Norg v. City of Seattle

• Court: Washington Supreme Court
• Decided: January 12, 2023
• Docket: 100,100-2
• Status: Published

Opinion

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The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JANUARY 12, 2023 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JANUARY 12, 2023 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) DELAURA NORG, as Litigation ) No. 100100-2 Guardian ad Litem for her husband, ) FRED B. NORG, an incapacitated ) man, and DELAURA NORG, ) En Banc individually, ) ) Respondents, ) v. ) ) CITY OF SEATTLE, ) ) Filed: January 12, 2023 Petitioner. ) _______________________________)

YU, J. — This case asks whether the public duty doctrine shields the city of

Seattle (City) from potential liability for its allegedly negligent response to a 911

call. In this case, it does not.

Delaura Norg called 911 seeking emergency medical assistance for her

husband, Fred. She gave the 911 dispatcher her correct address, which the

dispatcher relayed to emergency responders from the Seattle Fire Department

(SFD). The Norgs’ apartment building was three blocks away from the nearest For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

SFD station, but it took emergency responders over 15 minutes to arrive. This

delay occurred because the SFD units failed to verify the Norgs’ address and,

instead, went to a nearby nursing home based on the mistaken assumption that the

Norgs lived there. The Norgs sued the City for negligence, alleging that SFD’s

delayed response aggravated their injuries.

The City pleaded the public duty doctrine as an affirmative defense and both

parties moved for summary judgment on the question of duty. The trial court

granted partial summary judgment in the Norgs’ favor and struck the City’s

affirmative defense. The Court of Appeals affirmed on interlocutory review. We

granted review and now affirm.

The undisputed facts establish that once the City undertook its response to

the Norgs’ 911 call, the City owed the Norgs an actionable, common law duty to

use reasonable care. The Norgs’ claim is based on the City’s alleged breach of this

common law duty and is therefore not subject to the public duty doctrine as a

matter of law. As a result, we hold that the trial court properly granted partial

summary judgment to the Norgs on the question of duty. In doing so, we express

no opinion on the remaining elements of the Norgs’ claim (breach, causation, and

damages). We thus affirm the Court of Appeals and remand to the trial court for

further proceedings.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

For purposes of the issues presented, the underlying facts are not disputed.

Early in the morning on February 7, 2017, Delaura woke up to find Fred “making

really loud sounds.” 1 Clerk’s Papers at 147. Fred’s “eyes were wide open and

glassy,” and he did not respond to Delaura’s attempts to wake him. Id. Delaura

called 911, and she was connected to a dispatcher employed by SFD at 4:42 a.m.

The dispatcher immediately asked for the Norgs’ address, which Delaura

accurately provided.

Within one minute of answering Delaura’s call, the 911 dispatcher assigned

three units from two nearby SFD stations to respond. The dispatcher gave the units

the Norgs’ correct address, which was three blocks away from the closest station.

Id. at 215, 99. The units left their respective stations between 4:44 and 4:46 a.m.,

and the dispatcher assured Delaura that “a lot of people [were] on the way.” Id. at

176. While she waited, Delaura confirmed her address to the dispatcher twice, and

she followed the dispatcher’s instructions to move Fred to the floor and begin

cardiopulmonary resuscitation.

1 Where it is necessary to distinguish between the Norgs, we refer to them by their first names. No disrespect is intended.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

By 4:49 a.m., all three of the dispatched units signaled that they were “[o]n

[s]cene.” Id. at 215. However, they were not at the Norgs’ apartment. Instead, the

units mistakenly assumed the 911 call had come from “a nursing home in the

[same] area that gets many alarms throughout the year,” and they went there

instead, driving past the Norgs’ apartment building to do so. Id. at 80. When the

emergency responders arrived at the nursing home, they found no indication of a

medical emergency and realized they had gone to the wrong address.

The units then went back to the Norgs’ apartment building. After struggling

to gain access, emergency responders reached the Norgs approximately 16 minutes

after Delaura began speaking with the 911 dispatcher. Id. at 185. Fred was

transported to the hospital, where he was diagnosed with a heart attack. He

survived but allegedly suffered “severe and permanent injuries,” including brain

damage due to a lack of oxygen, resulting in “cognitive deficits and impaired

vision, balance[,] and ambulation.” Id. at 10.

B. Procedural history

On October 12, 2018, the Norgs filed a complaint against the City, claiming

that its employees were “negligent in failing to use reasonable care in responding

to the Norgs’ 911 medical emergency.” Id. They allege this negligence caused

damages including medical expenses, pain and suffering, emotional distress, and

lost wages and earning capacity. Id. at 10-11. In its answer to the Norgs’

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

complaint, the City asserted as one of its “affirmative defenses” that the Norgs’

“claims are barred by the public duty doctrine.” 2 Id. at 20-21.

The Norgs moved for partial summary judgment to strike the City’s “‘public

duty’ defenses and to rule that the City owed the Norgs a common law duty of

reasonable care while responding to Mr. Norg’s cardiac arrest.” Id. at 23. The

City also moved for summary judgment, contending that it cannot be held “liable

for a 911 call response unless an exception to the public duty doctrine applies” and

that “there are no questions of fact regarding an exception.” Id. at 104-05.

Following oral argument, the trial court granted the Norgs’ motion and denied the

City’s motion, concluding that the “City of Seattle owed plaintiffs a duty of

ordinary care” and striking the City’s “affirmative defenses” relating to the public

duty doctrine. Id. at 541.

On the City’s motion, the trial court certified its order for interlocutory

review, ruling that the application of the public duty doctrine to this case is “a

controlling question of law as to which there is substantial ground for a difference

of opinion and that immediate review of the order may materially advance the

2 In its brief supporting review, amicus contends that the Court of Appeals “erred by characterizing the public duty doctrine as an affirmative defense” and asks this court “to clarify that the defendant does not have the burden to prove that the public duty doctrine bars a claim.” Mem. of Amicus Curiae Wash. State Ass’n of Mun. Att’ys at 11 (citing Norg v. City of Seattle, 18 Wn. App. 2d 399, 401, 491 P.3d 237 (2021)), 13. We did not grant review on that issue, and we decline to reach it because it was the City’s answer to the Norgs’ complaint that characterized the public duty doctrine as an affirmative defense; the Court of Appeals merely provided an accurate description of this procedural history.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

ultimate termination of the litigation.” Id. at 470; see RAP 2.3(b)(4). The Court of

Appeals granted the City’s motion for discretionary review and affirmed in a

published opinion, holding that the public duty doctrine does not apply here

because the City owed the Norgs “a common law duty to exercise reasonable care

in providing emergency medical services.” Norg v. City of Seattle, 18 Wn. App.

2d 399, 403, 491 P.3d 237 (2021).

The City moved for discretionary review, and the Washington State

Association of Municipal Attorneys filed an amicus brief supporting the City’s

motion. After we granted review, the Washington State Association for Justice

Foundation filed an amicus brief supporting the Norgs on the merits.

ISSUE

Whether the public duty doctrine bars the Norgs’ negligence claim against

the City.

ANALYSIS

A. Background on the public duty doctrine

Courts in Washington have been developing and applying the public duty

doctrine for decades. However, the doctrine has taken a “sometimes wandering

path,” and as a result, parties and courts (including this court) have at times

“struggle[d] with the case law.” Ehrhart v. King County, 195 Wn.2d 388, 396, 460

P.3d 612 (2020). We therefore take this opportunity to review the history and

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

purpose of the public duty doctrine to provide context for our decision here and

clarity for future cases.

Historically, courts in the United States applied the “rule that a State could

not be sued without its consent,” which was derived from “[t]he sovereign

immunity of the British crown.” RESTATEMENT (SECOND) OF TORTS § 895B cmt. a

(AM. L. INST. 1979). This historical rule is “implicitly acknowledged” in the

Washington Constitution, which provides that “‘[t]he legislature shall direct by

law, in what manner, and in what courts, suits may be brought against the state.’”

Debra L. Stephens & Bryan P. Harnetiaux, The Value of Government Tort

Liability: Washington State’s Journey from Immunity to Accountability, 30

SEATTLE U. L. REV. 35, 37 (2006) (quoting CONST. art. II, § 26). A more limited

form of sovereign immunity was also extended to local government entities “when

they were performing ‘governmental functions’ similar to those performed by the

state.” Stephens & Harnetiaux, supra, at 38.

Amid growing criticism of sovereign immunity, our legislature in the 1960s

exercised its constitutional authority to allow tort claims against state and local

government entities in Washington. See LAWS OF 1961, ch. 136, § 1 (codified as

RCW 4.92.090), amended by LAWS OF 1963, ch. 159, § 2; LAWS OF 1967, ch. 164,

§ 1 (codified as RCW 4.96.010). However, this does not mean that the

government’s potential tort liability is unlimited. Instead, governmental entities

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

“shall be liable for damages arising out of their tortious conduct . . . to the same

extent as if they were a private person or corporation.” RCW 4.96.010(1) (local

governments); see also RCW 4.92.090 (state government). To be held liable in

accordance with these statutes, a governmental entity must engage in tortious

conduct that is “‘analogous, in some degree at least, to the chargeable misconduct

and liability of a private person or corporation.’” Munich v. Skagit Emergency

Commc’ns Ctr., 175 Wn.2d 871, 887, 288 P.3d 328 (2012) (Chambers, J.,

concurring) (quoting Evangelical United Brethren Church v. State, 67 Wn.2d 246,

253, 407 P.2d 440 (1965)). Justice Chambers’s concurrence in Munich is

“precedential because it received five votes from justices who also signed the

majority opinion.” Ehrhart, 195 Wn.2d at 398 n.5; see also Beltran-Serrano v.

City of Tacoma, 193 Wn.2d 537, 550 n.8, 442 P.3d 608 (2019). The dissent

appears to disagree with Ehrhart, Beltran-Serrano, and the Munich concurrence

itself, but those decisions are all controlling precedent. See dissent at 4-6.

One significant challenge in determining whether a governmental entity may

be liable in any particular case is that “governments, unlike private persons, are

tasked with duties that are not actionable duties within the meaning of tort law.”

Beltran-Serrano, 193 Wn.2d at 549. These “special governmental obligations are

imposed by statute or ordinance,” and they reflect “a general obligation owed to

the public” by the governmental entity. Id. Such general governmental obligations

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

are not actionable in tort because “‘a duty to all is a duty to no one’” and a “‘cause

of action for negligence will not lie unless the defendant owes a duty of care to

[the] plaintiff.’” Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006)

(quoting Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d

1261 (2001) (plurality opinion)); Ehrhart, 195 Wn.2d at 398 (alteration in original)

(quoting Chambers-Castanes v. King County, 100 Wn.2d 275, 284, 669 P.2d 451

(1983)).

Thus, 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. Instead, “[t]o

establish a duty in tort against a governmental entity, a plaintiff must show that the

duty breached was owed to an individual and was not merely a general obligation

owed to the public.” Beltran-Serrano, 193 Wn.2d at 549. To determine whether

any particular plaintiff has made the necessary showing, Washington courts have

attempted to construct a framework around the “public duty doctrine.” Chambers-

Castanes, 100 Wn.2d at 287.

The public duty doctrine operates as “a focusing tool” to ensure that

governmental entities may be held liable only “to the same extent as if they were a

private person or corporation.” Ehrhart, 195 Wn.2d at 398; RCW 4.96.010(1)

(emphasis added). To accomplish this, the public duty doctrine provides “a

mechanism for focusing upon whether a duty is actually owed to an individual

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

claimant rather than the public at large.” J&B Dev. Co. v. King County, 100

Wn.2d 299, 304-05, 669 P.2d 468 (1983), overruled on other grounds by Meaney

v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988). 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. This is a potentially “dispositive” issue because if the public duty

doctrine applies, the negligence claim must be dismissed for lack of an actionable

duty unless there is an applicable exception. Ehrhart, 195 Wn.2d at 396.

The four exceptions to the public duty doctrine are “(1) legislative intent, (2)

failure to enforce, (3) the rescue doctrine, and (4) a special relationship.” Munich,

175 Wn.2d at 879. However, “an enumerated exception is not always necessary to

find that a duty is owed to an individual and not to the public at large” because the

public duty doctrine does not apply to every tort claim against a governmental

entity. Beltran-Serrano, 193 Wn.2d at 549.

Instead, the public duty doctrine applies only to claims based on an alleged

breach of “special governmental obligations [that] are imposed by statute or

ordinance.” Id. “As to common law negligence, . . . ‘[t]his court has never held

that a government did not have a common law duty solely because of the public

duty doctrine.’” Id. at 549-50 (second alteration in original) (quoting Munich, 175

Wn.2d at 886-87 (Chambers, J., concurring)). Therefore, the public duty doctrine

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

is inapplicable to common law negligence claims, even if a governmental entity is

the defendant. Id.; see also Mancini v. City of Tacoma, 196 Wn.2d 864, 885-86,

479 P.3d 656 (2021) (holding that in “a case of affirmative misfeasance, all

individuals have a duty to exercise reasonable care,” including police officers

executing a search warrant). In claiming that “no precedent from this court

supports” our assertion that public duties are imposed by statute or ordinance, the

dissent appears to overlook, or simply disagree with, our holdings in Beltran-

Serrano and Mancini. Dissent at 4.

Thus, to determine whether the public duty doctrine bars the Norgs’ claim,

as the City contends it does, we must identify the duty that the City allegedly

breached and determine whether that duty is based on a generally applicable statute

or an individually applicable common law duty. If the duty is based on the

common law and owed to the Norgs individually, then the public duty doctrine

does not apply, our analysis ends, and we must affirm. If the duty is based on a

statute and owed to the public generally, then the public duty doctrine applies and

we must determine whether there are any applicable exceptions. If an exception

applies, we must affirm; if no exception applies, we must reverse.

In reviewing the trial court’s order on partial summary judgment, “this court

engages in the same inquiry as the trial court.” Cummins v. Lewis County, 156

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

Wn.2d 844, 852, 133 P.3d 458 (2006). “[W]hether an actionable duty was owed to

the plaintiff represents a question of law,” which is “reviewed [de] novo.” Id.

B. The public duty doctrine does not apply here because the Norgs allege that the City breached a common law duty owed to them individually, not a statutory duty owed to the general public

The City contends that this court’s precedent bars the Norgs’ claim because

“government 911 dispatch cases inherently fall within the public duty doctrine.”

City of Seattle’s Mot. for Discr. Rev. at 2 (analyzing Cummins, 156 Wn.2d 844).

By contrast, the Norgs contend that the public duty doctrine does not apply

because “the City’s duty arises from its direct and particularized interaction with

these particular plaintiffs.” Answer to Pet. for Rev. at 14. The trial court and the

Court of Appeals agreed with the Norgs. See Hr’g on Mots. (Nov. 8, 2019) at 46-

47; Norg, 18 Wn. App. 2d at 408-09. Based on the particular claim at issue in this

case, we affirm.

1. Cummins does not control the analysis or outcome here

The City and the dissent rely heavily on Cummins to argue that the public

duty doctrine applies to every tort claim based on an allegedly negligent 911

response. However, this broad, categorical reading of Cummins cannot be

reconciled with our analysis and holdings in that case.

The plaintiff in Cummins brought a tort claim against Lewis County based

on the alleged negligence of a “911 emergency dispatch unit” in responding to a

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

call for emergency medical assistance. 156 Wn.2d at 850. This court “conclud[ed]

that there is neither a statutory nor a common law duty on the part of a county to

dispatch medical aid under [the] circumstances” presented, and we therefore

affirmed the order of “summary judgment dismissing the petitioner’s wrongful

death action.” Id. at 848.

The City and the dissent contend that Cummins stands for the broad

proposition that “the government has no common law duty to respond to 911 calls,

and absent an exception to the public duty doctrine, a negligence claim regarding a

911 response to [a] heart attack caller fail[s] as a matter of law.” City of Seattle’s

Suppl. Br. at 12; see also dissent at 7-9 & n.3. This is incorrect. Like any opinion,

Cummins must be read in the context of the particular facts, procedure, and legal

arguments presented. Cf. State v. Molnar, 198 Wn.2d 500, 515, 497 P.3d 858

(2021) (“‘But the first rule of case law as well as statutory interpretation is: Read

on.’” (quoting Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 36, 133 S.

Ct. 511, 184 L. Ed. 2d 417 (2012))).

Factually, Cummins addressed a situation in which “an individual places a

‘911 call,’ identifies the nature of [their] medical emergency, provides a street

address but not [their] name, and ‘hangs up’ prior to either requesting help or

receiving an oral assurance from the operator that medical aid will be dispatched.”

156 Wn.2d at 848. Procedurally, the plaintiff in Cummins “sought this court’s

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

review only on the questions of whether a special relationship with the county had

been established and whether the express assurance requirement needed to

establish that particular relationship be eliminated or relaxed for medical

emergency callers.” Id. at 851. As noted above, such a “special relationship” is

one of the exceptions to the public duty doctrine. Munich, 175 Wn.2d at 879.

Thus, the parties in Cummins assumed that the public duty doctrine applied and

focused their arguments on whether there was an applicable exception.3 Finally,

on the merits of her claim, the plaintiff in Cummins did not contend that the county

owed her any common law duty. Instead, the plaintiff “assert[ed] that RCW

38.52.500 [(the E911 statute)] provides a 911 medical-emergency caller with an

implicit promise that the government entity fielding the call will ‘provide a rapid

response.’” Cummins, 156 Wn.2d at 853 n.6.

Each of these aspects of the Cummins case limits the applicability of our

opinion there. Factually, Cummins distinguishes between cases in which a 911

3 The dissent acknowledges that “this court did not expressly hold that the public duty doctrine applied” in Cummins, but it nevertheless asserts that “this holding inhered in our decision” based on the Court of Appeals opinion in that case. Dissent at 8 (citing State v. Schwab, 163 Wn.2d 664, 672, 185 P.3d 1151 (2008)). However, the Court of Appeals opinion, like our own, started from the assumption that the public duty doctrine applied and considered only whether to “expand” the exception for special relationships. Cummins v. Lewis County, 124 Wn. App. 247, 253, 98 P.3d 822 (2004). Moreover, even if the dissent’s characterization were accurate, that would merely establish the “law of the case” in Cummins. Schwab, 163 Wn.2d at 672. The law of the case doctrine “provides that once there is an appellate court ruling, its holding must be followed in all of the subsequent stages of the same litigation.” Id. (emphasis added). It does not transform every appellate ruling into a precedential holding by this court.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

caller has an extensive interaction with the dispatcher and cases in which the

“caller hung up the telephone before the dispatcher could obtain additional

information and before [they] could respond.” Id. at 848. Procedurally, Cummins

adheres to the “well-established maxim that this court will generally not address

arguments raised for the first time in a supplemental brief and not made originally

by the petitioner or respondent within the petition for review or the response to

petition.” Id. at 851. And legally, Cummins holds that “[a]t most, the E911 statute

imposes upon Washington’s counties an obligation to have in place an enhanced

911 system by December 31, 1998.” Id. at 853 n.6 (analyzing RCW 38.52.500-

.510). These limitations clearly distinguish Cummins from the case presented here.

Unlike the 911 caller in Cummins, it is undisputed that Delaura Norg

expressly requested help, remained on the phone with the 911 dispatcher for over

15 minutes, was assured by the dispatcher that medical aid was on the way, and

confirmed her address to the dispatcher multiple times. Unlike the parties in

Cummins, the parties here have timely and properly raised their contentions on the

threshold question of whether the public duty doctrine applies to the Norgs’ claim.

And unlike the plaintiff in Cummins, the Norgs do not claim that the City breached

any duty imposed by a statute. Instead, as discussed further below, the Norgs

claim that the City breached a common law duty of reasonable care that applies

equally to governmental and private entities.

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As a result, holding that Cummins controls the outcome of this case, as the

City and dissent would have us do, would “carv[e] out an exception to ordinary tort

liability for governmental entities,” contrary to the plain language of RCW

4.96.010(1). Beltran-Serrano, 193 Wn.2d at 550; see also RCW 4.92.090. We

decline to do so. The significant differences between Cummins and this case

require us to conduct an independent analysis.

2. The Norgs’ claim is based on the City’s alleged breach of a common law duty owed to the Norgs individually

As discussed above, to determine whether the public duty doctrine applies to

this case, we must determine what duty the City allegedly breached and whether

that duty was owed to the Norgs individually or to the general public. It is clear

from the nature of the Norgs’ claim that it is based on an alleged breach of the

City’s common law duty to use reasonable care, which was owed to the Norgs

individually. Therefore, the public duty doctrine does not apply as a matter of law.

This court has previously recognized that “[a]t common law, every

individual owes a duty of reasonable care to refrain from causing foreseeable harm

in interactions with others.” Beltran-Serrano, 193 Wn.2d at 550. Moreover,

although generally there is “no legal duty to come to the aid of a stranger,” a

common law duty of reasonable care “arises when one party voluntarily begins to

assist an individual needing help.” Folsom v. Burger King, 135 Wn.2d 658, 674-

75, 958 P.2d 301 (1998); see also Brown v. MacPherson’s, Inc., 86 Wn.2d 293,

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

299, 545 P.2d 13 (1975). Here, the Norgs assert that the City owed them a duty of

reasonable care once “the City, through its dispatcher, established a direct and

particularized relationship with the Norgs” and that the City breached this duty.

Suppl. Br. of Resp’ts at 24. Accordingly, the Norgs contend that the public duty

doctrine cannot bar their claim because “‘[t]his court has never held that a

government did not have a common law duty solely because of the public duty

doctrine.’” Id. at 11 (alteration in original) (internal quotation marks omitted)

(quoting Beltran-Serrano, 193 Wn.2d at 549-50).

By contrast, the City contends that the only duty at issue in this case is a

nonactionable duty owed to the general public, which is imposed by statute or

regulation. Primarily, the City contends that Cummins is “determinative” as to the

nature of the duty in this case. City of Seattle’s Suppl. Br. at 15. According to the

City, RCW 38.52.500 (the E911 statute) “provides a statutory basis for the City to

provide 911 medical services, as it did in Cummins,” so the public duty doctrine

must apply, as it did in Cummins. Id. at 16. However, as discussed above,

Cummins does not control the analysis here. Moreover, an examination of the

Norgs’ claim clearly shows that they do not rely on the E911 statute.

The E911 statute provides,

The legislature finds that a statewide emergency communications network of 911 telephone service, which allows an immediate display of a caller’s identification and location, would serve to further the safety, health, and welfare of the state’s citizens, and would save

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lives. The legislature, after reviewing the study outlined in section 1, chapter 260, Laws of 1990, further finds that statewide implementation of 911 telephone service is feasible and should be accomplished as soon as practicable. RCW 38.52.500. The City is correct to the extent that Cummins precludes tort

claims based on a governmental entity’s breach of the E911 statute unless there is

an applicable exception to the public duty doctrine. See Cummins, 156 Wn.2d at

853 n.6. However, no such claim is presented here. The Norgs do not claim that

the City failed to operate a 911 telephone service. They do not claim that the City

failed to accomplish its implementation of a 911 service as soon as practicable.

They do not claim that the City failed to answer their 911 call or violated any

“implicit promise under the E911 statute to promptly dispatch medical aid to save

the caller’s life.” Id. They do not claim the City violated its public duty to respond

to 911 calls by “choos[ing] to withhold their services.” Contra dissent at 3.

Instead, the Norgs claim that the City answered their 911 call and undertook

to render emergency assistance, but that the City acted negligently in doing so by

going to the wrong address. Such a claim could certainly arise against a private

ambulance service, given that “emergency medical assistance is not a unique

function of government.”4 Id. at 872 (Chambers, J., concurring). And if such a

claim arose against a private entity, it would certainly not be dismissed for lack of

4 The dissent disagrees based on an analysis of governmental and proprietary functions. Dissent at 9-12. The parties have not briefed that issue, and we decline to address it.

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

an actionable duty because, as the Court of Appeals correctly recognized,

“[p]rivate ambulance service providers, providing emergency medical services,

have historically been subjected to civil suit for negligence.” Norg, 18 Wn. App.

2d at 409 (citing Vogreg v. Shepard Ambulance Co., 47 Wn.2d 659, 289 P.2d 350

(1955); Scott v. Rainbow Ambulance Serv., Inc., 75 Wn.2d 494, 452 P.2d 220

(1969)). Thus, barring the Norgs’ claim solely because it is made against a

governmental ambulance service would mean that the governmental entity is

subject to less tort liability than a comparable private entity, rather than “the same”

tort liability, as required by our legislature. RCW 4.96.010(1) (emphasis added);

see also RCW 4.92.010.

In addition to the E911 statute, the City contends that “the Fire Department’s

budget constitutes an ordinance sufficient to support the conclusion that providing

SFD emergency 911 dispatch services is a general duty.” City of Seattle’s Suppl.

Br. at 17. However, the budget ordinance merely funds the City’s 911 dispatch

system. The Norgs do not claim that the City breached any obligation imposed by

the budget ordinance, and the City does not claim that the ordinance contains any

substantive requirements about the City’s obligations, or lack thereof, when

responding to any particular 911 call.

Thus, the Norgs’ claim is based on the City’s alleged breach of its common

law duty to exercise reasonable care when responding to their call for emergency

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

medical assistance. The City does not point to any statute supplanting this

common law duty. As a result, based on the undisputed facts, the public duty

doctrine does not apply to the Norgs’ claim as a matter of law. We need not

consider whether any of the doctrine’s exceptions apply.

CONCLUSION

The Norgs have established that the City owed them an individualized,

actionable duty of reasonable care when it undertook to respond to their 911 call.

The Norgs’ negligence claim is based solely on the City’s alleged breach of this

common law duty. Therefore, although we express no opinion as to whether the

Norgs will be ultimately be able to prevail on their claim, we hold that the public

duty doctrine does not apply. We affirm the Court of Appeals and remand to the

trial court for further proceedings.

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Norg v. City of Seattle, No. 100100-2

WE CONCUR:

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Norg v. City of Seattle

No. 100100-2

MADSEN, J. (dissenting)—Performing ambulance and emergency medical

services (EMS) is, as Washington lawmakers have recognized, essential for the health,

safety, and welfare of the people—the embodiment of a governmental function to which

the public duty doctrine applies. But, the majority appears to disapprove of the doctrine

and, in its haste to pull teeth from the public duty doctrine, ascribes to the philosophy of

“move fast and break things.” 1

Torturing our rules of precedent, the majority attempts to distinguish this court’s

opinion in Cummins v. Lewis County, which is directly on point. 156 Wn.2d 844, 133

P.3d 458 (2006). Repeatedly claiming that Cummins is “different” does not make it so.

Contrary to this court’s holding in Cummins, the majority concludes that municipal EMS

providers owe a common law duty of reasonable care in responding to 911 calls. See

majority at 8-9, 15, 17-18. Rather than straightforwardly applying precedent, the

majority relies on pronouncements made in concurrences from past cases and accepts

1 The former motto of Meta Platforms (more popularly known as Facebook). See, e.g., Hemant Taneja, The Era of ‘Move Fast and Break Things’ Is Over, HARV. BUS. REV. (Jan. 22, 2019), https://hbr.org/2019/01/the-era-of-move-fast-and-break-things-is-over [https://perma.cc/8CM8- 9BBD]. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

them as settled law, rewriting the public duty doctrine to apply only when duties are

imposed on government entities by statute or ordinance—creating virtually limitless

liability.

While I agree that the courtroom is often the best forum to resolve disputes, courts

have developed the public duty doctrine in recognition that government liability is not

unlimited. Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 252-53,

407 P.2d 440 (1965); Taylor v. Stevens County, 111 Wn.2d 159, 170, 759 P.2d 447

(1988). In its haste to limit the doctrine, the majority reimagines and then declaws the

public duty doctrine such that it is now practically inert. I disagree and respectfully

dissent.

1. The City of Seattle owes a duty to all its citizens to respond to 911 calls, not only to Delaura and Fred Norg

The majority concludes that the city of Seattle breached its common law duty of

care owed to the Norgs individually by way of the duty to rescue, thus making the public

duty doctrine inapplicable. Majority at 15-16. I cannot agree. “The first hurdle in any

negligence action is establishing a duty.” Bratton v. Welp, 145 Wn.2d 572, 576, 39 P.3d

959 (2002). As we have repeatedly recognized, the public duty doctrine “stands for a

basic tenet of common law [that] ‘[a] cause of action for negligence will not lie unless the

defendant owes a duty of care to [the] plaintiff,’” not the breach of a general obligation

owed to the public in general. Ehrhart v. King County, 195 Wn.2d 388, 398, 460 P.3d

612 (2020) (third alteration in original) (quoting Chambers-Castanes v. King County, 100

Wn.2d 275, 284, 669 P.2d 451 (1983)).

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

In my view, the question of duty is simple: the Seattle Fire Department owes a

general duty to respond to all residents who dial 911. That is, the city of Seattle owes a

duty to all. Unlike private ambulance companies that are compensated for their services,

municipally run and taxpayer-funded EMS providers cannot choose to withhold their

services. City of Seattle’s Suppl. Br. at 16-17 (stating that the Seattle City Council

adopts an annual budget for the fire department, including its 911 dispatch service, which

is paid by general tax revenue for the benefit of all Seattle citizens and is not supported by

a fee for service); see also Frequently Asked Questions, MEDIC ONE FOUND.,

https://www.mediconefoundation.org/about/faqs/ (“Medic One services rely on a voter-

approved tax levy to fund operating costs, including vehicles, paramedic salaries,

equipment, and supplies.”).

I disagree with the majority because the basic question of duty has not been

proved here. The Norgs have not shown that any duty was owed to them as individuals.

See Taylor, 111 Wn.2d at 163. A broad and general responsibility to the public rather

than to individual members of the public does not create a duty of care. See Osborn v.

Mason County, 157 Wn.2d 18, 28, 134 P.3d 197 (2006) (quoting Campbell v. City of

Bellevue, 85 Wn.2d 1, 9, 530 P.2d 234 (1975)). Based on the Norgs’ argument, I would

hold that the public duty doctrine is available to the city of Seattle.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

2. The majority relies on unsupported pronouncements from past concurrences and treats them as settled law

I depart from the majority on the fundamental question of whether the city of

Seattle owes an individual duty to the Norgs (it does not). I also disagree with the

pathway the majority takes in answering this question.

For the first time, a majority of this court claims 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.’” Majority at 10 (emphasis added) (alteration

in original) (quoting Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549, 442 P.3d

608 (2019)). Yet no precedent from this court supports the majority’s assertion. So how

did we get to this narrow and unprecedented conception of the public duty doctrine?

The twisted road begins with a pronouncement in a concurrence by Justice

Chambers in Munich v. Skagit Emergency Communications Center, 175 Wn.2d 871, 886,

288 P.3d 328 (2012)—that “the only governmental duties we have limited by application

of the public duty doctrine are duties imposed by a statute, ordinance, or regulation.”

(Emphasis added.) Never mind that this startling pronouncement is in a concurrence, not

a majority—let us reconstruct the journey. Since the majority’s first wrong step begins

with the Munich concurrence, so must I.

As support for its pronouncement, the Munich concurrence begins by identifying

cases that discuss government liability based on statutes, ordinances, or regulations—

there are many. However, all of the cases cited in the concurrence use permissive terms

when describing the government’s duty: “‘[l]iability can be founded upon a municipal

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

code,’” “‘we advised legislative bodies that, when they impose a duty on public officials

as a whole, no duty in tort is owed to a particular individual,’” “‘we acknowledged that

the law may impose a duty to perform a mandated act for the benefit of particular persons

or class of persons.’” Id. at 889 (Chambers, J., concurring) (emphasis added) (internal

quotation marks omitted) (quoting Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190

(1978); Baerlein v. State, 92 Wn.2d 229, 232, 595 P.2d 930 (1979); Hartley v. State, 103

Wn.2d 768, 782, 698 P.2d 77 (1985)). The concurrence cites other cases that simply

acknowledge that statutes, ordinances, and regulations can impose duties on public

officials that are owed to the public generally. Id. at 889-90 (quoting Meaney v. Dodd,

111 Wn.2d 174, 178, 759 P.2d 455 (1988); Honcoop v. State, 111 Wn.2d 182, 188, 759

P.2d 1188 (1988); Beal v. City of Seattle, 134 Wn.2d 769, 784-85, 954 P.2d 237 (1998)).

Clearly absent is any case mandating that the public duty doctrine applies only to duties

imposed by statute, ordinance, or regulation.

In the next leg of this twisted road, the majority begins to build on the shaky

foundation constructed in the Munich concurrence in decisions like Ehrhart, where we

said that the public duty doctrine “‘comes into play when [some] special governmental

obligations are imposed by statute.’” 195 Wn.2d at 399 (quoting Beltran-Serrano, 193

Wn.2d at 549 (citing Munich, 175 Wn.2d at 886)). These statements are fine as far as

they go, but, as with the cases the Munich concurrence relied on, the court did not limit

the application of the public duty doctrine to the narrow statutory or regulatory context.

Without critically examining its provenance, the majority uses Munich to go further. It

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

says, now conclusively, that the Munich concurrence is the law. According to the

majority, this is perfectly acceptable because five justices agreed with Justice Chambers’

concurrence in Munich and that is enough to make it binding precedent. See majority at

8. But even the Munich concurrence admitted that we have analyzed statutory and

common law duties under the public duty doctrine. Munich, 175 Wn.2d at 891

(Chambers, J., concurring); see Taggart v. State, 118 Wn.2d 195, 217-19, 822 P.2d 243

(1992); Bishop v. Miche, 137 Wn.2d 518, 530, 973 P.2d 465 (1999); Aba Sheikh v. Choe,

156 Wn.2d 441, 448-54, 128 P.3d 574 (2006).

The majority seems disinterested in engaging in a critical analysis on this point

and accepts as final a pronouncement in a concurrence—a concurrence that is internally

inconsistent. In my view, our job is not to assume a point of law or to decline to

thoroughly question a “holding” taken from a concurrence. Instead, we should consider

that conclusion deeply and decide openly whether it is indeed already settled or if we

must subject it to further scrutiny—scrutiny that was absent when the concurrence was

written. The court has not done so here. 2

2 Because concurrences—rather than majority opinions—play a central role in this case, it is critical that we examine those opinions’ analyses and conclusions, particularly when the concurrences are contrary to other majority opinions and are internally inconsistent as I have attempted to explain (in short, Munich is internally inconsistent and built on reasoning from a three-vote concurrence in Cummins). In my view, we do a disservice to our own analytical process as well as to the public at large when we decline to show our work. Thus, I would closely examine the Munich concurrence here instead of doubling down as the majority does by providing additional cases that simply adopted Munich without such consideration. See majority at 8, 11. Repetition is not a substitute for analysis.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

Applying the doctrine outside the statutory context, no doubt the majority will

protest, would restore sovereign immunity that was abolished with the enactment of

RCW 4.92.090 and RCW 4.96.010. See Beltran-Serrano, 193 Wn.2d at 549-50 (citing

Munich, 175 Wn.2d at 892 (Chambers, J., concurring)). Yet this was not a concern in

prior cases analyzing the public duty doctrine when both statutory and common law

duties were implicated.

If the majority is no longer convinced that these past cases (or indeed the public

duty doctrine itself) withstand careful analysis or conflict with the abolition of sovereign

immunity, the proper course of action is to correct our erroneous interpretation and

abandon the public duty doctrine. See State v. Schierman, 192 Wn.2d 577, 764, 438 P.3d

1063 (2018) (Yu, J., concurring in part and dissenting in part) (stating that we will

overturn rules announced by past cases when they are incorrect and harmful).

3. Cummins, not the concurrence in Munich, controls this case

Ironically, while the majority blithely accepts the Munich concurrence as “the

law,” it goes to great lengths to distinguish and limit this court’s precedential majority

decision in Cummins. Majority at 12-15. In that case, Leon Cummins died of a heart

attack despite calling 911, providing his address, and stating he was suffering a medical

emergency but ending the call before giving any other information. Cummins, 156

Wn.2d at 848-49. The 911 operator was concerned the call was a prank and dispatched a

police officer rather than medical services; the officer located a young man in the area

who claimed he made the call. After Cummins’ wife returned home and found her

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

husband dead, she brought a wrongful death claim against the county and city in which

they lived, alleging negligence on behalf of the 911 dispatcher and the police officer

investigating the call. Id. at 849-50. The issues before this court were whether to relax

the “express assurance” requirement for EMS calls and whether lower courts erred in not

finding a special relationship between Lewis County and Leon Cummins when he dialed

911. Id. at 851-52.

Based on Cummins’ facts and procedural history, the majority rejects the City of

Seattle’s reliance on the case. Majority at 12-15. I do not find Cummins is so easily set

aside. Because only the express assurance and special relationship exceptions were at

issue before this court, the majority notes that the parties “assumed that the public duty

doctrine applied.” Majority at 14. The parties did more than assume, however;

Cummins’ wife appealed the trial court’s dismissal of her claims based on the public duty

doctrine and the Court of Appeals affirmed. See Cummins v. Lewis County, 124 Wn.

App. 247, 251, 257, 98 P.3d 822 (2004). While this court did not expressly hold that the

public duty doctrine applied, in light of the fact that the Court of Appeals affirmed the

trial court’s ruling based on the doctrine, this holding inhered in our decision. See State

v. Schwab, 163 Wn.2d 664, 672, 185 P.3d 1151 (2008) (“[O]nce there is an appellate

court ruling, its holding must be followed in all of the subsequent stages of the same

litigation.” (citing Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005))).

Moreover, like the present case, no statutory duty was identified; and, our decision

in Cummins held the county was carrying out responsibilities it owed to the general

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

public when fielding Cummins’ 911 call, concluding “that no common law duty was

owed to Mr. Cummins individually or as a member of a particular class under these

circumstances.” 156 Wn.2d at 861.

Though the facts of Cummins and the present case are different in some respects,

the relevant details are the same: a resident calls 911 seeking emergency medical aid, a

catastrophic injury occurs, and negligence claims are brought against the local

governments providing emergency services. While Leon Cummins’ wife did not allege a

common law duty, this court nevertheless concluded a common law duty was not

individually owed to Cummins. Id. Here, the Norgs did claim the existence of a

common law duty of reasonable care, but under the public duty doctrine, this is a duty to

the public at large as in Cummins.

I am unpersuaded by the majority’s numerous, but ultimately picayune,

distinctions between these cases. In my view, the fundamental holding of Cummins

applies here and supports the city’s contention: the public duty doctrine applies to

municipally provided emergency medical assistance. 3

While I would hold that the city of Seattle owed a duty to the public at large under

the public duty doctrine, I do not believe the doctrine necessarily bars the Norgs’ claim.

Numerous exceptions exist. If any one of these exceptions applies, the government is as

3 The interpretation of Cummins is also critically important because Justice Chambers’ five-vote concurrence in Munich did not intend to overrule or reexamine previous cases. 175 Wn.2d at 894 (stating that Justice Chambers would not “change any of [this court’s] precedents” and “would not reexamine any case where we have held [that] the government does or does not owe a duty”). I would reaffirm Cummins and hold public duty doctrine applicable in the context of EMS.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

a matter of law held to owe a duty to the plaintiff. See Munich, 175 Wn.2d at 879. Here,

the Court of Appeals took the public duty doctrine off the table—we should reverse.

4. EMS services are not a proprietary function

In addition to certain exceptions, we have not applied the public duty doctrine

when local government engages in a proprietary function. Bailey v. Town of Forks, 108

Wn.2d 262, 268, 737 P.2d 1257 (1987).

The majority makes the surprising conclusion that “ʻemergency medical assistance

is not a unique function of government,’” and as such, municipal EMS providers are

subject to civil suits in negligence as are private entities. Majority at 17-18 (quoting

Cummins, 156 Wn.2d at 872). This is surprising because the majority relies entirely on

the Cummins concurrence for this proposition. See id. at 18 (citing Cummins, 156 Wn.2d

at 872). But the Cummins majority garnered five votes; the concurrence did not. Only

three justices signed that opinion. 4

The public duty doctrine applies when a public entity is performing a

governmental function. Bailey, 108 Wn.2d at 268. If an entity is performing a

proprietary function, it is held to the same duty of care as a private entity engaging in the

4 The majority states that because the parties did not brief the issue of governmental versus proprietary functions, we should not address it. Majority at 18 n.4. Yet the majority does address it. Repeating the three-vote concurrence in Cummins, the majority holds that “‘emergency medical assistance is not a unique function of government.’” Majority at 18 (quoting Cummins, 156 Wn.2d at 872) (emphasis added). In this, the majority repeats the same analytical flaw underlying the whole of this majority: it adopts the analyses and conclusions of concurrences without critical examination. Worse, the majority addresses the governmental/proprietary nature of EMS by invoking the statement in the concurrence in Cummins that it is not a governmental function and essentially overrules the Cummins majority.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

same activity. Stiefel v. City of Kent, 132 Wn. App. 523, 529, 132 P.3d 1111 (2006)

(citing Dorsch v. City of Tacoma, 92 Wn. App. 131, 135, 960 P.2d 489 (1998)). A

government acts in a proprietary capacity when it engages in a business-like venture

rather than in a governmental capacity. Hoffer v. State, 110 Wn.2d 415, 422, 755 P.2d

781 (1988). “The principal test in distinguishing governmental functions from

proprietary functions is whether the act performed is for the common good of all, or

whether it is for the special benefit or profit of the corporate entity.” Okeson v. City of

Seattle, 150 Wn.2d 540, 550, 78 P.3d 1279 (2003). Governmental functions are normally

those that involve ensuring compliance with state law, issuing permits, and performing

activities for the public health, safety, and welfare. Sunshine Heifers, LLC v. Dep’t of

Agric., 188 Wn. App. 960, 967-68, 355 P.3d 1204 (2015) (citing cases); see also Fabre v.

Town of Ruston, 180 Wn. App. 150, 159, 321 P.3d 1208 (2014). A proprietary function

tends to involve a city performing a service that might as well be provided by a private

corporation, particularly when it collects revenue from it. WILLIAM L. PROSSER,

HANDBOOK OF THE LAW OF TORTS § 131, at 980 (4th ed. 1971).

In yet another fork of the twisted road followed by the majority, it relies on

another unsupported statement in yet another concurrence—that EMS is “fundamentally

different from a request for police assistance,” which is not “unique to government.”

Cummins, 156 Wn.2d at 872 (Chambers, J., concurring). I disagree with this assertion—

and importantly, a majority of this court has not said this assertion is correct. Functions

of government and whether they qualify as unique are not static conventions.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

Government services evolve as society’s needs evolve. Further, where a government

entity acts in both governmental and proprietary roles, application of the public duty

doctrine can depend on the function being challenged. Stiefel, 132 Wn. App. at 530

(citing Goggin v. City of Seattle, 48 Wn.2d 894, 897, 297 P.2d 602 (1956) (construction

and maintenance of city streets is a proprietary function; supervision and control of

streets is a governmental function)).

The concurrence in Cummins (three votes) asserted that RCW 35.21.766 is

evidence that EMS is primarily a function of private business. Cummins, 156 Wn.2d at

872 (Chambers, J., concurring). I read the provision differently. RCW 35.21.766(2)

provides that when a private ambulance service is found inadequate, the legislative

authority of a city or town may establish an ambulance service operated as a public

utility. The legislature found expressly that

ambulance and emergency medical services are essential services and the availability of these services is vital to preserving and promoting the health, safety, and welfare of people in local communities throughout the state. All persons, businesses, and industries benefit from the availability of ambulance and emergency medical services, and survival rates can be increased when these services are available, adequately funded, and appropriately regulated.

LAWS OF 2005, ch. 482, § 1.

Performing ambulance and EMS is, as Washington lawmakers recognized,

essential for the health, safety, and welfare of the people—the embodiment of a

governmental function. See Sunshine Heifer, 188 Wn. App. at 967-68. 5 The provision of

5 I also note that “the creation, maintenance, and operation of a fire department and all reasonably incident duties are a governmental function.” Stiefel, 132 Wn. App. at 529-30 (citing

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100100-2 Madsen, J., dissenting

EMS may also be provided by a private corporation, but unlike a for-profit company, a

local government collects no specific revenue for the service that it provides for the

common good for all residents. See Okeson, 150 Wn.2d at 550; PROSSER, supra, at 980.

In sum, I would hold as matter of law that the city of Seattle may argue the public

duty doctrine in response to the Norgs’ negligence claim. This does not, however, bar the

Norgs from asserting exceptions to the doctrine. I would reverse the Court of Appeals

and remand the case to the trial court to determine whether any such exceptions can be

satisfied. With these considerations in mind, I respectfully dissent.

___________________________________

___________________________________ Toynbee, J.P.T.

Lakoduk v. Cruger, 47 Wn.2d 286, 289, 287 P.2d 338 (1955) (firefighter acting in governmental capacity when responding to call for first aid assistance); Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 777, 30 P.3d 1261 (2001) (plurality opinion) (public duty doctrine provides immunity to firefighters in the performance of their duties)). Because the Seattle Fire Department operates and staffs Medic One, it may qualify as a governmental function as a reasonably incident duty for the operation of a fire department. See id.; see also Medic One: About Us, SEATTLE FIRE DEP’T, https://www.seattle.gov/fire/about-us/about-the- department/operations/medic-one [https://perma.cc/WJ67-R54R].