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filed: October 18, 1985.




Charles W. Craven, Philadelphia, for appellant.

William S. Hudders, Allentown, for appellees.

Spaeth, President Judge, Cavanaugh, Wieand, McEwen, Cirillo, Del Sole, Johnson, Popovich and Cercone,*fn* JJ. Spaeth, President Judge, files a dissenting opinion, in which Del Sole, J., joins. McEwen, J., files a dissenting statement, in which Del Sole, J., also joins.

Author: Cirillo

[ 346 Pa. Super. Page 516]

The City of Bethlehem appeals from a judgment entered in the Court of Common Pleas of Northampton County after a jury awarded wrongful death and survival damages to the plaintiffs. The appeal was certified to the Court en banc to decide an important issue concerning the liability of a municipality for storm water runoff that flows out of the municipality into a lower-lying municipality and there contributes to a dangerous condition which injures a third person.

I. Procedural Posture

This case began at the flooded intersection of William Penn Highway and Santee Road in Bethlehem Township, Pennsylvania. During a rainstorm, Debra LaForm stepped or slipped into a drainage ditch along Santee Road and was literally sucked through a drainpipe under William Penn Highway to her death. Debra's mother and sister commenced this suit against the Township, which owned and maintained Santee Road and the appurtenant ditch, and Brown-Borhek Company, owner of the adjacent property. The Township joined as additional defendants the Commonwealth of Pennsylvania Department of Transportation (PennDOT), proprietor of William Penn Highway and the

[ 346 Pa. Super. Page 517]

    underlying drainpipe, and the City of Bethlehem, from which over three quarters of the surface water flooding the intersection originated. The Township, Brown-Borhek, and PennDOT settled with the plaintiffs out of court and entered into joint tort-feasor releases. The case proceeded to trial, whereupon the jury found $1,000,000 in damages and apportioned liability as follows: City, 51%; Township, 34%; PennDOT, 15%. The court had directed a verdict in favor of Brown-Borhek. The City's post-verdict motions were denied by the trial court sitting en banc. Judgment was entered on December 22, 1982, and later corrected to include delay damages and interest against the City.

On appeal the City contends that it is entitled to judgment notwithstanding the verdict. In considering the merits of this claim, we must regard the evidence in the light most favorable to the plaintiffs as verdict-winners, and give them the benefit of every fact and inference of fact reasonably deducible from the evidence. Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Miller v. Checker Yellow Cab Co. of Bethlehem, 465 Pa. 82, 348 A.2d 128 (1975).

II. Facts

The tragedy in this case began to unfold on the evening of February 24, 1977, when Debra LaForm's car stalled at the intersection of William Penn Highway and Santee Road. It had been raining heavily that evening and the intersection was completely flooded with storm water. Another motorist, Ross McLennan, soon found himself in the same predicament as his car stalled out in the deep water flowing over the roadway. Together Ross and Debra tried unsuccessfully to restart their cars. Debra then walked to a nearby hotel to phone for help. She returned to the scene across the parking lot of Brown-Borhek Company on the west side of Santee Road. Between the lot and the road lay a five-foot-wide by three-foot-deep drainage ditch owned by the Township of Bethlehem. At the time, the ditch was completely invisible to an onlooker because the water in the ditch was overflowing its sides, forming a flat, even surface

[ 346 Pa. Super. Page 518]

    with water flooding the roadway itself. As McLennan watched from across William Penn Highway, a car passed between him and Debra, temporarily obstructing his view, and in the same instant Debra cried out and disappeared from sight.

Inside the ditch, water was rushing with ferocious velocity through an 18-inch drainpipe which took flowage from the ditch under William Penn Highway, where it discharged at right angles into a 48-inch pipe. This larger pipe in turn disgorged its contents into a stream called Nancy Run.

McLennan at first was dumbfounded by what he thought he had seen. After overcoming his initial disbelief, he began to search near the place where the girl had just been. Wading into the water, he felt around with his hands but managed to find only the drainpipe embedded in a concrete bulkhead and submerged in the coursing water. As realization shook him, he decided to contact the police.

Rescuers arrived at the scene and sealed off the intersection. A fireman was sent down into the ditch attached to a lifeline secured to the bumper of a firetruck. When he had advanced to within a few feet of the mouth of the drainpipe, the powerful suction yanked him off his feet and drew him into the pipe by his legs. The strength of several men had to be applied to haul him to safety.

Eight hours after Debra's calamitous plunge, searchers discovered her drowned body in Nancy Run.

The intersection of Santee Road and William Penn Highway had been a problem spot for years. It stood at a low point in the Nancy Run watershed. At least once or twice a year, usually during a winter rainstorm, it would be inundated with runoff from the surrounding locale. Precisely how long this flooding had been going on is not of record, but according to Leonard Fraivillig, Sr., former Township engineer and an expert witness for the plaintiffs, the condition probably predated 1959.

[ 346 Pa. Super. Page 519]

That year is significant because in that year PennDOT undertook general improvements on William Penn Highway, including installation of the drainpipes in question. Before installing the new system, PennDOT submitted the plans for the Township's approval. Fraivillig, however, refused to approve installation of the pipes because in his opinion a straight 96-inch pipe would be necessary to drain the ditch on the west side of Santee Road. PennDOT nevertheless went ahead with its plan and installed the smaller pipes.

At no point thereafter did PennDOT or the Township erect fences, guardrails, grates, or warning signs to protect passersby from the potential hazards of the ditch and drainpipes.

About a half mile north of the intersection, surface water flowed through a natural drainage swale into Bethlehem Township from the City of Bethlehem. Studies based on comparative acreage in the watershed had determined that 76.8% of the surface water that reached the intersection first fell within the City of Bethlehem, with the remainder coming from the Township. A sanitary sewer easement serving both municipalities was located in the course of the swale, but the swale itself was unimproved and basically followed the natural contours of the land downhill. Surface water ran overland through the swale until it came upon Santee Road about five blocks above the intersection. There the water took an abrupt turn and flowed down the roadway, wending its way around several streets in the Township before arriving at the intersection.

In the course of development, the City of Bethlehem had installed several storm sewers that emptied into the swale from streets in the northeast quadrant of the City. Major lines were opened onto the swale in 1958, 1967, and 1974. The City's storm sewers did not alter the natural course of water in the watershed nor direct water to the intersection from new sources. However, a study done in 1974 contained the following conclusions, which were stipulated into the record at the trial of this case:

[ 346 Pa. Super. Page 520]

Prior to any development in northeast Bethlehem storm water runoff followed a natural channel into Bethlehem Township. It is estimated that maximum flow due to a 10-year storm was 310 c.f.s. from fields and woodlands.

As the City was developed the runoff rate increased due to roofs, paving, graded lawns and some store drains; the present rate for that area may be 440 c.f.s. for an equivalent storm. When all streets, storm sewers and home construction is completed it is estimated that 10-year peak flows will be 500 c.f.s., and higher for 20 and 50 year storms.

Although the same channel continues to carry the water into the township the slight increase in total flow is concentrated in a shorter time resulting in much higher flow rates.

The "10-year storm" referred to in the report is that level of rainfall which, according to sound engineering practice, storm water disposal facilities should be designed to accommodate. Rainfall in the Bethlehem area on the date of the LaForm incident was significantly less than the level of a 10-year storm.

In 1974-75, the City bulldozed and flattened a portion of the drainage swale and built a large detention basin in the course of the swale about a half mile upstream from the city line. Typically a detention basis acts to retard the rate at which surface water flows off the land to points downstream. However, according to the plaintiffs' expert witnesses the City's basin failed to reduce flow rates downstream because it was too small and improperly designed. In practical operation, the basin prevented storm water from accumulating on properties within the City, but had a negligible effect on the flooding problem at William Penn and Santee. The plaintiffs' experts testified to other engineering options open to the City which would have alleviated downstream flooding.

One such option became the subject of a great deal of evidence in the case. Fraivillig, the Township's engineer, and engineers for the City had independently been studying

[ 346 Pa. Super. Page 521]

    the situation and had come to the same general conclusions about the best way to solve the flooding problems plaguing the Township. In 1967, Fraivillig devised a comprehensive plan for storm water disposal in the Nancy Run watershed. The plan's main feature was a 96-inch underground drainpipe extending from the outflow points of the City's storm sewers to a terminus in Nancy Run. Storm water entering the system from the City and Township would completely bypass the PennDOT pipes already in place under William Penn Highway. The proposed system would cost about $1,100,000 to install, a bill the Township could not foot on its own. Moreover, Fraivillig believed that the facilities existing in the Township were adequate to dispose of the Township's storm water; only the addition of the City's water rendered the facilities insufficient. Therefore, Fraivillig approached the City and suggested that the two municipalities undertake the project as a joint venture.

The City's engineers agreed that Fraivillig's plan was sound from an engineering standpoint and that it would eliminate storm water flooding in the Township. However, Fraivillig's proposal for financing the system called for the City to bear the expense of all piping laid within the City as well as 80% of the piping laid in the Township. The City proposed, instead, that each municipality pay for the portion of the line within its own boundaries. The parties did not come to terms, and no further action was taken on the Fraivillig proposal.

III. Theories of Liability

The trial court instructed the jury on four interrelated but distinguishable areas of law under which the City could be found liable: 1) a landowner's duties in the management of surface water; 2) general negligence law (the reasonable man standard); 3) Section 368 of the Restatement (Second) of Torts (1965); 4) Section 371, id.


The law of surface waters in this jurisdiction remains essentially unchanged from its origins in the maxim, "Water

[ 346 Pa. Super. Page 522]

    must flow as it is wont to flow." Because water is descendible by nature, the owner of higher ground has an easement in lower land for the discharge of all waters that naturally rise in or flow or fall upon the higher. Kauffman v. Griesemer, 26 Pa. 407 (1856).

The rules of law which follow this fundamental law of nature originally were developed to adjust property and water rights between upper and lower landowners. However, the rules are equally valid as statements of a landowner's rights and obligations with regard to personal injury suffered on the lower land. See, e.g., Piekarski v. Club Overlook Estates, Inc., 281 Pa. Super. 162, 421 A.2d 1198 (1980).

The law regards surface waters as a common enemy which every proprietor must fight to get rid of as best he may. Strauss v. Allentown, 215 Pa. 96, 63 A. 1073 (1906).

Under the so-called "common-law" or "common-enemy rule," not only is an owner of higher land under no liability for damages to an owner of lower land caused by water which naturally flows from the one level to the other, but he can, at least in the development of urban property, improve his land by regrading it or erecting buildings thereon, without legal responsibility for any consequent diversion of surface waters from his property to that of adjoining owners, it being recognized that changes or alterations in the surface may be essential to the enjoyment of his property.

Chamberlin v. Ciaffoni, 373 Pa. 430, 434-35, 96 A.2d 140, 142 (1953).

"The owner of upper land has the right to have surface waters flowing on or over his land discharged through a natural water course onto the land of another, . . . He may make proper and profitable use of his land even though such use may result in some change in quality or quantity of the water flowing to the lower land: . . . . From those rules it is clear that only where the water is diverted from its natural channel or where it is unreasonably

[ 346 Pa. Super. Page 523]

    or unnecessarily changed in quantity or quality has the lower owner received a legal injury."

Id., 373 Pa. at 436, 96 A.2d at 142-43 (quoting Lucas v. Ford, 363 Pa. 153, 155, 156, 69 A.2d 114, 116 (1949)).

It is only where the owner of the higher land is guilty of negligence which causes unnecessary damage to the servient owner, or where, by an artificial channel, he collects and discharges surface waters in a body or precipitates them in greatly increased quantities upon his neighbor, that the latter may recover for any damage thereby inflicted: Miller v. Laubach, 47 Pa. 154; Rhoads v. Davidheiser, 133 Pa. 226, 19 A. 400; Meixell v. Morgan, 149 Pa. 415, 24 A. 216; Pfeiffer v. Brown, 165 Pa. 267, 30 A. 844; Rielly v. Stephenson, 222 Pa. 252, 70 A. 1097; Morton v. Dormont Borough, 334 Pa. 283, 5 A.2d 803; Lucas v. Ford, 363 Pa. 153, 69 A.2d 114; Wilson v. McCluskey, 46 Pa. Superior Ct. 594.

Chamberlin, 373 Pa. at 437, 96 A.2d at 143.

Thus, an upper landowner is liable for the effects of surface water running off his property only where he has A) diverted the water from its natural channel by artificial means, see, e.g., Rau v. Wilden Acres, Inc., 376 Pa. 493, 103 A.2d 422 (1954); or B) unreasonably or unnecessarily increased the quantity (or changed the quality) of water discharged upon his neighbor, see, e.g., Piekarski, supra.

This is not a case of artificial diversion of surface waters. It is clear that the water flooding the intersection of William Penn and Santee roads ran there as a result of natural descent through the watershed. Nearly all the rainwater that fell in Bethlehem and flowed to the intersection would eventually have arrived there at some point even if the land upstream had been left in its natural condition.

Thus, we need consider only whether the City caused an unreasonable or unnecessary increase in the water flowing through its drainage swale. Here again, the evidence disclosed that the overall volume of water discharged through the swale changed very little over the years. The only increase of any significance was in the rate of flow.

[ 346 Pa. Super. Page 524]

No doubt a landowner may be liable for unreasonably or unnecessarily increasing the rate or force alone at which he precipitates surface water upon lower land. See Rau, supra. However, we conclude that the evidence in this case was wholly insufficient to establish that the City of Bethlehem did anything to unreasonably or unnecessarily increase the rate at which surface water was discharged into Bethlehem Township. All the evidence showed was that over the years, due to the building of streets, houses, and storm sewers in the City, flow rates into the Township rose from 310 c.f.s. to 440 c.f.s. for a 10-year storm. There was no indication in the record when the course of development that accelerated the flow began. The William Penn-Santee intersection had probably been flooding since before 1959, and the City was undergoing steady development throughout the period relevant to this case. No dramatic change in the landscape caused a sudden pickup in flow through the channel; no single identifiable act or series of acts on the part of the City caused the intersection at William Penn and Santee to start flooding. Thus, we can only conclude that the buildup in flow rates from the time when the land was in its natural state to the time of the incident was solely a result of the normal and gradual development of the City.

Indeed, the conclusion is almost inescapable that there must have been flooding at that point in the watershed even before the first ground was broken in northeast Bethlehem. Prior to any development in the area, as stated, the flow rate for a ten-year storm was 310 cubic feet per second. For purposes of comparison, we note that an expert witness for the City testified that an 18-inch pipe such as that installed under William Penn Highway could carry away, when surcharged to its maximum limits, 25 cubic feet of water per second. Since flooding probably occurred at the intersection even before the pipe was there to impede the excess flow, it appears likely that storm water facilities at the intersection were never adequate to handle the amount of surface water generated in the City during a ten-year

[ 346 Pa. Super. Page 525]

    storm. Consequently, there must have been some flooding there even in the natural state of the land.

However, we need not engage in speculation unfavorable to the plaintiffs' case, because we are certain that a city cannot be held liable for the effects of an incidental increase in surface waters flowing in a natural channel where the increase is owing to normal, gradual development in the city. This principle was firmly established long ago in the case of Strauss v. Allentown, supra, where the question was stated as follows:

     is the city liable to a property owner for the increased flow of surface water over or onto his property, arising merely from the changes in the character of the surface produced by the opening of streets, building of houses, ...

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