City Of Seattle, V. Delaura & Fred B. Norg ( 2021 )

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DELAURA NORG, as Litigation Guardian No. 80836-2-I
ad Litem for her husband, FRED B.
NORG, an incapacitated man, and DIVISION ONE
DELAURA NORG, individually,
PUBLISHED OPINION
Plaintiffs/Respondents,
v.
CITY OF SEATTLE
Defendant/Appellant.
ANDRUS, A.C.J. — This case asks us to decide whether the public duty
doctrine applies in the context of a local government’s alleged negligence in
responding to a 911 call for emergency medical assistance. Delaura and Fred
Norg sued the City of Seattle (the City) claiming paramedics went to the wrong
address after Fred suffered a heart attack and Delaura called 911 for help. The
trial court concluded the public duty doctrine did not bar the Norgs’ negligence
claim. We granted discretionary review and now affirm the trial court’s partial
summary judgment rulings and the order striking the City’s affirmative defense.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80836-2-I/2
FACTUAL BACKGROUND
In the early morning hours of February 7, 2017, Delaura Norg awoke to find
her husband, Fred, having a heart attack. She called 911 at 4:42 am. Delaura
gave the dispatcher the couple’s address: 6900 East Green Lake Way North unit
306. The dispatcher alerted the Seattle Fire Department (SFD) at 4:43 am and its
emergency medical units at Station 16, three blocks away, immediately responded
to the call. The dispatcher told Delaura “they are on the way” and instructed her
to begin CPR.
Despite receiving the correct address, the responding SFD units assumed
they were being dispatched to a nursing home at 6720 East Green Lake Way
North, four blocks away from the Norgs’ building. The responders drove past the
Norgs’ apartment and arrived at the nursing home at 4:46 am. They entered the
nursing home and proceeded to apartment 306.
Meanwhile, the 911 dispatcher continued to assure a distraught Delaura
that help would arrive imminently. The dispatcher assured Delaura eight separate
times that responders were arriving soon or had already arrived. Less than five
minutes into the call, the dispatcher told Delaura that “they are at the building.”
Seven minutes in, the dispatcher stated “They’re coming up to your room now.” A
minute later, he stated “they are coming up to your door now.” Eleven minutes in,
the dispatcher instructed Delaura not to leave her apartment to let the responders
into the building and instead to remain with her husband doing chest
compressions. The dispatcher remained on the phone with Delaura for nearly 17
minutes. The SFD units, after realizing their mistake, verified the address and
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arrived at the Norgs’ apartment at 4:58 am, fifteen minutes after they were
dispatched. Fred survived the heart attack but suffered an anoxic brain injury and
sustained permanent cognitive and neurological deficits.
The Norgs filed this suit against the City in October 2018, alleging that the
City was negligent in responding to Delaura’s 911 call and the resulting delay in
administering emergency medical care aggravated his injuries. The City moved
for summary judgment, arguing the public duty doctrine barred the Norgs’ claims.
The Norgs moved for partial summary judgment on the issue of whether the City
owed them an actionable common law duty of ordinary care under the
circumstances. The trial court granted the Norgs’ motion for partial summary
judgment and struck the City’s public duty doctrine defense. The trial court certified
its rulings for an interlocutory appeal, and we granted discretionary review.
ANALYSIS
The sole issue on appeal is whether the public duty doctrine bars the Norgs’
negligence claim as a matter of law. Appellate courts review a summary judgment
order de novo and perform the same inquiry as the trial court. Borton & Sons, Inc.
v. Burbank Props., LLC, 196 Wn.2d 199, 205, 471 P.3d 871 (2020). A moving
party is entitled to summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact.” CR 56(c). We view all facts
and reasonable inferences in light most favorable to the non-moving party. Owen
v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).
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The City argues that the public duty doctrine bars the Norgs’ claim because
the duty to respond to any 911 call is a public duty. We disagree for three reasons.
First, the source of the duty in this case is neither a statute nor an ordinance but a
common law duty to exercise reasonable care in providing emergency medical
services. Second, most of the Supreme Court’s prior 911 call cases involved
requests for police protection from a third party, not a request for emergency
medical services—a key distinguishing factor. Third, the Supreme Court’s recent
public duty doctrine cases, Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537,
549, 442 P.3d 608 (2019), and Mancini v. City of Tacoma, 196 Wn.2d 864, 879,
479 P.3d 656 (2021), support the conclusion that the doctrine does not apply here.
1. Source of Duty
In 1961, the legislature repealed the State’s sovereign immunity for
governmental functions. LAWS OF 1961, ch. 136 § 1 (codified as RCW 4.92.090).
And in 1967, the legislature did the same for local governments. LAWS OF 1967,
ch. 164, § 1 (codified as RCW 4.96.010). RCW 4.96.010 now states:
All local governmental entities, whether acting in a governmental or
proprietary capacity, shall be liable for damages arising out of their
tortious conduct, or the tortious conduct of their past or present
officers, employees, or volunteers while performing or in good faith
purporting to perform their official duties, to the same extent as if they
were a private person or corporation.
Under this statute, governmental liability is not unlimited. Evangelical United
Brethren Church of Adna v. State, 67 Wn.2d 246, 252-53, 407 P.2d 440 (1965).
State or local governments are liable for “damages only when such damages arise
out of ‘tortious conduct to the same extent as if it were a private person or
corporation.’” Id. The official conduct giving rise to liability must be tortious and it
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must be analogous, in some degree, to conduct that would lead to liability of a
private person or corporation. Id.To sustain an actionable negligence claim, a plaintiff must establish four
essential elements: duty, breach, proximate cause, and resulting harm. Mancini,
196 Wn.2d at 879. To establish a duty in tort against a governmental entity, a
plaintiff must show that the duty breached was owed to an individual and was not
a general obligation owed to the public. Beltran-Serrano, 193 Wn.2d at 549.
General obligations owed to the public are those duties mandated by statute
or ordinance. Munich v. Skagit Emergency Comm’n Ctr., 175 Wn.2d 871, 888-89,
288 P.3d 328 (2012) (Chambers, J., concurring, joined by four justices). 1 The
doctrine does not apply to duties that governments have in common with private
persons. Id. “The distinction between mandated duties and common law duties
is important because duties imposed by common law are owed to all those
foreseeably harmed by the breach of the duty.” Id. at 891.
The holding in Munich followed an earlier concurrence from Justice
Chambers in Cummins v. Lewis County, 156 Wn.2d 844, 133 P.3d 458 (2006). In
that case, Cummins sued the city of Centralia and Lewis County, alleging they
were negligent in responding to her husband’s 911 call while he was suffering a
heart attack. Id. at 850. The 911 dispatcher received a call in which a man said
“1018 E Street, heart attack” before hanging up. Id. at 848. Mistakenly believing
the call was a hoax, the dispatcher did not send any emergency services to the
address. Id. at 849. The caller, Cummins’ husband, died of a heart attack and
1In Beltran-Serrano, the Supreme Court acknowledged that Justice Chambers’ concurrence in
Munich is binding precedent. 193 Wn.2d at 549.
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Cummins brought a wrongful death action alleging negligence by the 911 dispatch
unit and the Centralia Police Department. Id. at 850. Cummins’ claim was
premised on the statutory duty to provide a “rapid response” to 911 calls under
RCW 38.52.500. Id. at 857. The trial court granted summary judgment, concluding
that the suit was barred by the public duty doctrine. Id. at 850.
The Supreme Court agreed. In discussing the “threshold” issue of whether
the city or county owed a duty to Cummins’ husband, the court assumed, without
deciding, that the duty at issue was one owed to the public; the sole question was
whether Cummins had proved the “special relationship” exception to the public
duty doctrine. Id. at 853-54. Under this exception, a government entity may be
held liable for negligently performing a public duty if the plaintiff can prove
circumstances setting his relationship with the government apart from that of the
general public. 2 Id. at 854. The court held that Cummins failed to establish that
her husband had had a direct telephone conversation with the 911 dispatcher or
that the dispatcher had affirmatively promised to provide assistance. Id. at 855.
Without this evidence, it concluded, the widow failed to establish the existence of
a special relationship. Id.
But Justice Chambers, in a lengthy concurrence, set out the jurisprudential
basis for what would subsequently become the holding in Munich. He argued that
the duty to exercise reasonable care in providing emergency medical services was
not, in fact, a public duty because the provision of those services “is not a unique
2 The “special relationship” arises 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; (2) there are
express assurances given by a public official, which (3) gives rise to justifiable reliance on the part
of the plaintiff. Cummins, 156 Wn.2d at 854.
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function of government” required by statute or ordinance. Id. at 872. He noted
that the public duty doctrine had been “regularly misunderstood and misapplied”
by Washington courts. Id. at 861. The doctrine, he contended, was designed to
help determine to whom the government owed a duty, not to determine the actual
duty owed. Id. Until the court’s decision in Chambers-Castanes v. King County,
100 Wn.2d 275, 669 P.2d 451 (1983), he wrote, “the principles that would
ultimately become known as the public duty doctrine were primarily applied only
when the court first found some type of duty annunciated in a statute or code.”
Cummins, 156 Wn.2d at 864. The Chambers-Castanes case, in Justice
Chambers’ opinion, was a “poorly analyzed case” that “greatly confused the
doctrine.” Id. at 866-67.
Chambers-Castanes involved a 911 emergency call for police assistance
during the commission of a crime. Id. at 869. A husband and wife, driving through
Woodinville during rush hour, were assaulted by men in a pickup, leading several
people to call 911. Chambers-Castanes, 100 Wn.2d at 278-80. The police did not
respond for nearly an hour and a half. Id. at 280. According to Justice Chambers,
Chambers-Castanes conflated the concept of a tort duty of care and the “special
relationship” exception when it concluded that an actionable duty to provide police
services will arise only if the special relationship test is met. Cummins, 156 Wn.2d
at 869, citing Chambers-Castanes, 100 Wn.2d at 278. Justice Chambers criticized
the court’s confusing application of the exceptions to the public duty doctrine and
pointed to the absurdity of allowing 911 operators to ignore emergency calls with
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impunity simply because they did not offer sufficient assurances to a caller to
create a “special relationship.” Id. at 861.
Justice Chambers disagreed with the majority’s application of the public
duty doctrine in Cummins because the policy considerations relating to calls for
medical treatment were fundamentally different from calls for police assistance
during a crime. Id. at 872. Providing emergency life-saving medical help, he noted,
is not a function unique to government. Id. “Hospitals, ambulance services, private
persons, and corporations respond to such calls.” Id. Indeed, under RCW
35.21.766(2), while regional fire protection service agencies are authorized to
establish ambulance service to be operated as a public utility, they may not
compete with existing private ambulance service “unless the legislative authority
of the city or town determines that the city or town . . . is not adequately served by
an existing private ambulance service.” As Justice Chambers wrote, “given that
emergency medical assistance is not a unique function of government, when
government decides to handle requests for emergency care, it should be held
liable for damages for its tortious conduct in the same way as a private person or
corporation.” Id. at 872. Justice Chambers stated:
This court should analyze 911 calls for medical emergencies based
not upon confused mechanical application of the public duty doctrine
but upon policy considerations, foreseeability, and proximate cause.
A government entity that encourages people to call it for medical
emergencies should be liable for the foreseeable consequences
proximately caused by its failure to exercise ordinary care. Contrary
to some concerns, application of traditional tort principles will not
open Pandora’s box and release dread evils upon an innocent world.
In fact, government should be accountable for its actions just as a
private party is held accountable. Accountability encourages
competency.
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Id. at 873. Justice Chambers concurred in the result in Cummins, not because the
public duty doctrine barred the claim, but because under the facts of that case, the
county had not ignored the 911 call and had investigated the identity of the caller
and the location from which the call was made. Id. at 874. The county’s 911
enhanced system identified the call as having been made from a pay phone, not
from the Cummins’ residence. Id. A police officer sent to investigate spoke to an
11-year-old boy who stated he had made a prank 911 call from that pay phone.
Id. at 874. The county’s response, Justice Chambers concluded, fell within the
standard of ordinary care. Id.Justice Chambers’ concurrences in Cummins and Munich stand for the
proposition that the public duty doctrine applies only when the duty at issue arises
out of a statute or ordinance mandating action by the government entity. In this
case, the City cites no statute or ordinance mandating that municipal fire
departments provide emergency medical services. Instead, the City has chosen
to provide these services to its residents. Before 1970, when the first group of
Seattle firefighters began their training as paramedics in cooperation with
Harborview Medical Center and the University of Washington, municipalities did
not traditionally provide emergency on-site medical services. 3
Under common law, any entity, public or private, that undertakes to provide
emergency medical services to others owes a duty of care to those to whom it
provides such services. In Beltran-Serrano, our Supreme Court clearly held that
“[a]t common law, every individual owes a duty of reasonable care to refrain from
3 See Medic One, SEATTLE.GOV, http://www.seattle.gov/fire/about-us/about-the-
department/operations/medic-one.
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causing foreseeable harm in interactions with others.” 193 Wn.2d at 550 (citing
Restatement (Second) of Torts § 281 cmt. e). Under the Restatement (Second)
of Torts § 323 (1965),
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other’s person or things, is subject to liability to the
other for physical harm resulting from his failure to exercise
reasonable care . . . if (a) his failure to exercise such care increases
the risk of such harm, or (b) the harm is suffered because of the
other’s reliance upon the undertaking. 4
Private ambulance service providers, providing emergency medical services, have
historically been subjected to civil suit for negligence. See Vogreg v. Shepard
Ambulance Co., 47 Wn.2d 659, 289 P.2d 350 (1955) (woman fell out of ambulance
while riding with paralyzed husband to new home); Scott v. Rainbow Ambulance
Service, Inc., 75 Wn.2d 494, 452 P.2d 220 (1969) (ambulance service sued after
stretcher tipped over while being wheeled to ambulance allegedly causing
additional injury to patient). Under RCW 4.96.010, if the City chooses to provide
emergency medical services, and it is not statutorily mandated to do so, it should
be treated no differently than private parties providing the same services under
similar circumstances.
2. Supreme Court’s Prior 911 Call Cases
The City contends that under well-established Supreme Court precedent,
no tort liability can ever arise out of a governmental response to a 911 call because
4 The legislature appears to have recognized this common law duty when it passed RCW 4.24.300.
Under RCW 4.24.300(1), anyone providing emergency medical services without compensation or
the expectation of compensation at the scene of an emergency or transports injured persons for
emergency medical treatment are liable for civil damages only for acts or omissions constituting
“gross negligence or willful or wanton misconduct.” But “[a]ny person rendering emergency care
during the course of regular employment and receiving compensation or expecting to receive
compensation for rendering such care is excluded from the protection” of that statute.
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the duty to respond to such calls is a duty owed to the public in general. But the
City misreads the holdings of these cases. While the Supreme Court has
addressed the public duty doctrine in cases involving 911 calls, most of these
cases involved requests for police protection from a third party, not requests for
emergency medical services. These cases are thus distinguishable because, as
Justice Chambers noted in Cummins, providing police protection is an inherent
government function, while delivering emergency medical services is not.
In Munich, the estate of a man shot and killed by a neighbor brought a
wrongful death action against the county alleging that its emergency
communications center was negligent in coding his 911 call for police assistance
as a non-emergency and delaying dispatching police to the scene. 175 Wn.2d at
874. The Supreme Court identified duties at issue in that case as arising from two
statutes, RCW 36.28.010, requiring county sheriffs to preserve the peace, and
RCW 38.52.020, authorizing local governments to create emergency management
organizations to protect the public peace and to preserve the lives of the people of
the state. Id. at 878. The Supreme Court explicitly noted that “[t]he County’s duty
in this case was mandated by statute; no common law duty is at issue.” Id. n. 2.
Because the duties at issue were owed to the general public, and not to the
decedent, the court’s analysis in Munich hinged on whether the estate had
established the elements of the “special relationship” exception to the public duty
doctrine. Id. at 877. It concluded the estate had not done so. Id. at 885. Because
the duty at issue in this case is a common law duty, and not a duty mandated by
statute, Munich is not dispositive.
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Similarly, in Bratton v. Welp, 145 Wn.2d 572, 39 P.3d 959 (2002), a shooting
victim’s estate and family sued the county, claiming its 911 emergency operator
was negligent in failing to provide timely help to protect them from a violent
neighbor. The family had made several calls to 911 reporting threats from the
neighbor. Id.at 574-75. The Supreme Court held that under the “special
relationship” exception to the public duty doctrine, there were genuine issues of
material fact whether the county made express assurances to the family that it
would send police if the neighbor threatened them again. Id. at 577. But Justice
Chambers noted in his concurrence in Munich that the court assumed in Bratton
that “there is a mandated duty under RCW 36.28.010 to preserve the peace and
arrest those who disturb it and have held a special relationship is created by the
assurances of a 911 operator upon which the plaintiff reasonably relies.” 175
Wn.2d at 894. Again, the duty at issue was indisputably a duty owed to the public
in general. See also Beal for Martinez v. City of Seattle, 134 Wn.2d 769, 784-85,
954 P.2d 237 (1998) (woman murdered because of delayed response to 911 call
in which she sought protection from estranged husband; police duty to protect
person from criminal acts of third party is general obligation owed to public in
general).
The only case involving a 911 call for emergency medical services is
Cummins. But that case is, as Justice Chambers stated in his concurrence,
distinguishable from Bratton and Beal – a 911 call for emergency medical
treatment is fundamentally different from a request for police protection from
violent assault. 156 Wn.2d at 872. Providing police assistance to reported crimes
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is an inherent government function; providing emergency medical assistance is
not.
3. The Supreme Court’s Recent Decisions in Beltran-Serrano and Mancini
Finally, the City contends the Supreme Court’s recent decisions in Beltran-
Serrano and Mancini do not apply to this case. In Beltran-Serrano, a Tacoma
Police officer shot a mentally ill homeless man after the officer approached him to
discuss the city’s panhandling laws. 193 Wn.2d at 540-41. When the man, who
did not understand English, ran from the officer, she shot him multiple times. Id.
Beltran-Serrano sued for assault, battery, and negligence, arguing that the officer
unreasonably escalated the situation, causing his injuries. Id. at 542. The City
argued that the officer did not owe a duty to Beltran-Serrano under the public duty
doctrine. Id. at 542. The Supreme Court disagreed, reasoning that “every
individual owes a duty of reasonable care to refrain from causing foreseeable harm
in interactions with others. . . . This duty applies in the context of law enforcement
and encompasses the duty to refrain from directly causing harm to another through
affirmative acts of misfeasance.” Id. at 550. It held that despite the government’s
“statutorily imposed obligation to provide police services, enforce the law, and keep
the peace,” it still owes a specific tort duty of reasonable care to individuals with
whom its agents affirmatively interact. Id. at 552.
In Mancini v. City of Tacoma, the Supreme Court again held that the public
duty doctrine did not bar a negligence claim against a municipality. 196 Wn.2d at
886. Mancini sued the City of Tacoma after several police officers executed a
search warrant on the wrong apartment, broke down Mancini’s door with a
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battering ram, entered her apartment with guns drawn, handcuffed her and
dragged her, clad only in a nightgown, to the street. Id. at 871. The Supreme
Court concluded that the public duty doctrine did not apply, recognizing
a difference in the public duty doctrine context between
“misfeasance” and “nonfeasance.” Unlike government actors in
many public duty doctrine cases who fail to protect a plaintiff from
harm caused by a third party or entity, the police in this case
personally caused the harm of which Mancini complains. In such a
case of affirmative misfeasance, all individuals have a duty to
exercise reasonable care—including when they invade another’s
property.
Id. at 885-86 (citations omitted).
The City seeks to distinguish Beltran-Serrano and Mancini on the basis that
the affirmative acts of misfeasance in each of those cases directly caused the
plaintiff’s injuries, whereas the paramedics’ nonfeasance—their failure to show up
at the Norg apartment in a timely manner—did not cause Fred to suffer a heart
attack. There are two problems with this argument. First, the City misunderstands
the meaning of the words “misfeasance” and “nonfeasance.” Misfeasance is “[a]
lawful act performed in a wrongful manner.” BLACK’S LAW DICTIONARY 1197 (11th
ed. 2019). Nonfeasance is “[t]he failure to act when a duty to act exists.” BLACK’S
LAW DICTIONARY 1265 (11th ed. 2019). Responding to a call for emergency
medical help but doing so in a negligent manner is performing a lawful act in a
wrongful manner; it is not the failure to act.
Second, the City is conflating the concepts of duty and causation. Under
section 323 of the Restatement, the Norgs need not prove that the paramedics
caused Fred to suffer a heart attack. They need only prove that the negligence
increased the risk of harm to Fred. The Norgs allege that the delay in responding
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to the correct address caused Fred to experience oxygen deprivation, causing
permanent brain damage. Whether the Norgs can establish a causal link between
the paramedics’ delay and Fred’s brain injury remains unresolved at this stage in
the litigation.
Because the duty at issue in this case is not a public duty owed to the
general public at large but is instead a common law duty to exercise reasonable
care in providing emergency medical services, the public duty doctrine does not
apply and the trial court did not err in so concluding.
We therefore affirm.
WE CONCUR:
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