Appeal by defendant from judgment entered 21 December 1998 by
Judge Carl L. Tilghman in Robeson County Superior Court. Heard in
the Court of Appeals 24 January 2001.
McCoy, Weaver, Wiggins, Cleveland & Raper, by Richard M.
Wiggins, for plaintiff-appellee.
Faison & Gillespie, by Reginald B. Gillespie, Jr., for
defendant-appellant.
McGEE, Judge.
Plaintiff filed this action in February 1997, seeking recovery
for damages to her house allegedly due to defendant's negligence in
maintaining a storm drainage pipe running under plaintiff's
property. The case was heard before the trial court without a
jury. During trial, defendant moved for involuntary dismissal, and
the trial court denied the motion. The trial court granted
judgment in favor of plaintiff on 21 December 1998. Defendant
appeals. Because defendant does not challenge the trial court's
findings of fact on appeal, we must presume the findings of fact to be correct. See Inspirational Network, Inc. v. Combs, 131 N.C.
App. 231, 235, 506 S.E.2d 754, 758 (1998).
Between 1948 and 1954, a thirty-six inch storm drain pipe was
installed in what was originally an open drainage ditch on the
property later owned by plaintiff. The pipe is located
approximately ten feet from the west property line and runs across
the property parallel to the property line. As part of defendant's
storm water drainage system, defendant owns the pipe and the
easement in which the pipe is located. However, defendant acquired
no written easement for the installation of the pipe, and no
written easement appears of record in the Office of the Robeson
County Register of Deeds showing the location, nature, or extent of
defendant's easement in which the pipe is located.
The storm drain pipe joints were sealed with oakum, a flexible
material consisting of hemp saturated with concrete. At the time
the pipe was installed, and until the early 1970's, oakum was
widely used and was considered state-of-the-art for sealing such
pipe joints. In the 1970's, however, defendant and others learned
that oakum can deteriorate over time, allowing water to access the
pipe, which can result in a sinkhole. Oakum deterioration is a
natural process which cannot be prevented, and no test, process or
machine can predict when failure will occur. By the mid-1970's,
defendant had begun using a petroleum-based sealant known as
Ramneck in the installation and repair of storm drain pipe joints.
A house was built on the property in 1961 and was bought by
Jimmy D. Howell. The west wall of the house was situated
approximately fifteen feet east of the pipe. The pipe was buriedthree to six feet under the surface and was not visible, though
catch basins were located in the streets in front of and behind the
house. Jimmy Howell was informed of and shown the location of the
pipe at the time of purchase.
Plaintiff married Jimmy Howell in 1967 and plaintiff and Jimmy
Howell obtained a building permit from defendant's inspection
department in 1977 to build a fifteen foot by twenty-two foot room
onto the west side of the house. The chimney and west wall of the
addition were built above the pipe. When plaintiff and Jimmy
Howell divorced in 1989, plaintiff became the sole owner of the
property. At the time she became owner, plaintiff was not aware
that the pipe was located on her property.
In 1981, while getting wood from a woodpile in the backyard,
Jimmy Howell fell into a sinkhole when the ground beneath him
collapsed some fifteen feet behind the house. Plaintiff notified
defendant of the problem, and defendant sent a crew which dug up
the ground and exposed the pipe under the sinkhole. The crew
applied concrete to the seal of the joint and replaced soil that
had been washed away though the sinkhole. No further sinkholes
appeared at that location.
Plaintiff notified defendant of another sinkhole on her
property in 1988. Defendant's practice at that time, upon being
notified of a sinkhole in or near one of its storm drain lines, was
to expose the pipe and repair any observed or suspected pipe
failure. Defendant's work crew put dirt in the hole but did not
expose the pipe to determine whether another oakum seal had
deteriorated. No further sinkholes appeared at that location. Plaintiff reported another sinkhole in 1989 on the ri
ght-of-
way of the street in front of plaintiff's property. Defendant's
crew filled the sinkhole with sand and concrete. No further
sinkholes appeared at that location.
The director of defendant's Public Works Department reported
to defendant's city manager in 1992 that, based on the history of
occurrences of sinkholes on plaintiff's property, funds should be
appropriated to move the storm drain pipe since it ran under
plaintiff's property at or near the west wall of her residence.
However, no funds were appropriated by defendant to move the pipe.
Plaintiff notified defendant of another sinkhole on her
property in 1993. Defendant's crew filled the hole with sand but
did not expose the pipe. No further sinkholes appeared at that
location.
Plaintiff discovered a severe sinkhole on her property in
September 1994, measuring some thirty-six inches in diameter and
four to five feet deep. Plaintiff also discovered signs that her
house was suffering damage from settlement. The 1977 addition had
begun to pull away from the remainder of the house, cracks appeared
in the brick veneer, and the floors became unlevel, making it
difficult to open and close doors.
Defendant's representative from its Public Works Department
indicated to plaintiff that the sinkhole was too close to
plaintiff's house to safely dig around the pipe at the location of
the sinkhole. Instead, defendant offered in June 1995 to remove
the portions of the storm drain pipe not under plaintiff's addition
and to fill and seal the remaining portions with concrete. Defendant also offered to make cosmetic repairs to plaintiff's
house, in return for an easement to reroute the pipe and a release
from liability. Plaintiff considered the offer inadequate and
refused to sign the release.
I.
[1]Defendant first assigns error to the trial court's failure
to grant defendant's motion for involuntary dismissal during the
trial. Defendant asserts that plaintiff's purported negligence
claim is preempted by N.C. Gen. Stat. § 40A-51, North Carolina's
inverse condemnation statute.
Although N.C.G.S. § 40A-51(c) (1999) specifically provides
that "[n]othing in this section shall in any manner affect an
owner's common-law right to bring an action in tort for damage to
his property[,]" defendant contends that the language is sharply
limited by
Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d
844 (1986),
McAdoo v. City of Greensboro, 91 N.C. App. 570, 372
S.E.2d 742 (1988), and
Ashley Park Charlotte Assoc. v. Charlotte,
N.C., 827 F.Supp. 1223 (W.D.N.C. 1993). In
Smith, this Court
acknowledged that the plaintiffs had no "private common law actions
for damages in trespass or nuisance in municipal airport overflight
cases; their sole remedy is inverse condemnation" under N.C.G.S. §
40A-51.
Smith at 521, 339 S.E.2d at 847 (citation omitted). In
McAdoo, this Court affirmed summary judgment for the defendant
municipality on the plaintiff's claim of trespass. The Court held
that because the defendant had the power of eminent domain it was
immune from common-law claims for trespass and thus N.C.G.S. § 40A-51(c) did not apply.
See McAdoo at 573, 372 S.E.2d at 744.<
br>
In
Ashley, the plaintiff sought to recover from the defendant
municipality when the plaintiff discovered that its property had
been contaminated by an adjoining landfill. The U.S. District
Court for the Western District of North Carolina, citing
Smith and
McAdoo, granted summary judgment under N.C.G.S. § 40A-51 on the
plaintiff's common-law claims for nuisance, trespass and
negligence.
Ashley, 827 F.Supp. at 1226. Defendants argue that,
under
Ashley's interpretation of
Smith and
McAdoo, N.C.G.S. § 40A-
51(c) does not allow plaintiff to bring a common-law negligence
claim in the present case.
However, neither
Smith nor
McAdoo addressed a claim of
negligence. Moreover, neither recognized any limitation to
N.C.G.S. § 40A-51(c). Instead,
Smith and
McAdoo concluded that
there was no common-law action in trespass or nuisance available to
the plaintiffs that could be preserved by N.C.G.S. § 40A-51(c). We
therefore hold that, if a common-law action for negligence by
defendant would otherwise be available to plaintiff, it is
preserved under N.C.G.S. § 40A-51(c) and not preempted by the
inverse condemnation statute. Insofar as
Ashley implies otherwise,
Ashley has incorrectly interpreted North Carolina law.
[2] Defendant next contends that plaintiff's claim should be
characterized not as negligence but as a continuing and permanent
trespass and nuisance, and therefore as an inverse condemnation
action within N.C.G.S. § 40A-51. Defendant distinguishes
Hotels,Inc. v. Raleigh, 268 N.C. 535, 151 S.E.2d 35 (1966), (property
damage due to storm water overflow),
Tent Co. v. Winston-Salem, 271
N.C. 715, 157 S.E.2d 577 (1967) (property damage due to storm water
overflow), and
Pulliam v. City of Greensboro, 103 N.C. App. 748,
407 S.E.2d 567 (1991) (property damage due to sewage overflow) as
each involving a single incident of harm, while describing
plaintiff's claim as "based on the continual and ongoing effects of
the location and use of the [p]ipe -- a permanent physical
structure under the [a]ddition." Defendant further distinguishes
these cases, as well as
Hooper v. City of Wilmington, 42 N.C. App.
548, 257 S.E.2d 142,
disc. review denied, 298 N.C. 568, 261 S.E.2d
122 (1979) (loss of property through erosion by storm water), as
involving damage to real property occurring
outside the defendant
municipality's easement.
Plaintiff, however, is not seeking to recover for the general
loss of value to her property due to the "continual and ongoing
effects of the location of the pipe." Instead, plaintiff seeks to
recover for the specific damage to her house caused by, or at least
discovered in conjunction with, the large sinkhole of September
1994. In
Hotels, the defendant municipality used a stream running
through the plaintiff's property for storm drainage. On several
occasions prior to 29 July 1965, rain caused the stream to overflow
onto the plaintiff's land. Upon notification by the plaintiff, the
defendant would work to remove obstructions from the stream. On 29
July 1965, however, the stream overflowed enough to enter the
plaintiff's motel and damage the plaintiff's property. Our SupremeCourt held that the defendant could be held liable for negligent
breach of its duty to keep its sewers and drains free of
obstructions which might cause such flooding.
Hotels, 268 N.C. at
537, 151 S.E.2d at 37. Similarly, although plaintiff reported
numerous sinkholes before September 1994, it was not until the
sinkhole of September 1994 that plaintiff discovered the damage to
her home.
Moreover, plaintiff may bring an action in negligence even if
the damage to her house occurred over the course of the sinkhole
activity. In
Hooper, the plaintiffs sued the defendant
municipality for damage to their property due to erosion of the
drainage ditch running alongside their property. The plaintiffs
asserted that the erosion was due to the amount and velocity of
water running through the ditch from the defendant's drainage
system. This Court affirmed the trial court's award of damages for
the erosion occurring over the previous three years. It follows
that, even if plaintiff's damage has been caused by the continual
and ongoing occurrence of sinkholes, plaintiff may still recover
under negligence for all of her damages within the appropriate
statute of limitations.
We dismiss defendant's assertion that, because the sinkholes
occurred within defendant's easement, defendant cannot be liable
for any damage caused by them. Putting aside the question of
whether defendant could be liable for damage occurring within its
own easement, we note that plaintiff alleges damage to her house,
most of which extends far beyond the easement. We see little
distinction between damage due to flood waters rising out of adefendant's easement and damage due to earth sinking within a
defendant's easement.
We therefore find no error in the trial court's denial of
defendant's motion for involuntary dismissal. We hold that
plaintiff has legitimately characterized her claim as an action in
negligence, and that N.C.G.S. § 40A-51 does not preempt that
negligence action.
II.
[3] Defendant next asserts that plaintiff failed to meet her
burden of proof that defendant willfully or wantonly injured
plaintiff. Defendant argues that because defendant owns the pipe
and the easement in which it is located and because the addition to
plaintiff's house is built over the pipe thereby encroaching on
defendant's easement, plaintiff should be considered and treated as
a trespasser on defendant's easement. Defendant would owe a
trespasser only a duty not to willfully or wantonly injure the
trespasser.
See Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d
882, 892 (1998).
The extent of defendant's easement, however, is unknown.
Although plaintiff and defendant stipulated before trial that
defendant "owns the [p]ipe and the easement in which the [p]ipe is
located[,]" no written record of the easement exists. The trial
court found that the west wall of plaintiff's addition was located
over the pipe, but it did not actually find that plaintiff had
encroached upon defendant's easement.
Nonetheless, we need not determine whether plaintiff's
addition was built within defendant's easement. We hold thatdefendant's issuance to plaintiff of a building permit to construct
the addition where it now stands transforms plaintiff, at the very
least, into a licensee. It follows that, regardless of the
relation between plaintiff's addition and defendant's easement,
defendant owes plaintiff the standard duty of reasonable care.
See
Nelson at 632, 507 S.E.2d at 892.
III.
[4] Defendant further argues that plaintiff has failed to
demonstrate negligence on the part of defendant. Defendant asserts
that, because oakum deterioration is a natural and unpredictable
process which cannot be prevented, defendant could not have
foreseen the sinkhole which damaged plaintiff's house and could not
have done anything to prevent it anyway.
To demonstrate negligence, plaintiff must show the trial court
that defendant owed plaintiff a duty of care; that defendant
breached its duty; that the breach was the actual and proximate
cause of plaintiff's injury; and that plaintiff suffered damage due
to the injury.
See Pulliam,
supra, at 754, 407 S.E.2d at 570.
"The general rule is that a municipality
becomes responsible for maintenance, and
liable for injuries resulting from a want of
due care in respect to upkeep, of drains and
culverts constructed by third persons when,
and only when, they are adopted as a part of
its drainage system, or the municipality
assumes control and management thereof."
Hotels,
supra, at 536, 151 S.E.2d at 37 (citation omitted). In the
present case, plaintiff and defendant agree that the storm drain
pipe is a part of defendant's drainage system.
Defendant contends that, insofar as it had a duty to maintainthe storm drain pipe beneath plaintiff's property, it
did not
breach its duty. Defendant first asserts that the September 1994
sinkhole that damaged plaintiff's house was unforeseeable, and
therefore that defendant cannot be held liable for the damage.
Plaintiff counters that, even if the occurrence of the September
1994 sinkhole itself could not be predicted, by September 1994
defendant could foresee further sinkholes appearing on plaintiff's
property which might cause damage to plaintiff's house. In fact,
the 1992 report from defendant's director of its Public Works
Department to defendant's city manager indicates that defendant did
foresee just such damage.
Defendant argues that under
Mosseller v. Asheville, 267 N.C.
104, 147 S.E.2d 558 (1966), defendant cannot be held liable for
damages due to the pipe defect causing the September 1994 sinkhole
if it had notice only of other, prior defects or only of conditions
likely to produce the September 1994 defect.
See id. at 111, 147
S.E.2d at 563.
Mosseller, however, addresses injuries due to
street or sidewalk defects, for which the municipality may be held
liable only after having actual or constructive notice of the
defect.
See id. at 108, 147 S.E.2d at 561.
Mosseller explicitly
did not involve damage to another's property,
see id., and advance
notice has not been required to find negligence in the maintenance
of storm drain systems.
See,
e.g.,
Hotels (no allegation that
defendant municipality had notice of specific obstructions prior to
flooding). Moreover, insofar as the defect in the present case was
the failure of oakum seals throughout the storm drain pipe underplaintiff's property, defendant
had actual notice of the defective
pipe beginning with the first sinkhole in 1981.
Defendant next asserts that it did not breach its duty to
maintain the storm drain pipe because it had no way to prevent the
oakum seals from failing and no way to access the pipe beneath the
addition once the September 1994 sinkhole appeared. However, while
it may have been impossible to prevent individual seals from
failing, defendant could have prevented the damage to plaintiff's
house by removing and relocating the pipe. Defendant's director of
its Public Works Department recommended the allocation of funds for
such a relocation in 1992, and in June 1995 defendant actually
offered to perform such a relocation. The mere fact that such a
solution might be difficult or expensive does not relieve defendant
of its duty of due care in maintaining its storm drain pipe in such
a way as to prevent injury to plaintiff.
See,
e.g.,
Hooper,
supra
(the defendant municipality's rejection of various methods to
prevent erosion did not eliminate the municipality's liability for
erosion).
Defendant does not challenge the trial court's conclusion that
the failure of the oakum seals and their associated sinkholes
caused plaintiff's damage, nor does defendant challenge the trial
court's damage award to plaintiff. We hold that plaintiff has
adequately demonstrated that defendant owed plaintiff a duty, and
that defendant breached that duty. We therefore find no error in
the trial court's holding that defendant was negligent.
IV.
[5] Finally, defendant asserts that plaintiff's negligenceclaim is barred by the three-year statute of limitations
in N.C.
Gen. Stat. § 1-52. In particular, defendant cites N.C.G.S. § 1-
52(3) (1999), which provides a statute of limitations of three
years "[f]or trespass upon real property. When the trespass is a
continuing one, the action shall be commenced within three years
from the original trespass, and not thereafter."
See also,
N.C.G.S. § 1-52(5) (applying the three-year statute of limitations
to other tort actions). Defendant argues that, because the first
sinkhole appeared in 1981, the statute of limitations on
plaintiff's claim began running then.
Defendant cites
Robertson v. City of High Point, 129 N.C. App.
88, 497 S.E.2d 300,
disc. review denied, 348 N.C. 500, 510 S.E.2d
654 (1998) in support of its contention that the statute of
limitations on plaintiff's claim has expired. In
Robertson, the
plaintiffs brought suit against the defendant municipality for its
creation and use of a nearby landfill for more than three years.
The plaintiffs' complaint included claims of trespass, nuisance,
and negligence. This Court affirmed the trial court's dismissal of
those claims, holding that the plaintiffs' cause of action had
accrued at the creation of the landfill more than three years
before the plaintiffs filed their complaint.
Plaintiff counters that her action for recovery of damage to
her house did not accrue until the damage was discovered. N.C.G.S.
§ 1-52(16) (1999) provides a three-year statute of limitations for
"physical damage to claimant's property, the cause of action . . .
shall not accrue until . . . physical damage to his propertybecomes apparent or ought reasonably to have become apparent to the
claimant[.]" Plaintiff discovered the damage to her house in
September 1994, and filed her complaint in February 1997, less than
three years later.
We hold that, because plaintiff is seeking to recover for
damage to her house and not for damage to her property in general,
the statute of limitations on her action began with her discovery
of the damage to her house. Unlike
Robertson, plaintiff in the
present case filed her complaint within three years of discovering
the damage alleged. Defendants make no allegation that the damage
to plaintiff's home, discovered in September 1994, ought reasonably
to have been apparent at the time the first sinkhole occurred in
1981, or at any other time before the damage was in fact
discovered.
Plaintiff filed her action within the appropriate statute of
limitations, plaintiff adequately demonstrated defendant's
negligence to the trial court, and plaintiff's negligence claim is
not preempted by N.C.G.S. § 40A-51. We therefore affirm the trial
court's judgment in favor of plaintiff.
Affirmed.
Judges WYNN and JOHN concur.
*** Converted from WordPerfect ***