Rothweiler v. Clark County

• Decision Date: 24 August 2001
• Docket Number: No. 26543-5-II.,26543-5-II.
• Citation: 29 P.3d 758,108 Wn. App. 91,108 Wash. App. 91
• Court: Washington Court of Appeals
• Parties: Jeff ROTHWEILER and Ingrid Rothweiler, Appellants, v. CLARK COUNTY, a municipal corporation, Respondent. Tapani Underground, Inc.; and Clark Public Utilities, Defendants.

29 P.3d 758

108 Wn. App. 91

108 Wash. App. 91

Jeff ROTHWEILER and Ingrid Rothweiler, Appellants, v. CLARK COUNTY, a municipal corporation, Respondent.

Tapani Underground, Inc.; and Clark Public Utilities, Defendants.

No. 26543-5-II.

Court of Appeals of Washington, Division 2.

August 24, 2001.

As Amended October 16, 2001.

E. Bronson Potter, Clark County Prosecuting Attorneys Office, Vancouver, for Respondent.

Gregory R. Harris, Seattle, Daniel P. Larsen, Ater Wynne Lip, Portland, Or., Heather Jo Van Meter, Portland, for Appellants.

BRIDGEWATER, J.

The Rothweilers appeal the summary judgment dismissal of their claims of negligence, nuisance, and negligent intrusion against Clark County (County) for failing to properly maintain and improve the stormwater drainage system, which allegedly caused flooding at their residence. Under the common enemy doctrine, a landowner may dispose of surface water without liability, with some exceptions. Because there is no evidence that the County (1) inhibited the flow of a waterway or natural drain, (2) artificially collected and discharged water on the Rothweilers' property, or (3) altered the flow of water such that it needed to use due care to avoid unnecessary damage to the Rothweilers' property, it had no duty to prevent the flooding damage to the Rothweilers' property. Thus, no exception to the common enemy doctrine applied. And the County ordinances did not create a duty to update the drainage system. Further, there is no evidence that once the drains were constructed, the County breached its duty to exercise reasonable care in maintaining the drainage system. We affirm.

On June 4, 1997, a rainstorm overwhelmed the County's stormwater drainage system. The stormwater drainage system failed to properly drain accumulated water causing the water level to rise and flood the Rothweilers' home. The Rothweilers' home is located in the Totem II subdivision at a low point in the intersection of NW 3rd Avenue and NW 114th Street. The County concedes that the rainstorm overwhelmed the capacity of a 12-inch pipe section of the system causing water to back up and ultimately overflow the system. For purposes of summary judgment, the County assumed that the cause of the flood was the limited capacity of the 12-inch drainage pipe.

There are several sections of drainage pipe that make up the drainage system near the Rothweilers' home. The system ultimately drains into Suds Creek. Following the system "upstream," it consists of a 24-inch in diameter drainage pipe that extends from the outfall to the southwest. The 12-inch pipe at issue branches off this 24-inch pipe and extends west through the Vista Heights neighborhood. The section of 12-inch pipe was approved around 1964. A section of 36-inch pipe leading from the 12-inch pipe going west through the Totem Acres subdivision at NE 2nd Avenue was approved in 1978. The next section, a 30-inch drainage pipe, leading west from the 36-inch pipe in Totem Acres subdivision and going past the Rothweilers' residence was approved in 1989 as part of the Totem II subdivision. Private developers and their engineers designed and proposed these systems, and the County approved the designs. The County allowed new development projects to add drainage, which flowed into the 12-inch pipe, but the drainage system's capacity was inadequate and could not provide for the proper outflow of water collected into it.

The storm drainage system ran under NW 3rd Avenue in front of the Rothweilers' home and extended to the north up NW 3rd to 116th Street where it made a 90 degree bend eastward, ultimately draining into Suds Creek. A catch basin for that drainage system was located on NW 3rd Avenue next to the Rothweilers' front yard and driveway.

Shortly before the flood, the Rothweilers were planning to sell their home. Ingrid Rothweiler stated that before the flood Tapani Underground, Inc. and Clark Public Utilities were working on the water main near their house. She saw them store large piles of sand and rock and several pieces of construction equipment on NW 3rd Avenue in front of her home and up the street for several weeks. She stated that significant amounts of sand and other debris collected in the street. Concerned that the messy street would hinder potential buyers, Ingrid Rothweiler called Clark County Public Works at least three times in May 1997 to urge them to clean up the sand and debris on NW 3rd Avenue and other streets.

Scott Wilson, the crew chief responsible for drainage facilities maintenance, acknowledged receiving a citizen complaint about debris in the street. In response to that complaint, a street sweeper was dispatched on May 19, 1997, to clean up dirt and sand at the Rothweilers' intersection. The County also stated that its policy was to inspect catch basins every 18 months as part of regular maintenance. Wilson stated that the catch basins adjacent to the Rothweilers' home were cleaned less than six months before the June 4 flooding. Wilson also stated that his crew cleaned the drainage line in the area where the 36-inch drainage pipe connects with the 12-inch pipe on October 16, 1996, less than eight months before the flooding.

It is undisputed that the County knew the 12-inch pipe was inadequate to handle the stormwater from the new developments that were added to the system. Despite its knowledge of this inadequacy, the County declined to increase the capacity of the 12-inch drainage pipe until after the June 4 flood.

In 1991, the Clark County Department of Public Services requested funding to increase the capacity of the inadequate 12-inch pipe to a 36-inch pipe and recommended that the project be completed in 1992. The County Public Works Director could undertake small projects, in the range of $5,000 to $15,000, without the Commissioner's review. But the Commissioner's approval was required for larger improvements. The Department listed this project as priority number four in a list of seven projects proposed to the Board of County Commissioners for the Salmon Creek basin. The Commissioners did not fund the project. In 1997, the Commissioners again considered the drainage system as part of the larger Lake Shore/Salmon Creek Watershed Area Plan, but did not approve funding for that $42.8 million dollar plan. The project to improve the system serving the Rothweilers' residence was one of over 200 stormwater infrastructure projects in that plan. Finally, in late 1997 after the June 4 flood that damaged the Rothweilers' home, the Commissioners again considered the drainage system and authorized replacement of the 12-inch pipe with a larger pipe. The cost of the project was $131,000.

The Rothweilers sued the County, Clark Public Utilities, and Tapani Underground, Inc. for the flood damage. The Rothweilers sued the County for negligence, negligent intrusion, nuisance, statutory nuisance, and statutory negligence based on the County's failure to maintain its stormwater drainage system, including the failure to inspect and upgrade the drainage system and to design, construct or approve an adequate system. The County moved for summary judgment. Clark Public Utilities and Tapani Underground, Inc. were not parties to the motion for summary judgment or to this appeal. The trial court granted summary judgment in favor of the County.

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

I.

For over a century, Washington courts have adhered to the common enemy doctrine. Currens v. Sleek, 138 Wash.2d 858, 861, 983 P.2d 626, 993 P.2d 900 (1999); Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896). "In its strictest form, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one's neighbor." Currens, 138 Wash.2d at 861, 983 P.2d 626. Surface waters are defined as diffused waters produced by rain, melting snow, or springs. DiBlasi, 136 Wash.2d at 873 n. 2, 969 P.2d 10 (quoting King County v. Boeing Co., 62 Wash.2d 545, 550, 384 P.2d 122 (1963)). In addition, a municipality has no common law duty to drain surface water. Colella v. King County, 72 Wash.2d 386, 391, 433 P.2d 154 (1967) (quoting Ronkosky v. City of Tacoma, 71 Wash. 148, 153, 128 P. 2 (1912)). But because a strict application of the common enemy doctrine is widely regarded as inequitable, courts have adopted several exceptions to the doctrine. Currens, 138 Wash.2d at 861-62, 983 P.2d 626. The Rothweilers contend that the County is liable under all three exceptions; we discuss each separately.

A. Watercourse or Natural Drainway

The first exception provides that a municipality or landowner may not inhibit the flow of a watercourse or natural drainway. Currens, 138 Wash.2d at 862, 983 P.2d 626; Ronkosky, 71 Wash. at 151-53, 128 P. 2. Under this exception, a municipality that dams up a stream, gully, or natural drainway will not be shielded from liability for resulting damage. "A natural drain is that course, formed by nature, which waters naturally and normally follow in draining from higher to lower lands." Boeing Co., 62 Wash.2d at 550, 384 P.2d 122. The County's drainage system involved surface water flowing through a system of catch basins and drainage pipes, not a drain formed by nature. Although the water in the drainage pipes and catch basins generally followed the path that surface water would have naturally flowed above ground, the County's system was not a...