Howe v Douglas County :: 146 Wn2d 183
Category: Land Use and Property Rights
This case centers on the issue of sovereign immunity, which the State Legislature abolished in RCW 4.96.010. This statutes states that all local governmental entities shall be liable for any negligent conduct of their present or past officers, employees, or volunteers, to the same extent as if they were a private person or corporation.
In 1987, the Fancher Heights Association (Fancher) began development of a new subdivision in East Wenatchee. Because part of the subdivision was susceptible to flooding, the County required that Fancher execute and record a waiver of liability for damages caused by the construction and maintenance of public facilities and land in the subdivision. Later that year the drainage system and roads were deeded to the County, which then took responsibility for its the maintenance.
In 1992, the Howes purchased a site in Fancher Heights, intending to build a house. They received a Statutory Warranty Deed, which included the waiver required by the County. Over the next several years, flooding damaged the Howes’ property no fewer than four times. The damage was caused by both under design of the subdivision’s drainage system and from lack of maintenance of the system’s drywells.
In 1997, the Howes sued the County, claiming that the original waiver of liability required by County as a condition of permit approval amounted to a claim of sovereign immunity. The Superior Court and Court of Appeals decided in favor of the County.
The Supreme Court unanimously reversed the ruling in part, concerning specifically the County’s de facto claim of sovereign immunity. In writing for the Court, Justice Chambers noted, “We hold that narrowly tailored, bargained-for exculpatory clauses may be permissible, but that exculpatory clauses secured routinely for the performance of a government function are not permitted.” He further stated that any waiver of liability can only apply to past actions and not future negligence.
We concur with both the specifics of this ruling and the spirit of law behind it. Unlike most businesses, a government is a monopoly. A builder needing a building permit cannot “shop around” for the best deal, but must work with a specific agency. If that government agency requires a grant of immunity as a precondition for issuing a permit, the builder is at the mercy of the municipality—a situation which can only encourage the abuse of power and a denial of property rights.
Rating the Usual Suspects:
| pass | Alexander, Gerry | |
| pass | Bridge, Bobbe | |
| pass | Chambers, Tom | |
| pass | Dorsey, Brian J | |
| pass | Ireland, Faith | |
| pass | Johnson, Charles | |
| pass | Madsen, Barbara | |
| pass | Owens, Susan | |
| pass | Sanders, Richard | |
| pass | Smith, Charles | |
| pass | Tefft, Kristopher I | |
| fail | Allan, Lesley | |
| fail | Kato, Kenneth | |
| fail | Schultheis, John | |
| fail | Siderius Jr, Robert R | |
| fail | Sweeney, Dennis |