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Trust Me, I’m An Expert: Proving Flooding Cases In North Carolina

Let’s talk about flooding.  There is a lot of land development going on out there, and, with development, comes land disturbance.  And, with land disturbance, can come change in water flow.  With change in water flow, there can be flooding.  This is a case about flooding, and the burdens of proof.

Landowners own two adjacent parcels in Boone, North Carolina, which is in the mountains.  As is the case in these mountains, wet weather and topography means that water flows across the two parcels.  Nothing unusual.  However,  in 2012, a developer “acquired several tracts of land, including parts of the steeply sloping mountain abutting” the two parcels.  Shortly after purchase, the general contractor working for the developer began its work:  “grading, excavating, filling, and the removal of natural ground cover”.  Well, wouldn’t you know it, the County AND the Town found problems with the general contractor’s work:  “The County Planning Department’s report indicated that the Cottages project did not comply with the Sedimentation Pollution Control Act of 1973 (the “Sedimentation Act”), while the Town Planning Department issued a report indicating that the Cottages project did not comply with the Town of Boone Unified Development Ordinance.”

In the first part of 2013, the weather turned.  “[H]istoric rainfalls”, according to the Court, resulted in “widespread flooding in Watauga County”.  Of course, our original landowners – they of the “two adjacent parcels” – felt the flooding on their lands, and blamed the neighboring development.  Accordingly, in 2014, the landowners filed suit against the developer claiming violation of the State law Sedimentation Act, trespass, private nuisance, punitive damages, and unfair and deceptive trade practices.  The landowners amended to add the general contractor.  The case is Abdin v. CCC-Boone, LLC, No. COA16-17 (February 7, 2017).

Here is where it gets complicated.  Defendants moved for summary judgment, and submitted two expert witness affidavits opining “that Defendants’ construction activities did not cause the flooding events” on plaintiffs’ parcels.  In response, plaintiffs filed affidavits in their own names “opining that based on their personal observations of the flooding, their conversations with a construction superintendent who worked on the Cottages project, and documents obtained from Defendants in discovery, they had determined that Defendants’ construction activities caused the flooding.”  Plaintiffs are not experts, which they essentially admit.  Instead, plaintiffs contend that their lay testimony is sufficient to establish “proximate cause” between defendants’ developing on the neighboring property and the flooding on plaintiffs’ parcels.  The Court disagreed with plaintiffs, and affirmed summary judgment in favor of Defendants.  The Court reasoned:

Plaintiffs contend this case is controlled by [BNT Co. v. Baker Precythe Development Co., 151 N.C. App. 52, 57-58, 564 S.E.2d 891, 895 (2002)] and other simple flooding cases, while Defendants assert this case is closer to [Davis v. City of Mebane, 132 N.C. App. 500, 504-05, 512 S.E.2d 450, 453 (1999)]. The undisputed evidence of complex environmental circumstances in this case is more akin to that in Davis, so the trial court did not err in granting summary judgment in favor of Defendants for Plaintiffs’ lack of expert testimony on the issue of proximate cause. Much like Davis, the factors related to causation in this case included corresponding rainfall events, a designated wetlands area, water flow patterns through open channels and corrugated metal pipes, sedimentation deposits, and runoff from various sources including a NC DOT storm-water box that directed water from an adjacent highway onto the Properties. Because of these multiple factors as well as evidence of flooding on the Properties prior to the construction of the Cottages, the trial court did not err in concluding that Plaintiffs could not raise a genuine issue of material fact regarding proximate cause without introducing expert testimony.

So, the lesson is: don’t risk it.  Don’t assume the case is a “simple” flooding case.  Rather, assume it’s  “complex” flooding case, requiring expert testimony.  Yes, that is easy enough in hindsight but it’s what made the difference here.

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