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Becker v. Kreilein8/13/2001
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellants-Plaintiffs, Jack and Catherine Becker (hereinafter collectively referred to as "the Beckers"), appeal the trial court's grant of Appellees-Defendants', Keith and Cindy Kreilein (hereinafter collectively referred to as "the Kreileins"), second Motion for Summary Judgment. The Beckers also appeal the trial court's grant of Appellee- Defendant's, Steven Krueger (Krueger), Second Motion for Summary Judgment.
We reverse.
ISSUE
The Beckers raise three issues on appeal, which we consolidate and restate as follows: whether the trial court erred in granting both the Kreileins' and Krueger's second motions for summary judgment.
FACTS AND PROCEDURAL HISTORY
At all relevant times to this matter, the Kreileins resided on Greene Street in Jasper, Indiana. The Beckers resided on Leopold Street, which is located on the opposite side of the block and several houses away from the Kreileins.
Prior to April 3, 1997, the Kreileins' sewer line had repeatedly backed up and overflowed into their basement. The Kreileins hired Krueger, a licensed plumber, to resolve this problem. Several attempts to clear the sewer line failed to resolve the problem, so a decision was made to replace the line.
The Kreileins contracted with Krueger to replace the sewer line, and a new line was installed on April 3, 1997. Krueger determined that it would be less expensive to install a new sewer line in a new location, rather than place a new line in the existing location, because the Kreileins' existing line ran underneath their driveway and garage.
On April 3, 1997, prior to installing a new sewer line for the Kreileins, Krueger disconnected the old sewer line from the Kreileins' home and from the main sewer which ran behind their property. Krueger left the old line in the ground without capping either end of the line because he believed it to be a "dead line" and the plumbing code did not require the capping of such lines. (Appendix of Appellants 13).
On May 11, 1997, Keith Kreilein noticed a wet area in his backyard and called Krueger. On May 12, 1997, Krueger inspected the line.
Krueger called City of Jasper Utilities (Utilities) to inform them of the problem and to seek their assistance in testing the line. That same day, Utilities tested the line with a sewer jet and reported that there was nothing wrong. Krueger ran water through the line, but no additional water appeared.
When the wet area in the Kreileins' yard remained, Keith Kreilein called Utilities on May 16, 1997, and requested further investigation. On May 19, 1997, Utilities officials tested the Trujilos' sewer line with dye. The dye soon appeared in the wet area of the Kreileins' yard, indicating that sewage from the Truijilos' house was draining directly into the Kreileins' yard. Keith immediately asked Utilities to correct the sewage leak. On June 2, 1997, Utilities returned to the Kreileins' house and remedied the problem.
In May 1997, Jasper experienced heavy rains. The heavy rainfall carried the sewage, which had percolated to the surface of the Kreileins' yard, down the city-owned right-of-way or alley. Eventually, the sewage ran onto the Beckers' property, which is three lots down from the Kreileins' property, at the bottom of a hill.
On December 5, 1997, the Beckers filed a Complaint against the City of Jasper and City of Jasper Utilities for property damage and personal injury, alleging that exposure to raw sewage contaminated their home and person. The Beckers' claims against the Cit
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