Honcoop v. State, 52997-3

CourtUnited States State Supreme Court of Washington
Citation111 Wn.2d 182,759 P.2d 1188
Docket NumberNo. 52997-3,52997-3
PartiesWilliam J. HONCOOP, et al., Petitioners, v. STATE of Washington, et al., Respondents. Tony VELTHUIZEN, et al., Petitioners, v. STATE of Washington, Respondent. Tony VELTHUIZEN, et al., Petitioners, Harold HOLLOWAY, et al., Defendants, State of Washington, Respondent.
Decision Date15 July 1988

Page 182

111 Wn.2d 182
759 P.2d 1188
William J. HONCOOP, et al., Petitioners,
STATE of Washington, et al., Respondents.
Tony VELTHUIZEN, et al., Petitioners,
STATE of Washington, Respondent.
Tony VELTHUIZEN, et al., Petitioners,
Harold HOLLOWAY, et al., Defendants,
State of Washington, Respondent.
No. 52997-3.
Supreme Court of Washington,
En Banc.
July 15, 1988.

Page 183

[759 P.2d 1190] Buckland & Schumm, Gerard Schumm, Bellingham, for Zylstra, et al.

Bricklin & Gendler, David Bricklin, Seattle, for Heida, et al.

Ken Eikenberry, Atty. Gen., Narda Pierce, Asst. Atty. Gen., Dept. of Fisheries, Olympia, for respondents.

Simonarson, Visser, Zender & Thurston, Hal Thurston, Bellingham, for Honcoop, et al.

DORE, Justice.

Dairy operators may not maintain a negligence action against the State of Washington and the State Department of Agriculture for losses suffered when their dairy herds became infected with brucellosis. We hold that the petitioners' claims are barred and render judgment for the State.

Page 184


Brucellosis is a highly contagious bacteriological disease that infects cattle and humans. In cattle, the disease causes abortions in pregnant cows and lowered milk production. Cattle become infected with brucellosis by ingesting contaminated aborted matter, feed or water. The disease is often spread from infected herds to neighboring healthy herds.

In humans, brucellosis is a systemic disease characterized by fever, headaches, weakness and generalized aching that may last for several days, months or occasionally years. Meningitis and pneumonia may also occur. Transmission of the disease to humans occurs by contact with infected cattle or by the consumption of unpasteurized milk or cheese from infected cows. Ultimate control of brucellosis in humans rests in elimination of the disease in cattle.

Washington entered into a cooperative brucellosis control and eradication program with the United States Department of Agriculture. See RCW 16.36.100. The program virtually eliminated brucellosis in Washington and the State was certified brucellosis free in 1966. By 1974, Washington's neighboring states, particularly Idaho, experienced a significant increase in brucellosis. In 1976 the disease was reintroduced into Washington.

The dairy operators contend that their herds became infected with brucellosis in 1977 and 1978. They traced the infection in their herds to Harold Holloway, a Washington cattle dealer who imported dairy cows from Idaho. Tony Velthuizen, Alvin Heutink, Gene Megard, Pete Speelman, [759 P.2d 1191] Kenneth G. Rupke, and Bonne Hilverda purchased infected cows from Holloway at auctions in Washington in 1977 and 1978. Frank Ruzicka and Karl Heida contend that their herds were infected through contact with neighboring herds that had been infected by cows purchased from Holloway. William J. Honcoop and Bobbie Zylstra argue that their herds became infected when a cattle hauler transported their healthy cattle with infected Holloway cattle.

Page 185

The dairy operators, except Zylstra and Speelman, were unable to control the spread of brucellosis and their herds were slaughtered. As the dairy operators learned that their herds were infected, they filed complaints against Holloway, the State of Washington, and, in the case of Honcoop and Zylstra, against the cattle hauler. The complaints were consolidated in Whatcom County Superior Court. The trial court applied the "public duty doctrine" and granted the State summary judgment dismissing all claims. The Court of Appeals reversed the order with respect to the claims of two dairy operators and affirmed the trial court's order as to the others. Honcoop v. State, 43 Wash.App. 300, 316-17, 716 P.2d 963 (1986).


At this juncture, we must identify the duties owed by the State and the livestock industry under the state brucellosis control and eradication program. At the time this action arose, the director of Washington's Department of Agriculture was granted general supervisory authority for

the prevention of the spread and the suppression of infectious, contagious, communicable and dangerous diseases affecting the domestic animals within, in transit through, and, by means of the division of dairy and livestock, may establish and enforce quarantine of and against any and all domestic animals ... for such length of time as he deems necessary to determine whether any such animal is infected with any such disease.

Laws of 1953, ch. 17, § 2, p. 18 (former RCW 16.36.020); see Laws of 1959, ch. 161, § 1, p. 759 (former RCW 16.40.010). The director also has the power to promulgate and enforce reasonable rules, regulations and orders for the testing of all domestic animals imported into the state. Laws of 1947, ch. 172, § 3, p. 789 (former RCW 16.36.040).

Prior to 1977, cattle imported into the state were to be accompanied by a health certificate issued by the state of origin of the animal certifying that the animal is free from evidence of infectious and communicable diseases. Former

Page 186

WAC 16-54-030 (1970). Cattle from a brucellosis free herd, area or state accompanied by an official health certificate were exempt from any further brucellosis test requirements. Former WAC 16-54-080(2)(a) (1970). Animals imported from areas that were not certified brucellosis free were required to be tested for brucellosis prior to movement within the state. Former WAC 16-54-080(2)(b) and (c) (1970).

To carry out brucellosis testing, livestock markets employed veterinarians to draw blood samples from cattle to be sold. The samples are classified as either "negative", "suspect" or "a reactor" (tests positive for brucellosis). Reactor classification is based "on standards listed in 'U.S. Department of Agriculture Uniform Methods and Rules for Brucellosis Eradication.' " WAC 16-86-040(1).

If an animal is classified as a reactor, the owner must slaughter the animal and quarantine the herd from which the reactor originated. The quarantine will be released when the entire quarantined herd has passed two consecutive negative brucellosis tests. WAC 16-86-040; see RCW 15.36.150. The owner of a slaughtered animal is entitled to indemnity payments. See RCW 16.36.096; Laws of 1947, ch. 172, § 10, p. 795 (former RCW 16.40.060, repealed by Laws of 1985, ch. 415, § 13). Although the regulations require the quarantine of brucellosis suspects, no regulations have been promulgated for retesting or quarantine release of suspects.

In April 1977, after brucellosis had spread to Washington, the director, by emergency order, amended the regulations [759 P.2d 1192] governing the importation of cattle. The amended regulations provide that all imported cattle be moved on a permit issued by the State. The amended regulations further provide that all cattle be tested negative to an "official brucellosis test" within 45 days prior to importation, that they be quarantined on arrival and that they be retested not less than 30 days nor more than 60 days from the date of the first test. Former WAC 16-54-082(2) (1977). A brucellosis test is "official" if the blood sample is tested at the

Page 187

state laboratory, or an independent test is confirmed by the state laboratory. See WAC 16-54-010.

The dairy operators argue that the State assumed the additional duty to "trace back" suspects or reactors to their herds of origin and to then warn all owners whose cattle may have been exposed to the suspect or reactor. The dairy operators base their argument, in part, on the USDA Uniform Rules requirement that an epidemiological investigation be carried out whenever a suspect or reactor is discovered. The trace back provisions of the Uniform Rules have not been adopted in Washington and therefore do not create a duty owed by the State. 1

The dairy operators argue that the State assumed a duty to trace back in an "open letter" sent by the Department to the livestock industry. The letter, dated July 28, 1977, advised public livestock markets of their duty to keep accurate records of all buyers and sellers "so animals may be traced back if suspects or reactors are identified through the official brucellosis test performed in the Department of Agriculture state laboratory in Olympia." The letter further stated:

The department shall also attempt to tighten down the control on movement of animals without proper evidence of health status and shall attempt to secure the assistance of Washington law enforcement agencies.

The letter creates no duty in the State but merely indicates that the State "will attempt" to trace back infected animals as the resources of the Department permit.

In sum, the State in 1977 assumed the duty to conduct the official brucellosis test by which an animal's official health status is determined. Once the animal's official

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