Paulson v. Pierce County

• Decision Date: 26 May 1983
• Docket Number: No. 49165-8,49165-8
• Citation: 664 P.2d 1202,99 Wn.2d 645
• Parties: Robert PAULSON and Celeste Paulson, husband and wife; Ernest Posick and Donna Posick, husband and wife; George Paris and Thelma Paris, husband and wife; Veldon Stargel and Gladys Stargel, husband and wife; and Rita Harris, Respondents, v. The COUNTY OF PIERCE, Appellant. John Melvin and Margaret Melvin, husband and wife; Edward Melvin and Charlotte Melvin, husband and wife; E. Stanley Hall and Mary Hall, husband and wife; Margaret Fullinwider, d/b/a Recreation Properties, Respondents.
• Court: Washington Supreme Court

Page 645

99 Wn.2d 645

664 P.2d 1202

Robert PAULSON and Celeste Paulson, husband and wife Ernest Posick and Donna Posick, husband and wife; George Paris and Thelma Paris, husband and wife; Veldon Stargel and Gladys Stargel, husband and wife; and Rita Harris, Respondents, v. The COUNTY OF PIERCE, Appellant John Melvin and Margaret Melvin, husband and wife; Edward Melvin and Charlotte Melvin, husband and wife; E. Stanley Hall and Mary Hall, husband and wife; Margaret Fullinwider d/b/a Recreation Properties, Respondents.

No. 49165-8.

Supreme Court of Washington En Banc.

May 26, 1983.

Burgess, Kennedy & Fitzer, Karen L. Strombom, F. Ross Burgess, Tacoma, for appellant.

James F. Leggett, Tacoma, Keller, Rohrback, Waldo, Hiscock, Butterworth & Fardal, Burton C. Waldo, Seattle, Gordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, James E. O'Hern, Tacoma, for respondents.

DOLLIVER, Justice.

The Nisqually River is one of 10 major river systems in the Puget Sound area. The Nisqually River basin encompasses a drainage area of approximately 712 square miles in Pierce, Thurston, and Lewis Counties. The eastern portion of the basin is rugged and irregular and reaches an elevation of 14,408 feet at the summit of Mt. Rainier. From the town of LaGrande west to Puget Sound, the basin is generally below 1,000 feet elevation and is characterized by rolling foothills broken by occasional gravelly prairies and shallow lakes. Most of the basin is heavily forested.

The Nisqually River flood plain covers approximately 9,000 acres. The narrow flood plain above Alder Reservoir suffers frequent flooding. The steep gradient of the river results in high velocity flows that carry large quantities of gravel, logs, and other debris. During high flows, heavy deposits of bed load and debris fill the channel and force the river to spread over the valley floor. See generally Puget Sound Task Force--Pacific Northwest River Basins Comm'n, Comprehensive Study of Water and Related Land Resources, Puget Sound and Adjacent Waters, app. 12, at 2-1, 10-1 through 10-17 (1970).

In 1961 Pierce County constructed a dike 3,300 feet long on the north side of the Nisqually River just outside the border of Mt. Rainier National Park. The dike was extended by the County in 1968 and 1971. The County has continued to maintain the dike, inspecting it periodically and, when necessary, adding rock and riprap to its face.

Plaintiffs are Pierce County residents who own cabins behind the Nisqually River dike in a subdivision known as Nisqually Park. Nisqually Park was platted on property homesteaded by the parents of Margaret Fullinwider and E. Stanley Hall. Plaintiffs purchased the lots on which their cabins were built from defendants Melvin, Hall, and Fullinwider, doing business as Recreation Properties (hereinafter defendants Melvin, Hall, and Fullinwider will be referred to collectively as Recreation Properties).

On December 2, 1977, due to flooding caused by record rainfall and the melting of the Nisqually Glacier on Mt. Rainier, a portion of the Nisqually River dike was breached by the river. The floodwaters caused extensive damage to plaintiffs' cabins along the river.

On June 9, 1978, plaintiffs filed this action against Pierce County and against Recreation Properties. Plaintiffs' motion to certify as a class action was denied and defendants' motion to dismiss suit as a class action was granted. The Pierce County Superior Court bifurcated the issues of liability and damages for trial.

A jury trial on the issue of liability began on November 7, 1979, and concluded on December 27, 1979. At the conclusion of plaintiffs' case the trial court dismissed the action against defendant Recreation Properties. The jury found for the plaintiffs against Pierce County, and the Superior Court entered a judgment on January 18, 1980. Subsequently, a jury trial was held on the issue of damages; the judgment was entered on October 17, 1980.

Defendant Pierce County seeks review of judgments rendered against it in a Pierce County Superior Court trial bifurcated on the issues of liability and damages. Division Two of the Court of Appeals certified the case to the Supreme Court for direct review. See RCW 2.06.030(d). We accepted certification to consider the following question:

Whether RCW 86.12.037, which grants statutory immunity to counties for noncontractual acts and omissions relating to flood protection, was impliedly repealed by RCW 4.92.090 and by RCW 4.96.010, which abrogate common law statutory immunity.

We hold RCW 86.12.037 was not impliedly repealed by RCW 4.92.090 and 4.96.010. Furthermore, we hold RCW 86.12.037 does not violate the equal protection clauses of U.S. Const. amend. 14 and Const. art. 1, § 12. We reverse the trial court's rulings and vacate the judgments rendered against defendant Pierce County.

RCW 86.12.020 authorizes counties to construct and maintain dikes, levees, and other improvements to protect against floods. RCW 86.12.037 declares:

No action shall be brought ... against any county ... for any noncontractual acts or omissions ... relating to the improvement, protection, regulation and control for flood prevention and navigation purposes of any river or its tributaries and the beds, banks and waters thereof ...

RCW 86.12.037 was enacted by the Legislature in 1921 to shield counties from liability for their efforts to protect the public from flood damage. See Short v. Pierce Cy., 194 Wash. 421, 430-31, 78 P.2d 610 (1938). RCW 86.12.037 provides immunity to counties even where their negligence in the construction and maintenance of flood control devices results in damage to private property during floods or other periods of high water. Short, 194 Wash. at 431, 78 P.2d 610.

While it is clear there has been no explicit repeal, plaintiffs contend RCW 86.12.037 was impliedly repealed by RCW 4.92.090 and RCW 4.96.010. RCW 4.92.090 reads as follows:

The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

RCW 4.92.090 applies to political subdivisions of the State, whose sovereign immunity is derived from the State's sovereign immunity. Kelso v. Tacoma, 63 Wash.2d 913, 916, 390 P.2d 2 (1964). Likewise, RCW 4.96.010 declares:

All political subdivisions, municipal corporations, and quasi municipal corporations of the state, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct ... to the same extent as if they were a private person or corporation ...

Implied repeals of statutes are disfavored by Washington courts. E.g., U.S. Oil & Ref. Co. v. Department of Ecology, 96 Wash.2d 85, 88, 633 P.2d 1329 (1981); Jenkins v. State, 85 Wash.2d 883, 886, 540 P.2d 1363 (1975); Tardiff v. Shoreline Sch. Dist., 68 Wash.2d 164, 166, 411 P.2d 889 (1966). Ordinarily, a general statute does not repeal an earlier special statute by implication. U.S. Oil & Ref. Co. v. Department of Ecology, supra; Herrett Trucking Co. v. Washington Pub. Serv. Comm'n, 58 Wash.2d 542, 543, 364 P.2d 505 (1961). An implied repeal will only be found where:

(1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.

In re Chi-Dooh Li, 79 Wash.2d 561, 563, 488 P.2d 259 (1971), quoted in U.S. Oil & Ref. Co. v. Department of Ecology, supra, 96 Wash.2d at 88, 633 P.2d 1329.

When determining the intent of a legislative enactment, the meaning of a plain and unambiguous statute must be derived from the wording of the statute itself. In re Lehman, 93 Wash.2d 25, 27, 604 P.2d 948 (1980); Garrison v. State Nursing Bd., 87 Wash.2d 195, 550 P.2d 7 (1976). Where a statute is ambiguous, however, or where the language is unclear, we may resort to extrinsic aids such as legislative history to discern legislative intent. State v. Grays Harbor Cy., 98 Wash.2d 606, 607, 656 P.2d 1084 (1983); Whitehead v. Department of Social & Health Servs., 92 Wash.2d 265, 268, 595 P.2d 926 (1979). We believe there has been no implied repeal of RCW 86.12.037 under the test in In re Chi-Dooh Li, supra. Even assuming, however, there is some statutory ambiguity, we believe the lack of legislative intent to repeal RCW 86.12.037 is confirmed by examination of the legislative history of the statutes.

In 1961 common law doctrine of sovereign immunity was abrogated by the Legislature. Laws of 1961, ch. 136, § 1, p. 1680; RCW 4.92.090. In 1964, in Kelso v. Tacoma, supra, we held RCW 4.92.090 applies to all political subdivisions of the State. See Kelso, 63 Wash.2d at 916-17, 390 P.2d 2. On a subsequent occasion, however, the court ruled RCW 4.92.090 did not impliedly repeal specific statutory limitations on the liability of a subdivision of the State for tortious conduct. E.g., Tardiff v. Shoreline Sch. Dist., 68 Wash.2d 164, 167, 411 P.2d 889 (1966).

As a response, the Legislature in 1967 explicitly abrogated the doctrine of sovereign immunity as it relates to political subdivisions of the State. Laws of 1967, ch. 164, § 1, p. 792, codified in RCW 4.96.010. Moreover, the Legislature repealed former RCW 28.58.030, successfully asserted by defendant in Tardiff as the basis for its sovereign immunity. Laws of 1967, ch. 164, § 16, p. 804. See Tardiff, 68 Wash.2d at 167, 169, 411 P.2d 889. Even so, soon after passage of Laws of 1967, ch. 164, § 1, p. 792, we again ruled RCW 4.92.090 did not repeal a specific statutory immunity. Chappel v. Franklin Pierce Sch. Dist. 402, 71 Wash.2d 17, 21, 426 P.2d 471 (1967).

In the present case, in light of Chappel and Tardiff and legislative history, the Superior...