Pierce v. Spokane County

McInturff, J.

(dissenting)—I respectfully dissent. The majority's application of the public duty doctrine results in an injustice to the Pierces; by applying an overly technical concept of privity, the majority deprives the Pierces of the opportunity of a trial on their claim of negligence against the County. The Washington version of the special relationship exception premises legal liability on the existence of some direct contact or special relationship between the defendant and the injured party. Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). However, the majority's holding that direct contact between the plaintiff and the County is necessary to create a special relationship is too narrow in view of the previous holdings of Washington courts and the rationale therefor.

Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975) imposed liability on the City due to a special relationship between the City and the woman killed by electrocution when a City electrical inspector had examined and knew of the danger of faulty wiring in a creek bed, yet failed to comply with the ordinance requiring him to shut off the power. The woman killed was a neighbor of the homeowner in noncompliance with the electrical code. The Campbell court said at page 13:

These requirements were not only designed for the protection of the general public but more particularly for the benefit of those persons or class of persons residing within the ambit of the danger involved, a category into which the plaintiff and his neighbors readily fall.

Although there may have been some contact by the decedent's husband with the City in reporting the violation, *177there was no contact by the decedent. There was also an assurance by the City to another neighbor that the problem had been corrected. However, there is no indication in the Campbell decision that this was necessary to form a special relationship. Rather, the Campbell court focused on the purpose of the municipal code to benefit and protect people residing in the area of danger.

In deciding when an actionable duty to provide police services arises, the court in Chambers-Castanes v. King Cy., 100 Wn.2d 275, 286, 669 P.2d 451, 39 A.L.R.4th 671 (1983) held there were two requirements that create a special relationship: (1) some form of privity that sets the victim apart from the general public, and (2) assurances of protection giving rise to reliance on the part of the victim. The court said privity is used in the broad sense and refers to a relationship between the police department and any reasonably foreseeable plaintiff. Chambers-Castanes, at 286. Again, there is no indication that direct contact is required, although it was present in the case in the form of telephone calls requesting assistance from the police department. Rather, direct contact seems to be an example of one way the plaintiff becomes set apart from the general public and the consequent duty is formed.

J & B Dev. Co. v. King Cy., 100 Wn.2d 299, 304, 669 P.2d 468, 41 A.L.R.4th 86 (1983) also is not dispositive on the issue of whether direct contact is required to create a special relationship. On the element of duty, the court said, "[t]o be actionable, the duty owed must focus on the one injured, not on the public at large." J & B Dev. Co., at 304. To sustain an action against a municipality, it is necessary to decide if the duty has focused on the claimant as opposed to a general duty to a nebulous public; the "special relationship" is the focusing tool. J & B Dev. Co., at 305.

In its rationale for holding that a special relationship existed and the builder could recover for a negligently issued building permit when setback requirements were violated, the court looked at the reasons for requiring building permits. It said there was little reason to require a *178building permit if the home builder could not rely on it, J & B Dev. Co., at 306, thus negating the argument that the building permits serve only a public purpose of general conformity to building codes which gives rise to no individual duty to permittees. The court said a home builder should be able to rely on the county to furnish accurate information as well as permits, and that the issuance of a permit inherently implies the county has verified that the proposed structure is in compliance with the applicable code provisions. J & B Dev. Co., at 306.

The majority quotes language from J & B Dev. Co., at 307: "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." Because J & B Dev. Co. was concerned only with liability by the County to the builder, no home occupier being involved in the dispute, a literal reading of J & B Dev. Co. to exclude all but builders from the limited class of persons in a special relationship is incorrect. The thrust of the analysis in the opinion was examination of the reason for requiring a building permit. J & B Dev. Co., at 306.

The building permit statute, RCW 19.27.020,3 specifically indicates the Legislature sought to protect the occupants of the building itself. Occupants are a class set apart from the general public. If the purpose of requiring a permit is to protect the occupants, it defies logic to hold that only the builder, who ordinarily will not occupy the building, has the requisite special relationship with the county, enabling him to sue the county if the county negligently issues the permit. Further, direct contact by the builder should be sufficient to confer a special relationship for the benefit of at least the initial occupants, since this is the class the building permit statute is designed to protect. Campbell's And*179ing of a duty in circumstances where a neighbor or spouse contacted the City supports this holding. Campbell, at 3. I would hold the Pierces were within the class of persons, i.e., occupants, in a special relationship with the County; therefore, the County owed the Pierces, as occupants of the building, a statutory duty of care upon issuing the building permit.

I also disagree with the majority's holding that the legislative intent exception is inapplicable in this case. In Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978) the court found the Seattle Housing Code was enacted to benefit a special group of persons, along with the general public. The language of the Seattle Housing Code identified conditions dangerous to the health, safety, morals or welfare "of the occupants of such buildings and of the public". Halvorson, at 677. Halvorson distinguished the purpose of the Seattle Building Code, which was to "safeguard life or limb, health, property, and public welfare". (Italics mine.) Halvorson, at 677. Here, the language in RCW 19.27.020 is more similar to the language in the Seattle Housing Code than the language in the Seattle Building Code. The purpose of RCW 19.27.020 is to promote health, safety, and welfare of the occupants or users of buildings and structures and the general public. Occupants are a special group apart from the public that RCW 19.27.020 was enacted to benefit. Therefore, RCW 19.27.020 can be construed to create a legislative intent exception to the public duty doctrine.4

I would hold the legislative intent exception to the public duty doctrine is applicable in this case. RCW 19.27.020 was intended to specially benefit occupants of buildings and the Pierces are within this class.

*180The contention that such a holding would make the County an insurer 5 of building construction is without foundation; rather it makes the County responsible for its negligence, which is in accord with the Legislature's declaration that the government should be treated as a private individual. RCW 4.96.010.6 A private defendant's ability to pay is not considered when determining private tort liability.

[T]he purpose of imposing liability for negligence is to make the negligent wrongdoer compensate the injured party. If government agents are negligent, the innocent victims of their negligence should not have to bear the cost.

Comment, A Unified Approach to State and Municipal Tort Liability in Washington, 59 Wash. L. Rev. 533, 541 (1984) .

Fear of unlimited municipal tort liability is unfounded. First, proximate cause is as effective a limitation on government tort liability as it is on the liability of a private party. Comment, 59 Wash. L. Rev. at 541 n.56 (citing W. Prosser, Torts § 131, at 979-82 (4th ed. 1971)). Second, although our courts, in the quest for justice, have been protective of the county, in the past the county has been held liable. It is already established that a county may be liable to a homeowner employing a builder to build his home. Radach v. Gunderson, 39 Wn. App. 392, 695 P.2d 128 (1985) . Further, it is established the county may be liable to the builder himself. J & B Dev. Co. v. King Cy., supra at 312. Neither of these previous holdings resulted in unlimited municipal liability.

*181I would reverse the Superior Court's order granting summary judgment.

Reconsideration denied January 29, 1987.

Review denied by Supreme Court May 5, 1987.

RCW 19.27.020 reads:

"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 mine.)

The holding in Baerlein v. State, 92 Wn.2d 229, 595 P.2d 930 (1979) that there was no legislative intent exception in the case of security regulations is clearly inapposite to these cases involving building permits. The disclaimer in Baerlein was embodied in the statute and specifically exempted the State from any duty for a misleading, incomplete or false securities registration statement. Baerlein, at 232.

To insure is "to engage to indemnify a person against pecuniary loss from specified perils or possible liability." Black's Law Dictionary 726 (5th ed. 1979).

RCW 4.96.010 provides:

"All political subdivisions, municipal corporations, and quasi municipal corporations of the state, 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 officers, agents or employees to the same extent as if they were a private person or corporation: ..."