Summary
In Moore, the basement of a building flooded after water from a storm collected in an adjacent parking lot that was below the level of the street.
Summary of this case from Berg v. United StatesOpinion
No. 18,959.
Decided December 23, 1960.
Action for damages resulting from seepage of water into basement from adjoining property. Judgment for plaintiff.
Affirmed in Part,
Reversed in Part.
1. NEGLIGENCE — Adjoining Land Owner — Seepage of Water — Duty. An adjoining land owner is under an affirmative duty not to permit his land to remain in an altered state if such altered state creates a condition, the natural and foreseeable result of which will result in injury to adjoining property, and the breach of such duty constitutes actionable negligence.
2. Several Acts — Cause of Injury — Act of Defendant. Where several concurring acts or conditions, one of them the wrongful act or omission of defendant, produce the injury and it would not have occurred but for such wrongful act or omission, such act or omission, if reasonably anticipated as a natural consequence of the act or omission, is a proximate cause of the injury.
3. Act of God — When a Defense. The defense of Act of God is available only to a defendant who can prove that the injury resulted solely from such Act of God without negligence on the part of defendant.
4. REAL PROPERTY — Condition — Danger to Adjoining Property — Owner — Findings. Where owner of land knew or should have known that area was subject to flooding and it was reasonably foreseeable that injury would occur to adjacent property as result of maintenance of dangerous man-made condition, findings of the trial court that negligence of defendant was proximate cause of injury to plaintiffs' property will not be disturbed.
5. LANDLORD AND TENANT — Lease — Condition of Premises — Liability. Where the source of injury to a person is a condition of the premises existing at the time of the letting, the landlord is subject to liability if the condition is unreasonably dangerous and the landlord knew or should have known of the condition.
6. Lease — Obligation of Lessee — Agreement to Indemnify. Where it was the clear understanding of the parties that some injury might occur as the result of a large hole being left in the ground, and lessor leased property with express agreement that lessee would indemnify lessor against any liability incurred as a result of dangerous condition, lessor was entitled to recover from lessee amount of judgment against him resulting from dangerous condition.
Error to the District Court of Pueblo County, Hon. John M. Marsalis, Judge.
Mr. ALDEN T. HILL, Mr. RALPH H. COYTE, for plaintiffs in error.
Messrs. PHELPS, FONDA HAYS, for defendant in error Standard Paint Glass Co. of Pueblo.
Messrs. PETERSEN, EVENSEN AND EVANS, for defendant in error Parkrite Denver Co., Ltd.
THE parties will be referred to as they appeared in the trial court or by name.
On August 29, 1953, the Central Building in Pueblo, Colorado, was destroyed by fire. The same fire destroyed the adjoining building owned by Standard Paint and Glass Company. Shortly thereafter, Standard commenced to rebuild its building. In doing so, it lowered its former basement level, put in a reinforced wall between its basement and the hole in the ground that had once been the basement of the Central Building. The owners of the property upon which the Central Building had been located did not reconstruct their building. Instead, they cleaned out the debris from the basement and entered into a lease with Parkrite under the terms of which Parkrite was to operate an automobile parking lot on the site for a period of ten years. As contemplated by the parties to the lease, Parkrite leveled and graveled the basement area, built a ramp from the street, and converted the former one-story basement into an open parking area, some nine feet below the street level. Subsequent to the leasing, Moore-Hughes purchased the Central property from the former owners.
On the night of October 7, 1957, a rain of cloudburst proportions fell in the area. The combined storm and sanitary sewers of the City of Pueblo were inadequate to carry off the rainwater, which collected in the streets, overflowed the curb, and flooded the leased substreet parking area, filling it to a level of some seven or eight feet along the wall of the Standard Paint building. This accumulation of water occurred during the night. At eight in the morning an employee of Standard Paint reported to work and found some three inches of water covering approximately fifty per cent of the floor of the basement in its building. This water did damage to Standard's merchandise stored there in the amount of $1075.50. After the storm Parkrite proceeded to have the water in its parking area pumped out as soon as possible.
Standard commenced the instant action against both the owner of the parking area and its lessee to recover damages allegedly cause by the water accumulation in its basement, urging that the water had come from the parking lot and that both were guilty of negligence and had committed a nuisance in the maintenance and operation of the parking lot below the surface of the street.
Moore-Hughes answered denying both negligence and nuisance, alleged an act of God and that the negligence was that of the City is maintaining an inadequate sewer system. It also filed a cross complaint against Parkrite, asserting that under the terms of its lease with Parkrite it was entitled to judgment over in the event of any judgment against it.
Parkrite answered denying negligence and nuisance, alleging assumption of the risk and contributory negligence by Standard and further pleading act of God, failure to take steps to have the alleged nuisance abated, and denied responsibility on the grounds that it had not changed the topography or physical condition of the property leased by it. It also denied each allegation of Moore-Hughes' counterclaim.
Trial was had to the court on the merits, culminating in an order dismissing the cross complaint of Moore-Hughes, dismissing Parkrite from the case, and entering judgment in favor of Standard against Moore-Hughes. In doing so, it based its determination upon the negligence of Moore-Hughes in permitting a large excavation directly adjacent to plaintiff's building to remain open for a period of over four years. Nuisance was not indicated as a basis of the court's decision, and we thus limit our discussion to an analysis of whether recovery may be permitted under the negligence theory.
Moore-Hughes, who sued out their writ of error in this court in 1959 to review the judgment of the trial court, urge two separate and distinct grounds for reversal: (1) that the proximate cause of the damage was not its negligence but rather the combination of an act of God and the inadequate storm sewers, and (2) that the court erred in dismissing its cross complaint against Parkrite.
A review of the record discloses sufficient evidence to support a determination that one of the cause of the damage to Standard was that water had seeped through the wall between the parking area and Standard's basement. The unrebutted testimony of one eye witness was that he had seen the water actually coming in. There was, however, in addition, testimony to the effect that other basements in the area had been flooded by water backing up through the sewers. The record discloses sufficient evidence to support a conclusion that it was foreseeable that flooding of the parking area would occur if an especially heavy rain were to fall, since the excavating was in the lowest part of the city and prior flooding had occurred.
Since there is ample evidence in the record to support a conclusion that at least some of the flooding of plaintiff's basement occurred as a result of water flowing through the wall from parking area, although it was impossible to prove that some of it did not in fact come in through backed up sewers, it thus becomes necessary to determine whether such evidence is adequate to support the finding of the trial court that the owners of the property were negligent in permitting such a large excavation directly adjacent to plaintiff's building to remain open for a period of over four years, and, if so, that such negligence was the proximate cause of plaintiff's injury.
The general duty of the owner or occupier of land to persons outside the premises is set forth in 2 Harper and James; The Law of Torts 1521, Sec. 27.19, as follows:
"The occupier of land generally owes a duty of reasonable care to prevent activities and conditions on his land from injuring persons or property outside his land, i.e., persons or personal property on public land or on other private land, or on navigable water or in the navigable air space; or other real property.
"* * *.
"To the general duty to use care there is one principal exception. According to the statements once widely made by commentators, the occupier's duty to prevent injury to persons or property outside his land from natural conditions on his own land is limited, if it exists at all. * * *. It would be consistent with such a rule however, to require affirmative care with respect to the natural result of the occupier's alteration of his land, as where he plants trees, or alters his land so that water is collected and discharged onto other land or the highway is unnatural quantities." (Emphasis supplied.)
Applying these rules to the instant case, we must hold that Moore-Hughes was under an affirmative duty not to permit its lands to remain in an altered state if such altered state created a condition the natural and foreseeable result of which would result in injury to the adjoining property, and the breach of this duty constitutes actionable negligence.
It still must follow, however, that such negligence must be the proximate cause of plaintiff's injury. Such a determination must rest upon established precedent.
In 1896 Colorado adopted the "but — for" test of proximate causation. Thus, in Denver v. Johnson (1896), 8 Colo. App. 384, 390, 46 Pac. 621, the court approved the language of Campbell v. Stillwater, 32 Minn. 308, which stated:
"In cases of tort the application of this court of the rule as the proximate cause is this: Where several concurring acts or conditions of things — one of them the wrongful act or omission of the defendant — produce the injury, and it would not have been produced but for such wrongful act or omission, such act or omission is the proximate cause of the injury, if the injury be one which might reasonably be anticipated as a natural consequence of the act or omission."
This rule was followed in Willson v. Colorado Southern Ry. Co. (1914), 57 Colo. 303, 317, 142 Pac. 174. Thus even if it were to be established that some of the water may have entered Standard's basement through its own sewer, such would not relieve defendants of liability. Cf. Restatement Law of Torts, Ch. 16, Sec. 432 (2).
It is readily apparent that if the owners of the parking lot had not permitted the dangerous condition to exist upon their property, and had taken active measures to prevent such an occurrence, at least some of the water would not have entered the basement. This record discloses that defendants' negligence was a substantial fact in bringing about plaintiffs' damage.
Defendants further urge that the damage was created by an act of God, thereby relieving them from liability. This court has on at least three occasions ruled that one whose wrongful acts cooperated with an act of God is liable for injuries which are the natural result thereof, the defense of an act of God being available only to defendants who can prove that the injury resulted solely from the act of God without any contributory negligence on the part of the defendant. See Barlow v. North Sterling Irrigation District (1929), 85 Colo. 488, 277 Pac. 469, followed in Maggard v. North Sterling Irrigation District (1929), 85 Colo. 491 277 Pac. 470; and Ryan Gulch Reservoir Co. v. Swartz (1928), 83 Colo. 225, 263 Pac. 728.
There being sufficient evidence in the record to support the conclusion that the owner of the land here involved knew or should have known that this was an area subject to flooding, and that during times of flooding it was reasonably foreseeable that injury could occur to adjacent property as a result of the maintaining of dangerous man-made condition upon the land, there is no reason to interfere with the determination of the trial court that the negligence of the owner of the property was the proximate result of the injuries sustained. Compare Denver v. Stanley Aviation Co. (1960), 143 Colo. 182, 352 P.2d 291.
Defendants further urge that the trial court erred in not finding that the plaintiff had assumed the risk of the injury that concurred. This argument is based upon evidence to the effect that Standard replaced its building and constructed its basement while the open excavation existed on defendants' property, that it knew or should have known that this excavation was likely to flood, and that the injury here complained of could result. In so arguing, they point to evidence that Standard had "waterproofed" the wall, and had put in a pump to drain such water as might collect in the basement. Although we do not pass upon the question of the validity of such argument, had the damage occurred shortly after the installation of these protective devices and before the owners of the adjoining property had had a reasonable opportunity to remedy the dangerous condition, we find it difficult to believe that any court could hold that Standard had assumed the risk that its neighbor would perpetuate a dangerous condition upon its property for a period in excess of four years. Such would indeed be an unreasonable and unwarranted extension of the doctrine of assumption of the risk.
The question next arises as to whether the landlord Moore-Hughes, or the tenant, Parkrite, should be liable for the damages suffered. The general rule establishing the liability of the landlord in instances such as we have here is set forth by Harper and James, supra, at page 1528:
"Where the source of injury to a person or property outside is a condition of the premises existing at the time of the letting, the landlord is subject to liability if the condition is unreasonably dangerous and the landlord knew or should have known of the condition."
Thus we must hold that the landlord here was liable for the injuries suffered by its neighbor and the tenant is not liable over unless he has assumed the liability or breached his contract in regard to removal of the hazard.
In this connection Moore-Hughes asserts that the trial court erred in dismissing its counterclaim against Parkrite. In its cross claim, Moore-Hughes sought to enforce an indemnification provision in its lease with Parkrite. There are two pertinent lease provisions which show the intentions of the parties. They read:
"Lessee acknowledges that Lessee is familiar with the present condition of such premises and Lessee accepts the leased premises in their present condition, with the right to alter same as above provided, and Lessor shall not be liable to Lessee, its employees and customers, nor the public for any defect in the leased premises, whether existing at the time of Lessee's acceptance of same or whether developing thereafter, nor for any injury or damage that may occur from the elements and Lessee will hold Lessor harmless from all liability or claims with respect to such defects or injuries.
"Lessee agrees to comply with all valid laws, ordinances, codes and regulations of any government authority having jurisdiction applicable to Lessee's occupancy or use of said premises, and Lessee covenants to hold Lessor harmless from any liability or claim growing out of the manner in which Lessee or Lessee's subtenants use or occupy said property."
In construing these provisions of the lease, the trial court found "That the plaintiff company had the status as owner of adjacent property, not that of an employee, customer or member of the public in general that might be upon the property and be injured, and that the contract between the Lessor and Lessee did not provide as to the plaintiff."
In so ruling, we believe that the trial court misconceived the comprehensive scope of the provisions of the lease. Nowhere is there a provision that the written terms are limited to persons "that might be upon the property." To the contrary, they indicate a clear understanding of the parties that some injury might occur to the public generally, which would include neighbors, as a result of the large hold that they were contemplating leaving in the ground, and that the lessor leased the property in such a state only upon the express agreement of the lessee that the latter would indemnify the lessor for any and all liability which it might incur as a result of the dangerous condition existing upon the property.
The judgment against Moore-Hughes is affirmed. Dismissal of the cross complaint against Parkrite is reversed and the cause remanded to the trial court with directions to enter judgment over against Parkrite.
MR. JUSTICE MOORE, MR. JUSTICE KNAUSS and MR. JUSTICE DAY dissent.