Osborn v. Mason County

*30 ¶21

Chambers, J.

(dissenting) — Joseph Rosenow is a level III sex offender. When Shannyn Wiseman learned he lived in her neighborhood, she repeatedly offered to post warning flyers or take other actions to alert her neighbors. Detective Jason Dracobly, the officer in charge of sex offender registration and community notification in that area, actively encouraged her not to do so and promised he would post flyers and take other appropriate steps to warn the community. Despite the fact he had in the past warned the community of level III sex offenders, this time he merely posted a warning on the county’s web site. While we cannot know if the type of warnings Wiseman would have done or Dracobly promised to do would have prevented the tragic outcome in this case, we do know that no flyers were posted, no neighbors were told, the local high school was not notified, and Rosenow raped and murdered 15-year-old Jennie Mae Osborn.

¶22 The majority holds that Dracobly had no responsibility to warn the community, and thus Osborn’s family has no cause of action. Because I believe that we owe one another more than that under Washington common law, I dissent.

f23 By assuring Wiseman that he would post flyers, Dracobly voluntarily assumed the duty to warn the community about the presence of a dangerous sex offender. One who gratuitously undertakes to warn people of danger has a common law duty to exercise reasonable care in doing so. Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 299 , 545 P.2d 13 (1975); Prosser and Keeton on the Law of Torts § 56 (W. Page Keeton et al. eds., 5th ed. 1984).

¶24 The facts of Brown bear a sad similarity to those before us. In Brown , Dr. Edward LaChapelle, a noted avalanche expert, notified Tonnon, an agent of the State, that a housing development was in an area at high risk for avalanches. Brown, 86 Wn.2d at 298 . Tonnon “led Dr. LaChapelle justifiably to believe that the division would deal with the matter and convey his warning” to the homeowners in the development. Id. Instead, Tonnon informed William *31 MacPherson, a real estate broker associated with the development, that there was no risk and failed entirely to communicate the danger to the residents. Id. The predicted avalanche occurred. Id. at 298-99 . We allowed the plaintiffs’ suit to go forward. Id. at 300 .

¶25 The facts before us today are substantially similar. Dracobly, an agent of the State just like Tonnon, assured Wiseman, a concerned citizen much like Dr. LaChapelle, that he would inform those in danger of the risk they faced. If anything, the State is more culpable. Not only did Dracobly fail to warn those he promised to protect, he discouraged Wiseman from doing so herself.

¶26 The majority attempts to distinguish Brown on the contract theory of “privity of reliance.” Cf. Fortune View Condo. Ass’n v. Fortune Star Dev. Co., 151 Wn.2d 534 , 90 P.3d 1062 (2004) (privity of reliance a necessary predicate for implied warranties applying to subsequent purchasers). The majority holds that the State is immunized from liability unless the injured person, or someone “in privity” with the injured person, relies on the State’s promises. Majority at 26. I respectfully disagree with that interpretation of Brown and our case law.

¶27 Instead, the key holding of Brown is:

If the State’s agents, acting out of concern for the safety of appellants and others similarly situated, negligently or intentionally conveyed the impression that the danger of avalanches was less than it was to Mr. MacPherson (or anyone else), causing him to refrain from action on appellants’ behalf he otherwise would have taken, the State is answerable for any damage caused by that misimpression.

Brown, 86 Wn.2d at 299-300 . The “anyone else,” in context, was clearly Dr. LaChapelle — who, just like Wiseman, took no further action to warn the relevant communities because Dracobly — just like Tonnon — led her to believe the State would take reasonable steps to give adequate warning. Simply put, the court in Brown held that the State would be liable if its actions deprived the plaintiffs of the opportunity to be warned by the avalanche expert who had no relation *32 ship to them at all. Id. at 300 ; Restatement (Second) of Torts § 324A(c) (1965); Prosser, supra, § 56, at 381-82. Privity is immaterial.

¶28 Brown also specifically rejected the State’s argument that its promise to Dr. LaChapelle that it would warn the residents could create no duty. Brown, 86 Wn.2d at 300 . We noted with approval that in other states a duty to act has “been created by reliance not by the person to whom the aid is to be rendered, but by another who, as a result of the promise, refrains from acting on that person’s behalf.” Id. at 301 (citing Dudley v. Victor Lynn Lines, Inc., 48 N.J. Super. 457 , 138 A.2d 53 (1958)).

¶29 Meneely v. S.R. Smith, Inc., 101 Wn. App. 845 , 5 P.3d 49 (2000), is completely consistent. In Meneely , the Court of Appeals held that a trade association that promulgated voluntary safety standards to swimming pool manufactures could be liable to the ultimate user of a swimming pool who was left quadriplegic due to a dangerous condition in some swimming pools known to the association. Id. at 848 . This was because the trade association told consumers that the type of pool was safe and appropriate for diving. Id. at 860-61 . Meneely did not hold that the duty could arise only from a representation made directly to consumers. The fact that, in that case, the duty flowed in part from the representation directly to the consumer does not mean that a representation must be made directly to the consumer or victim.

¶30 This is a summary judgment motion. Taken in the light most favorable to the plaintiffs, the facts establish that Dracobly prevented Wiseman from warning the community that a level III sex offender lived among them. The plaintiffs have also established sufficient facts from which a jury could find Dracobly failed to exercise reasonable care. Finally, the plaintiffs have established sufficient facts from which a jury could find, but for this breach of care, Jennie Mae Osborn might still be alive.

*33 We should affirm the Court of Appeals and the trial court and remand for trial.

¶31 I respectfully dissent.

C. Johnson, J., concurs with Chambers, J.