Cunningham v. West Virginia-American Water Co.

457 S.E.2d 127, 193 W. Va. 450, 1995 W. Va. LEXIS 54
CourtWest Virginia Supreme Court
DecidedMarch 24, 1995
DocketNo. 22288
StatusPublished
Cited by5 cases

This text of 457 S.E.2d 127 (Cunningham v. West Virginia-American Water Co.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cunningham v. West Virginia-American Water Co., 457 S.E.2d 127, 193 W. Va. 450, 1995 W. Va. LEXIS 54 (W. Va. 1995).

Opinion

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 [453]*453the water main on July 20, 1990, and allowed several thousand gallons of water to escape onto the Appellants’ property.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. Por 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.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 for 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.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 [454]*454separated 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, 192 W.Va.

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457 S.E.2d 127, 193 W. Va. 450, 1995 W. Va. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-west-virginia-american-water-co-wva-1995.