Cummins v. Lewis County, 30738-3-II.

• Decision Date: 08 September 2004
• Docket Number: No. 30738-3-II.,30738-3-II.
• Parties: Mary A. CUMMINS, individually, and as Personal Representative of the Estate of Leon V. Cummins, deceased, Appellant, v. LEWIS COUNTY, a municipality; Centralia a municipality, Respondents, Qwest Corporation, formerly doing business as U.S. West Communications, a foreign corporation, Defendants.
• Court: Washington Court of Appeals

98 P.3d 822

124 Wash. App. 247

Mary A. CUMMINS, individually, and as Personal Representative of the Estate of Leon V. Cummins, deceased, Appellant, v. LEWIS COUNTY, a municipality; Centralia a municipality, Respondents, Qwest Corporation, formerly doing business as U.S. West Communications, a foreign corporation, Defendants.

No. 30738-3-II.

Court of Appeals of Washington, Division 2.

September 8, 2004.

Publication Ordered October 5, 2004.

Terry E. Lumsden, Law Offices of Terry E. Lumsden, Tacoma, Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, Seattle, for Appellant.

Guy M. Bogdanovich, Law Lyman Daniel Kamerrer et al, Olympia, Robert William Novasky, Burgess Fitzer PS, Tacoma, Geoffrey C. Bedell, Soha & Lang PS, Seattle, for Respondents.

VAN DEREN, J.

Mary A. Cummins filed a wrongful death action based on negligent maintenance of an emergency dispatch system and failure to respond to a 911 call. Cummins appeals summary judgment in favor of the City of Centralia and Lewis County based on her failure to demonstrate an actionable duty under the public duty doctrine. We affirm, holding that no material facts establish a special relationship exception to the public duty doctrine.

FACTS

Lewis County emergency dispatch received a 911 call under unusual circumstances in December 1997. The caller stated, "1018 "E" Street, heart attack," and hung up the phone. Clerk's Papers (CP) at 343. Unfortunately, the 911 operator could not exchange any information with the caller.

The operator attempted to call the number, but received a busy signal. Another dispatcher located and called the phone number of 1018 "E" Street, but an answering machine picked up the call. The enhanced 911 system electronically indicated that the call originated from a pay phone near a local grocery store. Moments before the "E" Street call, the dispatcher had received a prank call from the same location.

Given the call's circumstances, the 911 dispatcher did not notify or request emergency medical aid. Rather, the operator treated the call as a 911 hang up, which required that the police investigate the nature of the call and report back to the dispatcher. The operator stated to Centralia police: "911 hang up. All they said was heart attack, 1018 "E" Street and hung up. The call came from Ideal Food Center, 727 N. Tower, busy on the call back." CP at 343. The operator also informed police that another dispatcher had tried the number associated with 1018 "E" Street, but reached an answering machine.

A police officer quickly arrived at the local grocery store that the enhanced 911 system indicated was the location of the "E" Street call. The responding officer located a young man, known to police through prior contacts. Another officer had observed the young man hurrying away from the grocery store near the time of the hang up call. The officer asked the young man about the "E" Street 911 call, and the minor stated that he made it. The officer gave the young man a warning and cleared the call as a suspicious circumstance with the 911 dispatcher.¹ Although he had cleared the "E" Street call, the officer drove by 1018 "E" Street, but did not contact the homeowners.

About six hours later, police were informed that Cummins' husband had died in his home at 1018 "E" Street. The police officer who had cleared the "E" Street 911 call recontacted the young man who had admitted that he made the call at the grocery store. The minor now retracted that statement and told the officer that he lied because he assumed the officer would not believe him if he denied making the 911 call.

The police department investigated the enhanced 911 phone system and found that the system was both functioning properly and accurately identified that the "E" street call originated from the local grocery store. When Cummins called into the system to report finding her husband, the system had also properly identified that call as coming from 1018 "E" Street.

Cummins filed a damages claim with Centralia on behalf of her husband, she later was appointed her husband's personal representative, and in December 2000, she filed a wrongful death complaint.² Centralia and Lewis County moved for summary judgment, which the trial court granted. Cummins appeals the court's summary judgment dismissal of her lawsuit against Centralia and Lewis County.³

ANALYSIS

I. PUBLIC DUTY DOCTRINE AND SPECIAL RELATIONSHIP EXCEPTION

Cummins seeks reversal of the summary judgment, arguing that "this Court should extend the special relationship exception to the public duty doctrine to individuals who dial 911 seeking emergency medical assistance." Br. of Appellant at 26.

A trial court should grant summary judgment if it determines, after viewing the entire record and drawing all reasonable inferences in favor of the nonmoving party, that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Retired Pub. Employees Council of Wash. v. Charles, 148 Wash.2d 602, 612, 62 P.3d 470 (2003). We review a summary judgment order de novo, from the same position as the trial court. Charles, 148 Wash.2d at 612, 62 P.3d 470; see also Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 784, 30 P.3d 1261 (2001)

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A. Public Duty Doctrine's Special Relationship Exception

Cummins criticizes the public duty doctrine as applied in Washington, citing Justice Chambers' concurrence in Babcock that critiques the doctrine. But Cummins does not dispute that "the Public Duty Doctrine is the law in Washington." Reply Br. of Appellant at 6. Indeed, the doctrine is a viable part of negligence actions against a government entity. See, e.g., Bratton v. Welp, 145 Wash.2d 572, 576, 39 P.3d 959 (2002)

. Cummins "acknowledges that under current Washington law a `special relationship' [exception to the public duty doctrine] was not created" to apply in her case, but requests that we expand this exception to apply to persons calling 911 for medical assistance. Reply Br. of Appellant at 6.

"The first hurdle in any negligence action is establishing a duty." Bratton, 145 Wash.2d at 576, 39 P.3d 959; see also Babcock, 144 Wash.2d at 784-85,

30 P.3d 1261 (citing Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988)). The public duty doctrine requires that the plaintiff seeking recovery from a public entity or government employee demonstrate a breach of duty owed to the individual plaintiff, not "the breach of a general obligation owed to the public in general, i.e., a duty owed to all is a duty owed to none." Beal v. City of Seattle, 134 Wash.2d 769, 784, 954 P.2d 237 (1998).

There are four exceptions to the doctrine; however, only the special relationship exception applies here. Babcock, 144 Wash.2d at 785-86, 30 P.3d 1261. This exception applies where:

(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff.

Beal, 134 Wash.2d at 785, 954 P.2d 237 (quoting Taylor, 111 Wash.2d at 166, 759 P.2d 447) (emphasis added).

Here, Cummins does not produce material facts establishing a special relationship exception under the public duty doctrine. There is no evidence in the record that any Centralia police officer had contact with Cummins' husband, or someone calling on his behalf, during the 911 call. Thus, Centralia police could not provide express assurances that Cummins' husband relied on. Similarly, the record fails to demonstrate a special relationship between Cummins' husband and the Lewis County dispatcher. The dispatcher received a 911 call that stated, "1018 "E" Street, heart attack," and hung up before she could respond. CP at 343. Consequently, the dispatcher made no contact or statement, express or implied, that Cummins' husband relied on.

These facts are distinct from cases finding a special relationship in the context of a 911 call. See, e.g., Bratton, 145 Wash.2d at 575,

39 P.3d 959 (caller made numerous calls to 911 and operator promised assistance); Beal, 134 Wash.2d at 774,

954 P.2d 237 (911 dispatcher told caller that" `we're going to send somebody there'" and "`[w]e'll get the police over there for you okay?'"); Chambers-Castanes v. King County, 100 Wash.2d 275, 284, 669 P.2d 451 (1983) (plaintiff called 911 numerous times and operator promised police would arrive).

Cummins' arguments to extend this case law and find a special relationship under the public duty doctrine to the facts here are unpersuasive. She asserts that the enhanced 911 system automatically creates privity between the caller and the operator by electronically identifying the call's location and eliminating the caller's need to speak to the operator. Although we broadly interpret privity under the special relationship exception, it is reasonable to require some form of human communication between the 911 caller and the operator. See Babcock, 144 Wash.2d at 788,

30 P.3d 1261 (finding privity between a firefighter's single statement made personally to the plaintiff). Further, Cummins' privity argument ignores the facts here: the enhanced phone system accurately identified the "E" Street call as coming from a public phone located at the grocery store on N. Tower Street.⁴

Cummins argues that the special relationship exception's second element, requiring express assurance from a public official, is satisfied "hundreds of times by government entities on a daily basis" that describe the 911 system through yellow pages, billboards, and radio and TV public service announcements. Br. of Appellant at 17-18. This overbroad argument fails to cite to the record, contradicts the public duty doctrine's central requirement that liability not attach to a government entity's duty to the public at large, and conflicts with all four of the...