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P/SUNNY Temp: 65 °F Wind: WNW at 10 mph Monday, June 23, 2003 SECTIONS Home Page Local News Sports Business Obituaries Life Opinion - Politics AP News Weather Classified Archives Site Map EXTRA HomeLife Magazine W3 Magazine Jobs @ Mail Tribune Tempo A & E Oregon CarZone Wellness Connection Real Estate Newspaper in Education Prime Times Outdoor Journal Personals Movie Times TV Times E The People CLASSIFIEDS Find a Car Find a Home Find a Job Find Everything E SOUTHERN OREGON Automotive Communities Entertainment Publications Recreation Calendar ABOUT US FAQ What's New Advertise Home Delivery Classified Ad Contact Us Media Kit Email Story to a Friend June 19, 2003 Ashland avoids paying in lawsuit Couple waited too long to sue over flood damage By TONY BOOM Mail Tribune ASHLAND — The city isn’t liable for $50,000 that a Jackson County jury awarded to an Ashland couple for 1997 flood damages because the couple filed their case more than 10 years after a road was built above their house. Oregon’s Court of Appeals ruled that Ashland’s insurer would not have to pay Timothy and Joanne Rutter. A suit brought by the Rutters was filed after a statute of limitation had expired. "We’re pleased with the result and felt that this is what would happen on appeal," said Gerald Warren, who represented the city and its insurer, City/County Insurance Services. "I felt we had a good, strong legal position. The jury’s decision was based on emotion." The court’s ruling, made on Thursday, will not affect the $27,599 already paid to the Rutters by Mountain Park Development’s insurance company as part of an original award of $91,999 by the Jackson County Circuit Court jury in May 2001. Mountain Park, successor to Mark Cooper who originally developed Marklyn Drive, elected not to participate in the appeal. Advertisement Neighbors expressed concerns about the land’s stability when construction started in 1983. In 1984 the Rutters wrote to the city, asking for problems to be fixed, but they never filed a suit. The court found no continuing relationship over the issue that might have negated the limitation. The Rutters’ house at 516 Granite St. was filled with mud when the hillside collapsed during the flood. The Rutters claimed the city was negligent in allowing the road to be built. "I feel we really won when the circuit court decided the city of Ashland was negligent," said Tim Rutter. "We’re of course disappointed in the ruling, but not surprised. Our attorney told us in the very beginning that you don’t sue city hall." Rutter said he wouldn’t appeal the decision because of the expense involved. Medford attorney Lee Werdell, who represented the Rutters, cited several earlier cases in which the 10-year limit was suspended to support the Rutters’ claim. "Judges in many cases are able to construe language in prior cases in more than one way," said Werdell. "That’s what makes this an uncertain business. The three-judge panel construed the cases and language differently." Werdell said the ruling will bring unfortunate outcomes. "It seems to me that the net result of this ruling is that if you create something that’s dangerous, if it doesn’t collapse or fall down or fail within 10 years, you got away with it," said Werdell. Ten-year limitations have probably become an absolute as a result, said Werdell. "There were some exceptions to that," said Werdell. "But with this case, clearly there simply aren’t any, even if you ought to be doing something about it and you don’t, which is what the city did about a condition that they knew would be dangerous." "The city took the position from the beginning that it was not responsible for the landslide or the damage," said City Attorney Paul Nolte. "In the Rutters’ case, the city was not willing to pay for damages when it felt it hadn’t done anything wrong." The jury originally awarded the Rutters’ $91,999, with $64,400 to be paid by the city. The city’s share was later reduced to $50,000 after another ruling. Reach Ashland bureau reporter Tony Boom at 482-4651, or e-mail [email protected] Printer Friendly Version Email Story to a Friend Subscribe Archive: Click to Search Mail Tribune Home Local News | Sports | Business | Obituaries | Life Opinion - Politics | AP News | Archives | Site Map E Southern Oregon | Classified Copyright © 1997-2003 Mail Tribune. All rights reserved. Privacy Policy | Terms & Conditions Website Feedback A D V E R T I S E R S SPECIAL SECTIONS Rogue Valley Auto Finder Rogue Valley Job Finder --> Rogue Valley Home Finder Joy Magazine Homelife Magazine Tempo Real Estate Showcase Food for Thought Hike of the Week Wellness Connection Outdoor Journal Moving to Southern Oregon? Volunteer Openings Prime Times