Chambers-Castanes v. King County

Dimmick, J.

(concurring in part, dissenting in part) — I concur with the majority that appellants should be allowed to attempt to prove intentional infliction of severe emotional distress. However, notwithstanding sympathy for the *296 appellants who were victims of senseless criminal acts, I would not allow their cause of action for negligent infliction of emotional distress.

It is easy to condemn the police dispatchers in the instant case. However, the desire for condemnation cannot satisfy the need for a special relationship out of which a duty normally owed to the general public becomes a duty owed to a specific person.

As recognized by the majority, the general duty owed to the public by police may become a specific duty to an individual if the police and the individual are in a special relationship. Thus, when the New York Police Department solicited confidential information to aid in the apprehension of a known gangster, the police assumed a special duty to the informant who came forward. Schuster v. New York, 5 N.Y.2d 75, 154 N.E.2d 534 , 180 N.Y.S.2d 265 (1958). Similarly, a special relationship was created when the police arranged a confrontation between a suspect and a witness to a crime, thereby giving the suspect an opportunity to assault the witness. Gardner v. Chicago Ridge, 71 Ill. App. 2d 373 , 219 N.E.2d 147 (1966). When a police officer investigating a traffic accident led plaintiff into the middle of the highway and plaintiff was struck by another car, the court held a special relationship was created by the officer's affirmative conduct. McCorkle v. Los Angeles, 70 Cal. 2d 252 , 449 P.2d 453 , 74 Cal. Rptr. 389 (1969).

Appellants contend and the majority agrees that they fall within this category of persons having a special relationship with the police due to their calls requesting assistance and the assurances made by the dispatchers upon which they relied. The majority concludes that the set of facts alleged constitutes the privity between appellants and the police and the reliance necessary for a cause of action. I do not agree that the facts alleged rise to the level necessary to establish privity in the instant case.

Courts which have had the opportunity to consider comparable situations have concluded that a request for aid and resulting assurances are not in themselves sufficient to *297 create a special duty. Recently, in Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981) (relied upon but rejected by the majority at page 286, footnote 5 as being too restrictive), the court held that the following facts did not give rise to a special relationship and dismissed the complaint: Plaintiffs heard intruders enter their rooming house and heard one of their housemates in a room downstairs scream as she was being raped. Plaintiffs called the police who responded by making a perfunctory check of the exterior of the building. Plaintiffs again heard their housemate's screams and called the police. A police officer assured them help was on the way but the call was never dispatched. Thinking the police had arrived, plaintiffs called to their housemate thus alerting the intruders to their presence. Plaintiffs were then taken from their residence, held hostage, raped and brutalized for 14 hours. The court in dismissing the causes of action for negligence reviewed the development of the special duty doctrine in other jurisdictions and determined the facts before it did not rise to the level of a special relationship. In dismissing the complaint, the court stated:

Our representative form of government is replete with duties owed to everyone in their capacity as citizens but not enforceable by anyone in his capacity as an individual. Through its representatives, the public creates community service; through its representatives, the public establishes the standards which it demands of its employees in carrying out those services and through its representatives, the public can most effectively enforce adherence to those standards of competence. . . .

Plaintiffs in this action would have the Court and a jury of twelve additional community representatives join in the responsibility of judging the adequacy of a public employee's performance in office. Plaintiffs' proposition would lead to results which [another court] aptly described as "staggering."

Warren , at 8.

In California, a plaintiff arranged to have its burglar alarm directly wired to the police station. Plaintiff con *298 tended that the alarm went off during the course of a burglary but the police dispatcher negligently delayed 10 minutes before transmitting the alert, thereby allowing the burglars to escape with the plaintiff's goods. Plaintiff argued that the alarm hookup created a special relationship with the police but the court rejected this contention, concluding that " [a]n alert from an alarm, irrespective of how transmitted, is no more than a complaint that a crime has been or is being committed." Antique Arts Corp. v. Torrance, 39 Cal. App. 3d 588, 592 , 114 Cal. Rptr. 332, 334 (1974).

A Florida court dismissed a complaint against a city based on alleged negligence of its police officers notwithstanding plaintiff's having requested and specifically discussed plans for police protection. Henderson v. St. Petersburg, 247 So. 2d 23 (Fla. Dist. Ct. App. 1971). After reviewing cases in which police or other government agencies were under a "special duty" different from that owed to the public generally, the Florida court concluded that a request for police protection, even when accompanied by a promise that protection would be provided, does not create the "special duty" necessary to establish tort liability. Henderson , at 25.

I find the reasoning and holdings of those cases to be persuasive. I cannot find that a special relationship exists in this case. The instant case is distinguishable from J & B Dev. Co. v. King Cy., 100 Wn.2d 299 , 669 P.2d 468 (1983), wherein we found a special relationship existed between a developer and the officials issuing an incorrect building permit. In that case there was face-to-face contact with the officials who issued the incorrect permit and gave inaccurate information. The permit was issued after these officials inspected maps, records, and the property, and after they should have checked the applicable codes. This direct contact and assurance (issuance of the permit) constituted a special relationship. The facts of the instant case do not rise to such a level, especially in light of the fact that the injuries occurred before the police were ever called.

*299 In adopting the "public duty" doctrine which is tempered by the "special relationship" rule, we must be wary that we do not make every duty owed to the public a duty owed to an individual. Otherwise the standard rationales for the public duty doctrine will be meaningless and the doctrine obviated. There is, of course, an obligation for public employees to perform their duties fully and adequately. The police owe the public the duty to respond to calls in order to provide police protection. The police conduct here clearly was far from commendable. However, the facts alleged here do not establish a relationship between the police and appellants different from that existing between police and citizens generally.

Accordingly, I would dismiss the complaint's allegation of negligent infliction of emotional distress.

Rosellini, J., concurs with Dimmick, J.