144 Wash. 2d 774 | Wash. | 2001
Lead Opinion
— Petitioners James C. Babcock and Kiyoko Babcock seek review of a decision of the Court of Appeals, Division Two, which affirmed an order of summary judgment by the Mason County Superior Court in favor of Mason County Fire District Number 6 and its Commissioners in an action for negligence filed by Petitioners based upon actions by the Mason County Fire District while fighting a fire at Petitioners’ home.
The question presented in this case is whether a special relationship existed between Petitioners Babcock and Respondent Mason County Fire District Number 6 which constituted an exception to the “public duty doctrine” which otherwise provides immunity to fire fighters in the performance of their duties.
STATEMENT OF FACTS
Petitioners’ claim arose from a fire at their home in Union, Washington to which Mason County Fire District Number 6 responded.
On August 3, 1995 at 5:07 p.m. Petitioners’ next door neighbor, Ms. Marilyn Sherman, telephoned 911 to report a fire at Petitioners’ 40-foot-long mobile home at East 471 Hyland Drive in Union, Washington.
Chief Silver stated he did not believe the mobile home could be saved because the fire was too intense and well established to be fought.
According to Chief Silver, Fire Engines 61 and 62 arrived simultaneously at 5:21 p.m.
After alighting from his truck Fire fighter Hess noticed the wind blowing the fire from the burning mobile home toward the garage.
The situation inside the garage was reported by Fire fighter Hess to Chief Silver who ordered Hess to go behind the garage to see if there was another way to attack the fire.
While the fire fighters were trying to control the fire, an unidentified person asked permission to move a tent trailer parked between the house and the garage.
To move the trailer would have required pulling a vehicle in between two burning buildings, increasing the risk to fire fighters in the area and involving the risk that the vehicle would also catch on fire and possible [sic] explode, and the driver of any such vehicle would have been put in serious peril. In fact, the fire was so hot that plastic lenses were melted and*780 the paint was blistered on Engine 61, which was much further away from the fire than the tent trailer. Moreover, any vehicle pulling the trailer would have had to drive over fully-charged fire hoses on the ground, with the risk of damaging or rupturing the hoses and endangering the lives of the fire fighters.[30]
After about 30 minutes Fire fighters Hess and Graham were replaced on the front line by other fire fighters who arrived on the scene.
Petitioner James Babcock disputed the facts related by the fire fighters. He stated he and his wife returned to their home between 5:15 p.m. and 5:20 p.m.
Petitioner James Babcock stated no effort was made to save his tent trailer, about 15 feet from his home, which could easily have been moved by one person.
Even though ordered by the fire fighters not to do so, Petitioner James Babcock nevertheless moved his 1993 Dodge truck which was parked about 20 feet from his home.
Fire District 6 is located in a rural Mason County community with few or no fire hydrants. It relies upon water-transporting tenders to support its fire fighting. It is staffed by volunteer fire fighters, except for the Chief, who is the sole paid employee. In fighting the fire at the Babcock’s home, the fire fighters had to rely upon water
On April 28, 1997 Petitioners James and Kiyoko Babcock filed a complaint in the Mason County Superior Court against Respondents claiming negligence,
Petitioners asked for damages for loss of personal prop-' erty; loss of income, costs and other special damages resulting from Respondents’ breach of duty; and damages for emotional suffering.
On March 30, 1998 Respondents moved for summary judgment.
After a hearing on July 30, 1998, the Honorable Toni A. Sheldon granted summary judgment to Respondents.
On August 19, 1998 Petitioner filed a motion for reconsideration.
On December 4, 1998 Petitioners filed a notice of appeal to the Court of Appeals, Division Two.
Viewing the evidence and reasonable inferences in the light most favorable to the Babcocks, we hold that the special relationship exception does not apply. Accordingly, we affirm the trial court’s summary judgment in favor of District No. 6.[64]
DISCUSSION
Standard of Review
“Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”
Public Duty Doctrine
The “public duty doctrine” has modified the traditional concept of sovereign immunity. Municipalities are no longer protected by the shield of sovereign immunity.
“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that ‘the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).’ ”
In enacting RCW 4.96.010 in 1967 the Legislature stated that:
All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation!)][75]
To recover from a municipal corporation in tort under the public duty doctrine, a plaintiff must show the duty breached was owed to an individual and was not merely a general obligation owed to the public.
There are four exceptions to the public duty doctrine in which the governmental agency acquires a special duty of care owed to a particular plaintiff or a limited class of
Special Relationship Exception
“The special relationship exception is a ‘focusing tool’ used to determine whether a local government ‘is under a general duty to a nebulous public or whether that duty has focused on the claimant.’ ”
1. Privity Between the Mason County Fire District and Petitioners Babcock
Petitioners Babcock claim there was privity between them and Respondents because, while the Fire District had a duty to exclude bystanders, it had no duty to make specific assurances to them that their property would be protected.
Respondents contend the one statement purportedly
In Chambers-Castanes the plaintiff was struck by two men.
The Court of Appeals incorrectly concluded privity was not established between Respondents and Petitioners Babcock. In both Chambers-Castanes and Beal the event setting the plaintiffs apart from the general public was a telephone conversation between a government official and a member of the public. In this case Petitioners were even more set apart from the general public than in those cases because the government official, a fire fighter, apparently communicated with them in person at their burning home. As in Chambers-Castanes and Beal, that contact set Petitioners apart from the general public.
Respondents incorrectly assert that an isolated comment cannot rise to the level of an assurance that would isolate the interests of Petitioners from the interests of every other member of the public. In Beal this court found privity when the contact was a single assurance from one 911 emergency telephone operator to a citizen.
2. Express Assurance to Petitioners
Petitioner James Babcock claims a “lady fire fighter” gave him express assurances when she told him the fire fighters
A governmental authority may be liable to an individual who establishes that a particular duty was owed to that individual who could justifiably rely upon assurances specifically sought and which the government expressly gave.
In Chambers-Castanes this court found express assurances were made when Mrs. Chambers-Castanes tele
In Beal express assurances were given to Ms. Melissa Fernandez when a 911 operator told her that police would be dispatched to assist her.
The Court of Appeals correctly concluded the fire fighter in this case did not give express assurances to Petitioners. Unlike in Chambers-Castanes and Beal in which the citi
3. Justifiable Reliance By Petitioners
Petitioners Babcock contend it was entirely reasonable for them to believe that some of their property could be saved if reasonable efforts had been made.
Respondents claim that under the circumstances Petitioners could not justifiably rely on the statement of the unidentified fire fighter as a guaranty that the fire fighters would salvage their property regardless of fire and wind.
On April 13, 2001 a brief amici curiae was filed by the Washington State Association of Fire Chiefs and the Washington Fire Commissioners Association. Amici substantially “adopt [ed] the analysis and decision of the Court of Appeals in Babcock, and the analysis and argument of the District contained in the Respondent’s [sic] Brief, Respondent’s [sic] Answer to Petition Requesting Discretionary Review and
The duty to fight fires is a duty to the community, and not a duty to specific persons or property. Therefore, the non-liability rule of the public duty doctrine applies to general statements of reassurance made by fire fighters [including fire chiefs, deputy or assistant fire chiefs, fire marshals, battalion chiefs and other employees of fire protection districts . . . with the authority to extinguish fires and protect human life and property] during a fire. Even if there is a potential for liability, such general statements of reassurance do not establish a special relationship exception to the public duty doctrine. Statements of reassurance are made to further the general duty to fight fires and protect lives, and thus, do not constitute “privity” between the governmental entity and the injured plaintiff that sets the later [sic] apart from the general public. This conclusion is consistent with the law in Washington and other jurisdictions. Finally, sound public policy precludes judicial processes from governing a fire scene.[123]
The Court of Appeals concluded Petitioners neither factually nor legally relied upon the fire fighter’s alleged assurance.
In Beal this court concluded Ms. Fernandez justifiably relied upon the assurance that police protection would be forthcoming because she waited in front of her apartment after being told by the 911 operator that the police were being sent.
The Court of Appeals correctly concluded Petitioner James Babcock’s actions demonstrated he did not rely upon the fire fighter’s statement. Unlike Ms. Fernandez in Beal, whose actions showed she relied on the 911 operator’s statement, Petitioner ignored what he claimed to be an assurance by the fire fighter and moved his truck. He did not discontinue his efforts to salvage his property because of the statement made by the fire fighter. Petitioners did not
Petitioners have not established their right to bring this negligence action against Respondents because Petitioners have not established an express assurance by Respondents which Petitioners justifiably relied upon to their detriment.
SUMMARY AND CONCLUSIONS
Under the “public duty doctrine,” to recover from a municipal corporation in tort a plaintiff must show the duty breached was owed to an individual and was not a general obligation owed to the public. There are four exceptions to the public duty doctrine in which the government agency acquires a special duty of care owed to a particular plaintiff or class of plaintiffs. They are (1) legislative intent; (2) failure to enforce; (3) the rescue doctrine; and (4) a special relationship. Only the special relationship exception is at issue in this case which requires the plaintiff to demonstrate privity and express assurances upon which plaintiff justifiably relied.
Petitioners Babcock did establish privity with Respondents which set them apart from the general public by demonstrating that a fire fighter communicated with them in person at their burning home. However, they did not establish that the unidentified fire fighter gave them express assurance that she would save their property. Petitioners did not claim they specifically sought such assurance. They were not justified in relying upon the fire fighter’s statement to mean their property would be salvaged or saved despite the intense fire at their home.
The Court of Appeals was correct in affirming the order of the Mason County Superior Court granting summary judgment in favor of Respondents Mason County Fire District
We affirm the Court of Appeals.
Johnson, Bridge, and Owens, JJ., concur.
Babcock v. Mason County Fire Dist. No. 6, 101 Wn. App. 677, 683, 5 P.3d 750 (2000).
Clerk’s Papers at 150.
Counsel for Petitioners during oral argument referred to the deposition of Chief Harold A Silver. The document in the Clerk’s Papers is unsigned and Chief Silver did not waive signature. It is therefore not part of the record before us.
Clerk’s Papers at 120.
Id. at 46.
Id. at 62, 115, 136.
Id. at 136.
Id.
Id.
id.
Id. at 137.
Id. at 138.
Id. at 125, 129.
Id. at 138.
Id.
Id. at 139.
Id. at 130.
Id. at 130-31.
Id. at 131.
id.
Id.
Id.
Id.
Id.
Id. at 132.
Id.
Id.
Id. at 140-41.
Id. at 132.
30 Id. at 134.
Id.
Id.
Id. at 46.
Id.
Id. at 46.
Id.
Id. at 46-47.
Id. at 47.
Id.
Id.
Id.
Id. at 48.
Id. at 47.
Id. at 47-48.
Id.
Id.
Id.
See Babcock, 101 Wn. App. at 680.
Clerk’s Papers at 159-65.
Id. at 162.
Id.
Id. at 143.
Id. at 85.
Id. at 87-112.
Id. at 51, 56.
Id. at 33.
Order Granting Summ. J., Mason County Superior Ct., filed Apr. 10, 1998.
Clerk’s Papers at 14.
Id. at 6.
Id. at 2.
Order Denying Pis’ Mot. for Recon., Mason County Superior Ct., filed Nov. 9, 1998.
Notice of Appeal, Ct. of Appeals, Division Two, filed Dec. 4, 1998.
Babcock, 101 Wn. App. at 692-93.
64 Id. at 692-93 (footnote omitted). The Superior Court order on summary judgment included the Fire District and its Commissioners, identified as Respondents before this court.
Pet. Requesting Discretionary Review to the Supreme Ct., State of Wash., filed Sept. 8, 2000.
Order, Wash. Supreme Ct., filed Jan. 9, 2001.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR 56(c)).
Folsom, 135 Wn.2d at 663 (citing Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979)).
Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Res., Inc., 122 Wn.2d 544, 548 n.3, 859 P.2d 51 (1993)).
Mountain Park Homeowners, 125 Wn.2d at 341 (citing Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992); Syrovy, 122 Wn.2d at 548 n.3).
Id.
Bailey v. Town of Forks, 108 Wn.2d 262, 737 P.2d 1257 (1987).
Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988) (citation omitted).
Id. (quoting J&B Dev. Co. v. King County, 100 Wn.2d 299, 303, 669 P.2d 468 (1983), overruled on other grounds by Taylor, 111 Wn.2d at 168).
75 RCW 4.96.010(1). See also Bailey, 108 Wn.2d at 265.
Beal v. City of Seattle, 134 Wn.2d 769, 784, 954 P.2d 237 (1998) (citing Taylor, 111 Wn.2d at 163; Chambers-Castanes v. King County, 100 Wn.2d 275, 284, 669 P.2d 451 (1983)).
Bailey, 108 Wn.2d at 268.
Id.
Taylor, 111 Wn.2d at 166 (quoting J&B Dev. Co., 100 Wn.2d at 304-05).
Beal, 134 Wn.2d at 785 (quoting Taylor, 111 Wn.2d at 166).
Pet’rs’ Suppl. Br. at 13.
Id.
Chambers-Castanes v. King County, 100 Wn.2d 275, 669 P.2d 451 (1983).
Pet’rs’ Suppl. Br. at 14.
Resp’ts’ Suppl. Br. at 10.
Babcock, 101 Wn. App. at 689.
Id.
Chambers-Castanes, 100 Wn.2d at 286 (quoting Warren v. District of Columbia, 444 A.2d 1, 10 (D.C. 1981)).
Taylor, 111 Wn.2d at 166.
Chambers-Castanes, 100 Wn.2d at 278.
Id.
Id. at 287.
Beal v. City of Seattle, 134 Wn.2d 769, 774, 954 P.2d 237 (1998).
Petitioner James Babcock claims an otherwise unidentified female fire fighter told him the fire fighters would take care of protecting his property.
Beal, 134 Wn.2d at 774 (this court concluded a special relationship existed between Ms. Beal and the City of Seattle from one telephone conversation between her and a 911 operator. The operator told her “we’re going to send somebody there” and “[w]e’ll get the police over there for you okay?”).
See id.
Clerk’s Papers at 47-48.
Pet’rs’ Suppl. Br. at 14.
Resp’ts’ Suppl. Br. at 11.
Id. at 12.
Babcock, 101 Wn. App. at 689.
See Meaney v. Dodd, 111 Wn.2d 174, 179-80, 759 P.2d 455 (1988).
See Honcoop v. State, 111 Wn.2d 182, 192-93, 759 P.2d 1188 (1988); Taylor, 111 Wn.2d at 167.
Meaney, 111 Wn.2d at 180.
See id.
Chambers-Castanes, 100 Wn.2d at 287.
Id. at 279. This was Mrs. Chambers-Castanes’ first call to the 911 operator. Five other persons had called the operator requesting police assistance at the scene of the incident.
Id.
Id.
Id.
Id. at 280.
Id.
Beal, 134 Wn.2d at 785.
Id. at 774.
Id.
Id.
Beal, 134 Wn.2d at 787 (“[D]uty is defined at least in part by the nature of the assurances given.”).
Pet’rs’ Suppl. Br. at 15.
Id. at 16. This court may determine the issue of justifiable reliance as a matter of fact without a trial. See Beal, 134 Wn.2d 769.
Answer to Pet. Requesting Discretionary Review at 6.
Resp’ts’ Suppl. Br. at 14.
Br. of Amici Curiae at 3 n.5.
123 Id. at 2-3.
Babcock, 101 Wn. App. at 692.
Id. at 690.
Id.
Beal, 134 Wn.2d at 786. See also Chambers-Castanes, 100 Wn.2d at 287 in which the court stated, “Reliance also was present, at least for purposes of a CR
Meaney, 111 Wn.2d at 180.
Id.
Beal, 134 Wn.2d at 786.
See Meaney, 111 Wn.2d at 180 (the court may look to the facts of a case to determine whether a plaintiff can rely on an assurance).
See Clerk’s Papers at 48.
See Pet’rs’ Suppl. Br. at 14.
Concurrence Opinion
(concurring) — However imperfect our system of justice may be, there are certain goals of perfection for which we must strive. Equal justice for all is one of those elusive but desirable goals. We know that all people are not necessarily created equal; some are rich and some are poor, and some are given greater opportunities to develop their natural gifts and talents. The institution of our courts must be the great leveler — where justice is blind and a pauper and a king are judged by the same standard. In our courts of law every party must be treated equally. It is therefore contrary to the general principles of law that one party be granted a special set of rules not afforded to others. The public duty doctrine is one of those special privileges afforded some parties, which is antithetical to the foundations of our law.
Both the majority and the dissent analyze this case by applying the public duty doctrine and focusing on the exact words used by a fire fighter to determine duty. This approach is too narrow.
The public duty doctrine is unnecessary. The application of general tort principles to determine duty will usually direct us to the same result. The public duty doctrine injects confusion into the law as it implies that not all parties are to be treated equally. A “special relationship” is the principal exception to the public duty doctrine. The focus of this exception on express assurances and reliance upon those assurances diverts attention from the appropriate policy considerations and from foreseeability to determine if a duty should be owed.
In 1961 our Legislature abandoned sovereign immunity by adopting RCW 4.92.090, which as amended provides:
*796 The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.
Courts, not the Legislature, legislated the public duty doctrine. The doctrine has been accused of conflicting with the clear intent of the Legislature to abolish sovereign immunity.
The public duty doctrine has been described as the “duty to no one” doctrine. The premise of the doctrine is that the government has a duty to the public in general and that no duty of care is owed to individuals.
This Court’s focus on the individual as opposed to the class of persons intended to be protected first occurred in a rescue doctrine case. In Chambers-Castanes v. King County, 100 Wn.2d 275, 669 P.2d 451 (1983), this Court, citing cases from other jurisdictions, determined that for a victim to sue a police department for the failure to rescue, there must be (1) some form of privity between the police department and the victim that sets the victim apart from the general public, and (2) explicit assurances of protection that give rise to reliance on the part of the victim. The ChambersCastanes Court went on specifically to say that the assurances need not be explicit as some relationships carry the implicit character of assurance.
As a matter of policy, contact with a government agency and reliance upon the government’s assurances may be desirable in governmental permit inspection cases. Reliance should be an element of proof to establish loss of profits or monetary damages. Statements by dispatchers and rescuers may be relevant to determine when a rescue has commenced, thereby triggering the duty of the rescuer to exercise ordinary care. However, the application of a mechanical rule will result in harsh and unintended results. Innocent third parties and unconscious victims who cannot show reliance upon assurances will be denied redress contrary to the Legislature’s intention. The elements of the special relationship rule — direct contact, express assurances, and justifiable reliance — are intrinsically related to a business type of plaintiff such as builders and developers involved in permit applications. Unrelated plaintiffs will not be able to meet the elements because they lack a business relationship with the government. The result is unfortunate because these elements were developed first to determine when police have commenced a rescue, Chambers-Castanes, 100 Wn.2d 275, and then applied primarily to prevent economically injured plaintiffs
Many states have either rejected or abandoned the public duty doctrine.
I would, without reversing any of our prior decisions, simply decide this and all future government liability cases based upon traditional tort law analysis.
Applying traditional tort law analysis to the instant case leads me to the same result as the majority. Under such analysis, there is no duty to rescue the property of another. However, once a rescue is undertaken, the rescuer must exercise ordinary care. The duty of ordinary care is implicit in the act and is not related to any express statements made by the fire fighters nor is it related to reliance. The Babcocks’s claim, in essence, is not that Mason County Fire District No. 6 breached the standard of care in fighting the fire, but that it failed to fight the fire. Specifically the Babcocks argue that for 30 minutes after the arrival of the fire fighters, not one drop of water was placed on the garage to stop the fire from spreading.
The Babcocks’s home is in a rural area, which is lightly wooded. Harold Silver is Chief of the Mason County Fire District No. 6, which is a volunteer fire department. Upon
Next, Babcock argues that he was ordered by fire-fighting personnel not to remove personal property from the area around the fire and that the fire fighters would “take care of protecting our property.” CP at 48. Fire districts such as Mason County Fire District No. 6 are authorized, “for the provision of fire prevention services, fire suppression services, emergency medical services, and for the protection of life and property in areas outside of cities and towns.” RCW 52.02.020. I agree with the Court of Appeals that the affidavits demonstrate that the fire fighters acted consistently with District No. 6’s policy by preventing James Babcock, his wife, and neighbors from entering a potentially explosive environment. The garage contained known flammable and explosive substances. The fire fighters acted to protect the lives of both the bystanders and themselves.
CONCLUSION
In formulating the public duty doctrine, the courts have . conflicted with the clear intent of our Legislature to abolish
Ireland, J., concurs with Chambers, J.
“By rejecting this approach, the majority’s analysis flies in the face of the Legislature’s express direction that governmental entities shall be liable in tort ‘to the same extent as if they were a private person or corporation’ (RCW 4.96.010). This seems to me a rather flagrant exercise of judicial lawmaking in an area where the Legislature has already spoken.” Chambers-Castanes v. King County, 100 Wn.2d 275, 291, 669 P.2d 451 (1983) (Utter, J., concurring in the result).
“We have no particular quarrel at this time with the general premise on which the cases relied upon by the City stand, i.e., negligent performance of a governmental or discretionary police power duty enacted for the benefit of the public at large imposes no liability on the part of a municipality running to individual members of the public.” Campbell v. City of Bellevue, 85 Wn.2d 1, 9-10, 530 P.2d 234 (1975).
"The traditional rule is that municipal ordinances impose a duty upon municipal officials which is owed to the public as a whole, so that a duty enforceable in tort is not owed to any particular individual.” Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978).
Campbell, 85 Wn.2d at 9-10.
Halvorson, 89 Wn.2d at 676-77 (occurring when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons).
Campbell, 85 Wn.2d at 12-13 (holding governmental agents responsible for enforcing statutory requirements when they possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and the plaintiff is within the class the statute intended to protect).
Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975) (imposing liability when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff).
Chambers-Castanes, 100 Wn.2d at 285 n.3.
“The majority simply goes too far in permitting the special relationship exception to swallow up the rule of the public duty doctrine. If we wish to eliminate the public duty doctrine in its entirety, we should say so.” Beal v. City of Seattle, 134 Wn.2d 769, 794, 954 P.2d 237 (1998) (Talmadge, J., dissenting).
J&B Dev. Co. v. King County, 100 Wn.2d 299, 307, 669 P.2d 468 (1983) (“the permit and inspection requirements do not create a duty of care applicable merely to the public in general. Rather, they apply to a limited class of citizens, the builders.”); Halvorson, 89 Wn.2d at 676 (“Liability can be founded upon a municipal code if that code by its terms evidences a clear intent to identify and protect a particular and circumscribed class of persons.”); Campbell, 85 Wn.2d at 13 (granting an exception to the class that the Bellevue City Code was designed to protect).
Chambers-Castanes, 100 Wn.2d at 286.
Honcoop v. State, 111 Wn.2d 182, 759 P.2d 1188 (1988); Meaney v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988); Taylor v. Stevens County, 111 Wn.2d 159, 759 P.2d 447 (1988).
Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975).
Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975).
Campbell v. City of Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975).
J&B Dev. Co. v. King County, 100 Wn.2d 299, 669 P.2d 468 (1983).
Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978).
See, e.g., Adams v. State, 555 P.2d 235, 241 (Alaska 1976) (describing the “duty to all, duty to no-one” doctrine as a form of sovereign immunity); Ryan v. State, 134 Ariz. 308, 656 P.2d 597, 599 (1982) (electing under most circumstances to treat the state like a private litigant because “the parameters of duty owed by the state will ordinarily be coextensive with those owed by others” and calling the distinction between general and specific duty a “speculative exercise”); Martinez v. City of Lakewood, 655 P.2d 1388, 1390 (Colo. Ct. App. 1982) (holding that “[t]he concept of a public duty cannot stand either with the enactment of the statute abrogating sovereign immunity, nor in instances where there is a common law duty of a public entity to the plaintiff’); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1015 (Fla. 1979) (characterizing the public duty doctrine as “a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting”); Wilson v. Nepstad, 282 N.W.2d 664, 671 (Iowa 1979) (holding that “the abrogation of governmental immunity means the same principles of liability apply to officers and employees of municipalities as to any other tort defendants”); Stewart v. Schmieder, 386 So. 2d 1351, 1358 (La. 1980) (holding that “the mere fact that a duty is of a public nature, and benefits the general public, does not require a conclusion that the city cannot be found liable for the breach of that duty”); Schear v. Bd. of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 730 (1984) (holding that claims under the Tort Claims Act would be “based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty”); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719, 725 (1979) (using traditional tort principles to analyze a negligence complaint against the City because “any distinction between ‘public’ and ‘private’ duty is precluded by statute in this state”); Coffey v. City of Milwaukee, 74 Wis. 2d 526, 247 N.W.2d 132, 139 (1976) (holding that “[a]ny duty owed to the public generally is a duty owed to individual members of the public” and being guided by public policy considerations when considering whether liability should be imposed for torts).
See Chambers-Castanes, 100 Wn.2d at 290 (Utter, J., concurring in the result); J & B Dev. Co., 100 Wn.2d at 308 (Utter, J., concurring in the result); Taylor, 111 Wn.2d at 172 (Utter, J., concurring); Taggart v. State, 118 Wn.2d 195, 229, 822 P.2d 243 (1992) (Utter, J., concurring).
Because of the discretionary and policy making functions of government, I would retain our absolute and qualified immunity jurisprudence.
Dissenting Opinion
(dissenting) — The majority fails to follow precedent when it concludes as a matter of law that petitioners did not justifiably rely on an assurance by a fire fighter that their property would be protected. This case is legally indistinguishable from Beal v. City of Seattle, 134 Wn.2d 769, 954 P.2d 237 (1998), where this court held that there were material questions of fact remaining as to whether the special relationship exception to the public duty doctrine was satisfied. In concluding to the contrary, the majority has failed to follow the principle that in reviewing a grant of summary judgment, the facts and all reasonable inferences from the facts are considered in the light most favorable to the nonmoving party, here the Babcocks. The Court of Appeals should be reversed. Accordingly, I dissent.
[2, 3, 5] Under the public duty doctrine, recovery in tort is possible in this case only if the Babcocks show that a duty was owed to them and not to the public in general. Beal, 134 Wn.2d at 784; Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988); Chambers-Castanes v. King County, 100 Wn.2d 275, 284, 669 P.2d 451 (1983). The special relationship exception to the public duty doctrine provides that liability may exist where “(1) there is direct contact or privity between the public official and the injured
Turning first to the question whether the Babcocks have presented evidence of an assurance by a government official sufficient to overcome summary judgment, it is apparent that they have. Mr. Babcock averred that “shortly after [the Babcocks] first arrived home, I attempted to remove an item of personal property and I was told by a lady fire fighter that I was not to attempt removal of any property. I was told that we were to leave matters in the hands of the fire fighters and they would ‘take care of protecting our property.’ ” Clerk’s Papers (CP) at 47-48 (Aff. of James Babcock). In a supplemental affidavit, Mr. Babcock gave a physical description of the fire fighter, and explained that the District 6 people were the first to arrive and she was among that group. He repeated in his supplemental affidavit that he had just picked up an item of property when he spoke to her, and was “just about to move my tent trailer.” CP at 17 (Suppl. Aff. of James Babcock). He stated that “when I was told that my property would be protected, I thought that meant my tent trailer, as it was easily accessible, and all of my property which could be saved without undue risk to the firemen.” Id. at 18.
The evidence and reasonable inferences from the evidence must be viewed in the light most favorable to the Babcocks. See Beal, 134 Wn.2d at 786. Mr. Babcock’s affidavits, construed most favorably to the Babcocks, sufficiently establish an express assurance by a public official that he should not try to rescue his property which could be safely rescued because the fire fighters would do so. Not only do the express words constitute an assurance, but they do so even more in the context of the fire fighter ordering Mr. Babcock to cease trying to save his property and the fire fighters “would take care” of his property. CP at 48.
Here, however, the situation is quite different. There is no comparable “burden of compliance” on plaintiffs. The question here is simply whether the government official made an express assurance that the Babcocks could justifiably rely on. Mr. Babcock’s affidavits raise a material question of fact as to whether such an assurance was given.
Next, the Babcocks have also presented sufficient evidence that they justifiably relied on the assurance given. Notably, “whether a party justifiably relies on information is a fact question generally not amenable to summary judgment.” Beal, 134 Wn.2d at 786-87; see, e.g., Swanson v. Liquid Air Corp., 118 Wn.2d 512, 518, 826 P.2d 664 (1992). The evidence and reasonable inferences must be viewed in favor of the Babcocks. Mr. Babcock stated that he and his wife returned home about 5:15 to 5:20 p.m., and no one was
These statements sufficiently establish a material question of fact as to whether the Babcocks justifiably relied on the assurance they were given. Mr. Babcock’s affidavit plainly shows that he did rely on the assurance to his detriment because the tent trailer and any property in the garage that could have been saved were lost. His state-
This case is like Beal where this court held that there were material questions of fact as to justifiable reliance on an assurance given by a governmental official. Crucial to that decision, as should be true here, the court did not attempt to decide questions of fact on review of summary judgment, but instead applied the elementary rule that facts and the reasonable inferences from the facts are construed in the light most favorable to the nonmoving party. This the majority has failed to do.
I would reverse the Court of Appeals and remand this matter for further proceedings.
Alexander, C.J., and Sanders, J., concur with Madsen, J.
(concurring in dissent) — I concur in Justice Madsen’s dissent; however, I also concur with Justice Chambers’ view that the public duty doctrine should be completely discarded.
