Bailey v. Town of Forks

• Decision Date: 04 June 1987
• Docket Number: No. 51222-1,51222-1
• Citation: 737 P.2d 1257,108 Wn.2d 262
• Parties: Patti BAILEY, Petitioner, v. TOWN OF FORKS, Respondent.
• Court: Washington Supreme Court

Page 262

108 Wn.2d 262

737 P.2d 1257

Patti BAILEY, Petitioner, v. TOWN OF FORKS, Respondent.

No. 51222-1.

Supreme Court of Washington En Banc.

June 4, 1987.

Note: Opinion Amended by 753 P.2d 523.

Gordon, Thomas, Honeywell, Malanca, Peterson & Deheim, John R. Connelly, Jr., Tacoma, for petitioner.

Merrick, Hofstedt & Lindsey, P.S., Sidney R. Snyder, Jr., Seattle, for respondent.

Bryan P. Harnetiaux, Gary N. Bloom, Spokane, amici curiae for petitioner Washington Trial Lawyers Assn.

UTTER, Justice.

Patti Bailey suffered serious injury when a motorcycle on which she was a passenger collided with a truck. She filed a complaint against the Town of Forks (Forks) alleging her injuries directly and proximately resulted from a town police officer's failure to prevent a man he knew to be heavily intoxicated from driving a truck. The trial court dismissed the complaint on a motion for judgment on the pleadings under CR 12(c). The Court of Appeals, relying on the "public duty" doctrine, affirmed dismissal. Bailey v. Forks, 38 Wash.App. 656, 688 P.2d 526 (1984). Although the wisdom and continued viability of the public duty doctrine remains a subject of debate, resolution of this case does not require us to reach any conclusions as to its continued application. Ms. Bailey's allegations fit within one of our recognized exceptions to the public duty doctrine. Consequently, we reverse and remand for trial.

Forks moved for judgment on the pleadings and therefore admits, for the purposes of the motion, the truth of every fact well pleaded by Ms. Bailey. See Pearson v. Vandermay, 67 Wash.2d 222, 407 P.2d 143 (1965). Accordingly, we consider whether the facts alleged in the complaint, Bailey's only pleading, establish a basis for liability.

Her complaint alleges the following:

2. Accident. On or about August 5, 1979, at approximately 2:10 a.m., on the Bogachiel Road, about five miles from Forks, Washington, an automobile-motorcycle collision occurred when a pickup truck driven by Harvey Medley made an illegal left turn in front of the motorcycle driven by Paul W. Peterson. Mr. Peterson was fatally injured and his passenger, plaintiff PATTI BAILEY, was seriously and permanently injured.

3. Harvey Medley Intoxication. Harvey Medley was intoxicated at the time of the accident.

4. Defendant's Knowledge of Medley's Condition. Mike Riddle, a duly authorized police officer and agent of the Town of Forks, was in official contact with Harvey Medley shortly before the above-described accident regarding Medley's involvement in an altercation at or near the Vagabond Lounge. Officer Riddle, as an agent of the Town of Forks, and while operating within the scope of that agency, knew or should have known that Harvey Medley was intoxicated to such an extent as to be physically and legally unfit to drive his pickup truck and therefore, a hazard to other users of the highways. Nevertheless Officer Riddle ordered Harvey Medley to leave the area and personally observed him enter his truck "behind the wheel".

Clerk's Papers, at 22-23.

Relying on these facts, Bailey further alleged that the officer was negligent "in failing to prevent Harvey Medley from driving his vehicle while obviously impaired by intoxication." Clerk's Papers, at 23.

Municipalities in this state are no longer broadly protected by the shield of sovereign immunity. In 1967, by adopting RCW 4.96.010, the Legislature decreed that municipal corporations "shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers ... to the same extent as if they were a private person or corporation ..." This statute, however, does not render the State liable for all official misconduct. At some point, tort liability ends and governing begins. See King v. Seattle, 84 Wash.2d 239, 243, 525 P.2d 228 (1974); Evangelical United Brethren Church v. State, 67 Wash.2d 246, 253, 407 P.2d 440 (1965). Because judicial abstention is required where the responsibility for " 'basic policy decisions has been committed to coordinate branches of government' ", discretionary policymaking decisions remain protected from suit. King v. Seattle, 84 Wash.2d at 246, 525 P.2d 228. Discretionary decisions by police officers in the field, however, are not immune. Bender v. Seattle, 99 Wash.2d 582, 590, 664 P.2d 492 (1983).

Forks argues, and the Court of Appeals agreed, that under the "public duty doctrine" the officer owed no duty of care to Ms. Bailey upon which liability for negligence could be imposed. We have described the public duty doctrine as "provid[ing] generally that for one to recover from a municipal corporation in tort it must be shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one)." J & B Dev. Co. v. King Cy., 100 Wash.2d 299, 303, 669 P.2d 468 (1983) (citing 18 E. McQuillin Municipal Corporations § 53.04b, at 127 (3d ed. 1977). Absent a showing of a duty running to the injured plaintiff from agents of the municipality, no liability may be imposed for a municipality's failure to provide protection or services to a particular individual. See, e.g., Chambers-Castanes v. King Cy., 100 Wash.2d 275, 285, 669 P.2d 451 (1983); J & B Dev. Co. v. King Cy., supra at 304-05, 669 P.2d 468.

Under basic tort principles, an action for negligence does not lie unless the defendant owes a duty of care to the plaintiff. Chambers-Castanes v. King Cy., supra at 284, 669 P.2d 451. The concept of duty turns on foreseeability and pertinent policy considerations. See Chambers-Castanes v. King Cy., supra at 292, 669 P.2d 451 (Utter, J., concurring in result). By requiring that a duty toward the particular plaintiff be established, these basic tort principles serve the same end as the public duty doctrine. See Note, Municipal Liability, 19 Gonz.L.Rev. 727, 735 (1983/84). After reviewing our "public duty" case law, one commentator has observed that in each case we have applied these basic tort principles--duty, foreseeability, and pertinent public policy--to find an exception to the public duty doctrine. Note, supra at 734.

We have almost universally found it unnecessary to invoke the public duty doctrine to bar a plaintiff's lawsuit. See, e.g., Chambers-Castanes v. King Cy., supra; J & B Dev. Co. v. King Cy., supra; Halvorson v. Dahl, 89 Wash.2d 673, 574 P.2d 1190 (1978); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975); Campbell v. Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975); see also Note, supra. The only identified instance where a plaintiff's claim was barred came in Baerlein v. State, 92 Wash.2d 229, 595 P.2d 930 (1979). There, we rejected a cause of action against the State based upon a failure to enforce securities regulations. However, our decision turned on the existence of a specific statutory disclaimer of any duty as to security documents that may be untrue or misleading. Baerlein, at 233, 595 P.2d 930; see Chambers-Castanes, 100 Wash.2d at 292, 669 P.2d 468 (Utter, J., concurring in result); Rogers v. Toppenish, 23 Wash.App. 554, 561, 596 P.2d 1096 (1979). In our most recent decision, we acknowledged the public duty doctrine, but used general tort principles to dismiss the case. Hartley v. State, 103 Wash.2d 768, 698 P.2d 77 (1985).

The standard rationales offered to support continued reference to the public duty doctrine are the risk of excessive governmental liability and the need to prevent interference with governmental process. J & B Dev. Co., 100 Wash.2d at 304, 669 P.2d 468. The doctrine is also viewed as a mechanism for focusing attention on whether the governmental agency owed a duty to the particular plaintiff, rather than the public as a whole. J & B Dev. Co., at 304-05, 669 P.2d 468. On the other hand, continued reiteration of the doctrine has been attacked as perpetuating sovereign immunity in the guise of the public duty doctrine. Chambers-Castanes v. King Cy., supra, 100 Wash.2d at 291, 669 P.2d 468 (Utter, J., concurring). One commentator persuasively argues that in abrogating sovereign immunity for tortious conduct, the Legislature rejected the same standard rationales now put forth to support the public duty doctrine. Note, supra at 730 nn. 14, 15. In effect, the public duty doctrine places in this court's hands the task of determining as a matter of "public policy" when a duty of care exists on the part of public employees. This raises the difficult question as to whether affording special protection to agents of the government violates the Legislature's directive, which requires governmental bodies to be liable in tort "to the same extent as if they were a private person or corporation." RCW 4.96.010. See also RCW 4.92.090. In addition, injured plaintiffs suffer harshly under the doctrine, a result that may have played a role in the various exceptions this court has carved out of the "no duty" rule. See, e.g., Chambers-Castanes v. King Cy., supra; J & B Dev. Co. v. King Cy., supra.

Close inspection of the doctrine and its myriad exceptions may well reveal that the exceptions have virtually consumed the rule. Nevertheless, the facts alleged in this case do not require us to reweigh the pros and cons of the public duty doctrine. Under the facts alleged in the pleading, the public duty doctrine does not bar Ms. Bailey's action against Forks.

Thus far, we have identified four situations in which a governmental agency acquires a special duty of care owed to a particular plaintiff or a limited class of potential plaintiffs, rather than the general duty of care owed to the public at large. These exceptions include: (1) when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons (legislative intent), Halvorson v. Dahl, supra, 89 Wash.2d at 676-77, 574 P.2d 1190; (2) where governmental agents responsible for...