Court of Appeals Division III
State of Washington
Opinion Information Sheet
| Docket Number: |
29878-7 |
| Title of Case: |
Delores Weaver v. Spokane County |
| File Date: |
05/08/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Pend Oreille Superior Court |
| Docket No: | 10-2-00021-2 |
| Judgment or order under review |
| Date filed: | 04/21/2011 |
| Judge signing: | Honorable Rebecca M Baker |
JUDGES
------
| Authored by | Teresa C. Kulik |
| Concurring: | Dennis J. Sweeney |
| Stephen M. Brown |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Howard Mark Goodfriend |
| | Smith Goodfriend PS |
| | 1109 1st Ave Ste 500 |
| | Seattle, WA, 98101-2988 |
|
| | Stephen Layne Nordstrom |
| | Attorney at Law |
| | 323 S Pines Rd |
| | Spokane, WA, 99206-5319 |
Counsel for Respondent(s) |
| | Peter Joseph Johnson |
| | Johnson Law Group |
| | 103 E Indiana Ave Ste A |
| | Spokane, WA, 99207-2317 |
FILED
MAY 8, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DELORES WEAVER, as personal No. 29878-7-III
representative of the Estate of )
DUANE E. WEAVER, )
)
Appellant, )
)
v. ) PUBLISHED OPINION
)
SPOKANE COUNTY, a Washington State )
Municipal Corporation, )
)
Respondent. )
)
Kulik, J. -- About one and one-half hours after a sheriff's deputy told an
intoxicated Duane Weaver not to walk in the street, or to at least walk facing traffic, a
drunk driver struck Mr. Weaver. He died 17 months later from his injuries. Mr.
Weaver's estate (the Estate) sued Spokane County for negligence, claiming that the
deputy's failure to take Mr. Weaver into protective custody breached the duty owed to
him. The Estate asserts Mr. Weaver was incapacitated or gravely disabled by alcohol.
The court granted summary judgment to the County, concluding that the public duty
No. 29878-7-III
Weaver v. Spokane County
doctrine barred the lawsuit. Under the public duty doctrine, liability is not imposed on
the County unless the duty breached was owed to Mr. Weaver as an individual, not
merely an obligation owed to the public in general. We agree that the Estate failed to
show an individual duty owed to Mr. Weaver and, therefore, affirm summary judgment in
favor of the County.
FACTS
On February 8, 2008, at approximately midnight, Spokane County Deputy Mark
Melville saw Mr. Weaver walking on the snow berm covering the sidewalk along
Division Street in Spokane, Washington. Mr. Weaver was having a hard time
maintaining his balance on the snow piles and stepped off the snow to walk in the street.
Deputy Melville also observed at least two cars change lanes to avoid hitting Mr. Weaver.
Deputy Melville could not tell if Mr. Weaver was stumbling because of intoxication or
because of the difficulty of walking on a snow berm. Mr. Weaver was wearing dark or
mixed-color clothing.
Deputy Melville stopped Mr. Weaver and looked at Mr. Weaver's identification.
Mr. Weaver asked Deputy Melville why he was being mean to him and harassing him.
Deputy Melville told Mr. Weaver that he was concerned for Mr. Weaver's safety because
he was walking in the lanes of traffic. Mr. Weaver responded that he was having a hard
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time walking in the snow, pointed to the snow, and asked Deputy Melville what he
expected Mr. Weaver to do.
During the conversation, Deputy Melville noticed that Mr. Weaver was obviously
intoxicated. Mr. Weaver's eyes were bloodshot and watery, and Mr. Weaver was
weaving slightly from side to side. Deputy Melville did not smell alcohol on Mr.
Weaver.
According to Deputy Melville, Mr. Weaver had no problems communicating.
Deputy Melville asked Mr. Weaver where he was headed. Mr. Weaver told him that he
was headed home and said home was downtown. Downtown was about five miles away.
Deputy Melville told Mr. Weaver that he was heading the wrong way. Mr. Weaver then
indicated that he was heading somewhere else and pointed east toward a neighborhood
called Wedgewood. When asked a second time where he was headed, Mr. Weaver gave
Deputy Melville the same information. Mr. Weaver was not confused about where he
wanted to go.
Deputy Melville then advised Mr. Weaver to stay off Division Street because it
was too busy. Mr. Weaver said okay. Deputy Melville also told Mr. Weaver that if he
had to walk on the roadway, he should walk facing traffic. Deputy Melville saw Mr.
Weaver leave the roadway. Mr. Weaver started walking through a parking lot and
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No. 29878-7-III
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continued eastbound behind a building. Mr. Weaver headed toward Wedgewood. He did
not appear to be stumbling as he walked away. The contact between Deputy Melville and
Mr. Weaver lasted less than five minutes. Deputy Melville did not give Mr. Weaver a
breathalyzer test or a sobriety test because Mr. Weaver had not violated any laws that
would require tests.
Deputy Melville chose not to follow Mr. Weaver after he left the roadway and
disappeared behind a building because "[Mr. Weaver] appeared in possession of his
faculties, other than being, in my opinion, under the influence of alcohol. He said he was
going down that way. He told me he would stay off the street, I let him walk away."
Clerk's Papers (CP) at 63. Deputy Melville stated that he was concerned for Mr.
Weaver's safety because he was walking in the roadway, not because he was intoxicated.
About one and one-half hours after Deputy Melville spoke with Mr. Weaver, a
drunk driver struck Mr. Weaver on Division Street about 100 yards from where Deputy
Melville first encountered Mr. Weaver. Immediately before the impact, a witness saw
Mr. Weaver walking southbound in the northbound curb lane of Division Street. The
drunk driver hit Mr. Weaver as Mr. Weaver began walking westbound across Division
Street, directly in front of the oncoming vehicle. Based on the testimony, Mr. Weaver
was walking facing traffic prior to being struck.
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Seventeen months after the accident, Mr. Weaver died of his injuries. Mr.
Weaver's estate filed a complaint against Spokane County for damages resulting from
Mr. Weaver's medical and funeral expenses. The Estate contended that Deputy Melville,
as an agent of Spokane County, acted negligently by not protecting Mr. Weaver despite
having actual knowledge that Mr. Weaver was incapacitated or gravely disabled and in
danger of serious physical harm.
Spokane County and the Estate both moved for summary judgment. The court
granted Spokane County's motion and dismissed the complaint based on the public duty
doctrine. The court held that none of the four exceptions to the public
duty doctrine applied. Specifically, the trial court reviewed the statutory scheme of
RCW 70.96A.120 and found that the failure to enforce and legislative intent exceptions
did not apply because Mr. Weaver was not incapacitated or gravely disabled by alcohol
as a matter of law.
The Estate appeals. It contends that all four exceptions to the public duty doctrine
apply.
ANALYSIS
An appellate court reviews an order of summary judgment de novo. Hisle v. Todd
Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is
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No. 29878-7-III
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appropriate when there is "no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." CR 56(c). "A material fact is of such
a nature that it affects the outcome of the litigation." Ruff v. County of King, 125 Wn.2d
697, 703, 887 P.2d 886 (1995). Factual issues may be decided as a matter of law when
reasonable minds could reach but one conclusion or when the factual dispute is so remote
it is not material. Ruffer v. St. Frances Cabrini Hosp. of Seattle, 56 Wn. App. 625, 628,
784 P.2d 1288 (1990) (quoting Trane Co. v. Brown-Johnston, Inc., 48 Wn. App. 511,
513, 739 P.2d 737 (1987)).
The reviewing court considers the facts and inferences from the facts in the light
most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300,
45 P.3d 1068 (2002). The facts set forth must be specific and detailed. Sanders v.
Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004).
A defendant moving for summary judgment may meet the initial burden by
pointing out the absence of evidence to support the nonmoving party's case. Young v.
Key Pharm., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If the moving
defendant meets the initial showing, then the burden of proof shifts to the plaintiff. Id. at
225 (quoting Celotex, 477 U.S. at 322). The nonmoving plaintiff may not rely on mere
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speculation or unsupported assertions, facts not contained in the record, or inadmissible
hearsay. Higgins v. Stafford, 123 Wn.2d 160, 169, 866 P.2d 31 (1994) (quoting Peterick
v. State, 22 Wn. App. 163, 181, 589 P.2d 250 (1977), overruled on other grounds by
Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 709 P.2d 793 (1985)).
If, at this point, the plaintiff "'fails to make a showing sufficient to establish the
existence of an element essential to [his or her] case, and on which [he or she] will bear
the burden of proof at trial', then the trial court should grant the motion." Young, 112
Wn.2d at 225 (quoting Celotex, 477 U.S. at 322).
"As a result of the enactment in 1967 of RCW 4.96.010, which did away with
Washington's shield of absolute sovereign immunity, local governments such as a county
may be liable for damages arising out of their tortious conduct or the tortious conduct of
its employees." Cummins v. Lewis County, 156 Wn.2d 844, 853, 133 P.3d 458 (2006).
The public duty doctrine provides a framework to determine when a governmental entity
owes a duty to a plaintiff alleging negligence. Id.
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).'" Taggart v. State, 118
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Wn.2d 195, 217, 822 P.2d 243 (1992) (internal quotation marks omitted) (quoting Taylor
v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988)).
There are four exceptions to the public duty doctrine. Bailey v. Town of Forks,
108 Wn.2d 262, 268, 737 P.2d 1257 (1987). "The question whether an exception to the
public duty doctrine applies is thus another way of asking whether the [governmental
agency] had a duty to the plaintiff." Taggart, 118 Wn.2d at 218. These exceptions
include the (1) failure to enforce, (2) legislative intent, (3) special relationship, and
(4) rescue doctrine. Bailey, 108 Wn.2d at 268. "If one of these exceptions applies, the
government will be held as a matter of law to owe a duty to the individual plaintiff or to a
limited class of plaintiffs." Cummins, 156 Wn.2d at 853.
The Estate contends that an individual duty can be established through each of the
exceptions to the public duty doctrine.
1. Failure to Enforce Exception. Failure to enforce applies "where governmental
agents responsible for enforcing statutory requirements possess actual knowledge of a
statutory violation, fail to take corrective action despite a statutory duty to do so, and the
plaintiff is within the class the statute intends to protect." Bailey, 108 Wn.2d at 268.
"The statute must create a mandatory duty to take specific action to correct a violation."
Smith v. City of Kelso, 112 Wn. App. 277, 282, 48 P.3d 372 (2002). The failure to
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No. 29878-7-III
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enforce exception is to be construed narrowly. Id.
The Estate contends that RCW 70.96A.120(2) created a mandatory duty for
Spokane County to take into protective custody those persons who are incapacitated or
gravely disabled by alcohol and in public. The Estate argues that because Mr. Weaver fit
into this class, Spokane County had a duty to take him into protective custody.
The legislature enacted chapter 70.96A RCW as a comprehensive statute to
provide a continuum of treatment for alcoholism and chemical dependency.
RCW 70.96A.010, .011. RCW 70.96A.120(2) provides, in applicable part, that a person
who appears to be incapacitated or gravely disabled by alcohol or other drugs and who is
in a public place or who has threatened, attempted, or inflicted physical harm on himself,
herself, or another, shall be taken into protective custody by a peace officer and as soon
as practicable, but in no event beyond eight hours, brought to an approved treatment
program.
RCW 70.96A.020 provides definitions applicable to RCW 70.96A.120(2):
(12) "Gravely disabled by alcohol or other psychoactive chemicals"
or "gravely disabled" means that a person, as a result of the use of alcohol
or other psychoactive chemicals: (a) Is in serious physical harm resulting
from a failure to provide for his or her essential human needs of health or
safety; or (b) manifests severe deterioration in routine functioning
evidenced by a repeated and escalating loss of cognition or volitional
control over his or her actions and is not receiving care as essential for his
or her health or safety.
. . . .
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(14) "Incapacitated by alcohol or other psychoactive chemicals"
means that a person, as a result of the use of alcohol or other psychoactive
chemicals, is gravely disabled or presents a likelihood of serious harm to
himself or herself, to any other person, or to property.
. . . .
(18) "Likelihood of serious harm" means:
(a) A substantial risk that (i) Physical harm will be inflicted by an
individual upon his or her own person, as evidenced by threats or attempts
to commit suicide or inflict physical harm on one's self; (ii) physical harm
will be inflicted by an individual upon another, as evidenced by behavior
that has caused the harm or that places another person or persons in
reasonable fear of sustaining the harm; or (iii) physical harm will be
inflicted by an individual upon the property of others, as evidenced by the
behavior that has caused substantial loss or damage to the property of
others.
The minimum threshold for alcohol commitment requires more than just
a danger. In re Treatment of Mays, 116 Wn. App. 864, 872, 68 P.3d 1114 (2003)
(referencing RCW 70.96A.140(1), which uses the same statutory definitions of
incapacitated and gravely disabled by alcohol as RCW 70.96A.120(2)). Under the
"gravely disabled" standard, the potential for harm must be "'great enough to justify such
a massive curtailment of liberty.'" In re Det. of LaBelle, 107 Wn.2d 196, 204, 728 P.2d
138 (1986) (internal quotation marks omitted) (quoting In re Harris, 98 Wn.2d 276, 283,
654 P.2d 109 (1982)). Statutes that involve a significant deprivation of liberty must be
strictly construed. LaBelle, 107 Wn.2d at 205.
The Estate relies heavily on Bailey to establish that a threshold duty exists under
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RCW 70.96A.120. Bailey, 108 Wn.2d 262. We find Bailey factually distinguishable.
The officers in Bailey had actual knowledge of a statutory violation prior to their
obligation to enforce RCW 70.96A.120. See Alexander v. County of Walla Walla, 84
Wn. App. 687, 693-94, 929 P.2d 1182 (1997).
Here, based on the undisputed facts, Deputy Melville had no knowledge of a
statutory violation under RCW 70.96A.120(2). While RCW 70.96A.120(2) would have
required Deputy Melville to take Mr. Weaver into protective custody if Mr. Weaver was
incapacitated or gravely disabled by alcohol, the undisputed facts and all reasonable
inferences therefrom do not indicate that Mr. Weaver appeared in such a state. Deputy
Melville testified that Mr. Weaver acted as if he was in possession of his faculties and did
not appear to be confused. Mr. Weaver did not have difficulty communicating, and he
appeared to know where he wanted to go.
Mr. Weaver was not gravely disabled as a matter of law because the facts do not
show that he was in danger of physical harm resulting from a failure to provide for his
health and safety. Deputy Melville told Mr. Weaver that he was concerned for his safety
because he was walking on Division Street. When Deputy Melville instructed Mr.
Weaver to stay off Division Street, Mr. Weaver agreed to do so. Mr. Weaver showed that
he understood Deputy Melville and took steps to provide for his safety by leaving
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Division Street and walking toward the Wedgewood location. He also evidenced his
understanding and provided for his safety when he followed Deputy Melville's
instructions and walked facing traffic when he returned to Division Street.
The facts do not show a likelihood that serious harm would come to Mr. Weaver.
Deputy Melville said he was not concerned about Mr. Weaver walking down
Wedgewood in his condition. Mr. Weaver voluntarily left Division Street thereby
eliminating any likelihood of substantial risk. Additionally, there was no evidence that
Mr. Weaver would return to Division Street and be hit by a drunk driver or suffer any
other type of harm.
Admittedly, Deputy Melville did say that Mr. Weaver was intoxicated and showed
signs of intoxication, such as slurred speech, bloodshot and watery eyes, and weaving
slightly from side to side during their conversation. Deputy Melville also reported that
Mr. Weaver initially said that he was headed home, which was five miles away, and then
changed his story. These facts do not support the conclusion that Mr. Weaver was
gravely disabled or that he could not provide for his own health and safety.
Significantly, mere intoxication does not bring Mr. Weaver into the class of
individuals protected by RCW 70.96A.120(2). RCW 70.96A.120(2) expressly addresses
particular individuals who are incapacitated or gravely disabled by alcohol and other
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No. 29878-7-III
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drugs and who are in a public place. The statute does not apply to all persons who are
simply intoxicated. RCW 70.96A.120(2) involves a significant deprivation of liberty
because it allows an officer to take a person into protective custody against the person's
will. Therefore, RCW 70.96A.120(2) must be strictly construed. It should not be loosely
read to include all persons who exhibit signs of intoxication.
As an alternative, the Estate contends that the determination of whether Mr.
Weaver was incapacitated or gravely disabled by alcohol is an issue of fact that should be
presented to the jury. But "[w]hether a defendant owes a duty to the complaining party is
a question of law." Hostetler v. Ward, 41 Wn. App. 343, 349, 704 P.2d 1193 (1985).
Because Mr. Weaver does not fit the definition of incapacitated or gravely
disabled by alcohol, Deputy Melville did not have knowledge of a statutory violation and
did not have a duty to act under RCW 70.96A.120(2). The failure to enforce exception
does not apply.
2. Legislative Intent Exception. The legislative intent exception applies when the
terms of a regulatory statute demonstrate a clear legislative intent to identify and protect a
particular class of persons. Johnson v. State, 164 Wn. App. 740, 748, 265 P.3d 199
(2011) (quoting Honcoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988)), review
denied, 173 Wn.2d 1027 (2012). "The requirement is not that the class be small or
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No. 29878-7-III
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narrow, but that it be 'particular and circumscribed.'" Yonker v. Dep't of Soc. & Health
Servs., 85 Wn. App. 71, 79, 930 P.2d 958 (1997) (quoting Donaldson v. City of Seattle,
65 Wn. App. 661, 667, 831 P.2d 1098 (1992)). The standard for a statute to identify "a
particular and circumscribed class of persons" for the legislative intent exception is more
stringent than that required for the failure to enforce exception. Waite v. Whatcom
County, 54 Wn. App. 682, 688, 775 P.2d 967 (1989).
In Moore v. Wayman, the State Building Code Act, chapter 19.27 RCW, did not
reflect a clear intent to protect occupants when the statute stated that "'[t]he purpose of
this chapter is to promote the health, safety and welfare of the occupants or users of
buildings and structures and the general public by the provision of building codes
throughout the state.'" Moore v. Wayman, 85 Wn. App. 710, 725, 934 P.2d 707 (1997)
(quoting RCW 19.27.020). The court determined that the primary intent of the state
building code was to provide building codes throughout the state and, if the legislature
wanted to impose liability upon counties, it would have plainly spoken. Id. at 725-26.
The Estate contends that the legislature in RCW 70.96A.120(2) expressed a clear
intent to protect those who are incapacitated or gravely disabled by alcohol and who are
in a public place.
In stating the purpose of chapter 70.96A RCW, the legislature stated that "the use
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No. 29878-7-III
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of alcohol and other drugs has become a serious threat to the health of the citizens of the
state of Washington. . . . Therefore, a comprehensive statute to deal with alcoholism and
other drug addiction is necessary." RCW 70.96A.011. The policy established by
chapter 70.96A RCW is that alcoholics and intoxicated persons should not be subjected
to criminal prosecution because of their consumption of alcohol but, instead, be provided
continuum treatment within the funds available. RCW 70.96A.010.
In considering the plain language of chapter 70.96A RCW, the chapter does not
reference a clear legislative intent to protect a particular group of persons. Instead, the
statute's purpose is to protect the health of all of the citizens of the state of Washington.
As in Moore, while chapter 70.96A RCW and RCW 70.96A.120(2) mention a particular
group, alcoholics, this language is not enough to consider this group a particular and
circumscribed class of persons. The legislature clearly intended to protect and provide
services for the citizens of Washington as a general class of persons. The legislative
intent exception does not apply to Mr. Weaver.
3. Special Relationship Exception. The special relationship exception applies
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, and (2) there are express
assurances given by a public official, which (3) gives rise to justifiable reliance on the
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part of the plaintiff.'" Cummins, 156 Wn.2d at 854 (internal quotation marks omitted)
(quoting Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998)). The plaintiff
must specifically seek an express assurance and the government agent must unequivocally
give that assurance. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 789, 30
P.3d 1261 (2001). "Neither implied nor inherent assurances are sufficient." Alexander,
84 Wn. App. at 695.
In Alexander, the court determined that the special relationship exception did not
apply when police officers told Ms. Alexander that she was able to drive even though she
admitted to the officers that she had been drinking. Id. at 690-91. The court concluded
that the officers did not offer Ms. Alexander an express assurance that she was fine to
drive. Id. at 695. Additionally, any reliance on the officer's assurances was not justified
because Ms. Alexander knew she had too much to drink and should not be driving. Id. at
695-96.
Here, there is no evidence to show that Mr. Weaver specifically sought an express
assurance from Deputy Melville that walking facing traffic would protect him from harm.
The testimony of Deputy Melville shows that he stopped Mr. Weaver and warned him to
stay off Division Street. The instruction to walk facing traffic was not an assurance of
safety but, at most, a recitation of traffic laws as a way to lessen the potential for harm.
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Nor does the evidence support a conclusion that Mr. Weaver was justified in
relying on the supposed promise by Deputy Melville. Deputy Melville's warning that
Division Street was too busy should have alerted Mr. Weaver not to reenter the street. In
fact, Mr. Weaver's decision to leave Division Street infers that he understood the hazards
of walking on that roadway. As in Alexander, any reliance on Deputy Melville's
suggestion to walk facing traffic would not be justified because Mr. Weaver was aware of
the potential harm. The special relationship exception does not apply.
4. Rescue Doctrine Exception. The rescue doctrine exception creates a duty when
a governmental agent undertakes a duty to aid or warn a person in danger, the government
agent fails to exercise reasonable care, and the person to whom the aid is rendered relies
on the offer to render aid. Johnson, 164 Wn. App. at 750 (quoting Chambers-Castanes v.
King County, 100 Wn.2d 275, 285 n.3, 669 P.2d 451 (1983)). "Integral to this exception
is that the rescuer, including a state agent, gratuitously assumes the duty to warn the
endangered parties of the danger and breaches this duty by failing to warn them."
Babcock v. Mason County Fire Dist. No. 6, 101 Wn. App. 677, 685, 5 P.3d 750 (2000),
aff'd, 144 Wn.2d 774, 30 P.3d 1261 (2001).
The record does not support the conclusion that Deputy Melville gratuitously
undertook a duty to aid or warn Mr. Weaver. Deputy Melville's advice to walk facing
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No. 29878-7-III
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traffic was not a gratuitous promise of safety but a recitation of the law. Deputy Melville
warned Mr. Weaver to stay off Division Street because it was too busy. Deputy Melville
did not fail to exercise reasonable care. The rescue doctrine exception does not apply.
Conclusion. As a matter of law, Spokane County did not owe an individual duty
to Mr. Weaver. The trial court did not err in granting summary judgment to Spokane
County.
The Estate asks this court to abandon the public duty doctrine as a method of
analyzing governmental liability. We decline. As recently held in Johnson, "Until such
time as our Supreme Court overrules itself, we are bound by its holding that the public
duty doctrine applies in the State of Washington." Johnson, 164 Wn. App. at 754.
We affirm summary judgment in favor of Spokane County.
_________________________________
Kulik, J.
WE CONCUR:
__________________________________ _________________________________
Sweeney, J. Brown, J.
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