Smith v. City of Kelso

112 Wash. App. 277
CourtCourt of Appeals of Washington
DecidedJune 21, 2002
DocketNo. 26447-1-II
StatusPublished
Cited by12 cases

This text of 112 Wash. App. 277 (Smith v. City of Kelso) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. City of Kelso, 112 Wash. App. 277 (Wash. Ct. App. 2002).

Opinion

Armstrong, J.

A group of homeowners sued the City of Kelso after a severe landslide damaged or destroyed their homes. The homeowners allege that the City negligently approved the plat and building permit applications for their subdivisions and homes. They argue that the City failed to enforce ordinances requiring it to order soil and geology studies, which likely would have revealed the potential for landslides. The City moved for summary judgment, which the trial court granted on some claims and denied on others. We accepted the parties’ cross motions for discretionary review and hold that the trial court should have dismissed all of the homeowners’ claims.

FACTS

After three years of unusually heavy rainfall, a severe landslide damaged or destroyed about 150 homes in Kelso, Washington in 1998. The homes were in five subdivisions known as Aldercrest Phases 1, 2, and 3, Greenwood Court,* 1 and Orchard Heights, known collectively as Aldercrest Hills. Many of the homeowners joined a class action lawsuit against the City of Kelso. They alleged that, during the 1970s, the City negligently approved the plats and building permits for their subdivisions.

The City moved for summary judgment, which the trial court granted or denied for each claim based on whether the homeowners had presented evidence that the City had [280]*280actual knowledge of slope instability when it approved each plat and building permit. The trial court focused on two pieces of evidence that show the City’s awareness of slope instability in Aldercrest Hills.

First, in 1973, geologist Allen Fiksdal prepared a report on slope stability in the Kelso area, including Aldercrest Hills. Fiksdal’s report rated slope stability in specific areas on a scale from 1 to 5. Class 1 was the most stable; Class 5 was the least stable. Fiksdal rated Aldercrest Phase 1 as Class 1, Aldercrest Phase 2 as Class 3, Aldercrest Phase 3 as Class 1, and Orchard Heights as Class 5. The first record of the City’s knowledge of the Fiksdal report appears in the minutes of a February 1975 city council meeting, which Paul Anstey, the city engineer, attended.

Second, in 1979, a subsequent city engineer, Greg Wilder, voiced concerns about slope stability. Wilder rejected plans for a road leading to the Aldercrest subdivisions based on concerns about a landslide hazard in Aldercrest Phase 3. He recommended that all building in Phase 3 stop. But the city council overrode his rejection of the road plans, and building in Phase 3 continued.

The trial court concluded that, after receiving Fiksdal’s report in 1975, the City had actual knowledge of slope instability for any areas that Fiksdal rated in Classes 3, 4, or 5. And the court concluded that, after city engineer Wilder’s statements in 1979, the City had actual knowledge of a landslide hazard in Phase 3. The court’s rulings can be summarized as follows:

Aldercrest Phase 1 (and Greenwood Court): The court granted summary judgment on the plat approval and building permit claims. Final plat approval was in 1973, and the City was unaware of slope instability even after February 1975 because Fiksdal rated Phase 1 as Class 1. The court denied summary judgment on a claim that the failure to address slope instability in Phase 2 worsened the landslide damage in Phase 1.
[281]*281Aldercrest Phase 2: The court denied summary judgment on the plat approval and building permit claims. Fiksdal rated Phase 2 as primarily Class 3, and the plat and building permits were approved after February 1975.
Aldercrest Phase 3: Even though Fiksdal rated Phase 3 as Class 1, city engineer Wilder expressed his awareness of slope instability in 1979. Thus, the court granted summary judgment for plat approval, which occurred before 1979, and denied summary judgment for building permits issued after 1979.
Orchard Heights: The court denied summary judgment for plat approval and building permits. Final plat approval was in 1976 and Fiksdal rated the area as Class 5.

We accepted each party’s petition for discretionary review of the summary judgment order.2

ANALYSIS

We review a summary judgment order de novo, engaging in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson, 98 Wn.2d at 437. The court construes the facts and all reasonable inferences in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.

To prove negligence, a plaintiff must show that the defendant (1) had a duty to the plaintiff, (2) breached that duty, and (3) proximately caused the plaintiff’s injuries by the breach. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Whether a duty exists is a question of law. Hertog, 138 Wn.2d at 275.

[282]*282 The City argues that the public duty doctrine shields it from liability. Under the public duty doctrine, the government is liable for a public official’s negligence only if the official breaches a duty owed to the injured person as an individual, rather than the public in general. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988). A public official owes a duty to an individual if (1) the official has a duty to enforce a statute, (2) the official has actual knowledge of a statutory violation, (3) the official fails to correct the violation, and (4) the plaintiff is within the class the statute protects. Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987). This is the “failure to enforce” exception to the public duty doctrine.

Courts construe the failure to enforce exception narrowly. Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 531, 799 P.2d 250 (1990). The statute must create a mandatory duty to take specific action to correct a violation. Forest v. State, 62 Wn. App. 363, 369, 814 P.2d 1181 (1991). Such a duty does not exist if the statute vests the public official with broad discretion. Forest, 62 Wn. App. at 370. Where the plaintiff alleges a breach of a duty to enforce a building code, the plaintiff must establish actual knowledge that the violation is an inherently dangerous condition. Taylor, 111 Wn.2d at 171-72.

A. Negligent Plat Approval

The homeowners rely on Kelso Municipal Code (KMC) 13.04.516 for their negligent plat approval claims. KMC 13.04.516 requires the city engineer to prepare development standards based on the topography, soil conditions, and geology of the plat area:

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Bluebook (online)
112 Wash. App. 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-kelso-washctapp-2002.