In re Flood Litigation

• Decision Date: 09 December 2004
• Docket Number: No. 31688.,31688.
• Citation: 216 W.Va. 534,607 S.E.2d 863
• Court: West Virginia Supreme Court
• Parties: In re: FLOOD LITIGATION.

607 S.E.2d 863

216 W.Va. 534

In re: FLOOD LITIGATION.

No. 31688.

Supreme Court of Appeals of West Virginia.

Submitted September 1, 2004.

Decided December 9, 2004.

Stuart Calwell, Esq., Thomas N. White, Esq., The Calwell Practice, Charleston, Vincent Trivelli, Esq., The Calwell Practice, Morgantown, Warren R. McGraw, II, Esq., Cindy Kiblinger, Esq., James F. Humphreys & Associates, Charleston, for Appellants.

Alvin L. Emch, Esq., Jill M. Obenchain, Esq., Jackson & Kelly, Charleston, for Appellees.

W. Henry Jernigan, Esq., Mychal S. Schulz, Esq., Christopher B. Power, Esq., Dinsmore & Shohl, LLP, Charleston, for Appellees' Master Brief.

Larry W. George, Esq., Charleston, for Landowners & Lessors-Lessees.

R. Ford Francis, Esq., Brian D. Morrison, Esq., Schumacher, Francis & Nelson, Charleston, for Small Defendants.

David L. Yaussy, Esq., Timothy M. Miller, Esq., Robinson & McElwee, for Timber Defendants.

Jane E. Harkins, Esq., Brown & Levicoff, PLLC, for Amicus Curiae, West Virginia Forestry Association.

Alvin L. Emch, Esq., Jackson & Kelly, for Amici Curiae, West Virginia Coal Association, West Virginia Oil and Natural Gas Association.

Robert W. Lawson, III, Esq., for Amici Curiae, West Virginia Farm Bureau, West Virginia Land and Mineral Owners Council, West Virginia Woodland Owners Association.

John R. Hoblitzell, Esq., for Amici Curiae, West Virginia Economic Development Council, West Virginia Business and Industry Council, West Virginia Roundtable, West Virginia Chamber of Commerce.

Denise Hoffner-Brodsky, Esq., for Amicus Curiae, Sierra Club.

MAYNARD, Chief Justice.

In this case, we answer several certified questions from the Flood Litigation Panel in regards to lawsuits arising from July 8, 2001, floods in several counties in southern West Virginia.¹

I. FACTS

On July 8, 2001, several heavy rainstorms passed over southern West Virginia and areas of Boone, Fayette, Kanawha, McDowell, Mercer, Raleigh, and Wyoming counties were flooded. These floods caused property damage, personal injury, and death.

Subsequently, 489 plaintiffs,² who are private residential property owners and occupiers, filed actions in the above counties against 78 different defendants including coal companies, timbering companies, landowners, lessors, railroads, and gas companies. Several of the defendants were involved in various ways in the extraction and removal of natural resources such as coal, oil, and timber, which altered or disturbed the natural state of the land. Plaintiffs allege in their complaints that Defendants should be responsible for damage to personal property and real estate, personal injury, and wrongful death upon various theories of liability including strict liability; unreasonable use of land; negligence; interference with riparian rights; and nuisance.

Pursuant to an administrative order of this Court dated May 16, 2002, then Chief Justice Robin Davis referred the July 8, 2001, flood cases to the Flood Litigation Panel for determination.³ The Panel thereafter held hearings and decided that the watersheds and Plaintiffs involved have different factual patterns but all of the cases have common issues of law. By order entered on August 1, 2003, the Panel certified nine questions to this Court which we decided should be reviewed and consequently docketed for hearing.⁴ In its certification order, the Panel indicated that it certified these questions pursuant to Rule 12(c) of the West Virginia Rules of Civil Procedure, in that it arises from a motion for judgment on the pleadings; W.Va.Code § 58-5-2 (1998); and Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994).⁵

Our review of the questions certified by the Flood Litigation Panel leads us to conclude, with the exception discussed infra, that they are proper for certification. As noted above, the questions arise from a motion for judgment on the pleadings. The provisions of W.Va.Code § 58-5-2 (1998), specifically authorize certification of any question of law arising from such a motion. Also, we find that there is a sufficiently precise and undisputed factual record on which the legal issues can be determined, and that these legal issues substantially control the case. Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994). Accordingly, we now proceed to address the questions certified.

II. STANDARD OF REVIEW

As a preliminary matter, we note that "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

III. DISCUSSION

The first question and its subsections certified to this Court and the Flood Panel's answers are as follows:⁶

1. Whether the plaintiffs have a cognizable cause of action based on allegations of unreasonable use of land under the balancing test set forth in Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770 (1989).

Answer of the Flood Panel: Yes.

1a. In the reasonable use test, may the plaintiffs' balancing test include such intangibles as the right to peaceful enjoyment of land, undetermined value and the particular value a [person's] home holds for him [or her]?

Answer of the Flood Panel: Yes.

1b. May the defendants' test include such things under the social utility as possession of electricity, heat, and other needs of the populations generally?

Answer of the Flood Panel: Yes.

Appellees and Defendants herein assert that the Panel is correct in concluding that Appellants and Plaintiffs can state a cognizable cause of action for unreasonable use under Morris. However, Defendants assert that Morris applies only to claims for diversion of surface waters onto adjoining landowners' property. Defendants reason that foreseeability is presumed when the other landowner is adjoining, whereas the same is not true when the other landowners are not adjoining. For their part, Plaintiffs are unhappy with the question as formulated, urge this Court to acknowledge that there is no practical or legal difference between the rules in Morris and Hendricks v. Stalnaker, 181 W.Va. 31, 380 S.E.2d 198 (1989), and adopt Section 833 of the Restatement (Second) of Torts as well as the "compensation test" for unreasonableness found in Section 826(b) of the Restatement.

First, we reject Defendant's argument that Morris applies only to diversion of surface waters onto adjoining landowners' property. As we discuss infra, one of the factors to be considered in determining reasonableness is foreseeability that harm will result from the use. We believe that to adopt an inflexible rule that a defendant cannot be held liable to nonadjacent landowners under the Morris reasonableness test may unfairly prevent recovery in some instances where the harm to non-adjacent landowners caused by the defendant was foreseeable due to the specific topography of the land. Thus, the better rule is to permit non-adjacent landowners to bring an action under Morris with the question of reasonableness best left to the jury. Accordingly, we reformulate certified question number 1 as follows,⁷

Whether adjacent and non-adjacent plaintiffs have a cognizable cause of action based on allegations of unreasonable use of land under the balancing test set forth in Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770 (1989).

Accordingly, we now proceed to answer question 1 as reformulated.

We conclude that Plaintiffs have a cause of action under Morris v. Priddy. In Morris, the plaintiffs filed a complaint against the defendant alleging that the flooding that damaged their property was caused by the fill the defendant had placed on his property. This Court discussed at length the development of our law with regard to a landowner's liability for altering the surface of his or her land to change the course or amount of surface water that flows off the land onto an adjoining landowner's property. After rejecting the civil rule which, we explained, rests on the maxim, "So use your own property or right that you do not injure another," Morris, 181 W.Va. at 590,383 S.E.2d at 772, and the common law rule, which allows "each owner to fight surface water as he chooses," id., citing Jordan v. City of Benwood, 42 W.Va. 312, 315, 26 S.E. 266, 267 (1896), we settled on a new rule, set forth in Syllabus Point 2, which provides, in part:

Generally, under the rule of reasonable use, the landowner, in dealing with surface water,⁸ is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of such reasonableness is regarded as involving factual issues to be determined by the trier of fact.

(Footnote added). In adopting this rule from the Connecticut Supreme Court case of Page Motor Co., Inc. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980), we reasoned:

An increasing number of courts have come to the conclusion that both the civil and the common law rules, even as modified, are too inflexible to meet the demands of an urban society. The development of land for commercial, industrial, and housing complexes requires alteration of the property. If this is to occur, an owner must be able to take reasonable steps to develop property without being subjected to suit. In the development of property that is not entirely level, there is generally a need for artificial drainage to handle surface waters and, by reasonably using such devices, liability should not necessarily result.

Morris, 181 W.Va. at 591, 383 S.E.2d at 773. The Panel below presumed as true in its certification order that Defendants' disturbance of the land caused an increase in the peak flow of surface water onto the properties of Plaintiffs. Therefore, we believe that our rule in Morris is applicable to the facts of this case. Accordingly, we answer question one, as reformulated, in the affirmative.

As noted...