Pierce v. Spokane County

*172Thompson, J.

Gary and Monica Pierce brought this negligence action against Spokane County and James Dun-ham,1 a housing contractor, seeking damages for alleged negligent construction of their home. The Pierces appeal the summary judgment dismissal of the County, alleging the court erred in concluding the County owed them no duty. We affirm.

The fundamental facts are not in dispute. During construction of the house, County Building Inspector Morris Aman determined the foundation rested on fill which was potentially unstable and ordered the construction stopped pending further review of soil compaction characteristics. The County reviewed soil compaction tests performed on an adjacent lot, but did not require a soil test on the Pierces' lot. The Pierces claim the report on the soil compaction test of an adjacent lot was irrelevant to their lot and not sufficient, in any event, to meet the Uniform Building Code requirements for houses built on fill. James Dunham, the builder of the Pierce house, followed the instructions of the County and was allowed to continue building. Eventually, the County gave final approval of the house in March 1979.

That same month the Pierces purchased the house and property from Mr. Dunham, and about 3 years later noticed severe cracking in the foundation. The Pierces brought this action alleging Mr. Dunham was negligent in site preparation and that the County was negligent in inspecting the house and underlying soil. After this action was commenced, Mr. Dunham declared bankruptcy.

The Pierces claim the court erred in granting summary judgment for the County when it ruled, based on the public duty doctrine, that the County owed no duty to the Pierces. They contend the public duty doctrine is not applicable here.

When reviewing an order granting summary judg*173ment, this court must "engage in the same inquiry as the trial court." Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The court must consider the evidence in the light most favorable to the nonmoving party. Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wn.2d 528, 530, 503 P.2d 108 (1972). The "public duty doctrine" provides generally, that for one to recover from a municipal corporation in tort, it must be shown that the duty breached was owed to the injured person as an individual and not merely to the public at large.2 J & B Dev. Co. v. King Cy., 100 Wn.2d 299, 303, 669 P.2d 468, 41 A.L.R.4th 86 (1983); Chambers-Castanes v. King Cy., 100 Wn.2d 275, 284, 669 P.2d 451, 39 A.L.R.4th 671 (1983); RCW 4.96.010. To invoke the doctrine, it is necessary to decide whether the County is under a general duty to a "nebulous public", or whether that duty is aimed toward a specific claimant. Hartley v. State, 103 Wn.2d 768, 782, 698 P.2d 77 (1985); J & B Dev. Co., at 304; Honcoop v. State, 43 Wn. App. 300, 308, 716 P.2d 963 (1986); see also Annot., Modern Status of Rule Excusing Governmental Unit From Tort Liability on Theory That Only General, Not Particular, Duty Was Owed Under Circumstances, 38 A.L.R.4th 1194, 1200 (1985).

A recognized "special relationship" exception to the public duty doctrine applies when a plaintiff can prove a special or particular duty—something more than a duty owed to the general public—arising out of some direct contact or special relationship between the municipality and the plaintiff, to use due care for the benefit of the plaintiff *174or his class of persons. 1A C. Antieau, Municipal Corporation Law § 11.28 (1986); Hartley, at 781-82. A special relationship arises triggering an actionable duty where "(1) there is some form of privity between the [municipality] and the victim that sets the victim apart from the general public, and (2) there are explicit assurances of protection that give rise to reliance on the part of the victim". (Citations omitted.) Chambers-Castanes, at 286. "Privity" refers to the relationship between the municipality and any reasonably foreseeable plaintiff, and "assurances" in some instances, can be implied in the nature of the relationship. Chambers-Castanes, at 286. The County claims the Pierces were not in a special relationship with it and the only direct contact was between the County building inspectors and Mr. Dunham, the builder of their home. The Pierces were never involved with the County. We agree.

In J & B Dev. Co., a developer was issued a building permit by the King County Building Department even though the plan failed to provide for the required setback. The approving official failed to notice the error, and a later inspection did not detect it. Since the developer had dealt directly with the County's agents and justifiably relied upon the permit and inspection, the court held a special relationship existed between the developer and the County. J & B Dev. Co., at 306. See, e.g., Chambers-Castanes, at 286-87 (plaintiff's conversation with police dispatchers established privity). In Campbell v. Bellevue, 85 Wn.2d 1, 10, 530 P.2d 234 (1975), an action for alleged negligent enforcement of an electrical code, a Bellevue employee's assurances to the property's caretaker and a neighbor created privity with the homeowner. There, "a special relationship arose between the plaintiff and the City, thereby rendering the City subject to tort liability". Chambers-Castanes, at 285-86. Because there was no direct contact between the County and the Pierces, nor did a special relationship based on privity and reliance develop in this case, no actionable duty arose under this theory. See Georges v. Tudor, 16 Wn. App. 407, 556 P.2d 564 (1976).

*175Notwithstanding, governmental liability may still be recognized when legislation mandates protection of a "particular and circumscribed class of persons". Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978). Under similar facts involving county building permit and inspection requirements, that class of persons has been expressly limited to builders, however: "Further, the permit and inspection requirements do not create a duty of care applicable merely to the public in general. Rather, they apply to a limited class of citizens, the builders.” (Italics ours.) J & B Dev. Co., at 307.

Even if the holding in J & B Dev. Co. were to be limited to its facts as the dissent suggests, a commonsense interpretation of the policy behind the building code statute, RCW 19.27, mandates the protected class be limited to builders. RCW 19.27.020 sets forth the statutory purpose as follows: "The 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." (Italics ours.)

We note the court in Halvorson, at 677, found a duty running to building occupants based on language in section 27.04.020 of the Seattle Housing Code identifying conditions "dangerous and a menace to the health, safety, morals or welfare of the occupants of such buildings and of the public ..." (Italics ours.) Halvorson, at 677 n.1. Nevertheless, we conclude the purposes of a housing code are necessarily more focused on the health and safety of occupants of substandard buildings, see Hartley, at 782-83, than are the broader purposes encompassed in building codes. Moreover, an additional requirement of "culpable neglect" or "indifference" to code violations is present under a Halvorson "occupant" analysis, thus narrowing its application further. Hartley, at 783.

Finally, we concur with the statutory analysis of Georges, at 409, which concludes the general purpose of building codes, permits and inspection is to protect the general pub-*176lie. For the foregoing reasons, we hold subsequent occupants do not fall within the particular and circumscribed class of persons protected by the building code; hence, no duty arose.

Affirmed.

Green, C.J., concurs.

Although James and Karen Dunham are parties to this action, we refer to the marital community in the singular.

The dissent in substance is urging this court to apply general concepts of tort liability and ignore the "public duty doctrine" special relationship requirement, allowing trial on the basis of negligence and proximate cause. In concurring opinions in both J & B Dev. Co. v. King Cy., 100 Wn.2d 299, 309, 669 P.2d 468, 41 A.L.R.4th 86 (1983) and Chambers-Castanes v. King Cy., 100 Wn.2d 275, 290, 669 P.2d 451, 39 A.L.R.4th 671 (1983), it is strenuously urged that in line with the general trend in other jurisdictions, the "public duty doctrine" should be eliminated in favor of the application of general principles of tort law. It is apparent from the majority opinions in these two cases and Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985) that the doctrine is still viable in the State of Washington.