Munich v. Skagit Emergency Commc'n Ctr., No. 85984–1.

• Court: United States State Supreme Court of Washington
• Writing for the Court: FAIRHURST
• Citation: 175 Wash.2d 871,288 P.3d 328
• Parties: Gaye Diana MUNICH, as personal representative for the Estate of William R. Munich, Respondent, v. SKAGIT EMERGENCY COMMUNICATION CENTER d/b/a Skagit 911; Skagit County; and Skagit County Sheriff's Office, Petitioners.
• Decision Date: 01 November 2012
• Docket Number: No. 85984–1.

175 Wash.2d 871
288 P.3d 328

Gaye Diana MUNICH, as personal representative for the Estate of William R. Munich, Respondent,
v.
SKAGIT EMERGENCY COMMUNICATION CENTER d/b/a Skagit 911; Skagit County; and Skagit County Sheriff's Office, Petitioners.

No. 85984–1.

Supreme Court of Washington,
En Banc.

Argued May 3, 2012.
Decided Nov. 1, 2012.

[288 P.3d 330]

Shannon Mary Ragonesi, Mark Richard Bucklin, Keating Bucklin & McCormack, Rhianna Marie Fronapfel, Bennett Bigelow & Leedom, P.S., Duncan K. Fobes, Patterson Buchanan Fobes Leitch & Kalzer, Seattle, WA, for Petitioners.

Ray W. Kahler, Stritmatter Kessler Whelan Coluccio, Hoquiam, WA, Kevin Coluccio, Paul W. Whelan, Stritmatter Kessler Whelan Coluccio, Seattle, WA, for Respondent.

George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.

Richard Steven Puz, Jennifer Smith Meyer, Office of the Attorney General, Olympia, WA, amicus counsel for Washington State Patrol.

FAIRHURST, J.

[175 Wash.2d 874]¶ 1 This case involves the special relationship exception to the public duty doctrine. One of the elements necessary to satisfy the special relationship exception requires an express assurance by the defendant. The plaintiff in this case alleges a 911 operator negligently responded to an emergency call by coding (or prioritizing) it incorrectly, thereby causing a delayed response. The operator correctly informed the caller help was on the way, though the operator made no time estimate or reference to the call's priority.

¶ 2 On summary judgment, the defendant argued express assurances must be false or inaccurate in order to satisfy the exception. The trial court and Court of Appeals disagreed. We affirm and hold where the express assurance promises action there is no falsity requirement because the assurances may be superficially correct but negligently fulfilled. The accuracy, or lack thereof, of an assurance has no bearing on the issue of whether an actionable duty was established.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 William R. Munich was shot and killed by his neighbor, Marvin Ballsmider, approximately 18 minutes after he placed his first shaken phone call to Skagit Emergency Communications Center (Skagit 911). The tragic event began on rural property Munich and his wife owned on Lake Campbell in Skagit County. Munich flew his float plane to the property and at some point thereafter Ballsmider pointed a rifle in Munich's direction, fired, and [175 Wash.2d 875]missed. The two had been in a property dispute related to access to a driveway and Ballsmider's property.

¶ 4 After the first shot, Munich called his friend Bruce Heiner. Heiner advised Munich to call 911 to get police assistance. Munich called 911. He told Norma Smith, a Skagit 911 call taker (or operator), exactly what happened—his neighbor pointed a rifle at him and fired a shot from about 25 feet away. Munich also informed Smith that he was hiding in his garage, the only structure on his property. The garage contained three unlocked vehicles with the keys located inside each.

¶ 5 Smith assured Munich that law enforcement was on the way, stating, “[M]y

[288 P.3d 331]

partner ¹ [has] already got a deputy that's headed toward [ ] you.” Clerk's Papers (CP) at 112. Smith then asked, “Ok, so are you going to wait ... there for contact?” Id. Munich responded, “Oh yeah, definitely.” Id. Smith later confirmed for a second time that Munich would wait for law enforcement in the garage and again assured him, “Ok, all righty, there's already a deputy that's en route to you, ok?” Id. Munich again replied, “Ok, thank you.” Id.

¶ 6 Smith entered the call as a priority two weapons offense rather than a priority one emergency call. Based on the priority two code, the dispatched deputy, Dan Luvera, did not activate his emergency lights and only traveled slightly over the speed limit.

¶ 7 About seven minutes later, Munich again called 911. Tammy Canniff took the second call, and Munich told her that Ballsmider came into the garage. He stated he was now on Highway 20 running away from Ballsmider who was following and shooting. Munich said Ballsmider shot at him around a dozen times. The dispatcher informed Deputy Luvera of these facts and Deputy Luvera consequently activated his emergency lights and siren and increased his [175 Wash.2d 876]speed. While on the phone with Skagit 911, Munich described how Ballsmider was chasing him down in a car while firing a gun out of the open window. The second call ended with the sound of Munich being fatally shot on the highway. Deputy Luvera arrived two minutes later and arrested Ballsmider for Munich's murder. Munich was running toward the direction from which Deputy Luvera arrived.

¶ 8 Munich's estate (the Estate) sued Skagit County, the Skagit County Sheriff's Office, and Skagit Emergency Communications Center (hereinafter the County) for wrongful death, alleging the County negligently responded to the incident. The Estate presented expert testimony opining that Munich's initial call should have been coded as priority one. Additional evidence suggested that had the call been coded as priority one, Deputy Luvera would have arrived on the scene before Munich was chased down and shot.

¶ 9 The County moved for summary judgment dismissal of the Estate's claims asserting it was not liable for Munich's death under the public duty doctrine. The County argued, in relevant part, that the special relationship exception to the public duty doctrine was not satisfied because the County provided no inaccurate or false information that Munich had detrimentally relied on. The trial court denied summary judgment, ruling the special relationship exception does not require false or inaccurate assurances. It further ruled the Estate alleged facts and argument satisfying the special relationship exception. The Court of Appeals affirmed, holding that where an express assurance involves a promise of future action, a plaintiff does not need to show the assurance was false or inaccurate to establish a special relationship. We granted the County's petition for review and now affirm. Munich v. Skagit Emergency Commc'n Ctr., 172 Wash.2d 1026, 268 P.3d 225 (2011).

[175 Wash.2d 877]II. ISSUE ¶ 10 Must a plaintiff show a 911 operator's assurances promising action were false or inaccurate to establish a special relationship under the public duty doctrine?
III. ANALYSIS

¶ 11 On the narrow issue before us, we hold express assurances promising action need not be false or inaccurate as a matter of law to satisfy the special relationship exception to the public duty doctrine. When a 911 operator assures a caller help is on the way, as in this case, truth or falsity is not determinative because the government actor may be negligent in fulfilling that assurance.

A. Falsity Is Not a Requirement To Establish an Express Assurance under the Special Relationship Exception to the Public Duty Doctrine1. Standard of review

¶ 12 When reviewing an order on summary judgment, we engage in the same

[288 P.3d 332]

inquiry as the trial court. Cummins v. Lewis County, 156 Wash.2d 844, 852, 133 P.3d 458 (2006). Summary judgment is proper when the record demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.;CR 56(c). All facts and reasonable inferences are considered in a light most favorable to the nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 784, 30 P.3d 1261 (2001). In a negligence action, whether an actionable duty was owed to the plaintiff is a threshold determination. Id. That determination is a question of law reviewed de novo. Cummins, 156 Wash.2d at 852, 133 P.3d 458.

[175 Wash.2d 878]2. The Estate alleged facts sufficient to establish an actionable duty under the special relationship exception

¶ 13 Municipal corporations are liable for damages arising out of their tortious conduct, or the tortious conduct of their employees, to the same extent as if they were a private person or corporation. RCW 4.96.010(1). When the defendant in a negligence action is a governmental entity, the public duty doctrine provides that a plaintiff must show the duty breached was owed to him or her in particular, and was not the breach of an obligation owed to the public in general, i.e., a duty owed to all is a duty owed to none. Babcock, 144 Wash.2d at 785, 30 P.3d 1261;Beal v. City of Seattle, 134 Wash.2d 769, 784, 954 P.2d 237 (1998) (citing Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988)). This doctrine “recognizes that a fundamental element of any negligence action is a duty owed by the defendant to the plaintiff.” Meaney v. Dodd, 111 Wash.2d 174, 178, 759 P.2d 455 (1988). In this way, the public duty doctrine is a focusing tool used to determine whether the defendant “owed a duty to a ‘nebulous public’ or a particular individual.” Osborn v. Mason County, 157 Wash.2d 18, 27, 134 P.3d 197 (2006) (internal quotation marks omitted) (quoting Taylor, 111 Wash.2d at 166, 759 P.2d 447). In this case, the County owed a statutory duty to the general public, under RCW 36.28.010, to preserve the peace and arrest those who disturb it. RCW 38.52.020 similarly provides for emergency management by the State and the creation of local organizations for emergency management in the political subdivisions of the state, for many reasons, including to protect the public peace, health, and safety and to preserves the lives and property of the people of the state. Skagit 911 was formed to provide these necessary services.²

[175 Wash.2d 879]¶ 14 There are four exceptions to the public duty doctrine: (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship. Cummins, 156 Wash.2d at 853, 133 P.3d 458. If any one of the exceptions applies, the government is held as a matter of law to owe a duty to...