A Duty to All is a Duty to No One: Understanding the Public Duty Doctrine

Earlier this year, the Washington Supreme Court (Court) issued a decision that has a major impact on the public duty doctrine.

In Norg v. City of Seattle, the Court, in a 5-4 decision, ruled that the public duty doctrine does not apply in tort cases where a plaintiff’s claim is based on a common law duty as opposed to a statutory duty. This decision presents an opportunity to take a closer look at the public duty doctrine and its effect on government tort liability.

Why Is There a Public Duty Doctrine?

The public duty doctrine is an outgrowth of the abolition of sovereign immunity for state and local governments by the Washington State Legislature in the 1960s. Prior to that, Washington local government entities were immune from tort (negligence) liability to the extent they were performing governmental (as opposed to proprietary) functions. The enactment of RCW 4.96.010 changed that by providing:

All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct…to the same extent as if they were a private person or corporation.

Abolition of sovereign immunity made sense, but it raised other issues. One area the legislature did not specifically address was cases in which the state or a local government was performing functions that are uniquely governmental, in the sense that there is no “private person or corporation” to compare with in order to be liable to the “same extent.”

The courts developed the public duty doctrine as an analytical tool for determining if a tort duty should still be imposed on a government agency, despite the legislature's statutory waiver of immunity, based on the type of function it was carrying out. If the function is the type that is solely provided by the government, i.e., “a public duty,” then immunity would still apply. So, for example, the public duty doctrine covers fire protection services since that is a government function that is exclusively carried out by government.

A primary purpose of the public duty doctrine is to ensure that governments are not subject to liability to a greater extent than private persons or entities. The doctrine is intended to protect government entities from the prospect of excessive tort liability.

Characteristics of the Public Duty Doctrine

Many public duty doctrine cases state that “a duty to all is a duty to no one.” In other words, to overcome the barrier to liability, a plaintiff must show that a local government had a specific duty to the plaintiff rather than to the public at large.

Building inspection services is an area where courts have found the public duty doctrine applies in claims against local governments. For example, if a property owner hires a contractor to perform work under a building permit, and the work later turns out to be defective, the owner may have a claim against the contractor but generally will not be able to sue the government agency that issued the permit and inspected the work. Permit inspections are a general government function — ensuring compliance with building codes is a duty to the public at large — and holding local governments liable to the property owner in such cases could indeed open the liability floodgates.

Even in cases where it is found that the government’s duty is to the public at large, there historically have been four exceptions under which a government may be liable:

• “Legislative intent” to impose a duty of care;
• A “special relationship” between plaintiff and the public entity (such as express assurances of help or aid on the part of the public agency);
• “Volunteer rescue” efforts; or
• “Failure to enforce” a specific statute.

Is your head swimming yet? When a government entity asserts the public duty doctrine as a defense to a negligence claim, the analysis is nuanced and complex. The outcome is difficult to predict because the public duty doctrine is at the fulcrum between two competing interests. The Washington State Legislature abolished sovereign immunity to ensure that those harmed by the negligence of government had recourse.

On the other hand, the specter of excessive government liability is a legitimate concern because public funds are used by government to procure insurance, defend claims, and pay settlements and judgments. Each time a government asserts the public duty doctrine, these interests loom in the background for the court deciding the issue.

Norg v. City of Seattle: New Developments in the Public Duty Doctrine

In Norg, a spouse called 911 seeking medical aid for her husband, who was having a heart attack. The dispatcher promptly assigned three units from two nearby fire stations to respond. The spouse provided the dispatcher the correct address for their apartment. The dispatcher told the spouse that “a lot of people” were on the way. The dispatcher provided the correct address to the units, but the units mistakenly went to a nursing home in the area for which they receive many calls. Upon realizing their mistake, the units went to the apartment, but the plaintiffs alleged that the delay caused the husband severe and permanent injuries.

The City of Seattle argued that the public duty doctrine shielded it from liability. The Washington Supreme Court decided that the doctrine did not apply. First, the Court ruled that the public duty doctrine does not necessarily apply to government-provided emergency medical services, reasoning that a private ambulance service might be liable if it negligently went to the wrong address, and the legislature requires government entities to be subject to the same, not less, tort liability as private entities.

The Court also cited to prior cases that explained that the doctrine applies only in cases involving breaches of special government obligations imposed by statute or ordinance. Therefore, the doctrine does not apply when the alleged breach is based on common law duties. “At common law, every individual owes a duty of reasonable care to refrain from causing foreseeable harm in interactions with others.” See Beltran-Serrano v. Tacoma, 442 P.3d 608, 614 (2019).

The Court found that a common law duty of care arose when the dispatcher assured the plaintiffs that help was on the way. The Court distinguished Norg from a prior case where a caller hung up before actually asking for and receiving promises of help. In the Norg case, by not confirming the address and going to the wrong location, the city breached its common law duty by failing to take reasonable care. Because the claim was based on a common law duty and not on an obligation imposed by statute or ordinance, the public duty doctrine was inapplicable, so it was unnecessary to analyze whether any of the exceptions to the doctrine applied.

Conclusion

Almost since its inception, there have been calls by some to abolish the court-created public duty doctrine. Some courts in other states have done so, while others have kept it. In Washington, the public duty doctrine is not dead, but its limited application has been expressly stated by Norg. Local governments should work closely with their legal counsel and insurers to understand the doctrine and the effect of Norg.