St. Louis City not responsible for flood at junior college, rules MO

Daily Record and the Kansas City Daily News-Press, Oct 15, 2004 by Emily Umbright

The Missouri Supreme Court put an end on Tuesday to an ongoing dispute between the city of St. Louis and the Junior College District of St. Louis, flushing 500,000 gallons of old water and a nearly $8.26 million damage and interest award down the drain.

Taking up the dispute upon transfer from the Missouri Court of Appeals, Eastern District, the Supreme Court held that the city did not have a duty to stop the flow of water that came crashing through the Forest Park Community College in October 1997 because the damages occurred in the college's own fire water pipe.

The problem stems from the city's 1987 expansion of Oakland Avenue, which runs in front of the college, that caused the college's water and fire line stop boxes to become located under the road; however, only the manhole cover for the water line was raised above the new paving. The city paved over the fire line manhole and neither marked its location nor notified the college of the paving.

When the fire line burst at 3 p.m. on Oct. 23, 1997, college employees tried to stop the flow of water by shutting of the water supply valve, but the water kept flowing, and the college called both the city and a private plumber for help. The city arrived at 3:25 p.m. with a copy of the engineering drawings that showed the location of the stop box. The college also had a copy, located in a now flooded basement office.

At 5 p.m., the city workers left the scene, with the water still flowing, to attend to another unrelated water issue. They returned at 6:30 p.m. to locate the source of the water, which continued to flood the school until about 8 p.m., at which time the city officials located the fire line through the drawings.

Because the accident occurred on the college's pipe, it assumed liability for the first million dollars in damages accrued during the break's initial 20 minutes. However, it sought and received more than $5.8 million from the city for damages incurred from the flooding afterward. The trial court also granted the college an additional $2.4 million in prejudgment interest.

On appeal, the city initially claimed the water division could not be blamed because the city's street department did the repaving. It also maintained throughout the course of the appeal that it did not have a duty under common law to keep the stop boxes or shut-off valves accessible to the college, to warn the college about their location or to train its employees on how to find the college's boxes and valves.

It argues that the City's negligence, if any, was in paving over the manhole cover, not in any of the water division functions, and that the paving over the manhole cover constitutes a condition of public property, wrote Judge Laura Denvir Stith for the majority.

Additionally the city denied its liability under sovereign immunity as applied to paving in Sections 537.600(2) and 531.610 RSMo 1994.

The college countered by pointing out that the city made a profit from the water it sold to the college and was therefore acting in the proprietary capacity of a water supplier. Hence, it refuted the use of Section 537.600, dealing with recovery for dangerous conditions of public property, because its suit did not involve public property.

Instead, the college claimed the city was liable under common law because the city and water division had a duty to keep the shut-off valve accessible, to mark the location of the manhole, to notify the college of its location or to train its employees to locate and shut the valve off in a timely fashion.

Although the high court agreed that sovereign immunity did not blanket the city in this case, it did not side with the college on the other issues.

Pivotal to its decision was the fact that the city owned neither the fire line, where the break occurred, nor the shut-off valve. The college cited no cases illustrating how the city had a duty to make the valves accessible or train its employees to locate a privately owned stop box, the opinion stated.

The college's botched claim about the city's duty to train its employees to find the stop box failed not only because of the college's inability to point to case law but also because the city employees did not worsen the situation since no one could find the drawings that showed the location of the fire line manhole.

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 their initial call for help, Stith wrote.

The College had its own copy of the drawings, although they were inaccessible, she said. In any event neither the College nor the City apparently knew how to use the drawings to identify the location of the stop box.

Pushing common-law claims out the window, the college finally asserted that the city had a duty and standard of care as provided by ordinance 23.04.185, which requires the city to expose or make accessible stop boxes when it is responsible for covering them up.