This is an appeal from a jury verdict in favor of plaintiffs, the Jacksons, in a suit they brought against the City of Mobile to recover for damages to their real and personal property when a drainage system overflowed and flooded their property. We affirm.
The Jacksons' home is located in a subdivision off the Dauphin Island Parkway in Mobile. Their property fronts a service road which was constructed by the city. This service road has a drainage ditch running between it and Dauphin Island Parkway. The service road, the drainage ditch, and Dauphin Island Parkway parallel their property. Their property is located below the grade of the Parkway, service road, and ditch. At the time the Jacksons purchased their property, the adjacent property was undeveloped and was on the same grade as their own. Waters from the service road ran down the side of their property, collected with surface waters along the rear property line and flowed along the rear property line toward Robinson Bayou.
In 1976, the City of Mobile issued a permit for construction on the adjacent property. The permit specified that the property was to be elevated to a grade above the
Construction commenced approximately three years after the enactment of a city ordinance which regulated development of property in flood-prone areas.
The Jacksons' property was "grandfathered" out of the 1973 ordinance—as was all pre-existing development—because of the overwhelming financial burden that would be imposed if existing structures had to be "raised" to new finished floor levels. To obtain the requisite finished floor elevation, the developer brought in fill dirt, which filled in the natural swale behind the Jacksons' property and elevated the adjacent land three feet higher than the Jacksons' property. This caused the water to be dammed up rather than flow along the natural backyard drainage swale. Thereafter, duplexes were constructed on the adjacent property. The Jacksons then began to experience the ponding of water in their backyard.
The Jacksons alerted the Public Works Department of the City of Mobile, and improvements were made along the service road in front of the Jacksons' property consisting of an earthen berm running on the west side of the service road and the ditch fronting Dauphin Island Parkway. This was done to increase the storage capacity of the ditch. After installing the berm, the city cut slits or weirs into the berm. The berm is higher than the Jacksons' property. On April 13, 1980, waters flowing from the ditch and service road entered the Jackson home. The water caused substantial damage to the structure and to personal property located in the house.
The Jacksons vacated the premises and lived in a camper parked in their backyard. After the April 13, 1980, event, Mr. Jim Chapman, Assistant City Engineer, as a result of calls by Mr. Jackson, viewed the Jackson property and recommended that the two culverts be changed to one 48-inch culvert and that a 36-inch pipe be installed to the rear of the property to handle the waters running along the rear of the Jackson property.
These recommendations were not acted upon before May 17, 1980, when water again entered the Jackson home and caused further damage.
The Jacksons submitted a claim dated August 26, 1980, itemizing damage to their home and its contents at $19,000. This figure did not include damages for inconvenience and mental anguish. On January 26, 1981, the Jacksons filed suit against the City of Mobile for the water damage to their property. The jury returned a verdict in their favor in the amount of $58,144 and the city appeals here, raising five issues.
The first issue raised is whether the Jacksons timely filed their notice of claim and their subsequent lawsuit pursuant to Code 1975, § 11-47-23 and § 6-2-39, respectively.
The city cites Timmons v. City of Prichard, 445 So.2d 895 (Ala.1984), and Burge v. Jefferson County, 409 So.2d 800 (Ala. 1982), to support its proposition that the Jacksons should have filed their notice of claim and their lawsuit six months, and one year, respectively, after the completion of the duplexes when the water started to pool on their property and, thus, when the damage first commenced.
In Timmons, landowners brought an action seeking to enjoin and restrain the City of Prichard from maintaining, or permitting the maintenance of, the sewage system in such a manner as to permit it to overflow onto their property. The sewage line was installed in May 1979, and because plaintiffs' suit to enjoin a permanent, unabatable nuisance was not filed until 1982, this Court held that the suit was untimely because "[n]either a claim nor the suit was filed within the six-month period prescribed by § 11-47-23, Code 1975."
In Burge, plaintiff complained that defendant filled in a drainage ditch and thereby
Based on the facts presented, we must decide when the statutes of limitations commenced to run in this case. Pursuant to the above case law, it appears that if the construction of the duplexes created a permanent unabatable nuisance and was the sole cause alleged for the damage complained of here, the Jacksons filed their notice of claim and their lawsuit too late. Here, however, the Jacksons also allege that the flooding was a result of negligent design and maintenance of the drainage system. In addition, no legal cause of action arose when the construction of the duplexes was completed. This Court addressed a similar problem in Bradley & McWhirter, Inc. v. Conklan, 278 Ala. 395, 178 So.2d 551 (1965).
The Bradley court thoroughly reviewed this area of the law, as follows:
278 Ala. at 395, 178 So.2d at 554-55.
Assuming the jury found that the buildup of the adjacent property caused the flooding, we find that, based on the facts presented here, the Bradley case must control our disposition of this case. Here, the construction itself did not create a cause of action and thus, whatever legal injury resulted from the construction created a cause of action when the injury occurred, and that is when the statute began to run. The injury complained of by the Jacksons occurred on April 13, 1980, and May 17, 1980, the dates the water came into their home. Their notice of claim was filed on August 26, 1980, and their lawsuit was filed on January 26, 1981.
In addition to the nuisance theory, the plaintiffs also allege that the flooding was a result of negligent design and maintenance of the drainage system. Regardless of which theory the jury utilized to find in favor of the plaintiffs, we must conclude that the present cause was timely initiated and is not barred by the statute of limitations.
Next, the city cites Rich v. City of Mobile, 410 So.2d 385 (Ala.1982), to support its proposition that it is substantively immune from suit in this case. In Rich, homeowners sued the city, alleging that a building inspector negligently inspected, or negligently failed to inspect, sewer lines connecting plaintiffs' residence to the main system. Rich created a narrow exception to the rule of general liability for municipalities in situations in which the public policy considerations of a city's paramount responsibility to provide for the public safety, health, and general welfare outweighed the reasons for the imposition of liability on the municipality. This exception to the general rule of liability, however, is to be applied only in "those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services." Rich, 410 So.2d at 387.
We find that Rich is not applicable to the case at hand.
In Kennedy v. City of Montgomery, 423 So.2d 187 (Ala.1982), this Court held that pursuant to Code 1975, § 11-50-50, municipalities are authorized to construct and maintain drainage systems, and, while a municipality is not required to exercise this authority, once it does so, a duty of care arises and a municipality may be liable for damages proximately caused by its negligence.
We find that the liability for negligent design or maintenance of drainage systems is analogous to that involved in the construction and maintenance of streets, alleys, or public ways or buildings, and, thus, that the city is not immune in this case.
Third, the city contends that there was insufficient evidence to support a finding of negligence. We disagree.
It is well settled in this state that a jury's determination of factual issues will not be disturbed unless it appears plainly and palpably wrong. Southeast Alabama
Fourth, the city argues that the pattern jury charge on the act-of-God defense is misleading and prejudicial to the city in defending flood suits. See Alabama Pattern Jury Instructions: Civil § 28.18.
We find that the Alabama pattern jury charge on the act-of-God defense is a correct statement of law. As this Court held in Bradford v. Stanley, 355 So.2d 328 (Ala. 1978), the act-of-God defense applies only to events in nature so extraordinary that the history of climatic variations and other conditions, in particular localities, affords no reasonable warning of them. Citing Gulf Red Cedar Company v. Walker, 132 Ala. 553, 31 So. 374 (1902), the Court went further, to state that it was a jury question as to whether the rainfall was so unprecedented as to be deemed an act of God, and that the jury's determination would not be disturbed unless it appeared plainly and palpably wrong.
The holding in Bradford is dispositive in the instant cause, as the act-of-God charge given by the court in this case properly instructed the jury that the term "act of God" applied to events so extraordinary that the history of climatic conditions and variations in a particular locality would afford no reasonable warning. In fact, this wording, verbatim, was contained in the act-of-God charge. Additionally, there is conflicting testimony in the record as to the classification of the April 1980 and May 1980 rains, and it was for the jury to determine whether the rainfall was so unprecedented as to be deemed an act of God; that determination, along with the jury's verdict in this cause, will not be disturbed unless plainly and palpably wrong. Thus, we find that the act-of-God charge given by the trial judge was proper, and the jury's determination in regard to the act-of-God charge will not be altered, since it is supported by the record.
Finally, the city contends that the Jacksons should be limited to the amount sought in their notice of claim. We disagree.
In Perrine v. Southern Bitulithic Company, 190 Ala. 96, 98, 66 So. 705 (1914), this Court held as follows:
190 Ala. at 98-99, 66 So. at 706.
In this case, Cleve Jackson filed a claim with the City, which read, in part, as follows:
We find, therefore, that Jackson claimed an amount in excess of $19,000 in his original claim filed with the City. In their complaint, the Jacksons claimed $150,000 as total damages. Under the facts of this case, we do not believe the Jacksons would be limited to a recovery of $19,000, because in Mr. Jackson's original claim, he notified the City of Mobile that the $19,000 figure "[did] not cover my inconvenience and mental anguish that [his] family and [he had] suffered since the home [they] lived in was flooded." We find no error in the trial court's judgment awarding the Jacksons $58,000 based upon the jury verdict in the Jacksons' favor in this amount.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ.