Gaudreau v. Clinton Irrigation District

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No. 99-405

IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 164

JEANNE GAUDREAU and JERRY MONTELIUS,

Plaintiffs and Appellants,

CLINTON IRRIGATION DISTRICT,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Lon J. Dale; Milodragovich, Dale, Steinbrenner & Binny, Missoula,

Montana

For Respondent:

Fred Van Valkenburg, County Attorney, Robert L. Deschamps, III,

Special Deputy County Attorney

Submitted on Briefs: April 13, 2000

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Decided: August 21, 2001

Filed:

__________________________________________

Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Jeanne Gaudreau (Gaudreau) and Jerry Montelius (Montelius) appeal from the Findings
of Fact, Conclusions of Law and Judgment entered by the Fourth Judicial District Court,
Missoula County, in favor of the Clinton Irrigation District (CID). We affirm.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err in determining the CID had no duty to prevent flood waters
caused by ice jams on the Clark Fork River from entering and overflowing the CID's
irrigation system and damaging Gaudreau's and Montelius' property?

¶4 2. Did the District Court err in determining the CID exercised reasonable care in the
maintenance of its irrigation system?

¶5 3. Did the District Court err in concluding the CID had no duty to warn Gaudreau and
Montelius of the flooding conditions in order to allow them the opportunity to protect their
properties?

BACKGROUND

¶6 In January of 1996, an extended cold period in western Montana caused substantial ice
to form on regional rivers, including the Clark Fork River (Clark Fork). This cold period
was followed in early February by warm temperatures and rain, which broke up the ice.
The resulting ice floes on the Clark Fork formed ice jams that backed up river water and
resulted in extensive flooding in Missoula County.

¶7 Gaudreau and Montelius, her father, operate a horse riding and boarding facility
(Facility) outside Clinton, Montana, near Interstate 90 and the Clark Fork. They own

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substantial personal property located at the Facility and, although the record is not entirely
clear, it appears that Gaudreau owns the real property on which the Facility is located.

¶8 The CID owns and operates an irrigation ditch system in the Clinton area. A headgate
(River Headgate), which can be closed to stop flow under ordinary conditions, diverts
water from the Clark Fork into a canal (Canal). An earthen dike (Dike) immediately
downstream from the River Headgate prevents water from entering the Canal other than
through the River Headgate under ordinary conditions. However, the Dike had fallen into
a state of disrepair at the time of the flooding.

¶9 Once water enters the Canal, it reaches a junction marked by a series of culverts. One
set of culverts (Milwaukee Culverts) passes underneath the old Milwaukee Railroad grade
and Interstate 90, where the water enters the main channel of the Canal (Main Channel).
Two water regulation devices at the Milwaukee Culverts had apparently acted to partially
restrict the flow of water in the past, by means of boards which could be lowered into
position in front of the culvert entrances, but neither was operational at the time of the
flooding. The Main Channel runs northeast of the interstate, toward and then adjacent to
the Facility. Water also flows through a second set of culverts and enters a channel which
flows along the southwest side of the interstate. The drawing which follows is a rendition
of the CID canal system near Clinton; it is included for illustrative purposes only and is
not to scale.

(See map in hard copy)

¶10 Sometime during the evening of February 7, 1996, an ice jam formed on the Clark
Fork, downstream from the River Headgate and Dike, which caused river water to back up
and overtop the Dike. Flood water and ice entered the Canal and another ice jam formed in
the Main Channel upstream from the Facility. This second ice jam resulted in overland
flooding of the area adjacent to the Canal, including the Facility, throughout the night of
February 7 and morning of February 8. CID members and the local rural fire department
discovered the flooding sometime during the late evening of February 7. They worked
through the night and eventually were able to stop the flooding during the late morning of
February 8 by using a backhoe to force steel plates over the front of the Milwaukee
Culverts.

¶11 At around 10:00 p.m. on February 7, the ice jam in the Main Channel was upstream

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from the location where it intersected the road to the Facility. Phil Davis, a neighbor and
member of the rural fire department, called Montelius and informed him there was a great
deal of water in the Canal. Montelius drove to the Facility but did not observe any
flooding on the property. Discerning no danger, Montelius returned home to bed.

¶12 Gaudreau received a telephone call between 7:00 and 7:30 a.m. on February 8
informing her that there was water in the arena at the Facility. According to Gaudreau, she
and Montelius discovered between 12 and 18 inches of water flooding the arena and
stables upon arriving at the Facility. Both later testified to significant real and personal
property damage at the Facility as a result of the flooding.

¶13 Gaudreau and Montelius sued the CID for negligence, trespass and nuisance. The
parties stipulated to a bifurcated trial on the issues of liability and damages. At the trial on
the liability issues, Gaudreau and Montelius abandoned the trespass and nuisance claims
and proceeded on negligence theories. The District Court subsequently issued its Findings
of Fact, Conclusions of Law and Judgment in favor of the CID and Gaudreau and
Montelius appeal. Additional facts necessary to resolution of the issues raised on appeal
are set forth below.

STANDARD OF REVIEW

¶14 We review a district court's findings of fact to determine whether they are clearly
erroneous, using the following three-part test:

(1) the Court will determine whether the findings are supported by substantial
evidence; (2) if the findings are supported by substantial evidence the Court will
determine if the trial court has misapprehended the evidence; (3) if the findings are
supported by substantial evidence and that evidence has not been misapprehended,
this Court may still find that a finding is clearly erroneous when, although there is
evidence to support it, a review of the record leaves the Court with the definite and
firm conviction that a mistake has been committed.

Yellowstone Water Service v. Dotting (1996), 280 Mont. 1, 4, 928 P.2d 233, 235 (citations
omitted). We review a district court's conclusions of law to determine whether the court's
interpretation of the law is correct. Yellowstone Water Service, 280 Mont. at 4, 928 P.2d
at 235 (citations omitted).

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DISCUSSION

¶15 1. Did the District Court err in determining the CID had no duty to prevent flood
waters caused by ice jams on the Clark Fork from entering and overflowing the
CID's irrigation system and damaging Gaudreau's and Montelius' property?

¶16 Gaudreau's and Montelius' first negligence claim was that the CID had a duty to
design, construct and maintain an irrigation system that would protect their property
against flood waters from ice jams because both flood waters and ice jams are foreseeable
events; the CID breached its duty by failing to either construct a headgate at the
Milwaukee Culverts or maintain the water regulation devices previously in operation at
the Milwaukee Culverts; and the breach caused their property damage.

¶17 The District Court found and concluded that the flooding conditions at issue were
unforeseeable. On that basis, it further concluded the CID did not have an affirmative duty
to erect or maintain flood control structures which would have protected Gaudreau's and
Montelius' property. Gaudreau and Montelius assert error.

¶18 The first element plaintiffs in a negligence action must establish is the existence of a
duty of care. Brown v. Demaree (1995), 272 Mont. 479, 482, 901 P.2d 567, 569 (citations
omitted). "The existence of a legal duty is a matter of law to be determined in the first
instance by the trial court." Latray v. City of Havre, 2000 MT 119, ¶ 18, 299 Mont. 449, ¶
18, 999 P.2d 1010, ¶ 18. The measure of the duty of care owed is the scope of the risk
which the negligent conduct foreseeably entails. Estate of Strever v. Cline (1996), 278
Mont. 165, 173, 924 P.2d 666, 671 (citation omitted).

¶19 Gaudreau and Montelius initially rely on § 85-6-107, MCA, to argue that the CID
owed a duty to prevent the flooding in the present case. Section 85-6-107, MCA, provides:

An incorporated water users' association that is sustaining and responsible for the
operations of a works is solely liable for any court action which may be brought
against it for any injury or damages occurring on the works caused by a failure to
maintain safe working and operating conditions. The state of Montana is not liable
for injury to a person or property that occurs on a works as a result of a failure by a
water users' association to maintain the works in a safe working and operating
condition.

Their reliance on this statute is misplaced.

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¶20 First, Chapter 6 of Title 85, MCA, governs water users' associations, not irrigation
districts; the latter are governed by Chapter 7 of Title 85, MCA. Gaudreau and Montelius
do not provide any argument or authority for the application of § 85-6-107, MCA, to the
CID, which is irrefutably an irrigation district. Second, § 85-6-107, MCA, standing alone,
does not impose any specific duty or duties, even on water users' associations, but merely
disclaims any liability by the state for injuries allegedly caused by state regulation of such
entities. See Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 146, 706 P.2d 491, 500.
Finally, Gaudreau's and Montelius' action against the CID did not encompass allegations
of injury or damages "occurring on the works." Thus, § 85-6-107, MCA, does not support
the existence of a duty by the CID.

¶21 The primary factor in determining whether an irrigation district owes a duty to a
damaged plaintiff is whether it was foreseeable, as a matter of law, that the district's acts
or omissions would pose a risk of injury to the plaintiff. See Estate of Strever, 278 Mont.
at 173-74, 924 P.2d at 671.

As a classic opinion states: "The risk reasonably to be perceived defines the duty to
be obeyed." Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.
R. 1253. That is to say, defendant owes a duty with respect to those risks or hazards
whose likelihood made the conduct unreasonably dangerous, and hence negligent in
the first instance.

Estate of Strever, 278 Mont. at 174, 924 P.2d at 671 (quoting Mang v. Eliasson (1969),
153 Mont. 431, 437, 458 P.2d 777, 781). Under this standard, the CID owed a duty to
protect against foreseeable risks or hazards likely to result from its failure to exercise
ordinary care in the maintenance of its canal system. Ordinary care is determined by
weighing the utility of the conduct in question against the magnitude of the risk involved.
Estate of Strever, 278 Mont. at 174, 924 P.2d at 671 (citing Restatement (Second) of Torts
§ 298 cmt. b (1965)).

¶22 In the context of the present case, Gaudreau and Montelius argue that ordinary care
included maintaining flood control devices at the Milwaukee Culverts. Applying the above
standards to the present case, the CID owed a duty to maintain flood control measures at
the Milwaukee Culverts only if it was foreseeable that failure to do so could result in
damage to Gaudreau's and Montelius' property.

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¶23 Gaudreau and Montelius challenge the District Court's conclusion that the damaging
flood waters in the present case were not foreseeable. They first contend that the District
Court's underlying finding that it was not foreseeable that Clark Fork flood water could
enter the CID's ditch system--without flood control structures at the Milwaukee Culverts--
is erroneous. In this regard, and assuming arguendo that a factual finding on this duty-
related question is appropriate, they point to testimony that both high water flooding and
ice jams are foreseeable occurrences on the Clark Fork. Our standard in reviewing a
finding of fact, however, is not whether record evidence would support a different finding.
Our standard is whether the District Court's finding is clearly erroneous, and we begin that
review by determining whether the finding is supported by substantial evidence. See
Yellowstone Water Service, 280 Mont. at 4, 928 P.2d at 235 (citations omitted).

¶24 The record before us contains testimony from several witnesses that, although several
floods occurred on the Clinton stretch of the Clark Fork in the past which were greater in
magnitude than the flood in the present case, no overland flooding of the land adjacent to
the Main Channel occurred. Kristine Handley, an engineer with the U.S. Department of
Agriculture, testified that a flood on the Clark Fork in 1981 entailed a greater volume of
water than the flood in the present case. Bill Teague, a long-time area resident and former
CID commissioner, testified that the 1981 flood completely washed out the CID's old river
headgate and a spillway, but that no damaging flood water entered the CID's Main
Channel even though there were no water regulation devices at the Milwaukee Culverts at
that time.

¶25 Handley also testified about the foreseeability of ice jams. She stated that, although
ice jams are known to occur on western Montana rivers, they are unpredictable for size
and location. Handley testified further that, because ice jams are so unpredictable, it is
nearly impossible to design an irrigation system to prevent flooding due to ice jams.
Indeed, Teague and Rex Flansburg, another long-time resident, testified that the flood of
1996 was unlike anything they had ever seen in the Clinton area in terms of
destructiveness.

¶26 From the foregoing, we conclude the District Court's finding that the flooding which
damaged Gaudreau's and Montelius' property was unforeseeable is supported by
substantial evidence and is not otherwise erroneous. We further conclude that the hazard
in the present case--Clark Fork water flooding the CID's Main Channel--was not a
foreseeable result of failure to maintain flood control structures. "It is axiomatic that in the
absence of foreseeability, there is no duty; in the absence of duty, there is no negligence."

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Lopez v. Great Falls Pre-Release Services, Inc., 1999 MT 199, ¶ 26, 295 Mont. 416, ¶ 26,
986 P.2d 1081, ¶ 26 (citation omitted). Because the risk that Clark Fork water would flood
the CID's Main Channel was not foreseeable, we hold the District Court correctly
concluded the CID had no duty to erect or maintain flood control structures at the
Milwaukee Culverts.

¶27 2. Did the District Court err in determining the CID exercised reasonable care in
the maintenance of its irrigation system?

¶28 Gaudreau's and Montelius' next negligence claim was that the CID had a duty to
maintain the Canal; it breached the duty by allowing debris to accumulate in the Main
Channel; and the negligence caused their injuries in that the debris accumulation caused
the ice jam in the Canal which caused flood waters to overtop the Canal and flood their
property. The District Court found, however, that no witness who actually observed the
Main Channel at the pertinent times testified to observing debris or anything other than
naturally-occurring ice in the Main Channel.

¶29 Gaudreau and Montelius assert the District Court's finding that there was no evidence
the CID breached its duty to maintain the ditch system is clearly erroneous. In support of
their assertion, they point to the report Handley prepared on the causes of flooding in the
present case at their request. Handley's report noted a "debris jam" in the Main Channel
which caused the overland flooding. On cross-examination, however, Handley testified
her use of the term "debris jam" was arbitrary and that she neither personally observed any
debris in the Canal nor spoke to anyone who did. The only other evidence Gaudreau and
Montelius advance which purports to support their contention that debris existed in the
Main Channel is testimony that the CID had no formal, written maintenance plan. The
absence of a written maintenance plan bears no relation whatsoever to the existence or
nonexistence of debris in the Main Channel, and is not evidence that such debris existed.

¶30 Gaudreau and Montelius do not point to any testimony by a witness who observed
debris in the Main Channel at any time; indeed, several witnesses testified to observing a
jam in the Main Channel comprised solely of ice. Moreover, the only evidence they cite in
support of their allegation of a breach in this regard is Handley's report which, as
discussed above, was controverted by her cross-examination testimony.

¶31 After careful review of the record, we conclude the District Court's finding is
supported by substantial evidence and is not otherwise clearly erroneous. Consequently,
we hold the District Court properly determined the CID exercised reasonable care in the

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maintenance of its irrigation system.

¶32 3. Did the District Court err in concluding the CID had no duty to warn
Gaudreau and Montelius of the flooding conditions in order to allow them the
opportunity to protect their properties?

¶33 Gaudreau and Montelius also asserted negligence by the CID via its breach of a duty
to warn them of the flooding conditions when CID members became aware of the flood.
The District Court concluded the CID had no duty to warn of the impending natural
disaster and Gaudreau and Montelius assert error "[i]n light of the case law from Montana,
combined with the jurisprudence of other jurisdictions[.]" We are not persuaded.

¶34 Gaudreau and Montelius first cite to Frederick v. Hale (1910), 42 Mont. 153, 112 P.
70. There, the plaintiff sued for negligence when the defendant's dam and reservoir gave
way during a heavy rain storm and flooded the plaintiff's property. Frederick, 42 Mont. at
158-59, 112 P. at 73. The plaintiff alleged the defendant was negligent in failing to
construct an overflow spillway, in allowing its dam to fall into a state of disrepair and give
way, and in allowing more water to accumulate than the reservoir banks could handle.
Frederick, 42 Mont. at 159, 112 P. at 73. The plaintiff's theory was that his injury was
caused by the defendant's negligence and an unprecedented flood. We approved a jury
instruction that, under such circumstances, the plaintiff could recover if the defendant's
negligence was the proximate cause of the injury. Frederick, 42 Mont. at 167, 112 P. at
75. Frederick does not, in any way, address a duty to warn, and that is the issue before us.
Moreover, that decision clearly presupposes the existence of the defendant's negligence--
that is, a legal duty and the breach of that duty--while the issue before us here is the
existence of such a legal duty. The instruction approved in Frederick related to proximate
cause--now "cause in fact" or the "substantial factor" test--rather than the foreseeability
determination on which the existence of a legal duty must be grounded. See Estate of
Strever, 278 Mont. at 175-76, 924 P.2d at 672 (citations omitted).

¶35 Gaudreau and Montelius cite next to Ducey v. United States (9th Cir. 1987), 830 F.2d
1071. There, a flash flood resulted in the deaths of recreational users of the flood plain on
federal land in Nevada and representatives of the decedents sued the federal government.
Ducey, 830 F.2d at 1072. The United States Court of Appeals for the Ninth Circuit relied
on Nevada case law holding that "[a] defendant has a duty to warn foreseeable victims of
foreseeable harm" to conclude the government had a duty to warn of the hazards posed by
the 100-year flash flood. Ducey, 830 F.2d at 1072 (citing Mangeris v. Gordon (Nev.

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1978), 580 P.2d 481, 483). In turn, Mangeris was premised in pertinent part on the
absence of a duty to warn, except in those situations where the risk is foreseeable.
Mangeris, 580 P.2d at 483.

¶36 In Ducey, the record reflected the government's awareness, well in advance of the
flood at issue, that a "life-threatening, 100-year flood was long overdue. From this
awareness, it follows that the government foresaw the danger of a 100-year flood." Ducey,
830 F.2d at 1072 (footnote omitted). Because the risks and hazards of such a flood were
foreseeable--indeed, they actually were foreseen--the government had a duty to warn those
at risk of the hazard of a major 100-year flood. Ducey, 830 F.2d at 1073. In the present
case, the record is devoid of evidence of foreknowledge or awareness of the likely
occurrence of ice jams, or the resulting flooding, which occurred in February of 1996 on
and near the CID's canal system on the Clark Fork. More importantly, as discussed above
in issue one, the record in this case shows that the flood in the present case was not
foreseeable. As a result, Ducey has no application here.

¶37 Gaudreau and Montelius also rely on Ford Motor Co. v. Dallas Power & Light Co.
(5th Cir. 1974), 499 F.2d 400, 412 (citation omitted), in which the United States Court of
Appeals for the Fifth Circuit applied Texas law imposing a duty to warn on a person who
creates a dangerous situation, even without negligence on his or her part. There, the
defendant power company, which owned and operated a reservoir, released significant
amounts of water from the reservoir during an abnormally heavy rainfall which flooded
the plaintiff's downstream property. Ford Motor Co., 499 F.2d at 405-07. The Fifth Circuit
determined that the defendant could be held liable for failing to warn downstream property
owners. Ford Motor Co., 499 F.2d at 412. In doing so, however, the Fifth Circuit
explained that, while the high waters were the natural result of a rain storm, the power
company was the effective monitor of the flood waters because it controlled the rate and
flow of the discharge water that flooded the plaintiff's property. Ford Motor Co., 499 F.2d
at 413. The defendant having created the dangerous situation at issue, the Texas duty to
warn applied. Ford Motor Co., 499 F.2d at 412-13 (citations omitted).

¶38 Ford Motor Co. is inapplicable to the present case. Here, the CID neither created a
dangerous condition nor was the effective monitor of the ice jam-caused flooding which
damaged Gaudreau's and Montelius' property via any ability to control the rate and flow of
the waters. As a result, even if Montana law mirrored that of Texas, the applicable law
would be that mere knowledge of a dangerous situation--which the CID certainly acquired
at some point during the late evening hours of February 7, 1996--does not impose a legal

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duty to warn. See Ford Motor Co., 499 F.2d at 412, note 20 (citations omitted).

¶39 Gaudreau and Montelius have not advanced any applicable authority which would
impose a duty to warn on the CID. As a result, we hold the District Court did not err in
concluding the CID had no duty to warn audreau and Montelius of the flooding conditions.

¶40 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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