441 P.3d 173
Okla. Civ. App.2019Background
- Plaintiffs (T.J., Stephanie, and minor Briley Chartney) sued the City of Choctaw for negligence and nuisance after repeated raw sewage backups flooded their home, alleging property damage and personal inconvenience.
- The City operates the municipal sewer system; plaintiffs had filed a Notice of Tort Claim under the Oklahoma Governmental Tort Claims Act alleging a backup on October 13, 2014.
- At trial the jury awarded $18,200 in property damages and $70,000 per person for nuisance (total $228,200); the trial court entered judgment for plaintiffs and reserved attorney fees.
- The trial court instructed the jury on negligence per se based on 27A O.S. §2-6-105 (state anti-pollution statute) and 40 C.F.R. §122.41(e) (NPDES permit operation/maintenance requirement), and also instructed the jury regarding OGTCA damages caps.
- Evidence at trial included repeated in-home sewage overflows caused by inflow/infiltration and clogged/cracked lines, municipal notices of violation from DEQ, and a consent order requiring major plant repairs.
- The City appealed, arguing erroneous jury instructions (negligence per se and damages cap), improper admission of evidence of other backups, and that attorney fees were wrongly awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligence per se instruction (citing 27A O.S. §2-6-105 and 40 C.F.R. §122.41(e)) was proper | Chartney: statutes/regulations apply to sewage escapes and support negligence per se | City: statutes/regs do not apply to private-home backup injuries or provide objective standards for negligence per se | Court: Instruction was erroneous. §2-6-105 and 40 C.F.R. §122.41(e) did not clearly target the type of injury or impose objective standards; submission likely caused miscarriage of justice and verdict reversed. |
| Whether the OGTCA damages-cap instruction prejudiced the jury | Chartney: caps are statutory and proper to inform jury | City: mentioning caps gave improper valuation guidance and inflated awards | Court: Inclusion of caps was not reversible error; no showing of prejudice. |
| Whether evidence of other backups should have been excluded as beyond Notice scope | Chartney: prior incidents show pattern/causation and notice covered them | City: Notice limited to Oct. 13, 2014; other incidents were prejudicial | Court: Record on appeal did not include the Notice; appellant failed to preserve a reviewable record, so the claim was disregarded. |
| Whether attorney fees awarded should stand | Chartney: fees appropriate following judgment | City: fees improper if judgment flawed | Court: Because judgment reversed, award of attorney fees was also reversed. |
Key Cases Cited
- Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613 (Okla. 1980) (three-part test for negligence per se: causation, type of harm, and class protected)
- Busby v. Quail Creek Golf & Country Club, 885 P.2d 1326 (Okla. 1994) (courts may adopt statutory/regulatory standards for civil negligence only when appropriate)
- Buck Creek Coal Mining Co. v. Johnson, 181 P.2d 1003 (Okla. 1947) (an inapplicable negligence-per-se instruction is not reversible error absent a showing it misled the jury)
- Johnson v. Ford Motor Co., 45 P.3d 86 (Okla. 2002) (instructions considered as a whole; harmless-error principles for jury instructions)
- Cantrell v. Henthorn, 624 P.2d 1056 (Okla. 1981) (preservation rule: specific trial objection sufficient to preserve instructional error for appeal)
- Boyle v. ASAP Energy, Inc., 408 P.3d 183 (Okla. 2017) (appellant must supply a complete appellate record for claims that rely on omitted trial materials)