Washington Supreme Court Concludes Public Duty Doctrine Limited to Statutory Duties

The Supreme Court of Washington has ruled that the public duty doctrine, one of the fire service’s most important defenses to negligence claims, only applies to statutorily created duties, not common law duties. The ruling came in a suit case brought against the Seattle Fire Department alleging firefighters responded to the wrong address.

Let’s start with the facts of the case, as explained by the court:

  • Early in the morning on February 7, 2017, Delaura [Norg] woke up to find [her husband] Fred “making really loud sounds.”
  • Fred’s “eyes were wide open and glassy,” and he did not respond to Delaura’s attempts to wake him.
  • Delaura called 911, and she was connected to a dispatcher employed by SFD at 4:42 a.m.
  • The dispatcher immediately asked for the Norgs’ address, which Delaura accurately provided.
  • Within one minute of answering Delaura’s call, the 911 dispatcher assigned three units from two nearby SFD stations to respond.
  • The dispatcher gave the units the Norgs’ correct address, which was three blocks away from the closest station. The units left their respective stations between 4:44 and 4:46 a.m., and the dispatcher assured Delaura that “a lot of people [were] on the way.”
  • While she waited, Delaura confirmed her address to the dispatcher twice, and she followed the dispatcher’s instructions to move Fred to the floor and begin cardiopulmonary resuscitation.
  • By 4:49 a.m., all three of the dispatched units signaled that they were “[o]n, [s]cene.”
  • However, they were not at the Norgs’ apartment. Instead, the units mistakenly assumed the 911 call had come from “a nursing home in the [same] area that gets many alarms throughout the year,” and they went there instead, driving past the Norgs’ apartment building to do so.
  • When the emergency responders arrived at the nursing home, they found no indication of a medical emergency and realized they had gone to the wrong address.
  • The units then went back to the Norgs’ apartment building. After struggling to gain access, emergency responders reached the Norgs approximately 16 minutes after Delaura began speaking with the 911 dispatcher.
  • Fred was transported to the hospital, where he was diagnosed with a heart attack. He survived but allegedly suffered “severe and permanent injuries,” including brain damage due to a lack of oxygen, resulting in “cognitive deficits and impaired vision, balance[,] and ambulation.”
  • On October 12, 2018, the Norgs filed a complaint against the City, claiming that its employees were “negligent in failing to use reasonable care in responding to the Norgs’ 911 medical emergency.”  
  • They allege this negligence caused damages including medical expenses, pain and suffering, emotional distress, and lost wages and earning capacity.
  • In its answer to the Norgs’ complaint, the City asserted as one of its “affirmative defenses” that the Norgs’ “claims are barred by the public duty doctrine.”

The public duty doctrine has been one of the most important defenses that fire departments have when confronted by suits for negligence. Simply put, it holds that government owes a moral duty to the public, but not a legal enforceable duty to any particular person. As such, when someone is injured through a governmental failure, they must be able to point to a particular duty owed by government to the injured party that is separate from the general duty owed to all.

As a state law issue, each state is free to take its own approach to the public duty doctrine. Some states limit its application to a governmental failures to act; other states apply it to failures to act as well as negligence when carrying out a duty. Differentiating between the failure to act (nonfeasance) and negligence when carrying out a duty (misfeasance) can be difficult as in every affirmative act of negligence there is an inevitably a failure of some sort. This difficulty and others have led some states (for example, Illinois) to abandon the public duty doctrine entirely.

That brings us to the Supreme Court of Washington’s holding. The court opted to limit the applicability of the public duty doctrine to statutorily imposed duties, but not to common law duties. While I understand the distinction, I fail to grasp the court’s reasoning for making it. For that reason, I will leave you to the court’s explanation for its distinction:

  • The public duty doctrine operates as “a focusing tool” to ensure that governmental entities may be held liable only “to the same extent as if they were a private person or corporation.”
  • To accomplish this, the public duty doctrine provides “a mechanism for focusing upon whether a duty is actually owed to an individual claimant rather than the public at large.”
  • If the duty that the government allegedly breached was owed to the public at large, then the public duty doctrine applies; if the duty was owed to an individual, then the public duty doctrine does not apply.
  • This is a potentially “dispositive” issue because if the public duty doctrine applies, the negligence claim must be dismissed for lack of an actionable duty unless there is an applicable exception.
  • Thus, to determine whether the public duty doctrine bars the Norgs’ claim, as the City contends it does, we must identify the duty that the City allegedly breached and determine whether that duty is based on a generally applicable statute or an individually applicable common law duty. If the duty is based on the common law and owed to the Norgs individually, then the public duty doctrine does not apply, our analysis ends, and we must affirm. If the duty is based on a statute and owed to the public generally, then the public duty doctrine applies and we must determine whether there are any applicable exceptions. If an exception applies, we must affirm; if no exception applies, we must reverse.
  • The public duty doctrine does not apply here because the Norgs allege that the City breached a common law duty owed to them individually, not a statutory duty owed to the general public.

I would point out that most states do not recognize the distinction drawn by the Washington Supreme Court between statutory and common law duties. For my friends in Washington state, my condolences. Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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