HomeMy Public PortalAboutExhibit MSD 84V - Fred Eppenberger, et al vs. Metropolitan St. Louis Sewer District, Case No. 08SL-CC05270 Complaint0
z
I-
0
0
0
I.,
'Li
U.
U,
'U
U,
U,
N
0)
0
C,,
C..,o3
c 0
,0
ci)
o
'..0
0.
UI
F'
"C
F'
'Li
IN THE CIRCUIT COURT OF ST. LOUIS COUNTY
STATE OF MISSOURI
FRED EPPENBERGER; MAXINE
SMITH AND VIOLA LEE; WILLIAM
AND ALICESTINE BAIN; PAUL
AND BETTY ADAMS; DAVID AND
CAROLYN DAVIS JR..; LOWELL
SMITH; PATRICIA WOODS MAY;
BARBARA GALVIN; AMY PAPIAN;
WILLIAM STEFFEN; HEZEKIAH
DURHAM; STEWARD AND
ELIZABETH STILES; GLENDORA
TERRY; LINDA SHARPE-TAYLOR;
MELODY BORDEAUX; GWENDOLYN
AND GERALD COZART; TONYA AND
JOHN PAGE; CHARLES SMITH;
RUBY DISHMAN; GEORGE AND
LORRAINE RICHARDSON; MICHELE
RACANELLI; ETHEL STRICKLAND;
THOMAS AND BERDEEN MANTEUFEL;
LEAR JONES; LEE AND MARVA
PEGUES; LORENE BROWN; BEATRICE
HOLLANDER; AUSTIN GOMEZ;
BEVERLY AND JAMES THOMAS;
TIMOTHY MANNING; DAVID AND
KARl SIMON; APRYL FRISON; BETTY
AND CHARLES JONES; THOMAS
AND CATHERINE HOREJES; CARLTON
AND HANNAH SMITH; KATHY
MCDANIEL; NANCY POTTER,
Plaintiffs
v.
METROPOLITAN ST. LOUIS SEWER
DISTRICT,
Defendant
Case No. O8SL-CC05270
Division 20
JURY TRIAL DEMAND
SECOND AMENDED CLASS ACTION PETITION
COME NOW the Plaintiffs by and through their attorneys, Macuga,
Liddle & Dubin, P.C., and state in support of their Second Amended Class
Exhibit MSD 84V
0
z
-0
.1 0
1-4
tOo
O)I-
o
0
00
cI
6)
C')
t,)
c'1
U,
z
0
x
a.
U,
U'
I-.
Action Petition against the Defendant Metropolitan St. Louis Sewer District
(hereinafter "Defendant"):
JURISDICTION AND PARTIES
1.At the relevant time, the Plaintiff Fred Eppenberger has resided
at 1064 Wilson Ave. in University City, County of St. Louis, State of Missouri.
2.At the relevant time, the Plaintiff Maxine Smith and Viola Lee has
resided at 1145 Glenside Ln. in University City, County of St. Louis, State of
Missouri.
3.At the relevant time, the Plaintiff William and Alicestine Bain has
resided at 1114 Mona Dr.in University City, County of St. Louis, State of
Missouri.
4.At the relevant time, the Plaintiff Paul and Betty Adams has
resided at 1087 Wilson Ave. in University City,County of St. Louis, State of
Missouri.
5.At the relevant time, the Plaintiff David and Carolyn Davis Jr. has
resided at 1106 Wilson Ave. in University City, County of St. Louis, State of
issouri.
6.At the relevant time, the Plaintiff Lowell Smith has resided at
153 Glenside Ln. in University City, County of St. Louis,State of Missouri.
7.At the relevant time, the Plaintiff Patricia Woods May has resided
1110 Wilson Ave. in University City, County of St. Louis,State of Missouri.
8.At the relevant time, the Plaintiff Barbara Galvin has resided at
8 Malibou Ct. in University City, County of St. Louis, State of Missouri.
2
0
z
-0
ct
p.-,i..,0
too
..40)I-..
o c
0
In
00
(1
0)
I')
(,,
'U
z
0
x
U,
.4
p4
9.At the relevant time, the Plaintiff Amy Papian has resided at 1114
Wilson Ave. in University City, County of St. Louis,State of Missouri.
10.At the relevant time, the Plaintiff William Steffen has resided at
8041 Hafner Ct. in University City, County of St. Louis,State of Missouri.
11.At the relevant time, the Plaintiff Hezekiah Durham has resided at
1070 Mona Dr. in University City, County of St. Louis,State of Missouri
12.At the relevant time, the Plaintiff Steward and Elizabeth Stiles
has resided at 1309 Mendell Dr. in University City,County of St. Louis, State of
Missouri.
13.At the relevant time, the Plaintiff Glendora Terry has resided at
1059 Wilson Ave. in University City, County of St. Louis, State of Missouri.
14.At the relevant time, the Plaintiff Linda Sharpe-Taylor has resided
at 7459 Drexel Dr. in University City, County of St. Louis, State of Missouri.
15.At the relevant time, the Plaintiff Melody Bordeaux has resided at
72 Cabanne Ave. in University City, County of St. Louis, State of Missouri.
16.At the relevant time, the Plaintiff Gwendolyn and Gerald Cozart
resided at 8686 Delmar Blvd. apt 2W. in St. Louis, County of St. Louis,State
Missouri.
17.At the relevant time, .the Plaintiff Tonya and John Page has
ided at 7479 Shaftesbury Ave. in University City, County of St. Louis,State of
18.At the relevant time, the Plaintiff Charles Smith has resided at
1550 N. Hanley Rd. in University City, County of St. Louis, State of Missouri.
3
0
z
-0
I-
.1 0H
a)
OZ
'no
4
_o) I-
o c
0
0
0
C,)
0,
01
Ui
z
0
0.
04
.4
04
19.At the relevant time, the Plaintiff Ruby Dishman has resided at
1181 Belrue Ave. in University City,County of St. Louis, State of Missouri.
20.At the relevant time,the Plaintiff George and Lorraine
Richardson has resided at 8000 Briar Ct.in University City, County of St. Louis,
State of Missouri.
21.At the relevant time, the Plaintiff Michele Racanelli has resided at
7092 Lindenwood P1. in St. Louis, County of St. Louis, State of Missouri.
22.At the relevant time, the Plaintiff Ethel Strickland has resided at
7737 Drexel Dr. in University City, County of St. Louis, State of Missouri.
23.At the relevant time, the Plaintiff Thomas and Berdeen Manteufel
has resided at 1067 Wilson Ave. in University City, County of St. Louis, State of
Missouri.
24.At the relevant time, the Plaintiff Lear Jones has resided at 1142
Glenside Ln. in University City, County of St.Louis, State of Missouri.
25.At the relevant time, the Plaintiff Lee and Marva Pegues has
resided at 1150 Glenside Ln. in University City,County of St. Louis, State of
ri.
26.At the relevant time, the Plaintiff Lorene Brown has resided at
071 Raisher Dr. in University City, County of St. Louis,State of Missouri.
27.At the relevant time, the Plaintiff Beatrice Hollander has resided
7475 Shaftesbury Ave. in University City, County of St. Louis, State of
issouri.
28.At the relevant time, the Plaintiff Austin Gomez has resided at
Colonia P1 Dr Apt A. in St. Louis, County of St. Louis,State of Missouri.
4
0
z
-0
0
I-
Z'c?coz
"4:
too
G)F'
o c
0
.4:
It)
00
0)
(I)
C.)
C.)
'U
z
0
x
'U
.4
f.
29.At the relevant time, the Plaintiff Beverly and James Thomas has
resided at 1129 Glenside Ln. in University City, County of St. Louis,State of
Missouri.
30.At the relevant time, the Plaintiff Timothy Manning has resided at
1059 Wilson Ave. in University City,County of St. Louis, State of Missouri.
31.At the relevant time, the Plaintiff David and Kari Simon has
resided at 1063 Wilson Ave. in University City, County of St. Louis, State of
Missouri.
32.At the relevant time, the Plaintiff Apryl Frison has resided at 1125
Mount Olive Ave. in University City, County of St. Louis, State of Missouri.
33.At the relevant time, the Plaintiff Betty and Charles Jones has
resided at 8022 Hafner Ct. #1. in University City, County of St. Louis, State of
Missouri.
34.At the relevant time, the Plaintiff Thomas and Catherine Horejes
has resided at 4510 Harvshire Ct. in St. Louis, County of St. Louis, State of
Missouri.
35.At the relevant time, the Plaintiff Canton and Hannah Smith has
ed at 1075 Wilson Ave. in University City, County of St. Louis, State of
issouri.
36.At the relevant time, the Plaintiff Kathy McDaniel has resided at
214 Westover Ave. in University City, County of St. Louis, State of Missouri.
37.At the relevant time, the Plaintiff Nancy Potter has resided at
Hafner Ct. in University City, County of St.Louis, State of Missouri.
38.At all relevant times, in addition to these listed households, there
5
0
z
-0
I-
0
'('1
c0z
u.
'no
1". pdO-.
-S.
o c
0
00
C!)
'a
z
0
a.
U!
U!
I-.
are over two hundred fifty (250)households within University City that also
sustained flooding of their property on September 14, 2008 from the River des
Peres.
39.At all relevant times, the Defendant Metropolitan St. Louis Sewer
District ("Defendant") is a governmental entity conducting storm and sanitary water
management activities in University City,County of St. Louis, Missouri.
40.Further investigation may discovery another responsible party(ies)
including a responsible party(ies)which may be identified in the Defendant's
Answer and/or Affirmative Defenses and/or discovery. Upon a determination of
another responsible party(ies),the Plaintiffs shall move for leave to amend this
Complaint to assert said party(ies)'responsibility.
41.The amount in controversy exceeds $25,000 and is otherwise
within the jurisdiction of this Court.
CLASS ACTION AVERMENTS.
42.The Plaintiffs' incorporate by reference the preceding averments as
though fully set forth herein.
43.This class action arises out of the flooding of Plaintiffs' homes and
located within University City on September 14, 2008 causing material
ury to the Plaintiffs.
44.The flood water that invaded Plaintiffs'homes and properties on
nber 14, 2008 came from the River des Peres.
45.Plaintiffs' bring this class action pursuant to Missouri Rule of Civil
lure 52.08 on behalf of themselves and other similarly situated whose
and/or properties located within University City where invaded with water
0
z
-0
0H
z,(oz
too
4O)t-M1
0 c
0
in
00
11
I,,
UI
z
0
z
a.
'U
-1
'U
from the River des Peres on September 14, 2008 ("Plaintiffs").
46.Upon information and belief, over three hundred
households a n d properties located within University City where invaded with
water from the River des Peres on September 14, 2008. Joinder of these class
members would clearly be impracticable.
47.Plaintiffs' shall fairly and adequately represent the members of this.
class. Plaintiffs' claims are not antagonistic to or conflict with any other class
member. Plaintiffs also have a sufficient interest in this case as they both
suffered damages as a result of the September 14, 2008 flood.
48.Defendant's common course of conduct complained herein has
created questions of law and fact that are common with respect to the Plaintiffs
and members of the class.
49.Plaintiffs' claims are typical of the claims of the class because they
and all the class members sustained damages which arose from Defendant's
wrongful conduct complained of herein under similar circumstances and
conditions.
50.Plaintiffs' have retained counsel competent and experienced in class
action litigation and storm water and sewer water management litigation.
51.Defendant's common course of conduct complained of herein results
in common questions of law and fact predominate over individual ones issues.
Resolving these common factual and legal issues will significantly advance this
itiqation.
52.The certification of this case as a class action promotes judicial
ies and efficiencies for the parties and the judicial system. It would be
7
0
z
-0--
InroI44,çj 0
u 0z,c3(OZ
c)
O)F
o c
0
impracticable and judicially inefficient to join the hundreds of class members. Each
individual lawsuit would waste precious time,energy and money in the
adjudication of the common issues of liability in hundreds of separate
proceedings.
COMMON AVERMENTS
53.At all relevant times, the River des Peres within University City was
and is under the exclusive jurisdiction of the Defendant.
53.At all relevant times, the River des Peres within University City was
and is under the exclusive legal control of the Defendant.
54.At all relevant times, the River des Peres within University City was
and is under the exclusive actual control of the Defendant.
55.Defendant has controlled the River des Peres since 1956.
56.Defendant owns and/or operates the River des Peres.
57.Prior to September 14, 2008, Defendant has extensively
redesigned, reconstructed and rechanneled the River des Peres.
58.Prior to September 14, 2008, the natural state of the River des
Peres has been completely rebuilt leaving none of the original natural features of
River.
59.Much of the exposed banks of the River des Peres have been
and a significant portion of the channel has been altered.
60.A majority of the River des Peres has been covered and channeled
nderg round.
61.Defendant utilizes the River des Peres to channel storm and sanitary
from adjacent communities. Essentially, the River des Peres is a
0
z
-0--
.N
.4 0H i
U,
*no
I-.
-,P.1
0
C)
00
('J
0)
cv)
vi
vi
vi
z
0
a.vi
'U
partially opened sewer.
62.Defendant has maintained many combined sewer overflows that
discharge into the River des Peres during wet weather events.
63.The portion of the River des Peres that runs through Forest Park
travels underground through pipes.
64.The underground pipes that carry the River des Peres through Forest
Park are too small for the volume of water that is discharged into the River des
Peres during heavy rainfall.
65.Silt, grass, trees, and other naturally growing vegetation has
been allowed to accumulate in the River des Peres reducing its capacity
to transport storm water.
66.The River des Peres lacks proper storage and/or attenuation
elements to adequately convey the storm water that is discharged into it.
67.The River des Peres does not have sufficient capacity to adequately
iey the storm water that discharges into it.
68.The River des Peres does not have any flood protection barriers to
ent storm water from overflowing its banks and invading private property.
69.As of September 14, 2008, Defendant failed to operate the River
Peres in a safe and prudent manner to prevent flood waters from invading
intiffs' homes and properties.
70.Prior to September 14, 2008, Defendant failed to construct any
adequate flood protection barriers and/or systems to retain storm
within the River des Peres.
71.Prior to September 14,2008,Defendant failed to construct
0
z
-0
0
a 0z,
C')
G)I-.
o
0
adequate storm water storage areas and/or attenuation areas upstream of the
Plaintiffs' homes and properties.
72.Prior to September 14, 2008, Defendant failed to construct sufficient
capacity within the River des Peres to adequately convey the storm water that
discharges into it.
73.Prior to September 14,2008,Defendant failed construct.
underground pipes that carry the River des Peres through Forest Park with
sufficient capacity to adequately convey the volume of water that is discharged into
the River des Peres during heavy rainfall.
74.At all relevant times, the Plaintiffs resided and/or owned property
next to or near the River des Peres in University City.
75.On September 14, 2008, rainfall fell within the River des Peres
watershed.
76.The rainfall that occurred on September 14, 2008 was substantially
less than a 10-year rainfall event.
77.The River des Peres watershed has previously experienced
infalls similar to the intensity and duration as that which occurred on September
4, 2008.
78.On September 14, 2008, storm water overflowed the banks of
he River des Peres and invaded the Plaintiffs' properties and homes.
79.Plaintiffs' homes and properties suffered significant dam
ges as a result of the flood waters from the River des Peres.
80.During prior rainfalls, storm water overflowed from the River des
and invaded the homes and properties of University City residents in the
10
0
z
-0
'a
a 0z,::
Oj
(rj
u,o i
o c
0
1990's and the 2000's thereby causing significant damage to the homes and
properties of University City residents.
81.Based upon prior flooding events, Defendant knew and/or should
have known of River des Peres was in a dangerous condition.
82.As of September 14,2008, the River des Peres was in a
dangerous condition because of, but not limited to, the following:
a.The underground pipes that carry the River des Peres
through Forest Park are too small for the volume of water that
is discharged into the River des Peres during heavy rainfall.
b.Silt, grass, trees, and other naturally growing vegetation
has been allowed to accumulate in the River des Peres
reducing its capacity to transport storm water.
c.The River des Peres does not have any flood protection
barriers to prevent storm water from overflowing its banks and
invading private property.
d.The River des Peres lacks proper storage and/or
attenuation elements to adequately convey the storm water
that is discharged into it.
e.The River des Peres does not have sufficient
capacity to adequately convey the storm water that discharges
into it.
83.But for these River des Peres' dangerous conditions,the River des
should have been able to convey the storm water discharged into it on
ber 14, 2008 without flooding Plaintiffs' homes and properties.
11
0
z
-0
I-.,N.
-1 0
1-1
"4:po
too
d0) I-
o c
0
0
0
6)
C')
U,
z
0
z
a.
'U
.4
'U
I-.
84.As a direct result of the River des Peres' dangerous conditions, the
River des Peres was unable to convey the storm water discharged into it on
September 14,2008 thereby flooding Plaintiffs' homes and properties.
COUNT I: MS 637.600.1(2):KNOWN DANGROUS CONDITION OF THERIVER DES PERES: EXCEPTION TO GOVERNMENTAL IMMUNITY
85.The Plaintiffs incorporate by reference the previous paragraphs
as if fully set forth herein.
86.Missouri Statues Section 537.600.1(2)provides in part:
Injuries caused by the condition of a public entity's
property if the plaintiff establishes that the property
was in dangerous condition at the time of the injury,
that the injury directly resulted from the dangerous
condition, that the dangerous condition created a
reasonably foreseeable risk of harm of the kind of
injury which was incurred, and that either a negligent
or wrongful act or omission of an employee of the
public entity within the course of his employment
created the dangerous condition or a public entity had
actual or constructive notice of the dangerous
condition in sufficient time prior to the injury to have
taken measures to protect against the dangerous
condition.
87.The River des Peres is the property of Defendant.
88.At all relevant times, the River des Peres was under the jurisdiction
the Defendant.
89.At all relevant times, the River des Peres was under the legal
of the Defendant.
90.At all relevant times, the River des Peres was under the actual
I of the Defendant.
91.Prior to and on September 14, 2008,the River des Peres was in a
12
0
z
-0--
a- -
.i 0
I-i ('I
a)
"4:
*00
'a.o c
C)
Cr)
00
(:1
6)
C.)
Ca,
'a,
U)
z
0
0.
Cu
I-
dangerous condition which posed a foreseeable flooding threat to the Plaintiffs.
92.The River des Peres was in a dangerous condition threatening to
cause harm to the Plaintiffs as storm water has previously escaped its banks and
invaded the homes and properties of University City residents.
93.As of September 14, 2008, the specific dangerous conditions of the
River des Peres included but were not limited to:
a.The underground pipes that carry the River des Peres
through Forest Park are too small for the volume of water that
is discharged into the River des Peres during heavy rainfall.
b.Silt, grass, trees, and other naturally growing vegetation
has been allowed to accumulate in the River des Peres
reducing its capacity to transport storm water.
c.The River des Peres does not have any flood protection
barriers to prevent storm water from overflowing its banks and
invading private property.
d.The River des Peres lacks proper storage and/or
attenuation elements to adequately convey the storm water
that is discharged into it.
e.The River des.Peres does not have sufficient
capacity to adequately convey the storm water that discharges
into it.
f.Other dangerous conditions which shall be identified as
discovery herein continues.
94.As a direct result of the River des Peres' dangerous conditions, the
13
0
z
-0
0
-.)-4(0
u 0z,
"4:
ptno
O)I.on
0
Plaintiffs have suffered damages, including but not limited to the following:
a.Structural damage to their real property including their
foundations and foundation walls;
b.Damage to the finishes in their homes and properties
including finished basements,finished lower levels and/or
finished first floors;
c.Destruction of their personal property including sentimental
property, ordinary personal property and appreciating personal
property;
d.The. expenditure of a great amount of time,effort and
money to sanitize and clean their homes and property due to
the bacteria and other unsanitary conditions caused by the
invasion of their residences by flood waters and/or untreated
sewage;
e.Diminution in market value of their home and property;
f.Loss of use and enjoyment of their home and property;and
g.Stress and emotional distress.
95.The dangerous conditions of the River des Peres created a
reseeable risk of flooding harm to Plaintiffs. Specifically,it was reasonably
that during wet weather events the River des Peres'dangerous
would reduce the capacity of the River des Peres to transport and
storm water, that the storm water would then overflow the banks of the
des Peres and Plaintiffs' homes and properties causing them damages.
96.It was reasonably foreseeable that Plaintiffs' property would be
14
0
z
-0
U,ro -)-4(3 0
0,0z(O
C,)
I_moo
.#G E
o c
0
invaded by storm water from the River des Peres as direct result of the River des
Peres' dangerous conditions because similar flooding events had occurred in the
past two decades where storm water from the River des Peres had invaded and
damaged private property.
97.At all relevant times,Defendant had undertaken legal duties
owed to Plaintiffs that include, but are not limited to:
a.The duty of reasonable care in the construction and
maintenance of the River des Peres not to injure private
property.
b.The duty to design maintain,construct and operate
underground pipes that carry the River des Peres through
Forest Park with sufficient capacity to convey storm water
that is discharged into the River des Peres during heavy
rainfall.
c.The duty to maintain and operate the River des Peres so
that silt,grass,trees,and other naturally growing
vegetation do not accumulate in the River des Peres
reducing its capacity to transport storm water.
d.The duty to maintain, construct and operate the River des
Peres so that there existed sufficient flood protection barriers
to prevent storm water from overflowing its banks and
invading private property.
e.The duty to design, maintain and construct the River des
Peres so that proper storage and/or attenuation elements were
15
0
z
-0--
r4o
00Z':
C')Izo
1. ç4
_4o)I-
.o c
()
in place to adequately convey the storm water that is
discharged into it.
f.The duty to design, maintain and construct the River des
Peres so that it has sufficient capacity to adequately convey
the storm water that discharges into it.
98.As of September 14, 2008, Defendant breached these duties
including but not limited to:
a.The duty of reasonable care in the construction and
maintenance of the River des Peres not to injure private
property.
b.Defendant failed to construct any and/or adequate flood
protection barriers and/or systems to retain storm waters
within the River des Peres.
c.Defendant failed to construct adequate storm
water storage areas and/or attenuation areas upstream
of the Plaintiffs' homes and properties.
d.Defendant failed to construct sufficient capacity within the
River des Peres to adequately convey the storm water that
discharges into it. e. Defendant failed construct underground
pipes that carry the River des Peres through Forest Park with
sufficient capacity to adequately convey the volume of water
that is discharged into the River des Peres during heavy
rainfall.
99.The Defendant's breach of the aforementioned duties,
16
proximately caused Plaintiffs' homes and properties to be invaded with and
damaged by storm water that overflowed from the River des Peres on
September 14, 2009
100.Based upon prior flooding from of the River des Peres in University
City, the Defendant had actual notice that the underground pipes that carry the
River des Peres through Forest Park are too small for the volume of water that is
lischarged into the River des Peres during heavy rainfall within sufficient time
prior to the September 14, 2008 flood event to have taken measures to correct it.
101.Based upon prior flooding from of the River des Peres in University
City, the Defendant had actual notice that silt, grass, trees, and other naturally
growing vegetation has been allowed to accumulate in the River des Peres
reducing the River des Peres' capacity to transport storm water within
sufficient time prior to the September 14, 2008 flood event to have taken
measures to correct it.
uo i
102.Based upon prior flooding from of the River des Peres in University
ity, the Defendant had actual notice that the River des Peres does not have any
ood protection barriers to prevent storm water from overflowing the River des
eres' banks and invading private property within sufficient time prior to the
14, 2008 flood event to have taken measures to correct it.
103.Based upon prior flooding from of the River des Peres in University
the Defendant had actual notice that the River des Peres lacks proper storage
r attenuation elements to adequately convey the storm water that is
rged into the River des Peres within sufficient time prior to the September
4, 2008 flood event to have taken measures to correct it.
17
104.Based upon prior flooding from of the River des Peres in University
City, the Defendant had actual notice that the River des Peres does not have
capacity to adequately convey the storm water that discharges into the
River des Peres within sufficient time prior to the September 14, 2008 flood event
to have taken measures to correct it.
105.Based upon prior flooding from of the River des Peres in University
City, the Defendant had constructive notice that the underground pipes that carry
the River des Peres through Forest Park are too small for the volume of water that
is discharged into the River des Peres during heavy rainfall within sufficient time
-prior to the September 14, 2008 flood event to have taken measures to correct it.
106.Based upon prior flooding from of the River des Peres in University
City, the Defendant had constructive notice that silt, grass, trees, and other
naturally growing vegetation has been allowed to accumulate in the River des
Peres reducing the River des Peres capacity to transport storm water within]P4f
*00-
*ufficient time prior to the September 14, 2008 flood event to have taken measures
o correct it.
107.Based upon prior flooding from of the River des Peres in University
ity, the Defendant had constructive notice that the River des Peres does not have
flood protection barriers to prevent storm water from overflowing its banks
invading private property within sufficient time prior to the September 14,
flood event to have taken measures to correct it.
108.Based upon prior flooding from of the River des Peres in University
the Defendant had constructive notice that the River des Peres lacks proper
and/or attenuation elements to adequately convey the storm water that
0
z
-0--
I-
I-,0
_(q,
po
'no
d0) I-
-
C,c
0
In
0
0
C')
C,,
C,)
'U
z
0
C,.
U'
.4
'U
I-
is discharged into the River des Peres within sufficient time prior to the September
14, 2008 flood event to have taken measures to correct it.
109.Based upon prior flooding from of the River des Peres in University
City, the Defendant had constructive notice that the River des Peres does not have
sufficient capacity to adequately convey the storm water that discharges into the
River des Peres within sufficient time prior to the September 14, 2008 flood event
to have taken measures to correct it.
110.Based upon knowledge obtained from prior flooding of the River des
Peres that damaged homes and properties within University City,the Defendant
had adequate time to correct the River des Peres' dangerous conditions as set
forth in the prior paragraphs in sufficient time prior to the September 14, 2008 flood
event to have taken measures to correct against this dangerous condition.
111.Prior to September 14, 2008, Defendant's employees regularly
inspected and maintained the River des Peres.
112.During the course of the regular inspections and maintenances
the River des Peres, Defendant's employees should have discovered that the
pipes that carry the River des Peres through Forest Park are too
all for the volume of water that is discharged into the River des Peres during
heavy rainfall in sufficient time prior to.the September 14, 2008 flood event to have
measures to correct against this dangerous condition.
113.During the course of the regular inspections and maintenances
the River des Peres, Defendant's employees should have discovered that silt,
trees, and other naturally growing vegetation has been allowed to
umulate in the River des Peres reducing its capacity to transport storm
19
0
z
-0
,. N
4 0H .q
(oz
cI
*00
I-'
0 c
C)
U)
00
0)
C')
('1
U'
z
0
x
C.
U'
'U
I-
water in sufficient time prior to the September 14, 2008 flood event to have taken
measures to correct against this dangerous condition.
114.During the course of the regular inspections and maintenances
of the River des Peres, Defendant's employees should have discovered that the
River des Peres does not have any flood protection barriers to prevent storm water
from overflowing its banks and invading private property in sufficient time prior to
the September 14, 2008 flood event to have taken measures to correct against this
dangerous condition.
115.During the course of the regular inspections and maintenances
of the River des Peres, Defendant's employees should have discovered that the
River des Peres lacks proper storage and/or attenuation elements to adequately
the storm water that is discharged into it in sufficient time prior to the
September 14, 2008 flood event to have taken measures to correct against this
gerous condition.
116.During the course of the regular inspections and maintenances
the River des Peres, Defendant's employees should have discovered that the
er des Peres does not have sufficient capacity to adequately convey the storm
er that discharges into it in sufficient time prior to the September 14, 2008 flood
nt to have taken measures to correct against this dangerous condition.
117.As a direct result of the River des Peres' dangerous conditions, the
des Peres was unable to convey the storm water discharged into it on
ember 14, 2008 thereby flooding Plaintiffs' homes and properties.
COUNT II: IN VERSE CONDEMNATION COMMITTED BY DEFENDANT
118.Plaintiffs incorporate by reference the preceding paragraphs.
20
0
z
-0
c00z,
C')
CLI
._.-
d0) l-
Uiot
0
119.The Missouri Constitution provides that "private property
shall not be taken or damaged for public use without just compensation."
MO. CONST. art. I, § 26.
120.Defendant owns and/or operates the River des Peres.
121.At all relevant times,Defendant had undertaken legal duties
owed to Plaintiffs that include, but are not limited to:
a.The duty of reasonable care in the construction and
maintenance of the River des Peres not to injure private
property.
b.The.duty to design maintain,construct and operate
underground pipes that carry the River des Peres through
Forest Park with sufficient capacity to convey storm water
that is discharged into the River des Peres during heavy
rainfall.
c.The duty to maintain and operate the River des Peres so
that silt,grass,trees,and other naturally growing
vegetation do not accumulate in the River des Peres
reducing its capacity to transport storm water.
d.The duty to maintain, construct and operate the River des
Peres so that there existed sufficient flood protection barriers
to prevent storm water from overflowing its banks and
invading private property.
e.The duty to design, maintain and construct the River des
Peres so that proper storage and/or attenuation elements
21
0
z
-0
I-.
-' 0
I_ll, (i
too
G)-'4.cLI
C,c
C)
00
G)
C.)
C.,
Ui
z
0
x
C..
Ui
.4
Ui
I-.
were in place to adequately convey the storm water that is
discharged into it.
f.The duty to design, maintain and construct the River des
Peres so that it has sufficient capacity to adequately convey
the storm water that discharges into it.
122.As of September 14, 2008, Defendant breached these duties
including but not limited to:
a.The duty of reasonable care in the construction and
maintenance of the River des Peres not to injure private
property.
b.Defendant failed to construct any and/or adequate flood
protection barriers and/or systems to retain storm waters
within the River des Peres.
c.Defendant failed to construct adequate storm
water storage areas and/or attenuation areas upstream
of the Plaintiffs' homes and properties.
d.Defendant failed to construct sufficient capacity within the
River des Peres to adequately convey the storm water that
discharges into it.
e.Defendant failed construct underground pipes that carry the
River des Peres through Forest Park with sufficient capacity to
adequately convey the volume of water that is discharged into
the River des Peres during heavy rainfall.
22
0
z
-0
a 0Z'r
C')
)P.I
.
-r.
.dO)I-'
C,
C)
123.The Defendant's breach of the aforementioned duties,
proximately caused Plaintiffs' homes and properties to be invaded with and
damaged by storm water that overflowed from the River des Peres on
September 14, 2009
124.By causing storm water to escape from the River des Peres
controlled by the Defendant and to physically invade Plaintiffs' homes and
properties, Defendant disregarded the rights and safety of the Plaintiffs and
created a nuisance which substantially and unreasonably interfered with
Plaintiffs' exclusive private use and enjoyment of their homes and properties.
125.As a direct. result of the wrongful conduct of the Defendant,t he
taintiffs' have suffered damages,including but not limited to the following:
a.Structural damage to their real property including their
foundations and foundation walls;
b.Damage to the finishes in their homes and properties
including finished basements, finished lower levels and/or
finished first floors;
c.Destruction of their personal property including sentimental
property,ordinary personal property and appreciating
personal property;
d.The expenditure of a great amount of time,effort and
money to sanitize and clean their homes and property due to
the bacteria and other unsanitary conditions caused by the
invasion of their residences by flood waters and/or untreated
sewage;
23
0
z
-0
-N
.4 0
1-4 i
(O
Izo
4Z
U)O
o c
0
00
c1
G)
U,
z
0
C.
UI
1
U,
e.Diminution in market value of their home and property; and
f.Loss of use and enjoyment of their home and property.
126.Based upon prior flooding from of the River des Peres in University
City, the Defendant had actual notice that the underground pipes that carry the
River des Peres through Forest Park are too small for the volume of water that is
discharged into the River des Peres during heavy rainfall within sufficient time
prior to the September 14, 2008 flood event to have taken measures to correct it.
127.Based upon prior flooding from of the River des Peres in University
City, the Defendant had actual notice that silt, grass, trees, and other naturally
growing vegetation has. been allowed to accumulate in the River des Peres
reducing the River des Peres' capacity to transport storm water within
sufficient time prior to the September 14, 2008 flood event to have taken
measures to correct it.
128.Based upon prior flooding from of the River des Peres in University
City, the Defendant had actual notice that the River des Peres does not have any
Flood protection barriers to prevent storm water from overflowing the River des
Peres' banks and invading private property within sufficient time prior to the
September 14, 2008 flood event to have taken measures to correct it.
129.Based upon prior flooding from of the River des Peres in University
ity, the Defendant had actual notice that the River des Peres lacks proper storage
attenuation elements to adequately convey the storm water that is
rged into the River des Peres within sufficient time prior to the September
14, 2008 flood event to have taken measures to correct it.
130.Based upon prior flooding from of the River des Peres in University
24
City, the Defendant had actual notice that the River des Peres does not have
dent capacity to adequately convey the storm water that discharges into the
iver des Peres within sufficient time prior to the September 14, 2008 flood event
have taken measures to correct it.
131.Based upon prior flooding from of the River des Peres in University
ity, the Defendant had constructive notice that the underground pipes that carry
e River des Peres through Forest Park are too small for the volume of water
that is discharged into the River des Peres during heavy rainfall within sufficient
time prior to the September 14, 2008 flood event to have taken measures to
Z correct it.
132.Based upon prior flooding from of the River des Peres in University
City, the Defendant had constructive notice that silt,grass, trees, and other
naturally growing vegetation has been allowed to accumulate in the River des
Peres reducing the River des Peres capacity to transport storm water within
ufficient time prior to the September 14, 2008 flood event to have taken measures
o correct it.
133.Based upon prior flooding from of the River des Peres in University
ity, the Defendant had constructive notice that the River des Peres does not have
flood protection barriers to prevent storm water from overflowing its banks
invading private property within sufficient time prior to the September 14,
flood event to have taken measures to correct it.
134.Based upon prior flooding from of the River des Peres in University
the Defendant had constructive notice that the River des Peres lacks proper
and/or attenuation elements to adequately convey the storm water that
25
discharged into the River des Peres within sufficient time prior to the September
4, 2008 flood event to have taken measures to correct it.
135.Based upon prior flooding from of the River des Peres in University
the Defendant had constructive notice that the River des Peres does not have
capacity to adequately convey the storm water that discharges into the
des Peres within sufficient time prior to the September 14, 2008 flood event
have taken measures to correct it.
136.Based upon knowledge obtained from prior flooding of the River
es Peres that damaged homes and properties within University City,the
efendant had adequate time to correct the River des Peres' dangerous conditions
2
s set forth in the prior paragraphs in sufficient time prior to the September 14,
008 flood event to have taken measures to correct against this dangerouspoC"ondition.
137.Prior to September 14, 2008, Defendant's employees regularly
In0 I-.
nspected and maintained the River des Peres.
o
0
138.During the course of the regular inspections and maintenances
f the River des Peres, Defendant's employees should have discovered that the
pipes that carry the River des Peres through Forest Park are too
I for the volume of water that is discharged into the River des Peres during
rainfall in sufficient time prior to the September 14, 2008 flood event to have
measures to correct against this dangerous condition.
139.During the course of the regular inspections and maintenances
the River des Peres, Defendant's employees should have discovered that silt,
26
0
z
-0
In
-.1c'0
a 0z
6)
Co
1L11.
_.t.,.'
O)I-.
(5
0
grass, trees, and other naturally growing vegetation has been allowed to
accumulate in the River des Peres reducing its capacity to transport storm
r in sufficient time prior to the September 14, 2008 flood event to have taken
measures to correct against this dangerous condition.
140.During the course of the regular inspections and maintenances
of the River des Peres, Defendant's employees should have discovered that the
River des Peres does not have any flood protection barriers to prevent storm water
from overflowing its banks and invading private property in sufficient time prior to
September 14, 2008 flood event to have taken measures to correct against this
angerous condition
141.During the course of the regular inspections and maintenances
the River des Peres, Defendant's employees should have discovered that the
des Peres lacks proper storage and/or attenuation elements to adequately
the storm water that is discharged into it in sufficient time prior to the
mber 14, 2008 flood event to have taken measures to correct against this
ngerous condition.
142.During the course of the regular inspections and maintenances
the River des Peres, Defendant's employees should have discovered that the
des Peres does not have sufficient capacity to adequately convey the storm
that discharges into it in sufficient time prior to the September 14, 2008 flood
to have taken measures to correct against this dangerous condition.
143.Plaintiffs have not received any just compensation from Defendant as
result of the aforementioned damages that sustained during the September 14,
flood event.
27
0
p.;
z
-0
0
a,0
z,'(O ,
"4:
1
1.1
,.'.;LI
o c
0
.4:
144.The damages to Plaintiffs' homes and properties substantially
impaired Plaintiffs peaceful enjoyment of their property.
145.The conduct of Defendant constituted a substantial and
unreasonable interference with the Plaintiffs' use and enjoyment of their properties
and homes, and, further, constitutes non-immune inverse condemnation for
which Defendant is liable to Plaintiffs for just compensation for their losses as
set forth herein.
peers.
JURY TRIAL DEMAND
146.Plaintiffs demand a jury trial on issues so friable by a jury of their
PRAYER FOR RELIEF
Wherefore, the Plaintiffs',request that the Court enter judgment in their
favor and against Defendant as follows:
A.Certifying this action as a class action;
B.Entering an injunction requiring Defendant to take all necessary
to prevent the River des Peres from flooding in the future as to condition
ably foreseeable;
C.Awarding compensatory, actual, and incidental damages;
D.Awarding prejudgment and post-judgment interest;
E.Ordering Defendant to pay all court costs;
F.Granting a trial by jury on all issues so triable;
G.Awarding total damages in excess of $25,000; and
H.Awarding Plaintiffs such other and further relief as may be just and
roper.
0
zc.
z
V
0
C',
0
('0
,.0
-
'U
Wednesday, January 2, 2013
MACUGA, LIDDLE & DUBIN, P.C.
.-by:
QFdjJjijM1-Bar#p5252 1)
975 E. Jefferson Ave.
Detroit, MI 48207
Phone: 313-392-0015
Fax: 313-392-0025
ddubinmIdcIassactjon .com
29
0
z
I-
.,.I,
I 0
1-1
u)4:
u,o
dG)
M1
o c
0
00
('1
0)
()
('I
0)
UI
0
z
UI
-I
UI
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the
foregoing was sent via U.S. Mail, postage prepaid, this 2nd day of January to the
following:
Mary M. Bonacrosi
Thompson Coburn, LLP One US Bank Plaza
St. Louis, Missouri 6310 I
Randy E. Hayman, General Counsel
Kristol Whatley
Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103-2555
30