Wolfe v. City of Wheeling

• Citation: 182 W.Va. 253,387 S.E.2d 307
• Decision Date: 20 November 1989
• Docket Number: No. CC997,CC997
• Parties: Randolph L. WOLFE and Rose Marie Wolfe v. CITY OF WHEELING.
• Court: Supreme Court of West Virginia

Page 307

387 S.E.2d 307

182 W.Va. 253

Randolph L. WOLFE and Rose Marie Wolfe v. CITY OF WHEELING.

No. CC997.

Supreme Court of Appeals of West Virginia.

Nov. 20, 1989.

Syllabus by the Court

1. "If a special relationship exists between a local governmental entity and an individual which gives rise to a duty to such individual, and the duty is breached causing injuries, then a suit may be maintained against such entity." Syl. pt. 3, Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989).

2. To establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a special duty of care owed to such individual, the following elements must be shown: (1) an assumption by the local governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the local governmental entity's agents that inaction could lead to harm; (3) some form of direct contact between the local governmental entity's agents and the injured party; and (4) that party's justifiable reliance on the local governmental entity's affirmative undertaking.

3. The question of whether a special duty arises to protect an individual from a local governmental entity's negligence in the performance of a nondiscretionary governmental function is ordinarily a question of fact for the trier of the facts.

David J. Sims, Robert A. Yahn, Wheeling, for Randolph L. Wolfe and Rose Marie Wolfe.

John E. Artimez, Wheeling, for City of Wheeling.

McHugh, Justice:

This case presents the issue of when does an actionable "special" duty exist for a municipality to respond in a reasonable manner to an emergency call for firefighting services. We set forth herein a general test for determining whether a local governmental entity owes a special, as opposed to a public, duty.

I

The plaintiffs, the Wolfes, are the owners of a dwelling located on Wade Avenue, about 200 yards, or about one block, outside the city limits of the defendant, the City of Wheeling, West Virginia ("the city"). In the fall of 1983, the plaintiffs had been billed erroneously, that is, without the plaintiffs' request, by the city for a fire service fee of $25.00, for the fiscal year of July 1, 1983 through June 30, 1984. Pursuant to the payment plan, the plaintiffs paid the first half ($12.50) of the fire service fee on November 1, 1983. The second half was due on March 1, 1984. At the time the plaintiffs received the bill for the fire service fee, the plaintiffs, for reasons not contained in the record, had city water service, city sewage service and city garbage service furnished by the city.

Shortly after receiving the bill for the fire service fee, Mr. Wolfe, concerned with the validity of the fee as a form of excessive property tax, contacted the city's finance department, which is responsible for collecting the fire service fee. An employee of that department informed Mr. Wolfe that he would not receive firefighting services from the city if Mr. Wolfe did not pay the fire service fee.

Mr. Wolfe testified upon deposition that the city's ambulance and firefighting vehicles had responded to every emergency call on his street from the date in 1977 when the Wolfes had bought their dwelling in question. Mr. Wolfe also testified upon deposition that to his knowledge the Triadelphia volunteer fire department, which was the closest volunteer fire department to his property, had never responded to an emergency call on his street.

On January 11, 1984, at about 4:15 a.m., a fire started at the plaintiffs' dwelling. At Mr. Wolfe's request a neighbor called the county-wide emergency telephone number at 4:16 a.m. to report the fire and to obtain firefighting services. The dispatcher answering the phone determined that the property on fire was not within the city limits of Wheeling nor was it covered by a formal contract with the city for fire protection. See W.Va.Code, 8-15-3(a) [1972 1985]. ¹ Accordingly, the dispatcher contacted the closest volunteer fire departments, those in Triadelphia and Valley Grove. The city's fire department was not contacted.

At 4:30 a.m. Mr. Wolfe, after seeing only a single volunteer firefighter on foot at the scene of the fire in question, called the emergency number and requested firefighting services. This call was not recorded on the dispatcher's logs but the dispatcher admits receiving the call. During this call Mr. Wolfe did not specifically request the defendant's firefighting services. He "expected" them to come because he had paid the fire service fee issued by the city, but at that particular time was concerned only with obtaining firefighting services from whomever could get to the scene of the fire the quickest. The Valley Grove volunteer fire department's equipment and personnel arrived at the scene first, at 4:31 a.m., followed by the Triadelphia volunteer fire department at 4:34 a.m.

The volunteer fire departments had portable generators for some of their equipment at the fire scene and were having trouble getting them started due to the extremely cold weather. Mr. Wolfe called the dispatcher again. ² Mr. Wolfe during this call specifically asked for the city's fire department to be sent to help. The dispatcher told him that would happen only if the volunteer fire departments at the scene requested the help, which had not happened.

According to Mr. Wolfe, he called again at about 5:00 a.m. and again asked for the city's fire department to be sent because he had paid the fire service fee issued by the defendant. The dispatcher told him that the city's fire department would not be contacted because the property was not in the city limits and there was no formal contract with the defendant for fire protection. According to Mr. Wolfe, a man came on the phone and told Mr. Wolfe that "we are not coming," even if the fire service fee had been paid. ³

The fire was completely extinguished at 7:03 a.m. The dwelling was a complete loss.

On the next succeeding business day, the director of the city's finance department signed a check for $12.50 payable to the plaintiffs, as a refund of the paid portion of the fire service fee, as such fee had been "billed in error; property outside city limits." The plaintiffs refused to cash such check.

The depositions indicate that the city's fire department, Elm Grove Station No. 1, could have responded about three times quicker than the volunteer fire departments had done (five minutes, instead of about fifteen to eighteen minutes).

In December, 1985, the plaintiffs brought an action against the defendant, the City of Wheeling, in the Circuit Court of Ohio County, West Virginia ("the trial court"), alleging negligence and breach of contract. In May, 1989, the plaintiffs moved for summary judgment on the negligence claim. On May 17, 1989, the trial court denied the plaintiffs' motion for partial summary judgment, on the negligence claim, on the ground that they had failed as a matter of law to "establish the four factors necessary" " to bring the plaintiffs within the "special duty" exception to the public duty doctrine.

On June 27, 1989, the trial court certified these questions to this Court: ⁴

1) What is the test to determine when a 'special duty' exception to the Public Duty Doctrine exists?

2) Whether the City of Wheeling had a 'special duty' to respond to the plaintiffs' emergency fire call, on January 11, 1984, who resided outside the city limits of Wheeling, but who had paid the City of Wheeling's Fire Service Fee, thereby entitling the plaintiffs to maintain a tort cause of action against the defendant? ⁵

II

This Court recently, in Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989), discussed the public duty doctrine in the context of a municipality's failure to inspect premises to determine if there are violations of fire or building codes. Following the majority rule applying the public duty doctrine, we refused to hold a municipality liable under those circumstances unless there was a "special relationship" between the local governmental entity and the injured party which created a duty to such individual, and the breach of that special duty proximately caused the injuries. The public duty doctrine is that a local governmental entity's liability for nondiscretionary governmental functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead, only the breach of a duty owed to the particular person injured is actionable. See, e.g., Williams v. State, 34 Cal.3d 18, 25, 664 P.2d 137, 140-41, 192 Cal.Rptr. 233, 236-37 (1983) (en banc); Florence v. Goldberg, 44 N.Y.2d 189, 195, 375 N.E.2d 763, 766, 404 N.Y.S.2d 583, 586 (1978). See also 18 E. McQuillin, The Law of Municipal Corporations §§ 53.04b, 53.04c (3d ed. rev. 1984 & Supp.1988); 57 Am.Jur.2d Municipal, County, School, and State Tort Liability §§ 140-42 (1988) (collecting cases); annotation, Modern Status of Rule Excusing Governmental Unit from Tort Liability on Theory that Only General, Not Particular, Duty Was Owed Under Circumstances, 38 A.L.R. 4th 1194 (1985 & Supp.1989).

As a specific example of the public duty doctrine, the duty to fight fires or to provide police protection runs to all citizens and is to protect the safety and well-being of the public at large; therefore, absent a special duty to the plaintiff(s), no private liability attaches to a municipal fire department's failure to provide adequate fire protection to an individual. See, e.g., Frye v. Clark County, 97 Nev. 632, 633-34, 637 P.2d 1215, 1216 (1981); O'Connor v. City of New York, 58 N.Y.2d 184, 190, 447 N.E.2d 33, 35, 460 N.Y.S.2d 485, 487 (1983); Florence v. Goldberg, 44 N.Y.2d 189, 195, 375 N.E.2d 763, 766, 404 N.Y.S.2d 583, 586 (1978). See also 18 E. McQuillin, The Law of Municipal Corporations § 53.04e (3d ed. rev. 1984 & Supp.1988); Prosser & Keeton on the Law of Torts § 131, at 1049-50 (5th ed. 1984); ...