Court finds for city in water-damage suit

The Bettingers and the Cross and Clutter families filed three separate but related lawsuits against the city of Springfield for property damages, but a ruling announced April 11 finds that the city isn’t liable in the cases.

According to the Missouri Court of Appeals Southern District, which heard the appeal for Bettinger v. the City of Springfield, the plaintiffs sought damages based on a theory of inverse condemnation, claiming that the city of Springfield took their real estate for public use without fair compensation.

The plaintiffs alleged that the land was taken when a public drainage system failed to carry away surface water run-off that collected and damaged their homes as a result of heavy rainfall.

They claimed the overflow escaped the confines of the drainage easement, causing the water to damage their properties.

Tamara deWild, an attorney with Lathrop & Gage, represented the city of Springfield in the lawsuits, and she said that each of the three separate plaintiffs resided in the Holiday subdivision in the area of Briarwood, National and Fremont.

“We filed a motion for a summary judgment on the basis that in Missouri, we follow the unreasonable use of the water and the plaintiffs were unable to establish that,” deWild said.

“They countered saying that there is an exception to this. They essentially argued that the city should be strictly liable. There was a drainage easement, the water overflowed, therefore you need to pay us money. That’s the easiest way to state what their position was,” she added.

Rick Muenks, the attorney who represented the Bettingers, said the basis for the suit was that water in the public drainage system and easement exceeded the boundaries of easement and flooded the homes.

“The case was filed several years ago,” said Muenks. “The fact is that the city had put on a capital improvement plan to fix the drainage system and that didn’t happen. The issue we brought to the court was that a number of homeowners in the area of National and Fremont benefited, while a few people whose homes flooded paid the price. We felt that was an appropriate means for compensation.”

Insurance did not cover the Bettingers’ loss, which exceeded $50,000, Muenks said. “They are out the money and the devaluation of their property.”

The city took the position that under Missouri law, it was not responsible to the plaintiffs for the damages, deWild said.

“There had been no prior complaints of flooding in the area,” she said. “This was a one-time event. This was a record rainfall at that. The evidence was that it was between a 100- and a 500-year rainfall. It was seven inches that fell within a short amount of time – in less than six hours is what the evidence (shows).”

After going through the trial court, Muenks took the case to the Missouri Supreme Court, and then finally to the Southern Court of Appeals, which agreed that the city is not liable for the damages.

“We based our position on a Missouri Supreme Court case which adopted that law of reasonable use, which basically says you’re allowed to reasonably use their land even if it involved diversion of surface water, that you incur liability toward the interference of water when it’s unreasonable,” said deWild. “So the plaintiffs would have to establish the city’s conduct was either intentional or unreasonable – that they knew there was going to be damage to the property, and they set up the drainage system anyway. Or that it was negligent or reckless, and they were not able to come up with facts sufficient to support that.”

Inverse condemnation

Missouri case law states that the governmental entities are not liable in inverse condemnation cases when damage is a result of a natural force, deWild said. “Certainly rain water and surface water would be a natural force,” she added.

However, the plaintiffs referred to a Minnesota case that said otherwise.

A footnote in the Heins Implement Co. v. Missouri Highway & Transportation Commission case, which referred to a case in Minnesota, was presented by plaintiffs’ arguments to the Court of Appeals. “The Minnesota court said that if it’s a governmental entity and property is damaged that perhaps that is sufficient in and of itself,” deWild said. “That’s not what the court was saying at all. The primary reason is that the Heins case was not an unreasonable use of land. They did not establish any factual issue.”

The ruling

According to the Court of Appeals decision in Battinger vs. City of Springfield, “Liability for surface water flow arises when the defendant’s conduct regarding surface water is (1) intentional and unreasonable, or (2) negligent, reckless or in the course of abnormally dangerous activity. As we understand it, plaintiffs first take the position that the Heins case and the unreasonable use adopted by it do not apply here.”

Homeowner beware

Muenks said the decision places a burden on homeowners.

“I don’t agree, but I respect their decision,” he said. “The practical results of this decision are that we tend to put the burden and the cost on a handful of people while a majority are able to benefit. This handful of people are asked to bear the cost of determining if the use of land was reasonable or unreasonable. It’s irresponsible for public bodies to take this sort of approach.”

DeWild said there are no facts that support unreasonable diversion of the surface water, “In fact, the evidence wasn’t even set forth that the water that flooded their property came out of the drainage system.”

In future cases against the city, deWild said that this case could be relevant.

“The plaintiffs are going to have to establish any damage they sustained is actually a result of some mistake or design flaw that occurred as a result of the city’s action, that there was some negligent conduct on the part of the city that caused the damage,” she said.

Muenks said future homebuyers should beware.

“Read the decision of the appellate court if you’re looking at a home along a drainage easement, whether it’s under or above ground,” he said. “Beware if it does flood, because you’ve got an uphill battle to fight.”

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