310 P.3d 1275
Wash.2013Background
- Plaintiff (daughters of Baerbel Roznowski) sued the City of Federal Way after officer Andrew Hensing served an antiharassment order on Roznowski’s partner, Paul Kim; two days after service Kim killed Roznowski.
- Roznowski had obtained a court antiharassment order prohibiting Kim from contacting or being within 500 feet of her residence; she completed a law enforcement information sheet (LEIS) warning Kim would likely react violently and requesting a Korean interpreter.
- Hensing served the order at Roznowski’s home, reportedly without reading the LEIS carefully, without an interpreter, and left after handing the order to Kim without verifying Roznowski’s safety or ensuring Kim vacated the home.
- Plaintiffs introduced expert testimony that (1) the separation point is especially dangerous; (2) proper service (reading LEIS, using an interpreter, ensuring the restrained party leaves, and checking on the petitioner) often prevents violence; and (3) proper service here would likely have prevented the murder.
- The jury found for plaintiffs; the City appealed arguing (a) no duty under the public duty doctrine and (b) procedural waivers. The Washington Supreme Court affirms denial of City’s CR 56(c) and CR 50(a) motions, holding the City owed duties to serve the order and to act with reasonable care in serving it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City preserved objection to jury instruction that it owed a duty of ordinary care | Washburn: City objected and trial court understood the substance; objection preserved | City: argued it had properly preserved; Court of Appeals held otherwise | Supreme Court: City did preserve the objection; Court of Appeals erred |
| Whether City waived review of denial of CR 50(a) by not renewing under CR 50(b) postverdict | Washburn: CR 50(b)-style renewal should bar review and focus issues after verdict | City: Washington practice does not require renewal; longstanding state practice permits review | Supreme Court: Court of Appeals erred; Washington will not adopt federal renewal requirement; denial of CR 50(a) review preserved |
| Whether City owed any legal duty to plaintiff under public duty doctrine | Washburn: public duty doctrine does not bar suit because statute and facts create particular duty | City: public duty doctrine shields municipalities from negligence claims absent special relationship or statutory duty to particular person | Supreme Court: City owed two duties—statutory duty to serve the order and a common-law duty to act reasonably in serving it (including guarding against foreseeable third-party criminal acts) |
| Whether officer’s actions could create duty to protect against third-party criminal act (Restatement §302B) | Washburn: Hensing’s affirmative acts (serving at home, leaving petitioner with restrained person, not using interpreter, not verifying safety) created a new, foreseeable risk | City: this is nonfeasance; Robb controls—no duty where risk preexisted and was merely unremoved | Supreme Court: Distinguishing Robb, Hensing’s conduct created a new and recognizably high risk (misfeasance) so duty to guard against foreseeable criminal response existed; summary judgment and JMOL properly denied |
Key Cases Cited
- Kelso v. City of Tacoma, 63 Wn.2d 913 (1964) (legislative abolition of sovereign immunity context)
- Halvorson v. Dahl, 89 Wn.2d 673 (1978) (legislative intent exception: statutory schemes can create duties to identifiable classes)
- Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468 (1998) (elements of negligence and proximate causation)
- Robb v. City of Seattle, 176 Wn.2d 427 (2013) (Restatement §302B analysis; distinction between misfeasance and nonfeasance)
- Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871 (2012) (duty as question of law and public duty doctrine as focusing tool)
- Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929 (1982) (criminal acts not unforeseeable per se)
- Parrilla v. King County, 138 Wn. App. 427 (2007) (affirmative acts by government actor can create a duty under §302B)