In the case of Norg v. City of Seattle, No. 100100-2 (Wash. 2023), the Supreme Court of Washington answered the question of whether the public duty doctrine insulates the City of Seattle from liability for a 911 response to the wrong address. The Court held that the City was not protected by the public duty doctrine where the harm was particularized and not related to general public duty.
Delaura Norg called 911 to request emergency assistance for her husband who was suffering a medical problem. She provided the 911 dispatch with her correct address and it was given to first responders from the Seattle Fire Department (SFD). Although the apartment where the Norgs resided was only three blocks away from the nearest fire station, it took SFD fifteen minutes to arrive. Later it was discovered that the delay was caused by the SFD's failure to verify the address and they assumed the call was for a nursing home nearby. Meanwhile Norg suffered a heart attack and, although he survived the ordeal, he was left with "severe and permanent injuries including brain damage due to a lack of oxygen, resulting in cognitive defects and impaired vision, balance, and ambulation." The Norgs brought a claim against the City of Seattle for negligence and alleged that the delay exacerbated Mr. Norg's injuries.
The City responded by asserting the public duty doctrine as an affirmative defense and accordingly filed a motion for summary judgment. The Norgs also moved for summary judgment. The trial court granted partial summary judgment to the Norgs and struck the City's public doctrine affirmative defense. The Court of Appeals affirmed after an interlocutory review. The Supreme Court also affirms.
Does the public duty doctrine bar the Norgs' negligence claim against the City?
Public Duty Doctrine
Historically, states could not be sued without their consent. This doctrine of sovereign immunity is derived from English common law and is acknowledged in the Washington Constitution. With time, the doctrine of sovereign immunity came under fire and in the 1960s the Washington legislature passed legislation that allowed tort claims against state and local government under certain circumstances. The government's immunity was not completely dissolved, but instead the change provided some plaintiffs an avenue for recovery upon meeting certain criteria.
Washington statute lays out circumstances under which the government may be subject to liability. RCW 4.96.010(1) provides that "governmental entities shall be liable for damages arising out of their tortious conduct to the same extent as if they were a private person or corporation." To be liable in tort a government entity must "engage in tortious conduct that is analogous, in some degree at least, to the chargeable misconduct and liability of a private person or corporation." Munich v. Skagit Emergency Commc'ns Ctr., 175 Wn.2d 871, 887, 288 P.3d 328 (2012).
Governmental entities are provided this partial shield from liability for tortious conduct because they perform certain duties imposed by law, which private persons do not. Such duties are "not actionable because a duty to all is a duty to no one and a cause of action for negligence will not lie unless the defendant owes a duty of care to the plaintiff." Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006).
In effect, a statutorily imposed governmental duty that is owed to the general public is not actionable, such that governmental entities are held liable only to the same extent of a private person or corporation. In order to overcome this general rule a plaintiff must show that (1) the duty breached was owed to an individual, and (2) was not merely a general obligation owed to the public.
In the case at hand, the City argued that 911 calls fall within the scope of the public duty doctrine and is therefore, barred. The Norgs argued that the duty of the City was owed to them personally as individuals in need, and that the SFD was negligent in its response by not verifying the address and delaying medical assistance.
The City Owed a Common Law Duty of Care
The City relied in part on In Cummins v. Lewis County, 156 Wn.2d 844 (2006), in which it was held that the City was not liable for a negligent 911 response. The Court distinguished Cummins based on factual differences related to the call conveying location information and that the case involved an exception to the public duty doctrine, not a common law duty.
The Court determined that the City owed the Norgs a common law duty of care individually and that the public duty doctrine did not apply as a matter of law. "At common law, every individual owes a duty of reasonable care to refrain from causing foreseeable harm in interactions with others." Beltran v. Serrano, 193 Wn.2d at 550. The Court went on to note that, "although generally there is no legal duty to come to the aid of a stranger, a common law duty of reasonable care arises when one party voluntarily begins to assist an individual needing help." Folsom v. Burger King, 135 Wn.2d at 550.
Here, the Norgs assert that the City owed them a common law duty of care once the SFD was dispatched to send aid to their apartment. The City breached this duty when SFD failed to follow protocol by verifying the address and went to the wrong location. In their words, this created a "particularized relationship with the Norgs." As such, the public duty doctrine is inapplicable to this case.
The Norgs did not claim that the City failed to supply emergency services as required by statute. Instead, their claim relates to what happened after the 911 call was answered and services dispatched. Emergency services are not a unique function of government so holding that a negligence claim against a government ambulance service is not liable would result in a private emergency service being vulnerable to more liability than a governmental ambulance for the same negligent actions. This is contrary to the legislature intent of RCW 4.96.010, which requires that a governmental entity be held to the same level of liability as a private entity in this type of situation.
The Washington Supreme Court found that the trial court's grant of partial summary judgment to the Norgs on the question of the City's common law duty was proper, as the public duty doctrine did not apply to the facts of this case. This case illustrates the proper application of the public duty doctrine and further defines when a court is likely to find that the doctrine will not apply to bar a cause of action against a municipal entity.