Gregory Richmond & Lynne Richmond v. City of Newport

• Court: Court of Appeals of Washington
• Decided: March 17, 2026
• Docket: 40954-6
• Status: Unpublished

Opinion

FILED MARCH 17, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

GREGORY RICHMOND AND ) No. 40954-6-III LYNNE RICHMOND, husband and wife, ) ) Appellants, ) ) UNPUBLISHED OPINION v. ) ) CITY OF NEWPORT, WASHINGTON, ) ) Respondent. )

LAWRENCE-BERREY, C.J. — Raw sewage flooded Gregory and Lynne

Richmonds’ basement because a downhill property’s sewer line was blocked. The

Richmonds sued the city of Newport (City), alleging three claims: (1) failure to enforce

a local sewer line ordinance, (2) intentional infliction of emotional distress, and

(3) violation of the Consumer Protection Act, chapter 19.86 RCW. In their response to

the City’s cross motion for summary judgment, the Richmonds raised a takings clause

claim. The trial court granted summary judgment because the public duty doctrine

precluded the City from tort liability. On appeal, the Richmonds seek to revive their first

claim and argue the trial court failed to adjudicate their takings clause claim. We affirm

the trial court. No. 40954-6-III Richmond v. City of Newport

FACTS

Gregory and Lynne Richmond live in the city of Newport. In March 2024, raw

sewage backed up into the Richmonds’ basement. After a plumbing contractor was

unable to find any obstruction within 75 feet of the Richmonds’ sewer line, the

Richmonds contacted the City’s sewage superintendent. The superintendent stated that

he assumed the Richmonds’ sewer line connected to the City’s main sewer line.

Eventually, a different plumber cleared the blockage 220 feet down the sewer line.

One week later, raw sewage again flooded the Richmonds’ basement. Upon

inspection, the Richmonds discovered that their sewer line ran through a neighbor’s lot

rather than directly to the City’s main sewer line. Mr. Richmond contacted the City the

next day and was told there were ongoing problems with the City’s residential sewer

connections.

Soon after, an excavation of adjoining properties revealed that the line originated

from the Richmonds’ home, ran downhill through the neighbor’s property, and connected

further downhill to a sewer line from a third person’s home. The line from the third

home connected to the City’s main sewer line. The floodings damaged many of the

Richmonds’ possessions and rendered 50 percent of their house unusable.

2 No. 40954-6-III Richmond v. City of Newport

The Richmonds filed a complaint against the City. The complaint alleged three

causes of action: failure to enforce a local sewer line ordinance, intentional infliction of

emotional distress, and violation of the Consumer Protection Act.

The Richmonds sent multiple public records requests to the City. Two requests

were for pre-1992 “permits and sign offs for certificate of occupancy, and what was

required” for their home address, as well as “any testing on [their home’s] sewer line and

how the testing was completed and all of its finding[s].” Clerk’s Papers (CP) at 129-30

(emphasis omitted). The City found no records responsive to the Richmonds’ public

records request.

In October 2024, the Richmonds moved for partial summary judgment. They filed

an unsworn letter from an owner of a plumbing company. The owner stated that the City

had no plans that showed the connecting sewer lines. He further stated that he had

“reviewed the plumbing codes per request of Mr. Richmond and found that there are a

staggering number of plumbing code violations concerning all three homes.” CP at 42.

The owner also noted that the line downhill from the Richmonds and their neighbor used

Orangeburg pipe to connect to the main line. The Richmonds also filed an unsworn letter

written by a plumber’s apprentice. The apprentice stated that the Orangeburg pipe had

“be[en] compromised,” implying that this was the cause of the sewer backup. CP at 43.

3 No. 40954-6-III Richmond v. City of Newport

The Richmonds also filed a letter written by the downhill owner, the one whose

property contained the Orangeburg pipe that connected to the City’s main sewer line.

Relevant here, the owner stated that when his sewer line was built, Orangeburg pipe was

normal “for that time period. However, Mr. Richmond’s home was built in the late 1980’s

and Mr. Buckley’s home was built in the early 1990’s, and at that time Orangeburg pipe

was not acceptable.” CP at 39.

In their summary judgment motion, the Richmonds pointed to local regulations

restricting the placement of sewer lines into a lot other than the property served by the

line. The Richmonds argued that if the City had “follow[ed] codes and required

inspections” then the defective sewer configuration would have been discovered before

any damage occurred. CP at 24. They also argued that the City should have learned of

the defective sewer line in 1990, when the third house added its line to the Richmonds’

existing line. The Richmonds argued that the public duty doctrine did not apply because

operating a sewage system is a proprietary function, not a governmental function.

The City responded that the Richmonds’ central claim is not based on how the City

operates its sewage system but on its purported failure to enforce plumbing codes during

the building inspection process. This, it argued, fell squarely within its public duty

doctrine affirmative defense.

4 No. 40954-6-III Richmond v. City of Newport

The Richmonds replied that “the [City] has not kept any records of their inspection

reports. Through FOIA[1] the defendant could not produce any records, this is not the

plaintiff’s issue. What the Plaintiff has shown the court is the State adopted Plumbing

code and the defendant[’]s adopted ordinances recognizing those codes and duties and

responsibility.” CP at 201.

The City filed a cross motion for summary judgment. It argued that the public duty

doctrine barred the Richmonds’ central claim and that the facts as alleged by the

Richmonds failed to support an intentional infliction of emotional distress claim. The City

characterized the Richmonds’ theory of liability as negligent permitting or inspections,

which they argued was precluded by the public duty doctrine.

After a hearing, the trial court granted the City’s motion for summary judgment and

dismissed the Richmonds’ claims without prejudice. The City moved for reconsideration,

requesting a dismissal with prejudice. The trial court granted the City’s motion.

The Richmonds appeal to this court.

1 Freedom of Information Act, 5 U.S.C. § 552.

5 No. 40954-6-III Richmond v. City of Newport

ANALYSIS

PUBLIC DUTY DOCTRINE

The Richmonds argue that the trial court misapplied the public duty doctrine to

preclude the City from incurring liability on its negligence claim.2 We disagree.

The public duty doctrine prohibits liability for a public official’s negligent conduct

unless the duty breached was owed to the injured person as an individual rather than one

owed to the public in general. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d

447 (1988). The duty to issue building permits and conduct inspections is to protect the

health and safety of the general public. Id. at 164-65. “Issuance of a building permit

does not implicitly imply that the plans submitted are in compliance with all applicable

codes. Nor do periodic building code inspections implicitly imply that the construction is

in compliance with all applicable codes. Building permits and building code inspections

only authorize construction to proceed; they do not guarantee that all provisions of all

applicable codes have been complied with.” Id. at 167. In short, “no duty is owed by

local government to a claimant alleging negligent issuance of a building permit or

negligent inspection to determine compliance with building codes.” Id. at 168.

2 The Richmonds do not argue that the trial court erred in dismissing their intentional infliction of emotional distress or their Consumer Protection Act claims.

6 No. 40954-6-III Richmond v. City of Newport

Taylor squarely applies to this case. The Richmonds allege that the City was

negligent in its permitting and inspection of their sewer line. Assuming that this is true,

per Taylor, any duty breached by the City would be one owed to the public, not to the

Richmonds. Further, as explained below, even if the inspections were mandatory, this

does not cause the City’s duty to be owed to an individual rather than the public.

The Richmonds cite Osborn v. Mason County, 157 Wn.2d 18, 134 P.3d 197

(2006), for the proposition that “a municipality cannot escape liability when it fails to

perform mandatory inspections under its own [plumbing] code, and that failure results in

identifiable harm to property owners.” Appellants’ Br. at 18. Osborn does not say this.

Osborn addresses whether Mason County had a duty to warn the Osborns of the presence

of a sex offender who raped and murdered a woman. Id. at 20. Plumbing codes are not

mentioned at all nor are mandatory inspections. To the extent the public duty doctrine

was implicated, the court held that “no public duty doctrine analysis is necessary because

Mason County had no duty to warn the Osborns of [the sex offender’s] presence.” Id. at

27. It is unclear how the Richmonds arrived at their understanding of the case.3

3 The Richmonds likely used AI for their briefing. AI is notorious for fabricating opinions and/or quotes. Here, the Richmonds cited an actual opinion, Osborn, for a proposition that would be convenient for them but which does not appear in the case. This pattern repeats with other cases cited by the Richmonds. AI fabrications occur by prompting a generative AI for a specific holding, and AI fabricating a result. This

7 No. 40954-6-III Richmond v. City of Newport

The Richmonds similarly quote Bailey v. Town of Forks, 108 Wn.2d 262, 737 P.2d

1257 (1987), as stating: “‘Where the government fails to enforce mandatory inspections

after actual or constructive knowledge of the danger, the Public Duty Doctrine does not

apply.’” Appellants’ Am. Opening Br. at 54-55. This language does not appear in the

case. Bailey discusses the Town of Fork’s liability after a police officer failed to prevent

a man he knew to be intoxicated from driving a truck, and the truck driver then striking a

motorcyclist. Id. at 263-64. The Richmonds also quote Phillips v. King County, 136

Wn.2d 946, 968 P.2d 871 (1998), as stating “‘Municipal immunity does not apply where

specific statutory inspection duties are owed to identifiable individuals, and failure to

perform such duties results in harm.’” Appellants’ Am. Opening Br. at 55. This

language also does not appear in the case, which discusses inverse condemnation liability

against the county due to surface water inundating property. Id. at 950.

This court could not locate any cases standing for the proposition that mandatory

inspections impose a duty on the City that would defeat the public duty doctrine.

“‘Where no authorities are cited in support of a proposition, the court is not required to

explains other cases cited by the Richmonds—King County v. Vincent, 167 Wn.2d 671 (2009), Carlyle v. Dep’t of Soc. & Health Servs., 155 Wn. App. 895, 231 P.3d 218 (2010), and State v. Johnson, 194 Wn.2d 704, 451 P.3d 1082 (2019)—none of which this court could locate. We expect all parties, including pro se litigants, to ensure that the cases cited be real cases that plausibly support the proposition for which they are cited.

8 No. 40954-6-III Richmond v. City of Newport

search out authorities, but may assume that counsel, after diligent search, has found

none.’” State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting

DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). This

proposition applies equally when the cases cited in no way support the supposed holding.

The Richmonds argue that two exceptions to the public duty doctrine would also

apply to this case. The first exception is the failure to enforce exception. This occurs

when governmental agents responsible for enforcing statutory requirements possess

actual knowledge of a statutory violation, fail to take corrective action despite a statutory

duty to do so, and the plaintiff is within the class the statute intended to protect. Bailey,

108 Wn.2d at 268. This exception imposes a “limited duty of care to act reasonably

within the framework of the laws governing the municipality and the economic resources

available to it.” Id. at 271. We note that Taylor, the controlling case, was decided after

Bailey, and Taylor’s holding is specific to a city’s inspection and permitting function.

For these reasons, we follow Taylor.

The second exception is the special relationship exception. “A special relationship

triggers an actionable duty 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 by a public official, which (3) give rise to justifiable

9 No. 40954-6-III Richmond v. City of Newport

reliance on the part of the plaintiff.” Honcoop v. State, 111 Wn.2d 182, 192, 759 P.2d

1188 (1988). Here, there is no evidence of express assurances by a public official to the

Richmonds or justifiable reliance on any assurances by the Richmonds. Accordingly, no

exception applies to the public duty doctrine in this case.

We conclude that the trial court did not err in summarily dismissing the

Richmonds’ negligent inspection/permitting claim against the City.

TAKINGS CLAUSE

The Richmonds argue that the trial court erred by not adjudicating their takings

clause claim. We disagree.

Washington follows notice pleading rules, which require a concise statement of

the claim and the relief sought. Champagne v. Thurston County, 163 Wn.2d 69, 84, 178

P.3d 936 (2008). Pleadings are intended to give notice to the court and the opponent of

the general nature of the claim asserted. Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn.

App. 18, 23, 974 P.2d 847 (1999). Although inexpert pleading is permitted, insufficient

pleading is not. Id. A pleading is insufficient when it does not give the opposing party

fair notice of what the claim is and the grounds on which it rests. Id. A complaint must

at least identify the legal theories on which the plaintiff is seeking recovery. Id. at 25.

Pleadings consist of the complaint, the answer, a reply to the answer, a reply to a

10 No. 40954-6-III Richmond v. City of Newport

counterclaim, an answer to a cross claim, a third party complaint, a third party answer,

and a reply to a third party answer. CR 7(a). We have reviewed the Richmonds’

complaint carefully and there is no hint of a takings clause claim.

The Richmonds first raised their takings clause claim in response to the City’s

motion for summary judgment. When issues that are not raised by the pleadings are tried

by express or implied consent of the parties, they will be treated in all respects as if they

had been raised in the pleadings. Dewey, 95 Wn. App. at 26. In determining whether the

parties impliedly tried an issue, an appellate court will consider the record as a whole,

including whether the issue was mentioned before the trial and in opening arguments, the

evidence on the issue admitted at the trial, and the legal and factual support for the trial

court’s conclusions regarding the issue. Id. In Dewey, the parties did not try a First

Amendment to the United States Constitution claim by implication where the claim was

raised for the first time in response to a motion to dismiss. Id.

Here, like Dewey, the Richmonds first raised their takings clause claim in response

to a dispositive motion. The City did not acknowledge the new claim, much less

impliedly consent to it being raised. We conclude that the Richmonds were precluded

from raising their untimely claim below and on appeal.

11 No. 40954-6-III Richmond v. City of Newport

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Lawrence-Berrey, C.J.

WE CONCUR:

______________________________ _________________________________ Murphy, J. Hill, J.