Washington Supreme Court undercuts “Public Duty Doctrine” ... Again

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In Washburn v City of Federal Way No. 87906-1 (not yet reported), an October 17, 2013, unanimous decision, the Washington Supreme Court again struck a blow against the now teetering public duty doctrine. This brief note will address three questions:

  • What is the narrow holding of Washburn?
  • How does Washburn help understand recent Supreme Court rulings on the public duty doctrine?
  • What does Washburn mean for plaintiff personal injury lawyers?

1. What is the narrow holding of Washburn?

In Washburn, Kim murdered Roznowski after Federal Way Police Department officer Hensing served Kim with an anti-harassment order forbidding Kim from contacting or remaining near Roznowski. Washburn (Roznowski’s heirs) sued the Federal Way Police Department alleging that officer Hensing’s negligent service of the order resulted in Roznowski’s death at Kim’s hands. Officer Hensing had handed the order to Kim, who spoke little English, even though Roznowski had left instructions to bring a Korean interpreter to the service. Hensing had then left Roznowski’s house where the order was served despite knowing that Roznowski was present, that Kim had a history of assault, and that Kim was likely to react violently to service of the order.

The city argued that it owed Roznowski no duty under the public duty doctrine. “We disagree. The City had a duty to serve the anti-harassment order on Kim, and because it had a duty to act, it had a duty to act with reasonable care in serving the order.”

The court held that the City owed two different duties to Roznowski.

First, the City had a legal duty to serve the anti-harassment order under a statute designed to protect victims of harassment.

The Court recited the familiar genesis of the public duty doctrine: the 1961 abolishment of sovereign immunity; the court’s use of the public duty doctrine as a “focusing tool” to determine whether a duty is actually owed to an individual rather than to the public at large; the common exceptions to the public duty doctrine initially enunciated in Bailey v Town of Forks, 108 Wn.2d 262, 737 P.2d. 1257, 753 P.2d 523 (1987); and the conclusion that the “…true question…is whether the entity owed a duty to the plaintiff, not whether an exception to the public duty doctrine applies.”

The court then relied on the “legislative intent exception,” allowing a plaintiff to claim that a government entity owes him or her a legal duty where a legislative enactment “…evidences a clear legislative intent to identify and protect a particular and circumscribed class of persons.” Honcoop v State, 111 Wn.2d 182, 759 P.2d 1188 (1988). Since the stated legislative intent of RCW 10.14 was to protect victims of harassment (the particular and circumscribed class), and since the statue imposes on police officers the duty to serve anti-harassment orders, culpable neglect in carrying out this duty carries liability.

If the Court had stopped there, the case would be just another unremarkable example of duty imposed under an established exception to the public duty doctrine. Undoubtedly government entities will so read the case. However, the court went on to enunciate a second basis for its conclusion.

2. How does Washburn help understand recent Supreme Court rulings on the public duty doctrine?

As a second basis for its decision, the court held that the City owed Roznowski a duty to guard against the danger she faced at Kim’s hands because officer Hensing’s actions created that danger. This holding is an attempt to further refine the Court’s recent decision in Robb v City of Seattle, 176 Wn2d 427, 295 P.3d 212 (2013).

Again, the court begins by reciting the evolution of known rules: actors have a duty to exercise reasonable care to avoid the foreseeable consequence of their conduct; this duty extends to avoiding exposing another to harm from the foreseeable conduct of a third party; criminal conduct is generally not foreseeable; generally there is no duty to prevent third parties from causing criminal harm to others; but criminal conduct is not unforeseeable per se; and thus the Court has “…adopted Restatement Sec. 302 B, which provides that, in limited circumstances, an actor’s duty to act reasonably includes a duty to take steps to guard another against the criminal conduct of a third party,” citing Robb, 176 Wn.2d at 439-440.

This duty to protect against the criminal acts of third parties can arise “where the actor’s own affirmative act has created or exposed the other to a recognizably high degree of risk of harm through such misconduct.” Robb, 176 Wn.2d at 434 (quoting restatement section 302 B) (emphasis added).

The balance of the Washburn opinion is an exercise in determining whether an act is “affirmative” and “misfeasance” creating a duty to act reasonably to prevent foreseeable criminal conduct, or “an omission” and “nonfeasance” which does not support such a duty.

A close reading of Robb demonstrates specific guidelines for how 302 B is to be understood and applied. The Robb Court too began its opinion by emphasizing the distinction between misfeasance and nonfeasance, noting that “the line between the two is far from easy to draw.” Robb, 176 Wn.2d at 436-437.

With the decision in Washburn it is now clear that the standard for how to draw the line between an affirmative act and an omission is: If conduct creates or increases a serious risk, it is affirmative action that gives rise to a duty under 302 B; if it merely leaves in place an existing risk, it does not.

The Robb Court applied this standard to an analogy proposed by plaintiff Robb to “a situation where a negligent driver fails to apply his or her brakes as a pedestrian crosses in front of the car.” At first glance, this would appear to be an archetypal example of passive inaction or nonfeasance. However, this is not the court’s conclusion because “the driver affirmatively created a new risk to the pedestrian by failing to stop his or her car.” Robb, 176 Wn.2d at 437. The court equated a new or increased risk to an affirmative action. An action that creates or increases the risk of serious harm is an affirmative act or misfeasance.

The Robb Court used this same standard to explain the result in Parrilla v. King County, 138 Wash.App. 427, 157 P.3d 879 (2007), a case in which the Court of Appeals relied on §302 B comment in finding that “King County owed a duty after a bus driver exited his bus with the engine running, leaving a visibly erratic man alone on board.” Robb, 176 Wn.2d at 435. Again, the bus driver’s conduct could have been seen as an affirmative act (exiting the bus) or as an omission (failing to remain on the bus, to turn off the engine, and to remove the keys), but what makes it misfeasance under the Supreme Court’s standard is that a new risk was created. “Similarly, in Parrilla, the bus driver created a new risk by disembarking from a bus, leaving keys in the ignition with the engine running and an erratic passenger onboard . . .” Robb, 176 Wn.2d at 437.

The Robb Court then applied this standard to the facts before it. Police officers stopped the perpetrator on suspicion of a burglary near where the perpetrator lived, but did not pick up shotgun shells lying on the ground at the location of the stop. The perpetrator subsequently shot and killed someone. The officers later explained that they did not pick up the shotgun shells because of “the lack of a connection between the shells and the reported crime that led to the stop.” Robb, 176 Wn.2d at 430. In determining whether their conduct was misfeasance or nonfeasance, the court focused on whether the police officers’ conduct created or enhanced a risk, and thus, whether the conduct gave rise to a duty.

The police officers in this case did not affirmatively create a new risk when they stopped Berhe and failed to pick up the nearby shells. The officers did not provide the shells, nor did they give Berhe the shotgun he used to kill Robb. The officers failed to remove a risk when they did not remove the shells. Berhe would have presented the same degree of risk had the Officers Lim and McDaniel never stopped him. Simply put, the situation of peril in this case existed before law enforcement stopped Berhe, and the danger was unchanged by the officers’ actions. Because they did not make the risk any worse, their failure to pick up the shells was an omission, not an affirmative act, i.e., this is a case of nonfeasance.

Robb, 176 Wn.2d at 437-438 (emphasis added).

The Robb Court quoted Prosser and Keeton on Torts (Fourth Edition), §56 to support its “increased risk of harm” standard: “Misfeasance necessarily entails the creation of a new risk of harm to the plaintiff. On the other hand, through nonfeasance, the risk is merely made no worse.” Robb, 176 Wn.2d at 437.

Following Robb by only nine months, the Washburn court again fits the facts before it into the rule derived from a close reading of Robb: If conduct creates or increases a serious risk, it is affirmative action that gives rise to a duty under 302 B; if it merely leaves in place an existing risk, it does not.

“We hold that, under the facts of this case, Hensing, as part of his duty to act reasonably, owed Roznowski a duty to guard against the criminal conduct of Kim. We find several factors created this duty.

First, Hensing knew, or should have known, that Kim could or would react violently to the service of the anti-harassment order…”

In filling out the initial law enforcement information sheet (LEIS) Roznowski had warned that Kim had a history of assault and would likely react violently to service of the order.

Second, Hensing knew, or should have known from reading the order, that he was serving Kim at Roznowski’s house and should have known that the woman in the background when he served Kim was likely Roznowski.

In addition, Roznowski had warned in the LEIS that Kim spoke little English and that a Korean translator should be present when the order was served.

Officer Hensing handed Kim the anti-harassment order and walked away -- actions that could easily be interpreted as “an omission” or “nonfeasance.” But again, the Court focused on the creation of a new risk to determine that the actions were an affirmative act and thus the basis for an actionable duty.

“Hensing created a situation that left Roznowski alone with Kim as Kim realized, or was about to realize, that Roznowski had ended their relationship. Hensing should have realized that, like the bus driver in Parrilla, and unlike the officers in Robb, he had created a new and very real risk to Roznowski’s safety based on Kim’s likely violent response to the anti-harassment order and his access to Roznowski.” (emphasis added).

The Court reached this interpretation of Hensing’s acts despite Washburn’s own framing of the issues as “…a failure to perform, such as the failure to read the LEIS, the failure to bring an interpreter, and Hensing’s decision to walk away instead of standing by to monitor Kim…”

In short, although Robb and Washburn state the rule as distinguishing between “affirmative” acts which constitute “misfeasance” and carry an actionable duty and acts which are “an omission” or “nonfeasance” which do not, the underlying and determinative focus of the Court is whether or not the action of the governmental agent creates a new risk.

In the Robb court’s response to the failure-to-brake analogy, the Robb and Washburn courts’ understanding of Parrilla, the holding in Robb, and the second basis for the decision in Washburn, the Supreme Court is now applying this standard to differentiate misfeasance from nonfeasance: If conduct creates or increases a serious risk, it is affirmative action that gives rise to a duty under 302 B; if it merely leaves in place an existing risk, it does not.

Since the facts in all three cases could be interpreted as either affirmative acts or passive inaction, Washburn makes plain that the Robb and Parrilla line of cases depend on an analysis of whether conduct creates or increases a serious risk, not just on a surface analysis of whether action is “affirmative” and “misfeasance” rather than “an omission” and “nonfeasance.”

3. What does Washburn mean for plaintiff personal injury lawyers?

Washburn will both expand the types of factual situations which plaintiff personal injury lawyers will undertake to prosecute, and change the way they are argued.

With two clear statements by the Supreme Court in one year that Restatement 302 B is good law in Washington, a new route through the public duty doctrine is available. If the government agent creates new risk of foreseeable harm, even if that harm is directly caused by a third party, the public duty doctrine does not prevent a valid claim.

While a careful personal injury lawyer will always attempt to fit his or her case into an established exception to the public duty doctrine under Bailey v Forks, because the law is so settled there, Restatement 302 B offers an alternative cause of action.

And once a claim is made that the government agent’s own affirmative act has created or exposed the victim to a recognizably high degree of risk of harm, the argument, though stated in terms of the agent’s affirmative conduct, must be directed to showing the court that the conduct has created or increased a serious risk. But be careful of semantics. Plaintiff’s counsel should argue that the bus driver affirmatively exited the bus, not that he failed to remain on the bus. He or she should argue that the officer affirmatively chose to leave the victim alone with the criminal, not that he passively walked away and left an existing situation to remain. While the cases turn on creation of a new risk of harm, the courts are still talking in terms of malfeasance (affirmative acts) and nonfeasance (omissions).

The history of the public duty doctrine has evolved through the 1961 abolishment of sovereign immunity, the adoption of the doctrine to protect government from claims based on the duty to protect the public in general, and has over time been subject to a death of a thousand cuts, each further limiting this defense. Washburn is another significant chop at the roots of the doctrine.