Exceptions to Public Duty Doctrine in Negligence Cases

Fabre v. Ruston, No. 43459-8-II, (Mar. 19, 2014).

The issue in this case were the proprietary and special relationship exceptions to the public duty doctrine.

The elements of negligence are duty, breach, causation and damages. A governmental entity is liable for damages “to the same extent as if they were a private person or corporation.”   Cummins v. Lewis County, 156 Wn.2d 844, 853, 133 P.3d 459 (2006) (quoting RCW 4.96.010( 1)). However, when the defendant is a governmental agency, the public duty doctrine requires the plaintiff to show the duty breached was owed to him or her in particular and not to the public in general. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785,  30 P.3d 1261 (2001).

Of course, there are exceptions to the public duty doctrine: 1). It does not apply when the government is performing a proprietary function. Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P. 2d 1257(1987) and  2). A government entity may be liable to an individual where a special relationship exists. In that case, there is a duty to perform a mandated act for a particular person or class. Chambers-Castanes v. King Cnty., 100 Wn.2d 275, 285, 669 P.2d 451 (1983).

A government acts like a proprietor when it “engages in businesslike activities that are normally performed by private enterprise.” Stiefel v. City of Kent, 132 Wn. App. 523, 529, 132 P.3d 1111 (2006).

To show a special relationship exists the plaintiff must show all three of the following:   (1) direct contact or privity between the public official and the injured plaintiff that sets that plaintiff apart from the general public, (2) a public official gives the plaintiff express assurances, and (3) the plaintiff justifiably relies upon those express assurances. Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998).

In this case, Fabre argued that the town of Ruston was performing a proprietary function in prohibiting house-banked social card games and taxing other games. The court of appeals disagreed because private entities have no authority to tax or prohibit any activity.  Therefore, Ruston was not acting like a proprietary entity.

Fabre further argued there was a special relationship existed between him and Ruston.  When Fabre  first opened his casino in 2003, Ruston adopted a tax on social card games.  Fabre negotiated with the then-mayor Kim Wheeler and Wheeler told Fabre he would allow him to continue operating the casino. The court held that as a matter of law “one cannot justifiably rely on the express assurances of a mayor as to how future Ruston Councils will legislate.”

This is because Ruston’ s mayor does not have the authority to establish a tax or pass a prohibition on social card games. That authority belongs to the Ruston Council. The mayor’s words were simply a prediction.  In addition, even if Fabre could have justifiably relied on the prediction of how the existing Ruston Council would vote, Fabre could not justifiably rely on the Mayor’s assertion that a future Ruston Council would maintain those policies after new council members took office. A legislature cannot bind a future legislature. Wash. State Hosp. Ass’ n v. State, 175Wn. App. 642, 648, 309 P.3d 534 (2013).

The court held that neither exception to the public duty doctrine applied to Fabre and his claims were barred.

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