This case presents an issue of whether a city employee is immune from suit in a civil-rights action. The appellee, Ms. Jeanny Romine, fives at 11 Trenton Boulevard in Fayetteville. Around September of 1998, she began to notice the smell of raw sewage in her back yard. Romine notified the City of Fayetteville about the sewage odor, and subsequent testing by the City revealed that the source of the odor was raw sewage that was seeping downhill from her neighbors’ clogged sewer fines and overflowing from a clean-out meter box in Romine’s yard. Although, at the time, the City had determined that the sewer fines were private fines, rather than city-owned fines, it nonetheless cleaned out the sewer drains that were causing the problem. In addition, in October of 1998, the City offered to pay Romine $880 for an easement over her property. The easement would have allowed the City to go on to Romine’s property, refine the existing sewer pipe, and replace the clean-out box with a manhole for future access.
However, Romine refused the offer of $880 for the easement, believing the offer was not sufficient compensation for her land. After she refused to accept the easement, the City informed her that, because the sewer lines were private, there was nothing else the City could do for her. For the next seven years, sewage continued to seep over Romine’s land from the defective sewer lines, and Romine filed suit against the City of Fayetteville in 2005. In addition, Romine sued her uphill neighbors — David and Andrea Fournet and Mark Risk — and appellant David Jurgens, the Superintendent of the Water and Sewer Division for the City of Fayetteville.
Romine’s complaint raised counts of inverse condemnation, outrage, and negligence against the City; outrage, negligence, public nuisance, and trespass against the neighbors; and “toxic assault and battery” against both the City and the neighbors. In addition, Romine brought a civil-rights claim against the City and Jurgens. Specifically, Romine alleged that Jurgens was personally aware of the presence of raw, untreated sewage on her property in 1998 and was aware of the hazards of exposure to raw sewage. Further, she contended that, after she declined the City’s offer of $880 for an easement, “Jurgens informed [her] that the offer was withdrawn and that the City of Fayetteville would take no further steps to remedy the sewage problem.” Jurgens’s actions in “withdrawing” the offer for the proposed easement, Romine claimed, constituted a deprivation of her Fifth Amendment rights to be free from governmental takings of her property without just compensation.
Jurgens answered, contending that any contact he had with Romine was solely in his official capacity as a city employee, and as such, he was immune from suit. On July 23, 2007, Jurgens moved for summary judgment, arguing that, because he was sued in his official capacity, he was protected from suit by Ark. Code Ann. § 21-9-301 (Repl. 2004). He alleged that, because he had acted in good faith in his dealings with Romine, and she had not pled any facts establishing that he acted with malice, he was entitled to summary judgment. After a hearing on September 7, 2007, the Washington- County Circuit Court denied Jurgens’s summary-judgment motion, finding that there were disputed facts as to whether Jurgens had acted with conscious indifference towards Romine’s problems. Jurgens filed his notice of appeal on September 18, 2007.
As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. See Ark. River Educ. Servs. v. Modacure,
Arkansas affords a measure of immunity from suit to municipal corporations and their employees. Ark. Code Ann. § 21-9-301 (Repl. 2004) provides, as follows:
(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tort action shah he against any such political subdivision because of the acts of its agents and employees.
This court has consistently held that § 21-9-301 provides city employees with immunity from civil liability for negligent acts, but not for intentional acts. See Smith v. Brt,
In this case, Romine sued Jurgens in his official capacity as Sewer and Water Maintenance Supervisor for the City of Fayetteville.
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In cases involving the existence of immunity under § 21-9-301, this court has utilized the analysis performed in interpreting the counterpart qualified-immunity statute that applies to state employees, Ark. Code Ann. § 19-10-305 (Repl. 2007); see Smith v. Brt, supra; City of Farmington v. Smith,
In both Smith v. Brt, supra, and City of Farmington v. Smith, supra, this court has explained the qualified immunity issue as follows:
Under that analysis, a motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Fegans v. Norris, supra (citing Baldridge v. Cordes,350 Ark. 114 , 120-21,85 S.W.3d 511 , 514-15 (2002)). An official is immune from suit if his or her actions did not violate clearly established principles of law of which a reasonable person would have knowledge. Id. (citing Harlow v. Fitzgerald,451 U.S. 800 (1982)). The objective reasonable-person standard utilized in qualified-immunity analysis is a legal inquiry. Baldridge v. Cordes, supra.
The inquiry outlined above is a restatement of the standard used by this court to evaluate motions for summary judgment on the ground of qualified immunity. See Baldridge v. Cordes, supra (citing Pace v. City of Des Moines,201 F.3d 1050 (8th Cir. 2000)). The Eighth Circuit Court of Appeals has emphasized, however, that such a restatement of the standard is incomplete: “Courts deciding questions of qualified immunity must also recognize that ‘whether summary judgment on grounds of qualified immunity is appropriate from a particular set of facts is a question of law.’ ” Pace v. City of Des Moines,201 F.3d at 1056 (citing Lambert v. City of Dumas,187 F.3d 931 , 935 (1999)).
City of Farmington v. Smith,
Applying these rules, Romine’s suit against Jurgens is therefore barred unless she has “asserted a constitutional violation, demonstrated the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right.” Smith v. Brt,
Romine asserts that she had a constitutional right to be “free from uncompensated governmental takings of her property.” Although Jurgens counters that there was no “taking” at all, let alone an uncompensated taking, Romine appears to be contending that the fact that the sewage overflow on her property constituted a form of inverse condemnation. See Robinson v. City of Ashdown,
However, that is not the end of the analysis. Even though Romine has asserted a constitutional violation and demonstrated that the constitutional right was clearly established, she must still raise a genuine issue of fact as to whether the official would have known that his conduct violated that clearly established right. See City of Farmington,
Romine’s argument is premised on her assertion that Jurgens failed to maintain a public sewer system — i.e., one that was the City’s responsibility. However, at the time of Jurgens’s sole encounter with Romine in 1998, he determined that the faulty sewer lines had not been installed by the City and that the City did not own the line at any time prior to 1997 or thereafter. Jurgens’s determination was based on the facts that: 1) the City had no easement; 2) the line had bends in it; and 3) it did not have a manhole at the end. Jurgens averred that city-owned sewer lines “are laid straight, have manholes on the ends, are six inches in diameter, and have easements or are in rights-of-way.” Romine’s own expert witness, James Moore, Ph.D., testified that a city engineer looking at Romine’s pipes could, reasonably and in good faith, make the determination that the sewer lines were private. Therefore, Jurgens did not, as Romine accuses, “refuse to maintain a public sewer system.” Rather, he declined to trespass on private property without the homeowner’s consent when the homeowner rejected the City’s offer to purchase an easement.
A party opposing a motion for summary judgment must meet proof with proof. See Gallas v. Alexander,
Romine offered nothing to rebut the factual assertions raised in Jurgens’s deposition offered in support of his motion for summary judgment. In her response to his motion, Romine alleged that, “[r]egardless of whether Jurgens withdrew his initial offer, or whether Romine refused an insufficient and ineffective offer, Jurgens still had a duty to prevent sewage from overflowing onto Romine’s property.” Fler argument, however, does not refute Jurgens’s factual assertion that, if the sewer lines were not owned by the City, but were instead private lines, the City — and by extension, Jurgens — owed no duty to Romine.
Thus, while Romine may have arguably alleged a violation of a clearly established constitutional right, she has failed to raise a genuine issue of fact as to whether Jurgens should have known that his actions as a city employee violated that right. In the absence of evidence showing that Jurgens knew or should have known that he was violating her rights, the circuit court should have found that Jurgens was entitled to immunity and granted his motion for summary judgment on that basis.
The parties raise additional arguments, but it is unnecessary to dwell on them at any length. For instance, Jurgens also cites cases interpreting § 19-10-305 that hold government officials are immune for non-malicious acts occurring within the course of their employment. See, e.g., Simons v. Marshall,
The instant case, by contrast, is governed by the analysis in Smith v. Brt and City of Farmington v. Smith, as those cases deal specifically with § 21-9-301, which does not contain the same kind of language about “other than malicious acts or omissions.” Therefore, although the parties go into some depth about the question of malice, it is irrelevant.
Also irrelevant — to some degree — is the discussion of whether malice could be inferred by Jurgens’s “conscious indifference” to Romine’s situation. The circuit court based its ruling, in part, on its belief that there were disputed facts as to whether Jurgens and the City acted with conscious indifference. In her arguments to the trial court and in her appellate brief, Romine urges that malice could be inferred by applying a “conscious indifference” standard. However, that standard was adopted in Shepherd v. Washington County,
However, Shepherd was strictly limited to its facts, see id. at 501, 504-05,
In sum, Jurgens established that he was entitled to qualified immunity under Ark. Code Ann. § 21-9-301, and the circuit court erred in denying his motion for summary judgment. The case is reversed and remanded for entry of an order consistent with this opinion.
Notes
In her brief, Romine attempts to argue that her suit was actually against Jurgens in his individual capacity, but her assertion is belied by her express representations to the trial court. Her complaint alleged that she sued Jurgens solely in his official capacity, and at the hearing on Jurgens’s summary-judgment motion, the circuit court specifically asked Romine whether she was suing him in his official capacity. She replied that she was suing Jurgens in his official capacity, not “privately.” The court specifically referenced this exchange in its order, writing that “plaintiffs counsel confirmed on the record that the allegations as against David Jurgens are solely in his official capacity.”