Facts: Respondent Don Fitzpatrick filed suit against petitioner Okanogan County in the Superior Court for Douglas County, claiming that flood damage to his home resulting from a public flood control project’s obstruction of natural watercourses constituted an uncompensated taking. The trial court dismissed Fitzpatrick’s action, holding that Washington Revised Code §86.12.037, which grants counties immunity from claims arising from flood control projects, and the common enemy rule, which permits property owners to alter the flow of surface water to the detriment of their neighbors without liability, barred Fitzpatrick’s suit. Upon appeal, the Washington Court of Appeals reversed the trial court’s granting of summary judgment, concluding that §86.12.037 does not immunize the county from liability insofar as Fitzpatrick’s claim was based upon the takings clause of Article I §16 of the Washington State Constitution, which cannot be abrogated by statute, and that a material issue of fact existed as to whether the common enemy rule applied as Fitzpatrick had presented evidence that the water that flooded his property was water from a natural watercourse rather than water from surface water formed by rain or melting snow. Okanogan County appealed this decision to the Supreme Court of Washington.
Question(s): Does §86.12.037 bar Fitzpatrick’s suit?
If not, is Fitzpatrick’s suit barred by the common enemy rule?
Conclusion: Justice Alexander’s opinion for the Court ruled that §86.12.037 does not preclude Fitzpatrick’s inverse condemnation claim based upon the Washington State Constitution’s takings clause and that a material issue of fact existed regarding whether the common enemy rule barred Fitzpatrick’s claim insofar as Fitzpatrick had presented evidence that the water that flooded his property was water from a natural watercourse that had been diverted rather than diverted surface water, in which case the common enemy rule would be inapplicable. Thus, the Court affirmed the decision of the Washington Court of Appeals and remanded the case for trial.
Petitioner: Okanogan County
(Counsel: Mark Robert Johnsen)
Respondent: Don Fitzpatrick
(Counsel: John Maurice Groen and Samuel A. Rodabough)
- Answer to Petition for Review
- Fitzpatrick's Answer to Pacific Legal Foundation Amicus
- Okanogan County's Answer to Pacific Legal Foundation Amicus
- Pacific Legal Foundation Amicus
- Petition for Review
- Respondent Okanogan County Brief
- Respondent State of Washington Brief
- State's Joinder in Answer to Pacific Legal Foundation Amicus
- Supplemental Brief of Petitioner Okanogan County
- Supplemental Brief of Respondent Fitzpatrick
- Supplemental Brief of Respondent State of WA
Argument: Tuesday, May 26, 2009 10:00am
[Source: TVW, http://tvw.org]
Audio: Washington Supreme Court
Decided: Thursday, September 2nd, 2010
Prevailing Party: Don Fitzpatrick (Respondent)
Court: Madsen1 Court (2010-)
Note: We post only slip opinion(s) as published at the time of the decision. Please consult Washington Reports printed volumes for the opinion(s) in their final form. Each opinion should appear next to the Justice who authored it.