Cummins v. Lewis County

• Decision Date: 04 May 2006
• Docket Number: No. 76249-0.,76249-0.
• Citation: 156 Wn.2d 844,133 P.3d 458
• Court: Washington Supreme Court
• Parties: Mary A. CUMMINS, individually, and as Personal Representative of the Estate of Leon V. Cummins, deceased, Petitioner, v. LEWIS COUNTY, a municipality, Respondent, City of Centralia, a municipality; Qwest Corporation, formerly doing business as U.S. West Communications, a foreign corporation; Northern Telecom Meridian Systems, Inc., a Washington corporation; Northern Telecom International, Inc., a Washington corporation; Plant Equipment, Inc., a foreign corporation; Informer Computer Systems, Inc., a foreign corporation; SCC Communications Corp., a foreign corporation; Christopher Bird, a minor; S. Paula Bird, and "John Doe" Bird, husband and wife, individually and their marital community; and John Does 1-5, Defendants.

Page 458

133 P.3d 458

156 Wn.2d 844

Mary A. CUMMINS, individually, and as Personal Representative of the Estate of Leon V. Cummins, deceased, Petitioner, v. LEWIS COUNTY, a municipality, Respondent, City of Centralia, a municipality; Qwest Corporation, formerly doing business as U.S. West Communications, a foreign corporation; Northern Telecom Meridian Systems, Inc., a Washington corporation; Northern Telecom International, Inc., a Washington corporation; Plant Equipment, Inc., a foreign corporation; Informer Computer Systems, Inc., a foreign corporation; SCC Communications Corp., a foreign corporation; Christopher Bird, a minor; S. Paula Bird, and "John Doe" Bird, husband and wife, individually and their marital community; and John Does 1-5, Defendants.

No. 76249-0.

Supreme Court of Washington, En Banc.

Argued September 13, 2005.

Decided May 4, 2006.

Terry E. Lumsden, Law Offices of Terry E. Lumsden, Tacoma, Devin T. Theriot-Orr, Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, Seattle, for Petitioner/Appellant.

Melanie T. Stella, Robert William Novasky, Burgess Fitzer PS, Tacoma, for Appellee/Respondent.

ALEXANDER, C.J.

¶ 1 The question presented in this case is whether, under the public duty doctrine, an actionable "special relationship" is created between a member of the public and a government entity when an individual places a "911 call," identifies the nature of his medical emergency, provides a street address but not his name, and "hangs up" prior to either requesting help or receiving an oral assurance from the operator that medical aid will be dispatched. We answer "no" to that question, concluding that there is neither a statutory nor a common law duty on the part of a county to dispatch medical aid under such circumstances. We decline also the petitioner's invitation to eliminate the express assurance requirement of the special relationship inquiry in cases involving 911 calls and medical emergencies. We, therefore, affirm the Court of Appeals' decision upholding the Lewis County Superior Court's summary judgment dismissing the petitioner's wrongful death action.

I. FACTS

¶ 2 On December 15, 1997, the Lewis County emergency dispatch call center received a 911 call. The 911 dispatcher heard what she believed to be the voice of an adult male say, "1018 `E' Street, heart attack." Clerk's Papers at 343. The caller hung up the telephone before the dispatcher could obtain additional information and before she could respond.

¶ 3 On the date of this incident, Lewis County had in place an "enhanced 911 (E911) system[ ]." Id. at 303. Unlike a regular 911 service, the E911 system automatically displays the telephone number and location from which a call is placed. In this instance, the system indicated that the "`heart attack call'" was placed from a pay telephone in the vicinity of a grocery store on Tower Street in Centralia. Id. at 376. That location is roughly five blocks from the "E" Street address furnished by the caller. A few minutes before the call in question, the 911 dispatcher had fielded a so-called "prank" 911 call from the same Tower Street pay telephone. Id. ¶ 4 Immediately after receiving the "heart attack" call, the dispatcher dialed the pay telephone number and received a busy signal. Another operator placed a telephone call to the "E" Street address and received a recorded answer from an answering machine. This caused the dispatcher to treat the "heart attack" call as a "hang up," meaning she did not immediately send medical aid to either location. Id. at 338. Instead, she dispatched a Centralia police officer to conduct an investigation.

¶ 5 In response to the directions from the dispatcher, a Centralia police officer drove to the location of the pay telephone. Upon arriving there, he stopped a young man who was in the vicinity. The boy was well-known to the Centralia Police Department due to his prior contacts with that department. When questioned, the youngster said that he had placed the 911 call. The officer then issued a warning to the boy and cleared the call with 911 as a "suspicious circumstance." Id. at 369. The dispatcher indicated to the officer that she was surprised that a boy made the "heart attack" call given that it was a man's voice that she had heard. The officer responded that the boy tried to make his voice sound "old." Id. at 349. After clearing the call, the police officer proceeded to the "E" Street address. He did not, however, stop at that location or attempt to contact anyone who may have been at the home.

¶ 6 Several hours later, Mary A. Cummins, the plaintiff and petitioner here, returned home to the "E" Street address and found her husband, Leon V. Cummins, dead on the kitchen floor. Mrs. Cummins called 911. The E911 system identified her call as coming from 1018 "E" Street. This prompted the police officer who had earlier contacted the young man in the vicinity of the pay telephone to recontact him. The youth told the officer that he had lied about making the earlier call. The E911 system was thereafter checked and found to be functioning properly.

¶ 7 Mrs. Cummins brought a wrongful death action in Lewis County Superior Court against Lewis County and the City of Centralia in her own capacity as well as in a representative capacity. She alleged that her husband's death was the result of the negligence of the Lewis County 911 emergency dispatch unit as well as that of the Centralia police department which had responded to the call. The trial court granted a summary judgment dismissing Mrs. Cummins's complaint against both defendants. The court held that she failed to show that the county or the city owed Mr. Cummins a duty of care it did not owe to the public generally and that her claims were thereby barred by the public duty doctrine. Division Two of the Court of Appeals affirmed the superior court.¹ Mrs. Cummins sought and was granted review by this court.²

II. LEWIS COUNTY'S MOTION TO STRIKE

¶ 8 During our consideration of this case, respondent Lewis County moved to strike a supplemental brief that Mrs. Cummins filed in response to an amicus curiae brief submitted by the Washington State Trial Lawyers Association Foundation (Foundation).³ The Foundation asked in its brief that this court permanently "inter" the public duty doctrine.⁴ In her response, Mrs. Cummins adopted for the first time this line of reasoning and joined the Foundation in requesting that this court abandon the public duty doctrine. Mrs. Cummins argued additionally, and for the first time, that the special relationship exception to the doctrine should henceforth be limited to analyzing a government's duty only in those cases involving the criminal acts of third parties.

¶ 9 Lewis County correctly notes that Mrs. Cummins initially sought this court's review only on the questions of whether a special relationship with the county had been established and whether the express assurance requirement needed to establish that particular relationship be eliminated or relaxed for medical emergency callers. It is a well-established maxim that this court will generally not address arguments raised for the first time in a supplemental brief and not made originally by the petitioner or respondent within the petition for review or the response to petition. See Douglas v. Freeman, 117 Wash.2d 242, 258, 814 P.2d 1160 (1991). Because Mrs. Cummins seeks a form of relief in her supplemental brief that she did not seek in her petition for review, Lewis County's motion to strike is granted.

III. THE PUBLIC DUTY DOCTRINE AND THE SPECIAL RELATIONSHIP EXCEPTION THERETO

¶ 10 Mrs. Cummins contends that the trial court and Court of Appeals each erred in not concluding that an actionable special relationship was created between Lewis County and Leon Cummins when Mr. Cummins telephoned 911 and stated both his physical location and the nature of his medical emergency.⁵ Pointing to a long line of Washington public duty doctrine cases. Lewis County asserts that both courts below correctly determined that Mrs. Cummins does not have an actionable claim in negligence because the 911 dispatcher who fielded Mr. Cummins's call did not give him an "express assurance" of help upon which he could have "justifiably relie[d]." Resp't Lewis County's Suppl. Br. at 7.

¶ 11 When reviewing an order on summary judgment, this court engages in the same inquiry as the trial court. Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 784, 30 P.3d 1261 (2001). Summary judgment is proper where the entire record demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In a negligence action, the determination of whether an actionable duty was owed to the plaintiff represents a question of law to be decided by the court. Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 128, 875 P.2d 621 (1994). A question of law is reviewed do novo. Babcock, 144 Wash.2d at 784, 30 P.3d 1261.

¶ 12 A threshold negligence determination is whether a duty of care is owed to the plaintiff. Id. at 784-85, 30 P.3d 1261 (quoting Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988)). In negligence actions against a government entity, Washington courts follow the rule that

to be actionable, the duty must be one owed to the injured plaintiff, and not one owed to the public in general. This basic principle of negligence law is expressed in the "public duty doctrine". Under the public duty doctrine, no liability may be imposed for a public official's negligent conduct unless it is 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)."

Taylor, 111 Wash.2d at 163, 759 P.2d 447 (citations omitted) (quoting J & B Dev. Co. v. King County, 100 Wash.2d 299, 303, 669 P.2d 468 (1983)).

¶ 13 The public duty...