Babcock v. Mason County Fire District No. 6

144 Wash. 2d 774

Opinions

Smith, J.

— Petitioners James C. Babcock and Kiyoko Babcock seek review of a decision of the Court of Appeals, Division Two, which affirmed an order of summary judgment by the Mason County Superior Court in favor of Mason County Fire District Number 6 and its Commissioners in an action for negligence filed by Petitioners based upon actions by the Mason County Fire District while fighting a fire at Petitioners’ home.¹ We granted review. We affirm.

QUESTION PRESENTED

The question presented in this case is whether a special relationship existed between Petitioners Babcock and Respondent Mason County Fire District Number 6 which constituted an exception to the “public duty doctrine” which otherwise provides immunity to fire fighters in the performance of their duties.

STATEMENT OF FACTS

Petitioners’ claim arose from a fire at their home in Union, Washington to which Mason County Fire District Number 6 responded.² The facts recited are based substantially upon affidavits submitted in the summary judgment proceeding.³

On August 3, 1995 at 5:07 p.m. Petitioners’ next door neighbor, Ms. Marilyn Sherman, telephoned 911 to report a fire at Petitioners’ 40-foot-long mobile home at East 471 Hyland Drive in Union, Washington.⁴ Petitioners were away shopping for groceries at the time.⁵ Fire Chief Harold A. Silver, the first fire fighter on the scene, arrived at 5:14 p.m.⁶ He observed heavy smoke and flames coming from the mobile home.⁷ He noticed the fire had spread to an adjacent wood frame garage through the open garage door and that the fire was burning inside.⁸ Meanwhile a neighbor told Chief Silver that Petitioners’ dog was inside the home.⁹ The neighbor wanted to go inside to rescue the dog but Chief Silver told him not to.¹⁰

Chief Silver stated he did not believe the mobile home could be saved because the fire was too intense and well established to be fought.¹¹ He tried to contain the fire to the mobile home and adjacent garage, but this was difficult because of the hot August day, surrounding dry vegetation, and wind.¹²

According to Chief Silver, Fire Engines 61 and 62 arrived simultaneously at 5:21 p.m.¹³ Fire fighters Andy Graham, Dan Hess and Ed Nelson were aboard Fire Engine 61.¹⁴ Fire fighter John Rogers was aboard Fire Engine 62.¹⁵ While Chief Silver and Fire fighters Graham, Hess and Nelson were spraying water on the mobile home, a tent trailer and the garage, Tender 61 arrived with Fire fighters Paul Thomas and Kelly Clark aboard.¹⁶

After alighting from his truck Fire fighter Hess noticed the wind blowing the fire from the burning mobile home toward the garage.¹⁷ Chief Silver ordered him to enter the garage through the door and to fight the fire from inside.¹⁸ As he and Fire fighter Graham entered the garage he observed what he believed to be oil drums, oxyacetylene welding equipment, a solvent tank/parts washer device and various substances.¹⁹ He knew explosives, chemicals and solvents posed an increased risk to fire fighters in the area.²⁰ There was fire in the rafters, on the floor in front of him and on the walls to his right.²¹ He and Fire fighter Graham began spraying water in the garage.²² The overhead garage door shortly fell off its tracks landing partially on Mr. Graham.²³ They then went outside the garage and continued to spray water on the fire through an open door.²⁴

The situation inside the garage was reported by Fire fighter Hess to Chief Silver who ordered Hess to go behind the garage to see if there was another way to attack the fire.²⁵ It was then that Mr. Hess observed an above-ground fuel oil storage tank with the capacity of several hundred gallons which he believed to be a supply tank for a furnace or heater.²⁶ He reported to Chief Silver about the oil storage tank. Chief Silver ordered him to continue fighting the fire from an opening in the garage.²⁷ Ammunition and welding tanks in the garage began exploding soon after that.²⁸

While the fire fighters were trying to control the fire, an unidentified person asked permission to move a tent trailer parked between the house and the garage.²⁹ Fire fighter Hess said the request was denied for several reasons:

To move the trailer would have required pulling a vehicle in between two burning buildings, increasing the risk to fire fighters in the area and involving the risk that the vehicle would also catch on fire and possible [sic] explode, and the driver of any such vehicle would have been put in serious peril. In fact, the fire was so hot that plastic lenses were melted and the paint was blistered on Engine 61, which was much further away from the fire than the tent trailer. Moreover, any vehicle pulling the trailer would have had to drive over fully-charged fire hoses on the ground, with the risk of damaging or rupturing the hoses and endangering the lives of the fire fighters.

Footnotes

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[30]

After about 30 minutes Fire fighters Hess and Graham were replaced on the front line by other fire fighters who arrived on the scene.³¹ The fire was brought under control and had not spread to adjacent residences or to the woods. Petitioners’ mobile home and garage were destroyed.³²

Petitioner James Babcock disputed the facts related by the fire fighters. He stated he and his wife returned to their home between 5:15 p.m. and 5:20 p.m.³³ He stated they could see smoke rising from the direction of their home when they were three miles away.³⁴ He stated that when they arrived at their home he saw one fire truck parked to the left of the home but that no one was fighting the fire.³⁵ He said he could see flames through the window, but the flames had not broken through the roof or windows.³⁶ According to Mr. Babcock, the shop (the garage) located approximately 10 feet from his home was not on fire and there was no smoke coming from it.³⁷ He stated fire fighters Hess and Graham did not begin to fight the fire in the garage immediately upon their arrival because the garage was not on fire at the time.³⁸ He said that at no time did the fire fighters enter the garage ³⁹ The garage did not catch fire until approximately 30 minutes after Petitioners arrived home and during that time no water was placed on the garage to stop the fire from spreading to it.⁴⁰

Petitioner James Babcock stated no effort was made to save his tent trailer, about 15 feet from his home, which could easily have been moved by one person.⁴¹ He stated his tent trailer caught fire 20 minutes after he arrived home.⁴² Shortly after he arrived, he attempted to remove an item of personal property when he was told by a “lady fire fighter” that he was not to attempt removal of any of his property.⁴³ He was told that he and his wife were to leave matters in the hands of the fire fighters and they would “take care of protecting our property.”⁴⁴ He stated that before the garage caught fire he, his wife and a friend asked the fire fighters to put water on the garage and each time they were told the fire fighters could not do so until the “PUD man” arrived to turn off the electricity.⁴⁵

Even though ordered by the fire fighters not to do so, Petitioner James Babcock nevertheless moved his 1993 Dodge truck which was parked about 20 feet from his home.⁴⁶ The grill of the truck had considerable damage from the heat of the fire.⁴⁷

Fire District 6 is located in a rural Mason County community with few or no fire hydrants. It relies upon water-transporting tenders to support its fire fighting. It is staffed by volunteer fire fighters, except for the Chief, who is the sole paid employee. In fighting the fire at the Babcock’s home, the fire fighters had to rely upon water pumps and limited-capacity water tanks on the tenders.⁴⁸

On April 28, 1997 Petitioners James and Kiyoko Babcock filed a complaint in the Mason County Superior Court against Respondents claiming negligence,⁴⁹ which in summary stated that the District Fire Chief negligently delayed dispatch of emergency personnel and equipment by directing the operational equipment to stand by at the station until a late arriving volunteer located his gear; the Fire Chief negligently failed to effectively use personnel and equipment once they were dispatched; their shop was allowed to catch fire with no response at all from fire fighters already on the scene; the Fire Commissioners were negligent in their selection and hiring of the District Fire Chief; volunteer fire fighters were inadequately trained; and the plaintiffs suffered emotional and financial injuries and other damages.⁵⁰

Petitioners asked for damages for loss of personal prop-' erty; loss of income, costs and other special damages resulting from Respondents’ breach of duty; and damages for emotional suffering.⁵¹

On March 30, 1998 Respondents moved for summary judgment.⁵² In their memorandum they argued the court must dismiss Petitioners’ claim for outrage because they could not show any conscious disregard of a high probability of severe emotional distress.⁵³ They also argued Petitioners’ negligence claim must be dismissed because they did not demonstrate that Respondents owed them any duty it did not owe to the general public and their claim did not fall under any of the exceptions to the public duty doctrine.⁵⁴ On June 25, 1998 Petitioners responded to the motion, stating they did not make a claim for outrage and their negligence claim should not be dismissed because the special relationship exception is established under the facts of this case.⁵⁵ On July 1, 1998 Respondents filed a reply brief.⁵⁶

After a hearing on July 30, 1998, the Honorable Toni A. Sheldon granted summary judgment to Respondents.⁵⁷

On August 19, 1998 Petitioner filed a motion for reconsideration.⁵⁸ Respondents on September 29,1998 then filed a motion in opposition.⁵⁹ On October 1, 1998 Petitioners filed a reply.⁶⁰ On November 9, 1998 Judge Sheldon denied Petitioners’ motion.⁶¹

On December 4, 1998 Petitioners filed a notice of appeal to the Court of Appeals, Division Two.⁶² On August 4, 2000 the Court of Appeals, the Honorable J. Robin Hunt writing, affirmed the judgment of the Superior Court, concluding that:⁶³

Viewing the evidence and reasonable inferences in the light most favorable to the Babcocks, we hold that the special relationship exception does not apply. Accordingly, we affirm the trial court’s summary judgment in favor of District No. 6.[64]

On September 8, 2000 Petitioners Babcock sought review by this court⁶⁵ which was granted on January 9, 2001.⁶⁶

DISCUSSION

Standard of Review

“Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”⁶⁷ The moving party bears the burden of demonstrating there is no genuine dispute as to any material fact.⁶⁸ The appellate court engages in the same inquiry as the trial court when reviewing an order on summary judgment.⁶⁹ All facts and reasonable inferences are considered in a light most favorable to the nonmoving party.⁷⁰ All questions of law are reviewed de novo.⁷¹

Public Duty Doctrine

The “public duty doctrine” has modified the traditional concept of sovereign immunity. Municipalities are no longer protected by the shield of sovereign immunity.⁷² “The threshold determination in a negligence action is whether a duty of care is owed by the defendant to the plaintiff. Whether the defendant is a governmental entity or a private person, to be actionable, the duty must be one owed to the injured plaintiff, and not one owed to the public in general. This basic principle of negligence law is expressed in the ‘public duty doctrine’.”⁷³

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that ‘the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).’ ”⁷⁴

In enacting RCW 4.96.010 in 1967 the Legislature stated that:

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!)][75]

To recover from a municipal corporation in tort under the public duty doctrine, a plaintiff must show the duty breached was owed to an individual and was not merely a general obligation owed to the public.⁷⁶

There are four exceptions to the public duty doctrine in which the governmental agency acquires a special duty of care owed to a particular plaintiff or a limited class of potential plaintiffs.⁷⁷ These exceptions include (1) legislative intent; (2) failure to enforce; (3) the rescue doctrine; and (4) a special relationship.⁷⁸ Only the special relationship exception is at issue in this case.

Special Relationship Exception

“The special relationship exception is a ‘focusing tool’ used to determine whether a local government ‘is under a general duty to a nebulous public or whether that duty has focused on the claimant.’ ”⁷⁹ A special relationship arises where “ ‘(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives [sic] rise to justifiable reliance on the part of the plaintiff’ ”⁸⁰

1. Privity Between the Mason County Fire District and Petitioners Babcock

Petitioners Babcock claim there was privity between them and Respondents because, while the Fire District had a duty to exclude bystanders, it had no duty to make specific assurances to them that their property would be protected.⁸¹ They claim they were not only “reasonably foreseeable plaintiffs” but they also spoke to a fire fighter in person.⁸² Petitioners assert that under Chambers-Castanes v. King County⁸³ it is not necessary to prove repeated promises by a governmental entity in order to establish privity.⁸⁴

Respondents contend the one statement purportedly made by an unidentified fire fighter was not sufficiently detailed to create privity between the single member of the public and the government.⁸⁵ The Court of Appeals concluded Petitioners did not establish privity with Respondents that differed from its general relationship to any other fire victim.⁸⁶ The court indicated that, unlike in Chambers-Castanes where the police unreasonably delayed their arrival, the fire fighters in this case were reasonably fulfilling a Fire District policy to keep bystanders safe during a fire.⁸⁷ “The term privity is used in the broad sense of the word and refers to the relationship between the police department [or fire department] and any ‘reasonably foreseeable plaintiff.’ ”⁸⁸ The direct contact or privity between the public official and an injured plaintiff must set the injured plaintiff apart from the general public.⁸⁹

In Chambers-Castanes the plaintiff was struck by two men.⁹⁰ King County Police operators received 11 calls for assistance from the time of the incident at approximately 5:50 p.m. until they arrived approximately 1 hour and 20 minutes later.⁹¹ The court concluded there was privity between the King County Department of Public Safety and Mr. and Mrs. Chambers-Castanes from the transcript of a police tape log which contained the words of dispatchers stating that help was on the way.⁹² In Beal v. City of Seattle this court also found privity between the 911 emergency operator and the person calling when a 911 operator told the person the police were being sent to assist her.⁹³

The Court of Appeals incorrectly concluded privity was not established between Respondents and Petitioners Babcock. In both Chambers-Castanes and Beal the event setting the plaintiffs apart from the general public was a telephone conversation between a government official and a member of the public. In this case Petitioners were even more set apart from the general public than in those cases because the government official, a fire fighter, apparently communicated with them in person at their burning home. As in Chambers-Castanes and Beal, that contact set Petitioners apart from the general public.⁹⁴ In both cases privity was found where the dispatchers were fulfilling their duty to the public by answering emergency telephone calls and agreeing to dispatch police officers to the scene. In this case, as in those cases, privity was established by the nature of the contact.

Respondents incorrectly assert that an isolated comment cannot rise to the level of an assurance that would isolate the interests of Petitioners from the interests of every other member of the public. In Beal this court found privity when the contact was a single assurance from one 911 emergency telephone operator to a citizen.⁹⁵ In this case privity was established by a single statement by a fire fighter to Petitioner James Babcock, assuming such a communication occurred.⁹⁶

2. Express Assurance to Petitioners

Petitioner James Babcock claims a “lady fire fighter” gave him express assurances when she told him the fire fighters would take care of protecting his property.⁹⁷ Petitioners claim this assurance caused them to discontinue their own efforts to save their property.⁹⁸ Respondents respond that a single statement by a single unidentified fire fighter does not constitute an express assurance which can bind the Fire District.⁹⁹ They contend Petitioners did not claim they requested the Fire District to rescue any particular item of their personal property and that the Fire District never promised it would do so.¹⁰⁰ The Court of Appeals concluded it was unreasonable for Petitioners to treat the fire fighter’s statement as express assurance that the District would salvage their personal property.¹⁰¹

A governmental authority may be liable to an individual who establishes that a particular duty was owed to that individual who could justifiably rely upon assurances specifically sought and which the government expressly gave.102 A government duty cannot arise from implied assurances.¹⁰³ “It is only where a direct inquiry is made by an individual and incorrect information is clearly set forth by the government, the government intends that it be relied upon and it is relied upon by the individual to his detriment, that the government may be bound.”¹⁰⁴ The plaintiff must seek an express assurance and the government must unequivocally give that assurance.¹⁰⁵

In Chambers-Castanes this court found express assurances were made when Mrs. Chambers-Castanes tele phoned 911.¹⁰⁶ In her first call she stated, “[tjhis is the fifth call. No one has responded. It’s been a half-hour.”¹⁰⁷ After she gave a more specific description of her location, the operator said, “[a] 11 right, we’ll get somebody up there then.”¹⁰⁸ When Mrs. Chambers-Castanes called a second time she stated, “[w]e need some police here, there shouldn’t be any trouble,”¹⁰⁹ to which the operator responded, “[w]e have the officer; he is on the way.”¹¹⁰ When she called a third time to ask whether anybody had been dispatched, the operator told her, “[y]es, they’re on their way . . . they’ll be there momentarily.”¹¹¹ When Mrs. Chambers-Castanes told the operator she really needed some assistance, the operator stated, “[t] hey’ll be there just anytime now. They’re on their way.”¹¹²

In Beal express assurances were given to Ms. Melissa Fernandez when a 911 operator told her that police would be dispatched to assist her.¹¹³ She told the operator her estranged husband “had been harassing her and threatening her, and she had been told in order not to break the no contact order she needed ‘a civil standby’ to come out.”¹¹⁴ The operator told her “[wje’ll get the police over there for you okay?”¹¹⁵

The Court of Appeals correctly concluded the fire fighter in this case did not give express assurances to Petitioners. Unlike in Chambers-Castanes and Beal in which the citi zens specifically sought assurance, Petitioners in this case did not seek any assurance from the fire fighter nor do they claim to have specifically sought such assurance.¹¹⁶ Unlike the detailed express assurances given by emergency telephone operators in Chambers-Castanes and Beal, the statement made by the fire fighter in this case did not indicate she or the other fire fighters would act in a specific manner.¹¹⁷ No express assurances were given, even assuming the statement was made as claimed by Petitioners.

3. Justifiable Reliance By Petitioners

Petitioners Babcock contend it was entirely reasonable for them to believe that some of their property could be saved if reasonable efforts had been made.¹¹⁸ They argue that no determination on reliance should be made without a trial.¹¹⁹

Respondents claim that under the circumstances Petitioners could not justifiably rely on the statement of the unidentified fire fighter as a guaranty that the fire fighters would salvage their property regardless of fire and wind.¹²⁰ Respondents assert Petitioners did not change their position for the worse as required under Washington law.¹²¹

On April 13, 2001 a brief amici curiae was filed by the Washington State Association of Fire Chiefs and the Washington Fire Commissioners Association. Amici substantially “adopt [ed] the analysis and decision of the Court of Appeals in Babcock, and the analysis and argument of the District contained in the Respondent’s [sic] Brief, Respondent’s [sic] Answer to Petition Requesting Discretionary Review and the Respondent’s [sic] Supplemental Brief.”¹²² They therefore limited their argument to the public duty doctrine, privity and public policy, arguing essentially that:

The duty to fight fires is a duty to the community, and not a duty to specific persons or property. Therefore, the non-liability rule of the public duty doctrine applies to general statements of reassurance made by fire fighters [including fire chiefs, deputy or assistant fire chiefs, fire marshals, battalion chiefs and other employees of fire protection districts . . . with the authority to extinguish fires and protect human life and property] during a fire. Even if there is a potential for liability, such general statements of reassurance do not establish a special relationship exception to the public duty doctrine. Statements of reassurance are made to further the general duty to fight fires and protect lives, and thus, do not constitute “privity” between the governmental entity and the injured plaintiff that sets the later [sic] apart from the general public. This conclusion is consistent with the law in Washington and other jurisdictions. Finally, sound public policy precludes judicial processes from governing a fire scene.[123]

The Court of Appeals concluded Petitioners neither factually nor legally relied upon the fire fighter’s alleged assurance.¹²⁴ The court concluded it was unreasonable for them to rely on the statement as a guaranty that their property would be salvaged regardless of wind and fire.¹²⁵ The court indicated that Petitioner Babcock obviously did not rely upon any statement made by the fire fighter because he ignored her comment and order and moved his truck anyway.¹²⁶ Whether a party justifiably relies upon information is a question of fact generally not amenable to summary judgment.¹²⁷ The court may look to the facts to determine whether the plaintiffs could rely on the assurance.¹²⁸ For the government to be bound the plaintiffs must rely upon the assurance to their detriment.¹²⁹

In Beal this court concluded Ms. Fernandez justifiably relied upon the assurance that police protection would be forthcoming because she waited in front of her apartment after being told by the 911 operator that the police were being sent.¹³⁰ In this case, viewing the facts most favorably to Petitioners, we conclude they were not justified in relying on the fire fighter’s statement to mean their property would be saved.¹³¹ Assuming the garage did not catch fire until 30 minutes after Petitioners arrived home, as claimed by Petitioners, the fire nevertheless was so intense that plastic lenses were melted, the paint was blistered on a fire engine, and the grill of Petitioners’ truck had considerable damage from the heat even though it was parked approximately 20 feet from the burning home.¹³² Petitioners acknowledged the day was hot, dry and windy and that fires by their nature are unpredictable.¹³³

The Court of Appeals correctly concluded Petitioner James Babcock’s actions demonstrated he did not rely upon the fire fighter’s statement. Unlike Ms. Fernandez in Beal, whose actions showed she relied on the 911 operator’s statement, Petitioner ignored what he claimed to be an assurance by the fire fighter and moved his truck. He did not discontinue his efforts to salvage his property because of the statement made by the fire fighter. Petitioners did not rely to their detriment because there were no reasonably safe alternatives. The only alternative would have been for the fire fighter to allow Petitioners to risk their lives to salvage or save their property. Petitioners did not justifiably rely upon the fire fighter’s statement.

Petitioners have not established their right to bring this negligence action against Respondents because Petitioners have not established an express assurance by Respondents which Petitioners justifiably relied upon to their detriment.

SUMMARY AND CONCLUSIONS

Under the “public duty doctrine,” to recover from a municipal corporation in tort a plaintiff must show the duty breached was owed to an individual and was not a general obligation owed to the public. There are four exceptions to the public duty doctrine in which the government agency acquires a special duty of care owed to a particular plaintiff or class of plaintiffs. They are (1) legislative intent; (2) failure to enforce; (3) the rescue doctrine; and (4) a special relationship. Only the special relationship exception is at issue in this case which requires the plaintiff to demonstrate privity and express assurances upon which plaintiff justifiably relied.

Petitioners Babcock did establish privity with Respondents which set them apart from the general public by demonstrating that a fire fighter communicated with them in person at their burning home. However, they did not establish that the unidentified fire fighter gave them express assurance that she would save their property. Petitioners did not claim they specifically sought such assurance. They were not justified in relying upon the fire fighter’s statement to mean their property would be salvaged or saved despite the intense fire at their home.

The Court of Appeals was correct in affirming the order of the Mason County Superior Court granting summary judgment in favor of Respondents Mason County Fire District Number 6 and its Commissioners.

We affirm the Court of Appeals.

Johnson, Bridge, and Owens, JJ., concur.

1

Babcock v. Mason County Fire Dist. No. 6, 101 Wn. App. 677, 683, 5 P.3d 750 (2000).

2

Clerk’s Papers at 150.

3

Counsel for Petitioners during oral argument referred to the deposition of Chief Harold A Silver. The document in the Clerk’s Papers is unsigned and Chief Silver did not waive signature. It is therefore not part of the record before us.

4

Clerk’s Papers at 120.

5

Id. at 46.

6

Id. at 62, 115, 136.

7

Id. at 136.

8

Id.

9

Id.

10

id.

11

Id. at 137.

12

Id. at 138.

13

Id. at 125, 129.

14

Id. at 138.

15

Id.

16

Id. at 139.

17

Id. at 130.

18

Id. at 130-31.

19

Id. at 131.

20

id.

21

Id.

22

Id.

23

Id.

24

Id.

25

Id. at 132.

26

Id.

27

Id.

28

Id. at 140-41.

29

Id. at 132.

30 Id. at 134.