Fitzpatrick v. Okanogan County ( 2008 )

¶43 I would affirm the summary judgment grant for Okanogan County and the State on two grounds. First, the common enemy rule applies as a defense to this flooding claim. Halverson v. Skagit County, 139 Wn.2d 1, 13-15, 983 P.2d 643 (1999). Moreover, the State lacks the necessary proprietary interest in the Sloan-Witchert Slough Dike to attach liability under Halverson. Even considering their inverse condemnation theory, the Fitzpatricks’ proposed watercourse exception to the general rule of non-liability would effectively eliminate the common enemy rule as developed in Washington for over 100 years. Second, even if the common enemy rule did not apply, I would hold that statutory immunity applies to the County under RCW 86.12.037 and to the State under RCW 86.16.071. Accordingly, I respectfully dissent.

Brown, J.

Review granted at 164 Wn.2d 1008 (2008).