Division I: Express Promise Not Required Under Public Duty Doctrine
It's been a while since I've blogged an opinion. This case is chilling. A psycho decides to start taking pot shots at a neighbor with his rifle. The victim calls 911 and is told several times that help is on the way. Unfortunately, because of the promise of help, he wasn't able to weigh his options for taking this guy on on his own. He waited in a garage for help, rather than getting the hell out of dodge, because he thought help was actually on the way. The delay cost him his life:
In order to establish that a special relationship exists, a plaintiff must prove three elements: (1) direct contact or privity between the public official and the plaintiff which sets the plaintiff apart from the general public, and (2) an express assurance given by the public official, which (3) gives rise to a justifiable reliance on the part of the plaintiff. Babcock, 144 Wn.2d at 786. "The plaintiff must seek an express assurance and the government must unequivocally give that assurance." Id. at 789.
We hold that the Estate is not required to prove, in addition to these three elements, that the express assurance was false or inaccurate. The cases cited by the County to argue otherwise are distinguishable. Initially, we note that all of the cases cited by the County apply the same three-part test we have identified for finding a special relationship: privity, express assurance, and detrimental reliance. See, e.g., Harvey v. Snohomish County, 157 Wn.2d 33, 38-41, 134 P.3d 216 (2006); Meaney v. Dodd, 111 Wn.2d 174, 178-79, 759 P.2d 455 (1988); Taylor v. Stevens County, 111 Wn.2d 159, 166, 759 P.2d 447 (1988); Vergeson v. Kitsap County, 145 Wn. App. 526, 539, 186 P.3d 1140 (2008); Smith v. State, 135 Wn. App. 259, 282, 144 P.3d 331 (2006). To the extent that courts have considered or addressed the falsity or inaccuracy of an express assurance, we conclude that such a consideration is not required in this context, where the alleged express assurance does not consist of providing information but is instead a promise of future action.
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In sum, we hold that here, where the alleged express assurance involved a promise of future action, the Estate is not required to show that the express assurance was false or inaccurate in order to establish the existence of a special relationship. The cases repeatedly employ the same three-part test, which does not require a plaintiff to show the falsity or inaccuracy of an assurance. Based on our holding, we conclude that the trial court did not err in finding that there were genuine issues of material fact regarding the existence of a special relationship between William Munich and Skagit County.
Congratulations to Stritmatter Kessler Whelan Coluccio for once again making great case law on the side of Justice!