Bazzaz v. Piculell Group, Inc., 325 P.3d 775

Plaintiffs allege negligence, trespass, timber trespass, ultrahazardous activity, and private nuisance against neighbor for landslides on landslide-causing actions.
January 2009 storms caused two landslides: one from defendant’s property blocking Greenbluff Drive, the other from HOA property damaging plaintiffs’ home.
Plaintiffs contend defendant removed vegetation and directed storm water to the slope, triggering the landslide that blocked the road and harmed HOA drainage, leading to plaintiffs’ damages.
Defendant contends, among others, that an unprecedented storm caused the slides, HOA drainage was at fault, and Cypress Properties built plaintiffs’ home in violation of codes.
Third-party claims against Cypress and others were dismissed; Cypress’s conduct was not deemed mutually liable with defendant.
Jury returned a verdict for defendant; plaintiffs appeal on Cypress evidence and the natural-flow-of-water instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Cypress evidence	Cypress conduct irrelevant and unfairly prejudicial; Cypress not sole cause.	Cypress evidence relevant to causation and defenses; not reversible error.	Harmless error; affirmed.
Natural-flow rule instruction	Rule inapplicable; misleads jury; not adjacent landowners.	Rule applicable and supported by evidence; proper to instruct.	Instruction proper; no reversible error.

Garbarino v. Van Cleave, 214 Or 554 (Or 1958) (defines natural-flow rule)
Walsh v. Spalding & Son, Inc., 216 Or App 55 (Or App 2007) (instruction can be error if it misleads jury)
Chan v. Fred Meyer, 71 Or App 20 (Or App 1984) (entitled to instruction on theory of the case)
Rehfuss v. Weeks, 93 Or 25 (Or 1919) (natural-flow rule applied to non-adjacent land)
Cunningham v. Thompson, 188 Or App 289 (Or App 2003) (undeveloped arguments not addressed)
State v. Smith, 310 Or 1 (Or 1990) (jury instructions followed normally)