LOSS OF LOVE AND AFFECTION OF ELDERLY PARENTS
Leads to 2.3 Million Dollar Verdict

Early one November morning, following heavy rains, a mudslide roared down the face of Lookout Mountain into Cascade River Park, a recreational second home development near Marblemount in eastern Skagit County. Bill Bower, 74, Alice Bower, 73, and Betsy Jean Wilson, 63, were killed immediately. Claire Wilson, 64, was buried alive for 13 hours before being pulled from the debris; he died 13 days later.

Plaintiff's attorneys faced two primary challenges. First, since the mudslide originated from an old logging road that had been abandoned for 23 years, how could the jury be convinced to hold the state liable for a defect in a road built in the 40's and not used since 1962? Second, since the four retirees of modest means were not generating any income or supporting any dependents, how could a jury be convinced to award an appropriate sum for a loss which, although tragic, carried no easily definable economic impact?

Plaintiffs made the age of the road a positive factor by focusing on the Department of Natural Resources' practice of not inspecting or maintaining old logging roads which had been abandoned before the 1974 Forest Practices Act. The central liability theme was presented in the question: Is the Department of Natural Resources' practice of refusing to inspect or maintain pre-1974 logging roads, even above established residential communities, negligent?

DNR admitted the lack of inspections but argued that since there are thousands of miles of old logging roads it would be impractical to inspect or maintain all of them. Plaintiffs countered with a team of experts who documented the danger associated with this practice. The liability team consisted of a geomorphologist, a climatologist, a forest hydrologist, and a forester.

Geomorphologist Professor Donald Easterbrook of Western Washington University, immediate past president of the Courtenary Geology and Geomorphology Section of the Geological Society of America and author of Principals of Geomorphology, testified that landslides such as this occur when four interrelated conditions are present: steep slopes, recurrent heavy rainfall, unstable fill at switchbacks on logging roads, and defective drainage. Steep slopes, recurrent heavy rainfall and the fill that is a necessary component of logging roads on those steep slopes are unavoidable conditions in much of the timber producing area of Western Washington. The fourth critical factor, defective drainage, is particularly within human control; thus, DNR's failure to inspect and correct the defective drainage was found to be a proximate cause. The drainage problem arose years before the mudslide when a small rockslide diverted water from a natural channel onto the surface of the road where it cut a channel down the roadbed to an area of unstable fill at a switchback. During the heavy rainstorm, the rechanneled heavy runoff oversaturated the fill and precipitated the mudslide.

Climatologist William Haggard, retired chief of the National Weather Data Center in Asheville, North Carolina, analyzed the climatological data to demonstrate that the mudslide was not caused simply by an "Act of God" magnitude rainstorm. By analyzing all of the rainfall data ever obtained in the surrounding area, Mr. Haggard estimated that the four inches of rain that fell in the 24 hours preceding the mudslide would have a probability of recurring once every 13 years and consequently could not alone be blamed for the mudslide.

Dr. Paul Zinke, University of California, Berkeley, a noted forest hydrologist, demonstrated that the blocked drainage had effectively rechanneled a natural stream onto the logging road at an area of instability. There the water saturated the unstable soil, increased its pore pressure, increased its mass and decreased the forces resisting a landslide to a point of disequilibrium.

Finally, consulting forester William Eastman of Seattle pointed out that simple drainage control devices, well known in the logging industry at the time the road was abandoned in 1962, could have been installed so as to prevent the diversion of water that ultimately caused the mudslide.

Although DNR tried to blame the mudslide on channel changes so recent that reasonable inspection could not have been expected to find them, videotapes on the site, aerial photography, and professional photography by Bellingham's Pyramid Productions demonstrated that the drainage diversion had existed for over 10 years. For example, photographs of the roadbed demonstrated a channel scoured deep into bedrock.

The second challenge was to convince the jury to award a substantial sum to compensate the adult survivors of the deceased retirees. There was no future economic loss to the estates since the retirees had no income stream. And the survivors could prove no loss of support since the retirees provided no financial assistance to their adult children at the time of their deaths. The case was, in short, a claim for loss of love and affection.

The jury awarded $500,000 general damages for each death, primarily based on argument of counsel set up in the voir dire and culminating in final argument. The survivors, of course, testified that they loved their parents and suffered a great loss when their parents were killed. But such testimony would be routinely true for any loss of life. Here the testimony occupied only about one-half day of the 12-day trial. The damages theme on voir dire was that older people are just as valuable as younger people. This theme was re-enforced by asking jurors open-ended questions inviting them to describe their own parents, the value they place on the relationship with their own parents, and the value they place on the elderly within our society. Questions included: "How do you feel about mandatory retirement?" "How do you feel about the way our society treats older people?" "Describe the most important values you learned from your parents." "Describe the most important values you hope to pass on to your children."

Final argument by lead attorney Dean Brett emphasized the themes of love of family, the value of the elderly, and the value of grandparents in teaching important values to future generations. In addition, plaintiff argued for a substantial verdict to compensate Claire Wilson's estate for the 13 days of suffering prior to death.

The jury returned a verdict of $500,00 for each death plus $250,000 for pain and suffering for the 13 days of Claire Wilson's hospitalization. Total verdict, including special damages of $78,172.10 was $2,328,172.10. The award was appealed. The lawsuit was settled for $1,914,272.25.

Plaintiffs were represented by former WSTLA board member Dean Brett of Bellingham's Brett & Coats, Dave Svaren of Burlington's Twede & Svaren, and John Ward of Sedro Woolley.

The case is Estate of Claire Wilson, et ux., et al. v. Georgia Pacific and the State of Washington, Department of Natural Resources, Skagit County Cause No. 86-2-00164-9.

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