United States District Court, W.D. New York
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Charles C. Ritter, Jr., Duke, Holzman, Photiadis & Gresens, LLP, Buffalo, NY, Douglas B. Fox, Cozen O'Connor, Philadelphia, PA, for Plaintiff.
Marilyn L. Fiore-Nieves, City of Jamestown-Corporation Counsel, Jamestown, NY, for Defendant.
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
This action is brought by an insurance company to recover approximately $392,000 it paid to an insured for property damage allegedly caused by municipal negligence. On August 9, 2009, a drainage culvert in Jamestown, New York, became clogged with tree limbs and branches during very heavy rain. Storm water backed up and flooded part of a hospital. The plaintiff, The American Insurance Company (" AIC" ), paid the hospital for the flood damage.
Plaintiff AIC alleges that the defendant, the City of Jamestown, caused the flood damage to the hospital by failing to inspect and maintain the drainage culvert. Plaintiff brings the action as subrogee under the hospital's insurance policy to recover fro Jamestown the $392,000 insurance payment to the hospital.
The Court has subject-matter jurisdiction due to diversity of citizenship of the parties. 28 U.S.C. § 1332(a). The action is before the Court for review of a Report and Recommendation (the " R & R" ) by Magistrate Judge Hugh B. Scott on a motion for summary judgment by defendant Jamestown pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. The R & R recommended that the Court grant summary judgment to Jamestown on the ground that plaintiff AIC lacks sufficient evidence to establish that Jamestown was negligent. Pre-trial discovery is complete. For the reasons that follow, on findings different from those in the R & R, the Court adopts the recommendation of the R & R and grants summary judgment to Jamestown.
The Court finds that a provision of the City of Jamestown Charter required Jamestown to have been given prior written notice of a " defective, out-of-repair ... or obstructed condition" of the drainage culvert that caused the flooding at the hospital before a negligence cause of action could be maintained against Jamestown. Charter, § C-68. Because Jamestown was not given the required notice, it did not owe a legally recognized duty of care with respect to a defective, out-of-repair, or obstructed culvert and plaintiff AIC's negligence claim is unsustainable as a matter of law.
Even if the prior notification requirement in the Jamestown Charter does not bar plaintiff AIC's negligence claim, plaintiff lacks sufficient evidence to establish Jamestown was aware, or constructively aware, of the dangerous or obstructed condition of the drainage culvert before the culvert became clogged on August 9, 2009. Without this showing, plaintiff is unable to satisfy a threshold legal requirement that Jamestown owed the hospital a duty of care with respect to the culvert. The Court therefore grants summary judgment to Jamestown on plaintiff AIC's negligence claim.
From August 8th through August 10th, 2009, heavy rains fell during storms over the City of Jamestown, New York. Flooding and other storm-related damage was so severe that Jamestown received disaster-relief
assistance from the Federal Emergency Management Agency and the New York State Emergency Management Office.
During these storms, on Sunday, August 9th, a drainage culvert located near the intersection of Camp Street and West Virginia Boulevard in Jamestown (the " Camp Street culvert" ) became clogged primarily with tree limbs and branches during a heavy downpour of rain. Storm water backed up at the mouth of the culvert and flowed down nearby streets and into the parking lot and emergency department of The Women's Christian Hospital Association (the " WCA Hospital" ) approximately 1,500 feet away. The WCA Hospital, which is situated in a low-lying area, suffered property damage because of the clog and flooding. The plaintiff, The American Insurance Company, paid the hospital more than $392,000 under the hospital's insurance policy for the damage.
The Camp Street culvert, in which the clog occurred, begins with a semicircular stone arch at the mouth of the culvert on the south side of Camp Street. Before the arch, to the south, a small stream known as Minnow Creek flows into the mouth of the culvert through a wooded draw. Minnow Creek is fed by several offshoots upstream from the culvert.
The Camp Street culvert was rebuilt by Jamestown in 2007. Inside the mouth of the culvert, a concrete chamber catches runoff and storm water. Twin thirty-six inch diameter corrugated plastic pipes drain from the concrete chamber, side-by-side, under Camp Street, to another concrete chamber where the culvert feeds into one of four main branches of Jamestown's storm water drainage system. That branch of the drainage system continues underground, generally north of Camp Street, until it discharges into the Chadakoin River, which is north of the WCA Hospital. The culvert is accessible by manhole.
The August 9, 2009 clog of the Camp Street culvert extended roughly 100 feet inside the mouth of the culvert at Minnow Creek. Before the August 9, 2009 clog and flooding, Jamestown had not been given written notice of an obstruction or of clogging of the culvert, or of any condition that could cause the culvert to become obstructed or clogged.
Before the August 9, 2009 clog and flooding, Jamestown's practice was to check its storm water drainage system for blockages and potential blockages from time to time. These inspections were incidental to other work on the drainage system, in response to citizen complaints, or the work of a stand-by cleaning crew that would rotate though Jamestown cleaning the entire system, including catch basins. Jamestown had no written policy for the frequency of inspections, or the scope of the inspections, but the practice was for the cleaning crew to use a flusher truck and rods to clean approximately one quarter of the entire system annually.
Jamestown kept no records of the inspections and cleaning work on the drainage system. Dates of the work, locations of the work, and conditions found in the drainage system were not documented. Locations in the drainage system that had problems in the past were given more attention, but no documentation shows where, when and how these problems occurred and how they were addressed by Jamestown.
There had been some prior flooding at or near the WCA Hospital. There had been other occasions when Jamestown's storm water drainage system clogged in other parts of Jamestown, and Jamestown had studied other parts of the system to address those problems.
There had been no other occasions when the Camp Street culvert had clogged or been found to be even partially clogged. No witnesses or documents have been located showing any prior clogging or even a debris-collection problem at or in this culvert.
The Jamestown Streets and Sewer Supervisor testified during pretrial discovery that he lives not far from the Camp Street culvert and would sometimes drive over it on his way to and from work in the years before the clog and flooding on August 9, 2009. The Supervisor recalled he had personally checked under the manhole cover at the spot where the culvert clogged to see how water was flowing through the twin, 36-inch diameter pipes in the culvert under Camp Street. He was unable to recall how many times he had checked the water flow through the culvert before the clog and flooding. He did not recall whether the mouth of the culvert at the arch headwall of the culvert where Minnow Creek feeds into the culvert had ever been visually inspected.
After the August 9, 2009 clog of the Camp Street culvert and flooding, Jamestown sought permission from the New York State Department of Environmental Conservation (the " DEC" ) to install a debris-collection gate across the eight-to ten-foot width of Minnow Creek at the mouth of the culvert to stop large tree limbs and branches from entering the culvert during heavy runoff. October 9, 2009 correspondence sent by Jamestown to the DEC for this purpose stated:
The concrete chamber on the South side of Camp Street periodically traps organic debris, thus causing a water backup or surcharge where Minnow Brook enters the arch culvert,....
Despite the letter, no witness remembers any part of the culvert trapping organic or other debris any time prior to the August 9, 2009 clog and flooding. The reference in the letter to " periodically traps organic debris ... causing a water backup" was prompted by the August 9, 2009 clog and flooding.
The Report and Recommendation.
The standard of review of a Magistrate Judge's report and recommendation is de novo for any findings to which a party specifically objects. Fed.R.Civ.P. 72(b); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). The Court reviews unobjected-to findings for clear error. Charvenko v. Barbera, 2011 WL 1659882 at *1 (W.D.N.Y. May 3, 2011).
Pursuant to these standards of review, the Court finds that Jamestown did not owe the WCA Hospital a duty of care with respect to the condition of the Camp Street culvert when the flooding occurred. The Court adopts the conclusion of the R & R to grant summary judgment to Jamestown, but not for the reasons stated in the R & R.
The R & R first recommended that the Court deny summary judgment to Jamestown based upon Jamestown's argument that the negligence claim of plaintiff AIC may not be maintained since Jamestown had not been given prior written notification as required by § C-68 of the Jamestown Charter of a defective, out-of-repair, or obstructed condition of the culvert that became clogged. The R & R found that the prior notification requirement could not be applied on summary judgment before a jury decides a foreseeability question. The Court finds that reasoning clearly ...