Opinion
No. WD 56051
Date: August 31, 1999
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, HONORABLE JACK E. GANT, JUDGE.
Thomas F. Gordon, for Appellant. Jimmie D. James, for Respondent.
Before Howard, P.J., Ulrich, J. and Smith, J.
The Little Blue Valley Sewer District (Sewer District) appeals the judgment of the trial court awarding damages to Robert L. Byrom and several other residents of a nearby community (Residents) in their suit for nuisance and inverse condemnation. The Sewer District claims that the Residents' suit was barred by the doctrine of sovereign immunity. It also claims that the trial court erred in computing damages. The judgment of the trial court is reversed, and the case is remanded with directions.
Because the sovereign immunity issue is dispositive, the Sewer District's second point on appeal is not addressed.
The Little Blue Valley Sewer District, a political subdivision of the State of Missouri, is a public sewer district created, existing, and operating under the provisions of Chapter 204 of the Revised Statutes of Missouri. The Sewer District operates a wastewater treatment plant in Jackson County approximately two miles from the community of Atherton, Missouri.
Residents are twenty-two individuals comprising six families who reside or formerly resided in Atherton. They originally filed this action in three counts under theories of nuisance, inverse condemnation-partial taking, and inverse condemnation. Residents claimed in their petition for damages that the treatment plant was insufficient to manage and treat the volume of raw sewage received from member communities because the treatment basins and other parts of the plant were defectively constructed. Residents contended that as a result of the defective construction, the treatment plant emitted excessive noises and foul and noxious fumes and odors containing toxic chemicals into the air and raw sewage onto the land of nearby residents and into the Missouri River. They claimed that the condition of the treatment plant caused them to suffer nausea, vomiting, and loss of sleep and appetite, thereby interrupting the normal use and enjoyment of their property, and caused a diminution in value of their property.
Prior to trial, Residents withdrew from the case the issue of inverse condemnation and the diminution of the value of their property. At the close of their case, Residents formally dismissed the inverse condemnation counts of their petition and moved to amend their pleadings on the nuisance count to conform to the evidence. Following trial, the court entered judgment in favor of Residents. It concluded that the treatment plant constituted a dangerous condition under section 536.600.1(2), RSMo 1994, and, therefore, sovereign immunity was waived. The court also made a somewhat inconsistent conclusion that the doctrine of sovereign immunity was inapplicable in this case because Residents' claims were brought under the theory of inverse condemnation. The court then awarded all but seven Residents monetary damages on a per diem basis for loss of use and enjoyment of their property and for physical discomforts suffered as a result of exposure to offensive odors from the treatment plant. This appeal followed.
On appeal, the Sewer District claims that the trial court erred in finding that it was not protected from liability for Residents' nuisance claims by the doctrine of sovereign immunity. It contends that Residents failed to establish that their injuries were caused by a dangerous condition of its property. Residents, on the other hand, argue that their nuisance claims were, in effect, inverse condemnation claims, and, therefore, the doctrine of sovereign immunity was inapplicable in this case.
In a court-tried case, the judgment of the trial court is affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo.banc 1976).
"Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his property." Green Acres Land Cattle Co., Inc. v. State , 766 S.W.2d 649, 651-652 (Mo.App.W.D. 1988) (quoting Frank v. Environmental Sanitation Management, Inc. , 687 S.W.2d 876, 880 (Mo.banc 1985)). An action for private nuisance rests on tort liability. Vermillion v. Pioneer Gun Club , 918 S.W.2d 827, 831 (Mo.App.W.D. 1996). Whether a nuisance is permanent or temporary generally depends on the source of the injury, rather than the injury itself. Id. The measure of damages is also determined by whether a nuisance is permanent or temporary. Fletcher v. City of Independence , 708 S.W.2d 158, 178 (Mo.App.W.D. 1986). Whether a nuisance is permanent or temporary is a question of law and not of fact. Vermillion , 918 S.W.2d at 831 . A nuisance is permanent when the injury is fixed and affects the whole value of the estate. Fletcher , 708 S.W.2d at 178 . Damages caused by a permanent nuisance are measured by the difference in market value of the property immediately before and after injury. Id. A nuisance is temporary if abatement is reasonably and practicably possible. Id. In a temporary nuisance case, damages are measured by the reduction in the rental value of the property during the duration of the nuisance. Vermillion , 918 S.W.2d at 831-832; Fletcher , 708 S.W.2d at 178 . Additionally, other incidents of damage such as loss of comfort and health are included in the measure of damages caused by a temporary nuisance. Vermillion , 918 S.W.2d at 832; Fletcher , 708 S.W.2d at 178 .
A plaintiff who occupies a home is not limited to the recovery of the diminished rental value of it, but may be compensated for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment and occupancy of his home, as well as for any actual injury to his health or property caused by the nuisance.
Schmidt v. Paul , 554 S.W.2d 496, 499 (Mo.App. 1977) (quoting McCracken v. Swift Co. , 265 S.W. 91 (Mo. 1924)).
In a nuisance claim against a public entity, the character of a nuisance as permanent or temporary also determines the proper remedy and applicability of the sovereign immunity doctrine. In the case of a permanent nuisance operated by an entity holding the power of eminent domain, the proper remedy is an action in inverse condemnation. Heins Implement Co. v. Missouri Highway Transp. Comm'n , 859 S.W.2d 681, 693 (Mo.banc 1993); Owen v. City of Springfield , 741 S.W.2d 16, 18 (Mo.banc 1987), cert. denied , 486 U.S. 1043 (1988).
Where the nuisance is caused by a municipality in the exercise of a governmental function and is nontortious, the same is not subject to abatement and the municipality is considered to have appropriated the permanent right, which is in the nature of an easement, to invade landowners' property.
Owen , 741 S.W.2d at 18 . In such a case, the landowner may collect all his damages at once, the measure thereof being the diminution in value of his property by reason of the appropriation. Id. Conversely, the doctrine of sovereign immunity will apply to protect a state entity from an action for temporary nuisance seeking damages for loss of comfort and health. Page v. Metropolitan St. Louis Sewer Dist. , 377 S.W.2d 348, 353 (Mo. 1964); Verda v. Missouri Highway and Transp. Comm'n , 715 S.W.2d 18 (Mo.App.E.D. 1986); Gamache v. Missouri Highway and Transp. Comm'n , 712 S.W.2d 734, 736 (Mo.App.W.D. 1986). Where a plaintiff's temporary nuisance claim is one solely of tort liability for consequential damages, sovereign immunity applies to protect the state entity from liability for the nuisance claim. Page , 377 S.W.2d at 353 (the Supreme Court recommended an inverse condemnation action where property was effectively taken).
In this case, Residents initially filed their cause of action against Sewer District under nuisance and inverse condemnation theories. The nuisance claim, Count I, sought damages for physical discomforts they suffered that interrupted the normal use and enjoyment of their property. The inverse condemnation claims, Counts II and III, sought damages for the diminution in the value of their property. Prior to trial and at the close of their case, Residents withdrew and dismissed their inverse condemnation claims. The record plainly shows that Residents were not seeking damages for the diminution in value of their property but were seeking damages for the loss of the comfortable and healthful enjoyment of their property. Residents, therefore, abandoned their claim for permanent nuisance, and only their claim for temporary nuisance remained. As such, Residents' action against the Sewer District, a political subdivision of the State of Missouri and a public entity, was shielded from suit by sovereign immunity. Page v. Metropolitan St. Louis Sewer Dist. , 377 S.W.2d 348, 352 (Mo. 1964); Trumbo v. Metropolitan St. Louis Sewer Dist. , 877 S.W.2d 198, 201 (Mo.App.E.D. 1994).
Sovereign immunity is waived, however, in cases involving injuries caused by a dangerous condition of public property. § 537.600.1(2), RSMo 1994; State ex rel. Missouri Highway and Transp. Comm'n v. Dierker , 961 S.W.2d 58, 59 (Mo.banc 1998). To state a claim under the dangerous condition exception, a plaintiff must establish (1) a dangerous condition of the property; (2) that the plaintiff's injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition. § 537.600.1(2), RSMo 1994; Kanagawa v. State by and through Freeman , 685 S.W.2d 831, 835 (Mo.banc 1985). The term "dangerous condition" refers to intrinsic defects in the physical condition of public property or the dangerous positioning of various items of property. Alexander v. State , 756 S.W.2d 539, 541-542 (Mo.banc 1988); Kanagawa , 685 S.W.2d at 835; Martin v. Missouri Highway and Transp. Dept. , 981 S.W.2d 577, 583 (Mo.App.W.D. 1998). A sewage treatment plant will constitute a dangerous condition of property where it discharges raw sewage onto the surrounding land and into adjoining waters and emits toxic chemicals into the air because of faulty design or construction. Byrom v. Little Blue Valley Sewer Dist. , 825 S.W.2d 304, 306 (Mo.App.W.D. 1991)(an earlier case involving the parties in the instant case).
In this case, Residents failed to establish that the wastewater treatment plant constituted a dangerous condition of public property. Insufficient evidence was presented to show that the plant, because of faulty design or construction, discharged raw sewage onto Residents' property surrounding the plant or into the Missouri River or that it emitted toxic chemicals into the air.
The evidence presented by Residents regarding discharge of raw sewage into the Missouri River revealed only that wastewater was occasionally discharged directly into the river when influent flows were extremely high due to heavy rains. In those cases, the wastewater received no treatment or only primary treatment and was discharged after being diluted with the additional rainwater and mixed with treated effluent. No evidence was presented, however, that any resident came into contact with the discharges during heavy rainfalls or suffered any ill effects from them or that the discharges caused any harm to the quality of the river or environment.
Residents' evidence regarding the discharge of raw sewage onto surrounding lands revealed that raw sewage was discharged into a field adjacent to the plant on one occasion. A sewer district official testified that the wastewater was once diverted to avoid overwhelming and seriously damaging the pump station. Plant personnel promptly cleaned the sewage, and the spill was reported to the Department of Natural Resources. No evidence was presented, however, that the wastewater was discharged onto any property owned or occupied by any Resident, that any Resident came into contact with the discharged sewage, or that the discharge caused any detrimental effect to any Resident or the environment.
Finally, the evidence presented regarding the plant's emissions into the air revealed only that unpleasant odors emanated from the treatment plant and that these odors caused Residents to suffer from headaches, nausea, watery eyes, and loss of appetite and sleep. The record does not reveal that the plant's emissions into the air contained toxic chemicals harmful to Residents. Residents living near the treatment plant filed numerous complaints regarding odors with the Department of Natural Resources since the opening of the plant in 1985. Those complaints led to investigations by the department of the amount of odor the plant was emitting and the issuance of notices of excess emissions by the department. The test used by the department, however, subjectively measured only odor and did not measure the content or toxicity of the emissions. Additionally, although Residents offered the deposition testimony of a toxicologist, the toxicologist did not testify specifically about the types or quantities of emissions from wastewater treatment plants or the effects the emissions had on the Residents. In fact, the toxicologist admitted that he had not visited the plant or performed any tests regarding the toxicity of the plant's emissions.
Insufficient evidence, therefore, was presented to show that the plant discharged raw sewage onto Residents' property surrounding the plant or into the Missouri River or that it emitted toxic chemicals into the air because of faulty design or construction. Because Residents failed to establish that the wastewater treatment plant was in a dangerous condition, sovereign immunity shielded the Sewer District from Residents' action for temporary nuisance. The trial court's judgment in favor of Residents is reversed, and the case is remanded with directions for entry of judgment in favor of the Sewer District.
All concur.