295 P.3d 212
Wash.2013Background
- Berhe shot Robb with a stolen shotgun two hours after a Terry stop of Berhe and Valencia; shotgun shells were observed on the ground during the stop but not retrieved.
- Plaintiff Elsa Robb sued the City of Seattle, arguing the officers’ failure to collect the shells created a duty under Restatement § 302B comment e.
- Trial court denied summary judgment; Court of Appeals affirmed, applying § 302B to impose a potential duty due to an affirmative act creating risk.
- Court held that § 302B may create a duty where an affirmative act creates or exposes another to a high risk of harm, but not here.
- Key distinction: outcome turns on act versus omission; stopping Berhe did not create a new risk by leaving shells, thus it was nonfeasance.
- Court remanded with directions to dismiss, reversing the Court of Appeals and the trial court’s denial of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 302B comment e can create a duty absent a special relationship | Robb argues § 302B applies independently to create duty. | City contends § 302B requires a special relationship or misfeasance. | Yes, but only for misfeasance; not here |
| Whether the officers’ failure to pick up shells was an affirmative act creating risk | Robb contends it was a duty-imposing affirmative act. | City argues it was an omission, not affirmative action. | Omission; not an affirmative act |
| Whether Parrilla v. King County supports imposing § 302B duty on law enforcement | Parrilla supports broader § 302B duty for risk creation. | Parrilla is distinguishable; here no act-created risk. | Distinguishable; Parrilla not controlling |
Key Cases Cited
- Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190 (2001) (two-way duty discussion; special relationship limits)
- Parrilla v. King County, 138 Wn.App. 427 (2007) (bus-driver risk creation case; § 302B comment e invoked)
- Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217 (1991) (recognizes risk-creation under § 302B)
- Kim v. City of Tacoma, 143 Wn.2d 190 (2001) (restatement-based duty discussion)
- Brown v. MacPherson’s, Inc., 86 Wn.2d 293 (1975) (acts vs omissions distinction in tort liability)