Springer v. Joseph Schlitz Brewing Co.

In 1970, the City of Winston-Salem (city) adopted a sewage ordinance. Under the ordinance, discharge of greater than 300 parts per million biochemical oxygen demand (ppm BOD) was considered industrial waste. BOD measured the purity of water. Each industrial user of the city’s sewers was required to obtain a permit and to pay surcharges. Discharge of effluent of 2,500 ppm BOD or greater was prohibited but was not a crime. Section 23-2(2) of the ordinance made the discharge of toxic, poisonous, or biologically harmful substances a crime. The Joseph Schlitz Brewing Company (Schlitz) (defendant) opened in 1969. Beginning in May 1970, Schlitz paid all surcharges but did not obtain a permit. Until April 1971, Schlitz discharged effluent with over 2,500 ppm BOD. The city allowed Schlitz and other businesses to operate without permits and in violation of the 2,500 ppm BOD discharge limit if surcharges were paid and compliance plans submitted. Schlitz’s effluent overwhelmed the treatment plant. In 1970, discharge from the overloaded treatment plant caused six fish kills along the Yadkin River. After the fish kills, Schlitz spent over $1 million on new facilities and achieved compliance with the sewage ordinance. David and Diana Springer (plaintiffs) owned a farm on the Yadkin River. Under state law, riparian owners had rights to the use and enjoyment of all streams bordering the owners’ lands, subject to upstream riparian owners’ rights to make reasonable use of the water without excessively reducing its quality. The Springers sued Schlitz on a negligence theory, asking for damages and an injunction. The Springers produced evidence that Schlitz knew or should have known that its effluent would overwhelm the treatment facilities and that Schlitz’s effluent was toxic to organic life. The trial court directed a verdict for Schlitz, holding that a user of the sewage system could not be liable for the city’s failure to treat sewage.