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Graham v. Town of Latta

Court of Appeals of South Carolina

March 30, 2016

Claude W. Graham, Respondent/Appellant,
v.
Town of Latta, South Carolina, Appellant/Respondent. And Vickie B. Graham, Respondent/Appellant,
v.
Town of Latta, South Carolina, Appellant/Respondent. Appellate Case No. 2013-000752

Heard March 3, 2015

Appeal From Dillon County Alison Renee Lee, Circuit Court Judge

Andrew F. Lindemann, Michael B. Wren, and Daniel C. Plyler, of Davidson & Lindemann, P.A., of Columbia, for Appellants/Respondents.

Reynolds Williams, of Willcox, Buyck & Williams, P.A., of Florence, for Respondents/Appellants.

MCDONALD, J.

In this negligence action arising from a municipal sewer system overflow, the Town of Latta (the Town) appeals the circuit court's denial of its motions for directed verdict and judgment notwithstanding the verdict (JNOV). On cross-appeal, Claude Graham and Vickie Graham (collectively, the Grahams) argue the circuit court erred in (1) directing a verdict in favor of the Town on Vickie Graham's claims for inverse condemnation and trespass, and (2) ruling the Town has an easement by prescription for the sewer line located on their property. We affirm.

FACTS/PROCEDURAL BACKGROUND

On November 19, 2008, the Grahams filed companion civil actions[1] alleging that on September 5–6 and 13, 2008, the Town's municipal sewer system backed up, overflowed, and flooded their property at 220 East Rice Street in Latta.[2] Claude Graham asserted a negligence claim and Vickie Graham asserted claims for negligence, inverse condemnation, and trespass. In addition to their claims for damages to real and personal property, the Grahams alleged that they became physically ill as a result of the sewage backup events and their aftermath. The circuit court called the consolidated cases to trial on October 8, 2012.

At trial, Mr. Graham testified his wife purchased their home in 1989 for $60, 000. The Grahams did not have the home inspected or the property surveyed before the purchase. Mrs. Graham testified that had she known there was a Town sewer line located under the property, she "would never have bought the house." Although the house was structurally sound when they purchased it, the Grahams spent a significant amount of time and money on renovations because the house was "in pretty bad shape." In addition to the money invested in the house during the initial remodel in 1989, the Grahams spent $40, 000 during a 2007 remodel.

Shortly after moving into the house, the Grahams began experiencing trouble with several toilets. Their plumber traced the problem to a stopped up sewer line in the backyard. The Town's director of public works at that time, Melvin Jackson, informed Mr. Graham that the main sewer line from another community runs across their property, under their house, and ties into the Town's main line on East Rice Street. At that time, the Town fixed the sewer line with a "repair strap" because it was leaking and causing a smell. Following the sewage backup events of September 6, 2008, the Grahams spent a significant amount of time and money cleaning up their yard and crawl space, as well as replacing their heating and air conditioning (HVAC) system and ductwork. Mr. Graham consulted the Town's mayor and an official from the Town's sewer system. Mr. Graham testified that, according to the mayor, the Department of Health and Environmental Control (DHEC) had informed the Town that "the mixture of the water in the sewer system . . . was contaminated[, ] and that [it] was the Town's responsibility." Mr. Graham declined the Town's offer to retain a service to "pump the stuff out from under the house, " because he "[d]idn't see any need for the Town to pay for what [he] was already doing."

Following another sewer overflow on September 13, 2008, ten to twelve inches of sewage collected under the Grahams' home, but "no water came into the house." Despite the Grahams' efforts to clean up the yard and underneath the house, foul odors remained in the Grahams' home and in their cars. After the September 13th overflow, the Grahams did not re-replace their HVAC system or the ductwork. Mr. Graham again reported the problem to the Town. On multiple occasions thereafter, the sewer line leaked and overflowed onto the Grahams' property and under their house. Upon their physician's recommendation, the Grahams moved out of the East Rice Street home in November 2008. Mr. Graham has consistently returned to the house for the limited purpose of mowing the yard, but he sees no reason to undertake repairs until the Town corrects the underlying problem with the sewer line.

Following the September 2008 overflows, the Grahams and their dog "kept getting sick." They went "back and forth to the doctor and [took] the dog to the vet . . . . We were all on medication." Mrs. Graham was initially treated for respiratory problems and ultimately for pneumonia. After the Grahams moved out of the home, Mrs. Graham went back to the house occasionally to get some clothes and once in 2009 to use the copy machine. On that occasion, she had a respiratory reaction and was rushed to the emergency room. She has not since been back inside the house.

On cross-examination, Mrs. Graham testified she and her husband had not cleaned the pool or the storage room and the sewer line is still leaking under the house. Although Mrs. Graham had the water turned off two or three years ago, there is still sewage in the crawl space. Mrs. Graham suffered bouts of bronchitis and pneumonia prior to the sewage overflows, but she denied having any bronchitis issues once she stopped visiting the East Rice Street house in 2009. Mrs. Graham explained that during this litigation, she received conflicting information as to whether the Town had an easement for the sewer line running beneath their property. The parties entered into evidence the following stipulation: "The parties stipulate that the Town of Latta is unable to produce a written instrument conveying an easement for a portion of the Town's sewer system which cross [sic] the property currently owned by Claude and Vickie Graham. 220 East Rice Street in Latta, South Carolina."

Dr. David Culpepper testified that the Grahams started coming to his practice in 2000. In the fall of 2008, he treated them "half a dozen" times each for "severe" respiratory tract symptoms and referred Mrs. Graham to "a specialist to check for allergies." When Dr. Culpepper learned about the sewage and mold in the Grahams' crawl space, he "encouraged them to seek other living quarters until the matter could be corrected." On cross-examination, Dr. Culpepper admitted the Grahams were treated for bronchitis prior to September 2008: Mrs. Graham was treated three times and Mr. Graham was treated five times. On re-direct, Dr. Culpepper opined as to whether the Grahams' health conditions between 2000 and 2007 were connected in any way to their health conditions between October 2008 and May 2009:

[I]t's common for patients to come in with . . . occasional respiratory tract symptoms. . . . [T]here [is] a possibility there were leaks during that time period when there was rain and mold developing that they just weren't aware of[.] . . . The difference is the intensity of the [symptoms and the] frequency of visits that began in 2008 with both patients experiencing symptoms.

Danielle Watson-a DHEC compliance officer for wastewater, stormwater, industrial water, and emergency response-testified that prior to September 2008, there were infiltration[3] problems with the Town's sewer system and several compliance issues regarding the Town's wastewater. Watson explained that following Tropical Storm Hanna, stormwater got into the sewer system, causing the lines to overflow. She observed debris from the sewer line located on the Grahams' property and either stormwater or wastewater under their house.

Watson testified it is the Town's responsibility to maintain, operate, and install the sewer line. She then testified that she informed the Town:

A: [T]he area had to be cleaned up, and that usually when we clean up an area we add agricultural lime[, ] which helps bring up the PH[, ] which will help kill the bacteria and also cut down on the smell. All the solids had to be taken up and then lime the areas that were having overflows.
. . . .
Q: Okay. Did you discuss actions that could be taken to prevent such things from happening again in the future?
A: Yes, sir. We actually had asked the Town to do some studies on the system to see where they were having problems with water getting into it.
Q: And where [sic] those studies done to your knowledge?
A: I know a smoke [testing] was done. Yes.
Q: Have . . . the problems that were identified been corrected to your satisfaction?
A: Some of them have, but not all of them that I know of.

On cross-examination, Watson agreed the Town has been responsive to DHEC's recommendations. She admitted that infiltration problems are "fairly common, " and she has seen "quite a few" incidents where an overflow seeps under a house. Watson explained that DHEC maintains a list of contractors that pump water out from under houses as well as clean and sanitize such overflow. She also explained DHEC's "Recommendations for Sewer Clean-up in Residential Homes" form:

1. All furnishings, especially rugs, should be discarded. All non-porous surfaces which haven't been damaged by water should be washed down with a disinfectant solution.
2. For areas where water has fully penetrated the floors, the underlying floor insulation should be replaced. Even though the interior floor surface could be treated with a disinfection solution, the saturated insulation materials could pose a mold/mildew problem . . . [and] adversely affect an individual's health.
3. Prior to doing any work within crawl spaces, it is suggested that the soil be treated with a disinfectant to reduce the risk of disease transmission . . . . The nature and extent of this treatment will depend on the amount of wastewater . . . that could have entered the crawl space through the floor above.
4. Clean-up of the HVAC [depends] on the specific heating unit . . . . If wastewater intrusion has occurred, it is suggested that these ventilation ducts be removed and replaced . . . . [T]he entire duct system serving the first floor should be evaluated for evidence of wastewater[, ] [and] [i]f necessary, they may need to be replaced. The coils under the home should also be checked to ensure that fecal matter has not gone down into this part of the heating unit. If found, the coils should be adequately disinfected.

Roger Davis, a mechanical engineer who has worked as a consulting engineer for the past thirteen years, was qualified without objection as an expert in mechanical engineering. The circuit court further qualified Davis as an "environmental engineer in the field of waste disposal" over the Town's objection. Davis testified about the localized flooding from the passing tropical storm:

The flooding from the ditch adjacent to the Graham property. I think they call it the Main Town Ditch or something like that. It's kind of the main drainage channel for that area. Flooding from that ditch flooded the yard and surrounding streets around the Graham residence on that occasion.
But they also experienced release of sewage from the sewage system or sewage collector lines which ran across their property and underneath their house releasing the contents of the sewer line into this flooded area. There was also a release of sewage from the manholes in the street that were bubbling up through the flooded street at that time.
But there were also some other events which occurred both before and after that which involved the release of [sewage] from the collection system for the sewer in the Town of Latta. There was record [of] a number of complaints about those releases. There are some investigations that were done by the field investigator at D.H.E.C. documenting high levels of fecal chloroform bacteria in the ditches around the -- [abutting] the Graham property.

Based on his review of the Town's records, "[i]ncluding some engineering work done by consultants on behalf of the Town . . . to reroute that sewer line, " Davis opined that the sewer line at issue passes under the Grahams' house. Davis explained that "it's very unusual to find a residence built over a sewer line" for two reasons: (1) any problem with the sewer line will affect the house; and (2) there is no good access for maintenance. The sewer line was likely constructed in 1924. Davis testified that ...


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