Mason v. City of Mt. Sterling
2003 Ky. LEXIS 234, 122 S.W.3d 500, 2003 WL 22415378 (2003)
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Rule of Law:
A municipality assumes a ministerial duty to maintain and repair a sewer system, even if partially private, if it structurally connects to and uses the private components for municipal purposes; a possessor of land may be liable under the attractive nuisance doctrine for a hidden artificial condition posing an unreasonable risk of harm to children; and a possessor acquiring land with an existing dangerous artificial condition may be liable if they knew or should have known of its danger and failed to make it safe after a reasonable opportunity.
Facts:
- On May 5, 1996, nine-year-old Jarrod Cortez (“J.C.”) Walker drowned in Mt. Sterling, Kentucky, during a rain storm.
- The drowning occurred on Glenn Potts’ property, which contained two apartment buildings and a shared parking lot, located near the intersection of Spring Street and Richmond Avenue.
- J.C. and a friend went to Potts’ property to observe floodwaters and "floating" cars, despite a Mt. Sterling Police Officer White telling J.C. to stay in the bed of a pick-up truck.
- J.C. later went to join other children sliding down a bank into pooled water at the back of the parking lot.
- As J.C. walked across the parking lot, he stepped over a submerged culvert entrance (headwall/storm drain) that was completely covered by opaque muddy water.
- A strong undertow pulled J.C. into the storm sewer system, through pipes on Potts’ property, the City’s culvert, and pipes on Danny and Debra Morton’s property.
- J.C.’s body was found after midnight in a ball field 200 yards downstream from the system’s discharge point into Hinkston Creek.
- The storm sewer system was constructed in stages: the City built a fieldstone culvert under Richmond Avenue in the 1930s or 40s; adjacent landowners then built connecting drainage pipes; and later, the City built three catch basins at the Richmond/Spring intersection which connected into the privately built holding chamber on the west side of Richmond.
Procedural Posture:
- Jarrod Cortez Walker's estate filed a wrongful death action against the City of Mount Sterling, Glenn Potts, and Danny and Debra Morton in a trial court.
- The trial court granted summary judgment in favor of all four defendants (Appellees).
- The Court of Appeals affirmed the trial court's grant of summary judgment for all Appellees.
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Issue:
1. Does a municipality have a duty to maintain and repair privately constructed components of a sewer system if it structurally connects to and uses those components for municipal purposes? 2. Does the attractive nuisance doctrine apply to a submerged, non-visible sewer headwall on private property that creates an unreasonable risk of harm to children, even if the danger is associated with water? 3. Can a possessor of land be held liable for physical harm caused by an existing artificial condition on the land if they knew or should have known of its dangerous nature and failed to make it safe?
Opinions:
Majority - Justice Johnstone
1. Yes, a municipality acquires a duty to properly maintain and repair a sewer system as a whole if it structurally ties its public system into privately built components, thereby adopting the private system for municipal purposes. While the decision to establish a sewer is a legislative function with immunity, the maintenance and repair of an established system is a ministerial duty. This duty extends to any sewer system the municipality has "taken possession of and used it for municipal purposes," regardless of who originally constructed it. The City, by building catch basins that drained public floodwater into privately built holding chambers, adopted the privately built system as part of the public sewer system. This creates a duty to maintain and repair it in a non-negligent manner, and whether this duty was met is a question for the jury. 2. Yes, the attractive nuisance doctrine applies where genuine issues of fact exist as to whether the hidden sewer headwall constituted a concealed danger and/or involved an unreasonable risk of death or serious bodily harm to children. Kentucky applies the Restatement (Second) of Torts, § 339. The headwall and its improper design constituted an artificial condition. Evidence, including children living on or near Potts’ property, suggested he knew or should have known children were likely to trespass. The court clarified that the attractive nuisance doctrine applies to artificial bodies of water if they contain a hidden or latent danger or involve an unreasonable risk of death or serious bodily harm, distinguishing them from "confined waters" where the risk is open and obvious. Here, the headwall was completely submerged and invisible, presenting a concealed danger. Potts' argument that he did not build or maintain the headwall is irrelevant, as liability depends on his knowledge or reason to know of its existence and danger to children. Whether Potts had sufficient notice is a question of fact for the jury. 3. Yes, a possessor of land can be subject to liability for physical harm caused by an existing artificial condition on the land if they knew or should have known of the condition and failed to make it safe after a reasonable opportunity. Under Restatement (Second) of Torts, § 366, one taking possession of land with an existing unreasonably dangerous artificial condition is liable for harm after knowing or having reason to know of the condition, that it exists without consent of those affected, and failing to make it safe. This requires reasonable inspection and inquiry, and long-term occupation can create a presumption of knowledge. Danny Morton’s extensive history with the property (17 years nearby, purchased twice) means he could be presumed to know of flooding problems, and he admitted to witnessing regular flooding. Whether the Mortons failed to make the drainage system safe is a fact question for the jury. The attractive nuisance doctrine does not apply to the Mortons as they did not create or maintain the artificial condition on Potts’ property.
Concurring-in-part-and-dissenting-in-part - Justice Cooper
Concurs with the majority's decision to vacate summary judgment for Potts, but only because there was evidence that the 30-inch pipe across Potts' property was clogged, impeding runoff and partially causing the flooding. However, he disagrees that the mere existence of this type of drainage system is an attractive nuisance, especially given that a police officer was present and had warned J.C. not to enter the water. Concurs with the majority's decision to vacate summary judgment for Morton because there was evidence that the 42-inch pipe across Morton’s property was too narrow, contributing to the flooding of Potts’ property. Dissents from the majority's decision regarding the City of Mt. Sterling, believing the trial judge correctly granted summary judgment. He argues the City did not attach its drainage system to the private systems; instead, private systems were attached to the existing city culvert. There was no evidence the City was involved in the later construction of private systems or the design of the chambers, nor that chambers were within city right-of-way. The crushed city-built catch basin pipe provided a de minimus amount of water, and connecting catch basins to a private system does not convert it into a public one for liability purposes. Finally, the decision not to construct an adequate drainage system is a discretionary act, not a ministerial one, and thus immune from liability.
Concurring-in-part-and-dissenting-in-part - Justice Keller
Concurs with Justice Cooper's analysis of Potts’ liability, agreeing that summary judgment for Potts should be vacated. Dissents from the remainder of the majority opinion, affirming summary judgment for the City and the Mortons. Agrees fully with Justice Cooper’s analysis regarding the City’s liability. Dissents as to the Mortons, arguing that Kentucky's modified civil law rule for surface water means a lower landowner is not bound to accept unreasonably increased volume or accelerated flow from upper owners' subsequent improvements. Therefore, the Mortons had no duty to retrofit their drainage system if it became inadequate due to upstream developments. He also argues that there was no evidence or reasonable inference that the Mortons were aware their 42-inch pipe caused flooding at Potts’ headwall; Danny Morton's knowledge of flooding referred to Hinkston Creek, not Potts’ parking lot. He cites the expert testimony that the average citizen does not understand stormwater drainage dynamics. Furthermore, Restatement (Second) of Torts § 366, comment e, suggests that a landowner is only liable for an existing nuisance if they receive notice or a request to abate it, which was not present here, implying consent otherwise.
Analysis:
This case significantly clarifies municipal and private landowner liability in Kentucky, particularly concerning drainage systems and premises liability for children. For municipalities, it expands the scope of ministerial duty, making it harder to escape liability for inadequate infrastructure by distinguishing between public and private components if the city has integrated and used them. For private landowners, it reinforces the application of the attractive nuisance doctrine to artificial water conditions, emphasizing the 'hidden or latent danger' aspect over the mere presence of water, and clarifies the application of Restatement § 366 regarding liability for pre-existing dangerous conditions. The decision places a greater burden on property possessors, especially those with long tenure, to inspect and address known or knowable dangers on their land. The split opinions highlight the complexities and ongoing debates surrounding the precise boundaries of these duties, particularly for interconnected, partially private infrastructure and the 'reason to know' standard for landowners.
