Unclear Washington landslide lawsuits could win

March 11, 2022

SEATTLE (AP) — The warnings could hardly have been
clearer. One technical report told of the "potential for a large
catastrophic failure" of the 600-foot hillside above a rural
neighborhood near Oso, on the Stillaguamish River. Another noted plainly
that it "poses a significant risk to human lives and private property."
The danger was so apparent that Snohomish County officials mulled buying out the properties of the
residents who lived there.
Instead,
the county continued to allow the construction of homes nearby. Seven
went up even after a significant slide approached the neighborhood in
2006.
Whatever the wisdom of its decision, the county might never
be held liable in court for not doing more to protect residents, an
outcome that would leave victims of last month’s devastating landslide
one fewer avenue for recovering financially for their damages.
Whether
government agencies or landowners can be held liable for damages caused
by landslides in Washington state is highly dependent on the facts of
each case. Generally, governments are not liable except in narrow
circumstances, such as if an agency specifically tells the residents
they’re safe before a slide, or if an agency takes it upon itself to fix
a hazard but actually makes things worse.
"This is a terrible
tragedy and still very fresh. But it is nonetheless my concern that
people turn to the government as the insurer of last resort," said David
Bruce, a Seattle lawyer who represents governments in
landslide-liability cases. "The fact of the matter is that in the Puget
Sound basin and the foothills of the Cascades, there’s a tremendous
amount of landslide-prone areas. The government isn’t here to prevent
people from suffering natural catastrophes."
The massive slide
northeast of Seattle on March 22 obliterated the hamlet, temporarily
blocked the river and wiped out a state highway, entombing dozens of
victims in a slurry of mud, logs and debris. Thirty bodies have been
found. More than a dozen people remain missing.
Financial losses
to homes and property total about $10 million, Gov. Jay Inslee said. A
major disaster declaration from President Barack Obama has cleared the
way for help to the victims, but some lost their second homes, which
aren’t covered by disaster aid. Homeowners insurance is also unlikely to
cover the damage, though such policies might if it is ultimately
determined that logging at the top of the hill helped cause the
devastation.
It seems all but certain that at least some of the
survivors or the estates of victims will sue to recover some of their
damages, though such cases can be tough to win, lawyers said.
"I
hope there is some recourse," said Davis Hargrave, a 73-year-old
architect from Kirkland who lost his second home. "Were we informed of
this danger? No, a very emphatic no.
"The county is happy to send
you a bill for your utilities every month. Could somebody drop you a
postcard and say, ‘Hey we got word the mountain could fall on you?’ Not
even a postcard."
Karen Willie, a Seattle attorney who represents
victims in landslide cases, said her office has started investigating
the myriad issues that could determine whether the county or any uphill
landowners — most notably, Grandy Lake Forest Associates LLC, which
logged a pie-shaped area of about seven acres at the top of the hill —
might be held to account. The state also owns some land near the slide.
Grandy
Lake Forest did not immediately return a call seeking comment. Several
geotechnical experts have said they believe the main causes of the
landslide were record rains and river erosion at the foot of the hill,
but some have said logging could have played a role by removing trees
that would have helped absorb the rainfall. The state Department of
Natural Resources has said that in its logging, Grandy Lake strayed
about one acre into an area that was supposed to be protected because of
groundwater concerns.
"I think that’s going to be a key player
here," said Joseph Wartman, a University of Washington engineering
professor who is helping lead a federally funded team examining the
landslide’s causes. "What we generally know is that logging and
clear-cutting were not likely to enhance the stability of this
landslide. The question is how deleterious those effects are."
Landowners
generally can be held liable for any harm they unleash through logging
or other activities, especially if they fail to exercise reasonable
care. But it can be a heavy burden for plaintiffs to prove that a
landslide wasn’t simply a natural occurrence.
Willie said she was
stunned when she began reading technical reports from 1999 and 2000, in
particular one by Tracy Drury, a geotechnical consultant who warned of
"significant risk to human lives and property." It isn’t clear to what
extent residents knew of the reports. Some have told reporters they
never knew the county had considered whether to buy out their
properties.
"The Drury report is very strong language for a
scientist to use," Willie said. "Think about that:
If somebody read you
Drury’s report and said they’d buy your property at fair-market value,
and then you have to drive there with your kid in the car, would things
have been different? I think so."
But outrage doesn’t necessarily translate into liability.
"The
beginning point of the law is that it’s the responsibility of the
landowner to be aware of the dangers on their own property," said David
Bricklin, a Seattle lawyer who has represented landslide victims. "If
you go to the county and say, ‘I’m worried about the landslide risk,’
and the county says, ‘Well, we’ll do an investigation and figure it out
and we won’t issue a building permit unless it’s safe,’ then the
county’s in trouble. But that’s not typically what the county does."
Drury’s
report warned that buying out the properties along the river would be
difficult because some owners wouldn’t want to leave. Instead, the
report suggested placing a log structure in the river to protect the
hillside from erosion. The Stillaguamish Tribe eventually did so.
Bricklin
noted that when local governments deny someone a building permit, they
can be sued for depriving the landowner of property rights. But they
can’t be sued for issuing a permit.
"It puts pressure on agencies to issue permits even when they think they know better," he said.

No posts to display