Opinion
October 3, 1967. —
October 31, 1967.
APPEAL from a judgment of the circuit court for Marquette county: ROBERT H. GOLLMAR, Circuit Judge. Affirmed.
For the appellant there were briefs by Callahan, Arnold Van Metre of Columbus, and oral argument by Jack W. Van Metre.
For the respondent there was a brief and oral argument by Arno J. Miller of Portage.
Action by plaintiff Mrs. Leone Freitag to recover damages from defendant city resulting from a backup of sewage into the basement of her home in the latter part of August, 1964.
Plaintiff was absent from her home from Friday, August 28th, to Monday, August 31st. On the 31st she returned to find that sewage had backed up into her basement through a drain in the basement floor to a depth of about eight inches. The backup had been caused by a temporary obstruction in the eight-inch sewer main into which the four-inch lateral servicing plaintiff's home discharged. Plaintiff immediately notified Bubolz, superintendent of defendant city's water and sewer utility. He examined the main from a nearby manhole and found that the sewage was flowing normally, indicating that the obstruction had disappeared. Plaintiff and others then swept the sewage that remained in her basement out through the same floor drain by which it had entered. Vik, an engineer, hired by the city, inspected the sewer main on September 15, 1964. He found it to be flowing smoothly and found no obstructions in the sewer main on that date.
The city followed the practice of cleaning its sewer mains once each year shortly after Labor Day. In a process called "rodding," a root cutter is run through the mains. Shortly after the engineer's inspection, the city rodded the sewer main in question and found nothing. A sewer cleaning firm then ran buckets through the main and found nothing.
On September 9, 1965, approximately a year after the flooding, Koletzke, an engineer hired by plaintiff, inspected the sewer main. He found tree roots which obstructed about a third of the diameter of the main. He testified that objects could have collected on these roots over a period of time and have caused the backup into plaintiff's basement. He further testified that such backup would have the effect of building up pressure which would then free the objects and cleanse the main. On the other hand, Huismann, an expert witness for defendant, testified that plastic bags or children's toys discharged into the main could have caused the obstruction as could "a bunch of sludge." A plumber testified that he had once found a lateral in the Freitag neighborhood to have become clogged by an accumulation of fish heads.
The city council denied plaintiff's claim for damages, and she commenced the instant action which was tried to the court without a jury. After trial the circuit court filed a memorandum decision in which the court held the doctrine of res ipsa loquitur inapplicable and absolved defendant city of negligence. Findings of fact and conclusions of law were thereafter entered. Among the material findings of fact made by the circuit court were these:
"(3) That the sewer system of the defendant was not within its exclusive control, as it is used by many people, and defendant has no control over the materials placed therein, and no knowledge of what these are.
"(4) That the cause of the back-up of sewage into plaintiff's basement is unknown.
". . .
"(6) That defendant's program of rodding its sewer system annually is the general practice in municipalities.
"(7) That sewer problems in the area of plaintiff's home prior to the incident involved in this action, were in the laterals and not in the main sewer.
"(8) That there was no evidence of any back-up from the main sewer, in the area of plaintiff's home, except the one involved in this action, and an occasion when the city was flushing the sewer with a fire-hose.
". . .
"(10) That there was no indication of any difficulty in the main sewer in the area involved in this action which required a more frequent cutting of roots than once a year under the city's established practice.
"(11) That the defendant was following proper rodding practice by rodding its sewer system once a year.
"(12) That immediately after the occurrence of the incident in question, the main sewer was rodded out and no roots or other problems found therein.
"(13) That there was no proof of negligence on the part of the city that caused any condition in the main sewer resulting in the back-up into plaintiff's basement."
Judgment was entered September 7, 1966, dismissing plaintiff's complaint with costs. Plaintiff has appealed.
The following two issues are presented by this appeal:
(1) Are the trial court's ultimate finding of no negligence on defendant city's part and the supporting findings of fact against the great weight and clear preponderance of the evidence?
(2) Did the trial court err in concluding that the doctrine of res ipsa loquitur did not apply in this case, where a basement was flooded as the result of an unexplained temporary obstruction in the city's sewer main?
Alleged Negligence of City.
Plaintiff's contentions with respect to the alleged negligence of the city are confined to alleged failures of inspection and maintenance of the sewer main in the area of plaintiff's home. No issue is raised that the sewer main was not properly constructed.
The duty of a municipality with respect to inspection and maintenance of sewers is well stated by American Jurisprudence as follows:
"The duty of maintaining sewers and drains in good repair includes the obligation to keep them free of obstruction, and a municipality is liable for negligence in its exercise to any person injured by such negligence, whether the damages result from its failure to use reasonable diligence to keep its sewers and drains from becoming clogged, — as where the municipal corporation fails in its duty to exercise a reasonable degree of watchfulness to ascertain the condition of sewers and drains from time to time so as to prevent them from becoming obstructed — from its failure to remove an obstruction from a sewer or drain within a reasonable time after actual or constructive notice thereof, or from a trespass by the employees of the municipal corporation in the care or maintenance of a drain. . . ."
38 Am. Jur., Municipal Corporations, pp. 341, 342, sec. 636. See also 18 McQuillin, Mun. Corp. (3d ed. rev.), pp. 476, 477, sec. 53.125 (and p. 42, 1966 Supp.); Floyd v. Butte (1966), 147 Mont. 305, 412 P.2d 823; Annot. (1958), 59 A.L.R.2d 281, 308 et seq.
Where damage has arisen by reason of a defect in the construction or operation of a sewer, this court has held a municipality is only liable if it fails to remedy the defect after actual or constructive notice of the defect. By adopting the aforenoted rule stated in American Jurisprudence, the scope of liability is now extended so that it may be grounded on failure to reasonably inspect. This is an expansion of the concept of constructive notice and in keeping with the liability imposed upon municipalities for failure to exercise ordinary care which resulted from the elimination of municipal immunity by Holytz v. Milwaukee.
Trustees of University Co-operative Co. v. Madison (1939), 233 Wis. 100, 108, 109, 288 N.W. 742; Geuder, Paeschke Frey Co. v. Milwaukee (1911), 147 Wis. 491, 505, 133 N.W. 835; Hart v. Neillsville (1909), 141 Wis. 3, 8, 9, 123 N.W. 125. Apparently this limited rule of liability was an exception engrafted onto the rule of municipal immunity.
(1962), 17 Wis.2d 26, 115 N.W.2d 618.
The evidence in the instant case discloses that defendant annually cleaned its sewer mains shortly after Labor Day, and as part of this operation a rotating root-cutting device was used. Also, as part of this cleaning operation, brushes were inserted to remove any cut roots or other dislodged material. Such cleaning operations necessarily included an inspection. Some neighboring villages and cities followed this annual cleaning practice, while others cleaned their sewers less frequently. There was testimony that root growth in sewers is a problem in all municipally operated sewer systems. Vik and Huismann, defendant's experts, testified that this annual cleaning was good maintenance practice, while Koletzke, plaintiff's expert, testified that it was not. The trial court, by finding of fact No. 11, found that defendant was following proper cleaning practice by cleaning its sewer system once a year. This was in accord with the weight of the evidence.
Huismann further testified that cleaning more often than once a year would be required of the sewer main in question, if there had been a history of considerable root trouble. The record, however, is entirely barren of any history of root trouble in this sewer main. Some neighbors had experienced root trouble in their laterals. The Freitags replaced their concrete lateral with a four-inch cast iron lateral in 1956 because of root problems. Koletzke testified that if roots were entering the laterals in this area, they would also be entering the main. On the other hand Vik testified that he would not consider the Freitag area to be a "troubled area."
On this record we cannot hold as a matter of law that there was any duty on the part of defendant to make any inspection of the sewer main in question in between the dates of its annual cleaning operation. Neither can we hold that the trial court's finding that defendant was not negligent is against the great weight and clear preponderance of the evidence.
Res Ipsa Loquitur.
We turn now to the issue of whether the trial court committed error in ruling that the doctrine of res ipsa loquitur was inapplicable.
In Wisconsin, two elements must appear, before a plaintiff is entitled to an instruction on res ipsa loquitur: (1) The accident must be the kind which ordinarily does not occur in the absence of someone's negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant.
Welch v. Neisius (1967), 35 Wis.2d 682, 686, 687, 151 N.W.2d 735; Turk v. H.C. Prange Co. (1963), 18 Wis.2d 547, 553, 558, 559, 119 N.W.2d 365.
The instant sewer main is not an instrumentality entirely within the control of defendant with respect to the materials that are deposited therein. As one of the expert witnesses testified, the temporary obstruction could have been caused by a plastic bag or a children's toy. A lateral in the neighborhood had become clogged from fish heads. Had the flooding of plaintiff's basement been caused by a defect, or break, in the sewer main we then would have an instrumentality entirely within the control of defendant.
Plaintiff correctly argues that, in Wisconsin, right to control is the important factor and that actual exclusive control is not necessary. She then argues that since defendant could regulate and control the use of the sewer by the residents of the city, it cannot claim that it had no control over what is placed into the sewer system. In support of this contention plaintiff cites the case of Mitchel v. Dover as authority. In that case the flooding resulted from an obstruction caused by improper discharges of sewage by a tannery into the sewer system. The court stated:
Goebel v. General Building Service Co. (1965), 26 Wis.2d 129, 137, 131 N.W.2d 852; Turk v. H.C. Prange Co., footnote 4, supra, at page 557; Koehler v. Thiensville State Bank (1944), 245 Wis. 281, 14 N.W.2d 15.
(1953), 98 N.H. 285, 99 A.2d 409.
". . . A sewerage system constructed by a municipal corporation is its property and its right to regulate and control the use of it is a necessary incident of its ownership. 64 C.J.S., Municipal Corporations, ss. 1802, 1805. The tannery's right to empty its sewage into the public sewer was not an unlimited one but was subject to the control of the defendant. Whether the defendant's failure to regulate the tannery's use of the sewer more strictly or by some means other than that employed constituted negligence on its part is a question of fact for the Trial Court."
Id. at page 289.
The case did not discuss res ipsa. Furthermore, the city had knowledge of the tannery's improper discharges and had taken action prior to the incident in question to prevent such activity. The issue was whether the city should have taken further and more drastic action against the tannery.
It is one thing for a municipality to be able to control what is dumped into a sewer as industrial waste by a particular industry, when such waste has characteristics peculiar to itself which can be identified if found in the flow of sewer mains. It is another thing for a municipality to be able to control the deposit of plastic bags, toys, or fish heads, which, when found in a sewer main, cannot be traced back to the depositor. We deem the right of control in the latter instance, because of its difficulty of enforcement, to be more theoretical than actual. The right to control is of no consequence, unless it can be effectively exercised. Dean Prosser has stated:
". . . It must be enough that the defendant has the right or power of control, and the opportunity to exercise it, as in the case of an owner who is present while another is driving his car, or a landowner who permits visitors to come on his premises. . . ."
Prosser, Law of Torts (3d ed.), ch. 6, p. 224, sec. 39.
If a defendant does not have such an opportunity, it cannot be said that ". . . the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it. . . ."
Weggeman v. Seven-Up Bottling Co. (1958), 5 Wis.2d 503, 514, 93 N.W.2d 467, 94 N.W.2d 645.
Plaintiff cites cases from other jurisdictions in which res ipsa has been applied in actions involving the flooding of property as the result of a defect or obstruction in a city's sewer system. These cases seem to have been drawn largely from an annotation in 11 A.L.R. 2d 1179, 1189-1191. All are distinguishable on their facts from the instant situation. The majority of them are cases involving a break in the sewer pipe.
Elkhart v. Slabaugh (Ind.App. 1959), 157 N.E.2d 842; Anello v. Kansas City (Kansas City Court of Appeals, 1955), 286 S.W.2d 49; Gravey v. New York (1907), 117 App. Div. 773, 102 N Y Supp. 1010. Quigley v. Hibbing (1964), 268 Minn. 541, 129 N.W.2d 765, involved a break in a water main. Water mains differ from sewer mains in that the municipality has exclusive control of what flows through them as well as of the mains themselves.
Much reliance is placed by plaintiff on Talcott v. New York, a three to two decision, in which the doctrine of res ipsa was held applicable to a situation, where the sewer main obstruction had not resulted from a defect in the pipe. The facts and the rationale for this holding are found in the following extract from the majority opinion:
(1901), 58 App. Div. 514, 69 N.Y. Supp. 360.
". . . Thus, the fact that a sewer became obstructed by its ordinary use, there being no evidence that such an obstruction was caused by an unusual or exceptional condition and that such an obstruction was liable to be caused by the gradual accumulation of solids from the sewerage is, it seems to me, sufficient evidence to require from the defendant an explanation as to its watchfulness in ascertaining its condition from time to time and preventing it from becoming obstructed. . . ."
Id., at page 519.
There was no proof in the present case that the sewer became obstructed by its ordinary use, or that the obstruction in question was liable to be caused by the gradual accumulation of solids from the sewerage. If such a showing had been made, then defendant's control of the sewer main itself would have become relevant, and the application of res ipsa would have presented a closer question.
However, if a plaintiff were able to prove such an obstruction, a trial court could consider it such substantial proof of negligence in regard to a defendant municipality's duty to inspect and maintain its sewers, that an instruction on res ipsa loquitur would be superfluous.
Fehrman v. Smirl (1964), 25 Wis.2d 645, 653, 131 N.W.2d 314.
Moreover, this court has difficulty in perceiving any policy reason for invoking res ipsa in a situation where the issue turns upon the duty of inspection, since evidence on this point is not inaccessible to the plaintiff. See 9 Wigmore, Evidence (3d ed.), p. 377, sec. 2509. The reason for the rule of res ipsa may be seen in its effect. As stated in Mayer v. Boynton Cab Co.:
(1954), 267 Wis. 486, 66 N.W.2d 136.
". . . The effect of that rule is to permit a jury to infer from the circumstances that causal negligence was present although the party who has alleged it is unable to produce evidence to specify the respect in which the other party was derelict. . . ."
Id., at page 489.
However, we do not deem this principle of accessibility of the evidence to be an indispensable or controlling requirement for the invoking of res ipsa.
See Prosser, Law of Torts (3d ed.), pp. 229, 230, sec. 39; 2 Harper and James, Law of Torts (1956 ed.), pp. 1094, 1095, sec. 19.9.
We conclude that the trial court properly ruled that the doctrine of res ipsa was inapplicable.
By the Court. — Judgment affirmed.