Robb v. City of Seattle

• Decision Date: 31 January 2013
• Docket Number: No. 85658–3.,85658–3.
• Citation: 176 Wash.2d 427,295 P.3d 212
• Parties: Elsa ROBB, Personal Representative of the Estate of Michael W. Robb, Respondent, v. CITY OF SEATTLE, a municipal corporation; Officer Kevin McDaniel; Officer Ponha Lim, Petitioners, and Unknown John Does, Defendants.
• Court: Washington Supreme Court

176 Wash.2d 427

295 P.3d 212

Elsa ROBB, Personal Representative of the Estate of Michael W. Robb, Respondent,

v. CITY OF SEATTLE, a municipal corporation; Officer Kevin McDaniel; Officer Ponha Lim, Petitioners,andUnknown John Does, Defendants.

No. 85658–3.

Supreme Court of Washington,

En Banc.

Argued March 15, 2012.

Decided Jan. 31, 2013.

Rebecca Boatright, Seattle City Attorneys Office, Seattle, WA, for Petitioner.

Timothy George Leyh, Matthew Ryan Kenney, Elizabeth Weden Perka, Calfo Harrigan Leyh & Eakes LLP, Seattle, WA, for Respondent.

Patrick G. McMahon, Attorney at Law, Wenatchee, WA, Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Daniel Brian Heid, Auburn, WA, amicus counsel for Association of Washington Cities.

Michael Patrick Lynch, Office of the Attorney General, Olympia, WA, Catherine Hendricks, WA Attorney General, Seattle, WA, amicus counsel for Attorney General of Washington.

Franklin William Shoichet, Attorney at Law, Fred Diamondstone, Law Offices of Fred Diamondstone, Seattle, WA, amicus counsel for Families and Friends of Violent Crime Victims.

Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Daniel Brian Heid, Auburn, WA, amicus counsel for The Washington State Association of Municipal Attorneys.

Deborah Ann Boe, Kitsap County Prosecuting Attorney's Office, Port Orchard, WA, Leo Edward Poort, Leo Poort, Redmond, WA, Zanetta Lehua Fontes, Renton, WA, amicus counsel for Washington Association of Sheriffs and Police Chiefs.

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

MADSEN, C.J.

[176 Wash.2d 429]¶ 1 The City of Seattle and Officers Kevin McDaniel and Ponha Lim (collectively City of Seattle or the city) challenge the Court of Appeals' decision affirming the trial court's denial of its motion for summary judgment. Respondent Elsa Robb, on behalf of her deceased husband Michael Robb, alleges that law enforcement acted negligently by failing to pick up and remove shotgun shells lying near Samson Berhe after stopping him on suspicion of burglary. After the stop, Berhe returned to retrieve the cartridges, and shortly thereafter used one of them to kill Michael Robb. Respondent relies on Restatement (Second) of Torts § 302B comment e (1965) to argue law enforcement assumed a duty to Michael Robb by taking affirmative action that “created or exposed [Robb] to a recognizable high degree of harm ... which a reasonable man would have taken into account.” The City of Seattle contends that § 302B does not create a tort duty absent a special relationship and that it owed no duty to Michael Robb.

¶ 2 We hold that Restatement§ 302B may create an independent duty to protect against the criminal acts of a third party where the actor's own affirmative act creates or exposes another to the recognizable high degree of risk of harm. However, we also hold that here, the police officer's failure to pick up shotgun shells lying near defendants in a Terry¹ stop was not an affirmative act as contemplated by the Restatement. We reverse the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 3 On June 26, 2005, Berhe shot Michael Robb using a stolen shotgun loaded with two shells. Less than two hours before the shooting, Officers McDaniel and Lim stopped Berhe and his companion, Raymond Valencia, on suspicion of burglary two blocks from where Berhe lived. A neighbor reported that he saw Valencia throw several shells to the ground before the officers took control of Berhe and Valencia. During the stop, the officers observed three to five shotgun shells on the ground, but they neither questioned Berhe or Valencia about the shells nor picked them up. The officers explain that this decision was based upon the lack of a connection between the shells and the reported crime that led to the stop. Elsa Robb claims it was negligent for Officers McDaniel and Lim to fail to retrieve the shotgun shells.

¶ 4 After about 20 minutes of investigation, the officers released Berhe because he did not have any stolen property on him and they had no probable cause to arrest him in connection with burglary or any other crime. Berhe walked away mumbling to himself. Minutes later, according to a witness, Berhe returned to the scene, picked something up from the ground (likely the shotgun shells), and soon thereafter shot and killed Robb. Shortly before the shooting, Berhe came to the house of a neighbor in possession of some yellow shotgun shells. Shortly after 7:30 p.m. on June 26, 2005, Berhe flagged down a car driven by Michael Robb and shot him with a shotgun. After the shooting, Valencia admitted to a Seattle detective that he and Berhe stole guns and ammunition in the course of a burglary on June 19.

[176 Wash.2d 431]¶ 5 Officers Lim and McDaniel had prior contact with Berhe. On June 19, Lim and McDaniel were dispatched to Berhe's home because his mother reported that Berhe was threatening suicide. Officer Lim described Berhe as acting strange and being unresponsive.Officer McDaniel noted that Berhe was “out of touch with reality most of the time.” Id. at 228.

¶ 6 On June 21, Bellevue police advised the Seattle Police Department Auto Theft Division that Berhe had stolen an automobile. Bellevue police also communicated that Berhe might have shotguns under his bed.

¶ 7 On June 22, Officer Lim was dispatched to Berhe's home, this time because of a report that Berhe had assaulted his brother's friend. In Officer Lim's presence, Berhe “spoke in normal tones then switched to deep demonic tones.” Id. at 266. Berhe claimed that he ruled the world and that all confused people need to be killed and tortured. Berhe was transported to Harborview Medical Center for an involuntary mental health assessment; however, a mental health professional released Berhe because the assault victim declined to testify at a commitment hearing.

¶ 8 On the morning of June 24, Berhe's father called 911 to report that his son and Valencia were fighting in the backyard and both had shotguns. Several officers from the Southwest precinct responded, but they arrived too late to find either the boys or the shotguns. Seemingly contradicting his earlier report, Berhe's father then explained that there had been only one shotgun, not two, and that only Valencia had possessed the gun. According to Berhe's father, Berhe had protected his father from Valencia, never posing any threat to anyone.

¶ 9 Elsa Robb filed this lawsuit in January 2008. City of Seattle moved for summary judgment. The trial court denied the motion:

The question presented by the defendants' Motion for Summary Judgment is whether the allegedly negligent actions of the officers who contacted Samson Berhe and Raymond Valencia on 6/26/05 were affirmative acts negligently performed or more appropriately considered as failures to act. If the latter, then the public duty doctrine bars this action. Coffel v. Clallam County, 47 Wash.App. 397, 403 (1987). If the former, then Restatement (Second) of Torts § 302B (1965) and comment “a” thereto is applicable and may provide a remedy. It is undisputed that none of the recognized exceptions to the public duty doctrine apply here to allow its use in this negligence action. Cummins v. Lewis County, 156 Wash.2d 844, 852–53 (2006).

Applying the summary judgment standard, the plaintiff has produced sufficient evidence of affirmative acts negligently performed by defendants that a duty may be found to exist as a matter of law pursuant to Restatement (Second) of Torts § 302B.

Id. at 401–02.

¶ 10 The Court of Appeals affirmed the denial of summary judgment. Robb v. City of Seattle, 159 Wash.App. 133, 147, 245 P.3d 242 (2010). It held that a jury could find police acted affirmatively to create a high risk of harm to third persons, creating a duty running to Robb pursuant to Restatement§ 302B comment e. Id. at 146–47, 245 P.3d 242. The Court of Appeals understood the affirmative acts to consist of taking “control of a situation and then depart [ing] from it leaving shotgun shells lying around within easy reach of a young man known to be mentally disturbed and in possession of a shotgun.” Id. at 147, 245 P.3d 242.

ANALYSIS

¶ 11 We are reviewing a denial of summary judgment and therefore make the same inquiry as the trial court, i.e., summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Taggart v. State, 118 Wash.2d 195, 198–99, 822 P.2d 243 (1992). The facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Id. at 199, 822 P.2d 243. Questions of law are reviewed de novo. Sherman v. State, 128 Wash.2d 164, 183, 905 P.2d 355 (1995).

¶ 12 The issue we must decide here is whether the police owe a duty to protect citizens from the criminal acts of a third party where the police failed to pick up bullets from the ground near the scene of a Terry stop and one of the people detained but not arrested returned to the scene, picked up the bullets, and later shot a third party. Robb argues that § 302B comment e may give rise to a duty to protect another against third party conduct intended to cause harm arising from one's affirmative act where the risk of third party harm is foreseeable to a reasonable person. The city disagrees, claiming instead that § 302B goes to whether a breach has occurred and that a duty must be established through some separate means such as a special relationship. The Restatement and our case law indicate that Robb is correct.

¶ 13 As a general rule, “ ‘in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.’ ” Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 195, 15 P.3d 1283 (2001) (quoting Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23 (1954))....