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Wong v. 396 Investment Co.5/17/2005
e defense to the plaintiffs' tort claims. More specifically, Anaheim contends that there were three separate projects, i.e., the design and construction of the reservoir, the design and construction of the underdrain system, and the underdrain system abandonment project. It argues that it can have no liability because it met its burden to show each of the three elements of design immunity with respect to each of the three separate projects. Anaheim maintains that the court erred in holding otherwise and failed to address each of the three projects separately.
We disagree. The trial court provided a lengthy analysis of the design immunity issues in its statement of decision, and did indeed address each of the three projects. It held that the design immunity defense failed as to each project and furthermore that any design immunity would have been lost due to changed physical conditions in any event. However, we need not address each element of design immunity with respect to each of the three projects in order to answer the question on appeal. We need only show that the trial court correctly ascertained that any design immunity with respect to the initial design of the reservoir was lost due to changed physical conditions. To the extent the underdrain system installation may have aggravated the situation and a claim is made that Anaheim should be protected by the design immunity defense with respect to the method of abandonment of the underdrain system, we hold that the defense is unavailable because the method of abandonment was not reasonable.
(2) Background
The reservoir was constructed in 1962. As originally designed and built, it had a five-foot thick earthen liner. In 1986, Anaheim built a system of underdrains to alleviate back pressure on the reservoir liner and intercept any groundwater that might flow in the direction of the reservoir. CH2M Hill designed the underdrain system, which was approved by both Anaheim and the State of California, Department of Water Resources, Division of Safety of Dams. Trenches were dug in the earthen liner in order to install the underdrains. This left portions of the liner only one foot thick.
As the trial court observed in its statement of decision, "When the reservoir was refilled the weir into which the underdrains discharged showed a large increase in water flow in the canyon channel below the reservoir's dam. . . ." The water flow was measured at more than 600 gallons per minute. Anaheim contacted CH2M Hill in May 1986 and requested that the company immediately diagnose the problem of increased water flow from the reservoir. As a temporary solution, a gate valve was put in place to reduce the flow.
Anaheim also contacted James Barry Cooke, an engineer and international consultant on reservoir, dam and hydroelectric projects. It sought his advice in reviewing the work of CH2M Hill, on account of the increased water flow from the reservoir. Cooke recommended that Anaheim cap and shut down the underdrain system. That was not the extent of his recommendation, however.
Cooke was concerned about the fact that portions of the liner were only one foot thick and that the liner would be weak in the locations where it was that thin. Indeed, he concluded that the underdrain system failed because of the inadequacy of the one-foot thick portions of the liner. He stated in an October 16, 1986 letter to Anaheim that the one-foot layer of clay did not provide an adequate seal. He recommended that the liner be restored to five feet.
In June 1987, a leakage test was conducted that showed the reservoir was leaking 65 gallons per minute. CH2M Hill concluded that the reservoir liner was not impermeable as
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