Document text
City seeks new trial in flood case By TONY BOOM ASHLAND - The city is seeking a new trial or dismissal of a $50,000 award to a couple whose house was damaged during the 1997 New Year's Day flood. A developer's insurer already has paid its share - $27,599.70 - for damages in the same incident. Tim and Joanne Rutter claimed the city and Mountain Park Development were negligent in not correcting conditions on Marklyn Drive that caused mud to damage their home at 516 Granite St. during heavy rainfall. A Jackson County Circuit Court jury agreed with the Rutters and awarded them damages on May 24. Gerald Warren, an attorney representing the city, has filed motions with Jackson County Circuit Court arguing that a statute requires plaintiffs in such cases to have sought a correction for the problem during the 10 years preceding the damage. He said that because the Rutters did not do this, the statute nullifies their claim. He also said the road was not a proven cause of the slide. Circuit Court Judge Mark Shively, who presided at trial, will consider the motions on Aug. 17. The award will stand if he does not grant the judgment or order a new trial by Aug. 29 A jury originally found the city was liable for 70 percent of the damage and determined that Mountain Park was responsible for 30 percent. The city's payment amount was reduced from $64,399 to $50,000 after Warren argued successfully that Oregon law limits the city's obligation to that amount. Rutter said his attorney, Lee Wurdell, doesn't think the case will go to a new trial because the defendant doesn't have any new arguments. Wurdell was out of town Thursday and unavailable for comment. If the case does go to a second trial, Rutter hopes documents the judge did not allow at the first trial could be entered as evidence. Among them is a 1985 letter from James H. Olson, assistant city engineer, who wrote that drainage and cross ditches for the road needed to be maintained to prevent problems, including a possible debris flow. Olson testified at the trial that by 1987 the road had settled and was no longer a concern to the city. "I'd like to get it behind me," said Rutter. "It's supposedly out of the city's hands, but they employ the insurance company. The insurance company shouldn't dictate how the city treats these kinds of things." Warren would not discuss how the decision was made to pursue the matter further in court. He works for City and County Insurance Company, an organization that provides self-insurance for about 80 percent of Oregon municipalities, including Ashland. "We collaborate with the insurance company," said City Administrator Greg Scoles. "This issue would be coordinated by our legal department and their legal department. (City Attorney Paul Nolte) advises the council and administration to the proposed course of action." "The city attorney and others are wholeheartedly behind not establishing a bad precedent," said Warren. He speculated that Mountain Park's insurer did not want to pursue an appeal or attempt to get into a new trial that would cost about $15,000. Neither Mountain Park Development owner Doug Neuman nor his attorney, David Paradis, returned telephone calls seeking comment. Development of the area above Granite Street was contentious before the flood. City officials stopped original developer Mark Cooper in 1983 for not building according to plans. After litigation, development was allowed to continue in 1993. Neuman bought the property in 1996. Reach Ashland bureau reporter Tony Boom at 482-4651, or e-mail [email protected] Mail Tribune Home | Ottaway Newspapers, Inc. | Dow Jones & Co., Inc. | Privacy | Contact Us Copyright � 2001 Mail Tribune, Inc.