954 N.E.2d 974
Ind. Ct. App.2011Background
- In 2007 a City-contracted sewer cleaning deferred completion on Fall Creek Drive, Indianapolis.
- The Kas experienced sewage backing up into their home the day after, causing property damage and Mrs. Ka's emotional distress.
- The Kas sued the City (and United Water) for negligence, negligent infliction of emotional distress, trespass, and nuisance.
- The trial court granted summary judgment for the City on all claims before trial.
- Evidence included expert testimony that the blocked sewer line had preexisting, latent damage; the City argued no constructive knowledge and compliance with maintenance.
- On appeal, the Kas challenge the summary judgment ruling, arguing City had knowledge or should have foreseen the harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City had actual or constructive knowledge | Ka contends City knew or should have known of defect. | City lacked actual or constructive knowledge due to maintenance contract and lack of notice. | City lacked constructive knowledge; summary judgment affirmed on negligence. |
| Whether summary judgment was proper given expert evidence | Experts showed possible detection methods and foreseeability failures. | Tests after construction and maintenance program negate a genuine issue. | Evidence did not create material fact; no duty breach established; summary judgment upheld. |
| Whether Kas' nuisance claim was proper | Isolated sewage backup constitutes a continuing nuisance entitling relief. | Nuisance requires ongoing conduct; here it was a single incident of negligence. | Nuisance claim premised on isolated event; summary judgment proper. |
Key Cases Cited
- Schmitt v. City of Evansville, 868 N.E.2d 1127 (Ind.Ct.App.2007) (lack of knowledge where defect is latent; no breach)
- Czaja v. City of Butler, 604 N.E.2d 9 (Ind.Ct.App.1992) (lack of constructive knowledge; no liability)
- Spier v. City of Plymouth, 593 N.E.2d 1255 (Ind.Ct.App.1992) (genuine issue as to constructive knowledge where maintenance flawed)
- Tucher v. Brothers Auto Salvage Yard, Inc., 564 N.E.2d 560 (Ind.Ct.App.1991) (jury question on constructive knowledge, where facts show prior issues)
- City of Indianapolis v. Scott, 72 Ind. 196 (Ind. 1880) (early rule on nuisance/notice; relevance to latent defects)
- KB Home Indiana, Inc. v. Rockville TBD Corp., 928 N.E.2d 297 (Ind.Ct. App.2010) (nuisance analysis; isolated incidents versus ongoing conduct)