Taylor v. Stevens County

732 P.2d 517, 47 Wash. App. 134

• Court: Court of Appeals of Washington
• Decided: March 10, 1987
• Docket: 7260-6-III
• Status: Published

Opinions

Green, J.

Harry and Robin Taylor brought an action against Stevens County, American Pacific Realty, Inc., and the sellers, Harry and Mary Murray, for damages as a result of alleged defects in the home they purchased from the Murrays. The County moved for dismissal based on the pleadings for failure to state a claim. CR 12(b)(6). This motion was granted. American Pacific Realty, the Murrays, and the Taylors appeal. The propriety of this dismissal presents the sole issue on appeal.

The following statement of facts is based upon the allegations in the parties' pleadings. In 1981 the Murrays, owners of a home near Colville, listed their home for sale with American Pacific Realty. During that summer and fall, the Taylors, who resided in western Washington, decided to buy a home in eastern Washington. In November Alan Mack of American Pacific Realty showed the Murrays' home to the Taylors. The Taylors allege they inquired and were assured by Mr. Mack that all county permits and inspections concerning the house were in order. Subsequently they were informed by Mr. Skidmore, attorney and closing agent for the Murrays and American Pacific Realty, that a building permit would be obtained prior to closing. The realty company denies that any assurances were given the Taylors and that Mr. Skidmore acted as its closing agent. On November 30 the Murrays applied to Stevens County for a building permit. In early December the county building inspector inspected the Murrays' home and noted that the home appeared to be average for the area. On December 7, 1981, the County issued a permit to the Mur-rays with an expiration date of December 7, 1982, on the condition that future inspections would be required. The sale to the Taylors was completed on December 8, 1981. The sales agreement noted the house was not fully completed and the Taylors acknowledged they had examined the premises and accepted it "as is". The Taylors moved into the home during the spring of 1982.

Subsequently, various defects were discovered by the Taylors. On August 8, 1983, at the Taylors' request, the County inspected the premises again and found numerous violations of the building code. After their claim against the County was denied, this action was commenced. The court dismissed the claims against Stevens County on two bases: (1) it owed no actionable duty to the Taylors, the Murrays, or American Pacific Realty, and (2) even if it did, the exculpatory language in the county building code relieved it of any liability. This appeal followed. Since the dismissal was based on the pleadings pursuant to CR 12(b)(6), we must treat all facts alleged by the parties and the reasonable inferences therefrom as true. Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 577 P.2d 580 (1978).

In 1961 the Legislature abolished sovereign immunity making the State liable for damages arising out of its tortious conduct to the same extent as a private person or corporation. RCW 4.92.090. In 1967 it abolished sovereign immunity for its subdivisions as well. RCW 4.96.010. These statutes did not create new causes of action nor create new liability. Chambers-Castanes v. King Cy., 100 Wn.2d 275, 287-88, 669 P.2d 451, 39 A.L.R.4th 671 (1983). Immunity was retained where the State's action is discretionary rather than ministerial, Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965), or the duty owed by the State is to the public generally rather than a private person—commonly denominated the "public duty doctrine". Chambers-Castanes v. King Cy., supra. Only the second situation is involved in this appeal. The courts have refused to apply the public duty doctrine where (1) a statute clearly indicates it is intended to protect a "class" of persons of which the complaining individual is a member, Baerlein v. State, 92 Wn.2d 229, 231-32, 595 P.2d 930 (1979); Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978); Mason v. Bitton, 85 Wn.2d 321, 325-26, 534 P.2d 1360 (1975); or (2) a "special relationship" has developed between an individual and the governmental entity creating a duty to perform a mandated act for the benefit of a particular person or class of persons. Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985); J&B Dev. Co. v. King Cy., 100 Wn.2d 299, 669 P.2d 468, 41 A.L.R.4th 86 (1983); Chambers-Castanes v. King Cy., supra at 285; Campbell v. Bellevue, 85 Wn.2d 1, 13, 530 P.2d 234 (1975).¹

First, the Taylors contend that RCW 19.27.031, which requires all counties to adopt the Uniform Building Code, was intended to protect them individually. We disagree. The traditional rule is that municipal ordinances impose a duty upon municipal officials which is owed to the public as a whole and not to any particular individual. Halvorson v. Dahl, supra at 676; Georges v. Tudor, 16 Wn. App. 407, 556 P.2d 564 (1976). However, liability may be predicated upon a code which by its terms indicates a clear intent to protect a particular class of persons. The Taylors assert the purpose of the building code which is "to promote the health, safety and welfare of the occupants or users of buildings and structures . . .", RCW 19.27.020, encompasses within its ambit subsequent purchasers, like themselves. The County argues this interpretation is too broad because it would include every man, woman and child in the state of Washington—a result not intended by the Legislature.

Language very much like that under consideration was found to protect the occupant of a hotel who died in a fire in Halvorson v. Dahl, supra. The court in Halvorson held the language of section 27.04.020 of the Seattle Housing Code, which stated "conditions and circumstances . . . dangerous and a menace to the health, safety, morals or welfare of the occupants of such buildings and of the public . . .", was intended to include the deceased occupant; thus the City of Seattle had a duty to exercise reasonable care in enforcing the code. (Italics ours.) Halvorson, at 677 n.l. Both the ordinance in Halvorson and the building code in the instant case refer to "occupants" as a protected class. However, we do not find Halvorson controlling.

Here, we are not concerned with an occupant or user in the Halvorson sense, but buyers and sellers of real property. To extend Halvorson to this situation would make the County the ultimate insurer when a home is sold and code defects are thereafter discovered. We do not find this to have been the Legislature's intent. Thus, the Taylors' contention they are within the umbrella of RCW 19.27 must be rejected.

Second, the Murrays contend they come within the special relationship exception to the public duty doctrine by virtue of the County's inspection and issuance of the building permit. The Taylors also claim a special relationship contending their rights are derived through the Murrays or through their status as purchasers from them. American Pacific Realty contends it too has a special relationship because it prepared the permit application for the Murrays and relied on the inspection in closing the sale. These contentions must be rejected.

A special relationship is determined by whether the municipality's duty has "focused" upon a particular individual. J & B Dev. Co., at 304. This generally requires some form of privity between the entity and the individual and reliance upon express or implied assurances by the entity. Chambers-Castanes, at 286. Privity is broadly defined to include any "reasonably foreseeable plaintiff." ChambersCastanes, at 286. A special relationship has been found where a crime victim had made several calls of help to police dispatchers who assured help was on the way, but who did not arrive until 1 hour 20 minutes later (Chambers-Castanes v. King Cy., supra); where an inspection and assurances by a city agent that an electrified stream had been corrected but it had not, resulting in the death of the plaintiff's wife (Campbell v. Bellevue, supra); and where a buyer of property relied on inaccurate zoning information and suffered economic loss (Rogers v. Toppenish, 23 Wn. App. 554, 596 P.2d 1096, review denied, 92 Wn.2d 1030 (1979)).

In J & B Dev. Co., the court held that with respect to setback requirements, a builder had the right to rely on a building permit issued by the County and the permit inherently implied that the proposed structure was in compliance with applicable code provisions. The court found the County's permit and inspection requirements were intended to benefit a limited class, the builders. They based this conclusion upon Restatement (Second) of Torts § 552(3) (1977):

The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

In the case at hand, it would appear the Murrays, who applied for and received the building permit from the County, are within the class of "builders" intended to be protected. However, to recover based on a special relationship, the Murrays must allege they relied upon the permit as a certification the house was free of defects. Here, the Murrays allege the house was completed at the time of the inspection and issuance of the permit and further allege they relied upon it for purposes of consummating the sale. Thus, the application was not made for purposes of future construction, but only for the purpose of closing the sale. The code requires an application for a building permit before construction begins and calls for periodic inspections as the construction proceeds to completion. The permit and final approval are conditioned upon passing the periodic inspections. Here, the home was constructed and then a permit was sought. In this situation, the Murrays had no right to rely upon the county inspection and permit because they had already completed construction of the home and were living in it. Again, we do not believe the County is intended to be an insurer against defects created by the seller and later discovered by an unhappy purchaser of a home. This is not the type of reliance anticipated by the statute nor the case law. J & B Dev. Co. v. King Cy., supra. Thus, we conclude the Murrays have failed to allege a special relationship and their contention to the contrary must be rejected.

To the extent the Taylors claim their rights are derived from the Murrays' relationship to the County, it fails as well. The class to be protected is "builders”, which the Taylors are not. This leaves the question of whether the Taylors have stated sufficient allegations to independently establish a special relationship. As already stated, the duty must "focus" on the particular individual which generally requires some form of privity between the entity and the individual. Here, there was no contact between the Taylors and the County. The Taylors argue privity is not required, relying on Radach v. Gunderson, 39 Wn. App. 392, 695 P.2d 128, review denied, 103 Wn.2d 1027 (1985). We do not agree. In Radach, the Gundersons hired a builder to construct an oceanfront home and the City inspected and issued a building permit without noticing it violated the setback requirements of the zoning code. The adjoining property owner, Radach, notified the City but, even after the City was aware of the violation, it refused to halt construction. The court clearly stated "Gundersons' liability runs to Radach and the City's duty runs to the Gunder-sons." Radach, at 397. Privity between Radach and the City was not required because the Radach recovery was against the Gundersons. The Gundersons recovered by way of indemnity from the City based on privity.

Even using the broad definition of privity in Chambers-Castanes, the Taylors were not "reasonably foreseeable plaintiffs" when the County issued the permit. Again, every prospective purchaser of a home would be a "reasonably foreseeable plaintiff", a result not intended by the abrogation of sovereign immunity. We reiterate the purpose of the building and similar codes is generally viewed as a duty owed to the public, not the individual. Georges v. Tudor, supra. It is inconceivable the Legislature intended to shift liability for defective construction from the builder to the municipality and its taxpayers when it enacted the building codes. Moreover, to expand the definition of privity to include subsequent purchasers would be contrary to established case law which limits the class of reasonably foreseeable plaintiffs to builders. J & B Dev. Co. v. King Cy., supra. Thus, the Taylors' complaint fails to allege a special relationship and was properly dismissed.

For the above reasons, we also find American Pacific Realty's and its agent's claim based upon a special relationship fails as well. First, the duty owed, if any, was to the Murrays as builders, not the realty company. Second, relying on the certification for purposes of consummating the sale is not, as a matter of law, the type of reliance anticipated by the statute or case law. There was no error in dismissing American Pacific Realty's claim.

Finally, the Taylors contend the court erred in failing to consider their common law causes of action based upon negligent misrepresentation, negligence, and promissory estoppel. The Taylors raise this in their reply brief for the first time and thus we will not consider it on appeal. RAP 10.3(c).

In light of our holding, we need not reach the question of whether the exculpatory provisions of the county building code relieved it of liability.

Affirmed.

Munson, J., concurs.

1 The court has also declined to apply the public duty doctrine where the governmental entity has gratuitously assumed a duty to an individual. Brown v. MacPherson's, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975); Sado v. Spokane, 22 Wn. App. 298, 588 P.2d 1231, review denied, 92 Wn.2d 1005 (1979); Comment, A Unified Approach to State and Municipal Tort Liability in Washington, 59 Wash. L. Rev. 533 (1984).