Daily Development for Tuesday, May 7, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

NUISANCE; LANDSLIDES: Neither city's failure to stabilize slope on land that it owned above landowner's property nor city's actions as a voluntary rescuer made city liable for damage to adjacent properties from landslide arising on city property.

Price v. City of Seattle, 24 P.3d 1098 (Wash. App. 2001).

Although the defendant in this case was the City of Seattle, the court analyzes the issues on the basis of nuisance law, treating the City as the same as any other landowner. It addresses the important question of whether a landowner has liability for failure to take reasonable steps to render safe natural conditions on the landowner's property that create dangers to other landowners.

After an unusually heavy rainfall, a landslide occurred on a bluff in Seattle and homeowners below the bluff were damaged as a result. The bluff had been identified earlier as a potential slide site, and in fact slides had occurred in the area before. The city had undertaken extensive analysis and some remediation, including the installation of some "watering wells." But the work was not complete when the extremely heavy rainstorms brought about the landslide now at issue. The trial court found that there was no evidence that the City's alterations on the upland property heightened the natural vulnerability of the bluff to groundwater pressure, and therefore granted summary judgment to the city because it concluded that the city did not owe any duty to the plaintiffs.

The homeowner plaintiffs appealed, based on three theories of liability.

First, the plaintiffs alleged that the City should have acted more quickly to install the watering wells and but for that installation their homes would not have been destroyed and this failure to install the watering walls was a violation of the "general duty of reasonable care." The Washington Court of Appeals noted this rule assigning a duty of care to upland owners would conform with the rule in California, but declined to follow California with respect to this issue, particularly noting that the city had not made any alterations to the bluff that increased the vulnerability to slides.

Second, the homeowners asserted that the city had assumed a duty toward them as "voluntary rescuer" when the city hired a construction company to remove a block of stone above one of the houses. The Court of Appeals noted that the City might be liable to damage for the residents' home it if was attempting to stop the bluff's collapse by means of that undertaking and by doing so either increased the risk or induced the homeowners to rely on the city's assistance. However, the court again found no evidence that the City had such an intent, express or implied, in working on the block.

Finally, the residents argued that there is an inverse condemnation and trespass because the City essentially was certain that a landslide was a substantially certain consequence and its failure to take preventative measures. The court viewed this essentially as a reiteration of the early arguments. If there was no duty as an upland landowner to remediate the situation that was naturally occurring, there could be no taking.

Comment 1: It's not surprising that the court takes the view that a City can't be liable whenever individuals find themselves in harms way as a consequence of naturally occurring conditions. The fundamental problem, however, when one is dealing with development of residential subdivisions, is that in essence the homeowners likely relied on the city to prevent developers from developing properties in areas that are endangered by such conditions. Their reliance, of course, stems from the fact that in many cases cities indeed did restrict development where such dangers existed. Thus the homeowners have a "lulled into false security"

argument that the Washington court, at least feels is insufficient to justify any alteration in the common law rule either as to landowners generally or as to cities.

Comment 2: Another problem, which may not have existed in this case, is identifying what constitutes a "natural condition." Land development in one area spawns an alteration conditions in other undeveloped areas in the vicinity. Geographers, geologists and hydrologists are becoming increasingly adept at identifying causal connections in these complex environments. At some point in time, the search for the "base line"

natural condition becomes meaningless, and perhaps at that point it is time to seek an alternate analysis for liability on these matters.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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