Anthony Young & Joseph Mulcahy v. City Of Anacortes

• Court: Court of Appeals of Washington
• Decided: November 30, 2020
• Docket: 80002-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANTHONY YOUNG and JOSEPH ) No. 80002-7-I MULCAHY, in their individual capacities ) and as a marital community, ) ) Appellants, ) ) DIVISION ONE v. ) ) CITY OF ANACORTES, a Washington ) Municipal Corporation; TODD J. ) UNPUBLISHED OPINION WELLIVER and ERINN D.L., ) WELLIVER, in their individual capacities ) and as a marital community, ) ) Respondents. ) )

MANN, C.J. — Anthony Young and Joseph Mulcahy appeal the trial court’s order

granting summary judgment and dismissing their action against the City of Anacortes

(City). Young and Mulcahy argue that there are genuine issues of material fact whether

the City had a common law duty to maintain a drainage ditch located on its right-of-way,

and if not, whether the “special relationship” exception to the public duty doctrine

applies. We agree and vacate the order granting summary judgment and remand for

further proceedings.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 80002-7-I/2

I. FACTS

In 1890, the City accepted the plat of the Pleasant Slope Addition. The 1890 plat

subdivided property into multiple city blocks and lots, including 80-foot wide public rights

of way. One of the right-of-ways was E Avenue. A portion of the 1890 plat was

replatted in 2005 as the Plat of Pleasant View. The 2005 plat vacated the east half (40

feet) of E Avenue. The west half of E Avenue remained a public right-of-way.

In 2004, Todd and Erinn Welliver (the Wellivers) purchased property immediately

west of E Avenue. Young and Mulcahy purchased the property (Young-Mulcahy

property) immediately east of E Avenue and east of the Wellivers in 2009. The Young-

Mulcahy property includes the vacated, east half of E Avenue. The land slopes

generally downhill from the Welliver property to the Young-Mulcahy property. At the

time Young and Mulcahy moved in, drainage from the Welliver property was captured

by a drainage ditch located on the City-owned portion of E Avenue. The ditch

channeled drainage away from the Young and Mulcahy property northward into a native

growth protection easement area (NGPE).

As they were moving in, Young and Mulcahy observed Todd Welliver, on multiple

occasions, using heavy equipment to excavate, move, grade, and fill land in the area

between his home site and theirs. Concerned with the land modifications, Young

contacted the City’s planning department, including its planning director Ryan Larson,

and assistant planning director Don Measamer.

In an e-mail exchange beginning September 10, 2009, Young expressed the

concerns he and Mulcahy had regarding the grading on E Avenue. On October 1,

2009, Measamer e-mailed Young, informing him that he had spoken with Welliver, who

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would need to obtain a right-of-way permit for modifications on City property.

Measamer stated:

I have been in contact by phone with your neighbor, Mr. Todd Welliver, regarding the grading next door and will meet on site with Todd on Friday. Mr. Welliver will need to acquire a right of way permit and provide drainage control per Public Works and Building Department approval. We are not certain what drainage methods will be needed until the site visit and consultation with the Public Works Department.

Measamer conducted the site visit and reported that when he arrived at E

Avenue, nothing was happening on the property. Based on Young’s request,

Measamer asked Welliver to remediate the drainage ditch on E Avenue. Welliver

indicated that he did so.

Young and Mulcahy contend that Welliver continued his grading activities on his

land and within the E Avenue right-of-way between 2011 and 2015. Young and

Mulcahy claim that following Welliver’s work, “all the water that previously flowed

through the E Avenue drainage ditch and onto the NGPE instead diverted across the E

Avenue right-of-way and directly onto our property.”

As their issues continued, Young reported that although there were no additional

e-mails, there were “a lot of face-to-[face] conversations” where Measamer repeatedly

told Young and Mulcahy that “the City would work out a solution that would work for

everyone.”

In June of 2015, Young and Mulcahy applied for a temporary encroachment

permit into E Avenue in order to address their drainage concerns. The Wellivers

simultaneously submitted their own permit application. Each application was tentatively

approved, but the Wellivers objected to the splitting of E Avenue, citing the replatting of

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Pleasant Slope and vacatur of half of the former E Avenue to the Young-Mulcahy

property. Welliver argued that the earlier vacatur gave Young and Mulcahy half of the

right-of-way, so the remainder should be his to develop. After a public hearing, the City

ultimately determined that both encroachment applications were inconsistent with the

City’s policy regarding right-of-ways, and did not issue permits.

Young and Mulcahy assert that the change in flow caused “significant and

ongoing damage to our home and property, including land movement, settling in various

parts of our home, walls cracking and separating, settling/cracking of our entry patio and

walkway, and water collecting in our basement.” A March 23, 2017, City investigation

concluded that the damage to the Young-Mulcahy property was a result of subsurface

aquifer flow.

In May 2018, Young and Mulcahy sued the Wellivers and the City in Skagit

County Superior Court. After answering the complaint, the City moved for summary

judgment and dismissal, arguing that Young and Mulcahy’s claims were barred by the

public duty doctrine. The trial court agreed and dismissed the complaint. The trial court

then granted Young and Mulcahy’s motion under CR 54(b) that the judgment against

the City was an appealable final order. Young and Mulcahy appeal. 1

II. ANALYSIS

A. Standard of Review

We review summary judgment decisions de novo. Int’l Marine Underwriters v.

ABCD Marine, LLC, 179 Wn.2d 274, 281, 313 P.3d 395 (2013). “Summary judgment is

1 The underlying lawsuit against the Wellivers was subsequently dismissed pursuant to a

settlement agreement.

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proper only where there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” Int’l Marine Underwriters, 179 Wn.2d at 281.

We consider “the facts submitted and all reasonable inferences therefrom in the

light most favorable to the nonmoving party.” Chelan County Deputy Sheriffs’ Ass’n v.

Chelan County, 109 Wn.2d 282, 294, 745 P.2d 1 (1987). “Even where the evidentiary

facts are undisputed, if reasonable minds could draw different conclusions from those

facts, then summary judgment is not proper.” Chelan County, 109 Wn.2d at 295.

B. Did the City have a Duty to Maintain the Drainage Ditch?

In a negligence action, the threshold determination is whether the defendant

owes a duty of care to the plaintiff. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759

P.2d 447 (1988). Regardless of the identity of the defendant, a duty must be one owed

to the injured plaintiff, not the public in general, to be actionable. Chambers-Castanes

v. King County, 100 Wn.2d 275, 284, 669 P.2d 451 (1983). This principle of negligence

law is known as the public duty doctrine. Under this doctrine, no liability may be

imposed for a public official’s negligent conduct unless it is shown that the duty

breached was owed to the injured person as an individual and was not merely the

breach of an obligation owed to the public in general (“a duty to all is a duty to no one”).

Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.2d 197 (2006). The public duty

doctrine, however, is not applicable in all circumstances, such as where the public entity

has a common law duty to maintain its own property.

Washington courts have long-recognized that when a municipality uses its

discretionary power to construct a drainage system, the municipality must exercise

reasonable care in maintaining the system. In Ronkosky v. City of Tacoma, 71 Wash.

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148, 128 P.2 (1912), the City of Tacoma graded a street across from a deep gulch by

cribbing and filling the street, and installing a culvert. The gulch traditionally carried

large amounts of water during the rainy season. Ronkosky, 71 Wash. at 149. Following

the modification of the street, John Hannam constructed a small house, barn, and

woodshed a short distance above the street fill. F. W. Ronkosky and his family

occupied the house. Ronkosky, 71 Wash. at 149. Over time the culvert, either through

decay or neglect, was no longer properly functioning to divert water flow. Ronkosky, 71

Wash. at 149, 150. One night copious rainfall flooded the culvert and the home, leaving

barely enough time for Ronkosky and his family to escape. Ronkosky, 71 Wash. at 150.

The court held that, while Tacoma had no primary obligation to construct the drainage

system, it did have the duty to maintain it once the system was constructed. Ronkosky,

71 Wash. at 153.

Similarly, in Howe v. Douglas County, 146 Wn.2d 183, 186, 43 P.3d 1240 (2002),

Douglas County took responsibility for the maintenance of a subdivision’s roads and

drainage system. The Howes built a home in the subdivision, which suffered floods

partially due to sand that had accumulated in the drainage system. Howe, 146 Wn.2d

at 187. The Howes sued Douglas County for negligent maintenance. The Supreme

Court, recognizing that a failure to maintain a drainage system has historically resulted

in municipal liability, held that the Howes may pursue their claim of negligent

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maintenance against the County. Howe, 146 Wn.2d at 192 (citing Sigurdson v. City of

Seattle, 48 Wn.2d 155, 162, 292 P.2d 214 (1956)). 2

Here, Young and Mulcahy presented evidence that there was historically a ditch

on E Avenue within the City’s right-of-way and that after the 2005 plat of Pleasant

Slope, the ditch carried water north toward the NGPE. Young and Mulcahy also

presented evidence that the ditch was subsequently filled and resulted in damage to

their property. At oral argument, the City conceded the existence of the ditch, claiming

that they were unsure of its origin and purpose. The origin and purpose of the ditch,

and whether the City had a duty to maintain it, are issues of material fact and not

amenable to summary judgment.

C. Is the Special Relationship Exception to the Public Duty Doctrine Applicable?

If at trial it is determined that the City did not have a duty to maintain the ditch,

then the court must address whether the City is shielded from liability under the public

duty doctrine for its failure to require the Wellivers to repair the ditch. Young and

Mulcahy argue there is a genuine issue of material fact whether the “special

relationship” exception to the public duty doctrine applies. We agree.

Again, under the public duty doctrine, a plaintiff cannot recover against a

municipal corporation in tort unless the plaintiff can show that the duty breached was

owed to an individual and “not merely a general obligation owed to the public.”

Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001).

2In Phillips v. King County, our Supreme Court recognized, in dicta, that situations could arise where a municipality may be liable for a failure to maintain a public drainage system, and the use of county controlled property for the building of part of a drainage system may give rise to liability on the part of a municipality. 136 Wn.2d 946, 966-69, 968 P.2d 871 (1998).

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There are four recognized exceptions to the public duty doctrine under which the

government acquires a duty of care owed to a particular individual (1) where there is a

legislative intent to impose a duty of care, (2) where a “special relationship” exists

between plaintiff and the public entity, (3) where the government has engaged in

volunteer rescue efforts, or (4) where the government is guilty of a “failure to enforce” a

specific statute. Babcock, 144 Wn.2d at 785-86.

A “special relationship” arises when (1) there is privity or direct contact between

the public official and the plaintiff, (2) the official, in response to a specific inquiry,

provides express assurances, and (3) the plaintiff justifiably relies on the

representations of the official. Taylor, 111 Wn.2d at 166. The creation of a “special

relationship” between the plaintiff and the public official gives rise to a duty to use

reasonable care when furnishing information. Once the existence of duty is established,

the plaintiff may proceed in tort against the local government. Taylor, 111 Wn.2d at

163.

Washington courts recognize that the “special relationship” exception to the

public duty doctrine is a question of fact. See, e.g., Beal v. City of Seattle 134 Wn.2d

769, 786 954 P.2d 237 (1998) (holding that the “special relationship” exception to the

public duty doctrine applied when a 911 caller justifiably relied on communication from a

public official, and that justifiable reliance is a question of fact generally not amenable to

summary judgment). Washington courts also recognize this question of fact in the

context of drainage system maintenance.

For example, in Lakeview Boulevard Condominium Ass’n v. Apartment Sales

Corp., 146 Wn.2d 194, 196, 43 P.3d 1233 (2002), homeowners sued the City of Seattle

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for negligence in maintaining storm drains and granting permits. The Supreme Court

explained that “alleged negligent permitting alone cannot be the basis of a negligence

claim against local government, absent a recognized exception;” the homeowners did

not establish that they fell within a recognized exception. Lakeview, 146 Wn.2d at 205.

However, the court held that an affidavit from a resident stating she relied on

assurances from the city that it would maintain the storm drains was sufficient to defeat

a claim for summary judgment. Lakeview, 146 Wn.2d at 206. Finding that the

homeowner fell with the “special relationship” exception, the court affirmed and allowed

the homeowner to pursue negligence claims. Lakeview, 146 Wn.2d at 206.

Here, Young and Mulcahy argue that a “special relationship” was created with

the City based on the e-mail and subsequent face-to-face interactions with Don

Measamer. Young and Mulcahy assert that (1) there was contact with Measamer, (2)

he gave express assurances regarding E Avenue when stating that the Wellivers would

need a permit, and (3) Young and Mulcahy relied on these assurances.

Viewed in a light most favorable to Young and Mulcahy, the e-mail exchanges

and face-to-face interactions between Young and Measamer, as well as Young’s

declaration that he and Mulcahy relied on these assurances, appears sufficient to create

the (1) contact, (2) express assurances, and (3) reliance necessary to fulfill the “special

relationship” exception to the public duty doctrine. The accuracy of these claims is an

issue of material fact and not amenable to summary judgment.

We vacate the order granting summary judgment and remand for further

proceedings.

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WE CONCUR:

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