In re: Flood Litigation, 216 W. Va. 534

Summary

The Supreme Court of Appeals of West Virginia addressed certified questions arising from lawsuits concerning flooding in southern West Virginia on July 8, 2001. The court held that plaintiffs could pursue claims based on unreasonable use of land, negligence, and interference with riparian rights, while rejecting strict liability for the defendants' natural-resource extraction activities and declining to resolve the nuisance question on the stipulated facts. The court also concluded that state-law claims were not preempted merely because the activities complied with federal law and permits.

Holdings

1. Both adjacent and non-adjacent plaintiffs may state a cognizable cause of action for unreasonable use of land under the balancing test adopted in Morris Associates, Inc. v. Priddy; reasonableness is ordinarily a factual question for the jury.
2. A jury determining whether a landowner acted reasonably under the Morris rule should generally consider all relevant circumstances, including the amount and foreseeability of harm and the purpose or motive of the landowner.
3. The court did not answer the nuisance certified question because the stipulated facts were insufficiently precise and undisputed, but held that West Virginia nuisance law does not categorically exclude claims involving surface-water diversion or require repeated or continuous interference.
4. Plaintiffs may state cognizable negligence claims based on defendants' use of their land.
5. Natural-resource extraction activities and ancillary conditions alleged in this litigation are not categorically abnormally dangerous, and defendants are not strictly liable on the stipulated facts.
6. Riparian plaintiffs whose property borders or contains a stream in the affected watersheds may state claims for interference with riparian rights when flooding substantially increases the stream's natural flow or causes water to overflow and stand on their land.
7. Federal law does not preempt the plaintiffs' state-law claims for flood damages under the facts presented, even where extraction complied with federal law and federal permits.
8. Compliance with applicable state and federal regulations is competent evidence in negligence and unreasonable-use claims when the injury is of the type the regulations were intended to prevent, but compliance does not establish due care, create a presumption of due care, or eliminate liability.
9. When an unusual and unforeseeable rainfall event combines with actionable conduct, a defendant is liable only for damage fairly attributable to its conduct if the defendant proves by clear and convincing evidence the character and measure of damage that was unforeseeable, solely caused by the rainfall event, and not fairly attributable to the defendant. If the defendant cannot make that showing, it bears the entire liability.

Questions Presented

1. Whether adjacent and non-adjacent plaintiffs may pursue an unreasonable-use-of-land claim under the balancing test in Morris Associates, Inc. v. Priddy.
2. Whether plaintiffs may pursue negligence claims based on defendants' use of their land.
3. Whether natural-resource extraction or conditions resulting from it constitute abnormally dangerous activities subject to strict liability.
4. Whether riparian owners may pursue claims based on increased stream flow and flooding of their land.
5. Whether federal law preempts state-law claims for flood damages when natural-resource extraction complied with federal law and permits.
6. Whether regulatory compliance is evidence in negligence or unreasonable-use actions.
7. How causation and damages should be allocated when an unusual, unforeseeable rainfall event combines with actionable conduct.

Disposition

other