Summary 2006 WY 37

Summary of Decision issued March 24, 2006

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Case Name: Reed v. Cloninger; Sheppard; Cox and Fisher, Inc.; Jones; Parker; Parker and Shoshone Irrigation District

Citation: 2006 WY 37

Docket Number: 05-74

Appeal from the District Court of Park County, the Honorable Norman E. Young, Judge

Representing Appellants (Plaintiffs): Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellees (Defendants): S. Joseph Darrah of Darrah, Darrah & Brown, PC, Powell, Wyoming for Appellees Cloninger and Sheppard, Co-trustees of the Carl M. Burgener Family Living Trust Fund; S.B. Freeman III of Bormuth & Freeman, LC, Cody, Wyoming, for Appellee Cox and Fisher, Inc.; Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, PC, Casper, Wyoming, for Appellee Jones; David B. Hooper of Hooper Law Offices, PC, Riverton, Wyoming, for Appellees Melvin C. and Janet L. Parker; and Michelle A. Pinkowski and Robert G. Busch of Godfrey and Lapuyade, PC, Englewood, Colorado, and Harriet M. Hageman of Hageman & Brighton of Cheyenne, Wyoming, for Appellee Shoshone Irrigation District. Arguments presented by Ms. Pinkowski and Messrs. Hooper and Freeman.

Date of Decision: March 24, 2006

Issue: Whether the district court erred in ruling that Appellants’ claims were time barred and finding that they had discovered their cause of action when they knew of water damage to their home, but did not have any knowledge of continuing seepage into their basement. Whether the district court erred by failing to recognize the continuing duty of Appellees and by refusing to hold that each new incident of water seeping into the property constituted a new cause of action for statute of limitations purposes.

Holding: When the Court reviews a summary judgment, they have before them the same materials as did the district court. The granting of a motion for summary judgment depends upon the dual finding that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The record is examined from the vantage point most favorable to the party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record.
The Court concluded that the district court erred in granting summary judgment because there were many genuine issues of material fact to be determined before the case could be finally resolved. These included: the identity of the source of the water which seeps into Appellants’ basement and the date of discovery. The record suggested the water could have come from leakage or seepage of water being delivered for irrigation from the irrigation works; waste water being collected and/or diverted by the irrigation mechanisms after irrigation; and a rise in the water table caused by the practice of irrigation. If the evidence indicates water invades the home as a result of a leakage or seepage from the Appellees’ irrigation system or their attempts to recapture or divert waste water, Appellants will be required to prove negligence in order to recover. If the evidence reveals that the original design is at fault, then there will be a question of fact as to when the cause of action was discovered. The discovery rule can have the effect of delaying the accrual of the cause of action in which the injury or damage is not immediately apparent. Appellants further claim a new trespass occurs each year during the irrigation season possibly constituting a continuing trespass or continuing tort.

The Court stated these numerous issues of material fact must be resolved before the appropriate statute of limitations may be applied. The order of the district court was reversed and remanded.

C.J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/rozm9 .