Argued and Submitted November 10, 2011
Resubmitted January 7, 2013
On review from the Court of Appeals, CV07040247; CA
Michael A. Lehner, Lehner & Rodrigues PC, Portland, argued the cause and filed the brief for petitioner on review.
Kenneth P. Dobson, Chenoweth Law Group, PC, Portland, argued the cause and filed the brief for respondent on review and filed the response to the League of Oregon Cities' amicus curie brief.
Terence L. Thatcher, Senior Deputy City Attorney, Portland City Attorney's Office, Portland, filed a brief on behalf of amicus curiae League of Oregon Cities.
[355 Or. 341] LINDER, J.
The City of Milwaukie (the city) used highly pressurized water to clean the sewer lines adjacent to plaintiff's house, causing sewage to back up through toilets and bathroom fixtures. Plaintiff brought this action against the city seeking compensation for the damage to her home on two theories -- negligence and inverse condemnation. The trial court dismissed the negligence claim before trial as barred by the statute of limitations. See ORS 30.275 (requiring notice of tort claim against public body to be given within 180 days of injury). The inverse condemnation claim went to trial before a jury. At the close of plaintiff's case, the city moved for a directed verdict, arguing that the evidence did not establish a compensable taking of property under Article I, section 18, of the Oregon Constitution. The trial court denied the city's motion, and the jury found for plaintiff, awarding $58,333 in damages. On appeal, the Court of Appeals affirmed. Dunn v. City of Milwaukie, 241 Or.App. 95, 102, 250 P.3d 7 (2011). We allowed the city's petition for review to consider whether a backup of sewage water into a house and the resulting damage, as happened here in the course of maintenance and cleaning of the city's sewage system, amounts to a compensable taking of property. As we will explain, on the facts before us, we conclude that the city's actions did not give rise to a compensable taking. We therefore reverse the decision of the Court of Appeals.
On review, we state the facts in the light most favorable to plaintiff. As part of its maintenance of the city sewer system, the city regularly uses highly pressured water -- a process called " hydrocleaning" -- to clean the city's sewer lines. The hydrocleaning process permits the city, after the cleaning, to use a video camera to inspect the lines for breaks and repairs needed as part of preventative maintenance. Hydrocleaning can cause water in the sewer [355 Or. 342] lines to backflow through the lateral lines that run from the main sewer line into adjacent houses and then possibly backup through the toilets or other fixtures in the house. If a backup into a house occurs, the city designates the area involved on a map as a " low-pressure" area. That designation lets workers know to use reduced water pressure for future hydrocleaning in that area to prevent another water invasion. Plaintiff's house was not in an area marked for low pressure cleaning as of August 2005, when this backup occurred (although the area has since been so designated). As a result, the two city employees cleaning the sewer in the vicinity of plaintiff's house used the higher pressure that is routine for the hydrocleaning process.
Plaintiff first became aware of a backup when she heard a " loud roar," felt her house shake, and then saw " brown and gray gunky sewer water that stunk" come out of her toilets and bathroom fixtures. Soon afterwards, water was dripping from her bathroom ceiling and was three to four inches deep on the bathroom floor, flowing down the hallway and into her living room. Plaintiff went out and approached a woman standing near a city truck outside her house. The worker seemed " shocked" that sewer water was coming into plaintiff's house and offered her towels. Plaintiff cleaned the house herself with towels and a wet/dry vacuum. As far as the record shows, plaintiff did not vacate the house or otherwise have to interrupt her occupation of it.
About six or seven months after the sewage water backup, plaintiff began to notice that her wood floor felt clammy (and eventually began to buckle), her wallpaper began to peel, and at times she smelled a sewage-like scent. Over the next two months, plaintiff
hired several people to inspect her home for water and microbial damage and to provide repair estimates. About 10 months after the incident, plaintiff filed a formal complaint with the city. More inspections and repair estimates followed, and, ultimately, about 20 months after the incident, plaintiff brought this action against the city for negligence and inverse condemnation.
At trial, no witness could explain why the sewage backed up into plaintiff's house when it did. Plaintiff's house had been built in 1976, and plaintiff had lived in it since [355 Or. 343] 1984. There is no evidence that, before this incident, sewage had backed up into plaintiff's house or into any other house in the near vicinity as a result of the city's sewer maintenance activities. The two city workers who were hydrocleaning the sewers near plaintiff's house when the backup occurred explained that they did everything " by the book" and that their equipment was " operating properly" that day. They did not know why the sewer water backed up into plaintiff's house when it did. They could say only that backups into a house can occur for reasons relating to the vents in that house's plumbing and the design of the lateral lines running from the main sewer line to the house. A plumber who inspected plaintiff's house at some point after the backup found nothing out of the ordinary in the plumbing system itself, however. According to him, backups sometimes occur if the hydrocleaning cannot clear a blockage in the main line, which can cause sewage water in the main line to backup into a lateral line running to a nearby house. But he could not say why one area, and not another, might be prone to such backups.
By all accounts, however, sewage backups into adjacent homes during city hydrocleaning are rare. One of the two workers hydrocleaning near plaintiff's house when the backup occurred had worked for the city for about seven years. The backup into plaintiff's house was the only one that he had personally experienced, although a few years later he heard of one other. The plumber who inspected plaintiff's house was generally aware of other sewer backups such as the one into plaintiff's house, and he characterized them as " uncommon."
The sewage water that backed up into plaintiff's house caused damage to the wood floors, crawl space, and furnace. The estimated cost to repair that damage was [355 Or. 344] $57,905.83, plus another " couple thousand" to replace the vapor barrier and insulation in the crawlspace, and $8,000 for ruined carpets.
As earlier noted, at the close of plaintiff's case, the city moved for a directed verdict, arguing that plaintiff's evidence did not establish a compensable taking of property for purposes of Article I, section 18, of the Oregon Constitution. The city argued in particular that, to prove a compensable taking, plaintiff had to demonstrate that the city had acted intentionally, which required evidence that the city took the actions that it did knowing that the invasion of plaintiff's property was " substantially certain" to occur or was otherwise a " normal consequence" of the city's actions. Plaintiff, in response, argued that she had to show only that the backup
into her house was the " natural and ordinary consequence" of the city's actions and that where, as here, there was no evidence of any other causes, the evidence was sufficient to go to the jury. The trial court denied the motion for directed verdict. The jury found in favor of plaintiff and awarded plaintiff $58,333 in compensation.
The city appealed, challenging, among other issues, the denial of its motion for directed verdict. In support of their respective positions, the parties effectively renewed the arguments that they had advanced to the trial court. Relying on this court's decision in Vokoun v. City of Lake Oswego, 335 Or. 19, 56 P.3d 396 (2002), the Court of Appeals affirmed. It agreed with the city that intent was a necessary [355 Or. 345] element of plaintiff's claim, but reasoned that the jury reasonably could infer the city's intent to cause the sewer backup if the backup was " a natural and ordinary consequence" of the city's sewer cleaning:
" The question is not whether the harmful result occurs frequently; it is whether the result is a natural and ordinary consequence of the government's action at the time and place where that action occurred. * * * [A] consequence that was the last link in a chain of events that began with the governmental action and proceeded, ...