Norg v. City of Seattle

• Decision Date: 12 January 2023
• Docket Number: 100100-2
• Parties: Delaura NORG, as Litigation Guardian Ad Litem for Her Husband, Fred B. Norg, an Incapacitated Man, and Delaura Norg, Individually, Respondents, v. CITY OF SEATTLE, Petitioner.
• Court: Washington Supreme Court

522 P.3d 580

Delaura NORG, as Litigation Guardian Ad Litem for Her Husband, Fred B. Norg, an Incapacitated Man, and Delaura Norg, Individually, Respondents,

v.CITY OF SEATTLE, Petitioner.

No. 100100-2

Supreme Court of Washington, En Banc.

Argued May 19, 2022

Filed January 12, 2023

Francis Stanley Floyd, Amber L. Pearce, Floyd, Pflueger & Ringer PS, 3101 Western Ave. Ste. 400, Seattle, WA, 98121-3017, Tara Gillespie, Joseph Givon Groshong, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, Paul J. Lawrence, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Petitioner.

Simon Henri Forgette, Janis Mary Nevler, Simon H. Forgette PS, 406 Market St. Ste. A, Kirkland, WA, 98033-6135, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N., Seattle, WA, 98109-3007, William James Leedom, Bennett Bigelow Leedom PS, 601 Union St. Ste. 1500, Seattle, WA, 98101-1363, for Respondent.

Daniel G. Lloyd, Vancouver City Attorney's Office, P.O. Box 1995, Vancouver, WA, 98668-1995, for Amicus Curiae on behalf of Washington State Association of Municipal.

Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

YU, J.

¶1 This case asks whether the public duty doctrine shields the city of Seattle (City) from potential liability for its allegedly negligent response to a 911 call. In this case, it does not.

¶2 Delaura Norg called 911 seeking emergency medical assistance for her husband, Fred. She gave the 911 dispatcher her correct address, which the dispatcher relayed to emergency responders from the Seattle Fire Department (SFD). The Norgs’ apartment building was three blocks away from the nearest SFD station, but it took emergency responders over 15 minutes to arrive. This delay occurred because the SFD units failed to verify the Norgs’ address and, instead, went to a nearby nursing home based on the mistaken assumption that the Norgs lived there. The Norgs sued the City for negligence, alleging that SFD's delayed response aggravated their injuries.

¶3 The City pleaded the public duty doctrine as an affirmative defense and both parties moved for summary judgment on the question of duty. The trial court granted partial summary judgment in the Norgs’ favor and struck the City's affirmative defense. The Court of Appeals affirmed on interlocutory review. We granted review and now affirm.

¶4 The undisputed facts establish that once the City undertook its response to the Norgs’ 911 call, the City owed the Norgs an actionable, common law duty to use reasonable care. The Norgs’ claim is based on the City's alleged breach of this common law duty and is therefore not subject to the public duty doctrine as a matter of law. As a result, we hold that the trial court properly granted partial summary judgment to the Norgs on the question of duty. In doing so, we express no opinion on the remaining elements of the Norgs’ claim (breach, causation, and damages). We thus affirm the Court of Appeals and remand to the trial court for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

¶5 For purposes of the issues presented, the underlying facts are not disputed. Early in the morning on February 7, 2017, Delaura woke up to find Fred "making really loud sounds."¹ Clerk's Papers at 147. Fred's "eyes were wide open and glassy," and he did not respond to Delaura's attempts to wake him. Id. Delaura called 911, and she was connected to a dispatcher employed by SFD at 4:42 a.m. The dispatcher immediately asked for the Norgs’ address, which Delaura accurately provided.

¶6 Within one minute of answering Delaura's call, the 911 dispatcher assigned three units from two nearby SFD stations to respond. The dispatcher gave the units the Norgs’ correct address, which was three blocks away from the closest station. Id. at 215, 99. The units left their respective stations between 4:44 and 4:46 a.m., and the dispatcher assured Delaura that "a lot of people [were] on the way." Id. at 176. While she waited, Delaura confirmed her address to the dispatcher twice, and she followed the dispatcher's instructions to move Fred to the floor and begin cardiopulmonary resuscitation.

¶7 By 4:49 a.m., all three of the dispatched units signaled that they were "[o]n [s]cene." Id. at 215. However, they were not at the Norgs’ apartment. Instead, the units mistakenly assumed the 911 call had come from "a nursing home in the [same] area that gets many alarms throughout the year," and they went there instead, driving past the Norgs’ apartment building to do so. Id. at 80. When the emergency responders arrived at the nursing home, they found no indication of a medical emergency and realized they had gone to the wrong address.

¶8 The units then went back to the Norgs’ apartment building. After struggling to gain access, emergency responders reached the Norgs approximately 16 minutes after Delaura began speaking with the 911 dispatcher. Id. at 185. Fred was transported to the hospital, where he was diagnosed with a heart attack

. He survived but allegedly suffered "severe and permanent injuries," including brain damage due to a lack of oxygen, resulting in "cognitive deficits and impaired vision, balance[,] and ambulation." Id. at 10.

B. Procedural history

¶9 On October 12, 2018, the Norgs filed a complaint against the City, claiming that its employees were "negligent in failing to use reasonable care in responding to the Norgs’ 911 medical emergency." Id. They allege this negligence caused damages including medical expenses, pain and suffering, emotional distress, and lost wages and earning capacity. Id. at 10-11. In its answer to the Norgs’ complaint, the City asserted as one of its "affirmative defenses" that the Norgs’ "claims are barred by the public duty doctrine."² Id. at 20-21.

¶10 The Norgs moved for partial summary judgment to strike the City's " ‘public duty’ defenses and to rule that the City owed the Norgs a common law duty of reasonable care while responding to Mr. Norg's cardiac arrest

." Id. at 23. The City also moved for summary judgment, contending that it cannot be held "liable for a 911 call response unless an exception to the public duty doctrine applies" and that "there are no questions of fact regarding an exception." Id. at 104-05. Following oral argument, the trial court granted the Norgs’ motion and denied the City's motion, concluding that the "City of Seattle owed plaintiffs a duty of ordinary care" and striking the City's "affirmative defenses" relating to the public duty doctrine. Id. at 541.

¶11 On the City's motion, the trial court certified its order for interlocutory review, ruling that the application of the public duty doctrine to this case is "a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation." Id. at 470; see RAP 2.3(b)(4). The Court of Appeals granted the City's motion for discretionary review and affirmed in a published opinion, holding that the public duty doctrine does not apply here because the City owed the Norgs "a common law duty to exercise reasonable care in providing emergency medical services." Norg v. City of Seattle , 18 Wash. App. 2d 399, 403, 491 P.3d 237 (2021).

¶12 The City moved for discretionary review, and the Washington State Association of Municipal Attorneys filed an amicus brief supporting the City's motion. After we granted review, the Washington State Association for Justice Foundation filed an amicus brief supporting the Norgs on the merits.

ISSUE

¶13 Whether the public duty doctrine bars the Norgs’ negligence claim against the City.

ANALYSIS

A. Background on the public duty doctrine

¶14 Courts in Washington have been developing and applying the public duty doctrine for decades. However, the doctrine has taken a "sometimes wandering path," and as a result, parties and courts (including this court) have at times "struggle[d] with the case law." Ehrhart v. King County , 195 Wash.2d 388, 396, 460 P.3d 612 (2020). We therefore take this opportunity to review the history and purpose of the public duty doctrine to provide context for our decision here and clarity for future cases.

¶15 Historically, courts in the United States applied the "rule that a State could not be sued without its consent," which was derived from "[t]he sovereign immunity of the British crown." RESTATEMENT (SECOND) OF TORTS § 895B cmt. a ( AM. L. INST . 1979). This historical rule is "implicitly acknowledged" in the Washington Constitution, which provides that " ‘[t]he legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.’ " Debra L. Stephens & Bryan P. Harnetiaux, The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability , 30 SEATTLE U. L. REV. 35, 37 (2006) (quoting CONST. art. II, § 26 ). A more limited form of sovereign immunity was also extended to local government entities "when they were performing ‘governmental functions’ similar to those performed by the state." Stephens & Harnetiaux, supra , at 38.

¶16 Amid growing criticism of sovereign immunity, our legislature in the 1960s exercised its constitutional authority to allow tort claims against state and local government entities in Washington. See LAWS OF 1961, ch. 136, § 1 (codified as RCW 4.92.090 ), amended by LAWS OF 1963, ch. 159, § 2; LAWS OF 1967, ch. 164, § 1 (codified as RCW 4.96.010 ). However, this does not mean that the government's potential tort liability is unlimited. Instead, governmental entities "shall be liable for damages arising out of their tortious conduct ... to the same extent as if they were a private person or corporation." RCW...