By Conrad Dudderar
Senior Staff Writer
Canadian County Commissioners were updated this week on a lawsuit filed against them over flooding damage to private property during spring 2019 heavy rains.
An attorney for Rhonda Steenbergen, who owns land in the 7800 block of Jensen Road in El Reno, originally filed the civil suit last September against the Board of Canadian County Commissioners. The suit was amended in February to add Haskell Lemon Construction Co., a Canadian County contractor for a Jensen Road construction project, as a co-defendant.
Steenbergen, Donald Erwin and a minor are listed as plaintiffs in the lawsuit. Their property, west of Manning Road on the south side of Interstate 40, is in Canadian County District 3.
County commissioners met in executive session Monday morning to receive an update on the status of the lawsuit from Association of County Commissioners of Oklahoma (ACCO) attorney Taylor Riley of the Oklahoma City law firm Collins, Zorn & Wagner.
After the commissioners’ weekly meeting reconvened, County Commission Chairman Marc Hader said they received information and no action was taken.
The flooding on Steenbergen’s property resulted from the defendants’ “negligent design, construction and maintenance of Jensen Road and drains or culverts on the road”; and their “interference, diversion, obstruction, and unnatural discharge of the natural flow of water”, the lawsuit alleges.
Heavy rainfall occurred across the area last spring – several months after the Canadian County District 3 contractor completed construction along a section of Jensen Road from Banner Road to one-half mile west of Evans Road.
County commissioners last July denied a tort claim that Steenbergen had filed after the Jensen Road property flooded “on or about” May 8, May 21 and June 6, according to the lawsuit.
The “torrential” rains that fell in May and June were “unusual”, District 3 Commissioner Jack Stewart said in a previous interview.
“We’ve never had flooding like that,” Stewart said. “The interstate was under water. Jensen Road west of our project that wasn’t rebuilt was under water. Everything was under water. She’s blaming the county because of the new road construction.”
Plaintiffs’ attorney William F. Johnston, of the Law Offices of Dan Davis, listed four causes of action in the lawsuit: Negligence, trespass, nuisance, and unconstitutional taking.
Plaintiffs seek relief to cover actual, consequential and punitive damages; attorney fees and court costs. This includes lost revenue and income that resulted from the reported flooding, along with damage and loss to personal and real property.
In responses to the lawsuit filed by their attorneys, defendants Canadian County Commissioners and Haskell Lemon Construction both have denied they were responsible for the property damage.
Canadian County Commissioners, in the court documents, contend they are exempt and/or immune from liability under the Oklahoma Governmental Tort Claims Act.
“No acts or omissions (by the board of commissioners) or its agents or employees proximately or directly caused any damages to plaintiffs,” according to its March 2 answer. “Plaintiffs’ alleged actions, if any, were caused or contributed to by the actions and/or negligence of third parties over whom the (board) had no control and for whom (it) is not responsible.
“Some or all of plaintiffs’ alleged damages, if any, were caused by acts of God, by superseding causes and/or intervening causes for which” the commissioners are not liable.
In its March 19 answer, Haskell Lemon Construction states “any injuries, damages or losses sustained by plaintiffs were solely and proximately caused by negligence of the plaintiffs” or “caused by actions and/or negligence of third persons, not parties to this action, who were not agents, employees or servants” of Haskell Lemon Construction.
Damages to the plaintiffs’ property “were caused by acts of God or other natural or artificial factors” beyond Haskell Lemon’s control and “not reasonably foreseeable,” according to its answer.
Attorney James K. Secrest III of the Tulsa law firm Secrest Hill & Butler, who represents Haskell Lemon Construction, has filed a motion for partial dismissal stating that the company cannot be held liable for an “unconstitutional taking” because it is not a government entity.
A hearing on that motion is set May 22 before District Judge Jack McCurdy.
IN OTHER ACTION …
In other business at its Monday morning meeting, Canadian County Commissioners approved:
• An affidavit certifying completion of a Rural Economic Action Plan (REAP) project in Okarche – reconstruction of about .32 miles of 234th Street between Highway 81 and Stroh Avenue.
• A lease purchase agreement between District 2 and Warren Cat for a 2019 Caterpillar motor grader. This will replace a John Deere grader sold at auction.
• A rental agreement between District 2 and C.L. Boyd to use an excavator for two weeks to help the City of Mustang with ditch cleaning.
• Seven resolutions disposing of county equipment sold at auction for District 3: Peterbilt dump truck, welder, diesel tank, electronic suction pump, and three John Deere flex-wing mowers.
District 2 Commissioner David Anderson opened 10 bids – ranging from $114,500 to $320,200 – submitted by six vendors for a used excavator. Commissioners postponed action on awarding the bid.
Meanwhile, Canadian County Sheriff Chris West presented the weekly county jail report showing 134 inmates including five out-of-county.