Jackass Mt. Ranch Inc. v. South Columbia Basin Irrigation

FH_.ED
.§§J§JY 95 Z@§§
he the Ot’t“ice o§ the Cterk of Coart
WA Stat'e Cot:rt of Appea§s, Division H``§
IN TI-IE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JACKASS MT. RANCH, INC.;
DAVE and AMI MACHUGH,
d/b/a }ACKASS MT. RANCH,
No. 30270-9-111
Appellants,
v. PUBLISHED OPINION
SOUTH COLUNIBIA BASIN
IRRIGA'I``ION DISTRICT,
Respondent,
DICK CONRAD, d/b/a
CONRAD ORCHARDS,
Defendant.
\.,/\_/\»_/\_/\~.J\_/\._/\_-/\-_/\~J\_/\._/\J\_,/\.p/\_/\._/
KULIK, J. - In 2006, a landslide damaged a cherry orchard belonging to Jackass
Mountain Ranch and Dave and Ami MacHugh (coltectiveiy referred to as "Jl\/IR"). H\/K
brought suit against the South Columbia Basin Irrigation District (SCBID), contending
that the landslide was a direct and proximate result of the creation and maintenance of the
Ringold Wasteway (wasteway), which SCBID _operated. }MR asserted multiple clainas,
including inverse condemnation, negtigence, res ipsa foquitur, and trespass Franklin
No. 30270-9-111
Jackczss Mount‘az``n Rcznch, Inc. v. S. Co[umbz'a Basz'n [rrz``gation Dz``st.
County Superior Court granted summary judgment in favor of SCBID on ali claims. Of
importance, the court determined that the evidence clearly established that the seepage
that caused the landslide \vas due to the design and construction of the wasteway by
United States Bureau of R_eciaination (USBR). Thus, liability for damages resuiting from
design and construction could not be imputed to SCBID. Furtherrnore, the court
concluded that Jl\/IR failed to produce evidence that SCBID negligently operated or
maintained the wasteway. JMR appeals We agree with the trial court and affirm
summary judgment in SCBl'D’s f_avor.
FAC'IL"S
in 1935, the United States authorized construction, operation, and maintenance of
the Grand Coulee Dam Project. Renained the Columbia Basiii Project, one of the
purposes of the project is to provide water for agricultural irrigation to i,(}29,000 acres of
semi-arid land in central Washington. The irrigation system transports water from a
storage facility called Bani238 P.3d 1129 (2010) (quoting Dickgz``eser v.
Staz‘e, 153 Wn.Zd 530, 534-35, 105 P.?>d 26 (2005)). According to the Washington
Constitution, "No private property shail be taken or damaged for public or private use
without just compensation having been first inade." CONST. art. l, § §6. ”l"htis, a party
13
No. 30270-9-{11
jac/cass Mour'zrcxz``n Ranch, ]nc. v. S. Columbia Basin Irrz``gcztion Dz``sz.
alleging an inverse condemnation must establish (1) a taking or damaging (2) of private
property (3) for pubiic use (4) without just compensation being paid (5) by a
governinentai entity that has not instituted formal condeinnati on proceedings
Firzpai‘rz``ck, 169 Wn..'ld at 605~06 (quoting Dz'ckgz'eser, 153 Wn.Qd at 535)``. Both intended
and unintended consequences of a governmental action may constitute a taking See
Lczntf)ier v. Cc``ly ofKennewz``ck, 56 Wash. App. 275, 28()-81, 783 P.Zd 596 (1989).
To have a tal81 Wash. App. 353, 365, 914 P.Zd 1180 (1996). To
establish cause in fact in a suinmary judgment proceeding for inverse condemnation, "the
plaintiff inust present evidence that supports at least a reasonable inference that the
damage alleged to constitute a taking would not have occurred but for the governmental
conduct in issue." Ventures Nw., 81 Wn. App. at 365 (citing Gai``rzes v. Pi``erce Connty, 66
Wash. App. 715, 726, 834 P.Zd 631 (1992)). The government needs active proprietary
participation, meaning "participation without which the alleged taking or damaging
£4
No. 30270~9-1_11
Jackass Mounrai'n Rcznch, Inc. v. S. Columbia Basin Irrigation Dz``s.t.
would not have o'ccurred." Ha[verson, 139 Wn.Zd at 13 (einphasis omitted). Surnmary
judgment is not appropriate for such questions of fact, " ‘ unless but one reasonable
conclusion is possible.’ " Venrures Nw., 81 Wn. App. at 365 (quoting Hartley v. Srate,
103 Wash. 2d 768, 778, 698 P.Zd 77 (1985)).
"Legal causation rests on policy considerations as to how far a party’s
responsibility for the consequences of its actions shouid extend." Ventures Nw., 81 Wn.
App. at 365 (citing Tc.rggart v. Srate, 118 Wn.?,d 195, 226, 822 P.Zd 243 (1992)).
°" [D]eterinination of legal iiabiiity will be dependent on "inixed considerations of iogic,
common sense, justice, poiicy, and precedent.°" Venrures Nw., 81 Wn. App. at 365
(quoting Hartley, 103 Wn.2d at 779). "A governrnentat entity does not become a surety
for every governmental enterprise involving an element of risk." Phillips, 136 Wn.2d at
965 (citing Bodz``zi v. Cz'tj) ofStai/zwood, 130 Wash. 2d 726, '740, 927 P.Zd 240 (1996)).
A claim for inverse condeinnation exists where the alleged damage or taking was
caused by a governmental entity’s affirmative act of constructing a public project to
achieve a pubiic purpose. Phillzps, 136 Wn.2d at 962 (quoting Pepper v. J.J Welcome
Cons;tr. Co.,, 73 Wash. App. 523, 530, 871 P.2d 601 (1994)). l
A claim for inverse condemnation also exists if the alieged tla.mage or taking of the
property is reasonably necessary for the maintenance and operation of other property
15
No. 30270-9-11'1
jac/cass Monntat``n Rcznch, 'Inc. v. S. Columbia Bctsi``n ]rrigati'on Dist.
devoted to pubiic use. Boitano v_ Snohoniz``sh County, ii Wn.Zd 664, 668, 120 P.2d 490(1 941).
in Lambier, the Lambiers brought an iiiverse condenination ciaim against
Kennewick, arguing that the city’s construction of a_ roadway caused drivers to ieave the
roadway and damage the Lambiers’ property Lambz``er, 56 Wn. App. at 278-79.
Converseiy, the city contended that the claim could not be brought against the city
because the uniawfui acts of the third~party drivers caused the darnage, not the city. Id. at
282. 'fhe court rejected the city’s argument, finding that the Lambiers’ compiaint was
predicated on the defects in design and construction of the roadway, inakiiig the
Lanibiers’ claim against the city vaiid. Id.lat 282~83.
JMR asserts that it presented sufficient evidence to create a disputed issue of fact
as to whether SCBiD’s operation of the wasteway constituted a taking JMR maintains
that SCBID’S operation of the wasteway was the governrnentai activity that caused the
damage because without operation by SCBID, no water gets to the wasteway, and no
seepage occurs. Thus, given SCBID’S stipulation that the landsiide was proximateiy
caused by seepage from the wasteway that SCBID operated, the eieinents of inverse
condernnation are inet. Or, at the very least, a disputed issue of fact reniains.
'I``he determinative issue is whether SCBID’s act of operating the wasteway caused
16
l\lo. 30270-9-111
Jackass Mountaz``rt Rarzch, Inc. v. S. Columbia Bosin frrigcttz``on Dl``.rt.
the seepage. We conclude that the only reasonable conclusion from the evidence is that
the design and construction of the wasteway was the proximate cause of the seepage, not
SCBID’S operation
lust like in Lctml)i'er, JMR’S claim is predicated on the design and construction of
the wasteway. The evidence establishes that seepage was anticipated and is a natural
consequence of the mere existence of the wasteway. For example, seepage and drainage
was discussed in the repayment contract Also, l\/lr. Montgoinery testified that seepage
occurs from the wasteway at a lesser amount than most irrigation district canals in
Washington State. Furthermore, it is undisputed that seepage began as soon as USBR
allowed water to enter the wasteway. Jl\/IR did not present evidence that seepage from the
wasteway began or increased once SCBID took over operations. Thus, seepage is
inherent in the design and construction of the wasteway and still occurs, regardless of
who operates the wasteway. Therefore, USBR’s design and construction of the wasteway
caused the seepage and the resulting damage, not SCBID’S operation of the wasteway.
JMR’s inverse condemnation claim fails.
Despite Jl\/_{R’s contention_, simply assuming operation or rnaintenance of the
wasteway does not impute liability on SCBID for any damages that may result from the
wasteway. Phil[ips and H.cilverson are instructive on this point. ln Phil[z'jos, our Suprerne
17
No. 30270~9~111
Jackass Monntain Rctnc/"z, ]rzc. v. S. Columbia Basz``n Irrz``gai‘z``on Dt``si'.
Court held that a claim for inverse condemnation could not proceed against a county
simply because the county approved a private developer’s drainage system that caused
damage to neighboring property. Phi``l[zps, 136 Wn.2d at 969. 'fhe court further held the
county cannot "be liable for a design defect in a developer’s drainage system simply
because they accept the system after construction in order to provide proper maintenance
in the future." ]d. at 966. ’l`` he court recognized that governmental conduct that is not a
cause of damage to a plaintiff cannot constitute a taking in an inverse condeinnation
claini. Id. (citing Gai``nes, 66 Wn. App. at 726). The court concluded that the county
could be liable if its failure to maintain the system caused the damage, but not if the only
allegation related to the design of the system. ]d. at 966-67.
ln Halverson, levees constructed and owned by independent diking districts caused
water to collect and flood the plaintiff’ s property. Ha[verso_n, 139 Wn.2d at 5-6. The
plaintiffs brought an inverse condemnation action against Skagit County, claiming that
the county acted in concert with the diking districts in the rnaintenance, iinproveinent, and
operation of the diking system. ]d. at 6. The county argued that it could not be held liable
for the levee-induced flooding because it did not build or own the dikes. Id. "[``he
Washington Supreme Court agreed with the county. ]cz’. at 13. The court held that "[t:lhe
County’s repairs or irnprovements, even if in a concerted effort with the independent
18
No. 30270-9-111
Jac'kczss Mountaz``u Rauch, lnc. v. S. Colztntl)z``a Basi``rz Irrz``gcztz``on Dz``st.
dil62 Wash. App. 839, 856, 816 P.Zd 75 (1991). While the
breach and proximate cause elements are generally fact questions and not subject to
sunimary judginent, these questions can be decided as a rnatter of law if reasonable minds
could not differ on the conclusion. Hertog v. Ciry Q]‘Seatt[e, 138 WnZd 265, 275, 979
P.Zd 400 (1999).
"[O]ne who irnpounds water is bound to exercise such reasonable care and caution
in the construction_, maintenance and operation of his works as a reasonably careful and
prudent person, acquainted with the conditions, would exercise under like
circumstances." Longmz're v. Yelm Irrigalion Dz'sr, 114 Wash. 619, 620, 195 P. i()l¢i,
21
No. 3()27()»9~111
Jackass Mountczz``n Rctnch, ]rzc. vt S. Columbia Basin Irrz``gafion Dr``st.
ajjf’n’, 117 Wash. 7(}2, 201 P. 788 (l92l). °‘[The] owner ofiand lying below an irrigation
ditch cannot recover for damages caused by seepage without showing that the ditch was
negligently constructed or operated." Id. at 620»~21.
An operator of an irrigation ditch is not an insurer. Longmire, l 14 Wash. at 620.
Accordingly, liability for damages caused by seepage cannot stand if there is no evidence
of negligent construction or operation of the ditch. Id. at 622.
In 2009, the Washington legislature enacted RCW 89.12.05()(2) to clarify the
scope of liability imputed to irrigation districts managing transferred works as part of a
federal reclamation project See LAWS OI-`` 20()9, ch. 145, § 3. "l``he statute states, "A
district may enter into a contract with the United States for the transfer of operations and
maintenance of the works of a federal reclamation project, but the contract does not
impute to the district negligence for design or construction defects or deficiencies of the
transferred works." RCW 89.l2.050(2).
As a preliminary note, Jl\/IR contends that irrigation districts in Washington have a
general duty to exercise reasonable care in the operation facilities so as to avoid causing
damage to the property of others. JMR misstates the duty placed on SCBID. A correct
recitation of the law is that SCBID had a duty to exercise reasonable care and caution in
the inaintenance and operation of the wasteway as a reasonably careful and prudent
22
No. 3(}2'70~9-§1
Jac/cass Mountczz``n Ranch, ]nc. v. S. Colun'ibz``a Basi``n frrigatl``on Dist.
person, acquainted with the conditions, would exercise under like circumstances. See
Long)uz're, l 14 Wash. at 62(). Here, SCBID’S relationship with USBR is an important
circumstance to consider in determining if SCBID breached its duty.
Jl\/IR essentially argues that SCBID breached its duty to exercise reasonable care in
operation when it failed to correct foreseeable problems associated with the design and
construction of the wasteway. JMR inaiiitains that SCBID knew that the land around the
wasteway was unstable and that the drainage system was inadequate and yet failed to
address the problem even though it had the authority to do so.
We conclude that there is no disputed issue of material fact remaining as to
SCBI‘D’S negligence Reasonable minds cannot differ on the conciusion that SCBID
exercised reasonable care and caution in the inaintenaiice and operation of the wasteway
as a reasonably careful and prudent person, acquainted with the conditions, would have
exercised under like circumstances
Undisputed testimony established that SCBIfD’s operation methods and practices
were reasonable and well within the standard of practice for irrigation systerns. l\/lr.
pl\/lontgornery stated that on all of his inspections both before and after the 2006 iandslide,
he found the wasteway to be in good physical condition, well inaintained, and performing
as designed by USBR. Aiso, SCBID’s failure to act was not negligent under the
23
No. 30270-9~{]1
jac/ross Mounfaz``rz Ranch, ]nc. v. S. Columbia Bosz``n [rrz'gdtz``on Dist.
circumstances because there is no inference that SCBID knew it should act or had the
authority to act.
Jl\/lRo did not meet its burden of creating a disputed issue of material fact that
SCBID was negligent by failing to address the design and construction difficulties First,
the evidence relied on by .li\/IR does not create an inference that landslides on Ji\/IR’s
orchard were a foreseeable result of SCBID’S operation.l Jl\/IR contends that
foreseeability can be inferred from SCBl_D’s knowledge that landslid.es have occurred in
the White Bluff`` s area in the past However, SCBID’S knowledge of past landslides does
not infer that SCBID knew its continued operation would result in the 2006 landslide. ln
actuality, the evidence infers a different conclusion. l\/tr. l\/lontgoniery ifourid that seepage
was determined to be at an acceptable level in i987, and that USBR never reported any
deficiencies in the maintenance of the wasteway. This evidence infers that SCBID had no
reason to foresee danger from its operation
Also, JMR did not produce evidence to infer that SCBID considered the drainage
system inadequate The fact that the drainage system under Mr. Conrad’s orchard was for
agricultural purposes does not lead to an inference that the system was deficient On the
4 Contrary to .lMR’s contention, JMR did not stipulate on sunirnary judgment that
it knew the landslides would occur from the seepage, but stipulated only that seepage
caused the landslide. t '
24
No. 302'70-9-lll
Jockoss Mountoin Ranch, Inc_ v_ S. Columbia Basz``n irrigation Dz``sl.
contrary, SCBID presented expert testimony that established that the system was draining
appropriately l\/_lr. l\/lontgoineiy observed that the drain outlets were discharging freely or
were only partially submerged, indicating that the wasteway was not backing water into
the adjacent drainage systems and, therefore, was not affecting subsurface drainage
Even if SCBID knew of the problems with the area and the drainage systern, the
facts do not infer that SCBlD’s failure to take preventable measures was not unreasonable
under the circumstances The repayment contract establishes that SCBID did not have the
authority to make any changes to the wasteway. While Jl\/lR presented sections of the
repayment contract to establish that SCBID had some authority, this limited authority did
not change the provision that only USBR could modify the wasteway or its drainage
systems.
Ultiniately, legal responsibility cannot be assigned to SCBID simply because it
operated the wasteway as instructed. The damages arose from the design and
construction of the wasteway. SCBID lacked the responsibility for determining whether
additional drainage works were necessary and lacked the authority to construct the
additional works. As stated in l{CW 89.12.050(2), the repayinent contract does not
impute negligence to SCBID for design or construction defects or deficiencies of the
No. 3{)2'7(}~9~'lll
jac/cass Mourztaz``n Ranch, fnc. v. S. Columbia Basirz Irrr'gation Di``sf.
transferred works. SCBID is not an insurer for all damages that result from the
wasteway.
The u_rtdisputed testimony established that the United States constructed the
wasteway, and SCBID had an obligation to operate and maintain the wasteway according
to the standards set by USBR. Evidence from l\/lr. Montgomery established that SCBID
operated the wasteway according to USBR’S standards. JMR did not present evidence to
the contrary 'l.``here is no issue of material fact that SC``BID breached the standard of care.
SCBlD’s operation of the wasteway was not negligent
Res ipso Loguz``rur. As a general rule, a defendant’s negligence is not presurn_ed,
but must be affirmatively proved. Horner v. N. Pcze. Beuefz``cz``al Ass ’n Hosps., ]ne., 62
Wn.Qd 351, 359, 382 P.Zd 518 (l963) (quoting Morner v. Uni``on Pac. R.R. Co., 3_1 W_n.ild
282, 290-91, 196 P.Zd 744 (l948)). However, "[t]he doctrine of res ipsa loquitur spares
the plaintiff the requirement of proving specific acts of negligence in cases where a
plaintiff asserts that he or she suffered in_iury, the cause of which cannot be fully
explained, and the injury is of a type that would not ordinarily result if the defendant were
not negligent." Pacheco v. Ames, 149 Wn.Zd 431, 436, 69 P.?)d 324 (2()()3). 'l``he incident
causing the injury must be of such a nature that the occurrence itself is sufficient to
26
No. 30270-9~ili
Jac/cczss Mountaz``n Rctnch, Inc. v. S. Columbia Bosz``rz irrigation Disf.
establish negligence on the part of the defendant without any further proof. Horner, 62
Wn.Zd at 359 (quoting Morner, 31 Wn.Zd at 290-9``1).
The doctrine allows negligence to be inferred "on the basis that the evidence cf the
cause of the injury is practicaliy accessible to the defendant but inaccessible to the injured
person." Pacheco, 149 Wn.Zd at 436 (citing Covey v. W. Tank Lines, 36 Wn.Zd 38ii 390,
218 P.Zd 322 (1950)).
To establish that the doctrine of res ipsa loquitur applies to a plaintiff s case, the
evidence must show that "(1) the accident or occurrence producing the injury is cf a kind
which ordinarily does not happen in the absence of sorneone’s negligence, (2) the injuries
are caused by an agency or instrumentality within the exclusive control of the defendant,
and (3) the injury-causing accident or occurrence is not due to any voluntary action or
contribution on the part of the plaintiff." Horner, 62 Wn.Zd at 359.
'l``hree situations where negligence can be inferred without further proof are as
follows: "(l) When the act causing the injury is so palpably negligent that it may ‘oe
inferred as a matter of iaw, z``.e., leaving foreign objects, sponges, scissors, etc., in the
body, or amputation of a wrong inernber; (2) when the general experience and
observation of inankind teaches that the result would not be expected without negligence;
and (3) when_ proof ‘oy experts in an esoteric field creates an inference that negligence
27
Nc. 30270-9-111
jac/ross Mountain Ranch, [nc_ v. S. Columbia Bosin Irrigatz``on Dz``st.
caused the injuries." Id. at 360.
The appiicabiiity of the doctrine cf res ipsa ioquitur involves a question cf iaw.
Pacheco, 149 Wn.2d at 436. lf the doctrine is found to be appiicable, the burden switches
to the defendant to produce excuipatory evidence that rebuts or overcomes the
presumption or inference of his or her iiegligence. Horner, 62 Wn.?.d at 359 (quoting
Morner, 31 Wn.2d at 291). If the defendant provides a completely exculpatory
explanation for the cause of the injury in question, then res ipsa loquitur is not applicable
Kemolyali v. Hencz'erson, 45 Wash. 2d 693, 704»05, 227 P.Qd 372 (§954).
Jl\/iR contends the trial court erred by disinissing the negligence claim on suinmary
judgment because JMR established that the doctrine of res ipsa loquitur applies Jl\/IR
contends that case law and common sense dictates that irrigation districts do not damage
the property of others without negligence, that SCBID had complete control over the
wasteway, and that Ii\/IR did not contribute to the injury-causing landslide.
First, JMR fails to estabiis_h that the type of injury that occurred here is one that
only happens due to negligence Case law supports the conclusion that negligence is not
invoived in all iandslides that are caused by seepage from an irrigation wasteway. As
previously acknowledged in this opinion, the Washington Supreine Court has held that an
irrigation district is not an insurer against all damages Longmz're, ii¢i Wash. at 620.
23
No. 30270-9-lll
.fockass Monnioin Rarzch, [nc. v. S. Columbia Basi``n irrigation Dist‘.
"[A]n owner of land lying below an irrigation ditch cannot recover for damages caused by
seepage without showing that the ditch was negligently constructed or operated." Id. at
620-21. By requiring an injured party to show negligence the holding in Longmire
recognizes that injury can occur frorn seepage that is not a result cfa district’s negligence
Second, .ll\/IR failed to show that SCBID had complete control over the seepage or
the wasteway. Whlle SCBID may have had some control over the operation of the
wasteway, the repayment contract establishes that SC``BID did not have the authority to
construct projects to address the seepage. lnstead, USBR determined the necessity of
additional drainage projects and was responsible for construction SCBlD did not have
exclusive control over the wasteway.
Last, the doctrine of res ipsa loquitur is not appropriate here because this is not a
case where the evidence cf the cause of the injury is inaccessible to the injured person.
The wasteway is still intact. JMR has the ability to inspect the wasteway and SCBlD’s
operating procedures to determine ii``SCBlD was negligent in allowing seepage out of the
wasteway.
Admlttedly, in Clcirk v. Icicle irrigation Dz``strict, 72 Wn.2d 20l, 204, 432 P.2d S¢ll
(l967), the Suprenie Court held that ajury instruction on the doctrine of res ipsa loquitur
seemed particularly appropriate for cases involving breaks in irrigation ditches. However,
29
No. 30270~9-111
Jackass Mourzz.'az``n Ranch, Inc. v. S. Columbia Basin ]rrigatz``on Dist.
the holding in Clar/z does not affect our decision in the case because the facts differ
Clar!c involved a situation where the cause of the break could not be determined because
the evidence had been destroyed In contrast, this situation involves continuous and
natural seepage frorn an irrigation ditch where the ditch remains and could be inspected
for negligent design, construction, operation, or maintenance
Res ipsa loquitur is a disfavored doctrine lt is used sparingly and in exceptional
cases where the facts and demands of justice inal<;e its application essential This is not an
exceptional case. 'fhe damages are not novel or rare, nor do the facts demand application
of the doctrine.
As a matter of`` law, the doctrine of res ipsa loquitur does not apply.
Tresg_zgass. Jl\/IR next asserts that the trial court erroneously dismissed .ll\/lR’s clairn
for trespass Trespass occurs when a person intentionally or negligently intrudes onto or
into the property of anoth_er. Borc.i'en v. fifty ofOlyr)/zpz``a, ll3 Wn. App. 359, 373, 53 P.Bd
1020 (20()2) (quoting Mz'elke v. Yellc)wsrone Pz'j_)eline Co., 73 Wash. App. 621, 624, 870
P.Zd 1005 (£994)).
'l``he elements for a claim of intentional trespass are: "(1) an invasion affecting an
interest in the exclusive possession of property; (2) an intentional doing of the act which
results in the invasion; (3) reasonable foreseeability that the act done could result in an
30
‘No.3027U-9dll
Jackass Moz»tntain Ranch, [rzc. v. S. Columbia Bczsz``n irrigation Dl``st.
invasion ofplaintiff’ s possessory interest; and (4) substantial damages to the res." Seal v.
Naches~iS'elcz/’i ]rrigation Dz'.s‘z'., 51 \i\./n. App. l, 5, 751 P,Zd 873 (1988) (citing Bradley v.
Am. Sme[l‘z'ng & Rej?ning Co., lO¢i» Wn.Zd 677, 691, 709 P.Zd 732 (l985)).
The element of intent requires proof that the actor "‘ desires to cause consequences
of his act, or that he believes that the consequences are substantially certain to result frorn
it.’ " Seal, 51 Wn. App. at 5 (quoting Bradley, l()¢l Wn.Zd at 682). At a ininirnurn, this
requires proof that the actor has knowledge that the consequences are certain, or
substantially certain, to result froin his conduct and proceeds in spite of this knowledge
Seal, 5l Wn. App. at 5 (quoting Brad[ey, 104 Wn.Zd at 682).
in Seul, this court rejected the plaintiff s clairn for trespass, stating that
Washin``gton courts "have adopted a rule of negligence with regard to damage resulting
from the inaintenance, construction or operation of irrigation worl106 Wash. App. 647, 660,
24 P.?)d 1098 (2001)4. The trial court properly dismissed JMR’s trespass claim
Conclusiorz. We affirm the order granting suinmai'y judgment to SCBID.
Kulik, J.
WE CONCUR:
Brown, J .
far
,F£9‘"
U (/
Siddoway, A.C.J.
33