, 62 (1987) (quoting Masinter
v. Webco Co., 164 W. Va. 241, 242, 262 S.E.2d 433, 435 (1980)).
In the present case, affidavits submitted by the parties
establish, without contradiction, that a water main near the home
of the Appellants ruptured and caused extensive damage to the
Appellants' property. Affidavits further establish that the
Appellants were in the process of excavating an area near their
home, that the Appellants had experienced previous problems with
the water line connecting their home to the main line, that the
Appellants had noticed unusual moisture on their property, and that
the roadway above the water main had deteriorated.
However, the central determinative issue of causation of the
water main failure is disputed. The Water Company contends that
the Appellants' digging of a trench at the base of their foundation
caused slippage of the earth and resulted in the removal of support
of the water main. The Appellants contend that the trench did not contribute to the failure of the water main and that the Water
Company failed to properly maintain the line.See footnote 4
The Appellants contend that these diametrically opposing
allegations concerning the causation issue create a genuine issue
of material fact requiring jury resolution. Indeed, causation is
a factual issue, and its determination in this matter depends upon
the resolution of such questions as whether the ground surrounding
the line shifted in response to the Appellants' excavation activity
and whether the Water Company should have been on notice that the
water main was in jeopardy based upon earlier problems. In
response to the Water Company's motion for summary judgment, the
Appellants filed affidavits which disputed the assertions made in
the Water Company's affidavits. As the Water Company emphasizes,
the Appellants submitted no expert opinion regarding causation.
However, while we agree that the Appellants could certainly have
enhanced their position by the presentation of additional evidence,
lay or expert, regarding the precise manner in which the Water
Company was allegedly negligent, we have never held that a
respondent must, in order to defeat a motion for summary judgment, submit affidavits of an expert.See footnote 5 Neither have we required the
respondent to prove his entire case within the confines of his
affidavits. The exclusive requirement is the establishment of a
genuine issue of material fact. Where that exists, summary
judgment is inappropriate.
We conclude that the affidavits submitted by the parties to
this action established a genuine issue of material fact requiring
resolution by a jury. We therefore reverse the lower court insofar
as it granted summary judgment to the Water Company.
III.
The Appellants also contend that the doctrine of res ipsa
loquitur is applicable. That doctrine, as the lower court
recognized, is only applicable where the instrumentality, the water
main in this instance, is in the exclusive control of the party against whom application of the doctrine is sought. Baxter v.
Cramco, Inc., 188 W. Va. 515, 425 S.E.2d 191 (1992); Bronz v. St.
Jude's Hosp. Clinic, 184 W. Va. 594, 402 S.E.2d 263 (1991); Royal
Furniture Co. v. City of Morgantown, 164 W. Va. 400, 263 S.E.2d 878
(1980). In syllabus point one of Baxter, we noted the following:
'Before the doctrine of res ipsa loquitur
is applicable, three essentials must exist:
(1) the instrumentality which causes the
injury must be under the exclusive control and
management of the defendant; (2) the plaintiff
must be without fault; and, (3) the injury
must be such that in the ordinary course of
events it would not have happened had the one
in control of the instrumentality used due
care.' Syllabus Point 2, Royal Furniture Co.
v. [City of] Morgantown, 164 W. Va. 400, 263 S.E.2d 878 (1980).
We also specifically recognized the following in syllabus point two
of Baxter:
"'"The doctrine of res ipsa loquitur
cannot be invoked if the defendant does not
have control or management of the premises or
operations where the accident occurred; or
where there is divided responsibility, and the
unexplained accident may have been the result
of causes over which defendant had no
control." Point 1, Syllabus, Laurent v. United
Fuel Gas Co., 101 W. Va. 499, 133 S.E. 116
[(1926)].' Syllabus point 3, Walton v. Given,
158 W. Va. 897, 215 S.E.2d 647 (1975)."
Syllabus Point 2, Bronz v. St Jude's Hospital
Clinic, 184 W. Va. 594, 402 S.E.2d 263 (1991).
In the present case, although the piping itself was certainly
the responsibility of the Water Company, the water main was not
completely and exclusively controlled by the Water Company. The integrity of that instrumentality depended upon the continued
existence and support of surrounding soil. The water main could
fail, for instance, if the above roadway infringed upon it in some
manner or if soil surrounding and supporting the lines were removed
or shifted. The doctrine of res ipsa loquitur is intended to be
employed in instances where it is quite obvious that the defendant
retains complete control over the instrument causing damage. The
water main in the present case simply does not satisfy that
definitional requirement.
Upon remand, the doctrine of res ipsa loquitur shall not be
applied, and the lower court's conclusion with regard to the
inapplicability of the doctrine of res ipsa loquitur is affirmed.
However, the disposition of this matter through the means of
summary judgment was inappropriate and premature, and the decision
of the lower court in that regard is reversed.
Affirmed in part;
reversed in part; and
remanded.
Footnote: 1
Although the Appellants attempted to institute a civil action
against both the Water Company and the City of Charleston, the City
was not served with the complaint. However, the City was later
brought into the action by the Water Company through a third-party
complaint. The Water Company alleged that the City had failed to
maintain the roadway and that the resulting erosion caused the
failure of the water main.Footnote: 2
Prior to the Water Company's motion for summary judgment, the
Appellants had identified several witnesses with alleged knowledge
of the facts of the case, but had failed to identify any expert
witnesses who would testify that the failure of the water main was
caused by any negligence of the Water Company. Footnote: 3
Noting that the Appellants relied upon the doctrine of res
ipsa loquitur to establish liability of the Water Company, the
lower court explained that such doctrine requires proof that the
instrumentality which caused the injury was under the exclusive
control of the defendant. The lower court reasoned that because
the Water Company did not have "exclusive control" of the movement
of the ground above and below its water main, the doctrine was
inapplicable.Footnote: 4
The third-party complaint filed by the Water Company also
forwarded the allegation that the City of Charleston failed to
maintain the road properly and that the resulting erosion caused
the failure of the water main.
Footnote: 5
In cases such as medical malpractice, however, expert
testimony is required to demonstrate that a defendant physician was
guilty of lack of professional skill or negligence which resulted
in injury to the plaintiff. Hicks v. Chevy, 178 W. Va. 138, 358 S.E.2d 202 (1987). "'It is the general rule that in medical
malpractice cases negligence or want of professional skill can be
proved only by expert witnesses.' Point 2, Syllabus, Roberts v.
Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964)" Syl. Pt. 2, Hinkle v.
Martin, 163 W. Va. 482, 256 S.E.2d 768 (1979). Thus, in attempting
to defeat a motion for summary judgment on the issue of whether a
physician exercised appropriate care or skill, a party must produce
expert opinion regarding that physician's alleged inappropriate
behavior. See Hicks, 178 W. Va. at 141, 358 S.E.2d at 205.
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