Harvey v. Snohomish County

157 Wash. 2d 33
CourtWashington Supreme Court
DecidedMay 18, 2006
DocketNo. 76575-8
StatusPublished
Cited by17 cases

This text of 157 Wash. 2d 33 (Harvey v. Snohomish County) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey v. Snohomish County, 157 Wash. 2d 33 (Wash. 2006).

Opinions

[35]*35¶1

Chambers, J.

Robert Harvey, his eight-month-old son, and Alex Keltz, a neighbor, were attacked by a disturbed stranger who claimed to be on a mission from God. They retreated into Harvey’s home and called 911 for police assistance. The Snohomish County Police Staff and Auxiliary Service Center (SNOPAC), an entity created pursuant to an interlocal agreement that provides 911 emergency services to various public agencies and localities, including Snohomish County, took the call. In the approximately eight minutes between the call and the arrival of officers, the stranger broke into the home and Harvey shot him six times. Harvey later sued, claiming that the police failed to timely rescue him. We conclude that under the facts of this case, Harvey has failed to demonstrate that assurances were given by the 911 operator to his detriment and, even if such assurances could be gleaned from the record, Harvey cannot, as a matter of law, show any breach of duty toward him. Because we find neither duty nor breach of duty, we do not reach the interlocal agreement issue.

FACTS

¶2 On November 17, 1999, at approximately 5:35 pm, Keltz called 911 to report that a disturbed man, who had a painted face, appeared to be wearing a straight jacket, and claimed to be “serving God,” was breaking into Harvey’s condominium.1 Harvey, Keltz, and Harvey’s son were all inside Harvey’s home at the time of the call. The 911 operator remained on the line with Keltz and at the same [36]*36time informed a SNOPAC police dispatcher of the situation. At 5:38 pm, the dispatcher, over radio, requested that all available law enforcement respond to Harvey’s residence. Between 5:38 pm and 5:39 pm, two Snohomish County sheriff deputies responded to the call and informed the dispatcher they were on their way to the scene. At approximately the same time, the operator informed Harvey (who had taken the phone from Keltz) that she had notified the police about the situation. The dispatcher advised the police that the suspect was threatening to shoot Harvey, was armed with a handgun, and was stating he wanted to die. Snohomish County Deputy Bynum was sent to get the ballistics shield from the precinct.

¶3 At 5:44:28 pm, Snohomish County Deputy Durand arrived and began to set up a couple of blocks away from Harvey’s residence while he waited for backup units to arrive. Deputy Durand reported that there was no place to set up right in front of Harvey’s home without crossing the path of a potentially armed suspect, so officers set up down the street from Harvey’s residence. At approximately 5:45 pm, the operator informed Harvey that there were deputies in the area preparing to respond. At 5:46:09 pm, Snohomish County Deputy Shaw arrived at the scene. Between 5:46:02 and 5:48:07 pm, Harvey, who apparently had lost sight of the suspect, asked the operator whether he should go out on the porch to look for the man or if he should lock himself in the bathroom. The operator told Harvey he should do whatever he felt was most safe to do.

f4 At 5:48:01 pm, the dispatcher advised police that the suspect was attempting to get in through a window on the balcony. The operator told Harvey she had informed the deputies about the suspect’s attempts to enter through the window. At 5:49:43 pm, another deputy responded to the incident and asked if he should block off the street in front of Harvey’s residence. Five seconds later, deputies stated they did not have time to block off the street, ordered all power cut, and moved in on the residence. At 5:50:17 pm, two other deputies arrived with the ballistics shield. Ten [37]*37seconds later, the operator stated that gunfire had been heard and they had lost phone contact with Harvey. At approximately the same time, deputies moving in on the suspect discovered Harvey and Keltz making their way toward them. Harvey told the deputies that the suspect had been shot several times and was in his home. Four deputies entered Harvey’s home and ordered the suspect not to move. However, despite the orders from the deputies and the extensive injuries to the suspect, the suspect attacked, grabbing Deputy Durand’s leg in an attempt to bite him. The suspect was finally subdued and medical personnel arrived to provide treatment. Mercifully, neither Harvey, his son, nor Keltz sustained any physical injuries as a result of the incident.

¶5 Harvey sued Snohomish County, among others, for negligent infliction of emotional distress, alleging the county and the sheriff’s department failed to rescue him, his son, and his neighbor. Harvey also filed civil rights claims. Defendants successfully removed the action to federal court, where the court dismissed Harvey’s civil rights claims. The federal court returned the remaining state claims to Snohomish County Superior Court, whereupon the trial court granted defendant’s motion for summary judgment.

¶6 The Court of Appeals reversed in part and remanded, holding that Snohomish County cannot use its interlocal cooperation agreement to shield itself from its legal obligations and is, therefore, liable for SNOPAC’s potential negligence. Further, the court held that it was a question of fact best left to a jury to decide whether the 911 operator gave Harvey express assurances that he justifiably relied upon to his detriment. Harvey v. Snohomish County, 124 Wn. App. 806, 818-19, 103 P.3d 836 (2004). We reverse.

[38]*38ANALYSIS

Standard of Review

¶7 Summary judgment is proper 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. Babcock v. Mason County Fire Dist. No. 6., 144 Wn.2d 774, 784, 30 P.3d 1261 (2001) (citing Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)). The moving party bears the burden of demonstrating there is no genuine dispute as to any material fact. Id. at 784. The appellate court engages in the same inquiry as the trial court when reviewing an order on summary judgment. Id. In addition, all facts and reasonable inferences are considered in a light most favorable to the nonmoving party. Id.

Did Snohomish County Owe a Duty to Harvey?

Privity

¶8 As a preliminary matter, we note there was sufficient contact between Harvey and the SNOPAC operator to establish privity. In Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998), privity was established where the victim told the operator that her estranged husband had been threatening her. She identified her location, and the operator told her that police were being dispatched. Similarly, in this case, Harvey was in contact with the SNOPAC operator throughout the incident, stated his location, and in response, the dispatcher told Harvey multiple times that she had let the police know the nature of the incident, that they were in the area, and that they were setting up nearby. However, while Harvey can establish privity, Harvey cannot show that any alleged assurance made by the operator was false, unfulfilled, relied upon, or made to his detriment. See generally id. at 769.

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134 P.3d 216 (Washington Supreme Court, 2006)

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Bluebook (online)
157 Wash. 2d 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-snohomish-county-wash-2006.