IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON GREGORY REGELBRUGGE, as the ) Personal Representative of the Estates ) No. 76376-8-1 of L. John Regelbrugge III and Molley ) (Kris) Regelbrugge; RON SLAUSON, ) DIVISION ONE Individually and as the Personal ) Representative of the Estate of Lon E. ) PUBLISHED OPINION Slauson; KRISTINA HARRIS, ) Individually and as the Personal ) Representative of the Estate of ) Stephen Harris and Theresa Harris; ) HENRIETTA A. OTTERSEN, ) Individually; DAVIS HARGRAVE and ) RUTH HARGRAVE, individually and ) c-* v)a, through their marital community; and ) cc • IRVIN WOOD and JUDITH WOOD, ) c=3 rtl Plc) Individually and through their marital ) community, ) . cia 3›- r-ra-or
Appellants/Cross Respondents, ) ) 9? 0 CY— v. ) G.> ) STATE OF WASHINGTON; GRANDY ) LAKE FOREST ASSOCIATES, LLC, ) a Washington Limited Liability ) Company; and SNOHOMISH COUNTY,) ) Respondent/Cross Appellants. ) ) ) RYAN M. PSZONKA as personal ) representative of the ESTATES OF ) Linked with No. 77787-4-1 SHANE RUTHVEN, KATIE RUTHVEN, ) HUNTER RUTHVEN, and VVYATT ) RUTHVEN; AMY S. THOMPSON as ) personal representative of the ) ESTATES OF LEWIS VANDENBURG ) and JUDEE VANDENBERG; SONJA M.) REW as personal representative of the ) ESTATE OF GLORIA HALSTEAD; ) FILED: December 31, 2018 STEVEN L. HALSTEAD as personal ) No. 76376-8-1/ 2 and No. 77787-4-1/ 2
representative of the ESTATE OF ) JERRY HALSTEAD; and JAMIE A. ) LENNICK as personal representative of ) the ESTATE OF AMANDA LENNICK, ) ) Appellants, ) ) v. ) ) SNOHOMISH COUNTY and ) WASHINGTON STATE DEPARTMENT) OF NATURAL RESOURCES, ) ) Respondents. ) ) ) TIM WARD, individually and as the ) personal representative of the estate of ) BRANDY WARD; GERALD F. FARNES, individually and as the ) personal representative of ) ESTATES OF JULIE FARNES and ) ADAM FARNES; DAYN BRUNNER ) and JASON BRUNNER, as personal ) representatives of the ESTATE OF ) SUMMER RAFFO; DEBORAH L. ) DURNELL, individually and as the ) personal representative of the ) ESTATE OF THOMAS P. DURNELL; ) MARALEE HALL, individually and as ) the personal representative of the ) ESTATE OF JOSEPH R. MILLER; ) SETH JEFFERDS, individually and as ) the personal representative of the ) ESTATE OF CHRISTINA ANNETTE ) JEFFERDS; BRENDA NEAL, ) Individually and as the personal ) Representative of the ESTATE OF ) STEPHEN NEAL; MINDI PEAKE, ) individually and as the personal ) representative of the ESTATE OF ) MARK GUSTAFSON; JONIELLE ) SPILLERS, individually and as the ) ESTATES OF BILLY LEE SPILLERS, ) KAYLEE B. SPILLERS, BROOKE ) SPILLERS, and JOVON MANGUAL; )
2 No. 76376-8-1/ 3 and No. 77787-4-1/ 3
JON IELLE SPILLERS as guardian of ) JACOB SPILLERS; and ABBIE ) PEARSON, individually and as the ) personal representative of the ESTATE ) OF MICHAEL PEARSON, ) ) Plaintiffs, ) ) v. ) ) SNOHOMISH COUNTY; STATE OF ) WASHINGTON; and the GRANDY ) LAKE FOREST ASSOCIATES, LLC, a ) Washington Limited Liability Company, ) ) Defendants. ) ) RANDI LESTER, individually, and as ) Personal Representative for the ) Estate of DENVER HARRIS; ROBIN ) YOUNGBLOOD, individually; and ) MARK LAMBERT, ) ) Appellants, ) ) v. ) ) SNOHOMISH COUNTY; STATE OF ) WASHINGTON, DEPARTMENT OF ) NATURAL RESOURCES; and GRANDY) LAKE FOREST ASSOCIATES, LLC, a ) Washington Limited Liability Company, ) ) Respondents. )
BECKER, J. -- These linked appeals were brought by survivors of the 2014
Oso Landslide and representatives of those who died. They challenge summary
judgment orders by which the trial court dismissed their tort claims against
Snohomish County. We conclude that the trial court reached the correct result.
It is beyond question that appellants suffered terrible losses, but their theories
3 No. 76376-8-1/4 and No. 77787-4-1/ 4
and evidence do not establish a basis for holding the County liable for those
losses. Accordingly, we affirm.
FACTS
The site of the Oso Landslide is a hill alongside the North Fork of the
Stillaguamish River. Landslides have occurred there for decades. In 1967, a
major slide destroyed cabins in the area and pushed the river channel southward
700 feet. The river gradually moved back to the base of the hill in later years.
The area was the subject of considerable research. In a 1999 report,
geologist Daniel Miller explained that the interaction between the river and the
"landslide toe" caused erosion and instability. Miller said he "had no basis for
estimating the probable rate or timing of future landslide activity." He said, "The
primary conclusion to be drawn is that mass wasting activity will persist for as
long as the river remains at the toe of the landslide." Miller's report discussed
protection of the toe as a means of slope stabilization, but noted concern about
the potential for another landslide that would overrun the diversion structure, as
occurred in the 1967 event. He described a model that estimated "the volume
that could be mobilized in a large, catastrophic slump" as producing a debris
runout of 880 feet, comparable to the area affected in 1967. Miller explained that
this analysis did "not account for progressive failure that may occur as landsliding
alters slope geometry." The report included an illustration showing even larger
volumes that "could be mobilized by further destabilization," although Miller
explained that such "results are largely speculative." In this illustration, according
4 No. 76376-8-1/ 5 and No. 77787-4-1/ 5
to Miller's report, the estimated volumes "increase by an order of magnitude."
Miller's report ultimately recommended diverting the river away from the toe:
Diversion of the mainstem will act both to stabilize the landslide (by protecting the toe) and add storage area for sediment shed from the landslide, which will reduce delivery of sediment to the river. The simple analysis presented above suggests that the diversion should be located to direct the channel course at least 900 feet, at its farthest extent, from the current base of the landslide to accommodate runoLit of landslide debris.
The Stillaguamish Tribe of Indians, in collaboration with the United States
Army Corps of Engineers, commissioned additional reports on the landslide. In a
report completed in 2000, engineer Tracy Drury proposed building a "series of
revetments" that "would eliminate toe cutting of the slide and create setting ponds
for fine materials delivered to the mainstem from the multiple streams that drain
the slide area." In another report, completed in 2001, Drury cited Miller's
estimation that the current runout potential of the slide was around 900 feet. The
2001 report explained that slides harmed the river ecosystem and posed "a
significant risk to human lives and private property." The neighborhood of
Steelhead Haven, home to many full-time residents, lay directly across the river.
The report identified various options for mitigating the slide risks. The
recommended option was construction of "wood revetments" on state-owned
land between the river and the base of the hill. According to the report, this
structure would reduce erosion of the landslide toe and capture sediment that
would otherwise travel downstream and destroy fish habitat. The Tribe decided
to undertake a project to carry out Drury's recommendation. The parties call this
project the "revetment" or "cribwall."
5 No. 76376-8-1/6 and No. 77787-4-1/6
In February 2004, the County enacted an ordinance adopting a
"Comprehensive Flood Hazard Management Plan" concerning the Stillaguamish
River. Counties are granted authority to enact flood hazard management plans
by RCW 86.12.200. The County's plan stated "recommended actions." These
included, "Implement Steelhead Haven Landslide stabilization project to meet
public safety goals." The plan explained that there were proposals under
development by tribal, state, and federal agencies, with estimated costs
"between 1 million to 10 million depending on which alternative is selected."
Another section recommended that the County should implement a stabilization
project through the authority of the Corps "that meets public safety and
environmental restoration goals of this plan." The plan stated, "As part of this
project, the landslide and flood risk to residents can also be reduced or
eliminated."
The County and the Tribe were co-coordinators of the "Stillaguamish River
Salmon Recovery Lead Entity," and they had been for several years at the time
the cribwall project was conceptualized. A state publication describes lead
entities as "community-based groups that develop salmon habitat restoration
strategies and recruit organizations to implement projects." Lead entities are
required by statute to "establish a committee that consists of representative
interests of counties, cities, conservation districts, tribes, environmental groups,
business interests,.landowners, citizens, volunteer groups, regional fish
enhancement groups, and other habitat interests." RCW 77.85.050(1)(b). "The
6 No. 76376-8-1/ 7 and No. 77787-4-1/ 7
purpose of the committee is to provide a citizen-based evaluation of the projects
proposed to promote salmon habitat." RCW 77.85.050(1)(b).
Consistent with these requirements, the Stillaguamish River Salmon
Recovery Lead Entity included the Stillaguamish Implementation Review
Committee, established in 1990. Each year, the Committee created a list of
prioritized projects to submit to the Salmon Recovery Funding Board, a body that
administers state and federal funds for salmon recovery efforts. The Committee
included the cribwall project on the list sent to the Board in 2004. The Board
agreed to grant funding for the project. The Tribe obtained additional funding
through other sources.
In January 2006, before construction of the cribwall began, another large
slide occurred at the site. The runout was approximately 700 feet. Debris
blocked the river channel. The Snohomish County Department of Emergency
Management worked to protect Steelhead Haven from flooding. This work
involved creating a new river channel to the south of the old channel. County
workers also placed sand bags near residences.
The Snohomish County Department of Public Works decided to hold a
community meeting in March 2006, one month after the slide, to apprise
Steelhead Haven residents of future flood and landslide risks. One claim
asserted by the plaintiffs is that the information provided at this meeting did not
alert them to the extent of the landslide danger, and instead it lulled them into a
false sense of security.
7 No. 76376-8-1/ 8 and No. 77787-4-1/8
The cribwall was constructed later in 2006 after the Tribe obtained
permitting required by the State Department of Fish and Wildlife.
The catastrophic Oso Landslide occurred eight years later, on March 22,
2014. It was a clear day during a period of heavy rainfall. The slide was
unprecedented in its size and mobility. Debris quickly traveled 3,000 feet,
burying Steelhead Haven and a nearby highway, SR 530. The slide killed 43
people, injured others, and destroyed the property in its path. It was among the
most destructive landslides in United States history.
Lawsuits followed. Survivors of the slide and personal representatives of
the estates of decedents sued Snohomish County, the State of Washington, and
a timber company that owned property above the landslide area. Four suits,
each involving numerous plaintiffs, were consolidated for trial. The plaintiffs
remained in four groups—"Regelbrugge,""Pszonka,""Ward," and "Lester"—each
with separate counsel. The gravamen of their complaints was that the
defendants contributed to and could have prevented the devastation of the slide.
They alleged that the timber company increased the slide risk by harvesting trees
in the landslide area. They asserted the State was negligent for granting permits
to the timber company and for allowing construction of the cribwall, which,
plaintiffs alleged, was faulty and not an appropriate remediation measure. Other
claims included that the State negligently investigated conditions after the 2006
slide and failed to warn community members about future slide risks. Against the
County, the plaintiffs asserted negligence and strict liability claims based
8 No. 76376-8-1/ 9 and No. 77787-4-1/ 9
primarily on the 2004 flood plan, the 2006 community meeting, and the
construction of the cribwall.
In a series of summary judgment orders issued in 2015 and 2016, the trial
court dismissed virtually all claims of County liability. The court facilitated
immediate appeal by entering judgments under CR 54(b) on September 14 and
September 23, 2016.
The Pszonka, Ward, and Lester groups (hereinafter "Pszonka")
challenged orders dismissing claims against the County in a motion for review
filed in the Supreme Court. Meanwhile, the plaintiffs' claims against the State
and the timber company were resolved by settlements. The Supreme Court
transferred the Pszonka appeal to this court. We linked it with an appeal filed in
this court by the Regelbrugge group. We address both appeals in this opinion.
Issues resolved on summary judgment are reviewed de novo. Osborn v.
Mason County, 157 Wn.2d 18, 22, 134 P.3d 197(2006). We consider the
evidence in the light most favorable to the party who opposed summary
judgment. We will affirm only if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. CR 56(c); Folsom v.
Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). The aim is to avoid a
useless trial. Preston v. Duncan, 55 Wn.2d 678, 681, 349 P.2d 605(1960). Trial
is not useless but absolutely necessary when there are issues for a jury to
resolve. Preston, 55 Wn.2d at 681.
"Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they
9 No. 76376-8-1/ 10 and No. 77787-4-1/ 10
really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists."
Preston, 55 Wn.2d at 683, quoting Whitaker v. Coleman, 115 F.2d 305, 307(5th
Cir. 1940). Applying this standard, we conclude Snohomish County is entitled to
judgment as a matter of law.
ANALYSIS
1. The County's adoption of the flood control plan is immunized.
Pszonka challenges the trial court's dismissal of claims that were based
on the "Flood Hazard Management Plan" adopted by the County in 2004. The
plan identified the cribwall project as a means of achieving certain environmental
and safety objectives. Pszonka contends that the County undertook a "legislative
duty to warn" and that "the County's duty to protect Steelhead Haven through
construction of a cribwall, necessarily included the duty to warn the community of
the danger it faced until such protective construction occurred."
The trial court determined that claims based on the flood plan were barred
by former RCW 86.12.037 (2004). The statute precludes suits against counties
for acts or omissions "relating to the improvement, protection, regulation and
control for flood prevention":
No action shall be brought or maintained against any county alone or when acting jointly with any other county under any law, its or their agents, officers or employees, for any noncontractual acts or omissions of such county or counties, its or their agents, officers or employees, relating to the improvement, protection, regulation and control for flood prevention and navigation purposes of any river or its tributaries and the beds, banks, and waters thereof: PROVIDED, That nothing contained in this section shall apply to or
10 No. 76376-8-1/ 11 and No. 77787-4-1/ 11
affect any action now pending or begun prior to the passage of this section.[11
This statute was enacted "to shield counties from liability for their efforts to
protect the public from flood damage." Paulson v. Pierce County, 99 Wn.2d 645,
649, 664 P.2d 1202(1983), citing Short v. Pierce County, 94 Wash. 421, 430-31,
78 P.2d 610 (1938).
The 2004 flood plan is rightly and fairly characterized as a flood control
effort covered by the statute. The title was "Comprehensive Flood Hazard
Management Plan." It was enacted under the authority of chapter 86.12 RCW—
Flood Control by Counties. The ordinance adopting the plan states, "floods on
the Stillaguamish River floodplain have historically presented serious threats to
public health and safety and have caused millions of dollars worth of damage to
public and private properties." It also states "the Snohomish County Department
of Public Works has developed a Stillaguamish River Comprehensive Flood
Hazard Management Plan, the purposes of which are to reduce the threat to
public health and safety, minimize property damage from floods, and reduce
costs of flood protection to the greatest extent feasible." The plan established
various "goals" for addressing "flood hazards."
Pszonka contends that a project is not entitled to immunity "unless the
actions are specifically and exclusively related to flood control." Pszonka asserts
that the version of the cribwall project in the 2004 Flood Plan had nothing to do
I We quote the version of the statute in effect in 2004, when the County adopted the flood plan. It has since been amended. 11 No. 76376-8-1/ 12 and No. 77787-4-1/ 12
with flooding. In Pszonka's view, the project pertained solely to landslide
prevention and protection Of fish habitat.
The immunity statute requires that an act relate to flood control. It does
not require that flood control be the exclusive purpose. It is appropriate to
describe the County's adoption of the cribwall project in the flood plan as an act
"relating to" flood control. The plan specifically stated that the "slide stabilization
project" (i.e., the cribwall) would reduce or eliminate the "flood risk to residents."
Slide and flood risks are closely related. The plan explained, for instance, that
slides could "block the current flow of the river forcing the river into a new
pathway, which would again threaten life and property on the south bank." This
is exactly what happened in 2006—a landslide caused a flood emergency in
Steelhead Haven.
Pszonka argues that immunity under the statute applies "only to the
construction and maintenance of flood control devices that cause damage to
private property during installation or later flood events." Pszonka contends that
because the plaintiffs in this case suffered losses resulting from a landslide, not a
flood, the immunity statute does not apply. We disagree. The immunity statute
does not contain such a limitation.
We conclude that the County's adoption of the flood plan and its selection
of the cribwall as a recommended action are acts immunized by former RCW
86.12.037(2004). The claims arising from these acts were properly dismissed.
12 No. 76376-8-1/ 13 and No. 77787-4-1/ 13
2. The County's actions related to constructing the cribwall are immunized.
Appellants maintain that a jury should decide whether the County is liable
for its involvement in the construction of the cribwall. They contend that the
cribwall project was not properly evaluated, that it was not an appropriate
landslide remediation measure, and that it contributed to the devastation of the
slide.
The County defends against these claims by arguing that its involvement
in the cribwall project was minimal and in addition that its actions are immunized
under RCW 36.70.982 because the cribwall was a "fish enhancement project."
Whether the County's involvement in building the cribwall was sufficient to
give rise to liability may be a factual issue. A government entity "undertakes to
act," and thereby has a duty to follow through with reasonable care, when the
entity "actively participates in designing and funding" a project. Borden v. City of
Olympia, 113 Wn. App. 359, 369-70, 53 P.3d 1020 (2002), review denied, 149
Wn.2d 1021, 72 P.3d 761 (2003), citing Phillips v. King County, 136 Wn.2d 946,
967-68, 968 P.2d 871 (1998). There is evidence that the Stillaguamish
Implementation Review Committee—a group co-led by the County—helped the
Tribe obtain funding for the cribwall and evaluated designs for the project, and
that County employees were involved in the construction process.
But even if the County was sufficiently involved, it is immune from suit for
that involvement. A county is "not liable for adverse impacts resulting from a fish
enhancement project that meets the criteria of RCW 77.55.181 and has been
permitted by the department of fish and wildlife." RCW 36.70.982. The cribwall
13 No. 76376-8-1/ 14 and No. 77787-4-1/ 14
is a fish enhancement project. And it is undisputed that the Tribe received
permitting for the cribwall under the streamlined process available through RCW
77.55.181.2
Appellants claim the project did not meet the criteria set forth in RCW
77.55.181(1)(b). That section requires the state to develop "size or scale
threshold tests" to determine if projects should be evaluated under the process
created by the statute. "A project proposal shall not be reviewed under the
process created in this section if the department determines that the scale of the
project raises concerns regarding public health and safety." RCW
77.55.181(1)(b). When the permit for the cribwall was issued in 2006, the
department had not yet adopted the size and scale threshold tests required by
the statute. Regelbrugge contends that the large cribwall—measuring 1,500 feet
long, 30 feet in width, and 15 feet high—was therefore not properly evaluated
with regard to size and safety. Pszonka argues, relatedly, that the permitting
process available through chapter 77.55 RCW was inappropriate for large-scale
projects.
These arguments do not show noncompliance with RCW 77.55.181(1)(b).
Even if no size or scale tests were in place at the time the Tribe applied for a
permit, the department reviewed the cribwall as a fish habitat enhancement
project and approved it. The approval of the permit indicates that, in the
2Formerly RCW 77.55.290 (2004), recodified as RCW 77.55.181, LAWS OF 2005, ch. 146,§ 1001. 14 No. 76376-8-1/15 and No. 77787-4-1/ 15
department's view, the scale of the cribwall project did not make it potentially
threatening to public health or safety.
Another criterion for eligibility for the streamline permit process is that a
project must be designed to accomplish one or more of the tasks enumerated in
the statute:
(i) Elimination of human-made or caused fish passage barriers. . .; (ii) Restoration of an eroded or unstable stream bank employing the principle of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water; or (iii) Placement of woody debris or other instream structures that benefit naturally reproducing fish stocks.
RCW 77.55.181(1)(a). The Tribe's permit application stated that the cribwall
project was aimed at restoring "an eroded or unstable stream bank using
bioengineering techniques" and placing "woody debris or other in-stream
structures that benefit naturally reproducing fish stocks." Regelbrugge contends
that the project was nonetheless ineligible for permitting because another
purpose of the cribwall was landslide remediation. But the statute does not
foreclose eligibility for a project that accomplishes one of the identified tasks,
such as fish habitat restoration, and also serves some other purpose, such as
landslide prevention.
Appellants also contend that the legislature, in crafting RCVV 36.70.982,
intended to protect counties only against claims arising from their inability to
issue permits for fish habitat enhancement projects. RCW 77.55.181(4) removes
their discretion to do so, reserving this authority to the state. This argument tries
to read into the statute an intention not found there. The statute simply gives
15 No. 76376-8-1/ 16 and No. 77787-4-1/ 16
immunity for "adverse impacts resulting from a fish enhancement project." RCW
36.70.982. Because the statute's meaning is clear based on its text, our inquiry
is at an end. O.S.T. v. Regence BlueShield, 181 Wn.2d 691, 696, 335 P.3d 416
(2014). We conclude that the immunity provided by RCW 36.70.982 applies to
plaintiffs' claims that are based on construction of the cribwall.
3. The strict liability claims are untenable.
Regelbrugge asks for reinstatement of two strict liability claims brought
against the County in its role as a proponent of the cribwall project and as a
landowner,"because it violated riparian rights and created hazardous
conditions." These claims are based on Regelbrugge's assertion that during
construction of the cribwall, the Tribe removed trees from property owned by the
County along the river. According to Regelbrugge, the clear-cutting on the
property caused a change in the river's course that contributed to the landslide.
The County disputes that it owned the property, an issue we need not
resolve. Even assuming the County is the owner, Regelbrugge's strict liability
claims are untenable.
Regelbrugge invokes riparian law. "Riparian rights, where they exist,
derive from the ownership of land contiguous to or traversed by a watercourse."
Dep't of Ecology v. Abbott, 103 Wn.2d 686, 689, 694 P.2d 1071 (1985). These
rights of the owner include the right to have water flow past the owner's property
in its natural condition. Richert v. Tacoma Power Utility, 179 Wn. App. 694, 703,
319 P.3d 882, review denied, 181 Wn.2d 1021, 337 P.3d 882 (2014)). See also
Judson v. Tide Water Lumber Co., 51 Wash. 164, 169, 98 P. 377(1908)(riparian
16 No. 76376-8-1/17 and No. 77787-4-1/17
proprietors on a river "have the right to prevent the obstruction of the flow or the
diversion of its waters, and to have the same continue to flow in a natural way by
their lands. This is a right inseparably annexed to the soil itself"). "A riparian
owner may not divert water in a natural watercourse without facing liability for
damages caused to other riparian owners." Richert, 179 Wn. App. at 703, citing
Fitzpatrick v. Okanogan County, 169 Wn.2d 598, 608, 238 P.3d 1129(2010).
Regelbrugge contends that because the County allowed the Tribe to
remove trees on its land, the County is liable for diverting the river and thereby
contributing to the plaintiffs' damages. This theory does not depend on the
plaintiffs having riparian rights. Rather, Regelbrugge contends that riparian law
creates a right to recover personal injury damages caused by diversion of a river
regardless of whether the plaintiffs are riparian landowners. We decline to
extend riparian law in this manner. The law is clear that riparian rights derive
from property ownership. Abbott, 103 Wn.2d 686. Regelbrugge asserts, in a
footnote, that four plaintiffs "had property immediately adjacent to the river." But
Regelbrugge does not point to evidence sufficient to prove that these plaintiffs
were riparian owners, nor does Regelbrugge argue that their ownership status is
the reason they are entitled to relief.
Regelbrugge also contends the County is liable because the clear-cutting
created a hazardous condition about which the County knew or should have
known. Regelbrugge cites Albin v. National Bank of Commerce,60 Wn.2d 745,
375 P.2d 487(1962) and Price v. City of Seattle, 106 Wn. App. 647, 24 P.3d
1098, review denied, 145 Wn.2d 1011,37 P.3d 291 (2001). Those cases show
17 No. 76376-8-1/ 18 and No. 77787-4-1/ 18
that a landowner may be liable for damage caused by a dangerous condition on
the land when the owner knew or should have known about the hazard. Albin
60 Wn.2d at 752; Price, 106 Wn. App. at 656. Regelbrugge argues that the
County had "actual knowledge of the cribwall" and that the record contains
"ample evidence of what the County did to increase the risk of the Oso
Landslide." Regelbrugge has not shown, however, that the County had actual or
constructive knowledge that the Tribe's removal of the trees created a hazardous
condition.
In any event, there is another reason to dismiss claims based on the clear-
cutting: they are barred by RCW 36.70.982, the statute conferring immunity for
adverse effects of fish enhancement projects. There is no dispute that the Tribe
removed the trees in connection with construction of the cribwall. The Tribe's
permit application explains that trees "currently located between the river and the
landslide will be cleared and stockpiled for use in the cribwall structures."
Because the cribwall was a fish enhancement project, the immunity statute
precludes claims against the County based on the removal of trees used for the
cribwall.
In sum,the strict liability theories asserted by Regelbrugge do not provide
a basis on which reasonable jurors could render a verdict in their favor.
4. The rescue doctrine does not provide a basis for County liability.
The rescue doctrine is an exception to the traditional rule that there is no
duty to come to a stranger's aid. Folsom, 135 Wn.2d at 674. "One who
undertakes, albeit gratuitously, to render aid or to warn a person in danger is
18 No. 76376-8-1/ 19 and No. 77787-4-1/ 19
required by our law to exercise reasonable care in his efforts, however,
commendable." Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13
(1975). "If a rescuer fails to exercise such care and consequently increases the
risk of harm to those he is trying to assist, he is liable for any physical damages
he causes." Brown, 86 Wn.2d at 299.
Appellants contend that at the community meeting held by the County in
March 2006, the County undertook a duty to warn residents that they were in
danger of future landslides. They argue that the County's warning negligently
downplayed the risk. They say that if the County had informed the attendees of
the full extent of the danger, a jury could find that the attendees would have
shared that information with other residents and the community as a whole would
have "demanded action by the County." They contend the County's
communications lulled those who attended the meeting into believing they were
safe and that there was no need to "galvanize the Steelhead Haven community
into action." They say that everyone in the community "would have assessed
their risk if they had accurate information from the County."
Without deciding the issue, we will assume that by holding the meeting,
the County undertook to warn the Steelhead Haven community about the danger
of future landslides and consequently had a duty to use reasonable care indoing
so. We conclude the appellants have not demonstrated that the County failed to
act with reasonable care in a way that caused their damages.
The record does not support the allegation that the County lulled residents
into believing they were safe and that there was no need to take action.
19 No. 76376-8-1/ 20 and No. 77787-4-1/ 20
According to the meeting notice, the very purpose of the event was to "inform the
community about current and future risks at the site" and to stir the community to
"assess the on-going risks and to make appropriate choices on how to deal with
those risks":
Dear Landowner,
Snohomish County will hold a community meeting on March 11th, 2006 at 10:00 AM at the Oso Fire Station to discuss some of the short term and long term risks to the area associated with the recent slide and to facilitate the community planning to address these issues.
The intent of this meeting is to inform the community about current and future risks at the site, such as additional land slides, flooding and erosion.
This was an extraordinary event and many agencies came together in a very short amount of time to clear a path for the river once it was blocked. It is now time for the community to assess the on- going risks and to make appropriate choices on how to deal with those risks.
Thank you in advance and 1 hope to see you at the meeting.
The notice was signed by the County's Director of Public Works.
The meeting occurred as planned on March 11, 2006. According to the
meeting outline, one topic was "Landslide - geology and future risks." The
speaker on this topic was County geologist Jeffrey Jones. According to Jones's
deposition testimony, he gave a presentation on the slide's history and geology
and showed a geologic map of the area. Jones testified that his intent was to
help residents make "decisions on their own, help to evaluate the risks." He
recalled telling attendees that the landslide "was unpredictable and activity on the
20 No. 76376-8-1/ 21 and No. 77787-4-1/ 21
slide could be expected in the future. As it had demonstrated in the past, it was
active intermittently and that activity was likely to continue."
An individual who attended the meeting recalled hearing from Jones "that
it was a landslide prone area and that landslides could be expected in the future."
This person said, "I cannot recall any speaker at the meeting making assurances
that there would not be any further flooding or landslide risks in the Steelhead
Haven neighborhood." Another individual who attended the meeting recalled
hearing "that the community could not expect the County and Army Corps of
Engineers to come to the rescue in the future. They recommended that we get
organized and form something like a flood control district or homeowner's
association."
In response to the County's motion for summary judgment, the plaintiffs
introduced testimony from other individuals who attended the 2006 meeting.
They said that the cribwall project, which was discussed at the meeting, made
them feel safer and that they believed the cribwall would prevent landslide
activity. One of them testified, "The meeting didn't affect me much in any way
except I know some people later talked about getting flood insurance. I don't -- I
don't recall anything but discussion about flooding, possible flooding." Another
testified that she walked away from the meeting believing that the County "had
everything under control." Another attendee similarly stated, "I took away from
the presentations that the County had a game plan for dealing with the risk of
another slide/flood. . .. I left the meeting with the understanding that the County
wanted us to know that they had looked at the reasons for the slide and flood and
21 No. 76376-8-1/ 22 and No. 77787-4-1/ 22
that. .. the plan they outlined would prevent that situation from ever being an
issue again." The attendee said, "I felt safe living in Steelhead Haven after the
March 11, 2006, meeting. . . . They were building the cribwall so the river would
not erode the toe of the hillside. I believed my family was safe." This evidence
shows what attendees felt and believed, but it is not evidence of what the County
representatives actually said. No one recalled hearing County representatives
say that the risk of danger from future slides was minimal or that the cribwall was
a guarantee against a catastrophic event.
Appellants contend the discussion of future risks was negligent because
the County's speakers did not specifically discuss the catastrophic possibility
identified in the 1999 Miller report—that a future landslide could be an order of
magnitude larger than the previous one, as catastrophic and life-threatening as
the Oso slide that actually occurred on March 22, 2014. Jones had read the
1999 report in which Miller mentioned the possibility of the large volumes of
debris that "could be mobilized by further destabilization." According to Jones's
deposition testimony, he did not talk about this portion of Miller's report at the
meeting because "in Miller's paper, he described what he was able to state as
being largely speculative, quote/unquote."
Jones recommended Miller's report to meeting attendees as an additional
resource and offered to make copies for anyone who followed up with him. No
one did. Given the voluminqus amount of technical information the County was
attempting to summarize and communicate to the meeting attendees in a limited
amount of time, the exercise of reasonable care did not require the County to
22 No. 76376-8-1/ 23 and No. 77787-4-1/ 23
predict a scenario that Miller regarded as speculative. Miller himself testified in
deposition that he did not anticipate a slide the size of the 2014 event and that he
was surprised by what occurred. He testified that nothing in his 1999 report
warned of the risk of a landslide "with a runoff that would go into the Steelhead
Haven neighborhood to the extent that the 2014 slide did."
And even if a jury were to find that the County in the exercise of
reasonable care should have highlighted the worst case scenario imaginable, the
question still remains whether the County's presentation induced reliance by
anyone who heard it or heard about it. "A person who voluntarily promises to
perform a service for another in need has a duty to exercise reasonable care
when the promise induces reliance and causes the promisee to refrain from
seeking help elsewhere." Folsom, 135 Wn.2d at 676 (emphasis added). "Even
where an offer to seek or render aid is implicit and unspoken, a duty to make
good on the promise has been found by most courts if it is reasonably relied
upon." Brown, 86 Wn.2d at 301 (emphasis added).
Brown, the case on which the appellants primarily rely, is a close
precedent factually because it involved application of the rescue doctrine to
claims of loss of life and property arising from an avalanche. The avalanche
occurred in January 1971 in a developed area of Stevens Pass known as
Yodelin. The State of Washington was among the defendants. Plaintiffs alleged
that avalanche expert Dr. Edward LaChapelle warned a Mr. Ton non, an agent of
the Real Estate Division of the Department of Licensing, that the Yodelin
development was in an area of high risk for avalanches. Tonnon allegedly
23 No. 76376-8-1/ 24 and No. 77787-4-1/ 24
"responded in a manner which led Dr. LaChapelle justifiably to believe that the
division would deal with the matter and convey his warning to appellants."
Brown, 86 Wn.2d at 298. The State did not pass on the warning. Tonnon met
with William MacPherson, a real estate broker associated with the development,
and led him "to erroneously believe that. . . no avalanche danger existed."
Brown, 86 Wn.2d at 298. The plaintiffs claimed that Tonnon's omissions
deprived them of the opportunity to be forewarned of their danger by either Dr.
LaChappelle or MacPherson, and they were thus "unable to avoid the losses
they suffered when the avalanche that.had been predicted actually occurred."
Brown, 86 Wn.2d at 298-99. At the trial court level, the State's motion to dismiss
under CR 12(b)(6) was granted, but the Supreme Court reversed and allowed the
claim against the State to go forward. The court concluded that the facts alleged
in the complaint stated a claim of negligence by malfeasance and nonfeasance,
both arising from the rescue doctrine. Brown, 86 Wn.2d at 299-300.
In Brown, the court characterized the rescue doctrine as arising from
"promises which induce reliance, causing the promisee to refrain from seeking
help elsewhere and thereby worsening his or her situation." Brown, 86 Wn.2d at
300. The court later referred to "reliance" as "the linchpin of the rescue doctrine."
Osborn, 157 Wn.2d at 25. In Brown, the State's duty to act arose from "reliance
by another"—by Dr. LaChappelle, who refrained from warning the plaintiffs as a
result of Tonnon's promise that he would communicate the warning, and by
MacPherson, who refrained from warning the plaintiffs because Tonnon told him
no avalanche danger existed.
24 No. 76376-8-1/ 25 and No. 77787-4-1/ 25
Here, appellants claim the County's duty to act arose because the
County's negligent warning induced them to feel secure. They say that as a
result of the County's presentation, those at the meeting refrained not only from
acting to protect themselves but also from acting to warn other community
members who were not in attendance.
Appellants have not shown that anything said at the meeting could
reasonably be interpreted as a promise that the cribwall would confine the debris
runout from future slides so that residents would be safe in their homes. The
County did not deprive the attendees of the opportunity to be informed about the
risks of landslides and in fact encouraged them to seek out more information.
The County's warnings of the danger of future slides did not make the situation of
the Steelhead Haven residents worse than if the County had not held a meeting.
Reliance is not established by asserting that residents would have
escaped the path of the landslide if the County had depicted the risk in the most
extreme terms possible. The County argues, "If liability could so easily be
imposed for things unsaid at public safety meetings, governmental entities would
cease holding meetings abgut natural and manmade disasters altogether,
leaving communities worse off." We agree and conclude that the appellants are
not entitled to relief under the rescue doctrine.
5. The County had no duty under the affirmative undertaking doctrine.
Pszonka invokes the affirmative act doctrine as another basis for
penalizing the County's alleged failure to provide an adequate warning. Under
that doctrine, an act or omission "may be negligent if the actor realizes or should
25 No. 76376-8-1/ 26 and No. 77787-4-1/ 26
realize that it involves an unreasonable risk of harm to another person through
the conduct of the other or a third person which is intended to cause harm, even
though such conduct is criminal." RESTATEMENT(SECOND)OF TORTS § 302B (Am.
LAW INST. 1965). For example, a bus driver's act of getting off the bus while keys
were in the ignition and a visibly erratic passenger was onboard created liability
to plaintiffs who were injured when the passenger took control of the bus and
drove it into their car. Parrilla v. King County, 138 Wn. App. 427, 430, 157 P.3d
879 (2007).
In this case, there has been no showing that the County's act of
distributing information at the community meeting exposed the residents to the
risk of the coming landslide. The trial court correctly determined that the
affirmative act doctrine does not apply.
Regelbrugge contends that the trial court erred by refusing to strike an "act
of God" defense asserted by the County. Our conclusion that the appellants
cannot proceed to trial against the County makes it unnecessary to address this
issue.
Affirmed.
WE CONCUR:
AL4Ve.44.-o1,