[Nos. 64644-3-I; 64646-0-I. Division One. April 11, 2011.]
February 24, 2011, Oral Argument Duncan K. Fobes and Rhianna M. Fronapfel (of Patterson Buchanan Fobes Leitch & Kalzer PS); Paul H. Reilly; and Shannon M. Ragonesi and Mark R. Bucklin (of Keating Bucklin & McCormack Inc.), for petitioners. Ray W. Kahler, Kevin Coluccio, and Paul W. Whelan (of Stritmatter Kessler Whelan Coluccio), for respondent. AUTHOR: Michael S. Spearman, J. We concur: Mary Kay Becker, J., C. Kenneth Grosse, J. ¶1 SPEARMAN, J. -- We are asked to decide on discretionary review whether, in order to satisfy the special relationship exception to the public duty doctrine, the estate of William Munich (Estate) must show that Munich received an express assurance from Skagit County that was false or inaccurate. FACTS ¶2 On October 1, 2005, William Munich flew his plane to property that he and his wife, Gaye, owned in rural Skagit County. The only building on their property was a garage. At 5:57 p.m., Munich called his friend Bruce Heiner to tell him that a neighbor, Marvin Ballsmider, had just fired a shot at him. Heiner told Munich to call 911. At 6:00 p.m., according to the computer-aided dispatch (CAD) record, Munich called 911 and reported that a guy had pointed a rifle at him and "then he shot." Smith: Ok, my partners already got . . . my partners already got a deputy that's headed towards you. Munich: Ok, thank you[.] Smith: Ok, so are you going to wait, you're going to wait there for contact? Munich: Oh yeah, definitely[.] Smith: Ok, did the, when the guy with the gun left, did he leave on foot or in a vehicle[.] Munich: No, he lives right there, I know him, I mean he's standing right there right on the fence line Smith: He's still standing there on the fence line? Munich: I can't see him from here[.] Smith: Ok. Are you in a house? Are you someplace safe? Munich: I'm in my . . . I'm in my garage right now[.] Smith: Ok, is there a house on that property or is there just a garage there? Munich: There's just a garage, we're just in the process of building a . . . , we just finished the garage and now we're trying a house Smith: Ok, you're going to wait there at the garage for contact then? Munich: Yeah, I have a cable across the driveway so . . . Smith: Ok, all righty, there's already a deputy that's enroute to you, ok? Munich: Ok thank you[.] Smith: All righty, thank you, bye bye. The call terminated at 6:03 p.m. At 6:04 p.m., ¶3 The Estate sued Skagit County, the SCSO, and Skagit Emergency Communications Center (jointly the County) for negligence in responding to the incident. The County brought a motion for summary judgment dismissal of the Estate's claims, arguing that under the public duty doctrine, it owed no legal duty to Munich. The County argued that the "special relationship" exception to the public duty doctrine did not apply because there was no express assurance of police assistance by the 911 operator and Munich did not rely on any express assurance to his detriment. It also argued that the Estate had to show that any express assurance was false or inaccurate. The trial court, granting summary judgment in part and denying it in part, ruled that a genuine issue of material fact existed on the issues of whether an express assurance was sought and given and whether Munich detrimentally relied on any such assurance. DISCUSSION [1-6] ¶4 We examine issues of law de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991). The County argues that under Washington law, the Estate is required to prove that any express assurance given by the 911 operator was false or inaccurate. The Estate, on the other hand, contends that it need only prove that an express assurance was given. We agree with the Estate and hold that where, as here, the alleged express assurance involves a promise of future action, a plaintiff is not required to prove that the express assurance was false or inaccurate to establish the existence of a special relationship. ¶5 Under the public duty doctrine, a plaintiff alleging negligence against a government entity must show that a duty was owed specifically to the plaintiff, not to the public in general. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1998) (citing J&B Dev. Co. v. King County, 100 Wn.2d 299, 304, 669 P.2d 468 (1983)). Whether a duty exists is a question of law. Osborn v. Mason County, 157 Wn.2d 18, 22-23, 134 P.3d 197 (2006). One exception to the public duty doctrine is where a "special relationship" exists between the plaintiff and the government entity. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784, 30 P.3d 1261 (2001). 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.'" Taylor, 111 Wn.2d at 166 (quoting J&B Dev. Co., 100 Wn.2d at 304-05). ¶6 In order to establish that a special relationship exists, a plaintiff must prove three elements: (1) direct contact or privity between the public official and the plaintiff that sets the plaintiff apart from the general public and (2) an express assurance given by the public official, which (3) gives rise to a justifiable reliance on the part of the plaintiff. Babcock, 144 Wn.2d at 786. "The plaintiff must seek an express assurance and the government must unequivocally give that assurance." Id. at 789. ¶7 We hold that the Estate is not required to prove, in addition to these three elements, that the express assurance was false or inaccurate. The cases cited by the County to argue otherwise are distinguishable. Initially, we note that all of the cases cited by the County apply the same three-part test we have identified for finding a special relationship: privity, express assurance, and detrimental reliance. See, e.g., Harvey v. Snohomish County, 157 Wn.2d 33, 38-41, 134 P.3d 216 (2006); Meaney v. Dodd, 111 Wn.2d 174, 178-79, 759 P.2d 455 (1988); Taylor v. Stevens County, 111 Wn.2d 159, 166, 759 P.2d 447 (1988); Vergeson v. Kitsap County, 145 Wn. App. 526, 539, 186 P.3d 1140 (2008); Smith v. State, 135 Wn. App. 259, 282, 144 P.3d 331 (2006). To the extent that courts have considered or addressed the falsity or inaccuracy of an express assurance, we conclude that such a consideration is not required in this context, where the alleged express assurance does not consist of providing information but is instead a promise of future action. ¶8 In several cases, the issue of whether information conveyed by the government to the plaintiff was false or inaccurate was central to the plaintiff's negligence claims. Meaney involved a negligence claim against a county in issuing a building permit to operate a mill and failing to provide accurate information during the application process. Meaney, 111 Wn.2d at 175. Taylor also involved a negligence claim against a county in issuing a building permit. Taylor, 111 Wn.2d at 160-62. And in Smith, the plaintiff alleged that the state was negligent in providing inaccurate information about appeal rights regarding her application for adoption assistance benefits. Smith, 135 Wn. App. at 263. In these cases, the government was involved with providing information in some capacity to the plaintiffs, and the plaintiffs' negligence claims depended on whether that information was accurate, true, or reliable. But here, the alleged assurance does not involve providing information. It involves a promise of future action. ¶9 A similar issue arose in Beal v. City of Seattle, 134 Wn.2d 769, 785-86, 954 P.2d 237 (1998), where the Washington Supreme Court considered the government's argument that where the issue involved reliance by a plaintiff on assurances, the information relied upon must be incorrect or there could be no cause of action. There, Melissa Fernandez called 911 from the apartment next to her estranged husband's to report that he would not let her retrieve her belongings. Id. at 773. She reported that her husband had been harassing and threatening her and that she had heard he had a gun. The conversation that the court found to contain express assurances was as follows: "911: Okay. Well I'll tell you what, we're going to send somebody there. Are you going to wait in number 4 [another apartment] until we get there? "CALLER: I'll be waiting outside in the front with my mom. "911: Okay. We'll get the police over there for you okay? "CALLER: Alright [sic], thanks." Id. at 785 (alterations in original). Approximately 20 minutes after this conversation, Fernandez's husband shot and killed her and then himself. By the time of the shootings, no police officer had been dispatched. The city, citing Meaney, argued that in any set of circumstances the information must be inaccurate at the time given, and argued that a prediction of future acts with no time requirements is not inaccurate information. Id. at 786. But the court rejected this analysis: This reading of Meaney is too narrow, because a definite assurance of future acts could be given without a specific time frame, with the government then failing to carry out those acts. Meaney specifically involved information about building permit requirements, which either is or is not accurate at the time given. The same cannot be said about assurances that future acts will occur. Id. Significantly, the Beal court, in circumstances much like those in this case, declined to impose a requirement that the plaintiff prove that the assurance was false or inaccurate. ¶10 In Vergeson, another case cited by the County, the plaintiff alleged negligence against a county in failing to remove records of court-quashed warrants from its databases. There we applied the three-part test and affirmed the summary judgment dismissal of Vergeson's claims because she failed to identify any express assurances given to her by the county that it would remove her quashed warrant from the databases or that she would not be subsequently arrested. Id. at 541. Although we noted that Vergeson had not shown that the county had provided her any incorrect information regarding the status of her warrants, the case turned on Vergeson's failure to identify any express assurances given to her by the county. Nowhere in our analysis did we suggest that in all cases, the plaintiff bears the additional burden of proving the falsity or inaccuracy of any express assurance given by the government. ¶11 Finally, of the cases cited by the County, Harvey is the most factually relevant, as it also involved a call to 911 for assistance. [I]n this case Harvey never received any assurance from the operator that was untruthful or inaccurate. Nor has Harvey shown that he relied on any assurance to his detriment. In other words, when the operator told Harvey she had notified police of the situation, she had. When the operator told Harvey the police were in the area and officers were setting up, they were. Id. at 39 (footnote omitted). The court also wrote: In order to demonstrate that a duty has been created to respond to a 911 call for police assistance, a claimant must show that assurances were made to the detriment of the caller. A careful review of the record reveals that Harvey never received any assurance from the operator that was untruthful or inaccurate nor has he shown that he relied on any assurance to his detriment. Id. at 41-42. We do not view this language as holding that the falsity or inaccuracy of an express assurance is an additional element necessary to find a special relationship. Rather, it supports the court's point that there was no express assurance upon which the plaintiff detrimentally relied because the 911 operator statements were not an express assurance, but instead simply informed him, accurately, of developments in the situation. ¶12 In sum, we hold that here, where the alleged express assurance involved a promise of future action, the Estate is not required to show that the express assurance was false or inaccurate in order to establish the existence of a special relationship. The cases repeatedly employ the same three-part test, which does not require a plaintiff to show the falsity or inaccuracy of an assurance. Based on our holding, we conclude that the trial court did not err in finding that there were genuine issues of material fact regarding the existence of a special relationship between William Munich and Skagit County. ¶13 Affirmed. GROSSE and BECKER, JJ., concur.