The public duty doctrine is a principle of tort law that a government entity cannot be held liable for the injuries of an individual resulting from a breach of a duty owed to the public as a whole. [i] ,[ii] , [iii] The doctrine applies unless the individual can prove that the government entity owes a specific duty to the public and not just a general commitment to the public.
The Washington Supreme Court (Court) issued a decision that had a significant impact on the public duty doctrine in Washington State. In Norg v. City of Seattle, No. 100100-2 (Wash. 2023), the Court, in a 5-4 decision, ruled that the public duty doctrine does not apply in tort cases where a plaintiff’s claim is based on a common law duty as opposed to a statutory duty. This decision presents an opportunity to take a closer look at the public duty doctrine and its effect on government tort liability. In 2017, Delaura Norg called 911 seeking emergency medical assistance for her husband, Fred. At the time of the call, Fred was in cardiac arrest. [iv] She gave the 911 dispatcher her correct address, which the dispatcher relayed to emergency responders from the Seattle (WA) Fire Department (SFD). The Norgs’ apartment building was three blocks (approximately 500 feet) away from the nearest SFD station [v], but it took emergency responders over 15 minutes to arrive. This delay occurred because the SFD units failed to verify the Norgs’ address and, instead, went to a nearby nursing home based on the mistaken assumption that the Norgs lived there.
The Norgs sued the city for negligence, alleging that SFD’s delayed response aggravated their injuries. The city pleaded the public duty doctrine as an affirmative defense, and both parties moved for summary judgment on the question of duty. The trial court granted partial summary judgment in the Norgs’ favor and struck the city’s affirmative defense. The Court of Appeals affirmed on interlocutory review. The term “interlocutory” is used to describe something that is decided while a case is still ongoing. Over the course of a court case, issues may come up that need to be dealt with, but that do not resolve the case entirely. [vi]
The Washington Supreme Court held that the trial court properly granted partial summary judgment to the Norgs on the question of duty. In doing so, the Court expressed no opinion on the remaining elements of the Norgs’ claim (breach, causation, and damages). The Supreme Court thus affirmed the Court of Appeals and remanded to the trial court for further proceedings. [vii] The civil trial concluded in October 2023 in favor of the Norgs.
As noted by Curt Varone, the public duty doctrine has been a critically important defense for fire departments when confronted by suits for negligence. Per Varone: “Simply put, it holds that the government owes a moral duty to the public but not a legally enforceable duty to any particular person,” and in most states, the public duty doctrine offers firefighters an essential layer of liability protection from lawsuits over and above the protection afforded by immunity. It does provide another level of protection from liability that allows us to do the job we’re trained for without being constantly in fear of a lawsuit.[viii]
Why Is There a Public Duty Doctrine?
The public duty doctrine is an outgrowth of the abolition of sovereign immunity for state and local governments by the Washington State Legislature in the 1960s. Before that, Washington local government entities were immune from tort (negligence) liability to the extent they performed governmental (as opposed to proprietary) functions. The enactment of RCW 4.96.010 changed that by providing: All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct…to the same extent as if they were a private person or corporation.
Abolition of sovereign immunity made sense, but it raised other issues. One area the legislature did not specifically address was cases in which the state or a local government was performing uniquely governmental functions, in the sense that there is no “private person or corporation” to compare with to be liable to the “same extent.”
The courts developed the public duty doctrine as an analytical tool for determining if a tort duty should still be imposed on a government agency, despite the legislature’s statutory waiver of immunity, based on the type of function it was carrying out. If the function is the type that is solely provided by the government, i.e., “a public duty,” then immunity would still apply. So, for example, the public duty doctrine covers fire protection services since that is a government function exclusively carried out by the government.
A primary purpose of the public duty doctrine is to ensure that governments are not subject to liability to a greater extent than private persons or entities. The doctrine is intended to protect government entities from excessive tort liability.
Characteristics of the Public Duty Doctrine
Many public duty doctrine cases state that “a duty to all is a duty to no one.” In other words, to overcome the barrier to liability, a plaintiff must show that a local government had a specific duty to the plaintiff rather than to the public at large.
For example, building inspection services is an area where courts have found the public duty doctrine applies in claims against local governments (see the events surrounding the Ghost Ship Fire in Oakland, California, 2016.) [ix]
Even in cases where the government’s duty is to the public at large, there historically have been four exceptions under which a government may be liable: “Legislative intent” to impose a duty of care; A “special relationship” between the plaintiff and the public entity (such as express assurances of help or aid on the part of the public agency); “Volunteer rescue” efforts; or “Failure to enforce” a specific statute.
When a government entity asserts the public duty doctrine to defend a negligence claim, the devil is in the details. The outcome is difficult to predict because the public duty doctrine is at the fulcrum between two competing interests. Many State Legislatures abolished sovereign immunity many years ago to ensure that those harmed by the government’s negligence had recourse – so you can sue the government.
Norg v. City of Seattle: New Developments in the Public Duty Doctrine
In the Norg case, the Court ruled that the public duty doctrine does not necessarily apply to government-provided emergency medical services, reasoning that a private ambulance service might be liable if it negligently went to the wrong address. The legislature requires government entities to be subject to the same, not less, tort liability as private entities.
In Norg, the Court also cited prior cases that explained that the doctrine applies only in cases involving breaches of special government obligations imposed by statute or ordinance. Therefore, the doctrine does not apply when the alleged breach is based on common law duties. “At common law, every individual owes a duty of reasonable care to refrain from causing foreseeable harm in interactions with others.” See Beltran-Serrano v. Tacoma, 442 P.3d 608, 614 (2019).
The Court in Norg found that a common law duty of care arose when the dispatcher repeatedly assured the plaintiffs that help was on the way over the course of the 15 + minutes before the fire department arrived. Common law duty is the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and the system in all of the U.S. except Louisiana. [x]
The Court distinguished Norg from a prior case where a caller hung up before actually asking for and receiving promises of help. In the Norg case, the firefighters did not confirm the address and went to the wrong location; the city breached its common law duty by failing to take reasonable care. Because the claim was based on a common law duty and not on an obligation imposed by statute or ordinance, the public duty doctrine was inapplicable, so it was unnecessary to analyze whether any exceptions to the doctrine applied.
In many states, the Public Duty Doctrine has been rescinded based on the arguments noted in the Norg case. Here in Washington and other states, the public duty doctrine is not dead, but Norg has expressly stated its limited application. [xi]
For the fire service, the legal and practical advice is due care and caution when dealing with the public’s emergencies. There is no room for error, as we must provide the best services and minimize mistakes. Although there were a lot of factors involved in the over 15-minute response to the Norg residence by a fire station 500 feet away, it is incumbent on our fire firefighters to minimize those mistakes.
Endnotes
[i] https://www.merriam-webster.com/legal/public%20duty%20doctrine
[ii] https://digitalcommons.law.uw.edu/wlr/vol64/iss2/6/
[iii] https://definitions.uslegal.com/p/public-duty-doctrine/
[iv] Authors clarification
[v] Ibid
[vi] https://legaldictionary.net/interlocutory/#google_vignette
[vii] https://law.justia.com/cases/washington/supreme-court/2023/100-100-2.html
[viii] https://www.firelawblog.com/2023/01/12/washington-supreme-court-concludes-public-duty-doctrine-limited-to-statutory-duties/
[ix] https://www.sfgate.com/bayarea/article/Oakland-can-be-held-liable-in-Ghost-Ship-case-12357260.php
[x] https://www.merriam-webster.com/dictionary/common-law
[xi] https://mrsc.org/stay-informed/mrsc-insight/march-2023/understanding-the-public-duty-doctrine
JOHN K. MURPHY, JD, MS. PA-C, EFO, deputy chief (ret.), has been a member of the career fire service since 1974, beginning his career as a firefighter and paramedic and retiring in 2007 as a deputy chief and chief training officer. He is a licensed attorney in Washington State since 2002 and a licensed physician’s assistant since 1977. Murphy consults with fire departments and public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a legal and management educator, frequent legal contributor to Fire Engineering, participant in Fire Service Court Radio, a blogger and a national speaker on fire service legal issues. He is a distance learning instructor with the University of Florida Fire and Emergency Services undergraduate program.
This commentary reflects the views of the author and not necessarily the views of Fire Engineering. It has not undergone the standard peer-review process, and should not be construed as legal advice or counsel.
