Thе JUNIOR COLLEGE DISTRICT OF ST. LOUIS, Respondent, v. CITY OF ST. LOUIS, Appellant.
No. SC 85583.
Supreme Court of Missouri, En Banc.
Oct. 12, 2004.
As Modified on Denial of Rehearing Nov. 23, 2004.
149 S.W.3d 442
LAURA DENVIR STITH, Judge.
Joe D. Jacobson, Martin M. Green, Allen P. Press, Fernando Bermudez, Clayton, for respondent.
LAURA DENVIR STITH, Judge.
The Junior College District of St. Louis (the College) brought a negligence action against the city of St. Louis (the City) for damages arising out of a 1997 flood of part of the college campus caused by water escaping from the College‘s fire suppression water pipe running between the College and the City‘s water main. Under stipulated facts, the trial court found the City‘s water division had a duty to keep water shut-off valves owned by the College accessible, that the water division was negligent in not marking or warning where the shut-off valves were located under the paved street, and that the water division employees were negligent in not shutting off the flow of water more quickly.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties tried this case to the trial court under a stipulation of facts. That stipulation shows that the College, a political subdivision of the State of Missouri, constructed its Forest Park campus in the early 1960s. The campus is located in the City, just south of Highway 40 and east of Hampton Avenue. During construction of the campus, the College installed two underground water service lines. The lines, which were wholly owned by the College, ran from the College to the City water main running down Oakland Avenue. One line was the main water supply line for the campus (“supply line“); the other, a firе suppression line (“fire line“), was located six feet away.
Then, as now, each line supplied water solely to the College. When the College installed the lines, it obtained a permit from the City to connect the two lines to the City‘s main and to install a “stop box,” containing a shut-off valve, for each line. The shut-off valve, as its name implies, is used to shut off the flow of water to a water line. Both stop boxes were located on the College‘s water lines, not on the City‘s main itself or at the junction of the main with the College‘s water lines. In fact, when originally installed, the stop boxes were located under the right-of-way at the northern edge of the campus, rather than under the paved portion of the street. Access to the stop boxes, and the valves housed within them, was by means of a manhole and manhole cover set on the right-of-way. Since the completion of construction, the City, through its water division, has sold water to the College for profit and billed the College on a quarterly basis for watеr supplied to the College‘s two lines. According to the stipulation, neither line received or needed maintenance from the time of installation until the time of the flood.
Sometime between construction and 1987, the City widened Oakland Avenue so that the stop boxes for the College‘s two water lines were no longer located under the right-of-way next to Oakland Avenue but instead were located below a portion of the paved street area of Oakland Avenue itself. According to the stipulation, the parties do not know whether either of the manhole covers over the two stop boxes were raised and left visible at the time of the street widening or were paved over.
In 1987, when Oakland Avenue was repaved, its grade was slightly raised. Accordingly, the height of the manhole cover over the stop box covering the College‘s supply line was raised to street level by affixing one or more steel collars to the top of the manhole. The parties do not know whether the College, the City, or a third party raised this manhole cover. But, for reasons unknown by the parties, the manhole cover over the College‘s fire line—the line that later burst—was not raised. It was paved over.
The parties agree that neither the City street department nor the City water division gave the College any notice or warning that the fire line manhole had been
The manholes are located directly in front of the College. The water shut-off valves and the stop boxes to which they provide access belong to the College, and they were originally installed by the College. The location of the valves, stop boxes, and original manhole covers are shown on the College‘s engineering drawings for the lines. In 1997, the College kept a copy of these engineering drawings in an office located in the College‘s basement. No employees of the College in 1997 were immediately aware of the location of the shut-off valves or stop boxes.
On October 23, 1997, at 3:00 p.m., the College‘s fire line ruptured, and water began flowing out of the line and flooding the campus. It is undisputed that the break occurred in the College-owned service line, not in the City‘s water main to which the service line connected. Unlike the case with many residential customers, the City‘s agreement to supply water to the College did not include an insurance provision to maintain this line. For this reason, the parties stipulated that the College was responsible for the initial break and for the first $1,005,506.00 in damages caused in the flooding that resulted from 3:00 p.m. to 3:20 p.m. due to the initial break in the College‘s fire line.
At about 3:10 p.m., College maintenance employees discovered the flooding water, went to Oakland Avenue, opening the manhole covering the supply line and shut off the water flowing in that line. But, because the break was not in that line but rather in the fire line, the flooding continued. Although careful review of the College‘s own engineering drawings would have shown that a separate fire suppression line was in place and had its own shut-off valve, College employees could not review those drawings because the basement office in which the drawings were kept was already flooded.
The College called the City‘s water division and also called a private plumber to help. The City water division employees arrived at 3:25 p.m. The water division employees also had a copy of the engineering drawings, and these drawings, like those in the College‘s basement, showed the existence of the fire line and the placement of the stop box and valve under what had become the paved area of Oakland Avenue. Neither the City water division employees nor College employees noticed these aspects of the drawings. They closed all оther valves, but did not find or close the valve to the fire line. As a result, the fire line remained open, and water flooded the campus unabated.
At 5:00 p.m., with the fire line still open and the manhole cover and stop box still undiscovered, the City water division employees were called to respond to an unrelated water main break. They took their engineering drawings with them when they left to attend to this emergency. After fixing the broken main, they returned to the campus at 6:30 p.m. The College had still been unable to discover the source of the flooding.
At about 8:00 p.m., City employees located the fire line through the use of the drawings and a flow meter provided by the City and with the assistance of the private plumber. They broke through the pavement, uncovering the hidden manhole cover, and shut off the valve at 8:30 p.m., thus ending the flooding. In total, approximately 500,000 gallons of water flooded the College‘s campus.
II. STANDARD OF REVIEW
Appellate review of a court-tried case is generally governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which states, “the decree or judgment of the trial court will be sustained by the appellate cоurt unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Id. at 32. When, as here, a court-tried case is submitted on stipulated facts, however, then the only question before the Court “is whether the trial court drew the proper legal conclusions from the facts stipulated.” Sheldon v. Bd. of Trs. of Police Ret. Sys., 779 S.W.2d 553, 554 (Mo. banc 1989). See also, Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979). This Court reviews questions of law de novo. Endicott v. Display Technologies, Inc., 77 S.W.3d 612, 615 (Mo. banc 2002); Baldwin v. Dir. of Revenue, 38 S.W.3d 401, 405 (Mo. banc 2001).
III. LIABILITY OF CITY FOR NEGLIGENCE IN PERFORMANCE OF PROPRIETARY FUNCTION OF PROVIDING WATER
A. Proprietary Versus Governmental Functions.
The City argues that only the City street department knew that the manhole covering the stop boxes and shut-off valves had been paved over, and this knowledge cannot be imputed to the water division. Further, it argues that regardless of such knowledge, the water division had no duty to the College under the common law to keep the stop boxes or shut-off valves accessible, to warn about their location or to train its employees how to find privately-owned stop boxes and shut-off valves, nor did it assume such a duty by ordinance or contract. It argues that the City‘s negligence, if any, was in paving over the manhole covеr, not in any water division functions, and that the paving over of the manhole cover constitutes a condition of public property. As the College never claimed that any exception to sovereign
The College alleged that the trial court was correct in finding the City negligent because the City water division was acting in a proprietary capacity in selling water to its customers for profit; thus, sovereign immunity does not apply to it.
Under the common law, only the State and its entities were entitled to complete sovereign immunity from all tort liability. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). Municipal corporations traditionally have had immunity, however, for those actions they undertake as a part of the municipality‘s governmental functions—actions benefiting the general public. Id. See also, State ex rel. St. Louis Hous. Auth. v. Gaertner, 695 S.W.2d 460, 462 (Mo. banc 1985). Municipal corporations do not enjoy sovereign immunity in tort while performing proprietary functions. Proprietary functions are those actions “performed for the special benefit or profit of the municipality acting as a corporate entity.” Jungerman, 925 S.W.2d at 204. See also, Dallas v. City of St. Louis, 338 S.W.2d 39, 44 (Mo. 1960); State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 102 (Mo. App. S.D. 1996); Schulz Through Schulz v. City of Brentwood, 725 S.W.2d 157, 160 (Mo. App. E.D. 1987).
In 1978, when the legislature reinstated sovereign immunity in tort as it existed at common law, sec.
(1) Injuries directly resulting from the negligent acts or omissions of public employees arising out of the operation of motor vehicles...;
(2) Injuries caused by the condition of a public entity‘s property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury,....
Sec.
The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort. Sec.
537.600.2 .
In Wollard v. City of Kansas City, 831 S.W.2d 200 (Mo. banc 1992), this Court held that if the conduct that forms the basis of the claim pertains to a dangerous condition of public property, and so comes within the terms of section
The College does not attack Wollard or address its potential application to the repaving of Oakland Avenue; therefore, there is no reason for this Court to reach the question whether such repaving created a dangerous condition of public property or whether the statutory limitation on damages applies to any negligence in repaving. Rather, the College asserts that
The College argues that because the alleged negligence of the City as a supplier of water does not involve a condition of public property, section
The College alleged that these duties on the part of the City arose under the common law, or alternatively, that the City assumed these duties in 1993 when it passed an ordinance requiring the City to uncover paved-over manhole covers in certain circumstances, and that the City breached one or more of these duties.3
The College is correct that the limitations on liability set out in section
Here, it is stipulated that “the City operates a Water Division which distributes and sells water to residential, commercial and industrial customers, including the College.” The water that flooded was not being used by it to fight a fire or for another public purpose. The water was being purchased by the College to run through lines solely owned by the College and intended for use solely on its property. In supplying this water, the City was engaged in a proprietary function, and its alleged fault in regard to supplying water
B. No Duty of City Water Division to Provide Access to Shut-off Valve or Warn of Lack of Access.
As the College notes:
Whenever a city in its proprietary capacity operates a waterworks system for the purpose of supplying water to individuals, as is admitted in the present case, it must assume the same responsibility for its negligence as any other private supplier of water for profit, and the question of its liability for negligence must be so determined.
Adam Hat Stores, Inc. v. Kansas City, 316 S.W.2d 594, 597 (Mo. banc 1958).
The College poses the question, “If the City had been a private water company, would there be any question that it would be liable for the losses suffered by the College resulting from the City‘s bungling?” In fact, if a private water company had acted as the City water division had done, the private water company would not be held liable to the College. The City is not either.
While the College asserts otherwise, the cases it cites do not support its arguments. In each of these cases, the water company‘s own lines or other compаny property caused the injury. Here, however, the break did not occur in the City main, but in the College‘s own line, an event for which the College admits it, not the City, is responsible. Yet, the College also owns the fire line shut-off valve and stop box. None of the cited cases hold that a water company has a duty to repair, make, or keep accessible property owned by the customer, in the absence of a contract so requiring. Adam Hat Stores, 316 S.W.2d at 594, Koch Brothers Bag Co. v. Kansas City, 315 S.W.2d 743 (Mo. 1958), and Lamar v. City of St. Louis, 746 S.W.2d 160 (Mo. App. E.D. 1988), merely hold that a water company has a duty not to let the company‘s property cause injury to others, and, so, is responsible where a break in the water company‘s lines caused damage to surrounding property. In Byrd v. Brown, 641 S.W.2d 163, 169 (Mo. App. S.D. 1982), a duty was found only because the city itself damaged a neighbor‘s water pipe, which ultimately resulted in the plaintiff‘s store being damaged by a fire.
In an attempt to avoid this difficulty, the College argues that a common law duty on the part of the water division can also be found in principles set out in Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151 (Mo. banc 2000), and Hoover‘s Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426 (Mo. banc 1985). These cases, however, do not assist the College.
In Lopez, the representatives of two decedents sued defendant after a helicopter carrying the decedents crashed into defendant‘s unmarked power lines. This Court found that defendant, which owned the power lines, should have foreseen a probability of injury if the lines went unmarked, and that it had a duty to tag them or make them visible in some way. Lopez, 26 S.W.3d at 156. In that case, the duty arose because defendant owned the power lines and had a continuing duty to warn of danger resulting from their obscured location. Here, as noted, the City does not own the water line, stop box, or shut-off valve; the College owns them. Nothing in Lopez suggests that this Court would have held the power company liable if the injured party owned the power lines.
In Hoover‘s Dairy, plaintiff claimed that defendant was negligent in the installation of a milking system. During installation, defendant failed to conduct a complete system analysis. A stray voltage problem went undetected, ultimately infecting forty
The College cites to no other case providing a basis for finding a common law duty on the part of the City water division to maintain open access to customer-owned shut-off valves and stop boxes or to warn customers if another division blocks access to the valve or stop box. This is separate from the issue whether the City was negligent in paving Oakland Avenue. The City acknowledges that, at some point, it paved over the manhole giving access to the shut-off valve and stop box, and it is implicit in the trial court‘s decision that it believed thаt the City was negligent in so doing. Certainly, a factual question for submission to the jury was raised by the evidence. And, the water division, as a division of the City, can be charged with knowledge of the fact that the City‘s street department paved over the College‘s stop box and shut-off valve.4
But, the College specifically disclaims that it is seeking damages based on the paving over of the manhole, thereby allowing it to bypass the issues whether the repaving created a dangerous condition of public property and whether the $100,000 limitation on recovery set out in section
For these same reasons, the dissenting opinion is in error in suggesting that the water department somehow breached a duty to the College because of the paving over of the stop box, separate and apart from the duty of the City as a paver of the road. While the City may have had and breached a duty in paving the road, it was in its function as a paver of the road that it would have done so. If the College wishes to avoid the sovereign immunity issues thereby implicated, then it must identify a separate basis for an additional duty by the City in its capacity as a provider of water.
The cases the College and the dissent cite simply do not provide the authority for finding such a separate duty on the part of the water division, separate and apart from any liability that may have arisen from paving over the manhole. The trial court erred in finding such a common law duty on the part of the water division.
IV. DUTY OF WATER DIVISION EMPLOYEES TO ACCURATELY LOCATE STOP BOX AND SHUT-OFF VALVE
Plaintiff asserted an alternative claim that the City had a duty to properly train
The City did send its engineers to the site of the leak when the College called, and the engineers did attempt to assist the College in locating the leak, but they were unable to do so. The College asserts they were negligent in failing to notice the location of the hidden stop box and shut-off valve, which were marked on the engineering drawings.
As the College notes, there are situations in which a volunteer can be sued for negligence in offering assistance, for
“[t]he law imposes an obligation upon everyone who attempts to do anything, even if gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken.”
Hoover‘s Dairy, 700 S.W.2d at 432, citing, 57 AM.JUR.2D Negligence sec. 45 (1971). In Stanturf v. Sipes, 447 S.W.2d 558, 561 (Mo. 1969), this Court adopted Restatement (Second) of Torts section 323 (1965), which states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because оf the other‘s reliance upon the undertaking.
Thus, to be held liable, a volunteer must increase the risk of harm or the harm must be suffered because the one being helped relied to his detriment on the voluntary undertaking. In the absence of such an increase in harm or detrimental reliance, the volunteer may abandon his or her assistance without liability, for the volunteer:
[I]s not required to continue [his services] indefinitely, or even until he has done everything in his power to aid and
protect the other. The actor may normally abandon his efforts at any time unless, by giving aid, he has put the other in a worse position than he was in before the actor attempted to aid him. His motives in discontinuing the services are immaterial. ... He may without liability discontinue the services through mere caprice, or because of personal dislike or enmity toward the other.
Id., cmt. c.
Here, while the water division employees voluntarily responded to the College‘s call for help, the College nowhere alleges facts showing that the City‘s decision to respond or actions in responding left the College in a worse position than it would have been in had the City not responded or that the College was placed in a worse position by relying on the City. While the City employees left the flood scene with their copy of the engineering drawings from 5:00 p.m. to 6:30 p.m. to respond to an unrelated emergency call, this did not place the College in a worse position than it would have been in had the water division employees never responded to the initial call for help. The College had its own copy of the drawings, although they were inaccessible. In any event neither the College nor the City apparently knew how to use the drawings to identify the location of the stop box. See, e.g., Winn v. Pollard, 62 S.W.3d 611, 616 (Mo. App. W.D. 2001) (no duty existed through a gratuitous undertaking because respondent did not increase the risk of harm when he followed appellant‘s tractor on a highway but left before reaching the ultimate destination and appellant was rear-ended and injured by another vehicle).
Moreover, the stipulation shows that the City employees assisted the College employees and the private plumbing contractor in locating the leak and provided a flow meter. Nowhere in the stipulated facts does the College claim that it relinquished any of its options in reliance on the water division‘s help in locating the shut-off valve or that it delayed calling a plumber because it had called the City and that this in turn delayed stoppage of the flooding. While Restatement of Torts section 323 could apply to a suit against a municipality in its proprietary capacity if a plaintiff were able to show detrimental reliance or an increase in harm, the College simply has not proved the elements of a claim under that section by showing that any negligence of the City increased the College‘s harm or that its reliance on the City caused it to suffer harm it would not have suffered otherwise.
The dissenting opinion offers an alternative argument that because the water that flowed through the pipes onto College property belonged to the City, the City therefore had a duty to turn off the supply of water at the main, if not at the stop box. But, this argument proves too much, going far beyond even the College‘s arguments.
Indeed, if the mere fact that the water that caused the damage initially came from the City were sufficient to make the City liable if it did not timely shut off the water supply to the property, then the City would be liable for every flooded basement and water-damaged ceiling in commercial or residential properties served by City water, as would be all private water suppliers to their customers. Further, it would be liable for the flood damage that occurred before the College shut off the main water supply line at 3:20 p.m. But, the College admits that the “$1,005,506 would have been suffered regardless of the City‘s acts or omissions.... It was undisputed that the City bore no responsibility for this amount.” There is no basis for the suggested expansion of liability.
Even if no common law duty existed, the College claims that ordinance 23.04.185 placed a duty on the City to make the shut-off valve accessible. It states:
Notwithstanding the provision of any other ordinance, the Water Division with funds from the Water Division, shall, by contract, or otherwise, expose, make street level, and make accessible stop boxes over shut off valves whenever the City of St. Louis, by contract or other wise, is responsible for covering said stop boxes during street repair or resurfacing.
Ord. 62836 sec. 1, 1993. This ordinance was passed five years after the street department paved over the fire line manhole cover.
Here there is no question about whether the ordinance takes away some vested right of the City or imposes some external duty on it. It is the City‘s own ordinance that is at issue. In the ordinance, the City voluntarily undertook to state that its water division would, by contract or otherwise, expose and make street level and accessible stop boxes over shut-off valves whenever the City is responsible fоr covering them during street repair or resurfacing. The issue is simply the meaning of the ordinance passed by the City. The question boils down to whether the City intended by this ordinance to assume this duty on the part of its water division only as to current and future street repair and maintenance, or whether it also intended by this ordinance to undertake a duty to locate and make accessible and street level all previously paved-over stop boxes in the City.
The ordinance does not expressly state that it is retrospective or prospective in application. Focusing on the ordinance‘s use of the word “whenever,” the College argues that ordinance 23.04.185 was intended to apply retroactively. But, the word “whenever” can be either temporal or conditional in nature. Its use is not particularly enlightening.
Focusing on the use of the words “is responsible for covering said stop boxes” rather than “was responsible for covering said stop boxes,” the City argues that the ordinance clearly is applicable only to current or future repaving and repair and does not purport to require the City to examine all past repaving projects to determine whether stop boxes might have been paved over.
This Court finds the resolution of this dispute lies in considering the context in which the ordinance was passed. When the City enacted the ordinance in question, it also left in force chapter 23.12 of the St. Louis City Revised Code. That chapter contains two ordinances relating to shut-off valves. Ordinance 23.12.010 specifically places the burden on the owner to keep stop boxes accessible. Ordinance 23.12.020 states that the water commissioner has the power to excavate and shut off water if the owner does not make his or her stop box accessible or keep it in repair after notification. Ord. 48646 sec. 11 (part), 1958: 1948 C. Ch. 55 sec. 24 (part): 1960 C. sec. 551.020.
These two ordinances were last amended in 1960 and remain in effect. This suggests that an owner still has a duty to keep stop boxes and valves accessible and to pay for uncovering them when this duty is not fulfilled. Further, there is no evidence that, upon passage of the 1993 ordinance, the City undertook a program of locating and making accessible all shut-off valves and stop boxes that previously had been paved over. The City suggests that to do so would be a tremendous burden
VI. CONCLUSION
For the reasons set out above, the trial court erred in entering judgment for the College on the theory that the City in its role as provider of water breached a duty to the College. The judgment is therefore reversed and the cause remanded for entry of judgment in favor of the City.6
WOLFF, PRICE and LIMBAUGH, JJ., concur.
WHITE, C.J., dissents in separate opinion filed.
TEITELMAN, J., concurs in opinion of WHITE, C.J.
RUSSELL, J., not participating.
WHITE, Chief Justice, dissenting.
I respectfully dissent. While the principal opinion correctly recognizes that the City of St. Louis (City) lacks sovereign immunity for its negligence when supplying water, the opinion errs when determining that the City has no common law duty to the Junior College District (College) for the safe provision of its water services.1
The City‘s charter provides that its water division has the special charge for the “operation and maintenance of the waterworks and of all facilities for the acquisition and distribution of water.”2 As soon as the City began acting, in its private, proprietary, corporate capacity, to construct the public water works, it entered upon an undertaking “which, in all its details, should be subordinated to the rule requiring the use of care, for the work is then ministerial.”3 This duty necessarily
The principal opinion concludes that the City‘s duty ends with maintaining the water main itself, and that the relevant city ordinances, if ascribing any duty at all, “suggest” that it is the College‘s burden to maintain access to the stop-boxes, shut-off valves and supply lines. However, access to the stop-box containing the shut-off valve for the broken water line was denied to the College by the City‘s re-paving of the street, and ordinance 23.12.020 requires the City to give notice to the property owner under such circumstances—notice that the City failed to provide. Moreover, the City has exclusive control over the roadway pursuant to section
The trial court appropriately noted that the City cannot be held liable for the violation of its own ordinances, but those ordinances can be used to determine the City‘s standard of care when operating its water division.7 The City breached the standard of care in ordinance 23.12.020 when failing to provide the College with notice of its paving over the stop-box. And while ordinance 23.04.185, expressly declaring it is City‘s duty to make the shut-off valve accessible, does not apply retroactively from its enactment in 1993, it demonstrates scienter on the part of the City and the water division. The City was fully aware that it had been paving over stop-boxes and eliminating private access to control valves, thereby placing property owners at risk should a water pipe rupture.
The City also affirmatively declared, and subsequently breached, its duty to maintain access to the stop-box as revealed in the water division‘s foreman‘s manual (WDFM). The notation in the “elevation view” of the WDFM schematic of the College‘s access to the water main unequivocally states: “Concrete Valve Box Maintained by the Water Division At the Expense of the Owner.” In the “plan view” of this schematic the stop-box is clearly labeled “Concrete Valve Box Purchased, Installed, Owned By The Owner And Maintained By Water Division At Owner‘s Expense.”5 The water division by its own declaration had assumed the duty of care of maintaining the stop-box, and maintenance by necessity requires access.
While not part of the stipulated facts, it is instructive to examine some of the City‘s remaining ordinances that confirm it is the City who possesses the highest degree of control and maintenance over the instrumentality producing the College‘s damages. The City dictates the exact apparatus and/or the specifications of аll of the instrumentality used to tap and control the flow of water from the City‘s water main. All taps, stopcocks (valves), stop-boxes (valve access boxes), service lines, meters, and meter boxes are controlled by the City, despite being owned by the property holder.9 In fact, the fire-line that broke was an eight-inch service line making it the City‘s duty to install the tap, tapping valves and water meter.10
More telling is the City‘s ordinance 23.04.070 setting the standard on how repairs are to be made on service lines. The City‘s standard of care requires the City to shut off the water to any premises where the owner‘s water pipes and attachments are in disrepair or where there is an emergency impairment of the instrumentality. A broken water line is certainly one that is in disrepair and one that requires maintenance. The City breached its standard of care to shut the water off until the College brought the instrumentality back into conformity with the City‘s regulations. Moreover, failure to maintain access to the shut-off valve crеated an emergency impairment to the proper control of the water.
Casting all of the City‘s ordinances aside, it is an inescapable fact that the City exercises total control of the primary instrumentality of its water division, namely the water itself. The principal opinion places all liability on the College based upon ownership of the service lines and concludes the City could only be liable if the City‘s property caused injury to the College‘s property. Not only did the City control the instrumentality that produced the damage to the College, the water and its delivery system, the City owned the water. More than 500,000 gallons of City water flooded the College.11 It was the
In short, the City controlled all of the instrumentality used in delivering water to the College. The City controlled access to the stop-boxes, having exclusive control of the road pursuant to section
The trial court may have improperly applied ordinance 23.04.185 retroactively to reach its result that the City breached its duty in the safe provision of water, but its conclusion was correct. When the trial сourt‘s decision is correct, even if based upon different reasoning, that decision will not be disturbed because the trial court gave a wrong or insufficient reason for it.13