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Garr v. City of Ottumwa

Supreme Court of Iowa

May 2, 2014

DAVID P. GARR JR. and JULIE A. GARR, Appellees,
v.
CITY OF OTTUMWA, IOWA, Appellant

Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson, Judge. City appeals the district court's denial of its motion for judgment notwithstanding the verdict after the jury awarded the plaintiffs damages for property damage allegedly caused by the City's negligent storm water management.

REVERSED AND REMANDED.

Mark W. Thomas and Robert J. Thole of Grefe & Sidney, P.L.C., Des Moines, for appellant.

John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for appellees.

OPINION

Page 866

ZAGER, Justice.

Property owners sued a city alleging the city negligently approved a development that caused flooding to the downstream property owners' home. A jury returned a verdict in favor of the property owners and awarded them damages. The district court then denied the city's motion for judgment notwithstanding the verdict, and the city appealed. We retained the appeal. For the reasons set forth below, we reverse.

I. Background Facts and Proceedings.

In the 1940s, the federal government constructed an officers' club at 3105 North Court Road in Wapello County, Iowa. At some point, the club was remodeled into a residence. In 1971, the City of Ottumwa (the City) annexed the property and the surrounding area. In 1980, the City declared the property to be within a 100-year floodplain. In December 1997, David and Julie Garr purchased the property at 3105 North Court Road to use as their residence.

Located north-to-northwest of the Garrs' residence is a golf course. The golf course was constructed in the 1960s and was annexed by the City in 1975. The City maintains the golf course. In 2001, an irrigation pond was dug and a new sprinkler system was installed at the golf course. Drainage tile on the golf course, damaged during the sprinkler system installation, was also repaired. Storm water from the golf course drains into Little Cedar Creek.

Page 867

Located northwest of the golf course and the Garrs' property is Quail Creek Addition. The City approved Quail Creek Addition in 1995, and it sits on approximately forty-four acres of land. When the Garrs bought their home in 1997, only a few houses had been constructed at Quail Creek Addition. Since approval of the addition, approximately twenty-eight homes have been constructed in the addition, most of them after 2000. Storm water from Quail Creek Addition drains into Little Cedar Creek, which lies south of the addition.

Located to the south of the Garrs' residence, approximately sixty-four feet from the Garrs' garage, is Little Cedar Creek. The creek flows behind Quail Creek Addition, through the golf course in a southeasterly direction, behind the Garrs' residence, and ultimately through a box culvert under state-owned Highway 63/149. The highway sits to the east of the Garrs' residence and runs in a north--south direction. The distance from the Garrs' garage to the shoulder of Highway 63/149 is about sixty-eight feet.

Like water from Quail Creek Addition, water from the Garrs' property and the golf course drains into Little Cedar Creek. In all, the Little Cedar Creek watershed (the area of land from which all of the water drains to the same place) is made up of about 2075 acres. Quail Creek Addition comprises about two percent of the total watershed.

According to David Garr, from the time the Garrs purchased their home until 2002, Little Cedar Creek rose above its bank a couple of times each year, and the Garrs occasionally had a trickle of water into their basement. In 2002, the Garrs waterproofed and remodeled their basement. Two years later they began to experience problems from the flooding of Little Cedar Creek. Each year, flooding from the creek would get worse, with the water from the creek rising farther above its banks. Water eventually permeated the ground and put pressure on their basement wall.

The Garrs estimated that between 2004 and 2010, they had water in their basement at least 100 different times. In 2010 alone, David estimated there was at least one foot of water in their basement on at least twenty-five different occasions. On one occasion in 2008, water filled the Garrs' basement to its seven-foot ceiling. On this occasion, the Garrs filed an insurance claim and received $5000. They used the money to clean up the basement and replace damaged property.

David estimated that at least a dozen times between 2008 and 2010, he spoke with Keith Caviness, a member of the Ottumwa City Council. According to Caviness, however, he spoke with David one time in 2008 and not again until August 2010. When they spoke, David asked Caviness to have the City investigate the flooding problem.

David also tried to contact the Ottumwa Public Works director on multiple occasions, speaking with him just once in April 2010. According to David, despite a general agreement to have an employee come to the Garrs' property and examine Little Cedar Creek, the City never ...


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