Arizona Flooding Damage Statutory Claims Not Guaranteed a Jury Trial

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I have represented many clients who have either pursued their neighbors for property damages resulting from flooding or had to defend themselves against claims they flooded someone else’s property. As natives to the state know, flooding is no small concern in Southern Arizona despite the desert climate.

One important tool to litigate flooding claims is A.R.S. § 48-3613. That statute requires any person who “engage[s] in any development which will divert, retard or obstruct the flow of waters in any watercourse” to procure a floodplain use permit allowing the development.

If a person engages in prohibited development without a permit, a court must require that person either to remove the development or to secure a permit. The court may award any person whom the unpermitted development harms his or her damages, attorney’s fees, and costs.

But who decides whether or not a person has engaged in conduct the statute prohibits - a judge or jury?

In Williams v. King, 460 P. 3d 303 (Ariz. App. 2020), the Arizona Court of Appeals held a judge, not a jury, should decide all matters relating to statutory flooding claims based on A.R.S. § 48-3613 because no statute or constitutional provision explicitly provides a right to jury trial for such a claim.

In practice, that holding means most flooding damage lawsuits will have two finders-of-fact: a jury will decide common-law tort claims like negligence or trespass, but a judge will decide the statutory claim under A.R.S. § 48-3613. Both parties should be aware of this bifurcated decision making from the outset and strategize accordingly.