Opinions: Inverse condemnation by flooding and how to dismiss a protective order
Fitzpatrick v. Okanogan County, No. 81257-8. Two couples, the Fitzpatricks and Sturgills, purchased property in 1980 along the Methow River. They built a log house and garage more than 80 feet back from the river and above the 100-year flood level. In 2002, flooding washed away the house "and a substantial amount of the real property on which it was situated."
The couples brought this action against the state and county, alleging that the flood damage was a result of the governments' improvements to a dike upriver. The couples presented evidence that the dike, which protects a state highway, irrigation projects, and private properties upriver, cut off the river from natural overflow channels. As a result, the mild 2002 flood event destroyed the couples' house and damaged their real property. The couples' complaint "contained claims for inverse condemnation, trespass, negligence, and wrongful injury or waste of property."
The trial court granted summary judgement for the governments based on the common enemy doctrine. The Court of Appeals reversed the trial court, "holding that the common enemy rule does not apply if a landowner obstructs a watercourse or natural drainway or prevents water from entering a flood channel." The Supreme Court granted review to consider "whether the owners' inverse condemnation claim may proceed ... in light of the common enemy rule."
The Court sustains the Court of Appeals and remands the case to the trial court.
Under the summary judgment standard, which requires us to view the facts and the inferences from those facts in the light most favorable to the nonmoving party (the owners), it is apparent that there is a factual issue about whether the water that caused damage to the owners' property was water that was diverted from the natural watercourse, and if so, whether liability for that damage flows from the County and State's construction of the dikes.
The Court also rejects the governments' claim that the owners have no recovery in inverse condemnation because the damage was not a necessary consequence of the dike improvements. There too, the Court finds an issue of material fact to be resolved at trial. Justice Alexander wrote for the majority and was joined by six other justices. The Chief Justice wrote a dissent, which Justice James Johnson also signed, arguing that the majority misconstrues earlier case law because it "misunderstands the nature of riparian rights...." (briefs, argument)
In re Marriage of Freeman, No. 82283-2. Rob and Robin Freemen were married when, in 1998, Robin moved for a protective order against Rob. The order was issued and subsequently made permanent, based on a physical confrontation between Rob and one of Robin's teenage children and Robin's fear of Rob's possession of firearms and his military training. The couple divorced and Rob left Washington state. In 2006, Rob moved to terminate the protective order, which was preventing him from receiving a security clearance and thus from pursuing certain job opportunities. The court commissioner denied Rob's motion, he appealed, and the Court of Appeals reversed the commissioner.
With an opinion by Justice Sanders and joined by five other justices, the Court affirms the court below and holds that the commissioner abused her discretion.
As much as it is possible to prove a negative, Rob has done so here. The likelihood that Rob will commit future acts of domestic violence on these facts is low. Hand in hand with that determination, the facts do not suggest Robin's fear of Rob is based on a reasonable threat of imminent harm.
Justice Fairhurst, joined by the Chief Justice and Justice Stephens, dissents. (briefs, argument)
