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

With the ordinance passing five years after the city paved over the college's manhole, the court had to determine whether the city intended to apply this ordinance to all existing hidden manholes or to current street repair and maintenance projects.

Examining the context in which the city created this ordinance, the majority noted that the city left in effect two other ordinances putting responsibility with the owner in making the shut-off valves accessible. With these other ordinances in mind, the high court determined that the city never intended to locate all hidden shut- off valves and stop boxes.

While the College states that it would be good public policy for the City to make all such stop boxes and valves accessible, the issue is not what would be good public policy, but what the City in fact intended when it adopted the ordinance, Stith wrote.

Judge Ronnie L. White disagreed with this finding as well as others in his dissent, in which he, along with Judge Richard B. Teitelman, held that the city had a common-law duty to provide safe services.

Significant to his decision was the fact that the city owned the 500,000 gallons of water that damaged the college's property.

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, he wrote. 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.

Other keynote items to his findings dealt with a provision in the city's charter expressing the requirement of use of care, which he interpreted to apply to maintaining the water delivery system so it would not injure private property, as well as ordinance 23.12.020, which requires the city to notify property owners in instances such as repaving a road over a manhole.

He also disagreed with the majority's determination that it was the responsibility of the property owner to make the valve and stop box accessible because the college could not modify the city- controlled road without the city's permission.

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, White wrote. 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.

Stith made mention of that issue in her opinion but noted that because the college sued under common-law claims that sidestepped the Section 537.600 dangerous condition issue and the $100,000 cap on recovery, the court could not touch upon the issue.