# Buddy Q, LLC v. City of Yakima

> Court of Appeals of Washington · January 24, 2023

URL: https://www.frixlaw.com/law-library/cases/11265972

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** January 24, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion of the court
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
JANUARY 24, 2023
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

BUDDY Q, LLC, a Washington Limited )
Liability Company; and EVERGREEN ) No. 38066-1-III
FINANCIAL SERVICES, INC., A ) Consolidated with:
Washington Corporation, )
)
Respondents, )
)
v. )
)
THE CITY OF YAKIMA, a Washington )
Municipal Corporation, )
)
Appellants. )
)
) No. 38079-3-III
J&D VENTURES, LLC, a Washington )
Limited Liability Company, et al., )
)
Respondents, )
)
v. ) UNPUBLISHED OPINION
)
THE CITY OF YAKIMA, a Washington )
Municipal Corporation, )
)
Appellants. )

STAAB, J. — Buddy Q, LLC, J&D Ventures, LLC, and other landowners

(collectively referred to as Buddy Q) sued the City of Yakima (City) under a theory of

negligence for damages suffered after the City diverted floodwaters away from an
No. 38066-1-III (Consolidated with 38079-3-III)
Buddy Q., LLC, et al v. City of Yakima

intersection and commercial buildings toward a lake system. When the lake system

overflowed, the plaintiffs’ properties were damaged. The City moved for summary

judgment raising several theories of defense, including the public duty doctrine. The trial

court denied the motion for summary judgment. This court granted the City’s motion for

discretionary review solely on the issue of whether the public duty doctrine applies.

The public duty doctrine applies when government obligations are imposed by

statute and is used to guide courts in identifying the recipient of a duty. A statutory duty

owed to the public generally is not a duty owed to any individual plaintiff unless one of

the enumerated exceptions applies. In this case, the City points out that it had declared a

public emergency and argues that it was diverting floodwaters pursuant to a general

obligation imposed by the Washington Emergency Management Act (WEMA), chapter

38.52 RCW. While the WEMA authorizes the government to act quickly and avoid

certain regulatory hurdles under the right circumstances, the City does not point to any

specific mandate that requires it to perform flood mitigation. Since the City does not

meet its burden of showing that its actions were required by a statutory duty owed to the

public, the trial court did not err in denying the City’s motion for summary judgment.

We remand without prejudice. If the City can demonstrate its actions were

mandated by a statutory duty owed to the public, then the public duty doctrine applies

unless the plaintiffs can establish an exception. On the other hand, if the City was

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choosing to act, it had a common law duty to exercise reasonable care, and the public

duty doctrine does not apply.

BACKGROUND

Because the case is before us on the City’s motion for summary judgment, the

following facts are set forth in a light most favorable to the nonmoving party, Buddy Q.

In mid-March 2017, rapid snowmelt resulted in historical surface water flooding in

several locations throughout the city of Yakima, including the Cowiche Creek Basin. On

March 15, the mayor of Yakima declared an emergency and invoked the powers

authorized by the WEMA.

That same day, a private levee broke near Cowiche Creek and floodwater began

flowing down 40th Avenue, reaching the high-traffic intersection of 40th Avenue and

Fruitvale Boulevard. To mitigate the damage from the floodwater, City workers

constructed a berm across the intersection to divert the water toward Myron Lake, part of

a lake system designed with flood gates that empty into the Yakima River. The gates did

not open and the lake system overflowed, damaging several adjacent properties.

Buddy Q and numerous plaintiffs sued the City for negligence. The plaintiffs

alleged that damage to their properties were proximately caused by the City’s negligent

act of diverting surface water to the lake system adjacent to their properties. The City

denied liability and raised various defenses.

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The parties filed competing motions for summary judgment. The City argued it

was immune from liability under the flood control immunity statute, as well as the

emergency and public duty doctrines. In the alternative, the City argued that the

plaintiffs had failed to present evidence of causation. The trial court denied both

motions, and the City sought discretionary review. We granted review solely on the issue

of whether the public duty doctrine applies to preclude liability.

ANALYSIS

The sole issue presented in this interlocutory appeal is whether the trial court erred

in denying the City’s motion for summary judgment and declining to apply the public

duty doctrine to the City’s act of diverting floodwaters from a busy intersection into a

nearby lake system.

Orders on summary judgment are reviewed de novo. Keck v. Collins, 184 Wn.2d

358, 370, 357 P.3d 1080 (2015). Evidence is considered in a light most favorable to the

nonmoving party. Id. Summary judgment is appropriate only if there are no genuine

issues of “material fact and the moving party is entitled to judgment as a matter of law.”

Id.

A threshold issue in any negligence claim is whether the defendant owed a duty of

care to the plaintiff. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784-85,

30 P.3d 1261 (2001). The question raised in this appeal is not whether the City owed a

duty but to whom it was owed.

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In 1967, the legislature passed a statute waiving Washington’s sovereign

immunity to tort suits. RCW 4.96.010. The statute provides that “[a]ll local

governmental entities . . . 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).

Thus, the general rule is that a municipality is liable for negligence to the same extent as

a private person.

This general rule becomes problematic when duties are imposed on the

government by statute, ordinance, or regulation that would not ordinarily be imposed on a

private person. See Munich v. Skagit Emergency Commc’n Ctr., 175 Wn.2d 871, 886-87,

288 P.3d 328 (2012) (Chambers, J., concurring). Because private citizens do not “issue

permits, inspect buildings, or maintain the peace and dignity of the state of Washington,”

when these duties are mandated by statute, it creates an additional burden on the

government that would not be imposed on a private person. Id. at 887.

Recognizing that government entities should not be held liable under duties that

would not apply to private citizens, courts developed the public duty doctrine. The

doctrine concentrates on the first element of negligence: a defendant’s duty owed to a

particular plaintiff. It is often referred to as a focusing tool: used by courts to distinguish

between a duty owed to the general public or a duty owed to a particular individual or

class of individuals. Mancini v. City of Tacoma, 196 Wn.2d 864, 885, 479 P.3d 656

(2021). “When laws ‘impose[ ] duties on governments not imposed upon private persons

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or corporations,’ courts must determine whether governments owe those duties to an

individual or the public as a whole.” Ehrhart v. King County, 195 Wn.2d 388, 399, 460

P.3d 612 (2020) (quoting Munich, 175 Wn.2d at 887 (Chambers, J., concurring)). The

distinction is necessary because a duty owed to the public at large is a duty owed to no

individual person. Munich, 175 Wn.2d at 878. Thus, when a plaintiff alleges that the

government violated a public duty, the plaintiff fails to establish negligence as a matter of

law. Bailey v. Town of Forks, 108 Wn.2d 262, 266, 737 P.2d 1257 (1987) (“By requiring

that a duty toward the particular plaintiff be established, these basic tort principles serve

the same end as the public duty doctrine.”).

Even when a duty is imposed by statute, ordinance, or regulation, the public duty

doctrine will not apply if the plaintiff can demonstrate that one of the four exceptions to

the public duty doctrine applies.1 Ehrhart, 195 Wn.2d at 400. Nor does the public duty

doctrine apply if the plaintiff can demonstrate that the government was engaged in a

proprietary function when it negligently caused the injury. Bailey, 108 Wn.2d at 268.

Whereas government functions are performed for the common good, proprietary

functions benefit a particular person or corporate entity. Schulz v. State, 12 Wn. App. 2d

1
The parties do not contend that the exceptions apply in this case, but they include
“‘(1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special
relationship.’” Ehrhart, 195 Wn.2d at 400 (quoting Beltran-Serrano v. City of Tacoma,
193 Wn.2d 537, 549 n.7, 442 P.3d 608 (2019)).

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729, 742, 459 P.3d 1090 (2020). Regardless of whether the court is considering the

public duty doctrine generally, one of the exceptions to the rule, or the nature of the

function, “the fundamental question remains the same: Does the government owe a duty

to the plaintiff individually or merely to the public as a whole?” Ehrhart, 195 Wn.2d at

400.

The parties in this case misconstrue the public duty doctrine. The City argues that

the public duty doctrine provides a complete defense because none of the exceptions

apply, and the City was acting to promote public safety when it took steps to divert the

floodwaters. Br. of Appellant at 28. However, as Justice Chambers noted, the public

duty doctrine does not require one of the four exceptions to apply in order for a duty to

arise. Munich, 175 Wn.2d at 886 (Chambers, J., concurring). Instead, it is a tool of

statutory interpretation to determine whether the legislature intended a duty imposed by a

statute to be owed to the general public or a particular individual. Id. at 888.

The plaintiffs on the other hand, do not assert one of the exceptions to the public

duty doctrine, but they do contend that the doctrine does not apply because the City was

performing a proprietary function when it diverted the water from an intersection. Br. of

Resp’t at 11-13. However, Buddy Q’s definition of a proprietary function is overly broad

and includes any function other than passing laws or conducting inspections. Br. of

Resp’t at 18. Contrary to Buddy Q’s characterization, “[t]he principal test in

distinguishing governmental functions from proprietary functions is whether the act

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performed is for the common good of all, or whether it is for the special benefit or profit

of the corporate entity.” Schulz, 12 Wn. App. 2d at 742 (internal quotation marks

omitted). Here, Buddy Q does not demonstrate that in diverting the floodwaters, the City

acted for the special benefit or profit of a person or corporation.

The parties’ confusion is not surprising. As Justice Chambers noted in his

frequently-cited concurrence, “there is great confusion about what our public duty

doctrine jurisprudence means.” Munich, 175 Wn.2d at 885-86 (Chambers, J.,

concurring); see also Ehrhart, 195 Wn.2d at 397 (acknowledging that Supreme Court

jurisprudence on the doctrine has not been a model of clarity).

Notwithstanding this confusion, the Supreme Court has recently reaffirmed that

the doctrine “applies only to claims based on an alleged breach of ‘special governmental

obligations [that] are imposed by statute or ordinance.’” Norg. v. City of Seattle, No.

100100-2, slip op. at *4 (Wash. Jan. 12, 2023) https://www.courts.wa.gov

/opinions/pdf/1001002.pdf (quoting Beltran-Serrano, 193 Wn.2d at 549) (citing Munich,

175 Wn.2d at 886) (Chambers, J., concurring). While some courts have failed to clearly

distinguish between common law and statutory duties when applying the public duty

doctrine, the Supreme Court has “never held that a government did not have a common

law duty solely because of the public duty doctrine.” Munich, 175 Wn.2d at 886-87. In

other words, the public duty doctrine does not apply to protect the governmental entities

from liability where they would normally be liable at common law. See Beltran-Serrano,

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193 Wn.2d at 549-51. Instead, “the only governmental duties we have limited by

application of the public duty doctrine are duties imposed by a statute, ordinance, or

regulation.” Munich, 175 Wn.2d at 886 (citing 27 cases in support of this conclusion).

The City contends that it had declared a public emergency and was acting pursuant

to a statutory obligation imposed by the WEMA, and specifically RCW 38.52.020 and

.070. Wash. Court of Appeals oral argument, Buddy Q, LLC v. City of Yakima, No.

38066-1-III (Oct. 27, 2022), at 6 min., 45 sec. to 8 min., 45 sec., audio recording by

TVW, Washington State’s Public Affairs Network, http://www.tvw.org. Nevertheless,

when pressed, the City did not identify any specific statutory directive that required it to

act. Summary judgment cannot be decided on the public duty doctrine unless the City

can demonstrate that its allegedly negligent actions were statutorily required.

Despite our decision to affirm the trial court’s denial of the City’s motion, we

recognize that the WEMA does provide certain directives to state and local governments.

For instance, each political subdivision of the state is authorized and directed to establish

or join a local organization for emergency management. RCW 38.52.070(1). These local

organizations are required to create and implement a plan and program for emergency

management. RCW 38.52.070(3)(b). Moreover, under RCW 38.52.070(2), when a

disaster occurs, the political subdivisions are authorized to provide emergency assistance

and exercise the powers vested by the statute. But from our cursory review, it does not

appear that the statute requires any certain action. The WEMA also provides for certain

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No. 38066-1-III (Consolidated with 38079-3-III)
Buddy Q., LLC, et al v. City of Yakima

immunities, which neither party has argued in this case, and procedures for filing claims

for damages resulting from emergency management functions. See RCW 38.52.180.

We also recognize that when the WEMA and similar statutes do impose statutory

duties upon government entities, courts have found that the public duty doctrine applies.

For instance, in Ehrhart, the plaintiffs alleged that the county had a regulatory duty to

determine appropriate action when it received notice of a nonlethal hantavirus case. 195

Wn.2d at 397. The applicable regulation required the county to issue a health advisory to

warn residents of the danger. Id. The court found that the duty imposed by WAC 246-

101-505 was a duty owed to the public at large. Id. Because no other exception to the

public duty applied, the county did not owe a duty to this particular plaintiff. Id.

On the other hand, just because a government entity responds to an emergency

does not mean they have a duty to do so. In Norg v. City of Seattle, the plaintiffs claimed

that the city breached its common law duty to use reasonable care in responding to their

911 call for medical assistance. Id. at *6. The Court distinguished its prior holding in

Cummins v. Lewis County, 156 Wn.2d 844, 851-52, 133 P.3d 458 (2006), where the

parties assumed the public duty doctrine applied and the issue was whether the “special

relationship” exception was established under the circumstances. Id. at *5. Unlike

Cummins, which addressed duties that arise by statute, “‘[a]t common law, every

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

interactions with others.’” Id. at *6 (quoting Beltran-Serrano, 193 Wn.2d at 550). When

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a party volunteers to aid another, a common law duty arises requiring the party providing

aid to use reasonable care. Id.

Moreover, this common law duty is in addition to any statutory duty to provide

services and “encompasses the duty to refrain from directly causing harm to another

through affirmative acts of misfeasance.” Beltran-Serrano, 193 Wn.2d at 550. While the

city’s statutory duties to provide service may be nonactionable, if the harm is caused by

the direct contact with the plaintiff, as opposed to the breach of a generalized public duty,

the city can be held liable. Id. at 552.

In this case, the City claims its actions were mandated by statute, but Buddy Q

claims the City had a common law duty to exercise reasonable care in diverting the water.

Buddy Q points to several cases that have found a common law duty to use reasonable

care when a government agency or individual alters the flow of surface waters, causing

damage to another’s property. See DiBlasi v. City of Seattle, 136 Wn.2d 865, 969 P.2d

10 (1998); Borden v. City of Olympia, 113 Wn. App. 359, 53 P.3d 1020 (2002). While

these cases recognize a general duty to use care when altering surface water flow, they do

not address whether there is a statutory duty to act in the face of emergency flooding.

In this case, if the City was diverting floodwaters according to a duty imposed by

the WEMA, then it would be necessary to determine if that duty to act was a general duty

owed to the public or a specific duty intended to protect an individual or class of

individuals. Even then, if it was a public duty, the City would still be liable if one of the

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four exceptions applied or if the damage resulted from affirmative acts of misfeasance. If

the City was not required to act but instead chose to act, it had a common law duty to

exercise reasonable care in doing so, and the public duty doctrine would not apply.

We affirm the trial court’s denial of the City’s motion for summary judgment

because the City has not established that it was acting under a statutory duty owed to the

general public when it diverted floodwaters to a lake system and allegedly damaged the

plaintiffs’ property. We remand for further proceedings.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________
Staab, J.

WE CONCUR:

_________________________________
Pennell, J.

_________________________________
Siddoway, C.J.

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11265972. Public record. Not legal advice.