Johnson v. State

• Decision Date: 08 November 2011
• Docket Number: No. 40637–3–II.,40637–3–II.
• Citation: 164 Wash.App. 740,265 P.3d 199
• Court: Washington Court of Appeals
• Parties: Del JOHNSON, Individually and as the Personal Representative of the Estate of Beverly Johnson, Appellant, v. STATE of Washington; Grays Harbor County, Washington; Grays Harbor Communications Center a/k/a Grays Harbor E911 Communications Center, Respondents.

164 Wash.App. 740

265 P.3d 199

Del JOHNSON, Individually and as the Personal Representative of the Estate of Beverly Johnson, Appellant,

v.STATE of Washington; Grays Harbor County, Washington; Grays Harbor Communications Center a/k/a Grays Harbor E911 Communications Center, Respondents.

No. 40637–3–II.

Court of Appeals of Washington, Division 2.

Nov. 8, 2011.

Franklin Lee Dennis, Barokas Martin & Tomlinson, Seattle, WA, James S. Coon, Swanson, Thomas & Coon, Portland, OR, for Appellant.

Edward Sydney Winskill, Attorney General of Washington, Donald L. Law, Law Lyman Daniel Kamerrer et al, Olympia, WA, Duncan K. Fobes, Rhianna Marie Fronapfel, Patterson Buchanan Fobes Leitch & Kalzer, Seattle, WA, for Respondents.

HUNT, P.J.

[164 Wash.App. 743] ¶ 1 Del Johnson, individually and as personal representative of Beverly Johnson's estate, appeals the trial court's summary judgment dismissal of his lawsuit against the State of Washington, Grays Harbor County, and Grays Harbor E911 Communications Center (Grays Harbor 911) ¹ (collectively, Defendants), in which he alleged that they negligently failed to inform a third party that Beverly ² was a missing and endangered person with a history of seizures. Johnson argues that the public duty doctrine, which normally would preclude this type of lawsuit, does not apply here; we disagree. Holding that Johnson has failed to demonstrate that Defendants owed Beverly a special duty different from Defendants' general public duty, we affirm.

FACTS

I. Missing Person

¶ 2 Del Johnson is an Oregon resident and personal representative of the estate of Beverly Johnson, his late wife. On January 27, 2007, Beverly drove her vehicle away from her local library. Her family reported to the Beaverton, Oregon Police Department that she was “missing with a history of seizure disorder,” which “caused her to be severely disoriented while appearing to function normally,” especially at that time, when Beverly's “medications that normally controlled her condition were not functioning because of a flu virus.” Clerk's Papers (CP) at 14, 83. At 7:03 pm, the Beaverton Police Department reported Beverly as a “missing person endangered with history of seizures” in the National Crime Information Center (NCIC) ³ and provided her physical description, a description of the clothes she was last seen wearing, and the description and license plate number of her vehicle. CP at 34. The Beaverton Police Department did not request “automatic notification of any sighting of [Beverly's] vehicle.” CP at 83.

¶ 3 At 8:41 pm, Tyler Trimble advised a Grays Harbor 911 operator that he was driving on a Washington state highway and observing a car driving erratically in front of him at about 20 miles below the speed limit. Trimble reported the vehicle's color, license plate number, location, slow speed, and erratic movement. Because the vehicle was travelling on a state highway, Grays Harbor 911 transferred Trimble to the Washington State Patrol (WSP), to whom Trimble repeated the same information.

¶ 4 WSP advised Trimble that it was going to “notify troopers.” CP at 96. Trimble stayed on the line as the erratic vehicle turned off the state highway into the City of Elma; Trimble continued on the state highway. When the call between WSP and Trimble ended, WSP put out a dispatch to local patrol that “the erratically driven [vehicle] ... just enter[ed] Elma at this time, slow rate lane travel, NCIC indicates that this vehicle is associated with a missing person endangered and a seizure history.” CP at 97. Four WSP troopers acknowledged this call.

¶ 5 WSP also advised Grays Harbor 911 that the reported vehicle was then in Elma and that “NCIC shows that vehicle [is] associated with a missing and endangered person who has a history of seizures.” CP at 61. Neither WSP nor Grays Harbor 911 passed on this information to Trimble.⁴ About one and a half weeks after the Beaverton Police Department reported Beverly missing, Grays Harbor Sheriff's Department deputies discovered her vehicle and her body near Wynoochee Lake Dam in the Olympic National Forest.

II. Procedure

¶ 6 As the personal representative of Beverly's estate, Johnson sued the State, Grays Harbor County, and Grays Harbor 911.⁵ The complaint alleged that (1) the WSP's and Grays Harbor County's failures to tell Trimble that Beverly “had been listed as Missing and Endangered” was an “error [ ]” that “proximate[ly] cause[d]” and “substantially contributed” to Beverly's death; (2) “[a]s a proximate result of the errors ... [Beverly] suffered pain, anguish, fear, hunger, thirst and exposure to the elements, to her damage in the amount of $500,000”; and (3) “[a]s a result of the death of [Beverly], her husband, Del[ ] Johnson, has suffered loss of mutual love, affection, companionship, society and consortium, all to his damage in the amount of $2,500,000.” CP at 4–5.

¶ 7 The State, Grays Harbor County, and Grays Harbor 911 moved for summary judgment, arguing that the public duty doctrine precluded Johnson's claims. In opposition, Johnson argued that the public duty doctrine did not apply and that “[t]he public duty doctrine should be abrogated.” CP at 107. The trial court granted summary judgment to the Defendants. Johnson appeals.

ANALYSIS

¶ 8 Johnson argues both that the public duty doctrine does not preclude his claims against the Defendants and that we should abrogate the public duty doctrine. His first argument fails. We decline to address his second argument, which would require us to ignore binding Supreme Court precedent.

I. Public Duty Doctrine Applies

¶ 9 Johnson argues that his action falls under one or more exceptions to the public duty doctrine and, therefore, the superior court erred in dismissing his lawsuit on summary judgment. We disagree.

A. Standard of Review

¶ 10 When reviewing a summary judgment motion, we view the case from “the position of the trial court.” Ruff v. County of King, 125 Wash.2d 697, 703, 887 P.2d 886 (1995). In so doing, we review the trial court evidence contained in the pleadings, affidavits, admissions, and other properly presented material. Chase v. Daily Record, Inc., 83 Wash.2d 37, 42, 515 P.2d 154 (1973) (quoting Leland v. Frogge, 71 Wash.2d 197, 200, 427 P.2d 724 (1967)). Summary judgment is proper if pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the nonmoving party, show there is no genuine issue of material fact and demonstrate that the moving party is entitled to judgment as a matter of law. Bratton v. Welp, 145 Wash.2d 572, 576, 39 P.3d 959 (2002); CR 56(c). In a negligence action, determining whether the defendant owed an actionable duty to the plaintiff represents a question of law, which we review de novo. Cummins v. Lewis County, 156 Wash.2d 844, 852, 133 P.3d 458 (2006).

B. Public Duty Doctrine

¶ 11 In order to maintain a negligence action, a plaintiff must establish a duty of care that runs from the defendant to the plaintiff. Honcoop v. State, 111 Wash.2d 182, 188, 759 P.2d 1188 (1988). The public duty doctrine serves “as a framework for courts to use when determining when a governmental entity owes either a statutory or common law duty to a plaintiff suing in negligence.” Cummins, 156 Wash.2d at 853, 133 P.3d 458. According to the public duty doctrine,

In negligence actions against a government entity ... “no liability may be imposed ... 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.’ ”

Cummins, 156 Wash.2d at 852–53, 133 P.3d 458 (quoting Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988) (citations omitted) (quoting J & B Dev. Co. Inc. v. King County, 100 Wash.2d 299, 303, 669 P.2d 468 (1983))).⁶ Johnson concedes that the public duty doctrine precludes imposition of liability on Defendants for allegedly negligently failing to find a missing and endangered person such as Beverly because this is a duty that Defendants owed to the public in general. Nevertheless, Johnson contends that once Trimble spoke to the Grays Harbor 911 and to State dispatchers, and the dispatchers learned that Beverly “was missing and endangered,” (1) Defendants' “duty was no longer to the public in general [,] [i]t was to [Beverly]”; and (2) Defendants breached this duty. Br. of Appellant at 9.

C. Exceptions to Public Duty Doctrine

¶ 12 In order to establish that Defendants owed Beverly a duty, Johnson had to show that one of four exceptions to the public duty doctrine applied: (1) legislative intent; (2) a failure to enforce; (3) the rescue doctrine; or (4) a special relationship. See Cummins, 156 Wash.2d at 853 n. 7, 133 P.3d 458. “If one of these exceptions applies, the government will be held as a matter of law to owe a duty to the individual plaintiff or to a limited class of plaintiffs.” Cummins, 156 Wash.2d at 853, 133 P.3d 458. Johnson argues that “[t]his case fits at least two of these and should fit all four.” Br. of Appellant at 10. We examine each in turn.

1. Legislative Intent

¶ 13 “The traditional public duty rule of nonliability does not apply where a regulatory statute ... evidences a clear legislative intent to identify and protect a particular and circumscribed class of persons.” Honcoop, 111 Wash.2d at 188, 759 P.2d 1188.⁷ Johnson contends that the Legislature intended RCW 70.96A.120(2) to protect persons such as Beverly. Br. of Appellant at 11–13. Subject to certain exceptions, RCW 70.96A.120(2) provides, in part:

[Any] person who appears to be incapacitated or gravely disabled by alcohol or other drugs and who is in a public place or who has threatened, attempted, or inflicted physical harm on himself, herself, or another, shall be taken into protective custody ... as soon as practicable, but in no event beyond eight hours brought to an approved treatment program for treatment. If no approved treatment program is readily available h...