Sanford v. University of Utah

488 P.2d 741, 26 Utah 2d 285, 1971 Utah LEXIS 707

• Court: Utah Supreme Court
• Decided: September 15, 1971
• Docket: 12167
• Status: Published

Opinions

CALLISTER, Chief Justice:

Plaintiff initiated this action to recover for the damages caused by the flooding of her property. She alleged that the University of Utah, the adjoining upper landowner, constructed certain public improvements, which were in a defective, unsafe or dangerous condition and caused the flooding of her property. Plaintiff recovered judgment upon a jury verdict, and defendant appeals.

Plaintiff’s home is located at 8 North Wolcott Avenue in Salt Lake City, Utah. The University of Utah received title to the adjoining easterly property from the federal government in 1948. Although defendant’s land was at a higher elevation, plaintiff introduced evidence indicating that the natural drainage was in a northerly direction. Defendant’s land was graded and filled in certain sections and the Merrill Engineering Building was constructed with a parking lot. In addition, a curving peripheral road, connecting Federal Way to Wasatch Boulevard, was located on defendant’s land, to facilitate travel to the Medical Center. Subsequent to the creation of these improvements, the drainage was in a westerly direction.

In June of 1963 plaintiff’s home was flooded, for which she was compensated. She expressed concern about future floods, and on January 10, 1965, she received a letter from James C. Fletcher, President of the University of Utah, wherein he stated:

I have investigated the flood potential in the area and am assured by competent engineers that the drains are ample to take care of the situation. Also we are taking steps to see that the drains are kept clear and clean so that flood conditions will not be caused by inability of the water to go through the drain channels.

I am sure that' you will appreciate that the great expanse of grass which has been planted since the time of the flood situation to which you referred will act as a strong retardant to a similar situation arising again. Also I wish to assure you that we will be particularly vigilant in seeing that optimum conditions are maintained.

On July 17, 1967, during a rainstorm, a veritable waterfall came cascading off the parking lot, over the roadway and down the hillside, smashing plaintiff’s windows and filling her basement with water and mud. The jury awarded plaintiff damages for personal property that was destroyed, for the costs of repair to her home and yard, and for a diminution in market value of her property resulting from the past history of flooding.

Plaintiff predicated her claim for relief under Secs. 8 and 9 of the Utah Governmental Immunity Act, Title 63, Chapter 30, U.C.A.1953, as amended 1965.

Sec. 63-30-8 provides:

Immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon.

Sec. 63-30-9 provides :

Immunity from suit of all governmental entities is waived for any injury caused from a dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement. Immunity is not waived for latent defective conditions.

On appeal, defendant urges that Sec. 10 of the Act modifies Secs. 8 and 9, and that under the Act, a governmental entity is not liable for a defective or dangerous condition causing injury, unless the condition was caused by a negligent act or omission of an employee committed within the scope of his employment. Defendant’s appeal is premised on the aforementioned statutory construction, and based thereon, it argues that the alleged defective condition was not caused or created by any person under the supervision and control of the University; and, therefore, the institution is not liable. The peripheral road was designed and constructed by the Utah State Road Commission. The Merrill Engineering Building and the parking lot were designed and constructed under the supervision of the Utah State Building Board. At the time of the 1967 flood, Gibbons and Reed Construction Company was enlarging the parking lot. Defendant contends that these agencies were independent contractors over whom the University had no supervision or control in the design or construction of the drainage system. Defendant asserts that an employer of an independent contractor is not liable for the negligence of the independent contractor to third persons, and the plaintiff should have proceeded against the State Road Commission, State Building Board, and Gibbons and Reed Construction Company.

Defendant further urges that the trial court erred by its failure to instruct the jury concerning negligence of employees of the University in accordance with the theory propounded by defendant under Sec. 10.

Defendant further asserts that there has been no waiver of governmental immunity, since the alleged defective condition was caused by conduct within the purview of the statutory exceptions specified in subsections 1 and 4 of Sec. 10.

Sec. 63-30-10 provides:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of his employment except if the injury:

(1) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused, or ******

(4) arises out of a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property, * * *

Defendant urges that the design and construction of the drainage system were discretionary functions for which immunity was not waived. In the alternative, defendant contends that the University did not have an affirmative duty to inspect its property to locate the defective or dangerous condition created by an independent contractor.

Finally, defendant asserts that the Governmental Immunity Act does not provide for waiver of immunity for claims arising from maintaining a nuisance.

The trial court instructed the jury that plaintiff to prevail must prove: (1) that before July 16, 1967, defendant in constructing improvements changed the natural flow for drainage of surface waters from its or surrounding property; (2) that in so doing it created a drainage system; (3) that the improvement thus created had a defective condition in (a) a culvert, and/or (b) in the public improvement itself, that was not a latent defective condition; (4) that defendant knew or in the exercise of reasonable care should have known of the existence of either defective condition, if any; and (5) that such defective condition, if any, caused injury to the plaintiff.

The trial court ruled that a claimant to recover under Secs. 8 and 9 is not required to produce evidence to support a finding of negligent conduct of an employee that is actionable under Sec. 10. The court observed that the University had notice in 1963 that a dangerous condition existed by reason of a public improvement; that President Fletcher’s letter was evidence of such notice of the condition. The' trial court observed that the Governmental Immunity Act opened the door for recovery of damages caused by an intentional change of the natural drainage system of an area, whereby the flow is concentrated with damages resulting. The court ruled that claimant’s right to recovery was based on the upper landowner’s wrongful alteration of the natural drainage system without adequately protecting the lower landowners.

The trial court, in effect, in its rulings and instructions adopted the rule of “reasonable use”: “each possessor [of land] is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interfer-enee with the flow of surface waters is unreasonable.” ¹

This jurisdiction has never specifically-ruled as to which of the alternative doctrines (civil law rule, common enemy rule, or reasonable use rule) should determine the rights of landowners in regard to the discharge of surface waters, although there was a citation in footnote 1 in Reeder v. Brigham City² referring to the civil law rule. The outstanding analysis of Kinyon and McClure, Interference with Surface Waters, 24 Minnesota Law Review 891, 93S, presents a convincing argument that the reasonable use approach which was adopted in Sec. 833, Restatement of the Law, Torts, is the preferable method to resolve those disputes where one possessor of land sustains harm in the use and enjoyment of his land as a result of another’s use and enjoyment of other land. The authors indicated that under existing classifications th,e rules relative to surface waters are regarded as a branch of property law. They stated:

* * * Whatever the reason, the consequence is that the legal relations of the parties have been stated almost invariably in terms of property concepts— rights, privileges, servitudes, “natural easements” and so on. There is no question, however, that one’s liability for interfering with surface waters, when incurred, is a tort liability. An unjustified invasion of a possessor’s interest, in the use and enjoyment of his land through the medium of surface waters, is as much a tort as a trespass or a private nuisance produced by smoke or smells. Nevertheless, the courts and writers seldom analyze the problems in terms of tortious conduct, causation or other tort concepts.

* * * it should make little difference, so far as a satisfactory solution of surface water problems is concerned, whether the courts deal with the matter in terms of property rights or in terms of legal duties and tort liabilities. As a matter of fact, however, the property approach has not proved very successful, and is undoubtedly responsible for a substantial amount of the existing confusion in the law.³

The authors concluded:

It is not suggested that the law of torts is perfect or that tort terminology is a panacea for all ills, * * *. Treating the matter as a question of tort liability, attention is- focused on such practical and concrete problems as “the necessity of actual damage,” “the reasonable or unreasonable character of the defendant’s conduct in view of all the circumstances,” and “the relative value of the interests involved,” rather than on the limitations and qualifications of a categorical “right” or “servitude” pre-supposedly assumed and ill-defined.⁴

Since this issue is one of first impression in this jurisdiction, we have the opportunity to select the rule commended by Kinyon and McClure,⁵ the rule of reasonable use. The Restatement of the Law, Torts, Sec. 833, provides:

Non-trespassory invasions of a person’s interest in the use and enjoyment of land resulting from another’s interference with the flow of surface water are governed by the rules stated in §§ 822-831.

In Comment a. following Sec. 833 there is an explanation that where one person drains or cultivates his land, grades it, builds roads, structures, or embankments upon it, he usually interferes with the flow of surface waters upon it or across it, and such interference often causes harm to a neighbor in the use and enjoyment of his land. Where the invasion- is intentional, liability depends on whether the invasion is unreasonable.

An action for the invasion of a person’s interests in the private use and enjoyment of land is an action for private nuisance.⁶

Any of three types of conduct may result in liability for a private nuisance. By far the greater number of such nuisances are intentional. Occasionally they proceed from a malicious desire to do harm for its own sake; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiff’s interests is substantially certain to follow. * * * [Emphasis added.] ⁷

The rulings and instructions of the trial court were in accordance with the foregoing rules of law. However, defendant asserts that there has been no waiver of immunity in regard to an action for a private nuisance.

* * * nuisance [private] is a field of tort liability, rather than a type of tortious conduct. It has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion. The attempt frequently made to distinguish between nuisance and negligence, for example, is based upon what the defendant has done rather than the result which has followed, and forgets completely the well established fact that negligence is merely one type of conduct which may give rise to a nuisance. * * * * * Today liability for nuisance may rest upon an intentional invasion of the plaintiff’s interests, or a negligent one, or conduct which is abnormal and out of place in its surroundings, and so falls fairly within the principle of strict liability. * * *⁸

A survey of the statutory scheme in the Governmental Immunity Act reveals that in Secs. 7 and 10 the legislature waived immunity in regard to a particular type of tortious conduct by a particular class of people, namely, negligent acts or omissions by employees while in the scope of employment. In contrast, in Secs. 8 and 9, the legislature waived immunity in regard to certain interests invaded or harm or damages inflicted without reference to the type of conduct which caused the invasion. Sec. 63-30-2(6) provides:

The word “injury” means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.

This broad definition of injury when construed in connection with the language of Sec. 9 indicates a legislative intent to include within the waiver of immunity an action for private nuisance insofar as the action is predicated on a dangerous or defective condition of a public improvement that unreasonably interferes with the use and enjoyment of the claimant’s property.

Since the waiver of immunity in Secs. 8 and 9 encompasses a much broader field of tort liability than merely negligent conduct of employees within the scope of their employment, the legislature could not have intended that Sec. 10, including its exceptions, should modify Secs. 8 and 9, even though it be conceded that the negligent conduct of an employee might be involved in an action for injuries caused by the creation or maintenance of a dangerous or defective condition.

The judgment of the trial court is affirmed; costs are awarded to plaintiff. Plaintiff’s cross-appeal for reinstatement of the sum deducted from the judgment by the trial court cannot be sustained because the trial court’s denial of defendant’s motions for a new trial and judgment notwithstanding the verdict were predicated upon this reduction in the jury verdict.

TUCKETT and HENRIOD, JJ., concur.

1 . Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 59 A.L.R.2d 413, 418 (1956); also see 59 A.L.R.2d Anno: Surface Waters-Drainage, Sec. 7, pp. 434-437; Sachs v. Chiat, 281 Minn. 540, 162 N.W.2d 243, 246-247 (1968).

2 . 17 Utah 2d 398, 400, 413 P.2d 300 (1966).

3 . At page 936 of 24 Minn.L.R.

4 . At page 939 of 24 Minn.L.R.

5 . Also see Prosser, Law of Torts (3d Ed.) pp. 603-604.

6 . Restatement of the Law, Torts, Chap. 40, Scope and Introductory Note, p. 220.

7 . Prosser, Law of Torts (3d Ed.), Sec. 88, p. 595.

8 . Prosser, Law of Torts (3d Ed.), Sec. 88, pp. 594-595.