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Louie v. Gdowski11/27/2000
CERTIFIED FOR PARTIAL PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Jean E. Matusinka, Judge.
Reversed.
introduction
Diana Gdowski and James and Roella Louie own adjoining properties in a residential subdivision in Palos Verdes Estates. Following heavy rains in January 1995, Gdowski's home was flooded and severely damaged. By a cross-complaint, Gdowski (plaintiff) sued the Louies (defendants), claiming they were responsible for her loss because their landscaping had altered the natural flow of the surface waters.
A jury trial was conducted which resulted in a defense verdict. On this appeal, plaintiff raises contentions of instructional error and improper evidentiary rulings. Plaintiff's claim of instructional error is well-taken. As we will explain, decisional law defining liability based upon a defendant's diversion of the natural flow of water makes clear that traditional negligence principles do not apply in this situation. In particular, even were a jury were to find that defendants had acted reasonably, defendants would nonetheless still be liable for plaintiff's damages if the jury also found plaintiff had acted reasonably. Plaintiff submitted jury instructions based upon this body of law. The trial court refused to use those instructions and, instead, instructed the jury using general principles of negligence and contributory negligence. This constitutes prejudicial error requiring retrial before a properly instructed jury. This analysis essentially renders moot consideration of plaintiff's particular claims of evidentiary error, which are addressed in the nonpublished portion of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence Presented at Trial
Each house is on a relatively flat lot. Plaintiff's home was built in 1968; she purchased it in 1993. Defendants' home was constructed in 1971; they purchased it in 1978.
Defendants' home is directly behind plaintiff's residence. There is a 7 and 1/2 foot wide service walk area behind plaintiff's house which constitutes 354 square feet. It is at this point where the two properties meet that the controversy arises. Plaintiff's primary theory was that defendants' 1981 landscaping of their backyard caused all water runoff from their property to go in the direction of the rear of plaintiff's home at the service walk area. Secondarily, plaintiff claimed that the mounded lawn in the defendants' front yard erected a barrier which prevented their rear yard from draining to the street. Plaintiff claimed these configurations essentially channeled an 8,900 square foot drainage area (defendants' property) into her 354 square foot rear walk, causing significant flooding and damage to her home in January 1995. Whether defendants' landscaping caused the flooding and whether defendants were on notice of the potential danger before it occurred were two hotly disputed issues at trial.
In regard to defendants' landscaping, the defense testimony was that defendants had simply "refreshed" the backyard and had made no changes in regard to contour, elevation, or grade. However, plaintiff offered into evidence a $2,675 invoice from the landscaping company, an invoice defendant James Louie authenticated. The invoice provides that the work to be done to defendants' backyard included the removal of all trees, shrubs, lawn, and landscaping "not relevant to design" and the turning over, to a depth of six to eight inches, all of the dirt in the backyard. The landscaper was to "add topsoil/compost & amendments rake, level, grade." (Italics added.)
Additionally, plaintiff offered testimony to suppo
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