Opinion
No. 61016-3-I.
August 18, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-23078-7, Christopher A. Washington, J., entered December 6, 2007.
Affirmed by unpublished opinion per Becker, J., concurred in by Schindler, C.J., and Leach, J.
Water overflowing from a backed up catch basin on neighboring property flooded the plaintiff's office. The defendant claimed that it did not know about the catch basin due to its obscure location in an area of dense vegetation. We agree with the trial court that the defendant, whether aware of the catch basin or not, breached its duty as a landowner by failing to properly maintain the catch basin. Summary judgment is affirmed.
Dr. Jennifer Strelow, a dentist, has an office on the ground floor of an office building on Mercer Island. Dr. Strelow was working in her office on a rainy Saturday afternoon in October 2005 when water began seeping into her office. She immediately called 911 and firefighters responded to help alleviate the flooding. Firefighters located the source of the flooding as an overflowing catch basin on the neighboring property uphill from Dr. Strelow's office. Firefighters dug a trench to reroute the water away from Dr. Strelow's office and used vacuums to collect water that had entered the office until the building's property management company arrived to take over the clean up. Lieutenant Bridenbaugh testified in his deposition that if the catch basin on the adjacent property had not backed up, Dr. Strelow's office would not have flooded. The damages to Dr. Strelow's office totaled approximately $127,000.
The property manager for Dr. Strelow's office contacted Landmark Plaza, the uphill owner, about covering the cost of damage to the office. Landmark admitted that they did not know that the drain existed. They commissioned a land survey to determine if the drain was in fact on their property. A professional land surveyor came out and determined that the catch basin was indeed located on Landmark's property, about 2.5 feet from its south lot line. Landmark investigated the cause of the blockage in the storm drain and determined that a root invasion had clogged the line, causing water to back up during storms.
Dr. Strelow filed a complaint in July 2006. She alleged that Landmark was negligent in failing to properly maintain the drainage system and that as a result she had suffered damages. Dr. Strelow also asserted that Landmark had trespassed by collecting and discharging water onto her property. She moved for summary judgment on liability in July 2007. Strelow submitted a declaration from Tom Fettig, an employee of the company involved in inspecting and repairing the storm line for Landmark. Fettig declared that the flooding likely would not have occurred if Landmark had checked the catch basin on a regular basis. He stated that the root invasion had taken place gradually and inspections would have revealed the problem before the roots clogged the line completely.
Landmark argued that its ignorance of the catch basin's existence was understandable because it was located on a sloped part of the property with dense shrubs, where it is not visible to passersby. None of the building drawings detailing the drainage system for the property made note of the catch basin, nor is the basin shown on any of the records maintained by the City of Mercer Island. Landmark claimed that it was a question of fact for a jury to determine if Landmark was negligent for not knowing that the catch basin was there. John Magnuson, who purports to be an expert witness in the property management field, declared on behalf of Landmark that the standard of care for property managers does not require searching remote locations:
Given the facts that the catch basin is located in a remote area of the property, it physically appears to be on adjacent property, and that it is not shown on any of the building plans for the complex, it is my opinion that Mr. Nahon did not violate the standard of care in the industry by not being aware of the existence of it prior to the incident in question. While a property manager should be generally familiar with the various systems and features of a property under his care, the industry standards do not require such a manager to seek out unknown systems which may or may not exist on remote portions of the property.
Clerk's Papers at 159.
The court granted partial summary judgment regarding liability in favor of Dr. Strelow in September 2007. However, the court first gave Landmark an opportunity to present additional evidence "of some extraordinary cause or explanation for the back up of the water in this case (e.g. sabotage; catastrophic collapse) that would not have been capable of discovery by Defendant through reasonable inspection." Landmark did not submit any additional materials.
Clerk's Papers at 253.
Landmark moved for reconsideration. The trial court denied Landmark's motion. The parties stipulated that Dr. Strelow's damages totaled $160,000 and that judgment could be entered on this stipulation, but Landmark preserved its right to appeal the trial court's ruling on liability. The court accordingly entered judgment in favor of Dr. Strelow in December 2007.
Landmark appeals. Landmark claims that there was sufficient evidence before the trial court that it exercised due care in the inspection and maintenance of the drainage systems on its property, creating a question of fact on the issue of negligence.
The elements of negligence are duty, breach, causation, and injury. Keller v. City of Spokane, 146 Wn.2d 237, 242, 44 P.3d 845 (2002). Dr. Strelow alleged in her complaint that Landmark was liable under both a trespass and a negligence cause of action. When trespass is committed negligently, the elements of negligence must also be proved. Gaines v. Pierce County, 66 Wn. App. 715, 719-20, 834 P.2d 631 (1992).
The primary issue here is duty. Dr. Strelow says Landmark has a duty to restrain encroachment by an agency under its exclusive control and is thus liable for damages caused by its invasion. Dr. Strelow draws this definition of duty from Forbus v. Knight, 24 Wn.2d 297, 313, 163 P.2d 822 (1945). InForbus, the roots of a tree on the defendant's property invaded plaintiff's property and periodically clogged her sewer pipe line, causing sewage to back up into the basement of her house. The plaintiff brought an action to recover damages for the cost of repeatedly cleaning and repairing her line. After a bench trial, the court dismissed the action with prejudice because it was unable to conclude that the defendant's tree was the source of the problem. Forbus, 24 Wn.2d at 303-04. The trial court stated that the fault lay entirely with the plaintiff because she had failed to cement the joints of her sewer and that such failure was the sole proximate cause of the roots entering the pipe. Forbus, 24 Wn.2d at 305. The Supreme Court reversed the judgment on procedural grounds and ordered a new trial, but indicated that the trial court was wrong on the merits as well:
It is not the law that the owner of premises is to be charged with negligence if he fails to take steps to make his property secure against invasion or injury by an adjoining landowner. It is the duty of the one who is the owner of the offending agency to restrain its encroachment upon the property of another, not the duty of the victim to defend or protect himself against such encroachment and its consequent injury.
Forbus, 24 Wn.2d at 313 (emphasis added).
Landmark proposes to define the duty of a landowner as the duty of a property manager to exercise due care in being aware of man-made drainage systems on the land. In Landmark's view, an owner's duty to prevent water from flooding from a clogged catch basin onto a neighbor's land does not arise if the owner is reasonably unaware that the catch basin exists. Landmark relies on Hughes v. King County, 42 Wn. App. 776, 714 P.2d 316 (1986). In Hughes, a storm sewer maintained and operated by King County on the county's easement in a parking lot overflowed and flooded the plaintiffs' neighboring auto showroom and lot. The damage occurred during a "75-year storm" that spanned two days. Hughes, 42 Wn. App. at 778. The owners of the auto lot sued King County, seeking compensatory damages of approximately $15,000. After a bench trial, the court found that a bottleneck in a private storm sewer located downstream from appellants' property caused the county's sewer to back up and overflow. Nevertheless, the trial court concluded that the flooding constituted trespass and the county had failed to sustain its burden to show that the flooding was not the result of its own actions. Hughes, 42 Wn. App. at 779.
King County appealed the trial court's determination of liability. The Court of Appeals reversed because there was no evidence that King County contributed in any way to the flooding that damaged the auto lot:
Negligence could have arisen at several stages, including the design, construction, and maintenance of the drainage system. No finding was made that the County's design, construction, or maintenance of the system's pipes upstream and through appellants' property were deficient in any manner. Although the trial court noted that the County had not inspected or maintained the pipe running through appellants' property since 1969, no evidence suggests that failure to inspect this portion of the system in any way caused the flooding.
Hughes, 42 Wn. App. at 780-81. Reversal was required because the owners of the auto lot had failed to show that an intentional or negligent action by the county caused the flooding or that the county was negligent in maintaining the system. Hughes, 42 Wn. App. at 782.
In Hughes, there was no evidence that the county's maintenance was deficient or that inspection of the storm sewer could have prevented the flooding. Here, the root invasion in the catch basin is the known cause of the flooding and Dr. Strelow submitted expert testimony that this condition could have been discovered through regular inspection of the system.Hughes does not support Landmark's view that a landowner who is unaware of a catch basin on the landowner's property is excused from the duty of inspecting and maintaining it.
Landmark has not cited any authority calling into question the rule set forth in Forbus that it is "the duty of the one who is the owner of the offending agency to restrain its encroachment upon the property of another, not the duty of the victim to defend or protect himself against such encroachment and its consequent injury." Forbus, 24 Wn.2d at 313. Under Forbus, Landmark did have a duty to locate and properly maintain the catch basin on its property in a manner that prevented it from encroaching upon neighboring property. Landmark has not cited a case where the owner's ignorance that his property contains some type of "offending agency" is a recognized defense to a claim of negligence or trespass. The record contains sufficient evidence to support the trial court's determination that Landmark breached its duty as a landowner.
Landmark contends that the trial court erroneously applied a strict liability standard rather than the applicable negligence standard discussed in Hughes. We disagree. The trial court did not hold Landmark strictly liable for water from its property flooding Dr. Strelow's office. The trial court gave Landmark every opportunity to provide evidence of an extraordinary cause for the backup of water that would not have been capable of discovery through reasonable inspection. If the trial court was in fact applying strict liability, there would have been no reason to consider whether the flood was caused by sabotage, an act of God, or was otherwise unforeseeable. The trial court applied the proper standard.
Landmark contends the trial court exceeded its authority by dismissing the case on summary judgment because there are disputed questions of fact regarding Landmark's alleged negligence. "While issues of negligence and proximate cause are not generally susceptible to summary adjudication, courts are not precluded from rendering such judgments." LaPlante v. State of Washington, 85 Wn.2d 154, 159, 531 P.2d 299 (1975). Landmark acknowledges that it never inspected the catch basin in question. Landmark has conceded that with regard to the catch basin that flooded Dr. Strelow's office, it was not in compliance with Mercer Island Municipal Code § 15.09.050 which requires it to annually inspect and maintain storm water drainage systems. While violation of the municipal code is not negligence per se, it may be considered by the trier of fact as evidence of negligence. RCW 5.40.050. Given the lack of disputed issues, the trial court did not exceed its authority.
Appellant's Br. at 9-10.
Affirmed.