Raymond Kerr v. City of South Bend
48 N.E.3d 348
| Ind. Ct. App. | 2015Background
- Kerr owned a house in South Bend connected by a private lateral to the City’s main sewer; fumes and odors had entered his home for years.
- New Energy Corporation discharged wastes into the City sewer; a 2006 City-commissioned study linked plant discharges to elevated hydrogen sulfide and sewer slime near Kerr’s home.
- Kerr moved out in 2005 citing health problems from the fumes, returned in 2012, was diagnosed with chronic bronchitis and hospitalized, and retained a consultant who found carcinogens in sewer air samples.
- Kerr filed a notice of tort claim on June 5, 2012 (City denied it), then sued the City (Aug. 31, 2012) asserting nuisance, trespass, negligence, and inverse condemnation for personal injury and property damage.
- Trial court granted summary judgment for City: plaintiff failed to timely notify under ITCA, claims were time-barred, and City owed no duty to Kerr.
- Court of Appeals: City does owe a duty to maintain its sewer; personal injury claims are time-barred, but continuing-property-damage claims may proceed subject to ITCA 180-day notice limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty of City to plaintiff | City breached duty to reasonably maintain its main sewer, causing fumes to enter home | City not liable for lateral (private) and claims stem from private property maintenance | Court: City owes duty to maintain its own sewer; private lateral responsibility may affect damages but not duty question |
| Statute of limitations — personal injury | Ongoing exposures renew limitations; later diagnosis (2012) triggers accrual | Plaintiff knew of health effects by 2005; two-year personal-injury limitation ran from discovery | Held: personal-injury claims accrued in 2005; two-year statute bars health-related claims |
| Statute of limitations — property damage (nuisance/trespass) | Odors constitute continuing/recurring nuisance; each occurrence restarts limitations | City argues long history bars claims | Held: property/nuisance/trespass injuries are recurring; each incident can trigger a new limitations period, so property claims survive for recent occurrences |
| ITCA notice & equitable tolling/fraudulent concealment | Prior complaints and City official’s assurances suffice for substantial compliance or estoppel | Plaintiff did not give notice of intent to sue until 2012; no concealment alleged | Held: no substantial compliance; recovery limited to losses beginning 180 days before plaintiff’s June 5, 2012 notice; fraudulent concealment inapplicable |
Key Cases Cited
- City of Bloomington Utils. Dep’t v. Walter, 904 N.E.2d 346 (Ind. Ct. App.) (municipal utilities’ duty and summary-judgment standards cited)
- Hughley v. State, 15 N.E.3d 1000 (Ind.) (appellate review of summary judgment standard)
- Kader v. State Dep’t of Correction, 1 N.E.3d 717 (Ind. Ct. App.) (contributory negligence bars recovery against government actors)
- Strickdorn v. Zook, 957 N.E.2d 1014 (Ind. Ct. App.) (continuing nuisance/trespass restarts limitations period for property claims)
- Schoettmer v. Wright, 992 N.E.2d 702 (Ind.) (standards for substantial compliance with ITCA notice)
- Sagarin v. City of Bloomington, 932 N.E.2d 739 (Ind. Ct. App.) (fraudulent concealment tolling doctrine explained)