Today the Washington Supreme Court issued its 5-4 decision in Norg v. City of Seattle. The case concerns the application of what we here in the state of Washington call the public duty doctrine. It’s the doctrine our courts use to decide whether a government entity owes a duty of care in a particular situation such that if it is breached, the entity can be sued.
The Washington Supreme Court has spent the last several years cleaning up the law in this area, which the court has acknowledged has followed a “sometimes wandering path.” This is the fourth case in the last four years to explain and clarify how the public duty doctrine analysis should be applied. Given that this was a 5-4 decision, I’m going to go out on a limb and suggest that perhaps there’s still more work to be done.
This is one of those tragic cases that could have easily been avoided. Here’s the basic facts. Delaura Norg woke up in the early hours of the morning to the sounds of her husband having a heart attack. She called 911 and within one minute of answering, the dispatcher for the Seattle Fire Department sent three units to the Norgs’ address, which was three blocks from the closest fire station.
The dispatcher assured Delaura that help was on its way. The dispatcher confirmed the address and then gave Delaura instructions on how to move her husband to the floor and begin CPR.
Within 6 minutes, all the aid units were on scene. Except … they weren’t. Because they hadn’t paid close enough attention to the address, they instead thought they were being dispatched to a nearby nursing home that they made regular responses to. When they went inside the nursing home and found no medical emergency, they realized they had gone to the wrong address.
By the time the emergency responders reach Delaura’s husband, he suffered brain damage due to a lack of oxygen which resulted in cognitive deficits. Allegedly, of course.
The Norgs sued, and the City argued the public duty doctrine barred their lawsuit because the City owed no tort duty to the Norgs. The Supreme Court disagreed.
The concept of the public duty doctrine comes out of the state Legislature’s waiver of sovereign immunity, which permits the state and local government entities to be liable for torts to the same extent as private individuals and entities. The problem is that government entities are also tasked with duties imposed by statute or ordinance that are unique to government. Those unique obligations reflect a general obligation to the public at large, rather than to any one particular person. A breach of those governmental obligations cannot be actionable in tort for that reason. There must be a duty to an individual before anyone—whether governmental or private—can be held liable in tort. As our court likes to say “a duty to all is a duty to no one.”
To determine whether a plaintiff was owed a specific duty, the courts created the public duty doctrine framework. If the public duty doctrine applies, then the lawsuit must be dismissed, unless there is an applicable exception. There are at least 4 exceptions: (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) special relationship. There has been an INCREDIBLE amount of litigation over those exceptions, but they don’t need to be discussed for purposes of this opinion. (Thank goodness!)
So a lot of confusion has arisen because the courts haven’t always been clear about when and to what extent the public duty doctrine analysis applies. Is it anytime a government entity is involved? Or something more narrow?
The court has tried to clarify the answer to these questions over the last few years. The court has essentially held that the public duty doctrine is not applicable to common law negligence claims vs. claims that arise out of statutory duties. It doesn’t matter that the defendant is a governmental entity. As long as the alleged duty is a common law duty, the case proceeds as any other tort lawsuit.
The key issue, then, is to identify the duty the plaintiffs alleged the defendant violated—is it based on a generally applicable statute or ordinance or a common law duty?
In this case, the court held the Norgs alleged a breach of a common law duty owed to them, so the public duty doctrine does not apply and does not require dismissal of the case.
The City argued that it had no common law duty to respond to 911 calls, relying on a prior case, Cummins v. Lewis County, that it argued held a response to a 911 call cannot be negligent as a matter of law. The majority goes to great pains to explain why the Cummins decision doesn’t actually say what the defense (and the dissent) says it does, pointing out that the parties themselves in Cummins treated that case, also a 911 call case, as if the public duty doctrine applied. In other words, there was no argument in Cummins that the public duty doctrine did not apply—the parties assumed it did and were simply arguing over whether an exception to the public duty doctrine applied. And that was the basis for the court’s ruling in that case.
And then the majority says this, ultimately quoting the late-Justice Ruth Bader Ginsburg:
The City and the dissent contend that Cummins stands for the broad proposition that “the government has no common law duty to respond to 911 calls, and absent an exception to the public duty doctrine, a negligence claim regarding a 911 response to [a] heart attack caller fail[s] as a matter of law.” City of Seattle’s Suppl. Br. at 12; see also dissent at 7-9 & n.3. This is incorrect. Like any opinion, Cummins must be read in the context of the particular facts, procedure, and legal arguments presented. Cf. State v. Molnar, 198 Wn.2d 500, 515, 497 P.3d 858 (2021) (“‘But the first rule of case law as well as statutory interpretation is: Read on.’” (quoting Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 36, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012))).
Read on, indeed. This is good advice for everyone, really.
The court goes on to explain that the Norgs’ lawsuit did not claim the City breached any duty imposed by statute, Rather it invoked the common law duty of reasonable care every individual owes to refrain from causing foreseeable harm in interactions to others. While in general there is no duty to aid someone, a common law duty of care arises when one party begins to assist an individual needing help. In this case, Norgs asserted the City, through its dispatcher, established a direct and particularized relationship with the Norgs. And once that happened, the City owed the Norgs a duty of reasonable care.
Unlike in Cummins, Delaura had an extensive interaction with the dispatcher. She requested help, was assured that medical aid was on its way, and confirmed her address to the dispatcher multiple times. The emergency medical assistance went to the wrong address, however. That could be negligence. Such a claim would not be dismissed if it arose against a private ambulance service, which can be sued for negligence.
The court noted that barring the Norgs’ because it was made against a governmental ambulance service would mean the government has less tort liability than a comparable private entity, which is not what the Legislature said it was doing when it waived sovereign immunity.
The dissent accuses the majority of wanting to get rid of the public duty doctrine so much it appears to ascribe to the philosophy of “move fast and break things.” The dissent accuses the majority of “torturing our rules of precedent.” Then it accuses the majority of “creating virtually limitless liability.” All in the introduction.
Soooo that gives you the flavor of the dissent.
I won’t get into the dissent further than to say that the majority points out that just because the City owes a duty does not mean it will be held liable. Because the plaintiffs still must prove the City breached the duty and the breach caused damages. Those are not foregone conclusions. Further, whether a government entity owes a tort duty is not an all or nothing proposition. It is a fact-specific inquiry. In other words, this opinion does not stand for the proposition that all negligence cases against 911/EMS responses can now go forward. The facts of the case matter, which is why the facts of this particular case mattered to the majority’s analysis.
The sky is not falling.
