Del Johnson v. State Of Washington, et al.

Del Johnson, individually and as personal representative of Beverly



Johnson's estate, appeals the trial court's summary judgment dismissal of his lawsuit against the



State of Washington, Grays Harbor County, and Grays Harbor E911 Communications Center



(Grays Harbor 911)1 (collectively, Defendants), in which he alleged that they negligently failed to



inform a third party that Beverly2 was a missing and endangered person with a history of seizures.



1 Grays Harbor 911 was "established by inter-local agreement [among] Aberdeen, Hoquiam,

Grays Harbor County, Montesano and Cosmopolis for the purpose of providing 911 services

within Grays Harbor County." Clerk's Papers (CP) at 33.



2 To avoid confusion, we use Beverly Johnson's first name. We intend no disrespect.



No. 40637-3-II



Johnson argues that the public duty doctrine, which normally would preclude this type of lawsuit,



does not apply here; we disagree. Holding that Johnson has failed to demonstrate that Defendants



owed Beverly a special duty different from Defendants' general public duty, we affirm.



FACTS



I. Missing Person



Del Johnson is an Oregon resident and personal representative of the estate of Beverly



Johnson, his late wife. On January 27, 2007, Beverly drove her vehicle away from her local



library. Her family reported to the Beaverton, Oregon Police Department that she was "missing



with a history of seizure disorder," which "caused her to be severely disoriented while appearing



to function normally," especially at that time, when Beverly's "medications that normally



controlled her condition were not functioning because of a flu virus." Clerk's Papers (CP) at 14,



83. At 7:03 pm, the Beaverton Police Department reported Beverly as a "missing person



endangered with history of seizures" in the National Crime Information Center (NCIC)3 and



provided her physical description, a description of the clothes she was last seen wearing, and the



description and license plate number of her vehicle. CP at 34. The Beaverton Police Department



did not request "automatic notification of any sighting of [Beverly's] vehicle." CP at 83.



At 8:41 pm, Tyler Trimble advised a Grays Harbor 911 operator that he was driving on a



Washington state highway and observing a car driving erratically in front of him at about 20 miles



3 The NCIC is "an electronic clearinghouse of crime data that can be tapped into by virtually every

criminal justice agency nationwide." FBI -- National Crime Information Center, Federal Bureau

of Investigation, http://www.fbi.gov/about-us/cjis/ncic/ncic (last visited October 25, 2011).



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No. 40637-3-II



below the speed limit. Trimble reported the vehicle's color, license plate number, location, slow



speed, and erratic movement. Because the vehicle was travelling on a state highway, Grays



Harbor 911 transferred Trimble to the Washington State Patrol (WSP), to whom Trimble



repeated the same information.



WSP advised Trimble that it was going to "notify troopers." CP at 96. Trimble stayed on



the line as the erratic vehicle turned off the state highway into the City of Elma; Trimble continued



on the state highway. When the call between WSP and Trimble ended, WSP put out a dispatch to



local patrol that "the erratically driven [vehicle] . . . just enter[ed] Elma at this time, slow rate lane



travel, NCIC indicates that this vehicle is associated with a missing person endangered and a



seizure history." CP at 97. Four WSP troopers acknowledged this call.



WSP also advised Grays Harbor 911 that the reported vehicle was then in Elma and that



"NCIC shows that vehicle [is] associated with a missing and endangered person who has a history



of seizures." CP at 61. Neither WSP nor Grays Harbor 911 passed on this information to



Trimble.4 About one and a half weeks after the Beaverton Police Department reported Beverly



missing, Grays Harbor Sheriff's Department deputies discovered her vehicle and her body near



Wynoochee Lake Dam in the Olympic National Forest.



4 According to Trimble, he "would have stayed with the vehicle, providing updated information

until an available patrol unit could contact the vehicle" if he "had been informed that the vehicle

was associated with a Missing/Endangered person." CP at 92.



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No. 40637-3-II



II. Procedure



As the personal representative of Beverly's estate, Johnson sued the State, Grays Harbor



County, and Grays Harbor 911.5 The complaint alleged that (1) the WSP's and Grays Harbor



County's failures to tell Trimble that Beverly "had been listed as Missing and Endangered" was an



"error[]" that "proximate[ly] cause[d]" and "substantially contributed" to Beverly's death; (2)



"[a]s a proximate result of the errors. . . [Beverly] suffered pain, anguish, fear, hunger, thirst and



exposure to the elements, to her damage in the amount of $500,000"; and (3) "[a]s a result of the



death of [Beverly], her husband, Del[] Johnson, has suffered loss of mutual love, affection,



companionship, society and consortium, all to his damage in the amount of $2,500,000." CP at 4-



5.



The State, Grays Harbor County, and Grays Harbor 911 moved for summary judgment,



arguing that the public duty doctrine precluded Johnson's claims. In opposition, Johnson argued



that the public duty doctrine did not apply and that "[t]he public duty doctrine should be



abrogated." CP at 107. The trial court granted summary judgment to the Defendants. Johnson



appeals.



ANALYSIS



Johnson argues both that the public duty doctrine does not preclude his claims against the



Defendants and that we should abrogate the public duty doctrine. His first argument fails. We



decline to address his second argument, which would require us to ignore binding Supreme Court



5 Johnson originally sued the City of Beaverton as a named defendant. He later amended his

complaint to substitute Grays Harbor 911 for Beaverton.



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precedent.



I. Public Duty Doctrine Applies



Johnson argues that his action falls under one or more exceptions to the public duty doctrine



and, therefore, the superior court erred in dismissing his lawsuit on summary judgment. We disagree.



A. Standard of Review



When reviewing a summary judgment motion, we view the case from "the position of the



trial court." Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). In so doing, we



review the trial court evidence contained in the pleadings, affidavits, admissions, and other



properly presented material. Chase v. Daily Record, Inc., 83 Wn.2d 37, 42, 515 P.2d 154 (1973)



(quoting Leland v. Frogge, 71 Wn.2d 197, 200, 427 P.2d 724 (1967)). Summary judgment is



proper if pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the



nonmoving party, show there is no genuine issue of material fact and demonstrate that the moving



party is entitled to judgment as a matter of law. Bratton v. Welp, 145 Wn.2d 572, 576, 39 P.3d



959 (2002); CR 56(c). In a negligence action, determining whether the defendant owed an



actionable duty to the plaintiff represents a question of law, which we review de novo. Cummins



v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 458 (2006).



B. Public Duty Doctrine



In order to maintain a negligence action, a plaintiff must establish a duty of care that runs from



the defendant to the plaintiff. Honcoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988). The



public duty doctrine serves "as a framework for courts to use when determining when a governmental



entity owes either a statutory or common law duty to a plaintiff suing in negligence." Cummins, 156



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No. 40637-3-II



Wn.2d at 853. According to the public duty doctrine,



In negligence actions against a government entity . . . "no liability may be imposed . . .

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.'"



Cummins, 156 Wn.2d at 852-53 (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d



447 (1988) (citations omitted) (quoting J &B Dev. Co. Inc. v. King County, 100 Wn.2d 299, 303, 669



P.2d 468 (1983))).6 Johnson concedes that the public duty doctrine precludes imposition of liability on



Defendants for allegedly negligently failing to find a missing and endangered person such as Beverly



because this is a duty that Defendants owed to the public in general. Nevertheless, Johnson contends



that once Trimble spoke to the Grays Harbor 911 and to State dispatchers, and the dispatchers learned



that Beverly "was missing and endangered," (1) Defendants' "duty was no longer to the public in



general[,] [i]t was to [Beverly]"; and (2) Defendants breached this duty. Br. ofAppellant at 9.



C. Exceptions to Public Duty Doctrine



In order to establish that Defendants owed Beverly a duty, Johnson had to show that one of



four exceptions to the public duty doctrine applied: (1) legislative intent; (2) a failure to enforce; (3)



the rescue doctrine; or (4) a special relationship. See Cummins, 156 Wn.2d at 853 n.7. "If one of



these exceptions applies, the government will be held as a matter of law to owe a duty to the individual



plaintiff or to a limited class of plaintiffs." Cummins, 156 Wn.2d at 853. Johnson argues that "[t]his



case fits at least two of these and should fit all four." Br. ofAppellant at 10. We examine each in turn.



6 See also J &B Dev. Co. Inc., 100 Wn.2d at 303 ("[A] dutyto all is a duty to no one."), overruled on

other grounds by Taylor, 111 Wn.2d at 168.



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No. 40637-3-II



1. Legislative Intent



"The traditional public duty rule of nonliability does not apply where a regulatory statute . . .



evidences a clear legislative intent to identify and protect a particular and circumscribed class of



persons." Honcoop, 111 Wn.2d at 188.7 Johnson contends that the Legislature intended RCW



70.96A.120(2) to protect persons such as Beverly. Br. of Appellant at 11-13. Subject to certain



exceptions, RCW 70.96A.120(2) provides, in part:



[Any] person who appears to be incapacitated or gravely disabled by alcohol or other

drugs and who is in a public place or who has threatened, attempted, or inflicted

physical harm on himself, herself, or another, shall be taken into protective custody . . .

as soon as practicable, but in no event beyond eight hours brought to an approved

treatment programfor treatment. If no approved treatment program is readily available

he or she shall be taken to an emergency medical service customarily used for

incapacitated persons.



Johnson concedes that Defendants did not know whether Beverly was impaired by drugs or alcohol.



Nevertheless, he asserts that Defendants knew that she was "seriously impaired"8 and, therefore, the



statute required them to assist her. The State counters that RCW 70.96A.120(2) has "absolutely no



application to the facts of this case."9 Br. ofResp't (State) at 14. We agree withthe State.



7 See also Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 929, 969 P.2d 75

(1998) (stating that a statute must, "by its terms, evidence[] a clear legislative intent to identify

and protect a particular and circumscribed class of persons") (emphasis added).



8 Br. ofAppellant at 12.



9 Grays Harbor and Grays Harbor 911 "adopt the State of Washington's argument with respect to

the Public Duty Doctrine." Br. of Resp't (Grays Harbor & Grays Harbor 911) at 4. Grays

Harbor and Grays Harbor 911 also argue that Grays Harbor 911's conduct was not a

"proximate[] cause" of Beverly's death. Br. of Resp't (Grays Harbor & Grays Harbor 911) at 4.

We note, however, that the superior court did not base its summary judgment orders on

causation. And, because we affirm on grounds the superior court did address, we need not

address causation on appeal.



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No. 40637-3-II



RCW 70.96A.120(2) does not "by its terms, evidence[] a clear legislative intent to identify and



protect" persons such as Beverly. See Honcoop, 111 Wn.2d at 188; see also Ravenscroft v.



Washington Water Power Co., 136 Wn.2d 911, 929, 969 P.2d 75 (1998). As our Supreme Court



has explained, RCW 70.96A.120(2) is "narrowly drawn as to reach only certain individuals



incapacitated by alcohol and in need of treatment." Hontz v. State, 105 Wn.2d 302, 307, 714 P.2d



1176 (1986). And RCW 70.96A.120(2) specifically excludes "a person who may be apprehended for



possible violation of laws relating to driving or being in physical control of a vehicle while under the



influence of intoxicating liquor or any drug." That Beverly was "driving . . . a vehicle" while



apparently intoxicated placed her outside the ambit of RCW 70.96A.120(2). Thus, the "legislative



intent" exception to the public duty doctrine does not apply here.



2. Failure To Enforce



The "failure to enforce" exception to the public duty doctrine occurs "where governmental



agents responsible for enforcing statutory requirements 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." Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257



(1987). Johnson relies on RCW 70.96A.120(2) to support this exception. But, as we explain above,



Beverly was not within the class that RCW 70.96A.120(2) protects. Thus, the "failure to enforce"



exception does not apply here.



3. Rescue



The "rescue" exception applies if "a governmental entity or its agent [1] undertakes a duty to



aid or warn a person in danger and [2] fails to exercise reasonable care, and [3] the offer to render aid



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No. 40637-3-II



is relied upon by either the person to whom the aid is to be rendered or by another who, as a result of



the promise, refrains from acting on the victim's behalf." Chambers-Castanes v. King County, 100



Wn.2d 275, 285 n.3, 669 P.2d 451 (1983). As we have explained, "Integral to this exception is that



the rescuer, including a state agent, gratuitously assumes the duty to warn the endangered parties of



the danger and breaches this duty by failing to warn them." Babcock v. Mason County Fire District



No. 6, 101 Wn. App. 677, 685, 5 P.3d 750 (2000), aff'd, 144 Wn.2d 774, 30 P.3d 1261 (2001).



Johnson contends that the "rescue" exception controls here because Trimble "refrained from



aiding [Beverly] further [when Defendants] failed to tell him she was missing and endangered." Br. of



Appellant at 14. The State argues that the "rescue" exception does not apply because "no 'assurances'



(offer to render aid) of any kind were given to Mr. Trimble which caused him to abandon or not to



attempt a 'rescue.'" Br. ofResp't (State) at 12. We agree withthe State.



In Babcock, we held that a volunteer firefighting district did not "gratuitously" assume fighting



a house fire and, therefore, could not undertake a duty to aid or to warn specific individuals, including



the home owners. Babcock, 101 Wn. App. at 686. We relied on RCW 52.02.020, which stated in



pertinent part that fire protection districts must provide fire prevention, fire suppression, and



emergency medical services "for the protection of life and property." We concluded that fire districts



protected "all citizens, including, but not limited to," the Babcock plaintiffs. Babcock, 101 Wn. App.



at 686.



Here, Grays Harbor 911 did not make a gratuitous offer to render aid: It merely answered



"good Samaritan" Trimble's call and then transferred it to the State. Thus, the "rescue" exception does



not apply to Grays Harbor and Grays Harbor 911.



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No. 40637-3-II



After Grays Harbor transferred the information to the State, the State then informed Trimble



that it would "notify troopers," which it did. CP at 96. Johnson has not established that these actions



by the State amounted to a gratuitous offer to render aid to specific citizens, such as Beverly, as



opposed to a generalpromise to render aid that the State made as part of its duty to "all citizens." See



Babcock, 101 Wn. App. at 686. The Legislature has given the State "such police powers and duties as



are vested in sheriffs and peace officers generally." RCW 43.43.030. RCW 36.28.010(6) provides



that a county sheriff "[s]hall keep and preserve the peace in their respective counties." RCW



10.93.070(2) provides that a peace officer "may enforce the traffic or criminal laws. . . [i]n



response to an emergency involving an immediate threat to human life or property." In light of



these statutes and the accompanying general public duties that they impose on the State, the



State's promise to Trimble to "notify troopers," in response to his call, was not a gratuitous offer



to render aid. See Babcock, 101 Wn. App. at 686.



Because Defendants cannot establish that the State's promise to notify the troopers was



gratuitous, the first element of the "rescue" exception, we need not address the second element,



"reasonable care" -- whether Defendants' failure to inform Trimble about Beverly's NCIC status



constituted a failure to exercise reasonable care. See Chambers-Castanes, 100 Wn.2d at 285 n.3.



Thus, the "rescue" exception does not apply here.



4. Special Relationship



The "special relationship" exception to the public duty doctrine applies when



(1) there is direct contact or privity between the public official and the injured plaintiff

which sets the latter apart from the general public, and (2) there are express assurances

given by a public official, which (3) gives rise to justifiable reliance on the part of the

plaintiff.[10]



10



No. 40637-3-II



Cummins, 156 Wn.2d at 854 (quoting Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237



(1998)). A "plaintiff can establish privity [however] without having to prove the plaintiff herself



communicated with the government entity." Cummins, 156 Wn.2d at 854 (citing Bratton, 145 Wn.2d



at 577). But the plaintiff must "specifically s[eek]" and the government must "expressly g[i]ve"



assurances indicating the government "would act in a specific manner." Babcock, 144 Wn.2d at 789,



791.



Johnson "concedes that . . . he cannot qualify for the 'special relationship' exception to the



public duty doctrine." Br. of Appellant at 16. Yet, in his reply brief, he "urges the court to hold that



the present facts effectively satisfy the 'special relationship' exception." Reply Br. of Appellant at 10.



We do not address issues that an appellant raises for the first time in a reply brief. Stanzel v. City of



Puyallup, 150 Wn. App. 835, 851, 209 P.3d 534 (2009). RAP 10.3(c) requires that a reply brief "be



limited to a response to the issues in the brief to which the reply brief is directed." Accordingly, we



accept Johnson's concession that he does not qualify for the "special relationship" exception to the



public duty doctrine, and we do not further address his new argument that the facts of this case



somehow, nevertheless, constitute a form of substantial compliance with this exception's



10 Stated differently, "'It is only where a direct inquiry is made by an individual and incorrect

information is clearly set forth by the government, the government intends that it be relied upon

and it is relied upon by the individual to his detriment, that the government may be bound.'"

Babcock, 144 Wn.2d at 789 (quoting Meaney v. Dodd, 111 Wn.2d 174, 180, 759 P.2d 455

(1988)).



11 More specifically, Johnson contends that (1) "the connection between Defendants and [Beverly]

through Mr. Trimble certainly set [Beverly] apart from the general public," and (2) "Mr. Trimble

relied on Defendants' failure to tell him [that Beverly] was missing and endangered, and that

reliance caused [Beverly's] death." Reply Br. of Appellant at 10-11. The State counters that "no

assurances of any kind were given," thus, precluding application of the special relationship

exception. Br. of Resp't (State) at 12.



11



No. 40637-3-II



requirements.11 Thus, the "special relationship" exception does not apply here.12



II. Request To "Abrogate" the Public Duty Doctrine



Finally, Johnson argues that we should "abrogate[]" the public duty doctrine altogether. Br. of



Appellant at 18. We decline. Until such time as our Supreme Court overrules itself, we are bound by



its holding that the public duty doctrine applies in the State of Washington. See Babcock, 144 Wn.2d



at 784-86; State v. Burkins, 94 Wn. App. 677, 701-02, 973 P.2d 15, review denied, 138 Wn.2d 1014



(1999). Thus, we decline Johnson's invitation to dismantle the public duty doctrine.



* * *



See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=406373MAJ

We affirm.