Pine Creek Canal No. 1 v. Stadler, s. 83-194

• Decision Date: 12 July 1984
• Docket Number: Nos. 83-194,83-195,s. 83-194
• Citation: 685 P.2d 13
• Parties: PINE CREEK CANAL NO. 1 a/k/a Lee Ditch, Appellant (Defendant), and Jack D. Richardson, Paul C. and Bette Hagenstein, and David Maytag, Appellants (Counterclaimants), v. Nicholas STADLER, Appellee (Plaintiff). Nicholas STADLER, Appellant (Plaintiff), v. PINE CREEK CANAL NO. 1 a/k/a Lee Ditch, Appellee (Defendant), and Jack D. Richardson, Paul C. and Bette Hagenstein, and David Maytag, Appellees (Counterclaimants).
• Court: Wyoming Supreme Court

Page 13

685 P.2d 13

PINE CREEK CANAL NO. 1 a/k/a Lee Ditch, Appellant (Defendant) and Jack D. Richardson, Paul C. and Bette Hagenstein, and David Maytag, Appellants (Counterclaimants), v. Nicholas STADLER, Appellee (Plaintiff).

Nicholas STADLER, Appellant (Plaintiff), v. PINE CREEK CANAL NO. 1 a/k/a Lee Ditch, Appellee (Defendant), and Jack D. Richardson, Paul C. and Bette Hagenstein, and David Maytag, Appellees (Counterclaimants).

Nos. 83-194, 83-195.

Supreme Court of Wyoming.

July 12, 1984.

Don W. Riske and Warren R. Darrow of Riske & Edmonds, P.C., Cheyenne, Nelson Hayes of Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for Pine Creek Canal No. 1, Richardson, Hagenstein and Maytag.

William Twichell of Mason & Twichell, Pinedale, Thomas A. Fennell, Cheyenne, for Stadler.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROSE, Justice.

In case No. 83-194, an appeal is brought by Pine Creek Canal No. 1 arising from a negligence action originally filed by landowner Nicholas Stadler to recover damages which resulted from the failure of the Pine Creek irrigation canal. Pine Creek Canal counterclaimed for damages to its irrigation ditch, alleging that Stadler negligently impaired its lateral support. Damages were stipulated and the case was tried to the court. The trial judge apportioned 45% of the negligence to Stadler and 55% to Pine Creek Canal No. 1, and awarded monetary damages to Stadler in the sum of $24,750.

FACTS

Pine Creek Canal was originally built sometime prior to 1905 when there were no residences in the immediate area. However, the town of Pinedale grew such that the canal now crosses a slope along the eastern border of the present city limits. Stadler's residence and garage, together with personal property, were located below this slope, and he owns the slope itself as well as a flat area below. The slope is a glacial outwashed deposit of sand and gravel which is of granular consistency and is porous.

In June, 1980, the slope sloughed back toward the Pine Creek Canal, the canal failed, and mud, water and dirt flowed down the slope and destroyed Stadler's garage and equipment. The Pine Creek Canal irrigators lost the use of the water from the canal for the 1980 irrigation season and incurred the cost of repair of the canal.

In October, 1979, Stadler had excavated a portion of the slope so that he would have more space for his equipment and vehicles. He then built a wall along the excavation, which wall was approximately 120 feet in length and seven feet high for approximately 100 feet, after which it tapered down to two to three feet high. This construction was completed in the spring of 1980 but Stadler only partially backfilled the retaining wall and never did complete the backfill operation.

The evidence shows that for years there had been canal and embankment seepage in the area of the failure, of which the appellant was aware. In the early part of June, 1980 and prior to the failure on June 21, the canal company worked on the canal by applying bentonite through a discing process which did not include the recommended compaction procedure. In the course of this operation, the canal company disced the bottom and sides of the ditch, which had the effect of increasing the soil's permeability as well as the amount of water seeping from the ditch. This operation created "a piping effect beneath the ditch and in the slope which leads up to the embankment of the ditch." ¹

According to the court, the canal company's primary negligence consisted of the following:

"(a) Failing to properly maintain the ditch, which flowed through pervious soil,

"(b) In failing to properly maintain the ditch by negligently and unskillfully attempting to bentonite the ditch in an improper manner;

"(c) By continuing to operate the ditch under the existing conditions and circumstances."

The court concluded that:

" * * * defendant's negligence to the extent of 55% was the direct and proximate cause of the erosion, washout and failure of the subject ditch, resulting in the damages suffered by the plaintiff."

The court found that appellee Stadler was secondarily negligent by reason of his digging into the toe of the slope and cutting away the canal's lateral support, which negligence was found to be a proximate cause of the damage, and the court assigned 45% of the total negligence to him.

Questions for Decision

"I. WHETHER THE TRIAL COURT ERRED IN FINDING THE APPELLANTS NEGLIGENT ABSENT ANY PROOF OF A STANDARD OF CARE BY WHICH THEIR CONDUCT COULD BE MEASURED AND ABSENT ANY

PROOF THAT THEIR CONDUCT FELL BELOW ANY STANDARD OF CARE.

"II. WHETHER THE TRIAL COURT ERRED IN FINDING THE APPELLANTS NEGLIGENT ABSENT ANY PROOF THAT THEIR CONDUCT CONSTITUTED A DIRECT OR PROXIMATE CAUSE OF THE SLOPE FAILURE.

"III. WHETHER THE EXPERT AND OPINION TESTIMONY PRESENTED BY APPELLEE WAS COMPETENT, BASED UPON ADEQUATE FOUNDATION AND SUSTAINED BY SUBSTANTIAL EVIDENCE.

"IV. WHETHER THE APPORTIONMENT OF NEGLIGENCE BY THE TRIAL COURT WAS PROPER."

DISCUSSION

Issue No. 1

"WHETHER THE TRIAL COURT ERRED IN FINDING THE APPELLANTS NEGLIGENT ABSENT ANY PROOF OF A STANDARD OF CARE BY WHICH THEIR CONDUCT COULD BE MEASURED AND ABSENT ANY PROOF THAT THEIR CONDUCT FELL BELOW ANY STANDARD OF CARE."

Section 41-5-101, W.S.1977, imposes the following duty on ditch owners:

"The owner or owners of any ditch for irrigation, or other purposes, shall carefully maintain the embankments thereof so that the water of such ditch may not flood or damage the premises of others."

The standard of care imposed by the trial judge is to be found in the judge's Conclusion of Law No. 3, which is:

"The rule of owners and operators of irrigating ditches is that the owner of an irrigating ditch is bound to exercise reasonable care and skill to prevent injury to other persons from such ditch, and he will be liable for all damages occurring to others as a result of his negligence or unskillfulness in constructing, maintaining or operating the ditch."

Pine Creek Canal urges that Stadler presented no "proof of the standard of care" to which Wyoming ditch owners are held in the maintenance of their ditches. It is further asserted that there was no evidence introduced as to what is commonly done to maintain ditches and no evidence was introduced as to what the canal company should or could have done in that regard. Pine Creek Canal points out that unless the standard of care is within the common knowledge and experience of the trier of fact, an expert witness is needed to establish the standard. The canal company argues that this court is unable to know what knowledge the trial judge possessed on this subject since he failed to make any factual finding as to the applicable standard of care.

We are not exactly sure we understand what appellant Pine Creek Canal means when it argues that appellee has presented no "proof of a standard of care." We are involved here with a negligence case and it is the proponent's duty to prove the elements of the case--that is, duty, breach, proximately causing damage. Danculovich v. Brown, Wyo., 593 P.2d 187 (1979). The identification of the appropriate standard of care in a negligence case is a question of law--not of fact. Vassos v. Roussalis, Wyo., 625 P.2d 768, 772 (1981), citing Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832 (1974). See Buttrey Food Stores Division v. Coulson, Wyo., 620 P.2d 549 (1980); Matter of Estate of Mora, Wyo., 611 P.2d 842 (1980); Diamond Management Corporation v. Empire Gas Corporation, Wyo., 594 P.2d 964 (1979).

Normally, the mythical "reasonable man" standard is employed, except in those cases where the subject at bar is highly technical or otherwise specialized in nature. In such a case, the standard of care is that which reasonable persons of comparable or like skills would reasonably employ in the same or similar circumstances. For example, when addressing the standard of care to which a physician is required to adhere, we said in Vassos v. Roussalis, supra, 625 P.2d at 772 " * * * [A] physician or surgeon must exercise the skill, diligence and knowledge, and must apply the means and methods, which would reasonably be exercised and applied under similar circumstances by members of his profession in good standing and in the same line of practice. Govin v. Hunter, Wyo., 374 P.2d 421 (1962); DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342 (1979); Smith v. Beard, 56 Wyo. 375, 110 P.2d 260 (1941); 70 C.J.S. Physicians and Surgeons § 41; 61 Am.Jur.2d Physicians, Surgeons and Other Healers § 205 (1981)."

Bringing this discussion to the case at bar, in 1905, we said in Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, 790, 1 LNS 596 (1905), and in 1974 in Taylor Ditch Company, Inc. v. Carey, Wyo., 520 P.2d 218, 222-223 (1974):

"The well-settled rule is that the owner of an irrigating ditch is bound to exercise reasonable care and skill to prevent injury to other persons from such ditch, and he will be liable for all damages occurring to others as a result of his negligence or unskillfulness in constructing, maintaining, or operating the ditch." (Emphasis added.)

In these two cases, this court found no necessity to go to expert testimony in order to apply any standard other than the "reasonable man" standard of care as the duty and obligation of the ditch owner.

In the Taylor Ditch Company case, the trial judge found that damage resulted when the Taylor Ditch seeped onto the property of the plaintiff as a result of the ditch company's negligent maintenance and operation of the ditch. The trial judge found that there was an identifiable causal correlation between the presence of water in the ditch and the seepage on plaintiff's property. He went on to find that the failure of the ditch company to take proper precautions in constructing and maintaining the ditch through pervious soil constituted negligence. We held these findings to be...