Braithwaite v. City of Kenner

636 So. 2d 1094, 1994 La. App. LEXIS 1237, 1994 WL 162808
CourtLouisiana Court of Appeal
DecidedApril 26, 1994
DocketNo. 93-CA-1016
StatusPublished
Cited by1 cases

This text of 636 So. 2d 1094 (Braithwaite v. City of Kenner) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braithwaite v. City of Kenner, 636 So. 2d 1094, 1994 La. App. LEXIS 1237, 1994 WL 162808 (La. Ct. App. 1994).

Opinion

jiDUFRESNE, Judge.

This is an appeal by Sheila N. Braithwaite, plaintiff-appellant, from an adverse judgment in her suit against the City of Kenner for damages allegedly sustained from overflowing toilets in her house. The basic allegations of her petition were that a failure in the [1095]*1095sewer lines caused sewer water to back up through her bathroom toilets and flood several adjoining carpeted rooms, and that she contracted pneumonia from this damp, unsanitary condition in her house. The trial judge found in favor of the City, stating only that “plaintiff has failed to prove her case by a preponderance of the evidence.” Because we find that there is a permissible view of the evidence which would support this result, we are precluded from reversing the judgment, and therefore affirm it.

The basic facts are these. On the evening of January 5, 1988, plaintiff noticed that the toilets in her downstairs bathrooms were leaking. She called the City of Kenner and a sewerage worker was sent to her house. The worker discovered a blockage in the main line two manholes l2down from plaintiffs house, and cleared the line. Five days later, on January 10, the toilets leaked again, and on this occasion the City workmen found a malfunctioning lift station a few blocks from plaintiffs house. Plaintiff testified that on both occasions there was an inch or two of water in the bathrooms and that the carpets in the hall and several bedrooms were soaked. She further testified that on both occasions the water coming from the toilets was brown, with bits of paper and other solids in it, and that it had a foul odor.

The day after the first incident, William Bagley, the City claims manager, visited the house to inspect the damage. He testified that he saw the wet rugs in the hall and bedrooms, but that there was no strong foul odor or other evidence to indicate that “septic” sewerage, i.e. sewerage that had begun to rot and emit a strong ammonia-type odor, had backed up into the house. He nonetheless contacted a carpet cleaner who came to the house on January 7, and cleaned, deodorized and sanitized all of the affected carpets at the City’s expense. After the incident of January 10, Bagley revisited the house and testified that the carpets were again wet, but as before there was no noticeable strong odor or evidence of septic sewerage. On this occasion, rather than have the carpets cleaned, he decided that replacing them was in order. That work was done at the City’s expense a week to ten days later. Plaintiff testified that on both occasions she spent several hours mopping and vacuuming the water in the house, and as a result of this direct exposure to the overflow from the toilets, as well as living and sleeping in the damp house during the time it took first to clean the rugs and then replace | -¡them, she contracted pneumonia. She spent several days in the hospital and allegedly lost a few weeks of work because of this illness.

Plaintiff brought the present suit against the City to recover her medical expenses, lost wages and general damages. After a bench trial, the trial judge ruled in favor of the City, stating only that plaintiff had failed to prove her case by a preponderance of the evidence. Plaintiff now appeals, and urges two assignments of error on the part of the trier of fact. First, she asserts that it was manifest error not to find that the overflowing of her toilets was the fault of the City in not properly maintaining its sewer system. Second, she similarly urges that it was manifest error not to find that the water in her house caused her to contract pneumonia.

Before turning to the specific facts of the case before us, we note initially that the standard of review of factual findings by an appellate court is extremely narrow. We are permitted to disturb such findings only if they are manifestly erroneous, Rosell v. Esco, 549 So.2d 840 (La.1989). Thus, even though this court may feel that had it been sitting as the trier of fact it would have evaluated the evidence differently and made different factual inferences, it may not substitute its views for those of the factfinder unless those of the factfinder are clearly wrong, Id. Further, where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong, Id. (emphasis added).

In the case before us, plaintiff argues that the trial judge fell into manifest error in not finding that the City was liable for the sewer-agejjoackup, and further that as a consequence of that backup she contracted pneumonia. As to the sewerage problem, there is no question that on the first occasion there was a blockage in the main line, and on the second it was discovered that a lift station [1096]*1096had lost its prime and was therefore not functioning. Beyond those basic facts, there was disagreement as to whether the problems in the main lines could possibly have caused sewerage to back up to the water level necessary for it to flow over the tops of the toilet bowls in plaintiffs house.

Jessie Byrd, an employee of the City sewerage department for twenty-two years, ten of which he spent investigating complaints of clogged lines, testified about the workings of the sewer system. He explained, with the use of a plat, that the main sewer lines operate on a gravity feed system from a high point at the beginning of any one line to a lift station at the lowest point of. the line. The sewerage enters the lift station at its lowest level and is then lifted to a higher level where it exits into another gravity feed line, eventually going to a drainage canal. He further showed on the plat that plaintiffs sewer line and that of the adjoining house both feed into a single pipe which in turn enters a manhole in front of her house. He said that in his experience, if blockage in a sewer line causes a sufficient backup to cause flushing problems in toilets, the same problem would show up in adjoining houses, and not in only one house. There was no evidence of any problem in the adjoining house in this case. He also said that any backup problems caused by clogged lines or lift pump failures typically show up first in the houses nearest to the problem. Again, there were no reported difficulties in the houses nearest the manhole where the first problem was located, nor linear the lift station where the second occurred. He further stated that in all of his years of experience, he had never seen a backup which caused sewerage to overflow over the top*of a toilet bowl. He had, however, seen cases where the wax seal at the base of the toilet bowl leaked, thus allowing backed up sewerage to seep in at floor level. In such circumstances, the seepage would not contain any solids, he said, but would rather be more than 99% water. He also noted in this regard that the condition of the wax seal is the responsibility of the homeowner, and not the City. Finally, he pointed out that if the clean-out cover were open, then any backup of sewerage would drain from this opening in the house line and no backup to the level required even to cause seepage at the floor level of the seal could occur.

There was also testimony by Donald Lee, another City sewerage worker who had responded to the second incident, that the cleanout was indeed open and flowing freely. He agreed with Byrd that in this circumstance no backup from the sewer side of the cleanout could possibly reach the house.

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Bluebook (online)
636 So. 2d 1094, 1994 La. App. LEXIS 1237, 1994 WL 162808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braithwaite-v-city-of-kenner-lactapp-1994.