Shipley v. City of Spearfish , 89 S.D. 559 ( 1975 )

WINANS, Justice.

On December 18, 1972, Darrell and Katherine Shipley, husband and wife, were the owners of a single story residence with a finished basement situated in the City of Spearfish. On that day the sewer line to which their home was connected backed up through the floor drains in the washroom and in the shower, both in the basement, and throughout the basement area deposited raw sewage which was reported to be ankle high. The Shipleys’ troubles appear to have begun on the 15th of December when they noticed slower-than-usual draining in their plumbing but it was not until the morning of the 18th that they decided to take action. After they were unable to obtain the services of private plumbers and after they had determined that the cause of their mounting difficulties might be in the main sewer line they contacted the City of Spearfish. The City responded promptly and shortly after one that afternoon it had a crew on the job. It appears that up to that time there was no sewage backup in the basement. Shortly after their arrival the workers from the city inserted a rodder into a nearby manhole in the main sewer and soon removed the debris which caused the blockage. It consisted of a stick about an inch and a half or two inches by fourteen or eighteen inches, some plastic-lined disposable diapers, some rags and other unidentified objects. Mr. Shipley was not at home at this time, but Mrs. Shipley was. During the rodding operation she smelled the strong odor of sewer gas and quickly removed the children who were playing in the house. She returned within minutes and was confronted with the sewage seeping into her finished basement whereupon she told the work crew what was happening and asked them to come down and inspect it. Her testimony is that they did not respond to her entreaty but kept on working at the manhole and only once approached the house. A workman stood outside the door and called through it to Mrs. Shipley who was hard at work with a neighbor cleaning up the raw sewage in the basement. The workman asked if the sewer had stopped backing up and when Mrs. Shipley said that it had the workman went away. It took many days and much hard work to clean the basement and to repair the damage. The Shipleys appeared at a city council meeting and asked that the City- of Spearfish reimburse them for their loss. When they refused the Shipleys brought an action in which they alleged, according to their amended complaint, that the City was “careless and negligent in the operation of its sewer system,” that the City had created a private nuisance and that “the sewer material that backed up in the plaintiffs (sic) home on December 18, 1972, was through the sewer system which is wholly controlled by the defendant and that the occurrence pled would-not have occurred other than in the absence of ordinary care on the part of the defendant, wherefore plaintiffs were damaged as heretofore shown, it being the intent of the pleader in this count to invoked (sic) the doctrine of res ipsa loquitur.”

A jury trial was held and on July 30, 1974, a verdict for the Plaintiffs was returned in the amount of $4627.68. From that verdict the City of Spearfish appeals charging that the trial court erred in allowing the pleading of and giving the instruction on the res ipsa loquitur doctrine, in refüsing Defendant’s offer of proof regarding an independent contractor’s work in the area, in giving certain other instructions and in denying a defense motion to strike the request for damages for private nuisance. Because we find that the trial court, was in error in giving the res ipsa instruction to the jury and the case is therefore reversed and remanded, we need discuss only that issue.

This Court has held that the res ipsa loquitur doctrine is primarily a rule of Evidence. Roster v. Inter-State Power Co., 1931, 58 S.D. 521, 237 N.W. 738. It is not an issue to be pleaded in the complaint nor need it be “noticed” by specific designation to the adverse party at pretrial or at trial for it is neither a cause of action nor a ground for recovery. Fassbinder v. Pennsylvania Railroad Company, 1963, 3 Cir., 322 F.2d 859. It should also be noted that the res ipsa loquitur doctrine, since it is a rule of necessity, ought to be invoked sparingly, and only when the facts and demands of justice make its application essential. Barger v. Chelpon, 1932, 60 S.D. 66, 243 N.W. 97. In this state the essential elements which must be present in order to invoke res ipsa loquitur are set out in Kramer v. Sioux Transit, Inc., 1970, 85 S.D. 232, 180 N.W.2d 468. There it is stated that

“the instrumentality which caused an injury must have been under the full management and control of the defendant or his servants; that the accident was such that according to common knowledge and experience does not happen if those havirig management or control had not been negligent; and that plaintiff’s injury must have resulted from the accident.”

In giving the Instruction #13 to the jury on res ipsa the trial court was allowing the jury to decide whether or not “the sewer by which damage to the Plaintiff was proximately caused, was in the possession or under the exclusive control of the Defendant at all times material to this action.” In view of the case law on the subject and the testimony in the record an affirmative finding on the question would have been entirely unsupported. The trial record is clear that Defendant’s sewer system is not under its exclusive control. It- is easily accessible. Any homeowner whose own plumbing feeds into it thereby has access to it. A passerby can gain' access through unsecured manholes in the public streets and on Halloween and at other times, the record shows, manhole covers have been removed and the manholes left open. Freitag v. City of Montello, 1967, 36 Wis.2d 409, 153 N.W.2d 505, was an action for damage due to a backup of sewage into a basement. There the Wisconsin Supreme Court held that the obstructed sewer main was not an instrument entirely within the control of the city with respect to the materials deposited in it. The Court said:

“It is one thing for a municipality to be able to control what is dumped into a sewer as industrial waste by a particular industry, when such waste has characteristics peculiar to itself which can be identified if found in the flow of sewer mains. It is another thing for a municipality to be able to control the deposit of plastic bags, toys, or fish heads, which, when found in a sewer main, cannot be traced back to the depositor. We deem the right of control in the latter instance, because of its difficulty of enforcement, to be more theoretical than actual. The right to control is of no consequence, unless it can be effectively exercised.”

Long v. Spanish Lake Service, Inc., 1974, Mo.App., 507 S.W.2d 935, is another case dealing with a sewer backup into a residence. There the plaintiff argued res ipsa loquitur and on appeal the Missouri Court of Appeals found it inapposite for two reasons: (1) “By its very nature defendant’s sewer was available to all persons .with access to the line — for their proper or improper use — without defendant’s prior control,” and (2) “[njeither common knowledge nor experience leads us to conclude plaintiffs’ sewer would not have overflowed but for defendant’s negligence in some form.” For those same two reasons we find that the doctrine of res ipsa loquitur was not appropriate in this case and that the giving of Instruction § 13 to the jury by the trial judge was prejudicial error. The Plaintiffs have shown neither the requisite control nor the probability essential to a res ipsa case and the Defendant has consequently been subjected to an unwarranted burden.

Reversed.

DUNN, C. J., and DOYLE, J., concur. WOLLMAN and COLER, JJ., dissent.