Per Curiam:
Brandy and Jonathan Pingley, plaintiffs below (hereinafter “the Pingleys”),
appeal from an order of the Circuit Court of Randolph County granting summary judgment
in favor of Huttonsville Public Service District, defendant below (hereinafter “HPSD”). (See footnote 1) In
this appeal, the Pingleys contend that it was error to grant HPSD summary judgment prior
to discovery being conducted in the case. After a careful review of the briefs, the record
submitted on appeal, and listening to the oral arguments, we reverse and remand this case for
further proceedings consistent with this opinion.
HPSD, through its insurer, allegedly spent over $60,000.00 repairing the
Pingleys' home and sewer line, and providing for the Pingleys during the repair period. The
Pingleys believed that they were not adequately compensated for the damage caused by the
sewage backup. Consequently, on June 9, 2008, the Pingleys filed the instant action against
HPSD. (See footnote 3) Prior to filing an answer to the complaint, HPSD filed a motion for summary
judgment on July 11, 2008. Thereafter, the Pingleys filed a response to HPSD's summary
judgment motion. The response included an affidavit under Rule 56(f) of the West Virginia
Rules of Civil Procedure. (See footnote 4) The Pingleys' Rule 56(f) affidavit indicated that they needed to
engage in discovery to defeat HPSD's motion for summary judgment. The circuit court, by
order entered December 11, 2008, granted HPSD's motion for summary judgment. From this
order, the Pingleys now appeal. (See footnote 5)
If the moving party makes a properly supported motion
for summary judgment and can show by affirmative evidence
that there is no genuine issue of a material fact, the burden of
production shifts to the nonmoving party who must either (1)
rehabilitate the evidence attacked by the moving party, (2)
produce additional evidence showing the existence of a genuine
issue for trial, or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f) of the West
Virginia Rules of Civil Procedure.
(Emphasis added). See Syl. pt. 3, in part, Crain v. Lightner, 178 W. Va. 765, 364 S.E.2d 778
(1987) (“Where a party is unable to resist a motion for summary judgment because of an
inadequate opportunity to conduct discovery, that party should file an affidavit pursuant to
W. Va. R. Civ. P. 56(f) and obtain a ruling thereon by the trial court.”). It has been
recognized that “[s]ummary judgment is appropriate only after the opposing party has had
adequate time for discovery.” Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure, § 56(f), at 1144 (3d ed.
2008). See Powderidge Unit Owners Ass'n v. Highland Props., Ltd., 196 W. Va. 692, 701,
474 S.E.2d 872, 881 (1996) (“As a general rule, summary judgment is appropriate only after
adequate time for discovery.”). We have also noted that “a decision for summary judgment
before discovery has been completed must be viewed as precipitous.” Board of Educ. of the
County of Ohio v. Van Buren & Firestone Architects, Inc., 165 W. Va. 140, 144, 267 S.E.2d
440, 443 (1980).
The record in this case is clear. The Pingleys did not engage in discovery after
the complaint was filed because HPSD filed its summary judgment motion prior to filing an
answer to the complaint. (See footnote 7) As a consequence of the summary judgment motion, no scheduling
or discovery conference was held. Although formal discovery was never conducted by the
Pingleys, the circuit court rejected the Pingleys' request to conduct discovery prior to ruling
on the summary judgment motion. (See footnote 8) The circuit court determined that the Pingleys could not
prove that HPSD breached a duty owed to them. The circuit court's summary judgment order
stated that HPSD established that it never received any complaints regarding the Pingleys'
sewer line prior to the flooding. Therefore, it breached no duty of care to the Pingleys. See Cleckley, et al., Litigation Handbook, § 56(c), at 1135 (“In order to establish a prima facie
case of negligence, it must be shown that the defendant has been guilty of some act or
omission in violation of a duty owed to the plaintiff. No action for negligence will lie
without a duty broken.”).
The circuit court found that HPSD had to have prior knowledge that the
Pingleys had a sewer line problem before its duty of care to them arose. In so finding, the
circuit court relied exclusively upon this Court's decision in Calabrese v. City of Charleston,
204 W. Va. 650, 515 S.E.2d 814 (1999), stating in its summary judgment order that:
[a]s to a public utilit[y's] duty, the [Supreme Court] held in Calabrese . . . “a municipality, in maintenance of its sewerage system, owes only the duty of reasonable care to avoid damage to the property of others.” The [Supreme Court] also notes in Calabrese that without notice of a specific issue or concern with the property or service lines, a public utility has no duty to act beyond ensuring the line is open, in repair, and free from nuisance.
The circuit court's interpretation of Calabrese is simply wrong.
In Calabrese, the plaintiffs' home was damaged when their basement was flooded with sewage on at least five occasions. The plaintiffs sued the City of Charleston on the grounds that it was negligent in the maintenance and operation of the City's sewer system. The City moved for summary judgment on the grounds that it was immune from liability based upon statutes and its own ordinance. Prior to ruling on the City's motion for summary judgment, the circuit court certified four questions to this Court. The questions certified and the circuit court's answers were as follows:
1. When the plaintiffs' claim against the City of
Charleston arises from an alleged clogged, blocked or
negligently designed/maintained City sewer line and/or storm
drain, does the plaintiffs' claim fall within § 29-12A-4(c)(3) of
the Governmental Tort Claims and Insurance Reform Act
(hereinafter “the Act”), stating “political subdivisions are liable
for injury . . . or loss to persons or property that is caused by
their negligent failure to keep public . . . aqueducts, . . . within
the political subdivision open, in repair or free from nuisance
. . .” thereby constituting an exception to the immunity generally
provided to political subdivisions in § 29-12A-4(b)(1) of the
Act?
Ruling by the Circuit Court: Yes X No __
2. If the plaintiffs' claim against the City of Charleston
in this case falls within § 29-12A-4(c)(3), does the claim, in
turn, fall within the specific exception to liability set forth in
§ 29-12A-5(a)(16) providing that “a political subdivision is
immune from liability if a loss or claim results from [t]he
operation of dumps, sanitary landfills, and facilities where
conducted directly by a political subdivision?”
Ruling by the Circuit Court: Yes __ No X
3. If the plaintiffs' claim against the City of Charleston
in this case falls with § 29-12A-4(c)(3), does the claim, in turn,
fall within the exception to liability set forth in
§ 29-12A-5(a)(10) providing that “a political subdivision is
immune from liability if a loss or claim results from [i]nspection
powers or functions, including failure to make an adequate
inspection, or making an inadequate inspection, of any property,
real or personal, to determine whether the property complies
with or violates any law or contains a hazard to health or
safety”?
Ruling by the Circuit Court: Yes __ No X
4. Is § 25-17 of the Charleston City Code, providing that
“neither the City nor the Sanitary Board shall be liable for any
damage resulting from bursting of any sewer main, service pipe
or valve . . . or from the accidental failure of the sewage
collection, treatment and disposal facilities from any cause
whatsoever . . .” a valid and enforceable exercise of municipal
power and authority pursuant to W. Va. Code § 8-20-10, thereby
insulating the City from suit in this case?
Ruling by the Circuit Court: Yes __ No X
Calabrese, 204 W. Va. at 654-55, 515 S.E.2d at 818-19. This Court in Calabrese agreed
with and adopted the circuit court's answer to each of the certified questions.
The first point we wish to make regarding Calabrese is that none of the four
certified questions asked this Court to decide whether an operator of a sewer system must
have prior knowledge of a sewer problem before a duty arises to its customers. Although the
circuit court attributes its conclusion to the Calabrese opinion, there is simply no language
in that opinion either expressly or implicitly addressing this issue.
The next point to be made regarding Calabrese is that the opinion expressly
held that “[t]he liability for political subdivisions created in W. Va. Code, 29-12A-4(c)(3)
[1986] includes liability for injury, death, or loss to persons or property caused by a
subdivision's negligent failure to keep its sewers and drains open, in repair, or free from
nuisance.” Syl. pt. 4, Calabrese, 204 W. Va. 650, 515 S.E.2d 814. In making this holding, Calabrese noted that “[a]t common law, this Court's decisions going back over 100 years
have recognized the liability of political subdivisions in West Virginia for injuries arising out
of the negligent maintenance and operation of drains and sewers.” Calabrese, 204 W. Va.
at 658, 515 S.E.2d at 822.
The determination in Calabrese that a political subdivision can be held liable
for harm caused by its negligent failure to keep its sewers open and in repair is applicable to
HPSD. This Court has recognized that “[l]ike a municipality, a public service district is a
public corporation and political subdivision of this State.” McCloud v. Salt Rock Water Pub.
Serv. Dist., 207 W. Va. 453, 458, 533 S.E.2d 679, 684 (2000). See W. Va. Code § 16-13A-3
(2002) (Repl. Vol. 2006) (“From and after the date of the adoption of the order creating any
public service district, it is a public corporation and political subdivision of the state, but
without any power to levy or collect ad valorem taxes.”). Insofar as HPSD is a public service
district, it is a political subdivision of the State and is subject to liability for damage caused
by its negligent failure to keep its sewers and drains open and in repair. This duty is not
limited to having prior knowledge of a sewer line problem.
In the instant proceeding, the Pingleys' complaint alleged that HPSD owed
them a duty “to ensure that the water lines, sewer lines and/or sewer system was at all times
adequately maintained, inspected, in good repair, and compliant with all applicable codes,
as would a reasonably prudent public service entity.” The complaint further asserted that
HPSD breached its duty “by failing to properly maintain said sewer lines and system, failure
to properly inspect said line and system, failure to adequately repair said line and system and
failure to keep the same in compliance with the code.” These allegations in the Pingleys'
complaint were never addressed by the circuit court. The circuit court focused upon the sole
issue of whether there was prior knowledge of a problem with the Pingleys' sewer line. The
circuit court's narrow focus has no legal support.
Other than referencing the decision in Calabrese, HPSD's brief does not rely
upon any legal authority to support the proposition that, without prior knowledge of a
problem, it owed no duty to the Pingleys regarding the sewage backup that damaged their
home. Were we to follow the logic of HPSD, no sewer operator could be held liable for
damage caused by, for example, the failure to perform general maintenance inspections or
performing negligent inspections, which result in harm to a property owner. See Calabrese,
204 W. Va. at 659, 515 S.E.2d at 823 (“If we were to [adopt the position] the City suggests,
a political subdivision would be immunized from liability arising out of any injurious
conditions on any of its property_regardless of the subdivision's negligence in creating or
tolerating those conditions_if the subdivision had at some previous time failed to properly
inspect its own property, or to properly follow up on an inspection and correct a problem on
the subdivision's own property.”). We have found no statute or decision of this Court that
would insulate HPSD from liability for harm caused by its failure to perform general
maintenance inspections or negligently performing inspections. To the contrary, “it is the
duty of [HPSD] from the time it acquires or constructs a sewer to maintain it in a reasonably
safe condition.” McCabe v. City of Parkersburg, 138 W. Va. 830, 835, 79 S.E.2d 87, 91
(1953). Consequently, it was error for the circuit court to conclude that HPSD was
immunized from liability merely because it allegedly had no prior knowledge of a problem
with the Pingleys' sewer line.
The Pingleys' complaint asserted that they sustained damages because HPSD
failed to properly maintain, inspect, and repair its sewer system. Insofar as HPSD's summary
judgment motion did not address the negligent allegations in the Pingleys' complaint, the
Pingleys had the right to conduct discovery on such matters prior to the circuit court's
summary judgment determination. As we indicated in Williams, “a continuance of a
summary judgment motion is mandatory upon a good faith showing by an affidavit that the
continuance is needed to obtain facts essential to justify opposition to the motion.”
Williams,194 W. Va. at 61-62, 459 S.E.2d at 338-39. Consequently, it was error for the trial
court to rule on HPSD's summary judgment motion prior to allowing the Pingleys to conduct
discovery. (See footnote 9)