South Bend man wins partial reversal of sewer nuisance suit

December 23, 2015

A man who sued South Bend claiming that noxious gas from city sewer lines had been forced into his home may proceed with part of his lawsuit against the city.

The Indiana Court of Appeals Wednesday reversed in part a trial court order granting summary judgment in favor of the city on homeowner Raymond Kerr’s lawsuit that claimed nuisance, trespass, negligence and inverse condemnation resulting in injury to his person and his property. Kerr sued the city in 2012 after years of complaints about odors and fumes from a sewer line under his home that also conveyed waste from a New Energy Corp. ethanol-manufacturing plant. New Energy has since filed for bankruptcy protection.

“The trial court granted summary judgment in favor of the City, concluding that Kerr’s claims were time-barred and that he was owed no duty. Finding that the trial court erred as to this latter point, we nevertheless find that Kerr’s claims are barred by the statute of limitations insofar as they relate to injury to his health,” Judge John Baker wrote for the court. “We do find, however, that a portion of Kerr’s claims may proceed insofar as they relate to damage to his property. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.”

Baker wrote the city owed a duty to Kerr to maintain its own sewer line, and whether it did so is not a question that can be disposed at the summary judgment phase.

But because Kerr acknowledged possible health problems associated with the odors as early as 2005, the lawsuit was filed more than seven years after he became aware of them, so those claims are time-barred.

“On remand, Kerr’s claim against the City may proceed insofar as it relates to damage to or loss of the use and enjoyment of his property beginning 180 days prior to the filing of his notice of tort claim,” Baker wrote.

The case is Raymond Kerr v. City of South Bend, 71A03-1502-CT-49.


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