IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALEKSEY ZORCHENKO, DIVISION ONE Appellant, No. 85449-6-I v. PUBLISHED OPINION CITY OF FEDERAL WAY, a municipal corporation; and DERRICK BOWERS, individually,
Respondents.
DANICA OSTROM,
Plaintiff,
v.
DERRICK BOWERS, individually, CHRISTI ANDERSON, individually, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ASSURANT, and VOYAGER INDEMNITY INSURANCE COMPANY; and the CITY OF FEDERAL WAY,
Defendants.
DWYER, J. — A governmental entity’s breach of a duty owed to the public
at large is, as a matter of law, insufficient to sustain a tort claim for negligence.
Here, the trial court dismissed negligence claims asserted against the City of
Federal Way (the City), concluding that, in responding to a nonemergency report
of a motor vehicle collision, the City owed a duty to the general public, but not a No. 85449-6-I/2
specific duty to the individuals who reported the incident. The trial court did not
err in so concluding and granting the City’s motion for summary judgment. We
affirm.
I
On the afternoon of August 2, 2020, Aleksey and Nina Zorchenko were
travelling on Military Road in Federal Way when their vehicle was struck from
behind by a vehicle driven by Danica Ostrom. No one was injured, and the
vehicles sustained only “relatively minor” damage. The Zorchenkos and Ostrom
moved both vehicles off of the roadway and on to the shoulder of the roadway.
Initially, the parties agreed to simply exchange information, but Nina later
decided to call 911 for “assistance obtaining a police report” and permission to
move the vehicles from the scene of the collision.1
Approximately 50 minutes after Nina placed the 911 call, Federal Way
Police Officer Joell Giger arrived at the scene of the collision. Officer Giger
parked her patrol vehicle behind both vehicles, at an angle, so that her left front
tire was close to the white stripe that marked the outer boundary of the roadway,
and the rear of the vehicle extended several feet onto the paved shoulder.
Officer Giger activated three sets of flashing lights to alert oncoming traffic to the
vehicles’ location on the shoulder. Because the vehicles were visible to
oncoming traffic and did not impede the lanes of travel, Officer Giger did not
need to direct traffic.
1 Because the Zorchenkos share the same last name, we use their first names for clarity.
2 No. 85449-6-I/3
The two drivers, Aleksey and Ostrom, were standing on a grassy shoulder
beyond the paved shoulder where the vehicles were parked when the police
officer arrived. Officer Giger approached them, obtained basic information about
the collision, and collected license, registration, and insurance documents from
each. She returned to her patrol vehicle to enter the data and prepare a collision
report.
A few seconds later, a van driven by Derrick Bowers violently sideswiped
Officer Giger’s patrol car. The van veered back into the roadway and then turned
sharply to the right and struck the Zorchenkos’ vehicle, pushing it onto the grassy
shoulder, where Aleksey was standing. Officer Giger called for additional law
enforcement and medical assistance and then got out of her vehicle. Seeing that
Aleksey was pinned underneath the van and was seriously injured, Officer Giger
worked to administer emergency medical aid. Additional police officers and
emergency medical personnel arrived, extricated Aleksey, and transported him to
the hospital.
Aleksey filed suit against Bowers, Ostrom, and the City.2 As to the City,
Aleksey’s complaint alleged that its employee, Officer Giger, negligently failed to
park her patrol vehicle in a manner that could have avoided the collision with
Bowers’s van or mitigated its impact. In a later-filed declaration, Aleksey also
asserted that Officer Giger negligently failed to advise him to remain in his
vehicle while she prepared the report. Ostrom also filed a complaint against
2 Zorchenko subsequently amended his complaint, adding Ostrom’s employer at the time
of the collision as a defendant.
3 No. 85449-6-I/4
Bowers, the City, and others. Ostrom similarly alleged that Officer Giger
negligently parked her patrol vehicle. The trial court consolidated the two
lawsuits.
The City moved for summary judgment, arguing that the public duty
doctrine barred the claims premised on Officer Giger’s allegedly negligent
response to the reported collision. The trial court granted the City’s motion and
dismissed the claims against the City.3 The trial court entered an order certifying
the summary judgment order for immediate appeal. See CR 54(b) (allowing trial
court to direct entry of final judgment as to one or more, but fewer than all the
claims presented, upon findings that there is no just reason for delay).
II
The sole issue presented on appeal is whether the trial court erred in
applying the public duty doctrine and dismissing the negligence claims against
the City.
When reviewing an order on summary judgment, we engage in the same
inquiry as the trial court. Cummins v. Lewis County, 156 Wn.2d 844, 852, 133
P.3d 458 (2006). Summary judgment is proper when the record demonstrates
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Cummins, 156 Wn.2d at 852; CR 56(c). We
consider all facts and reasonable inferences in the light most favorable to the
3 The trial court initially granted the City’s motion only in part, but later on reconsideration,
granted the motion in its entirety.
4 No. 85449-6-I/5
nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774,
784, 30 P.3d 1261 (2001).
In a negligence action, a court must determine as a threshold matter,
whether an actionable duty was owed to the plaintiff. Babcock, 144 Wn.2d at
784-85. That determination is a question of law we review de novo. Cummins,
156 Wn.2d at 852.
III
In 1961, the legislature enacted a statute waiving the State’s sovereign
immunity for governmental functions. LAWS OF 1961, ch. 136 § 1 (codified as
RCW 4.92.090). In 1967, the legislature did the same for local governments.
LAWS OF 1967, ch. 164, § 1 (codified as RCW 4.96.010). RCW 4.96.010(1)
provides, in relevant part:
All local governmental entities, 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 past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.[4]
Under this statute, the liability of local governments under tort law is not
unlimited, as governments are liable only to “the same extent” as private parties.
RCW 4.96.010(1); Norg v. City of Seattle, 200 Wn.2d 749, 756, 522 P.3d 580
(2023). It is well settled that local governments are liable for damages only when
they arise from “‘official conduct’” that is both tortious and “‘analogous’” to
4 The statute has been amended several times but has not changed with respect to the
language providing that local governments are liable for tortious conduct “to the same extent as if they were a private person or corporation.” See, e.g., LAWS OF 2011, ch. 258, § 10; LAWS OF 2001, ch. 119, § 1.
5 No. 85449-6-I/6
conduct that would potentially subject a private person or corporation to liability.
Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 887, 288 P.3d 328
(2012) (Chambers, J., concurring) (quoting United Brethren Church v. State, 67
Wn.2d 246, 253, 407 P.2d 440 (1965)).5 The requirement of analogous conduct
reduces the scope of liability because governments have a variety of duties
mandated by statute or ordinance that private individuals do not. For example,
private entities are not generally required by law to issue permits, conduct
inspections, prepare official reports, or maintain the peace, and therefore incur
no liability in connection with these types of activities. Munich, 175 Wn.2d at 887
(Chambers, J., concurring).
To sustain a negligence claim, a plaintiff must establish four elements:
duty, breach, proximate cause, and resulting harm. Mancini v. City of Tacoma,
196 Wn.2d 864, 879, 479 P.3d 656 (2021). As to the element of duty, courts
have historically applied a rule that public officials carrying out duties under
municipal law owe a duty to the general public, but have no actionable duty in tort
to particular individuals. Munich, 175 Wn.2d at 888 (Chambers, J., concurring).
This rule has become known as the “public duty doctrine” and has been applied
broadly in the context of tort actions against state and local government. Munich,
175 Wn.2d at 888 (Chambers, J. concurring). To establish a duty in tort against
a governmental entity under this doctrine, a plaintiff must show that the duty
5 In several subsequent decisions, our Supreme Court has recognized Justice
Chambers’s concurrence in Munich, which expressed the views of five justices, as precedential. See Norg, 200 Wn.2d at 757.
6 No. 85449-6-I/7
breached was owed to an individual, rather than to the public as a whole.
Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549, 442 P.3d 608 (2019).
IV
Zorchenko argues that, regardless of whether Officer Giger’s actions are
characterized as affirmative acts or as omissions, the 911 call reporting the
collision “triggered” a specific duty owed to him by the City and, therefore, as a
matter of law, the public duty doctrine does not apply as a bar to his claim.6 This
is so, Zorchenko asserts, because the Supreme Court held in Norg that “9-1-1
responders owe a duty to those at the scene of the call” because placement of a
911 call creates a “special relationship” between the City and those seeking
assistance. In so arguing, Zorchenko misinterprets the decision in Norg. And, in
any event, the facts here differ from those in Norg in material respects.
In Norg, the Supreme Court addressed whether the public duty doctrine
barred a claim of negligence in connection with the City of Seattle’s provision of
emergency medical services. 200 Wn.2d at 755, 764. Delaura Norg awoke to
find her husband in medical distress and called 911. Norg, 200 Wn.2d at 753.
Delaura spoke with a dispatcher employed by the City of Seattle, and provided
her address. Norg, 200 Wn.2d at 753. The 911 dispatcher assigned three units
6 In the public duty doctrine context, Washington cases distinguish between
“misfeasance” and “nonfeasance.” Robb v. City of Seattle, 176 Wn.2d 427, 439, 295 P.3d 212 (2013); Mancini, 196 Wn.2d at 885-86. Zorchenko concedes that the City did not owe a duty based on affirmative misfeasance because Officer Giger’s actions did not directly cause the harm to him. See Mancini, 196 Wn.2d at 885-86. Nevertheless, Zorchenko argues that the distinction is irrelevant to the analysis here because the City owed a duty to him as an individual, under Norg, which “rejected the application of the public duty doctrine for cases involving 9-1-1 responses.” However, for the reasons explained herein, infra, we disagree with Zorchenko’s expansive interpretation of Norg.
7 No. 85449-6-I/8
from two nearby Seattle Fire Department stations and gave them the correct
address, which was only three blocks from the nearest station. Norg, 200 Wn.2d
at 753. While the dispatcher assured Delaura that help was on the way to her
apartment, all three of the dispatched units drove past the apartment and went to
a nearby nursing home, from where they assumed the 911 call had originated.
Norg, 200 Wn.2d at 753. The first responders eventually reached the Norgs’
apartment approximately 16 minutes after Delaura placed the 911 call. Norg,
200 Wn.2d at 753-54. Eventually, the Norgs sued the City of Seattle, alleging
that its employees responded negligently to the medical emergency. Norg, 200
Wn.2d at 754. The trial court rejected the City’s affirmative defense of the public
duty doctrine. Norg, 200 Wn.2d at 754-55. On interlocutory review, we affirmed.
Norg v. City of Seattle, 18 Wn. App. 2d 399, 413, 491 P.3d 237 (2021).
Our Supreme Court granted discretionary review and also affirmed. Norg,
200 Wn.2d at 755. The court reiterated that “a governmental entity’s breach of a
duty owed to the general public cannot sustain a tort claim for negligence as a
matter of law.” Norg, 200 Wn.2d at 757. In simple terms, the court explained, “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.” Norg, 200 Wn.2d at 758. The court
further explained that the public duty doctrine “applies only to claims based on an
alleged breach of ‘special governmental obligations [that] are imposed by statute
or ordinance.’” Norg, 200 Wn.2d at 758 (alteration in original) (quoting Beltran-
Serrano, 193 Wn.2d at 549).
8 No. 85449-6-I/9
The Supreme Court agreed with the Norgs that the public duty doctrine
was inapplicable because the City owed a duty to them to exercise reasonable
care. Norg, 200 Wn.2d at 763. But the court did not hold, or imply, that the City
owed a common law duty of care to the Norgs, as individuals, simply because
Delaura dialed 911. Instead, the City owed a duty to the Norgs because it
undertook to provide emergency medical assistance to them following an
extensive (in that context) interaction with Delaura, and because emergency
medical services are not a unique and exclusive governmental function. Norg,
200 Wn.2d at 762, 765. The court agreed that “ʻthe City, through its dispatcher,
established a direct and particularized relationship with the Norgs,’” noting that
Delaura expressly requested emergency medical assistance, confirmed her
address multiple times, remained on the line with the 911 dispatcher for over 15
minutes, and was repeatedly assured by the dispatcher that medical aid was en
route. Norg, 200 Wn.2d at 762-63. These facts gave rise to a duty of reasonable
care under the rescue doctrine, which “‘arises when one party voluntarily begins
to assist an individual needing help.’” Norg, 200 Wn.2d at 763 (quoting Folsom
v. Burger King, 135 Wn.2d 658, 674-75, 958 P.2d 301 (1998)).
The Norg court also focused on the fact that the provision of emergency
medical services is not a “‘unique function of government.’” Norg, 200 Wn.2d at
765 (quoting Cummins, 156 Wn.2d at 872 (Chambers, J., concurring)).
Therefore, “[s]uch a claim could certainly arise against a private ambulance
service.” Norg, 200 Wn.2d at 765. The court pointed out that if the public duty
doctrine barred the Norgs’ claim, it would mean that a governmental entity
9 No. 85449-6-I/10
providing emergency medical services would be subject to less tort liability than a
comparable private entity providing the same service, contrary to the mandate of
RCW 4.92.010(1).7 Norg, 200 Wn.2d at 765.
In contrast to the circumstances in Norg, the City did not undertake to
provide “emergency assistance” to the Zorchenkos. See Norg, 200 Wn.2d at
764. There is nothing in the record to indicate a prolonged or in-depth interaction
with the 911 dispatcher. The Zorchenkos did not contact the police for the
purpose of seeking medical aid, or for any other reason related to their safety.
Instead, Nina called law enforcement because the parties involved in the collision
were “unclear of the legal obligations associated with leaving the scene of the
accident” and sought assistance with “obtaining a police report.” Nina reported
no injuries and the record reflects that she interacted with the 911 dispatcher for
approximately two minutes. There is nothing to suggest that the dispatcher
made any assurances to Nina about prioritizing or expediting the response to her
request for assistance.
Moreover, police officers may perform an inherently governmental function
with duties set forth by statute when they respond to the scene of a motor vehicle
collision. Police officers are generally responsible for the enforcement of state
7 That the government’s tort liability is “to the same extent” as the liability of private
entities is a statutory mandate and a critical aspect of the analysis in Norg. RCW 4.96.010(1). Contrary to Zorchenko’s claim in reply, the Supreme Court has not “rejected” a “distinction . . . as between the liability of public versus private entities.” To support his claim that this part of the statute is no longer a part of the public duty doctrine analysis, Zorchenko relies on H.B.H. v. State, 192 Wn.2d 154, 179-180, 429 P.3d 484 (2018), a case involving negligence claims against a state agency for the failure to protect former foster children against tortious or criminal conduct perpetrated by adults to whom the children were entrusted. But in H.B.H., the Supreme Court merely acknowledged that while official conduct must be analogous to chargeable misconduct of a private party, an exact, “direct counterpart in the private sector” is not required. H.B.H., 192 Wn.2d at 180.
10 No. 85449-6-I/11
criminal and traffic laws. RCW 10.93.070. RCW 46.52.070(1) specifically
requires that a police officer who is “present at the scene of any accident” or is “in
possession of any facts concerning any accident” through investigation, “shall”
make a report. A police officer must investigate and include specific information
in the report when a collision results in fatality or serious injury. RCW
46.52.070(2), (3). Police officers arriving at the scene of a collision have
statutory authority to demand proof of legally-required documents, to impound
vehicles, and to issue traffic citations upon a determination that a driver involved
in a collision committed a traffic infraction. RCW 46.30.020, RCW 46.32.060;
RCW 46.63.030(1)(c). Police officers are also authorized by statute to direct
traffic at the scene of an accident and to penalize a failure to comply. RCW
46.61.015.
In contrast, local governments are authorized, but not required by statute,
to provide emergency medical services. RCW 35.21.766(2) (cities and towns
may establish ambulance services upon a determination that the municipality is
inadequately served by existing services). Various private entities, such as
hospitals, private ambulance services, individuals, and corporations may also
provide emergency medical services and, in fact, as RCW 35.21.766 implies,
those services are primarily delivered by private entities. Cummings, 156 Wn.2d
at 872 (Chambers J., concurring). Since both public and private entities provide
emergency medical services, when the local government handles such a
request, it does not perform an inherent governmental function and must be
11 No. 85449-6-I/12
accountable for tortious conduct to the same degree as a private entity.
Cummings, 156 Wn.2d at 872 (Chambers, J., concurring).
Zorchenko does not appear to dispute that responding to and investigating
a reported motor vehicle collision is an exclusive and inherent governmental
function or that Officer Giger’s duties were governed by statute.8 The statutory
mandates involved in responding to the scene of a collision apply only to
governmental actors and no law authorizes private entities to perform
comparable functions. Because the City’s employee was performing a function
that was required by statute and owed a duty to the public at large, the trial court
did not err in concluding that the public duty doctrine applied and dismissing the
claims against the City.
Affirmed.
I CONCUR:
____________________________
8 Zorchenko also does not appear to contend that any of the exceptions to the public duty
doctrine developed over the years by decisional law—legislative intent, failure to enforce, rescue doctrine, or special relationship—are applicable. See Norg, 200 Wn.2d at 758.
12 Zorchenko v. City of Federal Way, No. 85449-6-I
FELDMAN, J. (CONCURRING) — While I agree with the reasoning and holding
of the majority opinion, I write separately to clarify the proper enumeration of
elements of a negligence claim. Citing Mancini v. City of Tacoma, 196 Wn.2d 864,
879, 479 P.3d 656 (2021), the majority states, “To sustain a negligence claim, a
plaintiff must establish four elements: duty, breach, proximate cause, and resulting
harm.” A more precise formulation would identify five discrete elements: duty,
breach, cause in fact (also referred to as factual causation), legal causation (also
referred to as proximate cause or scope of liability), and harm (also referred to as
injury or damages).
Where I diverge most clearly from the four-element formulation in Mancini
is with regard to causation. In deciding whether the tortfeasor’s breach caused the
victim’s harm, Washington law distinguishes between cause in fact and legal
causation. Cause in fact “refers to the ‘but for’ consequences of an act—the
physical connection between an act and an injury.” Hartley v. State, 103 Wn.2d
768, 779, 698 P.2d 77 (1985). Legal causation, in contrast, “rests on policy
considerations as to how far the consequences of defendant’s acts should extend”
and “involves a determination of whether liability should attach as a matter of law
given the existence of cause in fact.” Id. (emphasis added). Legal causation thus
recognizes that at some point the “actual” cause of an injury cannot be said to be
its “proximate” cause. See id. (even where cause in fact is proved, “determination
of legal liability will be dependent on ‘mixed considerations of logic, common No. 85449-6-I/2
sense, justice, policy, and precedent’”) (quoting King v. City of Seattle, 84 Wn.2d
239, 250, 525 P.2d 228 (1974)).
The four-element formulation in Mancini lists duty, breach, proximate cause,
and harm, but does not specifically reference cause in fact. Numerous other
decisions adopt this same formulation, which dates back several decades. E.g.,
Hansen v. Washington Nat. Gas Co., 95 Wn.2d 773, 776, 632 P.2d 504 (1981)
(“Negligence in common law consists of (1) the existence of a duty owed to the
complaining party; (2) a breach thereof; (3) a resulting injury; and (4) a proximate
cause between the claimed breach and resulting injury.”) (citing LaPlante v. State,
85 Wn.2d 154, 531 P.2d 299 (1975)). In earlier cases like LaPlante, the court
recited a three-element formulation (duty, breach, and resulting injury), and then
added: “For legal responsibility to attach to the negligent conduct, the claimed
breach of duty must be a proximate cause of the resulting injury.” 85 Wn.2d at
159. In both formulations, cause in fact is not specifically included in the recitation
of elements.
To ameliorate this omission, numerous Washington opinions recite that
“Washington law recognizes two elements to proximate cause: Cause in fact and
legal causation.” Hartley, 103 Wn.2d at 777. Thus, rather than expressly add a
fifth element and clearly delineate cause in fact and legal causation, our courts
have reinterpreted one of the elements—"proximate cause”—to include that fifth
element. But while our Supreme Court has recited this reformulation of proximate
cause, it has acknowledged that “[s]ome confusion probably has been generated
by the imprecise use of the term ‘proximate cause’ to encompass cause in fact and
legal causation alone or in combination.” Id. at 778. Division Two of this court has
quoted this portion of Harley, adding “We agree.” Channel v. Mills, 77 Wn. App.
268, 273 n.9, 890 P.2d 535 (1995).
To illustrate this confusion, the court in Hartley recounts its analysis in
LaPlante, where it “affirmed a summary judgment dismissal of defendant for lack
of proximate cause without clarifying that it was more precisely characterized as a
lack of cause in fact.” Hartley, 103 Wn.2d at 778 (citing LaPlante, 85 Wn.2d at
159). The court also notes that “Washington Pattern Instruction 15.01 refers to
proximate cause in its factual context” and provides a definition—“a cause which
in a direct sequence, unbroken by any new independent cause, produces the
[injury] [event] complained of and without which such [injury] [event] would not
have happened”—which “relates to cause in fact” and not legal causation. Id.
Division Two similarly recognized in Channel that this confusion “is embodied in
Washington Pattern Instruction 15.01.” 77 Wn. App. at 273 n.9. Thus, while the
proper enumeration of causation elements may seem trivial, it is a potential source
of confusion in both judicial opinions and pattern instructions and thus affects
judges, practitioners, and jurors alike.
Professor David Owen, in an article appropriately titled, “The Five Elements
of Negligence,” recognizes this same confusion. Relevant here, he emphasizes
that “[p]roximate cause, though linked to cause in fact, is a separate element unto
itself.” David G. Owen, The Five Elements of Negligence, 35 HOFSTRA L. REV.
1671, 1681 (2007). And while Professor Owen acknowledges that “proximate
cause” is “often used to describe both causal issues, factual and proximate alike,”
he adds that the resulting “terminological confusion means . . . that a lawyer
reading judicial decisions discussing ‘proximate cause’ . . . needs to be on guard
for the possibility that the court actually may be addressing the issue of cause in
fact, not proximate cause at all.” Id. at 1682. This is precisely the confusion that
our Supreme Court recognized in Hartley and Division Two acknowledged in
Channel.
There is, fortunately, an easy solution to this terminological confusion, which
Professor Owen wisely advocates: courts should adopt the “five element
formulation” because “each of the five components is complex and conceptually
distinct, and because all must coexist or a negligence claim will fail.” Id. at 1673.
This approach is consistent with the Third Restatement of Torts, which similarly
states “the five elements of a prima facie case for negligence” as “duty,” “failure to
exercise reasonable care,” “factual cause,” “physical harm,” and “harm within the
scope of liability (which historically has been called ‘proximate cause’).”
RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 6 cmt. b (2010). It also
harmonizes cases like Mancini, which recite a four-element formulation that
excludes cause in fact, and cases like Hartley, which recognize that “Washington
law recognizes two elements to proximate cause: Cause in fact and legal
causation.” 103 Wn.2d at 776. And if carried through to our pattern jury
instructions, the five-element formulation would also alleviate juror confusion.
In short, to address the existing confusion regarding the proper delineation
of the elements of a negligence claim, I would clarify that to prove a negligence
claim a plaintiff must establish five elements: duty, breach, cause in fact, legal
causation, and resulting harm. While cause in fact and legal causation are “two
peas” that “reside together in the same pod,” they “remain two separate peas.”
Owen, supra at 1674. We should treat them as such. With these observations, I
respectfully concur.