By Karen A. Willie and Michael D. Daudt
Over the years in our water law practice, we have seen certain patterns over and over in dealing with landslides, flooding and other madcap adventures involving surface water. A dose of preventive thinking would help your clients (and you, if you have property in the beautiful Northwest).
First, friends do not let friends buy steep-slope property. If you break this rule, make sure a reputable geotechnical engineer inspects the property and gives it a clean bill of health. As a preliminary matter, you can go online -  - and see if the City of Seattle has placed the property in a designated steep-slope area.1
If the property is above the oft-covered-with-landslides railroad tracks, you can have the geotechnical engineer obtain historical aerials to see if the property has sustained a slide in the past. Your engineer can also contact the railroad, noting the milepost number nearest your client's property, and ask if there has been landsliding on that section of the tracks. Using the state's Public Disclosure Act, RCW ch. 42.56,2 you could ask the local municipality for any records of landsliding events or surface water complaints in the area.
The engineer should notice whether the developer of the surrounding area madly pushed fill out onto part of the slope to make a building site. You do not want your client to live on a newly created shelf of fill. All of the downspouts at the property should also be examined and traced. Often, downspouts and other pipes conveying water are simply directed into the ground where they will either directly or indirectly affect the steep slope.
If there is a hidden defect such as this and the property experiences a landslide after the six-year construction statute of repose has expired, the case is time barred.3 In 1519-1525 Lakeview Blvd., condominiums overlooking I-5 sustained landslides in January 1997 caused by underground pipes aimed at the condominiums' foundation. Because the occupancy permits were issued in August 1990, the engineers, architects and other professionals were dismissed from the lawsuit.
If the client's property is a low point that all the area's drainage flows down to, it will be maddening to repeatedly fend off the flows by putting in French drains and berms.4 The client has the right, under the common enemy rule, to fend off these surface water flows, but it must be done with "due care."5
Your client's definition of "due care" will likely clash with the neighbor's. It is best to suggest that the client employ an engineer so the construction is within the standard of care of the industry. The client should not supervise anything and should reasonably rely upon the engineer's expertise as an independent contractor. The client should not sign for permits as that could constitute a non-delegable duty that destroys the independent contractor defense.6