DiBlasi v. City of Seattle

• Decision Date: 24 December 1998
• Docket Number: No. 65447-6,65447-6
• Citation: 969 P.2d 10,136 Wn.2d 865
• Court: Washington Supreme Court
• Parties: Patricia DiBLASI, a single woman; Safeco Insurance Company of America, a stock insurance company, Petitioners, v. CITY OF SEATTLE, a municipal corporation, Respondent.

Page 865

136 Wn.2d 865

969 P.2d 10

Patricia DiBLASI, a single woman; Safeco Insurance Company

of America, a stock insurance company, Petitioners, v. CITY OF SEATTLE, a municipal corporation, Respondent.

No. 65447-6.

Supreme Court of Washington,

En Banc.

Argued March 11, 1998.

Decided Dec. 24, 1998.

Karen Willie, Seattle, for Petitioners.

Mark Sidran, Seattle City Atty, Marcia Nelson, Asst. Seattle City Atty, Seattle, for Respondent.

Ritchie & Strohmeyer, Craig Ritchie, Port Angeles, William Cameron, Kennewick, for Amicui Washington State Association of Municipal Attorneys.

ALEXANDER, J.

We granted review of a decision of the Court of Appeals in which that court reversed a summary judgment in favor of Patricia DiBlasi and dismissed her suit against the City of Seattle for damage to her real property allegedly caused by the runoff of surface water. The principal issue before us is whether a municipality can be held liable for a landslide caused by surface waters that are collected and channeled on a city street and thrust onto the property of another in a manner different from the natural flow. We hold that a municipality may have liability in such circumstances, and, therefore, we reverse the Court of Appeals. We, however, remand to the trial court to resolve the factual dispute about whether the City's street did in fact act to collect, channel and thrust surface waters onto DiBlasi's property in a manner different from the natural flow.

In 1924, a real estate developer platted land in West Seattle and dedicated SW Barton Street (Barton), 38th Avenue SW (38th), SW Bernice Place (Bernice), and SW Fletcher Street (Fletcher) to the City of Seattle for public use as roadways. The dedication carried with it the right of the City to make necessary slopes for cuts or fills in the original grading of the streets. The City owns property south of Bernice and west of 38th, commonly called Fauntleroy Park. Bernice, Barton, and 38th have all been developed as streets. Fletcher has not been developed as a street because it lies at the bottom of a ravine.

DiBlasi's house, which was built in 1975, is on 38th directly across from Fauntleroy Park. The house, which sits near the edge of the ravine, is 20 to 30 feet lower than Barton. Thus, 38th slopes fairly steeply downhill from Barton. A map on the next page illustrates this area.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The City initially opened and paved only the upper 135 feet of 38th and when it did so it did not construct any catch basins, channels, ditches, or artificial drains. In 1975, the developer who built the DiBlasi home graded and graveled an additional portion of 38th, extending the street to the edge of the ravine. The City alleges that the contractor filled a smaller ravine, but the contractor denies having done so.

Sometime after DiBlasi's contractor graded and graveled the southern portion of 38th, the City built a berm on Barton at the point where that street intersects with 38th. The berm was installed in order to stop surface water from running over onto 38th. Prior to April 1991, the City resurfaced Barton and removed the berm. According to Barbara Jayne, a long-time resident of the area, large amounts of rain water ran down 38th from Barton after the berm was removed. A hydrology expert, Dr. K. Malcolm Leytham, who was retained by DiBlasi "in part to review the City of Seattle's activities in the area of 38th Avenue S.W. from a hydrological standpoint," estimated that the removal of the berm doubled the amount of water that ran down 38th. Clerk's Papers (CP) at 257. Barbara Jayne indicated in her declaration that this concerned her because the water "was eating away and putting crevices down the street." CP at 262.

Responding to complaints from citizens about the problem created by the removal of the berm, the City eventually constructed a new berm. This did not, however, prevent water from running down Barton to 38th in times of heavy rain. Surface water runoff from the paved portion of 38th also continued to create gullies on the graveled portion of that street.

In early March 1991, the ground at the foot of 38th "set-down" about three feet. CP at 86. This so-called "tension crack," or "slump," extended 40 feet east from the edge of Fauntleroy Park across the end of 38th and the DiBlasi property. A landslide expert, P. Erik Mikkelsen, inspected the site at this time at DiBlasi's request and concluded that surface water runoff down 38th street had saturated the fill material on the slope and created the slump. He also feared that additional surface water would flow into the newly-opened crack and cause a landslide. Mikkelsen, acting on DiBlasi's behalf, contacted the City about the problem and met at the site on two occasions with Herb Allwine of the Seattle Engineering Department to discuss the situation. The City, however, declined to take any action.

During a rainstorm in early April 1991, water pressure in the tension crack caused the slope to give way, taking out a portion of DiBlasi's property up to the edge of her house. Mikkelsen indicated that if the City had taken action when requested, it could have prevented the slide by inserting horizontal drain pipes to drain the slope, thereby redirecting the surface water. He also opined that the City could have accomplished this work in two days at a cost of $15,000. Mikkelsen concluded that "[w]hat finally triggered the April 4th landslide was, in my opinion, the water concentrated by and flowing off 38th Avenue S.W. into the tension crack." CP at 89.

Leytham indicated that "[b]ecause of the location of 38th Avenue S.W., surface waters have been concentrated, collected and thrust onto adjoining lands in quantities greater than, and different from, the natural regime." CP at 134. But for the presence of the street, according to Leytham, the surface water would have percolated into the ground and not over the sides of the ravine. In explaining the factors that contributed to the slide, he stated:

[I]t is self-evident that the location of 38th Avenue S.W. resulted in storm runoff being discharged into the area of the slump at the foot of 38th Avenue S.W. The volume of water is a function not only of the amount of rainfall but of the contributing surface area of both 38th Avenue S.W. and S.W. Barton Street, and the impermeable nature of the street surfaces.

CP at 895.

DiBlasi brought suit against the City on an array of theories, including a claim that the City failed to maintain its prescriptive easement for surface water flows running down 38th and that it allowed 38th to concentrate, collect and thrust waters onto her property in "quantities greater than, and in a manner different from, the natural regime." CP at 137. DiBlasi also asserted that the City's negligent failure to maintain its street caused the landslide, created a nuisance, and constituted a taking and trespass. The City denied liability and claimed affirmative defenses of contributory negligence, prescriptive easement and contribution. It also alleged that liability should be apportioned to the developer who allegedly filled in the smaller ravine.

DiBlasi and the City each moved for summary judgment. DiBlasi submitted the declarations of Mikkelsen and Leytham in support of her motion. The City relied on its expert, John Peterson, who disagreed with the conclusions reached by DiBlasi's experts. Peterson stated that "[a]ny surface waters which reached the slide area, the side of the slope, or the DiBlasi property by way of the street right-of-way were simply those which naturally flowed therefrom, and there was no artificial collection or concentration of surface waters onto or down the right-of-way." CP at 269. The trial court, apparently relying on the declarations of DiBlasi's experts, entered summary judgment in favor of DiBlasi on all of her claims except for inverse condemnation.

The Court of Appeals reversed and dismissed DiBlasi's suit, concluding that any damage caused by surface waters that would have percolated into the ground, but for the impermeable surface of the roads, cannot, as a matter of law, give rise to municipal liability. DiBlasi v. City of Seattle, 85 Wash.App. 514, 522, 933 P.2d 443, review granted, 133 Wash.2d 1002, 943 P.2d 663 (1997). It also held that the City could not be held liable for failing to maintain a prescriptive easement because the City did not thrust water onto her property, and that DiBlasi could not prevail on her theory that the City failed to maintain the roadway because such a duty only extends to travelers along the roadway. Finally, the Court of Appeals upheld the trial court's dismissal of DiBlasi's inverse condemnation claim, concluding that she failed to establish that the City's actions had caused her injury. DiBlasi's petition for review to this court followed. ¹

I. Standard of Review

We may affirm an order granting summary judgment only if we are satisfied, after considering the facts in the light most favorable to the nonmoving party, that "there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Barnes v McLendon, 128 Wash.2d 563, 569, 910 P.2d 469 (1996) (citing In re Estates of Hibbard, 118 Wash.2d 737, 744, 826 P.2d 690 (1992)). All questions of law are reviewed de novo. Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Resources, Inc., 122 Wash.2d 544, 548 n. 3, 859 P.2d 51 (1993)).

II. Can a City be Held Liable for Damages Caused by Surface

Water That is Collected and Channeled Off of a

City Street and Thrust onto the Property

of Another?

The City has asserted that the trial court erred in not granting summary judgment in its favor on the basis that a City cannot, as a matter of law, be held liable for damages caused by surface water ² that is collected on its streets and channeled onto the property of...