Beal v. City of Seattle

Talmadge, J.

(dissenting) — Plaintiffs’ counsel filed a complaint naming plaintiffs who had no standing to sue the defendant. 6 Rather than dismissing the case, the majority condones counsel’s conduct and allows counsel to avoid the effect of a statute of limitation he missed by 94 days. More significant because of its impact on existing law, however, is the majority’s treatment of the public duty doctrine. The majority makes municipalities insurers of all of the consequences of responses to 911 calls. I respectfully dissent.

A. Relation Back of the Amended Complaint

Although the majority opinion engages in a lengthy *789 disquisition on the intricacies of the relation-back doctrine in CR 15(c) and 17(a), and of the interplay between the two rules to reach its conclusion, the central issue is whether we will apply statutes of limitation as they are written, or whether we will ignore them under the majority’s new rule if there is a showing of no prejudice to the defendant.

Counsel for Beal did not make an honest, understandable or excusable mistake in failing to have the personal representative of an estate pursue a wrongful death action as required by that statute. In fact, the conduct of counsel was dilatory and perhaps misleading to the trial court in suggesting a personal representative was appointed when, in fact, he failed to secure the appointment of John Beal as personal representative of the estate of Melissa Fernandez prior to the expiration of the statute of limitation for the wrongful death action. He also knew the appointment of the personal representative was required. 7 The Court of Appeals was entirely correct in determining there was no honest, understandable or excusable mistake, indeed there was no mistake at all, in Beal’s counsel’s failure to name the proper party here. Beal v. City of Seattle, 83 Wn. App. 217, 225 , 920 P.2d 1235 (1996).

Numerous Washington cases hold an amendment to a pleading may relate back under CR 15(c) if the failure to name a proper party was due to excusable neglect. See CR 15(c); Haberman v. Washington Pub. Power Supply Sys., 109 Wn.2d 107, 173 , 744 P.2d 1032 , 750 P.2d 254 (1987). Similarly, in the context of CR 17(a) amendments, Washington courts have strongly suggested amendments to pleadings do not relate back unless the failure to name a proper party was an honest or understandable mistake. Rinke v. Johns-Manville Corp., 47 Wn. App. 222, 227 , 734 P.2d 533 , review denied, 108 Wn.2d 1026 (1987); Fitch v. Johns *790 Manville Corp., 46 Wn. App. 867, 869 , 733 P.2d 562 , review denied, 108 Wn.2d 1027 (1987). 8

The Court of Appeals appropriately determined here the honest or excusable mistake standard applied in analyzing CR 17(a). However, the majority chooses to abolish this standard, holding the only appropriate consideration is prejudice to the defendant. Majority op. at 783. The majority asserts applying the current standard “undermines” the purpose of CR 17(a), which, the majority says, is to “protect the defendant against a subsequent action by the party actually entitled to recover and to expedite litigation by not permitting technical or narrow constructions to interfere with the merits of legitimate controversies.” Id. at 782-83. The majority lists only one purpose of CR 17(a). But the rule has other purposes. The Advisory Committee Notes to the Federal Rules of Civil Erocedure, reprinted at 39 F.R.D. 69 , 85 (1966), say about Fed. R. Civ. E 17: “The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue [meaning the proper party to bring suit] is difficult or when an understandable mistake has been made.” (Emphasis added.)

There was no difficulty in ascertaining the proper plaintiff here; the statute permitted only the personal representative to bring the wrongful death action. Nor was there an understandable mistake made; Beal was not appointed as personal representative in time to avoid the statute of limitation. As to the majority’s argument that “technical or narrow constructions” should not prevent resolution of disputes on the merits, mere faithfulness to the effect of a statute of limitation is not a technical or narrow construction. I see no compelling reason to change the current standard. Insofar as the failure of plaintiffs’ counsel properly to include the appointed personal representative, the amended complaint after the proper appointment of the personal representative does not relate back.

*791 Ultimately, this is a statute of limitation case. The overlay of CR 15(c) and CR 17(a) is a mere fortuity that does not change the fact plaintiffs counsel did not file a proper lawsuit on time. When we consider the statute of limitation issue in this case, the correct conclusion emerges without difficulty. Suppose, as in this case, a statute of limitation runs on June 1, 1992, but a person does not file a complaint until September 3, 1992. In opposition to a motion to dismiss the complaint as being time-barred, counsel argues variously that he just did not have time to file the case by June 1 (“Counsel simply ran out of time.” Majority op. at 781), or, in the alternative, that he was not aware of the statute of limitation. I do not believe either of those explanations would deter any court for the briefest moment from dismissing the lawsuit for lack of timely filing.

The majority asserts the present case is different because in fact a lawsuit was filed on June 1, 1992. Thus, the majority argues, even though none of the named-party plaintiffs had standing to bring the suit, the suit put the City on notice it would have to defend itself. I know of no statute of limitation case, however, holding mere notice to a defendant a claimant intends to file a lawsuit excuses a late filing. Besides, the City knew long before June 1, 1992, there was a claim for wrongful death pending because counsel filed a notice of claim on behalf of the deceased’s children in August 1990. If mere notice to the prospective defendant is the test, the plaintiffs could have filed years after August 1990, regardless of any statute of limitation. Notice to the defendant does not defeat the mandate of a statute of limitation.

What differentiates this case from the line of cases considering CR 17(a) is that on June 1, 1992, there was no person, legal or real, who qualified as a plaintiff to sue the City of Seattle, because the personal representative had not yet been appointed by court order. Thus, this was not a case where the personal representative could have filed the complaint on June 1 but did not because of inadvertence or *792 unavailability. The personal representative did not even exist on June 1 and therefore could not have filed the lawsuit then under any circumstances.

The majority also argues there was no prejudice to the City. How does the majority know that? There was no evidentiary hearing below on the question of prejudice to the City. Like the notice argument, the no-prejudice argument would not suffice to excuse a late filing in a case governed solely by the statute of limitation, as plaintiffs could almost always make such an argument if their late filing were reasonably close to the statutory time limit. If lack of prejudice to the defendant is now an acceptable excuse for a late filing, trial courts will have to hold evidentiary hearings to determine the presence or absence of prejudice to the defendant(s) stemming from the late filing. We should not establish grounds for ancillary litigation to circumvent statutes of limitation.

Courts may, and often do, overlook violations of the Rules of Civil Procedure when no prejudice results from the violation. But the courts create and administer the Rules of Civil Procedure; they have the authority to grant relief from those rules as they deem appropriate. The Legislature, on the other hand, created the statute of limitation applicable in this case. Separation of powers concerns and appropriate respect for the enactments of a coordinate branch of government restrain us from weakening those enactments by creating judicial exceptions to them. It is the business of this Court to enforce the laws as the Legislature has written them, not to help litigants find ways around them.

The majority here announces a substantive rule of law that will apply in any statute of limitation dispute. The reasoning the majority employs—notice and lack of prejudice—to allow this case to survive cannot be limited to the peculiar circumstances of this case. The majority here gives further life to the ancient adage, hard cases make bad law.

*793 B. Public Duty Doctrine

Given the majority’s disposition of the procedural issue in this case, it then must reach the question of the public duty doctrine. In certain circumstances, where a person calling a law enforcement agency by a 911 number receives continuous assurances about assistance and justifiably relies on such assurances, the public duty doctrine does not apply and that individual states a cause of action against the municipality employing such 911 officers when the individual is harmed by criminal conduct. Chambers-Castanes v. King County, 100 Wn.2d 275 , 669 P.2d 451 , 39 A.L.R.4th 671 (1983); Noakes v. City of Seattle, 77 Wn. App. 694 , 895 P.2d 842 , review denied, 127 Wn.2d 1021 , 904 P.2d 299 (1995). In the present case, however, Melissa Fernandez made a nonemergency call to the Seattle 911 operators. She had already determined to remove property from her husband’s apartment and was present in front of that apartment when her estranged husband shot her. There were no indications in the record of an emergency situation being present, there were no express assurances made by 911 operators that law enforcement officers would be arriving imminently, and there was certainly no change in behavior by Melissa Fernandez as a result of the 911 call. She decided to be at the apartment where the tragic events ensued.

The general purpose of the public duty doctrine, as articulated in Taylor v. Stevens County, 111 Wn.2d 159, 163 , 759 P.2d 447 (1988), is to avoid making municipalities insurers for every harm that might befall members of the public interacting with such municipalities. The public duty doctrine has been seriously criticized. See, e.g., Jennifer Kay Marcus, Note, Washington’s Special Relationship Exception to the Public Duty Doctrine, 64 Wash. L. Rev. 401 (1989) (calling for abandonment of public duty doctrine and return to traditional tort analysis for determinations of governmental duty); John Cameron McMillan, Jr., Note, Government Liability and the Public Duty Doctrine, 32 Vill. L. Rev. 505 , 529 (1987) (“[T]he drastic social and economic changes that have taken place since the public duty doctrine’s birth in the nineteenth century warrant that it *794 follow the doctrine of sovereign immunity into the ‘dust-heap of history.’ ”); 1 A.C. Antieau, Municipal Corporation Law § 11.74 & n.3 (1986) (“good courts are increasingly repudiating [the public duty doctrine] used to continue tort irresponsibility of local governments”). Several states have abolished the doctrine. 9 Nevertheless, the public duty doctrine remains the law in Washington unless we are disposed to ehminate it in its entirety.

The majority’s decision in this case makes a municipality operating a 911 telephone system an insurer of individuals who call 911 when serious harm follows making such a call. There is no principled limit to a municipality’s liability if a third party does harm to an individual who makes a call to 911 operators and asks for assistance.

In effect, the majority determines a special relationship exception arises between a municipality and a member of the public calling for virtually any interactions between that individual and the municipality’s staff. The majority simply goes too far in permitting the special relationship exception to swallow up the rule of the public duty doctrine. If we wish to eliminate the public duty doctrine in its entirety, we should say so. If we do not intend to do so, then we should apply the doctrine as it has previously been articulated in our case law.

I would affirm the Court of Appeals and the trial court *795 and dismiss the plaintiffs complaint as not having been filed within the statutory time limits for wrongful death actions.

Durham, C.J., and Dolliver, J., concur with Talmadge, J.

Reconsideration denied May 20, 1998.

Only the personal representative of a decedent’s estate may bring a wrongful death action. ROW 4.20.020; Benton v. Associated Indent. Corp., 195 Wash. 446, 449 , 81 P.2d 507 (1938).

In Ms affidavit of September 3, 1992, Beal’s counsel stated he was not aware of the statutory requirement for the personal representative to be the real party in mterest in a wrongful death claim until after he had filed the lawsuit on June 1,1992. He reversed Mmself in Ms subsequent affidavit of September 9,1992, asserting that he did know of the requirement prior to June 1.

The majority fails to note its holding overrules these Washington cases that have required the existence of some sort of mistake before allowing substitution or addition of plaintiffs under CR 17(a). Majority op. at 782-83.

The following state cases have rejected the public duty doctrine: Adams v. State, 555 P.2d 235 (Alaska 1976) (abrogated the public duty doctrine in a negligent inspection case); Ryan v. State, 134 Ariz. 308 , 656 P.2d 597 , 38 A.L.R.4th 1188 (1982) (abolishing the public duty doctrine in a negligent furnishment of police protection); Leake v. Cain, 720 P.2d 152 (Colo. 1986) (abolishing the public duty doctrine in a negligent furnishment of police protection case); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979) (abrogating the public duly doctrine in a highway case); Stewart v. Schmieder, 386 So. 2d 1351 (La. 1980) (abolishing the doctrine in a construction case); Wilson v. Nepsted, 282 N.W.2d 664 (Iowa 1979) (abolishing the public duty doctrine in a negligent inspection case); Schear v. Board of County Comm’rs, 101 N.M. 671 , 687 P.2d 728 (1984) (abolishing the public duly doctrine in a negligent furnishment of police protection case); Brennen v. City of Eugene, 285 Or. 401 , 591 P.2d 719 (1979) (abolishing the public duly doctrine in the negligent issuance of a taxicab permit); Coffey v. City of Milwaukee, 74 Wis. 2d 526 , 247 N.W.2d 132 (1976) (abrogating the public duty doctrine in a negligent inspection case); DeWald v. State, 719 P.2d 643 (Wyo. 1986) (abolishing the public duty doctrine in a negligent police pursuit case).