Opinion
No. 65316-4-I.
Filed: August 22, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-2-13104-0, Andrea A. Darvas, J., entered April 2, 2010.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Appelwick, JJ.
The owners of a mobile home park, which is suffering from drainage issues, appeal from an order granting summary judgment in favor of a group of upland homeowners operating a storm water drainage system. The owners of the mobile home park contend that summary judgment was improperly granted for several reasons. We conclude that there was no evidence that the upland homeowners' actions were a proximate cause of the damages suffered by the owners of the mobile home park. Accordingly, we affirm the grant of summary judgment in favor of the upland homeowners.
I
The Del Ray Mobile Home Park overlooks Puget Sound. Adjacent to the mobile home park is the Redondo Bay Tranquility (RBT) neighborhood. The mobile home park, which is located on the southern border of the city of Des Moines, is situated to the north of and downhill from the RBT plat, which is located inside the northern border of the city of Federal Way.
The RBT neighborhood is approximately 4.2 acres in size. It contains 12 lots for single-family residential development. King County approved the plat in 1975. Two years later, in 1977, the storm water systems and a street were installed in the neighborhood. Two separate drainage systems were designed to address storm water management in the plat. The system for the western portion of the plat discharges collected storm water to a public storm water line. The system for the eastern portion of the plat includes a detention tank, which collects water from curbside catch basins. The detention tank is located between RBT Lots 7 and 8 at the northeastern portion of the plat. From the detention tank, an outflow pipe runs northeast and downslope to a catch basin; from the catch basin, a 12" diameter pipe runs northeast to the boundary of RBT Lot 8, discharging water into a ravine onto a rock pad. The ravine drains downhill to the north, onto the Del Ray property at mobile home Lot 18.
The Del Ray property occupies a little more than 10 acres of land. The mobile home park was established on the property during or prior to the 1960s. In 1986, almost a decade after the development of the uphill RBT drainage system, I. David Hong and his wife purchased the mobile home park.
The Del Ray property is partially served by a drainage system along the eastern portion of the property, which begins with a catch basin at Del Ray Lot 18. Over a period of "several years," Del Ray Lot 18 began experiencing ever-increasing flows of water and debris. Clerk's Papers (CP) at 271. The resulting accumulation of silt, dirt, and debris in the Del Ray drainage system required that Hong's employees clean out the Del Ray drainage system in order to keep the drainage system operating.
Hong discovered that the retention tanks comprising part of the drainage system for the RBT plat had not been cleaned in more than a decade. The RBT homeowners' association mistakenly believed that King County or the city of Federal Way was maintaining the drainage system. RBT then had the drainage system cleaned twice in 2007. In 2008, Hong installed a funnel and pipe system on RBT Lot 8 below the outfall in order to direct the water coming from RBT's drainage system into the Del Ray drain. According to Hong and Douglas Restad, the manager of the Del Ray Mobile Home Park, the pipe and funnel system reduced the flow of water and sediment into the Del Ray drainage system.
Hong then filed suit, on behalf of himself and the mobile home park, against the RBT homeowners' association and the individual owners of the RBT lots, alleging that the defendants were "negligent in the maintenance, design, construction and management of the RBT drainage facilities proximately damaging" the mobile home park. CP at 3.
The RBT defendants moved for summary judgment on the basis that (1) the common enemy doctrine applied, shielding RBT from liability; (2) Hong had failed to show proximate cause; and, in the alternative, (3) RBT had obtained a prescriptive easement to release from its retention tank the amount of water now at issue.
The trial court granted summary judgment in favor of RBT. Hong moved for reconsideration. The trial court denied the motion for reconsideration because Hong "failed at summary judgment to produce admissible evidence that the negligence of . . . [RBT] was a proximate cause of [Hong's] claimed damages." CP at 334.
Hong appeals.
II
We review de novo an order granting summary judgment. Boguch v. Landover Corp., 153 Wn. App 595, 608, 224 P.3d 795 (2009). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). "A material fact is one upon which the outcome of the litigation depends in whole or in part." Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990) (citing Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974)). The burden is initially on the moving party to show the absence of an issue of material fact. Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002). Where the moving party is the defendant, the burden then shifts to the plaintiff, as the nonmoving party, to present evidence on each of the essential elements of his or her case. Right-Price Recreation, 146 Wn.2d at 382. In determining whether a genuine issue of material fact exists, we "must view all facts and reasonable inferences in the light most favorable to the nonmoving party." Versuslaw, Inc. v. Stoel Rives LLP, 127 Wn. App. 309, 320, 111 P.3d 866 (2005) (citing City of Lakewood v. Pierce County, 144 Wn.2d 118, 125, 30 P.3d 446 (2001)).
Throughout his briefing on appeal, Hong refuses to accept this burden. Instead, Hong asserts, without citation to authority, that we must assume that he has provided sufficient evidence of proximate cause because there is a lack of any evidence to the contrary.
III
Hong contends that the trial court erred by granting summary judgment because genuine issues of material fact exist regarding whether RBT's failure to maintain its drainage system was the proximate cause of Hong's damages. We disagree.
To prove negligence, Hong must show the existence of a duty, a breach of that duty, proximate cause, and damages. Degel v. Majestic Mobile Manor Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). "[P]roximate cause consists of two elements: cause in fact and legal causation." City of Seattle v. Blume, 134 Wn.2d 243, 251, 947 P.2d 223 (1997). Legal causation "involves the question of whether liability should attach as a matter of law, even if the proof establishes cause in fact." Blume, 134 Wn.2d at 252. Cause in fact is established if the plaintiff's injury would not have occurred but for the defendant's action. Hertog v. City of Seattle, 138 Wn.2d 265, 282-83, 979 P.2d 400 (1999). Conversely, cause in fact is not established if the plaintiff's injury would have occurred even without defendant's alleged breach of duty. Gaines v. Pierce County, 66 Wn. App. 715, 723, 834 P.2d 631 (1992). "The question of cause in fact is normally left to the jury, however, if `reasonable minds could not differ, th[is] factual question[] may be determined as a matter of law'" on summary judgment. Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001) (quoting Hertog, 138 Wn.2d at 275).
The mere fact that Hong sustained an injury does not entitle him to put RBT through the expense of trial. Little v. Countrywood Homes Inc., 132 Wn. App. 777, 781, 133 P.3d 944 (2006). In order to survive summary judgment, Hong must produce evidence suggesting that the injuries suffered by the mobile home park would not have occurred in the absence of a breach of some duty by RBT.
With this burden in mind, we first note the geography of the relevant properties. RBT is uphill from the mobile home park. Gravity directs that water flow downhill. The water and debris flowing downhill onto the Del Ray property moves through a ravine, which begins uphill of the RBT property, cuts across a portion of the RBT property, and continues down to the Del Ray property. The undisputed evidence demonstrates that during periods of rain, a significant amount of water travels down the ravine from locations south and uphill from RBT. Thus, even taking the evidence in the light most favorable to Hong, reasonable minds could only conclude that, even in the absence of a negligent act by RBT, the Del Ray property would receive water from uphill. The only logical inference from the evidence presented is that the mobile home park received water from the uphill properties even before the RBT property was developed. An uphill landowner is not liable for damages caused to downhill properties by natural water flow. See Price v. City of Seattle, 106 Wn. App. 647, 658, 24 P.3d 1098 (2001) ("The appellants' failure to document unnatural runoff resulting from the changes at the top of the bluff defeats their claim that the City is liable for channeling the water." (emphasis added)); see also Currens v. Sleek, 138 Wn.2d 858, 861, 983 P.2d 626, 993 P.2d 900 (1999) (holding that an uphill landowner may not be liable for damage caused to downhill properties even where the uphill landowner "defend[s] himself" against surface water, thereby causing greater damage to the downhill properties than would otherwise naturally occur); Laurelon Terrace Inc. v. City of Seattle, 40 Wn.2d 883, 892, 246 P.2d 1113 (1952) (holding same); Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896) ("[S]urface water . . . is a part of the land upon which it lies.").
In order to demonstrate that the actions of an uphill landowner caused a downhill landowner to suffer injury from water flowing downhill, the downhill landowner must provide some evidence that allows a finder of fact to compare the amount of surface water that would naturally reach the downhill property with the amount of water actually reaching the downhill property after the uphill landowner's wrongful acts. See Ripley v. Grays Harbor County, 107 Wn. App. 575, 582, 27 P.3d 1197 (2001) (holding that "[t]he channel and discharge exception to the common enemy doctrine requires that the finder of fact compare the amount of surface water that would naturally reach the Appellants' properties with the amount that reach the properties after the changes"). In Price, we affirmed the trial court's summary judgment dismissal of the downhill plaintiff's claims against the uphill defendant because, in part, none of the evidence presented by the downhill landowner demonstrated that the uphill landowner's activities "produced a significant net increase in the flow of water down the slope of the bluff compared to what would occur if the native shrubs and trees had been left in their natural condition." 106 Wn. App. at 657.
The question then becomes whether RBT's drainage system caused an increase in the amount of water entering the Del Ray property over and above the amount that would naturally have flowed onto the Del Ray property. This question cannot be answered on the record before us. This is because Hong did not present any evidence denoting the amount of water that would naturally flow down the ravine. The only evidence remotely addressing this issue is contained in a declaration by Hong's expert witness, engineer William Chang, who opined in a report to Hong that the RBT drainage "system as designed and installed also effectively conveying an increased amount of runoff to the subject property via the eastern storm drain outfall, relative to the condition that existed before the RBT plat was developed." CP at 158. Not only is this statement unclear, it is not supported by any evidence. Chang cited no quantitative measurements to support this opinion and did not set forth any factual basis for his belief about the "condition that existed before the RBT plat was developed." In the context of a summary judgment motion, an expert must support his or her opinions with specific facts. "A fact is an event, an occurrence, or something that exists in reality. . . . It is what took place, an act, an incident, a reality as distinguished from supposition or opinion." Grimwood v. Univ. of Puget Sound Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988) (citing Webster's Third New International Dictionary 813 (1976); 35 C.J.S. Fact 489 (1960)). "[C]onclusory statements of fact will not suffice" to defeat a summary judgment motion. Grimwood, 110 Wn.2d at 360. A court should disregard expert opinions where the factual basis for the opinion is inadequate. Rothweiler v. Clark County, 108 Wn. App. 91, 100-01, 29 P.3d 758 (2001); Price, 106 Wn. App. at 656-58.
Evidence presented to the trial court indicates that, in recent years, Hong perceived an increase in the amount of water flowing down the ravine onto the Del Ray property compared with the amount of water that had flowed down the ravine when Hong first purchased the property. This perception was in no way documented or quantified. Additionally, both of these periods represent a time after RBT's drainage system had been developed. No evidence was presented regarding the baseline — the amount of water that would naturally flow down the ravine (prior to, or in the absence of, the construction of RBT's drainage system). Moreover, nothing in the record supports an inference that RBT increased the quantity of surface water flowing onto the Del Ray property above that which would naturally have flowed onto the Del Ray property. Notwithstanding Hong's entreaties to the contrary, we cannot simply assume that the amount of water currently flowing down the ravine onto the Del Ray property is in a quantity greater than the amount that naturally flowed onto the Del Ray property. See Attwood v. Albertson's Food Ctrs. Inc., 92 Wn. App. 326, 331, 966 P.2d 351 (1998) ("evidence establishing proximate cause must rise above speculation, conjecture, or mere possibility"). Hong "needed to submit evidence allowing a reasonable person to infer, without speculating, that [RBT's] negligence more probably than not caused the [injury]." Little, 132 Wn. App. at 781-82. "[R]ecovery cannot be based upon a claim of what `might have happened.'" Kristjanson v. City of Seattle, 25 Wn. App. 324, 326, 606 P.2d 283 (1980) (quoting Johanson v. King County, 7 Wn.2d 111, 122, 109 P.2d 307 (1941)).
Without evidence regarding the amount of surface water that would naturally flow down the ravine onto the Del Ray property, there is no way for a trier of fact to determine whether RBT's drainage system caused the amount of water flowing onto the Del Ray property to exceed its natural flow. Here, not only is the present amount of flow not well documented, there is an absence of any evidence of what it would be absent the existence of the RBT drainage system. As such, there is no question of material fact presented regarding whether RBT caused more water to flow onto the Del Ray property than the amount that would naturally flow down the ravine.
Moreover, the evidence presented supports the conclusion that the Del Ray property would have been damaged by water and debris flowing down the ravine even in the absence of RBT's negligence. Even taking all of the evidence in the light most favorable to Hong, no jury could reasonably infer that Hong's property would not have flooded but for the unknown quantity of water contributed by RBT's drainage system as a result of poor maintenance. This is because the evidence establishes both that water-flow-caused-injury to the Del Ray property occurred prior to any alleged negligence by RBT and continued to occur even after RBT's drainage system had been cleaned and the water flowing from RBT's outfall became more directed.
This evidence is as follows. The RBT drainage system was constructed in 1977. In 1975, before the installation of the RBT drainage system and road, a report by Roger Lowe Associates, the engineering firm hired by the developers of RBT, noted:
We wish to call attention to the drainage from the eastern portion of the Plat and adjoining areas to the Del Rey Trailer Court. A 12" diameter culvert carries this flow under the trailer court. Our plans do not show the entire drainage basin but we suspect that the culvert is often inadequate for the tributary area. The residents have used fencing and debris to effect a barrier to protect themselves from overflow debris. Also the small size of the culvert makes it highly susceptible to clogging.
CP at 56-57 (emphasis added). This is consistent with an engineering report by Golder Associates, which states that "[i]n the file documents we reviewed, there is a statement by an attorney representing the tenants on the Del Ray property that floods and slides on the site had been an ongoing problem before 1968." CP at 140 (emphasis added). In recommending the type of drainage system that RBT should install, Roger Lowe Associates explained that "[t]he existing runoff coefficient [from the RBT property] appears to be quite high." CP at 56. Furthermore, in 1987, when, all parties agree, the RBT drainage system was being properly maintained, an engineering report detailed that RBT Lot 8, where the ravine is located, was experiencing active sliding downhill toward the Del Ray property.
Notably, after Hong had installed the funnel and pipe to direct the discharge from RBT's outflow into Del Ray's drainage facilities and after RBT had twice cleaned the retention tanks, Restad, the current manager of Del Ray, still observed heavy water flow coming down the ravine. He declared that "60% of the [heavy water flow] was from the ravine and 40% was from the pipe [connected to the RBT drainage system]. The water from the ravine is muddy and silty and plugs the Del Rey catch basin." CP at 269. Restad further indicated that, even after Hong installed the funnel and pipe, Restad still had to remove approximately seven inches of silt from the Del Ray catch basin.
The fact that the Del Ray drainage system continues to be inundated with water and filled with sediment, even after proper maintenance of the RBT drainage system resumed, implies that the lack of maintenance of the RBT drainage system was not the cause of injury to the Del Ray property. In order to establish proximate cause, Hong had to present some evidence suggesting that the injury to the Del Ray property would not have occurred had RBT properly maintained its drainage system. This, Hong has not done. Instead, Hong presented evidence from his manager that establishes that damage to Del Ray is still occurring despite the fact that RBT's drainage system has been maintained and is being more directly funneled into the Del Ray catch basin. The undisputed evidence presented indicates that, even had RBT cleaned its retention tank, water and debris still would have damaged the Del Ray drainage system. There is no evidence to the contrary.
Nevertheless, Hong contends that he presented evidence that RBT's failure to clean the retention tank was a proximate cause of the injury to the Del Ray property. Hong bases this assertion on his own declaration and a letter from RBT's president. Hong declared that the amount of water and debris entering his property has increased in recent years. RBT's president stated in a letter that cleaning the retention tanks would prevent surges of water and should cause only a trickle of water to be released. This evidence, representing the views of two people who are in no way expert in the field, does not allow either an inference that the injury to Del Ray was caused by RBT's drainage system or an inference that the injury would not have occurred absent any negligence by RBT.
Hong also relies on the evidence of engineer Chang, who declared:
Catch basin and retention facilities should be cleaned annually to prevent reduction in the effective volume of the tank resulting from silt and debris. Assuming the volume of the tank is consumed in part with silt and debris as the tank fills, the ability to perform its intended function declines.
CP at 259 (emphasis added). Based on this assumption, Chang declared that RBT's failure to clean the retention tank from 1991 to 2007 "likely was the cause of damage to Del Rey." CP at 259. However, speculation and conjecture cannot raise a genuine issue of material fact. See Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). Again, a fact is "something that exists in reality. . . . as distinguished from supposition or opinion." Grimwood, 110 Wn.2d at 359. In Price, we affirmed the trial court's grant of summary judgment to the uphill landowner, reasoning that an expert's declaration, which expressed that the city's actions "can be expected to have increased the rates and volumes of surface and shallow subsurface runoff," was "too conclusory to raise an issue of fact. It does not quantify the assumed increase in runoff." 106 Wn. App. at 657. The same is true of Chang's assertion.
RBT met its initial burden to prove that there was no question of material fact. Hong failed to present a question of fact as to whether the injury to Del Ray would not have occurred absent RBT's actions. Hong did not establish proximate cause. Accordingly, summary judgment was proper.
Hong's complaint against RBT also alleged that, in addition to negligently maintaining the drainage system, RBT had negligently designed its drainage system and that the negligent design caused injury to Hong. The trial court granted summary judgment dismissing all of Hong's claims against RBT.
Hong stated in his briefing that the RBT drainage system was negligently designed because it was designed to discharge into a stream that did not exist. For this proposition, he relies on Chang's expert opinion that:
The RBT plat development assumes that the flow though a ravine at the North bank of the RBT plat leads to an existing stream. Apparently it was expected that the stream would flow directly East from the area of the border between RBT and Del Rey. There is no such stream; water flows North across Del Rey not directly East.
CP at 258. Because it appears that no such stream runs east, Chang concludes, the RBT drainage system was negligently designed.
However, Chang's opinion regarding RBT's design is not supported by any evidence. As stated above, a court will disregard expert opinions where the factual basis for the opinion is found to be inadequate. Rothweiler, 108 Wn. App. at 100-01; Price, 106 Wn. App. at 656-58; see also Grimwood, 110 Wn.2d at 359-61. Contrary to Chang's assertion, the evidence is that the RBT plat plans indicated that the RBT drainage system was designed to flow into an existing stream — a stream running north in the ravine. CP at 176 (labeling the ravine as an existing stream in the RBT plat explorations from 1975); CP at 108 (describing the ravine as containing an intermittent stream). The uncontested fact is that there is an intermittent or seasonal stream running north through the ravine.
Hong does not contend that there were any other aspects of the RBT drainage system that were negligently designed. Thus, Hong failed to raise any factual question regarding whether the RBT drainage system was negligently designed. Summary judgment dismissal of this claim was proper.
Because this issue is dispositive, we do not reach the remaining claims of error regarding the common enemy doctrine, an alleged prescriptive easement, and Hong's requested injunction.
IV
RBT requests that we award it attorney fees on appeal on the basis that Hong's appeal is frivolous. Hong's appeal is not frivolous. Accordingly, we deny RBT's request.
Affirmed.
We concur