Kerr v. City of S. Bend

48 N.E.3d 348

Raymond KERR, Appellant–Plaintiff

v.CITY OF SOUTH BEND, Appellee–Defendant.

No. 71A03–1502–CT–49.

Court of Appeals of Indiana.

Dec. 23, 2015.

Gregg Romaine, Romaine Law, Fishers, IN, Attorney for Appellant.

Aladean M. DeRose, City of South Bend, Department of Law, South Bend, IN, Attorney for Appellee.

Opinion

BAKER, Judge.

[1] Raymond Kerr filed a complaint against the City of South Bend alleging that noxious gases from its sewer line had been forced into his home. Kerr alleged that this constituted nuisance, trespass, negligence, and inverse condemnation, resulting in injury to his person and his property. The trial court granted summary judgment in favor of the City, concluding that Kerr's claims were time-barred and that he was owed no duty. Finding that the trial court erred as to this latter point, we nevertheless find that Kerr's claims are barred by the statute of limitations insofar as they relate to injury to his health. We do find, however, that a portion of Kerr's claims may proceed insofar as they relate to damage to his property. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

Facts¹

[2] Kerr owns a home at 240 South Meade Street in South Bend (the City). A lateral sewer line runs under Kerr's home and connects it to a main sewer line. While the lateral line is Kerr's private property, the main line is owned and maintained by the City. At all times relevant to this case, the New Energy Corporation manufactured ethanol at a plant located approximately two miles southwest of Kerr's home. The City had issued New Energy a permit to dump various waste liquids into the City's main sewer line. These liquids ran through the main line and passed by Kerr's home before they eventually reached a treatment plant to the north. New Energy has since filed for federal bankruptcy protection.

[3] In 2001, a relative of Kerr by the name of Leolia Kerr made a complaint to the City regarding odors coming into the home from the sewer. The City sent a contractor who made repairs to Kerr's lateral sewer line. Following this, however, fumes from the sewer continued to enter Kerr's home. At some point prior to 2004, Kerr contacted the City to discuss the issue. At the time, the City was aware of other complaints about odors coming from the sewer in and around Kerr's neighborhood. Kerr spoke with Deputy Mayor Lynne Coleman, who assured Kerr that the City would either fix the problem or buy his home and assist with his relocation costs. In 2005, Kerr moved away from his home as a result of the fumes, but he did not sell his home at that time.

[4] In late 2006, the City hired an environmental consulting firm to conduct a study on the odors coming from the sewer. The study found that discharge from New Energy's plant had a significant impact on the level of hydrogen sulfide present in the sewer and that this could account for the odor.² It also found that New Energy was adding ferrous chloride to the wastewater that “binds up the wastewater sulfide” and that City staff had found a layer of black slime covering the walls of several manholes in and around Kerr's neighborhood. Appellant's App. p. 42–43. The study made several recommendations to the City as to how to deal with these problems.³

[5] In March 2012, Kerr returned to his home to make some repairs to the property. While inside, he once again detected fumes entering his home from the sewer. On May 7, 2012, Kerr was diagnosed with chronic bronchitis. Tests revealed the presence of bacteria and fungi in Kerr's lungs. On May 18, 2012, Kerr was hospitalized for ketoacidosis and treated for undisclosed infections.

[6] Following his hospitalization, Kerr hired an environmental consultant to determine what types of gases were present in sewer lines connected to his home. The consultant measured the fumes emanating from two points in the sewer line, one just outside the home and the other underneath the bathroom. The consultant issued a report on July 18, 2012, which indicated that fumes in the sewer contained several carcinogens—benzene, chloroform, dibromochloromethane, 1,4–dichlorobenzene, methylene chloride, naphthalene, and tetrachloroethene—as well as high levels of other chemicals. The consultant made clear that the ambient air conditions within the home were not evaluated, but that the measurements from the sewer could offer insight into what may be emanating into the home. Appellant's App. p. 50–51.

[7] On June 5, 2012, Kerr filed a notice of tort claim with the City. Kerr claimed that the “management of the ethanol wastes in the sewers has negligently caused pollution to continuously trespass and act as a public and private nuisance,” forcing him to move from his home. Id. at 29. Kerr claimed that the “loss has been continuous since the late 1980's.” Id. at 30. The City denied Kerr's claim on June 11, 2012.

[8] On August 31, 2012, Kerr filed a complaint against the City claiming that the City negligently managed the sewer line, which resulted in fumes entering his home. Kerr also claimed that the fumes had rendered his home valueless, caused him personal injury, and diminished his earning capacity. The City filed a motion to dismiss Kerr's complaint. The trial court conducted a hearing on November 19, 2012, and reserved ruling on the matter, allowing both parties more time to conduct discovery. The trial court denied the City's motion to dismiss on December 20, 2012. The City filed an answer to Kerr's complaint on January 30, 2013.

[9] On April 30, 2014, the City filed a motion for summary judgment. Kerr filed a motion in response on November 3, 2014.

The trial court conducted a hearing on the matter and, on January 20, 2015, issued its order granting the City's motion. The trial court found that Kerr had failed to give proper notice under the Indiana Tort Claims Act (ITCA) by failing to file his claim within 180 days of discovering the fumes. It also found that Kerr's claims were barred by all applicable statutes of limitations. Finally, the trial court found that Kerr had not established that the City owed him a duty. It reasoned that if any fumes had entered the home, they had entered through the lateral sewer line, which was Kerr's private property and his responsibility to maintain. Kerr now appeals.

Discussion and Decision

[10] Summary judgment is appropriate “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We review a grant or denial of summary judgment de novo, applying the same standard as the trial court. City of Bloomington Utils. Dep't v. Walter, 904 N.E.2d 346, 349 (Ind.Ct.App.2009). All disputed facts and doubts as to the existence of material facts must be resolved in favor of the non-moving party. Id. “[A]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.2014).

[11] In this case, the trial court granted summary judgment in favor of the City, concluding that Kerr's claims were barred by the applicable statutes of limitations and for failure to provide notice in accordance with the ITCA. The trial court also found that Kerr's claims must fail because the City owed him no duty. We deal with this issue first.

I. Duty

[12] To avoid summary judgment on his claim of negligence, Kerr was required to show a duty owed to him by the City. City of Muncie ex rel. Muncie Fire Dep't v. Weidner, 831 N.E.2d 206, 211 (Ind.Ct.App.2005). Whether a defendant owes a plaintiff a duty is a question of law for the court to decide. Id. Courts will generally find a duty where reasonable persons would agree that one exists. Id. “A duty, when found to exist, is the duty to exercise reasonable care under the circumstances.” Id.

[13] Here, the trial court framed the issue as whether the City owed Kerr a duty to maintain the lateral sewer line that connected Kerr's house to the main sewer line. The trial court then found that the City owed Kerr no such duty, as the lateral sewer line was Kerr's private property. In support of this finding, the trial court cited a provision of the ITCA noting that a governmental entity is not liable for losses that result from failures to inspect private property. Appellant's App. p. 23 (citing Ind.Code § 34–13–3–3(12) ).

[14] However, the trial court's determination that the City is not responsible for the maintenance of Kerr's private property, while correct, misses the point. Kerr is not claiming that the City failed to properly maintain his lateral sewer line; rather, he is claiming that the City failed to properly maintain its own main sewer line, to which his line connects. Reply Br. p. 6. Appellate courts of this State have long recognized that municipalities have a duty to use reasonable care in the maintenance of their sewer lines, and it is this duty that Kerr believes was breached.⁴ City of Bloomington Utils. Dep't, 904 N.E.2d at 353 ; Murphy v. City of Indianapolis, 63 N.E. 469, 470, 158 Ind. 238 (1902) ; City of South Bend v. Paxon, 67 Ind. 228, 234–35 (1879).

[15] The City may be correct that Kerr contributed to his damages by failing to properly maintain his property. And were the factfinder to find that he has, he would be denied recovery for negligence, as “contributory negligence on the part of a plaintiff provides a complete defense to liability for the State and other government actors....” Kader v. State Dep't of Correction, 1 N.E.3d 717, 728 (Ind.Ct.App.2013) ; Ind.Code § 34–51–2–2. However, while these allegations of contributory negligence are relevant to the question of Kerr's eventual recovery, they are not relevant to threshold question of the City's duty to maintain its own property.⁵

II. Timeliness of Kerr's Claims

[16]...