Southern Club Enterprises, Inc. et al v. United States of America
Filing
26
MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on August 21, 2012. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
SOUTHERN CLUB ENTERPRISES,
INC. and 250 CENTRAL AVENUE, LLC
vs.
PLAINTIFFS
Case No. 6:11-6013
UNITED STATES OF AMERICA
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court for decision following a
two-day trial to the Court beginning on May 22, 2012, in Hot
Springs.
briefs.
Rules
Also before the court are the parties' post-trial
(Docs. 23, 25).
of
Findings
Civil
of
consideration
Procedure,
Fact
of
Pursuant to Rule 52 of the Federal
and
the
the
Court
Conclusions
admissible
enters
of
evidence
the
Law,
and
following
based
the
upon
Court’s
assessment of the credibility of the trial witnesses.
Findings of Fact
During the trial, the following facts were established by a
preponderance of the evidence:
1.
Plaintiffs are domestic entities of the state of Arkansas
which own and operate the Josephine Tussaud Wax Museum located
on Central Avenue in Hot Springs, Arkansas.
Page 1 of 35
The Wax Museum is
adjacent to West Mountain, which is in the Hot Springs National
Park.
2.
storm
West Mountain is steep and rugged, and has an underground
drain
system
consisting
of
culverts
with
intermittent
intakes, which are also known as clean-out boxes or inverts.
Defendant, acting through the United States Department of the
Interior and the National Park Service, owns and maintains the
surface water collection system, which is designed to transport
water down the mountain and into the drainage system of the City
of Hot Springs.
3.
One
of
the
culverts,
behind
an
18
and
inch
underground
steeply
is
the
Wax
located
immediately
Museum.
The culvert is designed to send water into Hot Springs
Creek at or near Central Avenue.
four
manholes
or
inverts
which
uphill
tube,
from
This particular culvert has
allow
surface
access
to
the
underground culvert for maintenance.
4.
At some point prior to May 5, 2009, soil and natural debris
accumulated
in
lowest, manhole.
the
underground
culvert
near
the
final,
or
The accumulation fully obstructed the culvert,
completely blocking the exit of water at the termination of the
culvert near Central Avenue.
5.
On May 5 and 6, 2009, the Hot Springs area experienced
rainfall ranging from .07 inches to 3.84 inches during a 24-hour
period.
Page 2 of 35
6.
During the May 5-6 rain event, water which entered the
system backed up, lifting the cover off the next uphill manhole.
The water then exited the system, but uphill of the designed
location.
The manhole where the water exited the system was
immediately uphill from the Wax Museum.
All the water that
entered the culvert exited the system through the manhole uphill
from the Wax Museum, instead of the designed exit, and poured
downhill directly into the Wax Museum.
7.
Water ran into the Wax Museum for approximately nine hours,
causing damage to real and personal property.
8.
Upon being advised of the flooding occurring at the Wax
Museum, on the early morning of May 6, 2009, Park employees went
to
the
area
on
West
Mountain
above
the
Wax
Museum.
They
discovered that one of the clean-out boxes in the storm drain
system was clogged due to debris, and water was exiting the
system from the top of the clean-out box.
9.
National Park Service personnel called City of Hot Springs
personnel to use their equipment to “flush” the system.
Once
the system was flushed the clogged material was pushed through
the system, and the water began properly flowing through the
drainage system and no longer exiting out the top of the cleanout box.
10.
Defendant owned and occupied land immediately adjacent to
Plaintiffs’ land.
Page 3 of 35
11.
Plaintiffs submitted an administrative claim in the amount
of $625,419.84.
Discussion
1.
Federal Tort Claims Act
The United States “can be sued only to the extent that it
has waived its immunity.” United States v. Orleans, 425 U.S.
807, 814 (1976). The Federal Tort Claims Act (“FTCA”) waives the
federal government's immunity from suit for a discrete class of
lawsuits. 28 U.S.C. §§ 2671-80 (2005). This waiver, however, is
limited
by
the
discretionary
function
exception,
precluding
“[a]ny claim based upon an act or omission of an employee of the
Government ... based upon ... a discretionary function or duty.”
28 U.S.C. § 2680(a). The Supreme Court has established a twopart
test
for
application
of
the
discretionary
function
exception. See Berkovitz v. United States, 486 U.S. 531, 536-37
(1988).
First, courts inquire as to whether the challenged action
was discretionary, as opposed to being governed by mandatory
statute, policy, or regulation. Whisnant v. United States, 400
F.3d 1177, 1180-81 (9th Cir. 2005) (summarizing Berkovitz test).
Second,
if
the
court
finds
the
action
to
have
been
discretionary, it then determines whether the action involved “a
decision susceptible to social, economic, or political policy
analysis.” Id. at 1181; see also O'Toole v. United States, 295
Page 4 of 35
F.3d 1029, 1033-34 (9th Cir. 2002). If the challenged action was
both discretionary and policy driven, the discretionary function
exception bars FTCA claims.
The parties disagree as to the existence of a mandatory
policy
regarding
Mountain.
maintenance
of
the
culvert
a
System.
part
on
West
At trial, Plaintiffs submitted into evidence four
documents entitled “Job Plan Operation Detail”.
are
system
of
Each
the
Defendant’s
reflects
a
job
Facility
plan
These documents
Management
and
the
Software
frequency,
description, duration, labor, materials and tools necessary for
that particular job.
Job Plan 42598--Internal Cleaning and Monitoring Culverts
Monthly--clear debris from entrance and exit of culverts;
internal cleaning with flushing machine, if needed; inside
inspection with use of camera, If needed; note damages.
(Plaintiffs’ Ex. 3).
Job Plan 42603--Inspect Road for Debris Weekly--clear
debris (fallen rocks, trees or limbs) from roadway; clear
debris from gutters; visually inspect drop inlets for
debris; note damages. (Plaintiffs’ Ex. 4).
Job Plan 19306--Internal Cleaning and Monitoring Culverts-clear debris from entrance and exit of culverts; internal
cleaning with flushing machine; inside inspection with use
of camera; note damages. (Plaintiffs’ Ex. 5).
Job Plan 1195--CA Roads Inspection1--storm sewer piping
(this includes installation of piping for collection of
storm
water);
storm
sewer
manholes
(this
includes
construction, maintenance and installation of manholes for
storm water collection systems); culverts (this includes
construction, maintenance and installation of culverts for
storm water systems); headwalls and catch basins (this
includes
construction/maintenance
of
headwalls
and
1
The CA (Condition Assessment) is an annual inspection. The job plan also
includes provisions for road inspection and maintenance that are not relevant
here.
Page 5 of 35
installation/maintenance of catch basins for storm water
systems). (Plaintiffs’ Ex. 6).
The first two Job Plans appear to dictate that the Park
maintenance staff is required to inspect and clear debris on a
monthly basis. Hot Springs National Park Superintendent Mardi
Arce testified that she is responsible for maintaining the day
to day operations of the park and directly supervises the Park’s
five division chiefs.
(Trial Transcript P. 287, Line 10-15).
On May 6, 2009, Ms. Arce was in charge of the Park’s response to
the flooding event at the Wax Museum.
Ms. Arce testified that
she produced the above Job Plans in response to the Plaintiffs’
request for the production of “any and all writings of any kind
which specifically or in any manner set out any maintenance
practice and procedures of the storm drain system and inverts
which are the subject of this litigation.”
298-299).
(Trial Transcript P.
Ms. Arce testified that these policies were not in
effect on May 6, 2009.
(Trial Transcript P. 301, Line 23).
The evidence reflects that at the time of the flooding
event
at
the
Wax
Museum,
no
policy
existed
for
regular
maintenance of the Park’s storm water system, other than as part
of
the
yearly
condition
assessment
of
the
Park.
Since
the
Park’s course of conduct is not mandated by statute, regulation
or its own policy, Defendant would have to demonstrate that the
government actions at issue are of the nature and quality that
Page 6 of 35
Congress intended to shield from tort liability.
However,
Plaintiffs’ lawsuit involves a mundane question of routine ditch
maintenance.
FTCA
The Eighth Circuit has consistently held that the
applies
“operational”
to
decisions
level,
but
by
that
planning” level are exempt.
federal
decisions
agencies
on
the
at
“policy
E. Ritter & Company v.
the
or
Department
of the Army, Corps of Engineers, 874 F.2d 1236, 1241 (8th Cir.
1989)(citing In re Estate of Gleason v. United States, 857 F.2d
1208,
1209
(8th
responsibility
of
Cir.
1988)(finding
maintaining
the
that
the
Riverdale
Corps
Outlet
had
Ditch,
a
as
designed and constructed; proper maintenance of the ditch would
have prevented erosion). This is not a decision grounded in
social, economic or political policies, and as such it is not
the sort of public policy issue that the discretionary function
exception is designed to protect. See O’Toole v. United States
of America, 195 F.3d 1029 (9th Cir. 2002)(reversing district
court’s
dismissal
for
lack
of
jurisdiction
where
Bureau
of
Indian Affair’s decision to allow an irrigation system to fall
into
disrepair
caused
damage
to
neighboring
landowners).
Because the Park’s storm water management system maintenance was
discretionary but not policy driven, the discretionary function
exception does not bar Plaintiffs’ FTCA claims.
Page 7 of 35
2.
Negligence
Under
the
FTCA,
the
standard
of
liability
for
the
government is the same as that for a private person, the prudent
person standard.
Ritter at 1241.
In Arkansas, the failure to
do what a person of ordinary prudence would do under the same or
similar circumstances constitutes negligence.
Id. at 1242.
The essential elements of a cause of action for negligence
are
that
the
Plaintiff
demonstrate
a
duty
owed
and
a
duty
breached, and that the Defendant's negligence was a proximate
cause of the Plaintiffs’ damages. Scott v. Cent. Ark. Nursing
Ctrs., Inc., 101 Ark.App. 424, 434 (2008).
Proximate cause is
generally a question of fact, unless the evidence is such that
reasonable minds cannot differ. Proximate cause is defined, for
negligence purposes, as that which in a natural and continuous
sequence, unbroken by any efficient intervening cause, produces
the
injury,
and
without
which
the
result
would
not
have
occurred. Wal–Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231,
236-237 (2004).
DUTY
Pursuant to Arkansas law, it is the duty of a land owner to
protect another nearby land owner from damages resulting from a
structure or artificial condition maintained on their land if
the land owner knew or should have known of an unreasonable
danger created by that structure and the land owner knew or
Page 8 of 35
should have known that the danger existed without the consent of
those affected by it and the land owner fails, after having a
reasonable
protect
opportunity,
against
it2.
to
eliminate
AMI
1110;
the
danger
Restatement
§ 366; Dye v. Burdick, 262 Ark. 124 (1977).
or
Second
otherwise
of
Torts
The National Park
Service has a duty to operate and maintain the drainage system
into which they intentionally divert storm water and for which
it
has
accepted
the
responsibility
for
operation
and
maintenance.
BREACH
The question of the breach of that duty is the manner in
which the Park maintained its storm water drainage system on
West Mountain, which was the subject of varied testimony at
trial.
Beginning with the testimony of National Park Service
Engineering Equipment Operator Walter Abbott, the answers were
difficult to follow, with the matter becoming less clear as the
trial went on.
Mr. Abbott testified that as an employee of the
Roads and Trails department, he was the person responsible for
maintenance of the gutter and culvert system.
(Trial Transcript
P. 234, Lines 9-22).
On direct examination, after explaining how the gutter and
culvert system on West Mountain works, Mr. Abbott was taken
through the Job Plans, identified as Plaintiffs’ Exhibits 3 and
2
Plaintiffs argue that they are entitled to an inference of negligence by res
ipsa loquitur. The Court does not address that claim here.
Page 9 of 35
4.
Mr. Abbott testified that on a weekly basis, his department
clears debris from the road and gutters, visually inspects drop
inlets for debris and notes any damage to the system.
Transcript P. 240, Lines 8-19).
(Trial
Mr. Abbott earlier testified in
his deposition that he inspected the cleanout boxes annually,
producing pages from his calendar showing he had performed an
inspection on January 7 and 8, 2009.
Lines 12-17; Plaintiffs’ Ex. 13).
(Trial Transcript P. 244,
At trial, Abbot testified
that the January 7 and 8 inspection was in performance of the
annual condition assessment, but that monthly visual inspections
of the cleanout boxes also occur.
(Trial Transcript P. 243,
Lines 16-22).
Calendar pages produced by Mr. Abbott reflect that he had
inspected the boxes only once in 2009 prior to the overflow, but
his testimony in court was that he performed the inspections
monthly
as
well
as
in
compliance
with
assessment, a total of 13 times per year.
the
required
annual
Mr. Abbot said the
inspection 13 times per year was the way he currently maintains
the system.
On Re-Cross Examination, Mr. Abbott testified that
at the time of the overflow in 2009, it was his department’s
practice to check the cleanout boxes and drop inlets three to
four
times
necessary.
supervisor,
a
year
and
following
a
rain
(Trial Transcript P. 274, Lines 5-12).
Park
Deputy
Superintendent
Page 10 of 35
large
Mardi
event,
if
Mr. Abbott’s
Arce,
testified
that the weekly and monthly inspection plans (Plaintiffs’ Ex. 36) that the Park produced in discovery were not established
until (and in reaction to) the overflow into the Wax Museum in
2009.
Regardless of whether in 2009 Mr. Abbott inspected the
system annually, monthly or even daily, it is obvious that he
could not have viewed more than 10% of the culvert at any given
time:
“We open up the cleanout boxes and then take a flashlight
and look up and down each culvert, see if there’s anything and
make
sure
there’s
nothing
inside
obstruction inside the culverts.”
Lines 22-25).
the
cleanout
boxes
or
any
(Trial Transcript P. 244,
Mr. Abbott testified that the distance between
the two cleanout boxes at issue on West Mountain was 120 feet,
but that he could only see some 20 feet in either direction with
his flashlight.
(Trial Transcript P. 245, Lines 11-14).
culvert system had only been flushed one time, in 1998.
Transcript P. 247, Lines 5-8).
The
(Trial
Contrary to reports at the time
of the 2009 overflow, Mr. Abbott testified that the National
Park Service had never used video camera equipment to view and
record the inside of the system.
Lines 16-18).
on
West
(Trial Transcript P. 249,
Although there was a plan to video the culverts
Mountain
in
2006,
using
the
City
of
Hot
Springs’
equipment, the operator, according to Mr. Abbott, believed that
this particular culvert was too steep to utilize this procedure.
Page 11 of 35
(Trial Transcript P. 257-258).
The National Park Service owned
a flushing machine, but it was stated to be not as powerful as
the one owned by the City of Hot Springs, which was the one used
to flush out the debris that caused the 2009 overflow.
Transcript P.249, Lines 7-8).
(Trial
Mr. Abbott testified that when
he had been trained to inspect the culverts, he was taught to
keep them cleaned out.
(Trial Transcript P. 259, Lines 21-23).
Mr. Abbott testified that on the morning of May 6, 2009,
when he arrived at the Wax Museum he saw a “small waterfall”
coming down the side of the mountain.
Lines
13-14).
Before
culvert was obstructed.
going
up
to
(Trial Transcript P. 262,
inspect
it,
he
knew
the
(Trial Transcript P. 250, Lines 20-25).
Although Mr. Abbott’s testimony was at times confusing, it is
clear that the National Park Service did not have in place at
the time of the overflow adequate tools with which to maintain
the storm water system and prevent incidents such as the one
that
damaged
conclusion
of
the
Wax
the
Museum.
Government’s
This
is
expert
borne
witness,
Raphelt, Ph.D in his report and trial testimony3.
out
Dr.
by
the
Nolan
Dr. Raphelt
had been a hydraulic engineer for 40 years, and his firm, Pyburn
& Odom, Inc., was commissioned to perform an evaluation of the
hydrologic and hydraulic impacts of the May 5-6, 2009, rainfall
3
Dr. Raphelt was not available at trial, and his testimony was taken in the
form of a videotaped deposition on June 26, 2012, a copy of which was
provided to the Court.
Page 12 of 35
event on the flooding of the Wax Museum.
(Plaintiffs’ Ex. 25).
In his written report he concluded that there was an
extremely intense rainfall event [on May 5-6] that had
a frequency of occurrence of between once in 50 and
100 years, or an extremely rare event.... Most modern
storm drainage systems would not have been capable of
handling such a rare event. Hydraulic and hydrologic
computations of the storm drain system indicated that
the existing storm water drainage system has the
capacity to convey the flows experienced on May 5 and
6 2011 [sic] to City of Hot Springs storm water
drainage system.
(Plaintiffs’ Ex. 25, Pgs 21-22).
drain
system
maintained
by
Dr. Raphelt testified that the
the
National
Park
Service
has
adequate minimum flow velocities to move water and that it was
designed
to
be
self-cleaning.
(Raphelt’s
Deposition
P.
31,
Lines 11-13; P. 32, Line 6).
Dr. Raphelt and other members of
his
data
firm
studied
rain
gauge
from
May
5-6
and
physical
survey data of the storm drain system and concluded that the
system was adequately designed to handle all the flows that
would enter into the system back in 2009.
(Raphelt’s Deposition
P. 11, Lines 9-22; P. 12, Lines 12-13).
Dr. Raphelt testified
that the way the system was set up on May 5-6 was adequate to
carry the flow that entered in it from Manhole 4.
Deposition P. 43, Lines 15-24).
(Raphelt’s
“The conclusions we drew was
if the system hadn’t stopped up, that it was--the system should
have worked okay.
change
the
It was adequately designed, the... plug did
hydraulics
and
the
flow
Page 13 of 35
characteristics
and
the
location of... where some water were discharged.”
(Raphelt’s
Deposition P. 12, Lines 1-6).
Dr.
rainfall
Raphelt
was
far
later
testified,
greater
than
“The
the
intensity
system
is
of
this
designed
to
handle...this was a rainfall that was about...what you get once
in
every
50
years.
So
it
was
a
high-intensity,
gully
washing.... And it just does not appear that the system could
handle it.”
(Raphelt’s Deposition Pgs. 48-49).
Dr. Raphelt
also testified that he had no experience in any sort of culvert
system or municipal surface water draining system.
Deposition P. 38, Lines 1-4).
(Raphelt’s
Dr. Raphelt was asked to read
from page 6 of his report, in which he stated:
The total rainfall of the May 5-6 2009 storm in Hot
Springs would not be considered a major event using
Technical Paper 40, Rainfall Frequency Atlas of the
United States for Durations from 30 Minutes to 24
Hours and Return Periods from 1 to 100 Years (1961).
The total event would be considered a 2 year frequency
12 hour Rainfall event.
The total precipitation for
this event is often experienced in the Hot Springs
area, however this event did have the potential to
cause flooding because of the very intense 5 and 15
minutes rainfall events that occurred between 12:30
a.m. and 1:00 a.m. on the morning of May 6, 2009.
(Plaintiffs’ Ex. 25, P. 6).
The amount of rain that fell that morning continues to be
the subject of debate.
While Dr. Raphelt examined data from
seven rain gauges, he admitted that none of the gauges showed
the
amount
of
rainfall
in
the
watershed
Page 14 of 35
that
fed
into
the
culvert, which would have impacted the Wax Museum.
Instead, he
relied on five of the seven gauges to determine the intensity of
the rainfall; specifically, he did not consider the two gauges
closest to the Wax Museum and based his conclusion on the gauge
located
reported
farthest
from
the
substantially
Wax
more
Museum,
rainfall
which,
than
gauges. (Raphelt’s Deposition Pgs 68-69).
any
coincidentally,
of
the
other
Dr. Raphelt admitted
that even with a reduced amount of rainfall, the flow entering
would have been more than the culvert could handle.”
Deposition P. 73, Lines 5-9).
rainfall
data
relied
upon,
(Raphelt’s
Regardless of the conflicting
Dr.
Raphelt’s
testimony
did
not
dispute that the cause of the overflow was the clogged culvert.
“Nothing in my study indicated that the clog was there or wasn’t
there.
I
occurred.”
didn’t
have
any
way
of
evaluating
how
the
clog
(Raphelt’s Deposition P. 39, Lines 15-18).
Proximate Cause
Defendant
does
not
deny
that
Plaintiffs’
property
was
damaged as a result of its clogged drainage system.
On Cross-
Examination,
testified
Deputy
Park
Superintendent
Mardi
Arce
that the culvert was clogged:
The Court:
Is there any question in your mind but that the
manhole that we are looking at now was clogged on the date of
the occurrence?
Page 15 of 35
Arce:
Well, the---I have no doubt in my mind that the
culvert that runs in between this manhole and the next manhole
was clogged somewhere.
The Court:
a
(Trial Transcript P. 311, Lines 8-13).
But did your investigation reveal that there was
substantial
blockage
in
the
culvert
on
the
day
of
the
occurrence?
Arce:
Yes....Yes, I -- there was water that was created
from that backing up.”
(Trial Transcript P. 312, Lines 1-10).
U.S. Attorney: But it was obvious to you, Ms. Arce...that the
water had flowed out of this and down the hill...over to the wax
museum?
Arce:
Right.
(Trial Transcript P. 313, Lines 8-14).
Conclusions of Law
1.
The Court has jurisdiction pursuant to 28 U.S.C. § 1346(b),
and venue is proper pursuant to 28 U.S.C. § 1402(b).
Plaintiffs
commenced this action within the time and in the manner set
forth under the terms of the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 1402(b), 2401(b) and 28 C.F.R. 14.9(a).
2.
The
law
of
the
state
of
Arkansas
is
applied
to
a
determination of negligence and the amount of damages.
3.
Pursuant to Arkansas law, it is the duty of a land owner to
protect an adjoining land owner from damages resulting from a
structure or artificial condition maintained on their land if
Page 16 of 35
the land owner knew or should have known that the danger existed
without the consent of those affected by it and the land owner
fails, after having a reasonable opportunity, to eliminate the
danger or otherwise protect against it.
is negligence.
A violation of the duty
AMI 1110; Restatement Second of Torts § 366;
Aluminum Company of America v. Guthrie, 296 Ark. 269 (1988); Try
B Advertising v. Thomas, 278 Ark. 58 (1982); Dye v. Burdick, 262
Ark. 124 (1977).
4.
Defendant failed to use ordinary care in the inspection and
maintenance of its underground surface water drainage system.
5.
they
Plaintiffs proved by a preponderance of the evidence that
sustained
damages,
that
Defendant
was
negligent
in
maintaining its underground surface water drainage system, and
that Defendant’s negligence was a proximate cause of Plaintiffs’
damages.
6.
Plaintiffs’ damages are limited by the damages proven in
connection with their administrative claim.
For the reasons set
out below, Plaintiffs are entitled to recover $145,472.60.
Damages
On the morning of May 6, 2009, in addition to alerting the
National
Plaintiffs
Park
Service
filed
a
that
flood
the
loss
Wax
claim
Museum
with
had
their
flooded,
insurance
company, “National Flood Insurance Program,” serviced locally by
First Arkansas Insurance of Hot Springs Inc.
Page 17 of 35
A representative
visited the site and determined it was “evident the damage was
caused
by
failure
property.”
of
drainage
systems
(Plaintiffs’ Ex. 29, P. 1).
on
the
adjoining
The representative,
Adam Jones, informed Plaintiffs that because the flooding was
limited to their property it was not the result of a “General
Condition of Flooding,” and was not covered by the National
Flood Policy.
Upon learning this, Plaintiffs hired Mr. Jones to
consult as a private adjuster.
In addition, Plaintiffs engaged
B&F Engineering, Inc. to perform a storm water runoff damage
assessment4.
and
June
Tim Tieaski, P.E., visited the Wax Museum on May 6,
16,
2009,
and
his
engineering
firm
performed
a
topographic survey to determine how much debris washed down the
embankment into the Wax Museum’s back yard.
(Plaintiffs’ Ex.
27).
Mr.
Jones
personal
property
remediation
proposal).
completed
and
efforts
The
a
presented
(based
total
thorough
a
in
part
actual
cash
review
the
real
and
comprehensive
plan
of
on
B
value
of
&
of
F
Engineering’s
the
loss
was
estimated to be $625,419.845, and this was the amount Plaintiffs
used in making their administrative claim.
4
Mr. Roberts testified that Mr. Jones suggested he engage an engineer.
(Trial Transcript P. 65, Lns 4-6).
5
Although Defendant contends that it was not negligent in its maintenance of
the storm water system and is not liable for any damages to Plaintiffs,
Defendant also argues that Plaintiffs have failed to prove damages in the
amount claimed.
Defendant proffers that at least $440,850.53 should be
deducted from Plaintiffs claim, for a maximum award of $184,569.31.
(Doc.
25).
Page 18 of 35
Remediation
Mr. Tieaskie’s report indicates that when the embankment
behind and above the Wax Museum collapsed due to the drainage
system overflow, the swiftly-moving water carried and eventually
deposited approximately 114 cubic yards6 of loose soil material,
shale and organics at the back of the Wax Museum. (Plaintiffs’
Ex.
27,
sloughed
P.
3).
off,
Mr.
washing
limbs down the hill.
In
addition,
the
Tieaskie
soil,
testified
small
that
rocks,
the
gravel,
slope
had
leaves
and
(Trial Transcript P. 111, Lines 12-16).
water
that
flowed
down
the
embankment
undermined the structural integrity of the concrete slab at the
top of the embankment at the point of the overflow.
Transcript P. 111, Lines 16-20).
(Trial
In Mr. Tieaskie’s opinion, the
accumulated debris must be removed and the embankment, including
the concrete slab, stabilized in order to prevent additional
future damage to the Wax Museum building and property.
(Trial
Transcript P. 118, Lines 3-25).
To determine the costs of such remediation, three engineers
from
B&F
Engineering,
Inc.
and
two
local
contractors
worked
6
Mr. Tieaskie testified that the survey crew performed “shoot shots” from the
rooftop of a building adjacent to the Wax Museum. “We have an instrument man
that takes a rod with a prism on it that indicates a location and height and
it gets shot into an instrument. That data is duplicated throughout the area
of the debris from the base up to the top.
And then it is compiled in a
program.
At that time we used a program called Eagle Point which compiles
those points and generates contours which each contour is--everybody is
probably familiar with but represents a foot in height change of elevation.
So through that data then we were able to generate the approximate location
of the base of the mountain before the debris and generate some cross
sections and do a volume calculation.” (Trial Transcript P. 116, Lns 5-19).
Page 19 of 35
together to develop an estimate.
Lines 22-25).
for
(Trial Transcript P. 119,
Costs factored into B&F’s report included those
excavating
material
and
reinforcing
Transcript P. 120, Lines 6-11).
the
slope.
(Trial
The first estimate was based on
constructing a temporary gravel road on National Park Service
land and accessing the material from above utilizing a crane
with a bucket.
masonry
wall
The second option was to remove an existing
from
behind
the
building
to
create
a
path
and
excavate the debris by hand, bringing the material through the
building to Central Avenue using wheelbarrows.
27, P. 4).
(Plaintiffs’ Ex.
The estimated construction cost of excavation from
the upper side of West Mountain was $202,381.43 and the estimate
of excavation from Central Avenue was $200,419.537.
(Plaintiffs’
Ex. 27, P. 18).
Mr.
Tieaski
testified
that
the
costs
of
remediation
included in his report were necessary and reasonable as of 2009,
but that the costs would have risen since that time.
(Trial
Transcript P. 122, Lines 16-18).
Despite the thoroughness of B&F’s calculations and report,
there
is
no
way
of
determining
with
any
certainty
how
much
debris was deposited in the back of the Wax Museum as a result
7
Mr. Tieaski testified that the lower estimate for excavating from Central
Avenue was used in Mr. Jones’ adjustment, but according to his report, Mr.
Jones used the higher of the two estimates. (Trial Transcript P. 122, Lns 177; but see Plaintiffs’ Ex. 29, P. 36). Mr. Jones also based his commission
on the higher of the two estimates, see infra.
Page 20 of 35
of the over-flowing drainage pipe.
No evidence was produced
showing the condition of the property before May 6, 2009.
Mr.
Abbott testified that the vegetation he witnessed behind the
building was growing in the ground, not lying on the ground as
if it had come to rest there recently.
268, Lines 4-8).
(Trial Transcript P.
The Wax Museum had flooded at least once
before, in 1990, when the area received 13.25 inches of rain in
less than 24 hours, causing floodwaters 2 to 4 feet to flow
through the historic downtown area of Hot Springs8.
In 1986, the
Wax Museum’s then-owner Al Green told the Governor’s Commission
on
Hot
Springs
National
Park
that
his
business
suffered damage when heavy rains fell on the city9.
Ex. 29).
Wax
frequently
(Defendant’s
Without any evidence that all the debris behind the
Museum
was
deposited
as
a
result
of
the
May
6,
2009,
overflow, or that the event caused all of the cliff erosion, it
would be inappropriate to award Plaintiffs the full measure of
remediation expenses.
more
likely
period
of
Service’s
than
time
not
due
control
Due to the history of the area, it is
that
to
and
the
embankment
conditions
that
the
outside
area
contained debris from past flooding.
had
eroded
the
behind
over
National
the
Wax
a
Park
Museum
Defendant argues that the
8
USGS, “ Hydrologic Monitoring for the City of Hot Springs Early Flood
Warning Information System”,
http://ar.water.usgs.gov/PROJECTS/HotSpringsFlood.html, site visited July 25,
2012.
9
Roger Hedges, The Sentinel-Record, Hot Springs, Arkansas, “Panel Tries To
Turn Tide Against Downtown Flooding,” June 13, 1986.
Page 21 of 35
total amount claimed for soil remediation and engineer fees in
the amount of $218,571.94, should be deducted from any award of
damages.
(Doc. 25, P. 11).
Under Arkansas law, the measure of damages is the cost of
restoring property to its former condition.
238 Ark. 484 (1964).
Barnes v. Young,
The Court finds the total estimated cost
of remediation to be supported by the evidence, but that it
should be reduced by 50% to account only for damages that were
proximately caused by any negligence of Defendant, as opposed to
damage attributable to erosion over time or other conditions
such as historical flooding or cutting back of the mountain by
current or past property owners.
The Court awards Plaintiffs
$101,190.72 for remediation and believes this to be fair and
equitable under the circumstances.
Building
Mr. Jones testified he used Simsol software, one of two
programs approved by the National Flood Insurance Program and
widely
used
by
adjustors
to
estimate
flood
loss.
(Trial
Transcript P. 183, Lines 16-18; P. 185, Lines 10-16).
After he
determined there had in fact been flood damage, he entered the
building’s
measurements
and
construction
material
into
the
program, which assigned value based on the Craftsman Publishing
database.
That
database
is
updated
quarterly
and
generates
claim data for any type of property loss based upon construction
Page 22 of 35
prices for a specific trade--according to zip code.
Transcript P. 183, Lines 6-11; P. 184, Lines 1-2).
(Trial
According to
the Simsol program, heavy flood loss clean-up was valued at $.98
per
square
foot
in
Hot
Springs,
Arkansas
in
May
of
2009.
Mildewcite floor treatment was valued at $.23 per square foot;
pressure blasting concrete floor was valued at $2.12 per square
foot, etc.
(Plaintiff’s Ex. 29, P. 10).
While this method of
itemizing claims may be useful in the insurance world for its
uniformity and predictability, it bears little resemblance to
the
damages
actually
sustained
by
Plaintiffs
in
this
case.
Further, it is the finder of fact’s obligation to assess damages
by fixing the amount of money which will reasonably and fairly
compensate Plaintiffs for the damages they sustained.
(AMI 2201
Measure of Damages--General Instruction).
Using
the
Simsol
software,
Mr.
Jones
estimated
the
replacement value of the building itself to be $1,146,376.00, or
$93.05 per square foot.
After applying 37% depreciation, the
actual cash value of the building is $722,216.88, or $58.62 per
square foot, according to Mr. Jones.
(Plaintiffs’ Ex. 29, P.
9).
Mr.
removing
floor
Jones’
mud
and
coverings,
treatment
of
plan
provided
water
from
trim
and
surfaces,
for
the
the
building,
framing,
repairing
water
Page 23 of 35
room-by-room
costs
replacing
drywall,
heater
paint,
and
of
damaged
mold-
escalator,
replacing custom cabinetry, electrical outlets and the heating
and air conditioning system, all of which were alleged to have
been damaged by the flood.
Mr. Jones estimated the cost to
restore the building to pre-flood condition and remediate the
area behind the building and the cliff face to be $407,426.17.
He then added ten percent adjustment for contractor overhead and
ten percent for contractor profit, totaling $81,485.24. Next, he
added the cost of debris removal and haul-off to be $16,297.05,
for
a
total
of
$505,208.46.
Mr.
Jones
accounted
for
depreciation10 of $26,222.94, resulting in actual cash value of
$478,985.52,
including
his
commission11
of
$36,769.17.
This
figure represents “heavy flood loss clean-up”, Mildewcide floor
treatment, air movers and dehydrators, pressure blasting floors,
cleaning,
treating
and
sealing
walls,
removing
and
replacing
wall plaster, painting walls, removing and replacing shelving,
doors, hardware for each room and flushing and sanitizing the
10
Mr. Jones testified that he applied an “educated estimate” to depreciate
the cost of restoring the building and its contents.
He did not apply any
depreciation to personal property which had not been used at the time of the
overflow (display and sale items in the gift shop).
(Trial Transcript P.
203, Lns 2-13).
11
Mr. Jones included an 8% commission for himself based on the gross loss,
which is the cost of repair before depreciation.
The National Flood
Insurance Program limits adjustors to the higher of 2.1% or $5,750 for claims
above $250,000.01 with dates of loss on or after September 1, 2008.
NFIP Adjuster Fee Schedule-2008 Revision,
http://www.fema.gov/library/viewRecord.do?id=3895, site visited August 7,
2012.
Page 24 of 35
H.V.A.C.,
in
addition
to
specific
repairs,
cleaning
and
replacement needed for each individual-purpose room12.
Owner
damaged
Stacy
by
Roberts
floodwater,
testified
catching
that
fire
the
and
HVAC
resulting
unit
in
was
total
destruction of the unit.
The Wax Museum was closed for three to
four
and
days
for
cleaning
other
flood-related
(Trial Transcript P. 67, Lines 12-19).
maintenance.
The floors were damaged
and, although Mr. Roberts testified he had patched places over
time, they still need to be replaced.
Lines 4-18).
for
fungus,
(Trial Transcript P. 68,
The damaged walls were power washed and treated
but
some
of
them
had
to
(Trial Transcript P. 69, Lines 3-16).
be
altogether.
The electricity had to be
rewired in many places due to water damage.
P. 70, Lines 12-17).
removed
(Trial Transcript
Mud had to be scooped from the basement
and there was up to 16 inches of water in much of the building.
(Trial Transcript P. 70, Lines 1-5). Mr. Roberts testified that
while he, his family and his employees performed some clean up
and restoration work themselves, nothing has been hired out to
professionals because the Wax Museum does not have enough money
to have all the necessary work done.
While he testified as to
what he made per hour as a pharmacist, he did not provide any
12
Mr. Jones provided separate estimates for: Back Storage/Staging area, Back
Hall, Obama Exhibit, Main Attraction 1st Floor, West Hall, Pirate Display,
Female Restroom, Male Restroom, Display Exit, Basement, Gift Shop, Office,
Break Room, Electrical/Air Closet, Ticket Office, Gift Storage, Front Shirt
Storage Room, Rear Shirt Storage Room and Exterior.
Page 25 of 35
evidence of how much time or money he spent making necessary
repairs or how much, if any, future repairs he intends to make.
The Wax Museum continues operating as a tourist attraction, and
Plaintiffs have not made a claim for loss of profits due to the
flooding damage.
While Mr. Jones estimated the loss to the
building to be $188,854.23
(including $23,270.00 to repair an
escalator that allegedly worked before the flooding), the only
evidence produced as to the proximate value of the building and
materials prior to the overflow was provided by Mr. Jones13.
Mr.
Jones estimated the actual cash value of the repairs to the
building,
not
including
his
commission,
to
be
$162,722.18.
Under Arkansas law, the applicable measure of damages was the
reasonable expense of necessary repairs to the property. See AMI
3d 2213; Morton v. Park View Apartments, 315 Ark. 400 (1993).
The Court finds that many of Plaintiffs’ claims for compensatory
damages are unsupported by the evidence and should be reduced by
87.5%.
The Court finds that a reasonable value for damages
caused to the building is $20,340.27.
Contents
With respect to the contents of the Wax Museum, Mr. Jones
catalogued
all
of
Plaintiffs’
retail
inventory,
t-shirt
inventory, damaged attractions and business operation furniture
13
Mr. Jones testified that his commission is calculated based on his estimate
of what he determines the total damage claim to be.
(Trial Transcript P.
217, Lines 3-6).
Page 26 of 35
and
equipment.
Inventory
offsite during clean-up.
that
was
not
damaged
was
stored
Mr. Jones estimated the replacement
cost of the contents to be $140,953.87. After adding his eight
percent commission ($11,276.31) and then applying depreciation
of $5,795.86, the actual cash value of the loss, including Mr.
Jones’ fee, was calculated to be $146,434.32.
Mr.
Jones’
analysis
of
the
contents
of
the
Wax
Museum
constitutes 30 pages of his report, with an additional 23 pages
of photographs.
(Plaintiffs’ Ex. 29, Pgs 24-54, 90-113).
Mr.
Jones testified that he spent three to four days inventorying
Plaintiffs’ personal property.
(Trial Transcript P. 195, Ex. 3-
4). He hand-counted every souvenir in the gift shop and storage
area, leaving out any item that did not appear to be affected by
the water.
(Trial Transcript P. 195, Lines 17-25).
Items such
as glassware and t-shirts, which could arguably be cleaned, were
not
assigned
salvage
value,
because
it
was
Mr.
Jones’
understanding from Mr. Roberts that he did not intend to retain
these items for resale.
P. 219, Lines 1-14).
(Trial Transcript P. 218, Lines 23-25;
Mr. Jones testified, however, that because
Mr. Roberts did not request a salvage audit, he does not know
whether or how many of the items were disposed of.
Transcript P. 219, Lines 17-24).
(Trial
Mr. Roberts testified that
many items counted by Mr. Jones sat in the Wax Museum for about
two months.
“Most of the stuff, the t-shirts, you know, we used
Page 27 of 35
them at the Duck Shop14 to mop up grease.”
340, Lines 3-6).
“The glassware was hauled to the dumpster at
All Seasons Lodge.
it
in
their
(Trial Transcript P.
Some of my employees I’m sure took some of
vehicles
throughout
the
period
it
sat
there.”
(Trial Transcript P. 340, Lines 10-12).
Mr. Roberts advised his
employees
took,
receive
not
any
to
sell
payment
the
from
items
his
they
employees
for
but
he
what
did
they
not
took.
(Trial Transcript P. 340, Lines 14-21).
The employees carried
merchandise to two different dumpsters.
Mr. Roberts told them
to “just get rid of it,” but he “can’t say that they didn’t take
it home.”
(Trial Transcript P. 341, Lines 11-16).
Mr. Roberts continued to testify to Mr. Jones’ breakdown of
equipment and inventory, noting that most of the damaged office
furniture
remained
in
overflow.
Much of the equipment is still in use, some of which
has been repaired15.
not
have
the
the
Wax
Museum
three
years
after
the
It was not replaced because Plaintiffs did
money.
(Trial
Transcript
P.
347,
Line
20).
Plaintiffs rented two local hotel rooms for one month to store
property during the clean-up period, at a cost of $1016.00.
(Plaintiffs’ Ex. P. 25).
In the gift shop, Plaintiffs cleaned
the candle displays, which are currently in use.
They brought
14
Plaintiffs also own National Park Duck Tours, located at 418 Central Avenue
in Hot Springs, Arkansas.
15
Office desk:
currently in use; printer:
replaced with cheaper model;
desk: “not sure”; legal chair: on site; wooden chair: “not sure”; vertical
cabinets:
on site; drink cooler:
repaired and in use.
(Trial Transcript
Pgs 345-347).
Page 28 of 35
jewelry displays from the Duck Shop to replace the water-damaged
ones at the Wax Museum.
The commercial ice cream freezer was
replaced, but the damaged one remained in storage.
A drink
cooler was repaired, as was the classic penny press machine.
Plaintiffs refurbished the love tester machine, and bought a new
one
as
well
($1852.50).
The
coin
operated
Indy
Car
Style
Children’s Ride ($4874) was scrapped, and the 10-foot lighted
Christmas tree kept in storage was replaced, while the original
one remains onsite.
The commercial freezer remains in the back
of the Wax Museum; Mr. Roberts does not know if it still works
or not as he has not tried to sell ice cream from it.
Two wet
vac cleaners were destroyed, but Mr. Roberts did not indicate
whether
they
were
replaced.
A
custom-made
Mouse16 was soaked with mud and water.
oversized
Mickey
Mr. Roberts testified he
had intended to use it in a future Disney exhibit.
“I’m sure
you could clean it....I’m not sure where it’s at, though.
just
don’t
know
if
they
threw
it
away
or
not.”
I
(Trial
Transcript P. 353, Lines 18-20).
The focus of a Wax Museum is, of course, the wax figurines
themselves.
According
to
Mr.
Roberts,
a
Pinocchio
figurine
(made partially of wax) that had been stored in the back of the
Wax Museum was found after the overflow to have fallen out of a
16
The Mickey Mouse figurine is one of two made for the opening of Disney
World, according to Mr. Robert’s wife’s aunt, who donated it to the Wax
Museum. (Trial Transcript P. 353, Lines 4-14).
Page 29 of 35
chair and broken its neck.
11).
(Trial Transcript P. 343, Lines 5-
Mr. Roberts testified that he was sure Pinocchio had not
been broken prior to being washed over.
364, Lines 12-19).
(Trial Transcript P.
Because Plaintiffs owned a second Pinocchio,
they did not replace the damaged one at an estimated cost of
$11,500.00.
Two wax figurines inherited from the previous owner
had resided in a coffin-shaped crate since at least 2002, having
never
been
opened.
Mr.
Jones’
report
replacement cost to be $40,750 apiece.
34).
estimated
their
(Plaintiffs’ Ex. 29, P.
The crate was not opened until several weeks after the
overflow,
and
no
attempt
was
made
to
clean
or
repair
them.
(Trial Transcript P. 361, Lines 8-10).
While the calculations of all damages in this matter have
concerned
the
Court,
it
is
the
valuation
of
damages
to
Plaintiffs’ personal property that causes the most concern.
It
is not necessarily the complexity of these calculations which
makes the ultimate question of damages suffered by Plaintiffs
virtually impossible to determine, but the manner in which they
were assessed by Mr. Jones.
According to both Mr. Roberts and
Mr. Jones, a great number of items from the retail store were
hauled away, but there is no evidence that the property was
destroyed or disposed of rather than retained by Plaintiffs’
employees.
Some of the damaged office furniture remains in use
at the Wax Museum, but Mr. Roberts does not know what became of
Page 30 of 35
some of the furniture. Similarly, Mr. Roberts does not know
whether the ice cream freezer works, because he has not tried to
use it since the overflow.
Probably the most speculative of
damage estimates is that for replacement of the wax figurines
that were damaged by mold.
Mr. Roberts testified he had never
opened the storage crate when he bought the Wax Museum from the
prior owners in 2002.
There is no evidence as to what condition
the figures were in at the time of the sale or immediately prior
to any water damage in 2009.
not
open
the
crates
As stated above, Plaintiffs did
immediately
after
the
waiting several weeks to assess the damage.
overflow,
instead
Defendant argues
the cost of the Pinocchio figure ($10,120.00), office furniture
($3,883,35), jewelry display ($874.25), Mickey Mouse ($740.77)
and wax figurines ($81,500) should be deducted from any award.
(Doc. 25, P. 12).
When there has been a total loss of property such that
there is no salvage value or no possibility of repair, the owner
is entitled to recover the fair market value of the property
immediately before the loss occurred.
Kanis v. Rogers, 119 Ark.
120 (1915). However, when the property is not a total loss but
is only damaged, the owner is entitled to recover the difference
in the fair market value of the property immediately before and
immediately after the damage occurred. Daughhetee v. Shipley,
282 Ark. 596 (1984).
In both situations, the fair market value
Page 31 of 35
is
defined
as
the
price
the
property
would
bring
between
a
willing seller and a willing buyer in the open market after
negotiations.
When
the
Southern Bus Co. v. Simpson, 214 Ark. 323 (1948).
property
that
has
been
damaged
is
clothing,
home
appliances, or other personal items, the measure of damages is
not the fair market value but simply the fair value. Howard's
Laundry
&
Cleaners
v.
Brown,
266
Ark.
460
(1979);
Cecil
v.
Headley, 237 Ark. 400 (1963). Fair value is determined not by
considering
the
saleable
or
second-hand
value,
but
by
considering the reasonable value to the owner for his own use,
which
includes
considerations
of
original
cost,
replacement
cost, and the owner's past and future use of the items. Howard's
Laundry,
supra;
Minerva
Enterprises
Inc.
v.
Howlett
308 Ark. 291 (1992).
The Court finds many of Plaintiffs’ claims for compensatory
damages are unsupported by the evidence and should be reduced by
87.5%.
The Court finds a reasonable value for the replacement
cost of damaged contents is $16,894.75.
Mr. Jones’ Adjustor Fee
Assuming an eight percent commission is reasonable for a
private adjustor, the Court finds it is unreasonable for Mr.
Jones to add $16,190.51 to the total damage assessment.
Mr.
Jones
for
took
an
existing
estimate
from
B&F
Engineers
$202,381.43 to remediate the property behind the Wax Museum.
Page 32 of 35
He
then added his eight percent commission to that estimate by
transferring B&F’s line items to his adjustment and calling it
an “Engineer Estimate Adjuster Fee.”
fee
states
that
Outsourcing
it
The description of the
includes
incurred
Expenses
“Commission%,
from
Retainage%,
B&F
Engineering,
Consultations and all other applicable burdens.”
(Plaintiffs’.
Ex. 29, P. 26).
In the absence of evidence that any of these
fees and burdens actually existed, the Court finds that the
United
States
is
not
liable
for
any
commission
on
B&F’s
estimate.
Mr. Jones’ commission on the building repair estimate (not
including B&F’s remediation efforts) is reduced to $1,627.22,
proportional to the costs for repair allowed by the Court.
With respect to Mr. Jones’ commission on the value of the
contents of the Wax Museum, $11,276.31, for the reasons stated
above, the Court finds that commission to be based on inflated
valuation and speculative damages.
Defendant argues it should
not be liable for any of the costs of this “expert”, as the FTCA
only provides for the recovery of compensatory damages.
(Doc.
25,
Jones
P.
expended
11).
in
Given
assessing
the
amount
the
damage
of
time
and
work
the
Wax
Museum
to
Mr.
and
its
contents and his degree of expertise in the industry, the Court
finds the United States is liable for $1,351.58, which is 8% of
the allowable award of $16,894.75.
Page 33 of 35
Overhead and Profit
When Mr. Jones calculated the loss and cost of repair to
the
building
and
property,
he
allowed
for
overhead and profit for the contractors.
twenty
percent
Mr. Jones calculated
the twenty percent based on the total “repair item totals”,
which included his eight percent commission.
liable
for
any
overhead
or
profit
Defendant is not
added
to
Mr.
Jones’
commission.
The estimate that B&F Engineers provided to Plaintiffs was
to remediate the collapsed soil material directly behind the Wax
Museum as well as to stabilize the slope of the embankment and
the concrete slab at the top of the embankment.
provided
for
material
excavation,
engineering
The estimate
and
surveying
fees, labor costs, insurance and bonding, gravel surface work,
seeding,
mulching,
fertilizing
and
watering,
safety
systems,
control, stabilization of upper concrete slab, retaining wall
and labor, mobilization, traffic control, cleanup, testing and
“miscellaneous.”
of
the
two
presented
B&F
its
Mr. Jones based his commission on the higher
bids,
report
$202,381.43.
to
Plaintiffs,
Presumably,
including
this
when
B&F
estimate,
they accounted for overhead and profit on their own work.
It
was unreasonable, then, for Mr. Jones to add another twenty
percent
overhead
to
and
the
estimate.
profit
Defendant
estimate
($77,114.74)
Page 34 of 35
argues
that
should
all
be
of
the
deducted
from
any
Plaintiffs
award
did
of
not
damages
expend
because
this
Mr.
amount.
Roberts
(Doc.
testified
25,
P.
12).
Defendant is not liable for the cost attributable to overhead
and profit allowances on the B&F estimate ($40,476.29).
The
Court awards $4068.05.
Conclusion
Based upon the foregoing, the Court concludes Plaintiffs
have
proven
storm
drain
Defendant
system,
negligently
causing
maintained
damage
to
its
underground
Plaintiffs’
property.
Accordingly, judgment is for Plaintiffs and Defendant is liable
in the amount of $145,472.60, plus post-judgment interest at the
rate of .19%.
Each party is to bear its own costs and fees.
IT IS SO ORDERED this 21st day of August, 2012.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
Page 35 of 35
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