Pierce v. Yakima County

• Decision Date: 12 May 2011
• Docket Number: No. 29568–1–III.,29568–1–III.
• Citation: 251 P.3d 270
• Court: Washington Court of Appeals
• Parties: Conrad F. PIERCE, Appellant,v.YAKIMA COUNTY, Washington, a governmental entity and political subdivision of the State of Washington, Respondent.

251 P.3d 270

Conrad F. PIERCE, Appellant,

v.YAKIMA COUNTY, Washington, a governmental entity and political subdivision of the State of Washington, Respondent.

No. 29568–1–III.

Court of Appeals of Washington, Division 3.

May 12, 2011.

Meriwether D. Williams, Kevin James Curtis, Winston & Cashatt, Spokane, WA, for Appellant.Mark Robert Johnsen, Attorney at Law, Seattle, WA, Lawrence Andrew Peterson, Yakima County Prosecuting Attorney, Yakima, WA, for Respondent.BROWN, J.

¶ 1 Conrad Pierce appeals the trial court's dismissal under the public duty doctrine of his negligence claims against Yakima County (County). Under the doctrine, the government may not be sued for negligence unless it breaches a duty owed particularly to the plaintiff rather than to the public in general. Mr. Pierce contends the trial court erred in failing to apply the “failure to enforce” and the “special relationship” exceptions to the public duty doctrine. Alternatively, Mr. Pierce contends remaining material facts preclude summary judgment on whether a special relationship has been established. We disagree with Mr. Pierce's contentions, and affirm.

FACTS

¶ 2 In spring 2007, Mr. Pierce contracted to purchase a Yakima home and lease it before closing. Mr. Pierce was responsible to lease or purchase an outside propane tank and the sellers would provide propane supply lines to serve the existing home.

¶ 3 In August 2007, Mr. Pierce applied for a mechanical code permit and a fire code permit to allow installation of a liquid propane storage tank and piping outside the house. Yakima County issued the permits. That month, All American Propane, Inc. (AAP) installed the propane tank, pressure regulator, valves, gauge, piping and propane 60 feet from the home. AAP connected the newly installed piping from the tank to the home without prior approval of the building official. Mr. Pierce called the County the same day to inspect the newly installed tank and its fuel line that was in an open trench leading from the tank to the home. On September 4, 2007, the County Building Inspector Richard Granstrand and Yakima County Deputy Fire Marshal Ronald Rutherford inspected the installation of the propane tank and piping. Mr. Granstrand told Mr. Pierce the propane installation had passed inspection and the piping could be covered in the trench. According to Mr. Pierce, he said, “It looks like everything is done. You are good to go.” Clerk's Papers (CP) at 41.

¶ 4 On October 4, 2007, Mr. Pierce installed a section of flexible piping between a valve near the interior wall and the furnace in the house. He opened the gas valve and attempted to ignite the furnace. Unknown to Mr. Pierce, an uncapped gas pipe existed in the attic of the house allowing the gas to escape into the attic and eventually into the living space. The gas exploded, destroying the home and injuring Mr. Pierce. The record is silent regarding any permitting process for the inside piping.

¶ 5 Mr. Pierce sued the home sellers, AAP, and the County for negligence. Yakima County unsuccessfully moved for summary judgment based on the public duty doctrine. Months later, after the other defendants had settled with Mr. Pierce, the County asked the court to clarify its summary judgment denial and identify any remaining factual issues bearing on the County's liability. The court held no issues of material fact remained bearing on the “failure to enforce” exception. The court entered an order summarily dismissing Mr. Pierce's claims against the County, including any claim based on the special relationship exception. The trial court reasoned:

In the present case, the Plaintiff has delineated a number of instances in which the Yakima County building officials either failed to observe violations of the International Residential Code or observed such violations, but took no action. Looking at the proffered facts in the light most favorable to the Plaintiff and without specific reference to the code sections, the evidence could support a finding that at least the following violations were apparent at the time of the inspection: (1) introduction of propane into the system before approval; (2) the use of propane as the testing medium on the leak test; (3) and the connection of the filled storage tank to the house without inquiry as to the integrity of the interior piping. Coffel v. Clallam County, 58 Wash.App. 517, 523, 794 P.2d 513 (1990) [knowledge of facts constituting a violation is sufficient to satisfy second prong of the test], Waite v. Whatcom County, 54 Wash.App. 682, 775 P.2d 967 (1989) [“circumstantial evidence may support a finding of actual knowledge”].

However, the critical issue is not whether there were code violations which were ignored or passed over, but whether the code mandated corrective action by the Building Official.

In the Court's view, these enforcement sections of the applicable code do not create a mandatory duty to take specific action. They are thus inadequate to support application of the failure to enforce exception.

CP at 60, 62.

¶ 6 The Supreme Court denied Mr. Pierce's request for direct review.

ANALYSIS

¶ 7 The issue is whether the trial court erred in summarily ruling the public duty doctrine precluded Mr. Pierce's negligence claims against the County.

¶ 8 When reviewing a trial court's summary judgment ruling, we engage in the same inquiry as the trial court. Halleran v. Nu W., Inc., 123 Wash.App. 701, 709, 98 P.3d 52 (2004). We will affirm a ruling granting summary judgment if no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences therefrom are considered in the light most favorable to the nonmoving party. Halleran, 123 Wash.App. at 709–10, 98 P.3d 52. In negligence actions, the determination of whether an actionable duty is owed to a plaintiff represents a question of law reviewed de novo. Cummins v. Lewis County, 156 Wash.2d 844, 852, 133 P.3d 458 (2006). Factual issues may be decided as a matter of law when reasonable minds could reach but one conclusion and when the factual dispute is so remote it is not material. Ruffer v. St. Frances Cabrini Hosp., 56 Wash.App. 625, 628, 784 P.2d 1288 (1990).

¶ 9 Washington waived its sovereign immunity to tort suits in 1967, declaring the State may be liable for damages arising out of its tortious conduct “to the same extent as if [it] were a private person or corporation.” RCW 4.96.010(1). However, the threshold determination when such a claim is asserted, as in all negligence actions, is whether a duty of care is owed to the plaintiff asserting the claim. Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988).

¶ 10 In determining if a duty of care exists when a claim is asserted against the state, Washington courts consider the “public duty doctrine,” which requires a showing 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.” Id. (quoting J & B Dev. Co. v. King County, 100 Wash.2d 299, 303, 669 P.2d 468 (1983), overruled on other grounds by Taylor, 111 Wash.2d 159, 759 P.2d 447; Meaney v. Dodd, 111 Wash.2d 174, 759 P.2d 455 (1988)). The doctrine reflects the policy that “legislative enactments for the public welfare should not be discouraged by subjecting a governmental entity to unlimited liability.” Id. at 170, 759 P.2d 447. The public duty doctrine is a “focusing tool” used to determine whether the state owed a specific duty to a particular individual, the breach of which is actionable, or merely a duty to the “nebulous public,” the breach of which is not actionable. Osborn v. Mason County, 157 Wash.2d 18, 27, 134 P.3d 197 (2006) (quoting Taylor, 111 Wash.2d at 166, 759 P.2d 447).

¶ 11 Four circumstances, referred to as “exceptions” exist to the public duty doctrine: (1) where there is a “legislative intent” to impose such a duty, (2) where the state is guilty of a “failure to enforce” a statutory duty, (3) where the government has engaged in “volunteer rescue” efforts, and (4) where a “special relationship” exists between the plaintiff and the state. Donohoe v. State, 135 Wash.App. 824, 834, 142 P.3d 654 (2006); Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 786, 30 P.3d 1261 (2001).

¶ 12 First, Mr. Pierce contends the County owed him a duty of care under the “failure to enforce” exception applicable when (1) government agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, (2) a statutory duty exists to take corrective action, (3) the agents fail to take corrective action, and (4) the plaintiff is within the class the statute is intended to protect. Halleran, 123 Wash.App. at 714, 98 P.3d 52; Smith v. State, 59 Wash.App. 808, 814, 802 P.2d 133 (1990); Honcoop v. State, 111 Wash.2d 182, 190, 759 P.2d 1188 (1988).

¶ 13 The exception is narrowly construed. Halleran, 123 Wash.App. at 714, 98 P.3d 52 (citing Atherton Condo. Apartment–Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wash.2d 506, 531, 799 P.2d 250 (1990)). It applies solely if the relevant statute mandates a specific action to correct a violation. Donohoe, 135 Wash.App. at 849, 142 P.3d 654. Such a mandate does not exist if the government agent has broad discretion regarding whether and how to act. Id.

¶ 14 The County adopted the following state codes: the International Residential Code (2006) (IRC); the International Mechanical Code (2006) (IMC), except standards for liquefied petroleum gas (propane) installations shall be the National Fuel Gas Code (2006) (NFPA 54); the Liquefied Petroleum Gas Code (2004) (NFPA 58); and the International Fire Code (2006) (IFC). Yakima County Ordinance No. 3–2007.

¶ 15 Mr. Pierce argues these fuel and gas codes mandate specific actions by directing the County to notify resident permit holders of noncompliance and to withhold final...