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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.) 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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 ,. 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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