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|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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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