due care exception in Washington

2016Cox and Lau, JJ., concur. 1 “When determining liability under the common enemy doctrine, the due care exception requires the court to look only to whether the landowner has exercised due care in improving his or her land, i.e., whether the method employed by the landowner minimized any unnecessary impacts upon adjacent land.’’ Currens, 138 Wn.2d at 866 . 2 We note that Fliegman is an unreported decision, but because it may be cited under the rules of New York State, Mustoe properly cites it here under GR 14.1(b).

2015The due care exception “thus serves to cushion the otherwise harsh allocation of rights under the common enemy doctrine.” Currens, 138 Wn.2d at 864 . ¶44 At the same time that the Currens court unequivocally adopted the due care exception, it also rejected an invitation to depart from its common enemy doctrine jurisprudence in favor of the “reasonable use rule.” 138 Wn.2d at 866 .

2012App. 817, 822 , 978 P.2d 1101 (1998), review denied, 139 Wn.2d 1011 (1999), for instance, Division One of this court refers to seeking “the shield of the common enemy doctrine.” And, in Currens v. Sleek, 138 Wn.2d 858, 866-67 , 983 P.2d 626 , 993 P.2d 900 (1999), our Supreme Court is explicit in its liability analysis: When determining liability under the common enemy doctrine, the due care exception requires the court to look only to whether the landowner has exercised due care in improving his or her land, i.e., whether the method employed by the landowner minimized any unnecessary impacts u

2001This case involves the application of the due care exception to the common enemy doctrine adopted in Currens v. Sleek, 138 Wn.2d 858 , 983 P.2d 626 , 993 P.2d 900 (1999), to municipal road improvement projects.

1999In Wood v. City of Tacoma, 66 Wash. 266, 273-74 , 119 P. 859 (1911), we stated that a landowner in developing land or fending off diffuse waters may be held liable for doing so negligently.

1999In Wood v. City of Tacoma, 66 Wash. 266, 273-74 , 119 P. 859 (1911), we stated that a landowner in developing land or fending off diffuse waters may be held liable for doing so negligently.

2020App. 547, 557 , 66 P.3d 1111 (2003). “[T]he due care exception requires the court to look only to whether the landowner has exercised due care in improving his or her land, i.e., whether the method employed by the landowner minimized any unnecessary impacts upon adjacent land.” Currens, 138 Wn.2d at 866 .

2020The due care exception requires the defendant “limit any harm caused by changes in the flow to that which is reasonably necessary.” Pruitt v. Douglas County, 116 Wn.

2015App. 359 , 53 P.3d 1020 (2002), is instructive. 7 There, the Bordens, whose property lay in a drainage basin, sued the city of Olympia when the city assisted a private developer’s efforts to build a stormwater drainage project.

2015To the extent that the trial court erred by referring to the “utility” of the grading project, the record nevertheless contains facts to support the application of the due care exception. ¶48 Our decision in Borden v. City of Olympia, 113 Wn.

2015We also mentioned in Borden that the adoption of the due care exception essentially signifies that Washington now recognizes a negligence cause of action for altering the flow of naturally occurring surface and ground water. 113 Wn.

2012App. 817, 822 , 978 P.2d 1101 (1998), review denied, 139 Wn.2d 1011 (1999), for instance, Division One of this court refers to seeking “the shield of the common enemy doctrine.” And, in Currens v. Sleek, 138 Wn.2d 858, 866-67 , 983 P.2d 626 , 993 P.2d 900 (1999), our Supreme Court is explicit in its liability analysis: When determining liability under the common enemy doctrine, the due care exception requires the court to look only to whether the landowner has exercised due care in improving his or her land, i.e., whether the method employed by the landowner minimized any unnecessary impacts u