Argued and Submitted June 12, 2013.
Clackamas County Circuit Court CV09080800. Susie L. Norby, Judge.
James T. McDermott argued the cause for appellants-respondents Alan Bazzaz and Fatma Bazzaz. With him on the briefs were Ciaran P. A. Connelly and Ball Janik LLP.
John L. Langslet argued the cause for respondent-appellant William J. Howe, III. With him on the briefs was Martin Bischoff Templeton Langslet & Hoffman LLP.
Before Nakamoto, Presiding Judge, and Egan, Judge, and Schuman, Senior Judge.
[262 Or.App. 521] NAKAMOTO, P. J.
Plaintiffs brought claims for negligence, trespass, timber trespass, ultrahazardous activity, and private nuisance against defendant, their neighbor, alleging that actions defendant took on his property triggered landslides that destroyed plaintiffs' home. Plaintiffs appeal from a jury verdict and general judgment in favor of defendant. On appeal, plaintiffs pursue two assignments of error with regard to their negligence claim: the trial court erred by (1) admitting evidence that the builder of plaintiffs' home was negligent and failed to build the house to standards required by building codes and (2) giving a jury instruction on the natural flow of surface water. We conclude that the trial court did not reversibly err, and we affirm. Given our disposition, we need not, and do not, address plaintiffs' third assignment of error regarding their attempt to seek punitive damages and defendant's four cross-assignments of error.
Plaintiffs owned a home located east of and across a road downslope from defendant's house and property. The east side of defendant's property is steeply sloped and abuts a road, Greenbluff Drive. Across Greenbluff Drive from defendant's property is another steeply sloped section of property owned by the Marylhurst Place Homeowner's Association (HOA). The HOA's property abutted the backyard of plaintiffs' house, which was cut into the hill and had retaining walls.
In January 2009, during a storm, two landslides occurred affecting the parties' properties. One landslide originated on defendant's property, blocking Greenbluff Drive and a storm-water ditch that ran along the road. The second landslide originated on the HOA's property and damaged plaintiffs' house beyond repair.
[262 Or.App. 522] The parties had competing theories and expert opinions on which landslide occurred first and the cause of each landslide. Generally, plaintiffs' theory was that, despite knowledge that his property was prone to slides, defendant removed trees and vegetation from his property and directed storm water to the sloped area of his property, causing the landslide that blocked Greenbluff Drive, which, in turn, forced storm water over Greenbluff Drive and onto the HOA's property, triggering the second landslide that destroyed plaintiffs' home.
Defendant countered with his own theories concerning why he had not acted improperly and had not caused plaintiffs' damages. The defense theories included that (1) the landslides occurred solely due to an extreme, unprecedented storm event, (2) the landslide on the HOA property occurred first, (3) the City of Lake Oswego failed to maintain and clear a storm-drain culvert that, if clear, would have directed the storm water safely away from the landslide blockage on Greenbluff Drive, (4) the builder of plaintiffs' home--Cypress Properties, Ltd. (Cypress)--did not build plaintiffs' house in accordance with building codes for slope setback and retaining walls, and if it had, plaintiffs' home would not have been damaged, (5) plaintiffs knew that they should have had the slope and retaining walls inspected by a geotechnical engineer before they bought the home, but chose not to, and (6) defendant's actions on his property were not negligent and could not have caused the landslide because the tree and vegetation removal occurred in a different area and the storm water had been directed to the same area since 1956 and caused only a negligible increase in water flow.
Based on those theories, among others, defendant brought a third-party complaint for indemnity and contribution against The Piculell Group, Inc., the developer of plaintiffs' neighborhood; Cypress; the HOA; and the City of Lake Oswego. All of the third-party defendants were dismissed before trial, either through summary judgment or by voluntary dismissal. With respect to the dismissal of Cypress, the trial court concluded that " there is no common duty mutually owed by [defendant] and Cypress to support [defendant]'s claim for indemnity and contribution. Furthermore, [262 Or.App. 523] [defendant]'s obligations to plaintiff[s] were both active and primary."
Plaintiffs' claims went to trial, and the jury returned a verdict for defendant. On appeal, plaintiffs bring two assignments of error, which are related only to their negligence claim. First, plaintiffs assert that the trial court erred in admitting defendant's evidence of Cypress's conduct in building plaintiffs' home. Second, plaintiffs assert that the trial court erred in giving a jury instruction on the natural-flow-of-water rule because the rule had no application to the facts of this case. The procedural facts related to each of those assignments are discussed in turn below.
EVIDENCE OF CYPRESS'S CONDUCT
Based on the dismissals of defendant's claims against the third-party defendants before trial, plaintiffs brought motions in limine to exclude any evidence of the conduct of those third parties, arguing that they had been determined not to be at fault for plaintiffs' injury, and that any probative value of the evidence was outweighed by unfair prejudice and would mislead the jury. The trial court denied those motions, explaining that the evidence " would likely be relevant and essential to defenses based on causation, which require a finding of fact that could not have been made by a judge on Summary Judgment." Accordingly, the trial court concluded that " [d]efendant may offer evidence that a third party has ...