Carlos Gueits & Lynda Gueits V. Whidbey Golf & Country Club

• Court: Court of Appeals of Washington
• Decided: September 29, 2025
• Docket: 87251-6
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CARLOS and LYNDA GUEITS, a married couple, No. 87251-6-I

Appellants, DIVISION ONE

v. UNPUBLISHED OPINION

WHIDBEY GOLF AND COUNTRY CLUB, d/b/a WHIDBEY GOLF CLUB, a Washington corporation,

Respondent.

BIRK, J. — Carlos and Lynda Gueits brought claims of negligence, nuisance,

and breach of contract against Whidbey Golf and Country Club (WGCC), asserting

WGCC’s improper maintenance of a drainage system on its property caused the

Gueitses’ home to flood in February 2020. The trial court granted WGCC summary

judgment on the Gueitses’ claims, and the Gueitses appeal. Because the Gueitses

were not third party beneficiaries to WGCC’s contract with Island County and the

City of Oak Harbor, and because the Gueitses have not furnished evidence

supporting an inference that the flooding would not have happened but for

WGCC’s alterations to the natural flow of water, we affirm.

I

WGCC is a privately owned golf course in the Oak Harbor. WGCC is

situated at the bottom of a drainage basin and receives runoff and stormwater from

adjacent neighborhoods. Several residential properties border the golf course, No. 87251-6-I/2

including the home of Carlos and Lynda Gueits, which was located near the lowest

part of the course. Testimony from WGCC’s groundskeeper suggests that the

Gueitses’ property was lower in elevation than WGCC.

In 2002, WGCC entered a 20 year agreement (“Drainage Agreement”) with

Island County and Oak Harbor regarding a stormwater control and conveyance

system installed on WGCC property consisting of a series of culverts, ditches,

drainpipes, ponds, and a transfer-pump station. All parties acknowledged that

“during peak drainage periods the water could possibly overwhelm and impede the

capacity of the Golf Club drainage system causing flooding and associated

nuisances on and in the vicinity of the Golf Club property,” and that the parties

each benefitted from the operation of the drainage system. Under the Drainage

Agreement, WGCC agreed to “[a]ssume responsibility for the operation and

maintenance” of the system and to “[c]omply with current standards for stormwater

quality and best management practices.” In return, Oak Harbor and Island County

agreed to reimburse WGCC for a portion of the maintenance and operation costs

of the system and to have crews available to render assistance on an emergency

basis, based on priorities established by Oak Harbor or Island County.

On February 5, 2020, the Lieutenant Governor of Washington declared a

state of emergency in 19 counties, including Island County, due to “a severe winter

storm event,” which began on January 20 and was predicted to continue until at

least February 8. Beginning in January, WGCC members and staff observed the

WGCC drainage system becoming overwhelmed. The Gueitses allege that on

February 8, water from the golf course encroached on their property and flooded

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the ground floor of their home. They allege the water remained in their home for

about a week.

According to the Gueitses’ expert, Ken Waldal,1 the WGCC drainage

system was rated for a 100 year rainfall event. Waldal testified that a 100 year

rainfall for the Oak Harbor area over a 24 hour period would be 2.70 inches, and

a 25 year rainfall would be 2.25 inches. Between February 5 and February 10,

2020, the highest 24 hour precipitation amount recorded among three Oak Harbor

stations was 2.03 inches. Waldal testified that the WGCC drainage system, as

designed, “should have been able to mitigate the stormwater runoff in February

2020.” According to Waldal, detention ponds in the WGCC drainage system likely

accumulated soil and sediment over time, reducing their runoff storage capacity.

Waldal concluded that “the [WGCC drainage] system overwhelm and subsequent

flooding was caused by insufficient maintenance of the [drainage] system.”

On August 30, 2022, the Gueitses brought negligence, breach of contract,

and nuisance claims against WGCC for allegedly causing the flooding. On March

25, 2024, WGCC moved for summary judgment dismissal of the Gueitses’ claims.

On October 16, 2024, the trial court granted WGCC’s motion for summary

judgment on the bases that the Gueitses’ negligence and nuisance claims were

1 The trial court ruled that Waldal, a landscape architect, was not qualified

to offer expert testimony “on the questions of how and why the flooding and ‘system overwhelm’ ” occurred and declined to consider his statement on that basis. The Gueitses contest this decision on appeal. However, because the Gueitses have not provided evidence of facts necessary to overcome summary judgment even if Waldal’s testimony were admissible in its entirety, we decline to reach this issue. Waldal’s testimony is described here to capture the full scope of the evidence in the light most favorable to the Gueitses.

3 No. 87251-6-I/4

barred by the common enemy doctrine and that they had not established a

contractual relationship with WGCC as required to support a breach of contract

claim. This appeal followed.

II

We review the grant of summary judgment de novo. Johnson v. Lake

Cushman Maint. Co., 5 Wn. App. 2d 765, 777, 425 P.3d 560 (2018). We consider

all facts and reasonable inferences from those facts in the light most favorable to

the nonmoving party. Id. Summary judgment is properly granted when the

pleadings, affidavits, depositions, and admissions on file demonstrate there is no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).

A

The Gueitses assert that WGCC breached its duty under the 2002 Drainage

Agreement to properly maintain the drainage system and to request assistance

from Oak Harbor and Island County during the February 2020 flooding. Although

the Gueitses are not named parties to the Drainage Agreement, they argue that

WGCC nevertheless owed them duties under the agreement. To assert a breach

of contract claim as a nonparty to a contract, the Gueitses must have been

intended third party beneficiaries of the contract. Brummett v. Wash.’s Lottery, 171

Wn. App. 664, 678-79, 288 P.3d 48 (2012). In determining whether contracting

parties intended to designate a third party beneficiary, we look to “the terms of the

contract as a whole construed in the light of the circumstances under which it was

made.” Kim v. Moffett, 156 Wn. App. 689, 699, 234 P.3d 279 (2010). Benefits to

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a third party that are merely incidental, indirect, or consequential rather than direct

do not confer third party beneficiary status. Id. Creation of a third party beneficiary

contract requires that the parties intend that the promisor assume a direct

obligation to the intended beneficiary at the time they enter into the contract. Id.

at 701. The court must look to the terms of the contract to determine whether

performance under the contract would necessarily and directly benefit the party

claiming third party beneficiary status. Id. The intention of the parties in this

respect is determined by the terms of the contract as a whole construed in the light

of the circumstances under which it was made. Id. at 699.

The Drainage Agreement does not support a finding that the Gueitses were

intended third party beneficiaries of WGCC’s contract with Oak Harbor and Island

County. The Drainage Agreement described the respective undertakings of

WGCC, Oak Harbor, and Island County. WGCC agreed to assume responsibility

for the operation and maintenance of the stormwater control and conveyance

system described in the agreement. WGCC did not expressly undertake

obligations to other parties, and the agreement does not identify any other parties.

At most, the recitals to the Drainage Agreement reflect that the parties were aware

of the risk of flooding in “the vicinity” of WGCC. But there is no indication within

the agreement that the contracting parties intended WGCC to assume direct

obligations to adjacent landowners. The Gueitses were incidental beneficiaries of

the Drainage Agreement at most, and thus the trial court properly dismissed the

Gueitses’ breach of contract claim.

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B

The Gueitses argue that summary judgment dismissal of their negligence

claim against WGCC was improper because Waldal’s testimony established a

genuine issue of material fact regarding whether WGCC acted without due care

and thereby caused the Gueitses’ property to flood. Liability for the movement of

surface water is circumscribed by the common enemy doctrine. Currens v. Sleek,

138 Wn.2d 858, 861, 983 P.2d 626, 993 P.2d 900 (1999). Under the common

enemy doctrine, landowners are shielded from liability for the disposal of surface

water unless they (1) block a natural watercourse or natural drainway, (2) artificially

collect and channel water onto their neighbors’ land “ ‘in quantities greater than or

in a manner different from the natural flow thereof,’ ” (the “channel and discharge”

exception), or (3) fail to act “ ‘in good faith and with such care as to avoid

unnecessary damage’ ” to neighboring properties when altering the flow of surface

water (the “due care” exception). Borden v. City of Olympia, 113 Wn. App. 359,

367, 53 P.3d 1020 (2002) (quoting Currens, 138 Wn.2d 862-63). The Gueitses

have argued the common enemy doctrine does not bar their negligence claim

because either the channel and discharge or due care exceptions apply.

These exceptions to the common enemy doctrine apply to claims arising

out of a landowner’s alteration of the natural flow of surface water. Under the

“channel and discharge” exception, landowners are prohibited from “creating an

unnatural conduit,” but may “direct diffuse surface waters into preexisting natural

waterways and drainways.” Currens, 138 Wn.2d at 862. Under the “due care”

exception, “landowners who alter the flow of surface water on their property must

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exercise their rights with due care by acting in good faith and by avoiding

unnecessary damage to the property of others.” Id. at 865. And, the evidence

must be sufficient to support an inference that actionable negligence by WGCC

was a proximate cause of their damage. Gaines v. Pierce County, 66 Wn. App.

715, 722, 834 P.2d 631 (1992). Cause in fact is established only if plaintiff’s injury

would not have occurred but for defendant’s breach of duty. Id. at 722-723.

Cases interpreting the common enemy doctrine have generally found

defendants potentially liable only where there is evidence to support an inference

that defendant’s alterations to the natural state of the land caused damage to

plaintiff’s property. In Currens, 138 Wn.2d at 859-60, summary judgment dismissal

was improper where plaintiff’s expert testified that defendant’s clear cutting

increased the flow of water onto plaintiff’s property by three to twelve times the

natural volume, leading to flooding. In DiBlasi v. City of Seattle, 136 Wn.2d 865,

870-871, 879, 969 P.2d 10 (1998), summary judgment dismissal was improper

where plaintiff’s expert testified that a landslide that damaged plaintiff’s property

would not have happened but for the concentration of surface water resulting from

the defendant’s construction activities. In Wilber Development Corp. v. Les

Rowland Construction, Inc., 83 Wn.2d 871, 873, 876, 523 P.2d 186 (1974),

overruled on other grounds by Phillips v. King County, 136 Wn.2d 946, 968 P.2d

871 (1998), summary judgment dismissal was improper where defendant’s

construction of storm drainage facilities resulted in water being “collected and

deposited upon [plaintiff’s] land in a different manner” than was natural and where

plaintiff’s expert testified that the change affected plaintiff’s ability to drain the land.

7 No. 87251-6-I/8

In Gaines, 66 Wn. App. at 724, summary judgment dismissal was appropriate

where plaintiffs failed to produce evidence that their property would not have

flooded but for the defendant’s road construction.

Washington courts have also ruled that the common enemy doctrine

precluded liability in cases where the defendant landowner’s actions altered the

rate at which water arrived at the plaintiff’s property but did not impact the natural

flow or increase the total volume of water. In Trigg v. Timmerman, 90 Wn. 678,

681-682, 156 P. 846 (1916), the court found that the defendant landowner was not

liable for flooding on plaintiff’s land where the defendant constructed ditches along

the land’s natural drainage route that hastened the flow of water onto plaintiff’s

property but “did not result in any greater quantity of water reaching [plaintiff’s] land

than would have reached it by nature.” In Wood v. City of Tacoma, 66 Wn. 266,

270, 119 P. 859 (1911), the court acknowledged that upslope construction by the

defendant that merely delayed the progress of water onto plaintiff’s land but did

not result in more water reaching plaintiff did not give rise to liability.

The Gueitses argue, and Waldal’s expert testimony suggests, that if the

WGCC drainage system had been properly maintained, it would have drawn off a

greater amount of the water from the 2020 storm, and the Gueitses’ home

potentially would not have flooded. But this assertion alone is insufficient to give

rise to an inference that actionable negligence by WGCC in fact caused the

Gueitses’ injury. Without evidence supporting an inference that WGCC’s

alterations to the land caused a flow of water onto the Gueitses’ property that would

8 No. 87251-6-I/9

not have happened had the land remained in its natural state, no exception to the

common enemy doctrine can apply.

The parties agree that WGCC naturally receives runoff from the surrounding

neighborhoods, and that the Gueits property was directly adjacent to the lowest

part of WGCC. The Gueitses do not present evidence that any amount of

stormwater would not have flowed onto the Gueitses’ property but for WGCC’s

drainage system, and the evidence does not support such an inference. Waldal’s

testimony is confined to the question of whether the Gueitses’ home would have

flooded if WGCC’s drainage system had been properly maintained and drawn off

more water, and does not include an opinion as to whether flooding would have

occurred if WGCC’s drainage system had not existed and the land had been left

in its natural state. The evidence in the record does not support an inference that

WGCC’s alteration to the flow of surface water caused the Gueitses’ home to flood.

Such an inference is required to support the Gueitses’ negligence claim, and so

summary judgment was appropriate.

The Gueitses additionally argue that WGCC was negligent in failing to warn

them that WGCC’s drainage system had become overwhelmed and that there was

a risk of flooding. This, like the Gueitses’ claim regarding WGCC’s maintenance

of its drainage system, is a negligence claim related to damage caused by surface

water. Thus, the common enemy doctrine bars liability unless an exception is met.

For the same reasons articulated above, no such exception applies, and the

Gueitses’ “failure to warn” claim fails.

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C

The Gueitses also allege WGCC’s conduct constituted a nuisance under

RCW 7.48.010 and 7.48.120. Where alleged nuisance is the result of the

defendant’s alleged negligent conduct, rules of negligence apply. Atherton Condo.

Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 527-28, 799

P.2d 250 (1990). Because the Gueitses have not established that an exception to

the common enemy doctrine applies to allow a negligence claim to proceed,

summary judgment dismissal was appropriate.

III

The trial court’s order dismissing the Gueitses’ claims against Whidbey Golf

and Country Club is affirmed.

WE CONCUR: