Estate of McCartney by and through McCartney v. Pierce County, 55663-4-II

CourtCourt of Appeals of Washington
Writing for the CourtWorswick, J.
Citation513 P.3d 119
Parties The ESTATE OF Daniel Alexander MCCARTNEY; BY AND THROUGH Personal Representative Cierra Renae MCCARTNEY; Cierra Renae McCartney, individually and as the marital community of Cierra Renae and Daniel Alexander McCartney; Tytus John Alexander McCartney, minor child of Daniel and Cierra McCartney; Tate Daniel McCartney, minor child of Daniel and Cierra McCartney; and Traxton Lane McCartney, minor child of Daniel and Cierra McCartney, Appellants, v. PIERCE COUNTY, a municipal corporation, located in Washington State, Respondent.
Docket Number55663-4-II
Decision Date28 June 2022

Joan Kristine Mell, III, Branches Law PLLC, 1019 Regents Blvd., Ste. 204, Fircrest, WA, 98466-6037, for Appellants.

Daniel Ray Hamilton, Attorney at Law, 955 Tacoma Ave., S Ste. 301, Tacoma, WA, 98402-2160, Jana Ranae Hartman, Pierce County Prosecuting Attorney, 930 Tacoma Ave., S Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

James Laurence Buchal, Murphy & Buchal LLP, P.O. Box 86620, Portland, OR, 97286-0620, for Amicus Curiae on behalf of National Police Association.


Worswick, J. ¶ 1 The Estate of Daniel McCartney, by and through its personal representative, Cierra McCartney, and other members of the McCartney family (hereinafter, McCartneys), appeal the trial court's dismissal of their complaint for wrongful death and for a writ of mandamus. Daniel McCartney, a Pierce County sheriff's deputy, was killed in the line of duty. The McCartneys filed a wrongful death lawsuit against Pierce County (County), seeking damages for alleged failures of the County to properly staff and train the Pierce County Sheriff's Department (Sheriff's Department). The McCartneys further sought a writ of mandamus ordering the County to provide the Sheriff's Department with "sufficient staffing." The County moved for judgment on the pleadings, seeking dismissal under CR 12(c), arguing discretionary governmental immunity, the professional rescuer doctrine, and that a writ of mandamus was not proper. The trial court granted the motion.1

¶ 2 We hold that (1) the trial court properly took judicial notice of public records, (2) discretionary immunity bars the McCartneys’ suit, (3) the professional rescuer doctrine also bars the McCartneys from recovering, (4) a writ of mandamus is inappropriate because the County's decisions on staffing are discretionary, and (5) the public records did not create a genuine issue of material fact. Thus, we hold that the trial court did not err when it entered judgment on the pleadings. We affirm.



¶ 3 Pierce County covers 1,806 square miles of land.2 For patrol purposes, the county is divided into districts, to which sheriff deputies are assigned. The Sheriff's Department also contracts with several cities and towns in the county to provide police forces. The districts vary in both geographic size and the number of deputies assigned. For example, in 2018, the department had allocated 13 officers to University Place duty, covering 8.42 square miles, while district 10 was allocated 15 officers to cover 700 square miles.3

¶ 4 Between 2001 and 2018, the Pierce County Council (Council) hired outside consultants to conduct three separate audits of the Sheriff's Department. Each determined that the department was understaffed in terms of deputies. Between 2009 and 2018, the department had added a net of 11 deputies. However, a 2018 staffing assessment determined the department had 40 fewer deputies than the audits recommended to patrol the county. The consultants opined that the department was a " ‘lean’ organization," and that its’ staffing "present[ed] challenges to organizational effectiveness and create[d] a higher level of risk and liability. While the deputy sheriffs are dedicated to delivering high-quality police services, there are simply not enough of them assigned to the patrol function." Clerk's Papers (CP) at 26.

¶ 5 Between 2004 and 2009, the County increased the Sheriff's Department's budget by $2 million each year. However, this was less than enough funding to increase the department's staff to the levels recommended by the Council's consultants. Further complicating the staffing challenge was the department's inability to find qualified candidates to fill all the budgeted positions and months-long hiring, vetting, and training programs.

¶ 6 Because of the lean staffing and large areas some of the patrols experienced, deputies knew that backup could be "many miles and many minutes" away. CP at 4. Accordingly, the department instructed deputies to wait for backup on dangerous calls.

¶ 7 The Sheriff's Department hired Deputy McCartney in 2014. McCartney was a veteran lateral hire from the Hoquiam Police Department, with which he had served since 2009, and he had at least four months of law enforcement academy training. The department assigned McCartney to district 10, in which deputies were assigned to patrol alone.


¶ 8 On January 6, 2018, McCartney worked back-to-back shifts from 3:00 PM overnight until 6:00 AM the next morning. On January 7, he volunteered to take a shift for another deputy who was ill. After less than six hours of sleep, McCartney returned to work that evening to cover the absent deputy's overnight shift.

¶ 9 At around 11:00 PM on January 7, six sheriff deputies responded to a house fire with an active shooter in Tacoma, to back up the Tacoma police. While deputies were on scene in Tacoma, a 911 call came in at 11:23 PM from the Frederickson area of unincorporated Pierce County and reported a home invasion was in progress. The 911 operator could hear screaming, glass breaking, and loud banging during the call. The Frederickson area is within sheriff district 7, which is adjacent to district 10.

¶ 10 Although outside of his assigned patrol area, dispatch sent McCartney to respond to the Frederickson call. He arrived at the scene at 11:29 PM, requested backup, was given a description of the suspects, and informed that children may be inside the home. At 11:33 PM, McCartney reported to dispatch that he saw the suspects running on foot. Within a minute, McCartney began to give chase on foot, reported shots were fired, and then his radio fell silent.

¶ 11 A sheriff sergeant ordered that McCartney's radio microphone be opened so that two-way communications could take place without interruption, but the open-microphone program did not function because of the amount of other simultaneous radio traffic on the same channel. At 11:37 PM, other responding deputies arrived and discovered McCartney with a gunshot wound. He was not transported to a hospital until after midnight, and medical professionals pronounced him dead in the early hours of January 8.

¶ 12 In the aftermath of the shooting, police arrested Frank Pawul, Samantha Jones, and Brenda Troyer, and discovered the body of their accomplice, Henry Carden, at the scene of the shooting. Pawul, Carden, Jones, and Troyer had broken into a home at which Jones had previously conducted a drug deal to demand money from its residents. They had held three adults and two children at gunpoint while they searched the home. Pawul pleaded guilty to aggravated first degree murder with a firearm for the death of McCartney. Jones also pleaded guilty to first degree murder, and Troyer pleaded guilty to first degree rendering criminal assistance for having provided Pawul with information as to the location of law enforcement in order that he could avoid apprehension.


¶ 13 The McCartneys filed a complaint for damages against the County in February 2021. The first cause of action was for wrongful death–negligence. The McCartneys alleged that the County had a duty to provide McCartney with a safe workplace, proper supervision, adequate training, and sufficient support. They alleged that the County was negligent for not hiring sufficient deputies such that McCartney would not have had to face "unreasonably unsafe working conditions." CP at 13. They further alleged that the County negligently created unsafe working conditions through understaffing, that the Council failed to properly staff the Sheriff's Department, that the department was negligently slow in hiring additional deputies, and that the County had no written policy on when a supervisor or multiple deputies needed to be called in for backup. Thus, the McCartneys alleged that "[b]ut for Pierce County's failure to properly staff and train its deputies, Daniel McCartney would likely still be alive." CP at 17.

¶ 14 In their second cause of action, the McCartneys requested the court issue a writ of mandamus to the County, "mandating sufficient staffing or other equitable relief that will prevent a repeat of another wrongful deputy death." CP at 18. The McCartneys did not provide further detail on what such mandatory staffing or equitable relief would entail. Instead, the McCartneys asked the court to compel Pierce County to either provide "sufficient" staffing or "stop responding to calls when sufficient staffing is not possible." CP at 19.

¶ 15 The County filed an answer to the complaint on March 12. In it, the County raised multiple defenses, including discretionary immunity for the exercise of governmental authority of elected public officials. The County also filed a third party complaint against Pawul, Jones, and Troyer as the proximate cause of McCartney's death.

¶ 16 That same day, the County filed a motion to dismiss under CR 12(c). In its motion, the County included information from the public record, including Council resolutions, committee meeting minutes, and committee meeting recordings in which the Council was presented with emergency statistics, response times, recruiting efforts, and hiring and training information. Although referenced in the text, the records themselves were hyperlinked in a footnote. The County argued that discretionary...

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