Tortes v. King County
| Decision Date | 02 June 2003 |
| Docket Number | No. 49576-3-I.,49576-3-I. |
| Citation | 84 P.3d 252,119 Wash.App. 1 |
| Court | Washington Court of Appeals |
| Parties | Catherine TORTES, Appellant, v. KING COUNTY, a political subdivision of the State of Washington and its agencies and subdivisions, including the Department of Transportation and the Municipality of Metropolitan Seattle ("Metro"); Ron Sims and Paul Tolliver, acting in their individual capacities, and John Does 1 through 10, Respondents. |
Hector Leal, Redmond, WA, for Respondent.
Frederick M. Meyers, David D. Swartling, Charles Bailey, Stephania C. Denton, Seattle, WA, for Appellant.
A common carrier owes the highest degree of care to its passengers commensurate with the practical operation of its business at the time and place in question. But as a general rule, a common carrier is not required to take measures to protect its passengers from the unforeseen intentional misconduct or criminal acts of third persons. The decision of the trial court is affirmed.
On November 27, 1998, Silas Cool boarded a Metro bus headed southbound to downtown Seattle. As the bus approached the Aurora Avenue Bridge, Cool approached the bus driver, shot and killed the driver, and then immediately shot himself in the head. The driverless bus plunged off the edge of the Aurora Avenue Bridge. As it fell, the bus hit trees and the roof of an apartment building beneath the bridge and landed on the ground some 50 feet below. Catherine Tortes was among the passengers on the bus who sustained injuries. Tortes sued King County, including the Department of Transportation and the Municipality of Metropolitan Seattle (Metro), King County Executive Ron Sims, and the Director of the King County Transportation Department, Paul Tolliver, seeking damages for their alleged negligence and claimed federal civil rights violations. Following extensive discovery and argument, Metro's motion for summary judgment was granted dismissing all claims. Tortes appeals. The usual standard for review of a summary judgment applies.1
Negligence exists if a defendant breaches a duty owed to a plaintiff resulting in injury to that plaintiff, and there is a proximate cause between the breach and the injury.2 "The existence of a duty is a question of law."3
Tortes claims the intentional criminal acts of Silas Cool were reasonably foreseeable and that Metro was negligent by breaching its duty to protect her from those acts.
"The general rule at common law is that a private person does not have a duty to protect others from the criminal acts of third parties."4 This is an expression of the policy that a person is normally allowed to proceed on the basis that others will obey the law. It is also true that a common carrier owes the highest degree of care to its passengers "`commensurate with the practical operation of its conveyance at the time and place in question'" and "`consistent with the practical operation of its business.'"5 However, the duty or standard of care owed by a common carrier is not one of strict liability. A common carrier is not the insurer of its passengers' safety, and negligence should not be presumed or inferred from the mere happening of an accident.6 Metro has the duty to guard against foreseeable third party actions. But under the facts here, Cool's conduct was not foreseeable as a matter of law.7
The proximate cause of the accident resulting in Tortes' injury was the act of violence by Cool, which Metro, in the exercise of the highest degree of care, could not have anticipated. There is no evidence that Metro knew of the excessively dangerous propensities of Cool, the individual responsible for the crime, and evidence does not support the fact that there were similar crimes on other Metro buses, only that simple assaults had occurred. Metro cannot be held liable for a sudden assault that occurs with no warning and that is "so highly extraordinary or improbable as to be wholly beyond the range of expectability."8
Additionally, Tortes claims Metro should have provided a greater police presence on its buses; the buses should be equipped with driver enclosures; or that video surveillance cameras should be present on all Metro buses. However, Tortes does not establish a legal requirement that Metro must take these steps.9 The trial court properly found that Tortes did not establish the existence of a duty or standard of care that requires a police presence on every bus, driver enclosures, or video surveillance cameras.
Moreover, in addition to establishing a duty, to sustain an action for negligence, a plaintiff must establish causation as an essential element.10 Here there is no claim that Metro was the cause in fact of the accident. Rather, there was only speculation as to what Metro should have done to prevent the shooting and the accident.
Next, Tortes asserts a claim for civil rights violations against Metro, King County Executive Ron Sims, and Paul Tolliver, the Director of the King County Department of Transportation.11 She alleges that the Fourteenth Amendment guarantees her right to be free of bodily injury resulting from governmental custom or practice that amounts to deliberate indifference to her safety and security.12 She argues that King County and its agents are liable because they failed to heed incident reports of various bus drivers and others. She maintains that the court erred in dismissing her claims by determining there was no violation of a constitutionally protected right and further determining that there was no deliberate indifference in adopting allegedly inadequate security policies.
As to the claims against Metro and King County, Tortes argues that her injury was inflicted due to an inadequate policy, custom, or practice adopted by the county that reflects deliberate indifference to her constitutional rights. A plaintiff asserting a claim against a municipality or governmental agency under 42 U.S.C.A. § 1983 must establish four elements: (1) that he/she possessed a constitutional right of which he/ she was deprived; (2) that the municipality had a policy or custom that was inadequate; (3) that this inadequacy resulted from a deliberate indifference to the plaintiff's constitutional right; and (4) that the policy or custom was the moving force behind the constitutional violation.13 But a prima facie case under 42 U.S.C.A. § 1983 requires the plaintiff to show that a person, acting under the color of state law, deprived her of a federal constitutional or state-created property right without due process of law.14 Here, Tortes fails to cite authority to support her proposition that riding public transportation without injury is a state or federally protected constitutional right.
Even if she could support the proposition, Tortes fails to prove a direct causal link between any Metro policy or custom and the alleged constitutional deprivation.15 Her argument seems to be that Metro failed to protect her and therefore any safety policy was constitutionally deficient. We disagree. The degree of fault necessary to impose liability requires Tortes to prove that the allegedly inadequate policy or custom reflects deliberate indifference to her constitutional rights.16 This deliberate indifference requires proof that the inadequate policy resulted from a deliberate or conscious choice by the municipality. It has been held that proof of simple or even gross negligence is insufficient to satisfy the requirement of "deliberate indifference."17 It must be more. There is no evidence to support Tortes' claim.
Further, Tortes would also necessarily have to demonstrate that through deliberate conduct, Metro was the moving force behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of civil rights.18 But Tortes does not provide evidence in the record to support an allegation of deliberate indifference by Metro in adopting or implementing an inadequate safety policy or custom, and the trial court properly dismissed her section 1983 claim against Metro as a matter of law.
Tortes' claims against King County Executive Ron Sims and Director of the King County Department of Transportation Paul Toliver were also properly dismissed. These individual public officials are immune from personal liability under the doctrine of qualified immunity. It is preferred that a defendant's entitlement to qualified immunity be decided as a matter of law on summary judgment.19
The central purpose of qualified immunity is to protect public officials from interference with their duties and from potentially disabling threats of liability.20 Government officials performing discretionary functions are immune from civil liability "`insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"21 The "test" for qualified immunity is: (1) identification of the specific right being violated; (2) determination of whether the right was so clearly established as to alert a reasonable official as to its constitutional parameters; and (3) determination of whether a reasonable official would have believed that the policy or decision in question was lawful.22 To penetrate a defense of claimed qualified immunity, a plaintiff must do more than identify a legal test and claim that a defendant has violated it. A plaintiff must demonstrate some nexus between the conduct in question and prior law establishing that the defendant's actions were clearly prohibited.23
Here, Tortes' unsupported, conjectural, and vague recitations to a right to due process or other constitutional right of personal safety and protection are insufficient to prove a clearly established right. Additionally, she fails to establish that the individual defendants here were personally involved in...
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