Donna Garcia v. Franklin County ( 2016 )

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FILED
April 12, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DONNA GARCIA, A Washington )
Resident; CONCEPCION GARCIA, an ) No. 33204-7-111
Individual; PATRICIA JANE LEIKAM, )
as the Administrator of the Estate of )
Tiairra Garcia, A Deceased Person, )
)
Appellants, ) UNPUBLISHED OPINION
)
v. )
)
FRANKLIN COUNTY, A Municipal )
Corporation, )
)
Respondent. )
KORSMO, J. - The trial court dismissed this action against Franklin County on the
basis that the appellants were collaterally estopped by a previous appeal involving the
city of Pasco. We affirm, but on different grounds.
FACTS
Appellants are the family and estate ofTiairra Garcia, whose death on June 22,
2008, is the basis for this lawsuit. That evening she had gone out with two friends,
Mamicus Lockhard and Ashone Hollinquest. They drove to a bar, and she waited inside
the van. When they were thrown out of the bar due to an altercation with another patron, l
Ms. Garcia drove them to another bar.
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Il
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After Ms. Garcia parked the van, Lockhard asked Hollinquest to hand him a gun
that was in the backseat. While handing the weapon forward, it accidentally discharged
and the bullet struck Ms. Garcia. Rather than take her to the hospital, Lockhard drove the
van from his passenger seat toward a friend's house. He struck a number of vehicles
along the route and several telephone calls were placed to the 911 system. The phone
call at issue in this appeal was placed by neighbors across the street from where the van
came to rest in the yard of a house at 1611 Parkview.
Melissa Gennett observed the activity while her husband, John Gorton, called 911.
She saw two men take what looked like a body out of the van and carry it into the
backyard. Mr. Gorton relayed to the 911 operator: "They pulled somebody out of a van
in the back of the house, drove [sic] them to the back of the house. 1' 1 Clerk's Papers (CP)
at 692. Mr. Gorton stayed on the phone until an officer arrived. Ms. Garcia was still
alive at this point.
The officer did not inquire about the "body" nor check the back of the premises;
he investigated only the hit and run. Ms. Garcia died while at 1611 Parkview. The two
men then attempted to hide the body. Ultimately, they dumped the body in Mt. Rainier
National Park. It was not recovered until June, 2009.
1
A transcript provided by the city of Pasco for the first appeal translated the
"drove" reference as "drugged", while Division One ultimately used the word "dragged."
Clerk's Papers at 187.
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The following June the appellants filed suit against the city of Pasco, Hollinquest,
Lockhard, and the bar where the two men had been drinking. Our record does not
indicate the resolution of the action against the last three defendants. The city of Pasco,
however, successfully obtained summary judgment dismissal of the case on the basis of
the public duty doctrine. The appellants appealed to this court, which administratively
transferred the case to Division One of the Court of Appeals.
While that appeal was pending, Division One decided the case of Robb v. City of
Seattle. 2 Robb recognized a cause of action under the Restatement (Second) of Torts§
3028 (1965) notwithstanding the public duty doctrine. The appellants added that issue to
their pending appeal in Division One. They also filed suit against Franklin County and
the city of Pasco. Franklin County was named in the second action due to the actions of
its employee, the 911 operator. The amended complaint alleged that the county's 911
operator negligently conveyed to the responding officer "either false and/or incomplete
information regarding facts provided." CP at 14.
Division One issued its decision and affirmed the dismissal of the case against the
city of Pasco and its officers. The court also discussed the actions of the 911 operator in
the course of its analysis. 3 After the Division One opinion issued, the city of Pasco was
2
159 Wn. App. 133, 245 P.3d 242 (2010), rev'd, 176 Wn.2d 427, 295 P.3d 212(2013).
3
This opinion will address the Division One analysis later in this opinion.
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dismissed from the current case. Franklin County also sought dismissal, arguing that the
Division One opinion in the first appeal collaterally estopped the appellants from
pursuing action against the 911 operator and the county. The trial court granted summary
judgment in favor of the county.
The appellants once again appealed to this court. We retained this case and the
parties presented oral argument to a panel.
ANALYSIS
The primary issue in this appeal is whether the ruling in the first appeal required
the trial court to dismiss this action against Franklin County. The appellants also argue
that the county undertook a duty to Ms. Garcia due to the county's operation of the 911
system and the acceptance of the telephone call from Mr. Gorton. We conclude that
appellants correctly argue that collateral estoppel does not apply, but we nonetheless
affirm because they do not establish that the county had a duty to act under the
Restatement.
This court applies de novo review to an order granting summary judgment on the
basis of collateral estoppel. Barr v. Day, 124 Wn.2d 318, 324, 879 P.2d 912 (1994).
Summary judgment is proper if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. CR 56( c); Wilhelm v.
Beyersdorf, 100 Wn. App. 836, 842, 999 P.2d 54 (2000). We consider the facts in a light
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most favorable to the nonmoving party. Reid v. Pierce County, 136 Wn.2d 195, 201, 961
P.2d 333 (1998).
Collateral estoppel precludes re-litigation of the same issue in a subsequent action
involving the parties. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299,
306, 96 P.3d 957 (2004). In order to prevail on a claim of collateral estoppel, the party
seeking application of the doctrine bears the burden of showing that ( 1) the identical issue
necessarily was decided, (2) there was a final judgment on the merits, (3) the party
against whom the doctrine is asserted must have been a party (or in privity with a party)
to the earlier proceeding, and (4) application of collateral estoppel will not work an
injustice against the estopped party. Id. at 307. The estopped party must have had a "full
and fair opportunity to litigate the issue in the earlier proceeding." Id.
Although Washington abolished sovereign immunity in 1967, 4 that action did not
itself create any new causes of action, duties, or liabilities where none existed before.
J & B Dev. Co. v. King County, 100 Wn.2d 299, 304-305, 669 P.2d 468 (1983),
overruled on other grounds by Taylor v. Stevens County, 111 Wn.2d 159, 759 P.2d 447(1988); see also Chambers-Castanes v. King County, 100 Wn.2d 275, 288, 669 P.2d 451(1983 ). It has been repeatedly held that
[t]he threshold determination in a negligence action is whether a duty of
care is owed by the defendant to the plaintiff. Whether the defendant is a
4
LAWS OF 1967, ch. 164.
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governmental entity or a private person, to be actionable, the duty must be
one owed to the injured plaintiff, and not one owed to the public in general.
This basic principle of negligence law is expressed in the "public duty
doctrine."
Taylor, 111 Wn.2d at 163 (citation omitted); accord Babcock v. Mason County Fire Dist.
No. 6, 144 Wn.2d 774, 784-785, 30 P.3d 1261 (2001). 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)."
Taylor, 111 Wn.2d at 163 (quoting J & B Dev. Co., 100 Wn.2d at 303).
Plaintiffs must fall within one of the established exceptions 5 to the public duty
doctrine in order to demonstrate that they were owed a duty of care by a governmental
entity. Cummins v. Lewis County, 156 Wn.2d 844, 853, 133 P.3d 458 (2006). It is only
once plaintiffs have established that they were owed a duty of care as an exception to the
public duty doctrine that "claimants may proceed in tort against municipalities to the
same extent as if the municipality were a private person." J & B Dev. Co., 100 Wn.2d at
305-306. Thus, at the outset of a negligence action against a governmental entity, courts
look to the public duty doctrine to determine whether the government owed the plaintiffs
a duty of care.
5
There are four exceptions to the public duty doctrine, "( 1) legislative intent, (2)
failure to enforce, (3) the rescue doctrine, and (4) a special relationship." Cummins v.
Lewis County, 156 Wn.2d 844, 853 n.7, 133 P.3d 458 (2006).
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The appellants originally relied upon the rescue doctrine exception to assert that
the county owed Ms. Garcia a duty of care. One who undertakes to render aid or warn
someone in danger is required to exercise reasonable care in his or her efforts. Brown v.
MacPherson 's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). Where that person fails to
exercise reasonable care and the offer to render aid is relied upon, the rescuer may be
liable for negligence. Chambers-Castanes, 100 Wn.2d at 285 n.3. This doctrine applies
even if the state agent is acting gratuitously or beyond his or her statutory authority. Id.The purpose of the rescue doctrine is to impose a duty where the government
affirmatively undertakes to either warn someone of danger or render aid. Brown, 86
Wn.2d at 299.
An alternative basis to the public duty doctrine for finding governmental liability
is found in Restatement§ 302B. That section provides that an "act or an omission may
be negligent if the actor realizes or should realize that it involves an unreasonable risk of
harm to another through the conduct of the other or a third person which is intended to
cause harm, even though such conduct is criminal."
In the previous appeal, Division One concluded that the city of Pasco did not owe
Ms. Garcia a duty under either the rescue doctrine or§ 302B. 6 In this appeal, the
appellants do not pursue their claim that the rescue doctrine exception applied and only
6
Garcia v. City of Pasco, noted at 181 Wn.2d 1009, slip op. at 9 (2014).
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argue§ 3028. Since the primary issue presented involves the scope of the Division One
ruling, it is time to consider it.
At issue in the first appeal was whether the city of Pasco and its officers were
liable for failing to investigate the report by Mr. Gorton that the occupants of the van had
taken a body to the back of the house at 1611 Parkview. Specifically, the appellants
contended that the Pasco Police Department had knowledge that someone had been
dragged 7 into the 1611 Parkview house and did not act upon the information. Division
One rejected the argument on both factual and legal grounds. Reciting the transcribed
conversation between Mr. Gorton and the 911 operator, the court noted that the operator
had not promised to do anything with the information. Garcia, slip op. at 4-5. The court
also rejected the argument that the operator had implicitly promised to convey the
information to the police. Id. at 5. Because there was no gratuitous promise to aid Ms.
Garcia, the rescue doctrine was inapplicable. Id. at 5-6.
The court then turned to analyze potential liability under§ 3028. Id. at 7-8. The
court found that there was no affirmative act by the police that would give rise to
liability. Id. at 9. The court stated:
The record does not demonstrate that the police promised to investigate
Gorton' s statement or were even aware of it. The 911 operator did not
indicate that the police would take any particular action and did not
7
As noted in footnote 1, different verbs have been used in different transcripts of
the recording. We use "dragged" in accordance with appellants' view of the evidence.
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acknowledge Gorton's statement about a body, other than to respond,
"Okay." This does not constitute an affirmative indication that the police
would investigate Gorton' s statement.
Id. The court then noted that the officers' failure to investigate was at most nonfeasance
and did not give rise to liability under the § 302B. Id.
With this background in mind, it is finally time to address the appellants'
arguments. First, they contend that the trial court erred in granting summary judgment on
the basis of collateral estoppel. We agree. Critical here is whether the Division One
opinion necessarily determined the identical issue. Christensen, 152 Wn.2d at 307. It
did not.
At issue before Division One was the duty, if any, owed by the city of Pasco and
its police force to Ms. Garcia under§ 302B. The duty of Franklin County and its 911
operator8 was not necessarily at issue. Nonetheless, the Division One opinion appears to
address, in part, the operator's actions. It expressly notes that the operator did not convey
Gorton's comment about a dragged body to the police. For that reason, the police did not
know about Ms. Garcia and had no obligation to investigate because there was no
affirmative action taken. Slip opinion at 9. Accordingly, Franklin County argues that
8
There apparently was confusion in the early stages of the first case whether or
not the 911 operator was employed by Pasco or by Franklin County. It is unclear
whether that confusion reached Division One or not. The discovery that the operator was
employed exclusively by the county was the basis for the current suit listing the county as
a defendant.
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Division One already determined that the operator undertook no action for purposes of §
302B liability.
That contention fails for two reasons. First, in context, the Division One opinion
was addressing the duty, if any, of the police to act. It did not address the operator's
responsibilities, but simply noted the fact that the operator's failure to convey the
information did not amount to an affirmative action by the police. Second, even if it had
squarely addressed the duty of the 911 operator, that discussion would not have been
necessary to the resolution of the question concerning any duty owed by the officers.
Any such discussion would amount to little more than informative dicta on this topic.
At most, the trial court could have given collateral estoppel to the factual ruling
that the operator did not convey Mr. Gorton's information to the police. The legal
consequences flowing from that fact were decided only as they related to the duty of the
police, but not as to any duty of the operator. Accordingly, the Division One opinion did
not necessarily resolve whether Franklin County owed a duty to Ms. Garcia and the trial
court erred in ruling otherwise.
Nonetheless, that error does not resolve this case. The appellants argue that the
facts establish that Franklin County owed Ms. Garcia a duty under§ 302B. Specifically,
they contend that the operation of a 911 system and the receipt of the phone call from Mr.
Gorton constituted an affirmative action giving rise to liability under§ 302B. We
disagree.
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This issue was decided in Robb, 176 Wn.2d 427. There the court authoritatively
construed§ 3028. At issue was the fact that police investigating a disturbance noticed,
but did not seize, several shotgun shells laying on the ground near the men they talked to.
After police left, one of the men returned to scene, picked up one of the shells, and soon
thereafter used it to shoot and kill Mr. Robb. Id. at 430. Our court suggested that§ 3028
was an alternative basis to the public duty doctrine's four exceptions for finding
governmental liability. Id. at 433, 439 n.3. However, that duty arose only in situations
where the government's own affirmative act created a high risk of harm. Id. at 433-434.
The fact that the police did not pick up and remove the shells was, at most, an omission.
It was not an affirmative action that created a risk of harm. Id at 435-438. To rule
otherwise would be to extinguish the "firm line between misfeasance and nonfeasance."
Id. at 439.
The same problem is presented in this case. Allegedly, the operator failed to
convey information to the police that Ms. Garcia had been dragged into the house. On its
face, that allegation involves nothing more than a failure to act, i.e., a failure to pass on
the information. That failure is not an affirmative action. Even if the receipt of the 911
call gave rise to a duty to alert the police about the caller's report-an issue we do not
decide-the operator's failure to live up to that duty was not an affirmative action within
the meaning of§ 3028. It was no more than an omission. As Robb teaches, that
omission is not a basis for liability.
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Summary judgment was properly granted to Franklin County. The judgment is
affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, A.C ..
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