(concurring) — I concur with the majority’s determination the DiBlasis6 had no cause of action against the City of Seattle (the City) for negligence. I write separately to emphasize that the majority opinion does not change Washington’s long-standing surface water law.
The majority says, “We favor the reasoning adopted by Division Three in Burton [v. Douglas County, 14 Wn. App. 151, 539 P.2d 97 (1975)] and Division Two in Hoover [v. Pierce County, 79 Wn. App. 427, 432, 903 P.2d 464 (1995), review denied, 129 Wn.2d 1007, 917 P.2d 129 (1996)].” Majority at 879. Burton held: “Ordinarily, a municipal corporation is not liable for consequential damages caused by the increased flow of surface water resulting from the initial grading and improvement of its streets.” Burton, 14 Wn. App. at 154. Hoover held: “In cases of water damage caused by street drainage, a municipality is not liable for consequential damages caused by the increased flow of surface water resulting from the presence of streets.” Hoover, 79 Wn. App. at 432. Both cases relied on Wilber Dev. Corp. v. Les Rowland Constr., Inc., 83 Wn.2d 871, 874-75, 523 P.2d 186 (1974), where we said:
A municipality ordinarily is not liable for consequential damages occurring when it increases the flow of surface water onto an owner’s property if the damages arise wholly from changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of the municipality. On the other hand, it is liable if, in the course of an authorized construction, it collects surface water by an artificial channel *884or in large quantities and pours it, in a body, upon the land of a private person, to his injury. Under this rule, while municipal authorities may pave and grade streets and are not ordinarily liable for an increase in surface water naturally falling on the land of a private owner where the work is properly done, they are not permitted to concentrate and gather such water into artificial drains or channels and throw it on the land of an individual owner in such manner and volume as to cause substantial injury to such land and without making adequate provision for its proper outflow, unless compensation is made. ... At the same time, it is the rule that the flow of surface water along natural drains may be hastened or incidentally increased by artificial means, so long as the water is not ultimately diverted from its natural flow onto the property of another.
The parties have not argued for a change in the law, and the majority does not suggest or discuss a change in the law. The principles stated in Wilber remain the law of Washington. Our law on this subject comports with the law in other jurisdictions: the general rule in municipal law has always been “a municipality is not liable to a property owner for the increased flow of surface water over or onto his or her property, arising wholly from changes in the character of the surface produced by the opening of streets.” 18A Eugene McQuillin, Municipal Corporations § 53.141 n.2 (James Perkowitz-Solheim et al. eds., 3d ed. rev. vol. 1993).
The general rule in McQuillin and in cases like Wilber is understandable, particularly in climates like that of western Washington. In wet climates, impervious surfaces such as roads will cause water to flow differently than water would naturally flow without such impervious surfaces. In the absence of the general rule, a government constructing roads would be an absolute insurer of the consequences of water runoff from road impervious surfaces onto the land of adjoining landowners, deterring the construction of necessary transportation facilities. Such problems would be exacerbated where the roads were constructed on steep surfaces such as those present in this case. Any expansion of governmental liability in this area should not occur without involvement from the Washington Legislature.
*885Moreover, any change to the law would have potentially calamitous results. The DiBlasi home was located at the end of a street on a partly paved, partly gravel road that was steeply inclined. As might be expected in the wet climate of western Washington, or any other climate, water will run downhill. And it will run downhill somewhat faster on a paved surface like a street than it would in a natural flow on an unimproved piece of property. If we were to make the developers of impervious surfaces liable to adjoining landowners for surface water runoff under a new rule, there would be potentially untold monetary implications for those developers. Unless we are willing to make developers as well as municipal and state government the insurers of all consequences of water runoff from road construction, an action that has untold financial implications for Washington’s transportation system, we should adhere to the traditional rule of surface water liability: property owners are not liable to adjoining property owners for the runoff on roads occasioned only by their grading and paving.
The ultimate fact question in this case, then, is not whether the paving of 38th SW increased the flow onto the DiBlasi property by artificial means, but whether the road diverted rainfall runoff from its natural flow. In order to establish a cause of action, the DiBlasis must demonstrate that the harm to their property was occasioned by more than the fact the street surface was impervious and water ran down its gutters. Liability follows only where the landowner or governmental body takes actions that collect and discharge diffuse surface waters in a manner or in quantities appreciably different from the natural flow of such waters, as in Burton, where the crown in a road collected water that in the natural state would not have been discharged onto the plaintiff’s property. Likewise, where a town constructed a ditch that caused the water to move more swiftly than it otherwise would have done by its natural flow, liability followed. Wilber, 83 Wn.2d at 876. See also Whiteside v. Benton County, 114 Wash. 463, 467, 195 P. 519 (1921) (digging of artificial ditch). If the municipality transferred surface water by a culvert into a ravine, *886liability might also follow as well. Colella v. King County, 72 Wn.2d 386, 394, 433 P.2d 154 (1967).
Despite my agreement with the majority as to the result here, I am troubled by the chronology of key events in the construction of 38th SW and the runoff that caused the slide at the DiBlasis’ property. The road at issue, 38th SW in West Seattle, was graded in 1968 and the top 135 feet of it were then paved.7 In 1975, the builder of the DiBlasi house obtained a City permit to grade and gravel the continuation of 38th SW down to a lot at the edge of a ravine in order to construct a house there. The permit the builder obtained shows a requirement for a drainage facility near the bottom of the extension of 38th SW, and the permit application states the builder would provide drainage as required. Clerk’s Papers at 701, 702. Thus, the developer of the subject lot was aware in 1975 of the neces*887sity for drainage, obviously taking into account water runoff flowing downhill along 38th SW onto the property.
The DiBlasis bought their house in 1988, twenty years after 38th SW was paved. The landslide did not occur until three years later in 1991, twenty-three years after 38th SW was paved. Clerk’s Papers at 2-3. If there were actionable error in the City’s paving of 38th SW in 1968, why did it not appear until April 1991? The answer is the month of April 1991 brought about an extraordinary amount of rainfall. Under ER 201, we can take judicial notice that during April 1991 rainstorm activity in the Puget Sound region was unprecedented. A record was set for the most rainfall for any 24-hour period in the month of April in 1991. In Seattle, the first five days of April saw more rainfall than is customary for the entire month of April. Numerous mudslides occurred throughout King County. Charles E. Brown, A Month’s Rain in Only 24 Hours After 5 Days, It’s Already the Wettest April, Seattle Times, Apr. 5, 1991, at Al.
Thus, if the events in this case had occurred in 2068, one hundred years after the paving of 38th SW, and the DiBlasi house remained standing in 2068 without ever once having suffered water damage, and the greatest rainfall in Seattle history then occurred causing a mudslide, the future owners of the DiBlasi house would have a cause of action against the City simply because water ran down the road.8 A rule of law that allows such a result cannot be right.
There is an additional question here not fully considered by the parties. We just recently said, “Plaintiffs who purchase or improve property, after the establishment of a local nuisance activity, have ‘come to the nuisance.’ While this fact did not absolutely bar the plaintiff’s nuisance action, it was one factor to be considered in whether to grant the plaintiff relief. Restatement (Second) of Torts § 840D (1977).” Buchanan v. Simplot Feeders, Ltd. Partnership, 134 Wn.2d 673, 678, 952 P.2d 610 (1998). “Coming to the *888nuisance” is analogous to assumption of the risk (now subsumed under contributory fault, RCW 4.22.015) and it clearly applies in the present case. Although neither concept is necessarily dispositive, both militate strongly against liability here.
Water had been running down 38th SW for twenty years before the DiBlasis bought their house. The house was built in 1975 directly in the path of the “thrusting and channeling” Safeco now complains of. Safeco was certainly aware water runs downhill and was certainly on inquiry notice of this “thrusting and channeling” when it assumed the underwriting risk and insured the DiBlasis’ house. Then an unprecedented deluge occurred in April 1991, causing the mudslide. Insurance exists precisely to pay for such extraordinary events. Safeco took the underwriting risk of insuring a home built on fill, at the edge of a ravine, at the bottom of a street that water had been running down for twenty years. The people of Seattle should not have to reimburse Safeco for this casualty loss. Insurance companies must do more than collect premiums.
The DiBlasis are not the real parties in interest in this case. Ms. DiBlasi denied having any claims. Clerk’s Papers at 275. Safeco appears to be a subrogee, although it did not so identify itself in the complaint.
There was considerable discussion at oral argument about a berm. That berm was built at the top of 38th SW along the side of the intersecting street, SW Barton, and prevented water from flowing down 38th SW from SW Barton. Ms. DiBlasi was unable to say when the berm was built or when the berm was removed. Clerk’s Papers at 279. Safeco’s expert, Dr. Leytham, did not know when the berm was present or absent. Clerk’s Papers at 826-27. Safeco’s attorney, Ms. Willie, said Safeco was relying on Barbara Jayne’s memory of the berm’s history. Clerk’s Papers at 827. Ms. Jayne had lived on SW Barton since 1977. All she was able to say about the berm is the following:
Prior to the landslide at the end of 38th Avenue S.W. in April of 1991, the City of Seattle resurfaced Southwest Barton Street. Prior to the resurfacing, there was a small asphalt bump or berm across the top end of 38th Avenue S.W preventing flows from SW [Barton] Street from flowing down 38th Avenue S.W. The city crews took the bump or berm out and large quantities of water began to runoff and down 38th Avenue S.W
Clerk’s Papers at 265. Ms. Jayne’s account is devoid of information about when these events occurred. “Prior to the landslide” could mean anytime after she moved into her house in 1977.
The trial judge used information about the berm only to support her conclusion the City was negligent in not controlling the water on 38th SW The trial court did not base its decision on when the berm was taken out. Report of Proceedings (Sept. 16, 1994) at 77. Because the majority opinion rejects a negligence cause of action, the trial court’s use of the berm information to support its finding of negligence is not relevant.
No one can say when the berm was present or absent, much less that but for the removal of the berm, the landslide would not have occurred. In summary, the presence or absence of the berm is of no consequence in this case.
A statute of repose provides protection for the builders and designers of 38th SW, but not for the owner of the road, the City of Seattle. See RCW 4.16.300-.310.