When the government negligently fulfills its duty to protect everyone, it usually is not liable to anyone in particular. The Washington Supreme Court, in Munich v. Skagit Emergency Communication Center, (No. 85984-1), dealt with a thorny exception to that rule.
The facts of the case are tragic. While fighting over their property lines, William Munich’s neighbor fired a shotgun at him. Munich ran into his garage and called 911. The operator, a Skagit County employee, assured him that police were on the way and told him to stay put. But on the triage system the operator accidentally entered the call as a non-emergency. As a result, the officer en route did not turn his lights on or speed to Munich’s house. In the meantime, Munich’s neighbor barged into the garage and shot him to death with over a dozen rounds. The officer arrived two minutes later.
Special Relationship Exemption
Munich’s estate then sued Skagit County. Acknowledging that the government generally isn’t liable for failing to protect, the estate fell back on the so-called “special relationship” exception. Under the special relationship exception, when a government employee has direct contact with a member of the public and expressly assures him that the government will take action, the person has a special relationship with the government and may sue if the government does not live up to its assurance. Munich’s 911 call seemed a perfect example of a special relationship. But a line of Washington cases suggests that, to create a special relationship, a government assurance must be false. So Skagit County responded by noting that the 911 operator’s assurance was true — police were indeed on their way, just as the operator said.
Ruling: Information v. Action
Eight Justices disagreed in a decision penned by Justice Fairhurst. There is a distinction, the Court held, between assurances that simply provide information and those that promise action. When the government provides information — for example, when it tells a homeowner that he can have a building permit — the assurance must indeed be false for a special relationship to arise. But when the government promises action, it must keep the promise (or at least not negligently break it). So the Court allowed Munich’s case to proceed to trial.
Five Justices concurred in an opinion, written by Justice Chambers, which could prove equally important to the lead opinion. Noting that the Court has been less than clear on when the government owes duties to particular people, those concurring explained that governments are meant to be liable in the same ways as private people. When a statute or regulation obligates them to take some action — such as providing permits or answering 911 calls — the state is saddled with greater obligations than an individual person. Therefore, they may avoid liability to any person in particular when taking that action (unless an exception, such as a special relationship, applies).
But when they act as a private person would — such as when they invite people into government buildings — they may be liable, just as any building owner would. As a result, those concurring reasoned the government may avoid liability to particular people only when it is executing a function prescribed by a statute or regulation. When it is not doing so, when it is acting just as a private person would, it may be liable just as any private person would.
The concurrence may mark a new direction for Washington law. Or it may simply be a clear explanation of a sometimes murky legal issue. Either way, practitioners involved in government litigation should take note.