Bill would limit liability damages for canal companies

Bill would limit liability damages for canal companies

by
Mitch Coffman
February 16, 2012
Mitch Coffman
February 16, 2012

A bill limiting canal companies’ liability for damages done by third parties or an “act of God” now moves to the full House for consideration following its voice approval in the House Resources and Conservation Committee on Wednesday. House Bill 398 took up more than two hours of testimony, at times becoming a bit tense.

Norm Semanko, executive director of the Idaho Water Users Association, outlined the need for the bill, explaining, it “clarifies the current law with regards to owners of ditches, canals, conduits or other aqueducts and their liability for wasting water or damage to others that’s caused by third parties and acts of God.”

Semanko said the bill does not add hurdles for those wishing to sue over damage to property or loss of water, which became an issue during the hearing. “This is not a bill that provides that, what I’ve heard described as straight-up immunity to irrigation delivery entities. In fact, it doesn’t provide immunity at all. It reaffirms the responsibilities and obligations and clarifies the applicable duty of care, the standard that the courts have applied with regard to avoiding wasting water and preventing damage to others.”

Semanko also made a point to the committee about possible liability assigned to a canal company when it had nothing to do with a water problem. The bill, said Semanko,  “makes clear that wasting of water and damage not caused by an act or omission of an irrigation district or canal company, but by a third party or an act of God, does not constitute liability on the part of the delivery entity—again consistent with the standard applied by the courts, and I would add with basic fairness.”

Russ Johnson, a lawyer from Beaumont, representing the Idaho Trial Lawyers Association, said that he believes excusing responsibility for an act of God is simply just not taking responsibility for the problem. “We shouldn’t be encouraging failure of responsibility here. We need to trust the system, we need to trust the juries, and if they (delivery entities) don’t properly maintain it, then we shouldn’t be blaming it on an act of God. I urge you to vote no.”

Rep. Dell Raybould, R-Rexburg, responded that the proposed law did not change the fact the companies must maintain the canals and waterways at a high standard. Johnson countered by saying that if it didn’t change anything, why would the committee be considering it. “I used to have a law professor that said ‘don’t assume that these tests are written by a room full of monkeys.’ I think there is something to that, that this law does something. And, I think what it does is it makes it more difficult at the outset to pursue these cases …”

Amanda Wilright, from Boise, has seen her home flooded and what it has meant to the family in trying to recoup the losses. She said her family has had difficulty trying to get reimbursed for damages sustained. She recalled that while the water delivery entity monitored and investigated the canal, it refused to take blame for the water seepage in the Wilright’s home, as well as four neighboring homes.

“It seems if this bill passes the owners (of the canal that flooded her home) would not have much incentive to insure that the canals are properly maintained if an act of God or another third party were to intrude and cause potential damage … I don’t understand why this legislation would be necessary other than to prevent true victims from seeking damages,” she told the committee.

Scott Campbell from Boise, a lawyer who said he has practiced water law in Idaho since 1984, said he sympathizes with homeowners who testified, but he also said the Legislature has to deal with the fact that the state is no longer dealing with farm land. Land that was once agricultural in use has now become filled with major structures, pavement, housing, playgrounds, etc. These kinds of changes have been forced upon the irrigation districts, he said, so the law has to change accordingly.

There was a light moment, however, when Campbell fielded questions from the committee. Rep. Marv Hagedorn, R-Meridian, prefaced his question with, “I am not a lawyer, but I did stay at a Holiday Inn Express one time.”

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