Kunz v. Utah Power & Light Co.

• Decision Date: 29 August 1990
• Docket Number: No. 87-4361,87-4361
• Citation: 913 F.2d 599
• Parties: 31 Fed. R. Evid. Serv. 166 Wayne KUNZ; Olive Kunz; Glenn V. Turner; Carol Turner, Plaintiffs-Appellants, v. UTAH POWER & LIGHT CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 599

913 F.2d 599

31 Fed. R. Evid. Serv. 166

Wayne KUNZ; Olive Kunz; Glenn V. Turner; Carol Turner Plaintiffs-Appellants, v. UTAH POWER & LIGHT CO., Defendant-Appellee.

No. 87-4361.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 1, 1988.

Withdrawn from Submission September 28, 1989.

Resubmitted April 6, 1990.

Decided Aug. 29, 1990.

L.F. Racine, Jr., Racine, Olson, Nye, Cooper & Budge, Pocatello, Idaho, for plaintiffs-appellants.

Stephen S. Dunn, Merrill & Merrill, Pocatello, Idaho, for defendant-appellee.

Appeal from the United States District Court for the District of Idaho.

Before SKOPIL, D.W. NELSON and BRUNETTI, Circuit Judges.

D.W. NELSON, Circuit Judge:

This case was originally submitted on November 1, 1988. It was withdrawn from submission on September 28, 1989 following our certification of several questions to the Idaho Supreme Court on March 22, 1989. The Idaho Supreme Court responded on April 3, 1990. This case is hereby resubmitted.

Various landowners ("Landowners") brought suit against the Utah Power & Light Company ("Utah Power") for damages to real and personal property caused by water discharged from a lake used as a water storage system by Utah Power. The district court subsequently dismissed all causes of action set forth by the Landowners, except negligence, for failure to state a cause recognized by Idaho law. In a special verdict, the jury found that Utah Power was not negligent and the court entered judgment for Utah Power. The Landowners appealed, contending that the court below erred in dismissing its alternative, non-negligence theories of liability.

We certified several questions to the Idaho Supreme Court to determine the applicable standard of liability in cases involving damages caused by the deliberate, although non-negligent, discharge of water stored for irrigation and related purposes into a natural stream. The Idaho Supreme Court held that only a negligence standard applies in these circumstances. Accordingly, we affirm the district court's dismissal of the Landowners' alternative theories of liability. The Landowners have also challenged the propriety of the jury instructions on negligence, as well as several evidentiary rulings. We find these assertions to be meritless and we now affirm the district court as to its other rulings.

FACTUAL AND PROCEDURAL BACKGROUND ¹

Bear Lake lies on the border between Idaho and Utah. Bear River begins high in the Uinta Mountains of Utah, meanders back and forth between Utah and Wyoming, flows north some distance into Idaho, and turns back south into Utah, where it ends in the Great Salt Lake. Bear River does not naturally enter Bear Lake, but rather flows past it a few miles to the north. In about 1917, however, the predecessor of Utah Power constructed Stewart Dam on the river, diverting the river's flow southward via canals into Mud Lake, which connects with Bear Lake. Bear Lake is thereby utilized as a reservoir.

After the water reaches Bear Lake, it flows northward out of the lake, by gravity or through pumping, via an outlet canal to rejoin the old natural bed of Bear River some distance north of Stewart Dam. Between certain maximum and minimum limits (the height of the release gates and the depth of the pumping intake facilities), Utah Power can control the flow out of Bear Lake and can close the lake so that the flow continues directly down the river. The use of Bear Lake for water storage is the central feature of the entire system. The dam, canals, and the control facilities are located within Idaho.

Utah Power operates the system under the authority of various federal statutes, a court decree, and the Bear River Commission. The explicit purposes for which Utah Power is commissioned to operate the system are (1) to store water for irrigation throughout the valley in Idaho and Utah below the Bear Lake facilities, and (2) to generate hydroelectric power. In addition, as Kunz I conclusively established, Utah Power is required to use the facilities for flood control, particularly as to the spring runoffs of the watershed. Although flood control is not one of the specified purposes imposed by the authorizations, we recognized in Kunz I the duty of care owed by Utah Power to Landowners to control floods. Kunz v. Utah Power & Light Co., 526 F.2d 500, 502-04 (9th Cir.1975).

The Landowners are numerous farmers who own or lease riparian lands and a private irrigation company located along the Bear River below Bear Lake. Prior to 1917, much of these lands were devoted to orchard grasses and wild hays, which were dependent upon flooding from the natural spring runoffs to maintain their growth. The installation of the water storage system in 1917 harnessed the spring runoffs and stopped the flooding, so the ranchers converted their operations to alfalfa and cereal crops, which will not tolerate floods.

Unfortunately, from 1983 through 1986, the Landowners' lands were flooded by stored and naturally flowing waters which were respectively discharged and "bypassed" by Utah Power. Injury to both real and personal property resulted.

The Landowners filed a complaint in federal district court seeking damages in negligence, strict liability, trespass, or nuisance. The liability and damages issues were bifurcated. The Landowners moved for summary judgment on the liability issue. The court below dismissed all non-negligence causes of action for failure to state a claim recognized by Idaho law. In a special verdict, a jury found Utah Power not negligent. The Landowners subsequently moved for judgment notwithstanding the verdict, or alternatively, for a new trial. Both motions were denied. The Landowners appealed.

The applicable standard of liability in cases involving damages caused by the deliberate, although non-negligent, discharge of water stored for irrigation and related purposes into a natural stream was not clear under Idaho law. We accordingly certified several questions to the Idaho Supreme Court to ascertain whether a suit may be maintained in these circumstances, under Idaho law, in strict liability, direct trespass, or private nuisance. ² The Idaho Supreme Court responded in the negative, leaving negligence as the sole basis for any potential recovery by the Landowners. See Kunz v. Utah Power & Light Co., 117 Idaho 901, 792 P.2d 926 (1990).

STANDARDS OF REVIEW

We review de novo the lower court's construction of Idaho law. Matter of McLinn, 739 F.2d 1395, 1403 (9th Cir.1984) (en banc). We also review de novo the lower court's dismissal of the Landowners' non-negligence claims. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1440 (9th Cir.1987). We review the court's jury instructions to determine whether they fairly and adequately cover the issue of negligence, correctly state the law, and are not misleading. Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir.1988). However, an error in jury instructions does not require reversal unless the error is more probably than not harmful. Coursen v. A.H. Robins Co., Inc. 764 F.2d 1329, 1337 (9th Cir.1985). Evidentiary rulings are reviewed for an abuse of discretion and are reversible only upon a showing of prejudice. Jauregui v. City of Glendale, 852 F.2d 1128, 1132 (9th Cir.1988).

DISCUSSION

A. ALTERNATIVE THEORIES OF LIABILITY

The Landowners first assert that the district court erred in failing to submit other theories of liability as alternatives to negligence. We were unable to determine whether, under Idaho law, an action may be maintained pursuant to non-negligence theories of liability. Because resolution of this issue necessarily involved the interpretation of ambiguous state law, we turned to the Idaho Supreme Court for guidance. ³ See Toner v. Lederle Laboratories, 779 F.2d 1429, 1432 (9th Cir.1986) ("Certification provides a means to obtain authoritative answers to unclear questions of state law.").

We essentially asked the Idaho Supreme Court to determine which of two distinct lines of Idaho cases, which apply different liability standards in circumstances similar to ours, most closely applies to the facts presented here--that is, to water from an artificial water diversion and storage system intentionally released into a natural stream channel. One line of cases requires a showing of negligence to impose liability for damages caused by the accidental escape, seepage, or percolation of water that is artificially brought upon the injured party's land. These so-called "escape" cases do not recognize non-negligence theories of liability. ⁴ See, e.g., Stephenson v. Pioneer Irrigation District, 49 Idaho 189, 288 P. 421 (1930); Burt v. Farmer's Co-Operative Irrigation Co., Ltd., 30 Idaho 752, 168 P. 1078 (1917). The district court followed the holdings and rationales of this line of cases in dismissing the Landowners' non-negligence legal theories.

In another line of cases, the so-called "alteration or obstruction" cases, liability may be imposed without proof of negligence when a riparian owner of lands abutting a stream intentionally obstructs or diverts a natural stream, causing damages to either a riparian owner on the opposite side or to owners on land abutting above or below the stream. See, e.g., Campion v. Simpson, 104 Idaho 413, 659 P.2d 766 (1983); Milbert v. Carl Carbon, Inc., 89 Idaho 471, 406 P.2d 113 (1965); Fischer v. Davis, 19 Idaho 493, 116 P. 412 (1911). ⁵ The Landowners rely upon the above line of cases in asserting that the Idaho Supreme Court applies an absolute liability approach to facts similar to ours.

On April 3, 1990, the Supreme Court of Idaho decided that the "escape" cases apply to the circumstances here, and accordingly, that negligence is the sole basis of recovery available to the Landowners. ⁶ The Idaho Supreme Court noted "the crucial role which artificial water systems serve" in Idaho and its consequent practice of limiting liability rules when applied to operators of these artificial water systems....