Munich v. Skagit Emergency Commc'ns Ctr., No. 85984-1

• Court: United States State Supreme Court of Washington
• Writing for the Court: CHAMBERS
• Docket Number: No. 85984-1
• Parties: Munich (Gayle) v. Skagit Emergency Commc'ns Ctr.
• Decision Date: 01 November 2012

Munich (Gayle)
v.
Skagit Emergency Commc'ns Ctr.

No. 85984-1

Supreme Court of Washington, en Banc

Dated: November 1, 2012

CHAMBERS, J. (concurring) — I concur with, and have signed, the majority opinion. It properly describes and applies our 911 jurisprudence. I write separately because based upon the briefing we have received and the Court of Appeals opinions I have reviewed, I believe there is great confusion about what our public duty doctrine jurisprudence means. We (and I include myself) have not been careful in what we have said in past cases. This has given rise to deeply held and greatly divergent views on the doctrine. Some think the public duty doctrine is a tort of its own imposing a duty on any government that gives assurances to someone. Some view it as providing some sort of broad limit on all governmental duties so that governments are never liable unless one of the four exceptions to the public duty applies, thus largely eliminating duties based on the foreseeability of avoidable harm to a victim. In fact, the public duty doctrine is simply a tool we use to ensure that governments are not saddled with greater liability than private actors as they conduct the people's business.

Although we could have been clearer in our analyses, the only governmental duties we have limited by application of the public duty doctrine are duties imposed by a statute, ordinance, or regulation.¹ This court has never held that a government

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did not have a common law duty solely because of the public duty doctrine. This concurrence will attempt to explain why that is so.

There was a time when the king could do no wrong and the sovereign was immune from suit. Alden v. Maine, 527 U.S. 706, 768 n.6, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999) (Souter, J., dissenting); see also Kelso v. City of Tacoma, 63 Wn.2d 913, 914-15, 390 P.2d 2 (1964). Over time, this principle became increasingly unpopular among courts, certain legislators, and legal scholars, who believed government should be more accountable for its conduct. Kelso, 63 Wn.2d at 915-16. In 1961, the Washington Legislature repealed the State's immunity for

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governmental functions. Laws of 1961, ch. 136, § 1 (codified as RCW 4.92.090). And in 1967, the legislature expressly repealed immunity for local governments. Laws of 1967, ch. 164, § 1 (codified as RCW 4.96.010). Amended only once since, in Laws of 1963, chapter 159, section 2, the repeal of State immunity presently reads as follows: "The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation." RCW 4.92.090.

But treating governments the same as private persons or corporations became problematic where statutes and ordinances imposed duties on governments not imposed upon private persons or corporations. See Evangelical United Brethren Church v. State, 67 Wn.2d 246, 253, 407 P.2d 440 (1965) ("Essentially, then, the official conduct giving rise to liability must be tortious, and it must be analogous, in some degree at least, to the chargeable misconduct and liability of a private person or corporation."). Private persons do not govern, pass laws, or hold elections. Private persons are not required by statute or ordinance to issue permits, inspect buildings, or maintain the peace and dignity of the state of Washington. We therefore found the "traditional rule" helpful when a duty was imposed or mandated upon a government entity by statute or ordinance. Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978).

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According to the traditional rule, "municipal ordinances impose a duty upon municipal officials which is owed to the public as a whole, so that a duty enforceable in tort is not owed to any particular individual." Id. This traditional rule became known as the public duty doctrine. J&B Dev. Co. v. King County, 100 Wn.2d 299, 303-04, 669 P.2d 468 (1983), overruled on other grounds by Meaney v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988). Because we were interpreting legislation, our goal was to determine legislative intent. See, e.g., Halvorson, 89 Wn.2d at 676. We used the public duty doctrine as a tool to analyze whether a mandated government duty was owed to the public in general or to a particular class of individuals. See id.

Because the legislature had declared that governments were to be liable for their tortious conduct just like private persons or corporations, the public duty doctrine was not applied to duties that governments had in common with private persons. Thus, for example, the public duty doctrine applies to a city's building department's actions when issuing building permits because that is a function imposed by ordinance and not a duty shared with private persons. Meaney, 111 Wn.2d at 178-79. But the same building department owes common law, premises-liability duties to those who enter the building department's offices because all possessors of land owe the same duties to those who enter, whether the landowners are public or private entities. See generally Oberg v. Dep't of Natural Res., 114 Wn.2d 278, 787 P.2d 918 (1990) (holding public duty doctrine did not apply where

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state agency had independent common law and statutory duties that applied to all landowners). The following excerpts from our cases illustrate that the public duty doctrine is properly applied to duties mandated by statute or ordinance as opposed to common law duties:

The traditional rule is that municipal ordinances impose a duty upon municipal officials which is owed to the public as a whole, so that a duty enforceable in tort is not owed to any particular individual. . . .
The traditional rule has an exception, however, which is applicable in this case. Liability can be founded upon a municipal code if that code by its terms evidences a clear intent to identify and protect a particular and circumscribed class of persons.

Halvorson, 89 Wn.2d at 676 (Utter, J., writing for a unanimous court) (citations omitted).

By our language in Halvorson, we advised legislative bodies that, when they impose a duty on public officials as a whole, no duty in tort is owed to a particular individual. If, on the other hand, the legislation evidences a clear intent to identify a particular and circumscribed class of persons, such persons may bring an action in tort for violation of the statute or ordinance. Thus, the first question we must determine in this case is if such a clear legislative intent exists.

Baerlein v. State, 92 Wn.2d 229, 232, 595 P.2d 930 (1979) (Dolliver, J., writing for a unanimous court).

In Chambers-Castanes, we acknowledged that the law may impose "a duty to perform a mandated act for the benefit of particular persons or class of persons."

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Hartley v. State, 103 Wn.2d 768, 782, 698 P.2d 77 (1985) (Dolliver, C.J., writing for a unanimous court) (quoting Chambers-Castanes v. King County, 100 Wn.2d 275, 285, 669 P.2d 451 (1983)).

Traditionally state and municipal laws impose duties owed to the public as a whole and not to particular individuals. . . . Thus "'for one to recover from a municipal corporation in tort it must be 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 (i.e., a duty to all is a duty to no one).'"

Meaney, 111 Wn.2d at 178 (citations omitted) (Callow, J., writing for a unanimous court) (quoting Bailey v. Town of Forks, 108 Wn.2d 262, 265, 737 P.2d 1257, 753 P.2d 523 (1987) (quoting J&B, 100 Wn.2d at 303)).

The public duty doctrine provides that regulatory statutes impose a duty on public officials which is owed to the public as a whole, and that such a statute does not impose any actionable duty that is owed to a particular individual.

Honcoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988) (Dore, J., writing for the court) (citing Bailey, 108 Wn.2d at 265-66; Chambers-Castanes, 100 Wn.2d at 284).

Liability may exist, however, where a relationship exists or has developed between the

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