Thursday, August 25, 2011

Down the Drain



Cheney v. City of Montpelier, 2011 VT 80 (mem.).

In Vermont any claim of damages under $5000 can be brought to small claims court where the process allows parties to quickly and efficiently litigate their issues.  While many of these cases involve collection matters or minor disputes, the court is open to larger, more complicated claims.  As today’s case illustrates, the average small claims court case can raise all kinds of sophisticated questions of liability and causation.


Plaintiff owns rental property in beautiful downtown Montpelier.  One cold night in February 2009, a cast iron water pipe, owned by the City, burst and sent water flooding into the basement of Plaintiff’s property resulting in $4600 in damages.

Plaintiff sued City in small claims court on a negligence and trespass theory.  He argued that the City was negligent in maintaining its water pipes, and given that there had been two other bursts in the area, should have repaired this section prior to its bursting and should be liable for ignoring a problem that was just waiting to bubble to the surface.   

The small claims court bought into Plaintiff’s arguments and ruled that the City was negligent in not maintaining its pipes and should have stepped up its maintenance program in the area once it was aware of the other two incidents.  Presumably the small claims court had a baseball analogy in mind and put its strike three obligation to the City. 

City naturally appealed to the trial court, where all small claims court cases go.  At this level, Plaintiff’s case received a less than flowing reception.  The trial court, upon review of the evidence, found that the small claims court’s decision lacked a factual foundation, a criticism that the SCOV picks up on in its opinion.  The trial court also zeroed in on Plaintiff’s lack of expert testimony to support its claim and explain exactly how and why the City’s water works engineering failed or how City’s actions caused the breach or damages.  In the end, the trial court reversed the small claims court and dismissed the claim against the City. 

Plaintiff, now one for two, brings his appeal to the SCOV—hoping to reassert his claims and revive his damages.  But the SCOV is even more lukewarm to Plaintiff’s position.  In its analysis, the SCOV sets aside the trial court’s analysis on the need for expert witness testimony and focuses on the issue of how, if at all, the City breached its duty of care to Plaintiff.  The SCOV finds that on review the record shows that the City had acted in a reasonable manner and that Plaintiff had presented no evidence to support its claim to the contrary. 

The pipe, while old, was buried at a proper depth to avoid frost and had a water flow below its originally stated capacity.  The City had acted in a prompt and timely manner once the burst occurred, and it had maintained a reasonable, if not perfect, maintenance schedule.  With such evidence, there is no way to conclude that the City acted in a manner below what any reasonable City should have done. 

The SCOV notes that, in fact, the only way that City could be liable under these circumstances would be through strict liability, a proposition for which no one has argued or presented evidence to support. 

The SCOV makes short work of Plaintiff’s claim that City created an unreasonable risk by keeping old pipes in the ground, just waiting to burst.  The SCOV concludes that no liability attaches to such passivity by the City since the pipes are normally safe and have been in the ground for nearly 100 years without incident.  City has simply not taken action to create an unreasonably dangerous condition on its land, and no accident will establish that to the contrary. 

The trial court is affirmed and Plaintiff’s case is dismissed.  So it flows.   

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