L. H. Bell & Associates, Inc. v. Granger
| Decision Date | 03 December 1975 |
| Docket Number | No. 11998,11998 |
| Parties | L. H. BELL & ASSOCIATES, INC., Appellant, v. William E. GRANGER and Bertha M. Granger, husband and wife, and Jay C. Robertson and Joan L. Robertson, husband and wife, Appellees. |
| Court | Arizona Supreme Court |
Meyers & Curtis, by Ronald W. Meyer, Phoenix, for appellant.
Pain & Julian, by Fred J. Pain, Jr., Phoenix, for appellees.
This is an appeal by defendant, L. H. Bell and Associates, Inc., from a judgment entered on behalf of the plaintiffs William and Bertha Granger, husband and wife, and Jay C. and Joan L. Robertson, husband and wife, for damages sustained as a result of the flooding of property located adjacent to the New River Road and Bridge on the Old Black Canyon Highway some 40 miles north of Phoenix, Arizona.
We are asked to answer the following questions:
1. Was L. H. Bell and Associates negligent in the design of the approaches to the New River Bridge?
2. If so, did Maricopa County's acceptance of L. H. Bell's design relieve it of liability?
3. Was it error to award damages for loss of profit?
The New River at this point flows from the north to south and is a 'braided' river meaning that in addition to the main channel of the river there are a series of side channels or 'gullies' running in and out of the main channel in a meandering fashion. One of these gullies enters the Robertson property to the north about halfway between the river and the Old Black Canyon Highway and exits the property to the south. The river itself is dry much of the year and fills with water only in wet seasons or when there is runoff from rain or melting snow in the higher elevations to the north. Prior to 1970 the Robertsons constructed, on the southern part of their property and next to the New River Road, a building which housed a grocery store and a real estate office. Jay C. Robertson conducted a real estate business from there. The Grangers leased the grocery store and operated it from January 1970 until the flood of 5 September 1970. Maricopa County had, prior to 1970, constructed a dike across the land located upstream from the Robertson property. The purpose of this dike was to intercept water in the side channels of the river and divert it to the main channel of the river.
In 1969--1970, Maricopa County decided to construct a bridge over the New River at a point where the road then crossed the river. The defendants, L. H. Bell and Associates, were retained to perform preliminary engineering work and submit plans for the bridge. The designs prepared by Bell provided for the bridge as well as the approaches on each side of the bridge and dikes of rip-rap on the sides of the river. The design work was accepted by Maricopa County and construction of the bridge and approaches was completed in accordance with Bell's plans. The dike on the west side of the river and north of the bridge ran for some 250 feet. This dike prevented water from the river from entering the Robertson property at this point, but also prevented water on the Robertson property from returning to the river. The approach to the bridge was on a gradually rising embankment from the cattle guard at the point where the New River Road met with the Old Black Canyon Highway to the level of the bridge. There were no culverts designed by Bell and none were put under the approaches so that surface or flood water would pond on the Robertson property and could not escape without going back around the dike some 250 feet to the north and upstream or flowing over the New River Road near the cattle guard. The testimony indicates that because of these obstructions the level of water on the Robertson property at the point of the building site would have to rise to a depth of over 2 feet before water would start flowing over the low end of the approach road at the cattle guard.
During the days of 5 and 6 September 1970, southeastern Utah, southwestern Colorado, and Arizona experienced unusually heavy rainfall resulting in extensive damage and the loss of some 23 lives. As a means of designating the extent of a flood, hydrologists and engineers sometimes define floods in terms of frequency in years--a 25 year flood, for example, is a flood that will mathematically occur only once in 25 years, and a 50 year flood only once in 50 years. The flow at the New River Bridge was estimated by the United States Army Corps of Engineers as 20,750 cubic feet per second and the flood was categorized as a 100 year flood. The dike to the north broke and water rushed onto the Robertson property. The embankment on which the access road to the bridge was built together with the 250 foot dike along the river acted as a dam to stop the runoff of the water. Ponding occurred and the Robertsons' building floated off its foundation and was destroyed. The span of the bridge remained above the level of the water and withstood the flood with no apparent damage.
Plaintiffs filed suit for property damages and loss of business income against Lester C. Jackson Construction Co., L. H. Bell and Associates, Inc., and Maricopa County, Arizona. The complaint was amended on 24 February 1972, and Haumont Contracting, Inc., was added as a defendant.
Defendants Jackson's and haumont's motions for summary judgment were granted prior to trial. During the trial the defendant Maricopa County settled with the plaintiffs and did not further defend. On 27 April 1973, a money judgment for damages to property and loss of business income was entered against the sole remaining defendant L. H. Bell and Associates. From this judgment defendant Bell appeals.
The work contract or 'work order project' signed by representatives of the County and Bell contained the following:
'The Engineer shall provide professional engineering services for the design of Maricopa County Highway Project, Work Order #72--262, a Bridge on the New River Road over New River.
And Mr. Bell testified at the trial as follows:
'A Yes, sir.' And:
'A Yes, sir.
'Q _ _ to humans and to property.
'A Yes, sir.
'Q Is that correct?
'A Yes, sir.
'Q And if the flow of water in this case be found to be by His Honor, the Judge, a reasonable foreseeable circumstance, and if it caused damage to Mr. Robertson's property, is it not fair to say that it was because of a defect in the design of the bridge and approaches?
'A If it were foreseeable.'
There was testimony by Mr. Bell that he was verbally told by engineers of Maricopa County to design a bridge and its approaches to withstand a 25 yuear flood. There was also testimony that the building was located within the flood plain of a 50 year flood (which occurred in 1967) but not a 25 year flood. For example, Bell's expert witness testified:
'Q If this water is blocked, where is it going to go, say of a flood that flows with the same intensity of the 1967 flood?
'A It would pond.
'Q And is it going to create a lake on the property?
Bell would have this court hold that they are liable only if the design would not protect against 25 year floods as they contend Maricopa County required and that they are not liable for damage as a result of a 100 year flood.
It would, of course, make the work of the trier of fact, not to mention the design engineer, easier for this...
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