Beck v. Tacoma City Light, No. 30329-9-II (WA 4/12/2005)
| Decision Date | 12 April 2005 |
| Docket Number | No. 30329-9-II,30329-9-II |
| Parties | GRANT BECK and JUDY BECK husband and wife, et al., Appellants/Cross-Respondents, v. TACOMA CITY LIGHT, et al., Respondents/Cross-Appellants. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Lewis County. Docket No. 97-2-00812-1. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Richard Lynn Brosey.
Counsel for Appellant(s), Helen Mareen Bartlett, Vander Stoep Remund & Blinks, 345 NW Pacific Ave, PO Box 867, Chehalis, WA 98532-0867.
James Andrew Jr Vander Stoep, Attorney at Law, 345 NW Pacific, PO Box 867, Chehalis, WA 98532-0867.
John Aden Barlow, Attorney at Law, PO Box 1549, Longview, WA 98632-7934.
Kenneth a Sheppard, Attorney at Law, 999 3rd Ave Ste 2525, Seattle, WA 98104-4032.
Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
Counsel for Respondent(s), Timothy R. Gosselin, Attorney at Law, 1501 Market St Ste 300, Tacoma, WA 98402-3333.
The issues in this flooding case are (1) whether the jury instructions properly described the plaintiffs' negligence claim; (2) whether the jury instructions properly included defenses to the plaintiffs' trespass claim; (3) whether the trial court properly dismissed the plaintiffs' inverse condemnation claim; and (4) whether the trial court properly dismissed the plaintiffs' riparian rights claim. We affirm. In 1948, Tacoma City Light applied to the Federal Power Commission, now the Federal Energy Regulatory Commission (FERC), for a license to build two dams on the upper Cowlitz River. Mossyrock Dam was to be upstream from Mayfield Dam, and together they were to be known as the Cowlitz Project. In 1951, the dams were approved and licensed. Two of their purposes were controlling floods and generating electrical power. Article 34 of the license dealt with flood control. As revised in 1972, it stated:
Licensee {Tacoma} shall reserve in Mossyrock Reservoir between elevation 778.5 feet and 745.5 feet adequate space to regulate Cowlitz River floods equal to or less than the magnitude of the December 1933 flood to 70,000 cfs {cubic feet per second} or less at Castle Rock, Washington. However, storage space in Mayfield Reservoir, a downstream reservoir, may be substituted for an equal amount of storage space in Mossyrock Reservoir. Maximum scheduled pool levels and flood regulation procedures for Mossyrock Reservoir are prescribed in the following paragraphs:
Beginning on October 1, Mossyrock Reservoir shall be gradually lowered from elevation 778.5 to reach elevation 745.5 on or before December 1. At no time during that two-month period shall the pool be higher than the elevation represented by uniform evacuation of the reservoir, except temporarily when regulating a flood. Between December 1 and January 31, the reservoir shall be maintained at elevation 745.5 feet except when storage space is used to regulate floods. Between February 1 and June 1, the reservoir may be filled gradually to elevation 778.5, except that, Licensee, consistent with flood control provisions of paragraph 1 of this article, shall maintain the reservoir level at or below elevation 765 feet until May 21, or until the Swofford Pond evacuation is completed, whichever occurs first.
The procedure for regulating floods will be to store only that portion of the inflow in excess of 15,000 cfs, the capacity of the two existing turbines at Mossyrock, until such time that a further reduction in reservoir release is necessary to regulate the flow at Castle Rock to 70,000 cfs. Following a flood, stored flood waters in Mossyrock Reservoir above elevation 770, shall be evacuated as fast as downstream channel conditions will permit, preferably not to exceed 50,000 cfs at Castle Rock, or at lesser rate if the evacuation can be accomplished in less than three days. However, should a 50,000 cfs flow at Castle Rock jeopardize the evacuation of the storage space above elevation 770, the regulated flow at Castle Rock may be increased to 70,000 cfs, the scheduled maximum. Stored flood waters that have to be evacuated below elevation 770 shall be made at the maximum capacity of the two existing turbines or 15,000 cfs whichever is the larger.1
Adjustments in the operation specified by the criteria in this article may be made from time to time for short periods subject to prior approval of the authorized representatives of the Licensee and the Corps of Engineers, Department of the Army. The Licensee shall notify the Commission {FERC} of any such adjustments.2
In November 1995, Western Washington experienced heavy rain. By November 9, inflow at the dams had increased from 5,000 cfs to more than 20,000 cfs, and Tacoma began to release as much water as its turbines could use to produce electricity. By November 18, the rain had begun to subside, and by November 22, inflow had dropped to 8,800 cfs.
On November 18, Tacoma calculated that the Mossyrock Reservoir would continue to drop, reaching the license-required elevation of 745.5 feet on December 1. Accordingly, Tacoma continued to release only as much water as its turbines could use to produce electricity.
On Sunday, November 26, the weather forecasters were not predicting unusually heavy rain. By Monday, November 27, however, the forecasters were predicting that by `Tuesday night or Wednesday, rivers in Southwest Washington, including the . . . Cowlitz river{} . . . could be above flood stage'3 and that the flood might be a 2,000-year event.
On November 27, Tacoma calculated that if the forecasters were correct and it continued to release only as much water as its turbines could use, the inflow of water would overtop Mossyrock Dam by December 1. After conferring with the Army Corps of Engineers, Tacoma increased the rate of discharge from Mayfield dam to a daily average outflow of 20,700 cfs on November 27,4 54,300 cfs on November 28,5 65,000 cfs on November 29,6 and 59,000 cfs on November 30.7 These releases resulted in 104,000 cfs at Castle Rock on November 29, and in the flooding of homes and businesses along the Cowlitz River.
In 1996, a United States Senator asked FERC to review Tacoma's handling of the flood. FERC concluded that Tacoma had complied with its license.
Between June 1997 and October 1998, the owners of flooded property filed four lawsuits that were later combined in a single `Amended and Consolidated Complaint.'8 The plaintiffs alleged (1) that Tacoma had assumed but failed to perform a duty of reasonable care to control floods; (2) that Tacoma had inversely condemned their properties; (3) that Tacoma had trespassed on their properties; and (4) that as a riparian owner, Tacoma owed other riparian owners, but had failed to perform, a duty to use the water reasonably.9 Tacoma filed an answer and counterclaims.
In November 2002, the court empanelled a jury to try liability only; if the jury found liability, damages would be tried later. The witnesses agreed that if Tacoma had discharged more water earlier (i.e., before November 27), it could have discharged less water later (i.e., after November 27). The witnesses also agreed that once Tacoma retained the amount of water on November 27, it had no choice but to release the amounts that it released after November 27. The witnesses disagreed on whether Tacoma had acted reasonably and in the exercise of reasonable care by not discharging more water before November 27. Each expert who testified for the plainfiffs said that if Tacoma had released more water before November 27, Tacoma could have held the average daily outflow after November 27 to not more than 45,000 cfs.
When the plaintiffs rested, Tacoma moved to dismiss. The trial court dismissed the inverse condemnation claim, but not the other claims. At the end of all the evidence, Tacoma again moved to dismiss. The trial court dismissed the riparian rights claim but agreed to submit the negligence and trespass claims to the jury.
The trial court then gave jury instructions on negligence and trespass. In Instruction 7, it described the plaintiffs' negligence claim as follows: The plaintiffs claim that the defendant was negligent in the following respects:
a. It failed to reduce the elevation of Riffe Lake {the Mossyrock Reservoir} to a level sufficient to reduce maximum discharge from the Cowlitz Project to 45,000 cfs or less during the period November 27 to December 1, 1995.10
Objecting to Instruction 7, one of the plaintiffs' attorneys stated, `Instruction 7, I except to the claim limiting it to the reduction of 45,000 cfs or less as opposed to simply reducing the maximum discharge below 65,000.'11 Although the plaintiffs say they proposed an instruction in which they described their own negligence claim, no proposed instruction appears in the record on appeal. The court's instructions on trespass appear below.
The trial court gave a special verdict form in which it asked the jury to make findings on plaintiffs' negligence and trespass claims. In the first of several questions, the court asked:
QUESTION NO. 1: Was the defendant negligent in failing to reduce the elevation of Riffe Lake to a level sufficient to reduce maximum discharge from the Cowlitz Project to 45,000 CFS or less during the period November 27 to December 1, 1995?12
Although the special verdict form paralleled Instruction 7, the plaintiffs did not object to it.
During deliberations, the jury sent a note to the judge. It asked, `If Tacoma was negligent for a short period of time that still would not have reduced project outflow to below 45,000 CFS, would that be negligence in this first question OR does prudent operation have to result in an outflow of 45,000 CFS or less?'13 After conferring with the parties, the judge told the jury to re-read the instructions it already had.
The jury found Tacoma not liable. Answering the various questions on the special verdict form, it ruled that Tacoma...
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