Todd Thoeming, Christine Thoeming, James Chapman, and Brittney Chapman v. the City of Davenport, Iowa, William E. Gluba, and Michael Clarke

IN THE COURT OF APPEALS OF IOWA
No. 15-1113
Filed June 15, 2016
TODD THOEMING, CHRISTINE THOEMING,
JAMES CHAPMAN, and BRITTNEY CHAPMAN,
Plaintiff-Appellants,
vs.
THE CITY OF DAVENPORT, IOWA, WILLIAM
E. GLUBA, and MICHAEL CLARKE,
Defendant-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson
(partial summary judgment) and Mark J. Smith (trial), Judges.
Homeowners appeal a partial summary judgment ruling dismissing their
nuisance claim. AFFIRMED.
John T. Flynn of Brubaker, Flynn & Darland, P.C., Davenport, and Michael
J. Meloy of Meloy Law Office, Bettendorf, for appellant.
Jason J. O'Rourke and James W. White of Lane & Waterman, L.L.P.,
Davenport, for appellee.
Heard by Tabor, P.J., and Mullins and McDonald, JJ.
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TABOR, Presiding Judge.
We are asked to decide if the district court properly rejected a nuisance
claim brought by the homeowners against the city of Davenport after its sanitary
sewer system twice backed up into their basements following heavy rains in the
spring of 2013. While we disagree with the legal analysis employed by the
district court in summarily dismissing the homeowners’ nuisance theory, we
agree the claim could not be sustained in the circumstances of this case and
affirm.
I. Facts and Prior Proceedings
Raw sewage flowed from the city’s sanitary sewer lines into the
basements of the homeowners following downpours on April 17 and 18, 2013,
and again on May 26 and 27, 2013. The homeowners suffered damages to
drywall, paneling, carpeting, furniture, and appliances during these two incidents.
The sewage, which contained human waste, was “offensive to the senses” and
constituted a health hazard. The homeowners sued the city in August 2013,
asserting theories of negligence, nuisance, and strict liability in count I.1
Regarding their nuisance theory, the homeowners alleged: “The present
condition of [the city’s] sanitary sewer system and storm water system constitutes
a nuisance” under the Iowa Code.
In response to the city’s motion for partial summary judgment, the district
court dismissed the homeowners’ claim based on strict liability. The city filed
another motion for partial summary judgment in January 2015, alleging Iowa law
1
In March 2014, the homeowners voluntarily dismissed their count II claim for breach of
contract.
3
does not recognize a nuisance cause of action against a municipality “with regard
to sewer backup through the sewer lines of the city into a private home.” The
homeowners resisted, claiming under both statutory and common law theories of
nuisance, the city was liable because it “operated the system in a manner that
created a nuisance.” The homeowners’ factual statement in support asserted
city officials had publicly stated the city “has had sewer problems due to heavy
rainfalls for many years.”
In a March 16, 2015 ruling granting the city partial summary judgment on
the nuisance claim, the district court recognized that generally, a nuisance theory
“may lie” against the city. See Sparks v. City of Pella, 137 N.W.2d 909, 911
(Iowa 1965) (“The maintenance of a nuisance is not a governmental function.”);
Ryan v. City of Emmetsburg, 4 N.W.2d 435, 442 (Iowa 1942) (stating a city
“[o]bviously” is “not empowered to operate such a system in a manner which
causes a nuisance”). But the district court relied on Scholbrock v. City of New
Hampton, 368 N.W.2d 195, 197 (Iowa 1985), to distinguish sewer back-up cases
from Iowa cases recognizing a nuisance involving open-air sewage lagoons,
such as Kriener v. Turkey Valley Community School District, 212 N.W.2d 526,
536 (Iowa 1973) (holding school’s maintenance of sewage lagoon constituted “a
substantial odor-related private continuing nuisance”) and Hines v City of
Nevada, 130 N.W. 181, 184 (Iowa 1911) (holding city discharging its sewage “in
the immediate vicinity of the plaintiff’s home” created a nuisance). The district
court reasoned “a cause of action for nuisance in a sewer back-up case would
require the city to serve as an insurer in providing sanitary sewer service.
Rather, Iowa courts have held that municipalities are only liable for negligence.”
4
In April 2015, the district court held a jury trial on the homeowners’
negligence claim. Despite the court’s pretrial rulings, the homeowners submitted
three proposed jury instructions on nuisance to the court.2 The court declined to
instruct on nuisance and instructed on negligence. The jury found the city was
not negligent in its maintenance and operation of the sewer system. In their
motion for new trial, the homeowners renewed their argument the court should
have submitted their nuisance claim to the jury. The court denied the motion,
again relying on Scholbrock. The homeowners now appeal, challenging the
district court’s summary rejection of their nuisance claim.
II. Scope and Standard of Review
We review the grant of summary judgment for errors at law. Baker v. City
of Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997). Pure questions of law are ripe
2
Plaintiff’s proposed jury instruction E stated:
The plaintiff must prove all of the following propositions to prove
nuisance:
1. The [city] created or allowed a nuisance to the plaintiff’s
properties by maintaining and operating the sanitary sewer system of the
City of Davenport serving the plaintiffs’ properties, which was not in
working order and which allowed raw sewage to back up from the sewer
line serving the plaintiffs’ properties into the basements of their houses.
2. The [city’s] nuisance was a cause of damage to the plaintiff.
3. The amount of damage.
If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages.
Plaintiff’s proposed jury instruction F stated:
A nuisance is whatever is injurious to one’s health, is indecent, or
is unreasonably offensive to the senses or is an obstruction to the free
use of property that interferes unreasonably with the comfortable
enjoyment of one’s life or property. If you find that [the city] created a
nuisance on plaintiffs’ properties then you must award plaintiffs monetary
damages.
Plaintiff’s proposed jury instruction G stated:
If you find that the [city’s] sanitary sewer line serving the plaintiffs’
residences created a nuisance, then you must find that the [city] is liable
for the plaintiffs’ damages caused by the backup of raw sewage into the
plaintiffs’ basements.
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for summary disposition. Bob McKiness Excavating & Grading, Inc. v. Morton
Bldgs., Inc., 507 N.W.2d 405, 408 (Iowa 1993). Summary judgment is also
proper when the record reveals no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The
non-moving parties, here the homeowners, are entitled to have the evidence
viewed in the light most favorable to their position. See Luana Sav. Bank v. Pro-
Build Holdings, Inc., 856 N.W.2d 892, 895 (Iowa 2014).
“[W]e are obliged to affirm an appeal where any proper basis appears in
the record for a trial court’s judgment, even though it is not one upon which the
court based its holding.” Grefe & Sidney v. Watters, 525 N.W.2d 821, 826 (Iowa
1994); see Barry v. Milbank Mut. Ins. Co., 188 N.W.2d 326, 330-31 (Iowa 1971)
(upholding district court’s conclusion where it was right, “even though for a wrong
reason”); see also Gen. Motors Acceptance Corp. v. Keil, 176 N.W.2d 837, 842
(Iowa 1970) (“Many a learned court is occasionally right for the wrong reason
. . . .”).
III. Analysis
After receiving an unfavorable verdict on their negligence claim, the
homeowners seek to resurrect their nuisance claim. On appeal, both parties
point to Scholbrock, a case involving sewage backing up into the homeowners’
basements. 368 N.W.2d at 196. When the district court in Scholbrock dismissed
the homeowners’ tort claims for failure to give the appropriate notice, the
homeowners amended their petition to allege breach of an implied contract. Id.
As acknowledged by the city’s attorney during oral argument, a nuisance claim
was not before the court in Scholbrock. See id. at 198. Accordingly, Scholbrock
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did not abolish nuisance as a cause of action in cases involving sewer backups.
See id. (holding plaintiffs’ damages caused by failure of the sewage system “may
be premised on a tort theory but not on a theory of implied contract”).
More than a century of Iowa precedent accedes that residents may seek
redress for harm caused by city sewer systems under a nuisance theory. See
Hines, 130 N.W. at 183-84 (upholding jury verdict finding city liable for creating a
nuisance by constructing a sewer line ending near the plaintiff’s home); see, e.g.,
Hartzler v. Town of Kalona, 218 N.W.2d 608, 609-10 (Iowa 1974) (holding odors
from sewer lagoon could be nuisance in fact); Newton v. City of Grundy Ctr., 70
N.W.2d 162, 165 (Iowa 1955) (finding district court erred in dismissing the
landowner’s nuisance complaint against city for emitting offensive materials into
his creek).
A nuisance is defined by statute to include, in part, “[w]hatever is injurious
to health, indecent, or unreasonably offensive to the senses, or an obstruction to
the free use of property, so as essentially to interfere unreasonably with the
comfortable enjoyment of life or property.” Iowa Code § 657.1(1) (2013). Our
code lists certain conditions and conduct deemed to be a nuisance, including
“[t]he causing or suffering any offal, filth, or noisome substance to be collected or
to remain in any place to the prejudice of others.” Id. § 657.2(2). These statutes
do not modify the common law, they expand upon it. See Freeman v. Grain
Processing Corp., 848 N.W.2d 58, 67 (Iowa 2014).
In analyzing the homeowners’ position here, it is important to recognize
negligence and nuisance are distinct theories. See Dalarna Farms v. Access
Energy Coop., 792 N.W.2d 656, 659 (Iowa 2010) (stating “nuisance lawsuits in
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Iowa need not necessarily be based on negligent conduct”); Ryan, 4 N.W.2d at
440 (stating negligence “was not essential” to nuisance claim). Specifically, “[a]
nuisance may be created as a result of negligence but proof of negligence is not
required in all actions for nuisance.” Sparks, 137 N.W.2d at 911. But telling
these torts apart can be tricky—“[i]t is often difficult to distinguish between
negligence and nuisance.” Hall v. Town of Keota, 79 N.W.2d 784, 790 (Iowa
1956). The supreme court explained the distinction in Bormann v. Board of
Supervisors, stating:
Negligence is a type of liability-forming conduct, for example, a
failure to act reasonably to prevent harm. In contrast, nuisance is a
liability-producing condition. Negligence may or may not
accompany a nuisance; negligence, however, is not an essential
element of nuisance. If the condition constituting the nuisance
exists, the person responsible for it is liable for resulting damages
to others even though the person acted reasonably to prevent or
minimize the deleterious effect of the nuisance.
584 N.W.2d 309, 315 (Iowa 1998) (emphasis added) (citations omitted); see
Ryan, 4 N.W.2d at 439 (stating nuisance is “a condition”); Bowman v. Humphrey,
109 N.W. 714, 715 (Iowa 1906) (stating nuisance is “a condition,” not an act or
failure to act on the party responsible for the condition). “In other words,
nuisance simply refers to the results; negligence might be the cause.” Martins v.
Interstate Power Co., 652 N.W.2d 657, 661 (Iowa 2002) (emphasis added).
To distinguish nuisance and negligence, we recognize that “to constitute a
nuisance, ‘there must be a degree of danger (likely to result in damage) inherent
in the thing itself,’” beyond the degree of danger “arising from mere failure to
exercise ordinary care.” Martins, 652 N.W.2d at 661 (citations omitted); see
Dalarna Farms, 792 N.W.2d at 659 (recognizing “inherent danger” distinguishes
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nuisance and negligence); Guzman v. Des Moines Hotel Partners, Ltd. P’ship,
489 N.W.2d 7, 11 (Iowa 1992) (stating “inherent danger” for nuisance claim was
not met where alleged failure to maintain lawful traffic post in a safe condition
“was no more than negligence; it was not a nuisance” and therefore, court erred
in submitting the issue of nuisance as a separate theory); Sparks, 137 N.W.2d at
911 (discussing “inherent danger” in a nuisance action); Pietz v. City of
Oskaloosa, 92 N.W.2d 577, 579-80 (Iowa 1958) (discussing “inherent danger” in
a nuisance context); Hall, 79 N.W.2d at 790 (setting out “inherent danger”
distinction and ruling negligence was a proper theory for recovery but “[f]ailure to
maintain [the traffic post] in a safe condition, if there was such failure, was no
more than negligence; it was not a nuisance” and the court properly sustained
alleged failure to plead a nuisance).
Here, the homeowners allege the private nuisance3 is “the present
condition of the city’s sanitary sewer system and storm water system.” More
broadly, they argue their evidence would have shown the city’s “operation of its
sanitary sewer system by leaving sanitary sewer pipe in the ground beyond the
useful life expectancy of the sewer pipe constitutes a permanent nuisance to
[their] property.” When asked at oral argument what constituted the nuisance in
this case, counsel for the homeowners identified “the raw sewage backup” as the
offending condition.
3
Iowa case law distinguishes public nuisances from private nuisances. See Guzman,
489 N.W.2d at 10. A public nuisance is “a species of catchall criminal offenses”
“interfering with the rights of a community at large.” Id. A private nuisance is a civil
wrong based on a disturbance of property rights. Id.
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Even if the district court mistakenly ruled nuisance was not a viable legal
theory in sewer backup cases after Scholbrock, the question remains whether
summary judgment on the nuisance claim alleged by these homeowners was
appropriate if their pleadings and resistance did not show a genuine issue of
material fact and the city, as the moving party, was entitled to judgment as a
matter of law. Whether a nuisance has been created is ordinarily a fact question.
Martins, 652 N.W.2d at 660. But we can resolve this matter on summary
judgment if the record reveals the only conflict concerns the legal consequences
of undisputed facts. See City of Fairfield v. Harper Drilling Co., 692 N.W.2d 681,
683 (Iowa 2005).
This court has entertained the possibility that homeowners could prove a
city created a nuisance in the context of three sewer backups into a basement.
See Selke v. City of Waterloo, No. 98-0889, 1999 WL 711442, at *1 (Iowa Ct.
App. July 23, 1999). The Selke homeowners’ negligence count was dismissed,
and the case proceeded to trial solely on a nuisance theory. Id. Similar to the
affidavits presented to the district court here, the Selke homeowners testified
“they believed the backups were caused by a lack of maintenance on the part of
the city,” and the jury returned a nuisance verdict in favor of the homeowners for
one backup. Id. at *2.
On appeal, we observed the homeowners offered no evidence “the
Waterloo sewer system was in and of itself inherently dangerous” and concluded
the homeowners had not met their “immense burden to prove the existence of
the sewer line was in and of itself a nuisance.” See id.; see also Pietz, 92
N.W.2d at 579-80 (discussing “inherent danger” and rejecting nuisance claim
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based on an unsafe tree that fell because “[t]here is nothing inherently dangerous
in a live tree standing in a park and, even assuming a failure upon the part of [the
city] in allowing this tree . . . the most one would have would be negligence and
not a nuisance”).
Similar to Selke, the factual circumstances of the sewer backups are
undisputed here; the only conflict is the legal consequence resulting from those
facts. In resisting the city’s motion for summary judgment on their nuisance
claim, the homeowners failed to point to any allegations the city’s sewer system
was “inherently dangerous” and also failed to provide affidavits or other evidence
raising a question of fact as to whether the city’s sewer system was “in and of
itself inherently dangerous.” See id. While we sympathize with the homeowners
who suffered damage to their property, a nuisance action requires an allegation
and proof of a degree of danger, likely to result in damage, surpassing the mere
failure to exercise ordinary care, and there is nothing in the record to create a
fact question on whether the city’s sewer system was “inherently dangerous” and
thus, a nuisance. See Sparks, 137 N.W.2d at 911.
AFFIRMED.