Gunstone v. Jefferson County, No. 29709-4-II (Wash. App. 3/23/2004)
| Decision Date | 23 March 2004 |
| Docket Number | No. 29709-4-II,29709-4-II |
| Court | Washington Court of Appeals |
| Parties | REED C. GUNSTONE and DIANE GUNSTONE, husband and wife; CHARLES GUNSTONE, JR. and IRENE GUNSTONE, husband and wife; TIMOTHY WHITE and RENAE WHITE, husband and wife; REED C. GUNSTONE, as Trustee for KRISTA R. GUNSTONE and REED C. GUNSTONE, JR., a Washington trust, J&G GUNSTONE CLAMS, INC., a Washington corporation; DISCOVERY BAY LAND COMPANY, a Washington corporation, Appellants/Cross-Respondents, v. JEFFERSON COUNTY, a Washington municipal corporation; Respondents/Cross-Appellant. STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION, Defendant. |
Appeal from Superior Court of Kitsap County. Docket No. 99-2-00536-0. Judgment or order under review. Date filed: 11/05/2002. Judge signing: Hon. Leonard W Costello.
Counsel for Appellant(s), Peter L. Buck, Buck & Gordon LLP, 2025 1st Avenue, Suite 500, Seattle, WA 98121-3140.
Jeffrey S. Weber, Buck & Gordon LLP, 2025 1st Ave Ste 500, Seattle, WA 98121-3140.
Counsel for Respondent(s), Mark Robert Johnsen, Attorney at Law, 1201 3rd Ave Ste 2900, Seattle, WA 98101-3284.
The Gunstones appeal the dismissal on summary judgment of their claims against Jefferson County for property damage when an upstream culvert became blocked and the impounded water subsequently burst through a large county road fill. We hold that there were genuine issues of material fact regarding negligence because the inlet was on County property, and the County's response was a proprietary function not shielded by the public duty doctrine. We hold that RCW 38.52.180(2), which requires an affirmative act, does not shield the County from liability. We hold that there are issues of material fact about the County's collection and discharge of water that make summary judgment improper as to the Gunstones' strict liability claim. We further hold that a prior agreement between a railroad and the County is not binding on the Gunstones because the Gunstones took title by having a superior interest to the railroad, not as a successor; therefore, the Gunstones were neither required to indemnify the County nor were responsible for damages claimed by the County under the agreement. We reverse and remand.
Jefferson County constructed Old Gardiner Road (OGR) in 1914 (CP 301). State Route 101 roughly parallels OGR as the roads run through the Contractor's Creek watershed area on the northern edge of the Olympic Peninsula. Contractor's Creek passes under both roadways through concrete culverts before emptying into Discovery Bay. Both roads divert surface water from its pattern of natural flow, which would otherwise dissipate in a different direction. OGR's artificial surface water channel exists along its southern shoulder. The diverted surface water from both roads makes its way to Contractor's Creek where it flows through the culvert, continues downstream, and empties into Discovery Bay.
In the Contractor's Creek area, OGR courses along a 70-foot tall fill composed of earthen materials. The ravine in which Contractor's Creek descends intersects the fill at a roughly perpendicular angle, creating what the parties describe as "{t}he Bowl" behind the fill's upstream side. Clerk's Papers (CP) at 326. The bowl is drained by the aforementioned culvert running through the fill beneath OGR. The culvert is described as a "180-foot long concrete box culvert linked to an approximately 48-foot long round corrugated metal pipe." CP at 630.
The Gunstones own much of the property downstream of the OGR fill. The property supported the Gunstones' homes, gardens, orchards, boat ramp, and commercial operations, and Contractor's Creek flows through it. The Gunstones used the tidelands area along Discovery Bay as part of their commercial shellfish operation. Specifically, the tidelands provided fertile shellfish beds, both naturally and artificially established, for a variety of clams and oysters. The Gunstones also used the tidelands to store shellfish that they had harvested elsewhere.
The Contractor's Creek area, including the Gunstones' property, was formerly owned by the Simpson Logging Company. In 1913, Simpson deeded a right-of-way, which roughly paralleled the future OGR route, to the Seattle Port Angeles & Lake Crescent Railway. Seattle Port Angeles & Lake Crescent eventually transferred the right-of-way to the Chicago, Milwaukee, St. Paul and Pacific Railroad (the Railroad). In 1965, the Railroad removed the old train trestle that bridged Contractor's Creek and constructed a fill adjacent to the downstream side of the OGR fill. Contractor's Creek flowed through the Railroad's fill by an extension culvert that the Railroad attached, with the County's consent, to the existing culvert under OGR. The County's consent was conditioned, however, on an indemnity agreement that provided, "{t}he Railroad shall protect and indemnify the County from liabilities arising from the construction or presence of said fill and railroad tracks thereon upon and across the above-described portion of the county highway." CP at 35. This agreement was recorded in Jefferson County.
In 1984, the Gunstones wrote the County and the Railroad that the extension culvert had partially collapsed. The Railroad acknowledged its responsibility for the repairs, but never made them. By 1987, the Railroad had long since ceased operating its line in the Contractor's Creek area, and the right-of-way, tracks, fill, and culvert were, for all intents and purposes, abandoned by the Railroad's successor. The Gunstones decided to file a quiet title action concerning the right-of-way, and a default judgment was entered in Jefferson County Superior Court on November 6, 1987. The judgment quieted fee simple title to the Railroad's right-of-way in the Gunstones.
During the last week of December 1996, a severe winter storm hit western Washington, bringing heavy rains and snowfall. Jefferson County thought the storm so severe that, on December 30, it adopted a resolution allowing its public works department to enter into emergency contracts with private parties.
The storm dramatically increased the surface water volumes in the Contractor's Creek watershed area. Much of this increased flow was diverted into the artificial channels created by State Route 101 and OGR's southern shoulder. Consistent with the flow patterns described above, the water flowed into Contractor's Creek where it would normally pass through the culvert lying under the OGR fill. But the culvert had become blocked due to the saturation and partial collapse of the OGR fill. The Gunstones' evidence suggests that the artificial water diversions caused by Route 101 and OGR were the source of the saturation.
During the 18-20 hours following the culvert blockage, 26 million gallons of surface water impounded in the bowl behind the OGR fill. The County learned of the impoundment around 9:30 p.m. on December 31, 1996. County personnel inspected the situation that evening, but they decided that nothing could safely be done in the middle of the night. The next morning, County personnel again inspected the OGR fill, this time deciding that the best course of action was to allow the now 70-foot deep lake to drain slowly through the culvert or over the top of OGR.
At mid-day on January 1, 1997, the State of Washington became concerned that the impounded lake behind the OGR fill might lead to a failure of the fill beneath State Route 101. The State hired two local contractors to dig a five-foot deep relief ditch through OGR, expecting the impounded water to flow gradually through. But the pressure was too great, and the fill totally collapsed, sending a wall of water containing thousands of cubic yards of sediment and debris downstream and onto the Gunstones' property and tidelands. The Gunstones' property generally, and their shellfish beds in particular, suffered great damage.
The Gunstones sued Jefferson County and the State of Washington, alleging numerous causes of action. Against the County, the Gunstones alleged negligent design and maintenance of OGR and its culvert, negligent response to the OGR culvert blockage, nuisance, trespass, inverse condemnation, wrongful removal of soil, violation of the Public Disclosure Act, and various forms of strict liability.1 The County counterclaimed, alleging that the Gunstones were obligated under the 1965 Railroad agreement to indemnify the County for damages to County property.
The parties subsequently brought several motions for summary judgment. Several rulings were handed down: (1) the court ruled that, as a matter of law, the public duty doctrine barred the Gunstones' negligent response claim; (2) the court dismissed the Gunstones' strict liability and inverse condemnation claims; and (3) the court ruled that the Gunstones "stand in the shoes of the Milwaukee Railroad" with respect to the 1965 Railroad agreement and were therefore required to indemnify the County for damage caused by the Railroad fill or extension culvert. The Gunstones voluntarily dismissed their remaining claims.
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). "In a summary judgment motion, the burden is on the moving party to demonstrate that there is no genuine issue as to a material fact and that, as a matter of law, summary judgment is proper." Atherton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
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