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.

Docket No. 81257-8 (from Court of Appeals Division III Case No. 25161-6)

Petitioner: Okanogan County

(Counsel: Mark Robert Johnsen)

Respondent: Don Fitzpatrick

(Counsel: John Maurice Groen and Samuel A. Rodabough)

Briefs:

Argument: Tuesday, May 26, 2009 10:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, September 2nd, 2010

Prevailing Party: Don Fitzpatrick (Respondent)

Vote: 7-2

Citation: Pending

Court: Madsen1 Court (2010-)

Alexander
(Majority)

Johnson

Madsen
(Dissent)

Sanders

Chambers

Owens

Fairhurst

Johnson

Stephens

Opinion

Dissent