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ZUIBBEC 31 dirt 8¢ 38

|N THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GREGOR¥ REGELBRUGGE, as the )
Persona| Representative of the Estates )
of L. John Regefbrugge lll and l\/Eof|ey )
(Kris) Regelbrugge; RON SLAUSON,
lndividually and as the Persona|
Representative of the Estate of l_on E.
S|auson; KRlSTlNA HARRlS,
individually and as the Persona|
Representative of the Estate of
Stephen Harris and Theresa Harris;
l-EENR|ETTA A. OTTERSEN,
individual|y; DAVlS HARGRAVE and
RUTH HARGRAVE, individually and
through their marital community; and
|RVlN WOOD and JUD!`FH VVOOD,
|ndividualty and through their marital
community,

Appellants/Cross Respondents,
v.
STATE OF WASHENGTON; GRANDY
LAKE FOREST ASSOC|ATES, E.LC1
a Washington L§mited Liability
Company; and SNOHOIV|JSH COUNTY,

Respondent/Cross Appel|ants.

 

RYAN l\/l. PSZONKA as personal
representative of the ESTA`E`ES OF
SHANE RUTHVEN, KATlE RUTHVEN,
HUNTER RUTHVEN, and VVYATT
RUTHVEN; Al\/W S. THOMPSON as
personal representative of the
ESTATES OF LEWES VANDENBURG
and JUDEE VANDENBERG; SONJA !Vl.)
REW as personal representative of the )
ESTATE OF GLOREA HALSTEAD; )
STEVEN L. HALSTEAD as personal )

-._/‘~._/VWVVVVVVVVVVVVVVVVVVV'~_/'-_/'~_/\_/\_/\_/\_/'-_/'~_/\_r\_/

NO. 76376-8-l
D|V|SlON ONE

PUBLISHED OPIN|ON

i_inked With No. 77787“4-|

FlE_ED: Decernber 31, 2018

NO. 76376-8~1 12 and NO. 77787-4-| /2

representative of the ESTATE OF
JERRY HALSTEAD; and JAN||E A.
l_ENNiCK as personal representative of
the ESTA`E`E OF Al\/|ANDA LENN|CK,

Appeliants,
v.
SNOHOM|SH COUNTY and
WASHINGTON STATE DEPARTIV|ENT
OF NATURAL RESOURCES,

Respondents.

 

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)
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§
TliV| WARD, individua|iy and as the )
personal representative of the estate of )
BRANDY WARD; GERAJ_D F. )
FARNES, individually and as the )
personal representative of )
ESTATES OF JUL!E FARNES and )
ADAM FARNES; DAYN BRUNNER )
and JASON BRUNNER, as personal )
representatives of the ESTATE OF )
SUMMER RAFFO; DEBORAl-E L.. )
DURNELL, §ndiv§dualiy and as the )
personai representative of the )
ESTATE OF 'FHOMAS P. DURNEE_L; )
MARALEE HALL, individuaily and as )
the personal representative of the )
ESTA`FE OF JOSEPH R. |VllE_LER; )
SETH JEFFERDS, individually and as )
the personal representative of the )
ESTATE OF Cl-iRlSTiNA ANNETTE )
JEFFERDS; BRENDA NEAL, )
individually and as the personal )
Representative of the ESTATE OF )
STEPHEN NEAL; !V|INDI PEAKE, )
individualiy and as the personal )
representative of the ESTATE OF )
lViARK GUSTAFSON; JONEEL!_E )
SP|LLERS, individualiy and as the )
ESTA'E'ES OF BlE_L¥ LEE SP!LLERS, )
KAVLEE B. SPlLLERS, BROOKE )
SP|LLERS, and JOVON MANGUAL; )

NO. 76376»8~1 / 3 and NO. 77787~4'| f 3

JONlELE_E SPELLERS as guardian of
JACOB SPEL!_ERS; and ABBEE
PEARSON, individually and as the
personat representative of the ESTATE
OF MICHAEE_ PEARSON,

Piaintiffs,
v.

SNOHOMlSl-l COUNTV; STATE OF
WASH|NGTON; and the GRANDY
LAKE FOREST ASSOClATES, LLC, a
Wasnington Limited Liabi|ity Cornpany,

Defendants.

RAND| LESTER, individually1 and as
Persona| Representative for the
Estate of DENVER HARR|S; ROB|N
YOUNGBLOOD, individually; and
MARK LAMBERT,

Appe|iants1
v.

SNOl-EOMESH COUNTY; STATE OF
WASHJNGTON, DEPARTMENT OF
NATURAL RESOURCES; and GRANDY)
LAKE FOREST ASSOC|ATES, F_LCl a )
Washington Lirnited Liabiiity Company, )

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Respondents. l

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BECKER, J. -- Tnese linked appeais Were brought by survivors of the 2014
Oso Landslide and representatives of those who died. `Fhey cha|ienge summary
judgment orders by which the trial court dismissed their tort claims against
Snohornish County. We conclude that the triai court reached the correct resuit.

lt is beyond question that appeilants suffered terrible losses, but their theories

NO. 76376-8-| /4 and No. 77787~4»| /4

and evidence do not establish a basis for holding the County liable for those
lossesl Accordingty, we affirm.
FACTS

The site ofthe Oso Landslide is a hii| alongside the l\torth i-`ork of the
Sti|iaguamish River. Landslides have occurred therefor decades in 1967, a
major slide destroyed cabins in the area and pushed the river channel southward
700 feet The river gradualiy moved back to the base of the hiil in later years.

The area was the subject of considerable research |n a 1999 report,
geoiogist Daniel l\/liller explained that the interaction between the river and the
“iandslide toe" caused erosion and instability. l\/ii||er said he “had no basis for
estimating the probable rate or timing of future landslide activity.” He said, “The
primary conciusion to be drawn is that mass wasting activity wii| persist for as
long as the river remains at the toe of the landslide." l\/iiiier’s report discussed
protection ot the toe as a means ot slope stabiiization, but noted concern about
the potential for another landslide that would overrun the diversion structure, as
occurred in the 1967 event l-ie described a modei that estimated “the volume
that could be mobilized in a |arge, catastrophic s|ump” as producing a debris
runout ot 880 feet1 comparable to the area affected in 1967. l\/lii|er explained that
this analysis did “not account for progressive faiiure that may occur as landsliding
alters slope geometry.” `i`he report included an illustration showing even iarger
volumes that "could be mobiiized by further destabilization," although i\/liiier

explained that such “resuits are largety speculative." in this ii|ustration, according

NO. 76376-8-i / 5 and NO. 77787-4-| f5

to iVli|ier’s report, the estimated volumes “increase by an order of magnitude.”
lViiiler’s report uitimately recommended diverting the river away from the toe:

Diversion of the mainstern wiil act both to stabilize the landslide (by

protecting the toe) and add storage area for sediment shed from

the landsiide, which will reduce delivery of sediment to the river.

The simpie analysis presented above suggests that the diversion

should be located to direct the channel course at least 900 teet, at

its farthest extent, from the current base of the landslide to

accommodate runout of iandslide debris

The Sti||aguamish Tribe of lndians, in collaboration with the United States
Army Corps of Engineers, commissioned additional reports on the iands|ide. |n a
report completed in 2000, engineer Tracy Drury proposed buiiding a “series of
revetrnents" that “wou!d eiiminate toe cutting of the stide and create setting ponds
for fine materials delivered to the mainstem from the muitiple streams that drain
the slide area.” in another report, compieted in 2001, Drury cited Nlilier’s
estimation that the current runout potential of the siide was around 900 feet. The
2001 report explained that slides harmed the river ecosystern and posed “a
significant risk to human iives and private property.” The neighborhood of
Steelhead i-iaven, home to rnany fui|-time residents lay directly across the river.
The report identified various options for mitigating the slide risks The
recommended option was construction ot “Wood revetments” on state-owned
iand between the river and the base of the hiii. 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 cali this

project the “revetrnent" or “cribwail.”

NO. 76376-8-1 16 and NO. 77787~4-| /6

|n February 2004, the County enacted an ordinance adopting a
“Comprehensive Flood Hazard l\/lanagement Pian” concerning the Stiliaguamish
River. Counties are granted authority to enact flood hazard management pians
by RCW 86.12.200. The County’s plan stated “reoommended actions.” These
included, “impiement Steeihead l-laven Landslide stabiiization project to meet
public safety goais.” The pian expiained that there were proposals under
development by triba|, state, and federal agencies with estimated costs
“between t miilion to 10 miliion 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
environmentai restoration goals of this plan.” The plan stated, “As part of this
project, the landstide and flood risk to residents can also be reduced or
eiiminated.”

The County and the Tribe were co~coordinators ot the “Stiliaguarnish River
Saimon Recovery Lead Entity," and they had been for several years at the time
the cribwall project was conceptua|ized. A state pubiication describes lead
entities as "oommunity~based groups that develop salmon habitat restoration
strategies and recruit organizations to impiement projects.” i_ead entities are
required by statute to “estabtish a committee that consists ot representative
interests of counties, cities, conservation districts1 tribes, environmental groupsI
business interests iandowners, citizensl volunteer groups, regional fish

enhancement groups, and other habitat interests." RCVV 77.85.050(1)(b). “The

NO. 76376-8~| l 7 and NO. 77787-4~i / 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 Stiilaguamish River Salmon
Recovery Lead Entity included the Stiltaguamish lmp|ementation Review
Committee, established in 1990. Each yearr 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 cribwail 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 .lanuary 2006, before construction of the cribwall began, another large
slide occurred at the site. The runout was approximately 700 feet. Debris
blocked the river channei. The Snohomish County Department of Emergency
l\/lanagement Worked to protect Steelhead i-laven 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

“l'he Snohomish County Department ot Public Works decided to hold a
community meeting in l\/larch 2006, one month after the slide, to apprise
Steelhead l-iaven residents of future flood and landslide risks One ciaim
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.

No. 76376~8»| / 8 and No. 77787-4-| / 8

The cribwall was constructed later in 2006 after the Tribe obtained
permitting required by the State Department of Fish and V\Iild|ife.

`ihe catastrophic Oso Landslide occurred eight years later, on March 22,
2014. it was a clear day during a period of heavy rainfall. 'l`he slide was
unprecedented in its size and mobility. Debris quickly traveled 3,000 feet,
burying Steeihead 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 iandsiides in United States history

Lawsuits followed Survivors of the siide 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 triai. 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 cribwal|, 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 siide risks Against the

County, the plaintiffs asserted negligence and strict liability claims based

No. 76376-8-l / 9 and NO. 77787-4-i l 9

primarily on the 2004 flood pian, the 2006 community meeting, and the
construction of the cribwai|.

in a series of summaryjudgment orders issued in 2015 and 2016, the trial
court dismissed virtually all claims of County liability. The court faciiitated
immediate appeal by entering judgments under CR 54(b) on September 14 and
September 23, 2036.

The Pszonka, VVard, and i_ester groups (hereinafter “Pszonka")
challenged orders dismissing claims against the County in a motion for review
filed in the Supreme Court. l\/leanwhiie, the plaintiffs’ c!aims against the State
and the timber company were resolved by settiements. The Supreme Court
transferred the Pszonka appeal to this court VVe linked it with an appeal fiied in
this court by the Regelbrugge group. We address both appeals in this opinion

issues resolved on summaryjudgment are reviewed de novo. Osborn v.
Mason County, 157 V\r'n.2d l8, 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 oniy if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. CR 56(0); Foisom v.
Burger King, i35 VVn.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 M, 55 VVn.2d at 681.

“Summary judgment procedure is not a catch penny contrivance to

take unwary litigants into its tolls and deprive them of a triai, it is a

liberai measure, liberaily designed for arriving at the truth. its
purpose is not to cut litigants off from their right of triai by jury if they

NO. 76376-8-l / 10 and No. 77787~4-| l lO

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 VVn.2d at 683, quoting Whitaker v. Coleman, 115 F.2d 305, 307 (5th
Cir. 1940). Appiying this standard, we conclude Snohomish County is entitled to

judgment as a matter of law.

ANAi_YSlS
1. The Countv’s adoption of the flood control plan is immunized

Pszonka challenges the trial court’s dismissal of claims that were based
on the “Flood l-iazard l\/ianagement Plan" adopted by the County in 2004. The
plan identified the cribwall project as a means of achieving certain environmentai
and safety objectives Pszonka contends that the County undertook a “legisiative
duty to warn” and that “the County's duty to protect Steelhead Haven through
construction of a cribwa|l, 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 pian were barred
by former RCW 86.12.037 (2004). The statute precludes suits against counties
for acts or omissions “relating to the improvement protectionl 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 otficers or employees for any noncontractual acts or

omissions of such county or counties its or their agents officers or

employees reiating to the improvement protection, regulation and

controi for flood prevention and navigation purposes of any river or

its tributaries and the beds banks and waters thereof:
PROVEDED, That nothing contained in this section shall apply to or

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No. 76376*8-| l 11 and No. 77787*4»| l 11

affect any action now pending or begun prior to the passage of this
sectionm

This statute was enacted “to shield counties from iiability for their efforts to
protect the pubiic from flood damage.” Paulson v. Pierce Countv, 99 VVn.2d 645,
649, 664 P.2d 1202 (1983), citing Short v. Pierce County, 94 VVash. 421, 430~31,
78 P.2d 610 (1938).

`l'he 2004 tiood plan is rightly and fairly characterized as a flood control
effort covered by the statute The title was “Comprehensive F|ood i-|azard
i\/lanagement Plan." it was enacted under the authority of chapter 86.12 RCW-
Fiood Control by Counties 'l'he ordinance adopting the plan states “floods on
the Stii|aguamish River fioodpiain have historically presented serious threats to
pubiic health and safety and have caused millions of dollars worth of damage to
public and private properties.” lt also states “the Snohomish County Department
of Pubiic Works has developed a Stillaguamish River Comprehensive Flood
Hazard Nlanagement 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 feasibie.” 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 Pian had nothing to do

 

1 VVe quote the version of the statute in effect in 2004, when the County adopted
the flood pian. lt has since been amended

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NO. 76376~8-i l 12 and No. 77787-4-| l 12

with flooding in Pszoni<a’s view, the proiect pertained solely to landslide
prevention and protection of fish habitat

The immunity statute requires that an act relate to flood control. lt does
not require that flood control be the exclusive purpose lt is appropriate to
describe the County’s adoption of the cribwali project in the flood plan as an act
“reiating to” flood control. The plan specifically stated that the "siide stabilization
project” (i.e,, the cribwaii) would reduce or eliminate the “fiood risk to residents"
Slide and flood risks are closely related The plan explained for instance that
slides could “biock the current flow of the river forcing the river into a new
pathway, which would again threaten life and property on the south bank.” 'l'his
is exactly what happened in 2006_a landslide caused a flood emergency in
Steethead l-iaven.

Pszonka argues that immunity under the statute applies “oniy 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 resuiting from a |andslide, not a
flood, the immunity statute does not appiy. VVe disagree The immunity statute
does not contain such a limitation

\Ne conclude that the County’s adoption of the flood pian 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 property dismissed

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NO. 76376~8-| / 13 and NO. 77787~4-} l 13

2. The County’s actions related to constructing the cribwali are
immunized

Appei|ants maintain that a jury should decide whether the County is liable
for its involvement in the construction of the cribwal|. They contend that the
cribwaii project was not property evaluated that it was not an appropriate
landslide remediation measure, and that it contributed to the devastation of the
siide.

The County defends against these claims by arguing that its involvement
in the cribwai| project was minimal and in addition that its actions are immunized
under RCW 36.70.982 because the cribwai| was a “fish enhancement project.”

Whether the County’s involvement in building the cribwali 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 projectl Borden v. City of
_C_)_|_yr_n_p_i_a_, 113 Wn. App. 359, 369-70, 53 P.3d 1020 (2002), MM, 149
VVn.2d 1021, 72 P.3d 761 (2003), citing Phil|ips v. King Countv, 136 V\ln.2d 946,
967-68, 968 F.2d 871 (1998). There is evidence that the Sti||aguamish
|mpiementation Review Committee-a group co»ied by the County--heiped the
Tribe obtain funding for the cribwaii and evaluated designs for the project, and
that County empioyees were invoived in the construction process

But even if the County was sufficiently invoived, it is immune from suit for
that involvement A county is “not iiable for adverse impacts resuiting from a fish
enhancement project that meets the criteria of RCW 77.55.181 and has been
permitted by the department of fish and wi|diife." RCW 36.70.982. The cribwai|

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is a fish enhancement project And it is undisputed that the Tribe received
permitting for the cribwail under the streamlined process avaiiab|e through RCW
77.55.181 .2

Appel|ants ciaim the project did not meet the criteria set forth in RCVV
77.55.181(1)(b). That section requires the state to develop "size or scale
threshoid 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.i81(1)(b). When the permit for the cribwai| was issued in 2006, the
department had not yet adopted the size and scale threshold tests required by
the statute Rege|brugge contends that the iarge cribwail--measuring 1,500 feet
|ong, 30 feet in width, and 15 feet high»-was therefore not properly evaluated
with regard to size and safety. Pszonka argues, reiated|y, that the permitting
process avaiiable through chapter 77.55 RCW was inappropriate for large-scale
projects

These arguments do not show noncompiiance with RCW 77.55.181(1)(b).
Even if no size or scale tests were in place at the time the Tribe appiied for a
permit, the department reviewed the cribwali as a fish habitat enhancement

project and approved it. The approval of the permit indicates that, in the

 

2 Formeriy RCW 77.55.290 (2004), recodified as RCW 77.55.181, LAvvs oF 2005,
ch. 146, § 1001.

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NO. 76376-8-| l 15 and No. 77787-4-i l 15

departments view, the scale of the cribwail project did not make it potentially
threatening to pubiic heaith or safety

Another criterion for eiigibi|ity 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, inciuding iimited 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) Piacement of woody debris or other instream structures that

benefit naturaiiy reproducing fish stocks.
RCW 77.55.181(1)(a). The Tribe’s permit appiication 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.” Rege|brugge contends
that the project was nonetheless ineligibie 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 restorationl and also serves some other purpose such as
landslide prevention.

Appeilants also contend that the iegisiature, in crafting RCW 36.70.982,
intended to protect counties only against claims arising from their inability to
issue permits for fish habitat enhancement projectsl 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 simpiy gives

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NO. 76376~8»¥ / 16 and NO. 77787~4~| / 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. Reqence B|ueShieid. 181 Wn.2d 691, 6961 335 P.3d 416
(2014). V\Ie conclude that the immunity provided by RCW 36.70.982 applies to

plaintiffs’ ciaims that are based on construction of the cribwail.
3. The strict liabilitv claims are untenable

Regeibrugge asks for reinstatement of two strict liability claims brought
against the County in its role as a proponent of the cribwai| project and as a
iandowner, “because it violated riparian rights and created hazardous
conditions.” These claims are based on Regelbrugge’s assertion that during
construction of the cribwali, the Tribe removed trees from property owned by the
County along the river. According to Rege|brugge1 the clear-cutting on the
property caused a change in the river’s course that contributed to the landsiide.

`i'he County disputes that it owned the property, an issue we need not
resolve Even assuming the County is the owner, Rege|brugge’s strict liability
ciaims are untenabie.

Rege|brugge invokes riparian |aW. “Riparian rights, Where they exist,
derive from the ownership of land contiguous to or traversed by a watercourse_"
Deb’t of Eco|ociv v. Abbott. 103 VVn.2d 686, 689, 694 F.2d 1071 (1985). These
rights of the owner include the right to have water flow past the owner’s property

in its naturai condition Richert v. Tacoma Power Uti|itv, 179 Wn. App. 694, 703,

 

3i9 P.3d 382, review denied 181 wn.zd 1021, 337 P.3d 882 (2014)). _s_g_@ app

.iudson v. i'ide Water Lumber Co., 51 Wash. 164, 169, 98 P. 377 (t908) (riparian

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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 naturai way by
their iands. This is a right inseparab|y annexed to the soii itse|f"). “A riparian
owner may not divert water in a natural watercourse without facing |iabiiity for
damages caused to other riparian owners.” _R_i_c_:_herj, 179 VVn. App. at 703, citing
Fitzpatrick v. Okanodan Countv, 169 Wn.2d 598, 608, 238 P.3d 1129 (2010).

Regeibrugge contends that because the County allowed the Tribe to
remove trees on its iand, the County is liable for diverting the river and thereby
contributing to the plaintiffs’ damages This theory does not depend on the
piaintiffs having riparian rights Rather, Regeibrugge 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 V\Ie decline to
extend riparian law in this manner. The iaw is ciear that riparian rights derive
from property ownership A_bbg§, 103 Wn.2d 686. Regeibrugge asserts in a
footnote that four piaintiffs “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 reiief.

Regeibrugge also contends the County is liable because the clear-cutting
created a hazardous condition about which the County knew or should have
known. Regeibrugge cites Albin v. Nationa| Bank of Commerce, 60 Wn.2d 745,
375 P.2d 487 (1962) and Price v. City of Seatt|e, 106 Wn. App. 647, 24 P.3d

t098, review denied, 145 Wn.2d i011i 37 P.3d 291 (2001). Those cases show

17

NO. 76376»8~i l 18 and NO. 77787-4-| f 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; E__r_i_c_:_g, 106 VVn. App. at 656. Rege|brugge argues that the
County had "actual knowledge of the cribwall" and that the record contains
“ampie evidence of what the County did to increase the risk of the Oso
Landslide.” Regeibrugge has not shown, however, that the County had actuai or
constructive knowledge that the Tribe’s removai of the trees created a hazardous
condition

ln any event1 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 `fhere is no dispute that the Tribe
removed the trees in connection with construction of the cribwa|i. The Tribe’s
permit application explains that trees “currently located between the river and the
landsiide wiii be cieared and stockpiled for use in the cribwail structures."
Because the cribwall was a fish enhancement protect, the immunity statute
precludes claims against the County based on the removai of trees used for the
cribwail.

in sum, the strict liability theories asserted by Regeibrugge 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 Countv iiabilitv.

The rescue doctrine is an exception to the traditional rule that there is no
duty to come to a stranger’s aid Fotsom, 135 Wn.2d at 674. “One who

undertakes albeit gratuitousiy, to render aid or to warn a person in danger is

18

NO. 76376-8-1 l 19 and NO. 77787-4-| / 19

required by our law to exercise reasonable care in his efforts, however,
commendable.” Brown v. l\/lacF’herson’sl inc.l 86 Wn.2d 293, 299, 545 F.2d 13
(1975). “lf 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." M, 86 Wn.2d at 299.

Appellants contend that at the community meeting heid by the County in
i\/larch 2006, the County undertook a duty to warn residents that they were in
danger of future landsiides. They argue that the County’s warning negligentiy
downpiayed the risk. They say that if the County had informed the attendees of
the full extent of the danger, a jury couid find that the attendees would have
shared that information with other residents and the community as a whoie would
have “demanded action by the County.” They contend the County’s
communications lu|ied 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 “wou|d have assessed
their risk if they had accurate information from the County.”

Without deciding the issue we wiil assume that by holding the meeting,
the County undertook to warn the Steelhead Haven community about the danger
of future landslides and consequentiy had a duty to use reasonable care in doing
so. We conclude the appellants have not demonstrated that the County failed to
act with reasonabie care in a way that caused their damages

The record does not support the allegation that the County luiled residents

into beiieving they were safe and that there was no need to take action.

19

NO. 76376-8~i 120 and NO. 77787-4-l /20

Accordlng 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 l\/larch 11th,

2006 at 10:00 Al\/l 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 carne 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 ori~

going risks and to make appropriate choices on how to deal with

those risks

Thank you in advance and i hope to see you at the meeting
`i'he notice was signed by the County’s Director of Public Works

The meeting occurred as planned on l\/iarch 11, 2006. According to the
meeting outline one topic was “Landslide - geoiogy 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

heip residents make “decisions on their own, help to evaluate the risks." He

recalled teiling attendees that the landslide "was unpredictable and activity on the

20

NO. 76376-8-i /21 and No. 77787-4-l / 21

slide could be expected in the future As it had demonstrated in the past, it was
active intermittently and that activity was likeiy to continue.”

An individual who attended the meeting recalled hearing from dones “that
it was a landsiide prone area and that landslides could be expected in the future.”
This person said, “l cannot recali any speaker at the meeting making assurances
that there would not be any further fiooding or landslide risks in the Steeihead
Haven neighborhood." Another individual who attended the meeting recailed
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 iike a flood control district Or homeowner’s
association."

ln response to the County’s motion for summary judgment1 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 cribwail would prevent landslide
activity One of them testified “The meeting didn’t affect me much in any way
except l know some people later talked about getting flood insurance l don’t -» l
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 “l took away from
the presentations that the County had a game plan for dealing with the risk of
another slide/flood . . . l left the meeting With the understanding that the County

wanted us to know that they had looked at the reasons for the slide and fiood and

21

NO. 76376-8-| l 22 and NO. 77787-4~1 f 22

that . . . the plan they outlined would prevent that situation from ever being an
issue again." `i`he attendee said, “l felt safe living in Steeihead l-laven after the
March 11, 2006, meeting . . . They were building the cribwail so the river wouid
not erode the toe of the hillside l believed my family was safe." This evidence
shows what attendees felt and believed but it is not evidence of what the County
representatives actualiy 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 l\llil|er report--that a future iandslide could be an order of
magnitude larger than the previous one, as catastrophic and life~threatening as
the Oso slide that actually occurred on |Vlarch 22, 2014. donee had read the
1999 report in which iVlil|er mentioned the possibiiity of the large volumes of
debris that "could be mobiiized by further destabilization." According to Jones’s
deposition testimony, he did not talk about this portion of Nli|ler’s report at the
meeting because “in l\/liiler’s paper, he described what he was able to state as
being largely speculative quote/unquote.”

Jones recommended lVliller’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 voluminous 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-l /23 and NO. 77787»4-| /23

predict a scenario that lVliiler regarded as speculative l\/iiller himseif testified in
deposition that he did not anticipate a slide the size of the 2014 event and that he
was surprised by what occurred l-le testified that nothing in his 1999 report
warned of the risk of a landsiide "with a runoff that would go into the Steeihead
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 reiiance 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.” Foisom, 135 Wn.2d at 676 (emphasis added). “Even
where an offer to seek or render aid is impiicit and unspoken, a duty to make
good on the promise has been found by most courts if it is reasonably relied
gp_o_n_." §LQM, 86 Wn.2d at 301 (emphasis added).

M, the case on which the appellants primarily rely, is a ciose
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 P|aintiffs ai|eged
that avalanche expert Dr. Edward l.aChapelle warned a lVlr. Tonnon, an agent of
the Rea| Estate Division of the Department of Licensing, that the Yodeiin

development was in an area of high risk for avalanches. `l'onnon allegedly

23

NO. 76376-8-| / 24 and NO. 77787-4-i 124

“responded in a manner which ied Dr. LaChapeile justifiably to believe that the
division would deal with the matter and convey his warning to appellants.”
M, 86 Wn.2d at 298. 'l'he State did not pass on the warning Tonnon met
with Wi|liam lVlacPherson, a real estate broker associated with the developmentl
and led him “to erroneously believe that . . . no avalanche danger existed.”
M, 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 i\/lacPherson, and they were thus “unable to avoid the losses
they suffered when the avalanche that had been predicted actually occurred.”
M, 86 Wn.2d at 298-99. At the trial court ievel, 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 fonivard 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 M, 86 Wn.2d at 299-300.

in M, 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." M, 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. l_aChappel|e, who refrained from warning the plaintiffs as a
result of Tonnon’s promise that he would communicate the warning and by
il/lacPherson, who refrained from warning the plaintiffs because Tonnon told him

no avalanche danger existed

24

NO. 76376-8-| l 25 and NO. 77787~4»1 /25

l-lere, appellants claim the County’s duty to act arose because the
County’s negligent warning induced them to feel secure `fhey 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. `l`he
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 informationl
The County’s warnings of the danger of future slides did not make the situation of
the Steelhead l-iaven 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 “lf liability could so easily be
imposed for things unsaid at public safety meetings governmental entities would
cease holding meetings about 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 Countv 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-l l 26 and NO. 77787-4-i /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." REsrArEMENT (SEcoNr)) oF Tonrs § 302B (Arvi.
t.Avv 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. Parri|ia 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 ot the coming landslide The trial court correctly determined that the
affirmative act doctrine does not apply.

Rege|brugge 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.

VVE CONCURZ

B€cl<€ lQ,, ll .
<)

26

