City of Tucson v. Wondergem

• Decision Date: 11 December 1967
• Docket Number: CA-CIV,No. 2,2
• Citation: 435 P.2d 77,6 Ariz.App. 570
• Parties: The CITY OF TUCSON, a municipal corporation, Appellant, v. Jennie WONDERGEM, surviving spouse of Peter Wondergem, deceased, Appellee. 342.
• Court: Arizona Court of Appeals

Page 77

435 P.2d 77

6 Ariz.App. 570

The CITY OF TUCSON, a municipal corporation, Appellant, v. Jennie WONDERGEM, surviving spouse of Peter Wondergem, deceased, Appellee.

No. 2 CA-CIV 342.

Court of Appeals of Arizona.

Dec. 11, 1967.

Rehearing Denied Jan. 15, 1968.

Gordon S. Kipps, City Atty., Frederick S. Dean, Asst. City Atty., Tucson, for appellant.

Rees, Estes & Browning by William D. Browning, Tucson, for appellee.

MOLLOY, Judge.

This appeal reviews the action of a trial court in granting a new trial after a jury verdict in favor of the defendant, City of Tucson, in a wrongful death action.

The litigation arises out of a flash flood occurring in the Arroyo Chico, a main tributary of the much-litigated Tucson Arroyo. ¹ The plaintiff's deceased met his death around 10:30 p.m., on August 22, 1961. The watershed drained by this particular arroyo had been subjected to substantial rains for a four to five day period prior to August 22, and on this date there occurred a heavy rain in the watershed. The heavy downpour, aggravated by the effect of the previous rains on the porosity of the soil, and the overflowing of a diversion channel then under construction by the United States government, caused the arroyo to have an unprecedented highwater mark at the point where it is crossed by Cherry Avenue.

The natural banks of the arroyo had a capacity of approximately 4,000 cubic feet per minute and at the time in question there was approximately 5,000 cubic feet of water flowing within the 'banks' of the arroyo and in the depressed land adjacent to the channel. The highest previously recorded flow in this wash had been approximately 4,000 cubic feet per minute.

The Cherry Avenue crossing of the arroyo had been constructed in approximately 1926. At that time, two concrete 'boxes' were placed in the channel of the arroyo and the road was built over the top of these structures. The total capacity of these two culverts was approximately 2500 cubic feet per minute.

Cherry Avenue, as it passed over the arroyo, swaled down, so that when the capacity of the two boxes was exceeded, water passed over the top of the highway. On the occasion in question, the Wondergem car was washed into the arroyo by this flow, causing the death of the plaintiff's deceased. There was testimony from lay witnesses that the rain which occurred on the evening in question was the most intense rain they had witnessed over the course of years in the Tucson vicinity.

The pretrial order under which this case was tried limited the issues, insofar as theories of recovery are concerned, to those of nuisance and negligence. The pretrial order does not specify in what regard the plaintiff contended negligence, but an examination of the complaint ² discloses the plaintiff's contentions in this regard were that the city had negligently constructed, maintained and controlled the public highway known as Cherry Avenue as it crossed this arroyo; that it had negligently failed to either close or barricade this roadway or provide adequate warnings to the public on the occasion in question; and that it had negligently failed to construct adequate drainageways and watercourses to divert the floodwaters from the said public street.

In settling instructions, the trial judge indicated he would give the following requested defendant's instruction:

'The court instructs you that regardless of whatever the rule may be as to the obstruction of a natural watercourse or whatever the rules are as to ordinary surface water or rainfalls, should you find that the flood causing the damage to the plaintiff was so unusual as to amount to an 'Act of God,' Then the City is not liable for any damage, since there is no duty to provide for floods so unusual and extraordinary as to bring them within the category of an 'Act of God. " (Emphasis added.)

The plaintiff properly objected to this instruction and, to ameliorate it, requested a lengthy instruction, which was given by the trial court, telling the jury, among other things, that the 'Act of God' doctrine did not apply unless '* * * history of climatic conditions * * * in a particular locality afford no reasonable warning * * *' and unless the natural condition postulated to be an act of God was '* * * unforeseeable by reasonable men.'

In granting a new trial, the trial court indicated its only reason for so doing was that the court had committed '* * * error in giving the jury instructions on Act of God * * *.'

The instruction, giving the jury an obligation to deny all recovery if an 'Act of God' caused the death of the deceased, applied to both nuisance and negligence theories of recovery. If the instruction was erroneous as to the negligence theory, as we have determined it was, the granting of a new trial was proper, regardless of whether the instruction might have been proper under the nuisance theory. 88 C.J.S. Trial § 388(1), at pp. 1032--1034; 53 Am.Jur. Trial § 581, at 458--59; cf. Coyner Crop Dusters v. Marsh, 91 Ariz. 371, 377, 372 P.2d 708 (1962). Hence, we do not find it necessary to determine whether an 'act of God' instruction is proper in a nuisance case or whether any cause of action under this theory was shown in the evidence.

In defending the action of the trial court, the plaintiff relies almost exclusively upon the testimony of a witness who was the city engineer for the defendant at the time of the flood. This person testified he had cause to anticipate a flood of that magnitude prior to August 22, 1961, and that he was not surprised by the flood that occurred. While this testimony is undoubtedly most damaging to the city's position that this was an unprecedented flood, this testimony, from a former employee of the city, called by the plaintiff as a witness, is not binding or conclusive on the city. In determining whether particular instructions should be given, the evidence should be viewed favorably to supporting the instruction, Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934 (1961); Trauscht v. Lamb, 77 Ariz. 276, 270 P.2d 1071 (1954); Casey v. Marshall, 64 Ariz. 232, 168 P.2d 240 (1946); Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30 (1939); Gallagher v. Viking Supply Corp., 3 Ariz.App. 55, 411 P.2d 814 (1966); and, if there is any substantial evidence to support a pertinent legal doctrine, the giving of the instruction should be sustained. Trauscht, supra. Accordingly, we cannot affirm on the ground relied upon by the plaintiff, for we find sufficient evidence of an unprecedented flood to create a jury question, if 'act of God' is a defense in a negligence case.

The city places its main reliance upon decisions such as Harper v. Johannesen, 84 Idaho 278, 371 P.2d 842 (1962), and Cover v. Platte Val. Public Power and Irr. Dist., 162 Neb. 146, 75 N.W.2d 661 (1956), which hold that under the particular facts of those cases, a jury question was presented as to whether injury was caused by an 'act of God.'

Each of these cases involves a flooding of real property adjacent to a natural watercourse by the placing of an obstruction in the stream or by an alteration of the natural watercourse. While the cases speak of 'negligence,' it is apparent from reading the decisions that the court is not talking of this concept in its normal usage, as something a reasonably prudent man might or might not do under similar circumstances, but rather of an absolute duty not to tamper with a natural watercourse. 'Negligence' as viewed by the two decisions is something that can be ruled upon as a matter of law, if interference with a natural watercourse results in damage to adjacent land or persons or personalty on such adjacent land.

The decisions fall into the same category as the three decisions previously cited in note 1 hereof dealing with the liability of the City of Tucson in tampering with this particular natural watercourse. That this liability is one not within the area of the law of negligence but is one rather lying in the area of 'strict liability' is recognized in Kennecott Copper Corp. v. McDowell, 100 Ariz. 276, 282, 413 P.2d 749, 753 (1966). In speaking of the liability of one who tampers with the natural flow of a watercourse to the damage of '* * * the land of his neighbor, * * *' our Supreme Court has said:

'An action for damages will lie upon these simple facts. Whatever one may do with surface waters, or with flood waters, as these terms are defined in Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 150 P.2d 81, he may not cast the natural flow of a stream onto the land of his neighbor who is under no duty or obligation to receive the same. Negligence, wilfulness, or watonness are utterly immaterial to the right to recover compensatory damages if plaintiffs' premises were not subject to an easement for the flow of the stream, and defendants did not divert the waters onto such premises as of right. The 'wilfulness' required for recovery here is simply that the maintenance of the means of diversion be wilful, that it be the willed act of defendants; it is immaterial that they did or did not will the later damage that resulted. At common law the proper writ in these circumstances is trespass on the case, see Reynolds v. Clerk, 8 Mod. 272, 88 Eng.Repr. 193; same case 1 Strange 634, 93 Eng.Repr. 747.'

Schlecht v. Schiel, 76 Ariz. 214, 218, 262 P.2d 252, 254 (1953).

In agreement that such an action is not an action in negligence but in 'trespass' is Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, 762 (1948). The origin of this absolute duty not to injure adjacent lands by interfering with a natural watercourse hearkens back to the common law of England and stems from the rights of riparian owners. 2 Farnham, Waters and Water Rights §§ 464, 474, 481 and 546 (1904); and 1 Kinney on Irrigation and Water Rights (2d ed. 1912) §§ 546 and 547. In dealing with such a form of strict liability, it might be appropriate to instruct a jury as to an exception to this liability, which...