                                                                                                   FILED
                                                                                            CO[JRoT On APPEAL-3
                                                                                           2013 SEA' 17
                                                                                                        A19 8 14 2
      IN THE COURT OF APPEALS OF THE STATE OF W




TANYA and TOMMY RIDER, wife and
                                               DIVISION II

                                                                          No. 43363 0 II
                                                                                    - -
                                                                                           r Y
                                                                                                  Dc   LT   Y



husband and the marital community composed
therof,

                                  Appellants,

          V.




KING COUNTY in its capacity as the KING                               UNPUBLISHED OPINION
COUNTY SHERIFF'S DEPARTMENT,




          PENOYAR, J. —Tanya       and Tommy Rider appeal the summary judgment dismissal of their

negligence complaint, arguing that King County owed them a duty of care under exceptions to

the public duty doctrine. Because the special relationship and rescue exceptions to the public

duty doctrine do not apply under the facts presented, we affirm.

                                                    FACTS


          On the morning of September 20, 2007, Tanya Rider left her overnight job and began

driving home. Tanya's vehicle left State Route 169 and landed in a ravine, where it was not

visible from the roadway.

          Tommy learned that his wife was missing on Saturday, September 22, when Tanya's

employer called to tell him that Tanya had not reported for her scheduled shift. Tommy had last

spoken with Tanya by phone on_
                             Wednesday evening, September 19.




1
    We will refer to the Riders   by their   first names for   clarity.
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       After receiving the call from her employer, Tommy called 911 to report that Tanya was

missing. After his call was transferred several times to the proper operator, Aaron Siegrist asked

Tommy a series of questions to determine whether Tanya met the criteria for a missing persons

report. Tommy said that he had checked local hospitals, but Siegrist told Tommy that he would

also need to contact area jails before a missing person report could be taken, and Siegrist advised

Tommy to continue to check area hospitals and look for activity on Tanya's bank accounts.

       Tommy called 911 again on Sunday, September 23, and spoke with operator Thomas

Lowe. At the same time, Tommy was on the phone with the Honda dealer to determine whether

Tanya's car contained a vehicle locator. Lowe told Tommy to finish that call and call him back.

When Tommy called Lowe again, he reported that the car did not have a vehicle locator, and

Lowe obtained the information needed to file a missing person report. Lowe gave Tommy a case

number and told him that Tanya's information would be entered into a nationwide computer

system so that, if she were found and a check was done on her name, she would be identified as a

missing person and Tommy would be contacted. Lowe called Tommy later that day to obtain

additional vehicle information and to tell him that an officer would be sent to his home.


       King County Deputy Sheriff Christopher Cross came to the Rider home on Sunday

evening. He searched the residence at Tommy's invitation and gave Tommy a business card

with instructions to call the Major Crimes Unit the next morning.

       On Monday, September 27, Janet Rhodes, who investigates missing persons for the King

County Sheriff's Office, called Tommy after reviewing the report about Tanya. According to

Rhodes, Tommy told her that Tanya was the only person with access to a USAA bank account




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and a Nordstrom VISA. According to Tommy, he told Rhodes that he lacked only online access

to the USAA account. He also claimed that Rhodes told him that if something had gone wrong

with Tanya, King County would find her.

         Tommy went back to work after speaking with Rhodes, but he continued to drive Tanya's

route to and from work and to their other property, and he posted flyers about her disappearance.

         Rhodes contacted USAA and Nordstrom, and each confirmed that Tanya was the only

person with access to the accounts. She spoke with Tanya's supervisor, tried unsuccessfully to
reach Tanya by calling her cell phone, and contacted Tanya's cellular provider, Verizon.

Verizon's automated message reported that information would not be released absent a subpoena

or court order. On both Monday and Tuesday, Rhodes learned of activity on the USAA account,

and she came to believe that Tanya was not actually missing, though she continued her

investigation..

         A further conversation with Tommy on Wednesday clarified that he also had access to

the USAA account. Tommy told Rhodes that he had misunderstood her earlier question about

account access because he was so exhausted. He explained that he was responsible for the recent

USAA account activity.

         In light of this information, Rhodes asked her supervisor if Tanya's cell phone records

could be obtained, and a detective requested Tanya's records from Verizon on Thursday,

September    27.   The records were requested due to exigent circumstances with a warrant to

follow. A few hours after obtaining the cell phone information, which showed the cell tower

location of her last cell   phone activity, King County deputies found Tanya's   car.   Tanya was

inside and had survived.


2
    A USAA representative later told Tommy that there had been no such communication.
                                                 3
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        In September 2010, the Riders sued King County for negligence, asserting that the

County had breached its duty to take reasonable measures to locate Tanya and had thereby

caused both her and Tommy to sustain damages. The trial court granted King County's motion

for summary judgment and dismissed the complaint with prejudice.

                                            ANALYSIS


I.      STANDARD OF REVIEW


        When reviewing an order on summary judgment, we engage in the same inquiry as the

trial court.   Munich v. Skagit Emergency Commc'n Ctr.,175 Wn. d 871, 877, 288 P. d 328
                                                             2                  3

2012). Summary judgment is proper when the record demonstrates that there is no genuine

issue of material fact and that the moving party is entitled to judgment as a matter of law.

Cummins v. Lewis County, 156 Wn. d 844, 852, 133 P. d 458 (2006); 56( ). consider
                               2                  3             CR c We

all facts and reasonable inferences in the light most favorable to the nonmoving party. Babcock

v.   Mason   County   Fire Dist. No.   6, 144 Wn. d 774, 784, 30 P. d 1261.2001). The party
                                                2                 3        (


opposing summary judgment "may not rely on speculation, argumentative assertions that

unresolved factual issues remain, or in having its affidavits considered at face value." Seven

Gables Corp. v. MGM/ A Entm't Co.,106 Wn. d 1, 13, 721 P. d 1 ( 1986). In a negligence
                   U                    2               2

action, whether an actionable duty was owed to a plaintiff is a threshold determination and a

question of law that we review de novo.,Munich, 175 Wn. d at 877.
                                                      2
Il.     PUBLIC DUTY DOCTRINE


        Governmental entities are liable for damages arising out of their tortious conduct, or the

tortious conduct of their employees, to the same extent as if they were a private person or
                                     "




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corporation." Cummins, 156 Wn. d at 853 (quoting RCW 4.6. When the defendant in
                             2                       010(
                                                        1
                                                        9 )).

a negligence action is a governmental entity, the public duty doctrine provides that a plaintiff

must show the duty breached was owed to him or her in particular and was not the breach of a

duty owed to the public in general. Babcock, 144 Wn. d at 785. "[
                                                   2           A] duty owed to all is a duty

owed to none."Beal v. City of Seattle, 134 Wn. d 769, 784, 954 P. d 237 (1998).The public
                                             2                  2

duty doctrine is a "focusing tool"used to determine whether the defendant owed a duty to the

public   or   a   particular   individual.     Osborn v. Mason County, 157 Wn. d 18, 27, 134 P. d 197
                                                                             2                3

2006).

         There are four exceptions to the public duty doctrine: (1)legislative intent, 2)
                                                                                       ( failure to

enforce, 3) rescue doctrine, and (4)a special relationship. Munich, 175 Wn. d at 879. If
         ( the                                                            2

any one of the exceptions applies, the government is held as a matter of law to owe a duty to the

plaintiff. Munich, 175 Wn. d at 879. At issue in this appeal are the special relationship and
                         2

rescue exceptions.

         A.          SPECIAL RELATIONSHIP EXCEPTION


         A special relationship between a governmental agency and a plaintiff will exist and

thereby give rise       to   an   actionable   duty   if three elements   are   established: ( 1)direct   contact or

privity between the agency and the plaintiff that sets the plaintiff apart from, he general public,
                                                                               t

2)an express, specific assurance given by the agency, and ( 3)justifiable reliance on the

assurance by the plaintiff. Munich, 175 Wn. d at 879; Meaney v. Dodd, 111 Wn. d 174, 178 79,
                                          2                                 2            -

759 P. d 455 (1988). Where duty is analyzed under the special relationship exception, courts
     2

look to the manner and extent of contact between the government official and the plaintiff and to




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how explicit were the assurances of aid allegedly created thereby. Cummins, 156 Wn. d at 860;
                                                                                  2

see also Johnson v. State, 164 Wn. App. 740, 753, 265 P. d 199 (2011)plaintiff must seek and
                                                       3             (

government must expressly give assurances indicating that it will act in a specific manner),

review denied, 173 Wn. d 1027 (2012).
                     2

       The County concedes that Tommy's direct contact with the 911 operators and Rhodes

satisfies the privity requirement. See Cummins, 156 Wn. d at 854 55 (privity established by
                                                      2          -

showing that 911 operator affirmatively communicated some assurance that assistance would be

sent).The County also concedes that for the purposes of this appeal, it must assume that Rhodes

told Tommy that "[ f something had gone wrong, that they would locate Tanya and find out
                 i]

what happened." Clerk's Papers (CP)at 58; see Babcock, 144 Wn. d at 784 (when reviewing
                                                             2

summary judgment order, all facts are considered in the light most favorable to the nonmoving

party).'

       The Riders argue that Rhodes represented that she was actively looking for Tanya and

implied that   she   was   using   all reasonable   means    in   doing   so.   They contend that with this

statement, the County assumed a duty to use reasonable care in its investigation.

       The County responds that Rhodes's alleged statement was neither an express assurance

that she would take specific steps to search for Tanya nor an assurance that she would employ

specific   methods to find    Tanya within    a   specific   timeline.    The County argues that at most,

Rhodes made implied assurances that are insufficient to support the special relationship

exception.




3 The Riders relied on this as the only express assurance in responding to the County's motion
for summary judgment. They now claim in their reply brief that Detective Cross made similar
assurances, but the record does not support this claim.
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       As support, the County cites Cummins, where the Supreme Court held that the absence of

an express assurance from a 911 operator that medical assistance would be dispatched precluded

the court from finding as a matter of law that the plaintiff had established an actionable duty

against the county. 156 Wn. d at 855. Even if the nature of the 911 system provided an inherent
                          2

assurance that medical assistance would be forthcoming once a call was placed, any such

inherent assurance, like an implied assurance, could not provide a sufficient basis for finding an

actionable   duty under the special relationship doctrine. Cummins,      156 Wn. d at 856.
                                                                               2              The


County also cites Babcock, where the Supreme Court again rejected the argument that implied

assurances   could   give   rise to   a   governmental duty.   144 Wn. d at 791.
                                                                     2             In Babcock, a

firefighter's statement to a homeowner that the firefighters would take care of his property was

not an express assurance that she or the other firefighters would act in a specific manner. 144
Wn. d at 791.
  2


       The Riders maintain that Rhodes's assurance of aid is more analogous to the following

assurances from a 911 operator that supported the special relationship exception in Beal:

       911: Okay. Well I'l tell you what, we're going to send somebody there. Are
                            l
       you going to wait in number 4 [another apartment] until we get there?
       CALLER: I'l be waiting outside in the front with my mom.
                  l
       911: Okay. We'll get the police over there for you okay?
       CALLER: Alright [ ic],
                        s thanks.

134 Wn. d at 785. With these statements, the 911 operator gave express assurances that police
      2

would be dispatched to assist. Beal, 134 Wn. d at 785. The Riders also rely on Munich, where a
                                           2

911 operator twice assured a caller who was being threatened by a neighbor that a deputy was on
his way.     175 Wn. d at 875.
                   2                  The court again found express assurances promising action.

Munich, 175 Wn. d at 885.
              2



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         We find Beal and Munich distinguishable. In both cases, an express promise of specific

future action was made. Here, there was only the general statement that Tanya would be found if

something bad had happened, with no mention of any specific future action.

         We are persuaded that Babcock is more analogous and bars any conclusion that the

express or explicit assurance needed to establish a special relationship was made in this case. In

his deposition, Tommy acknowledged that Rhodes and the 911 operators did not advise him that

they were taking specific actions to find Tanya and did not guarantee that they would find her.
No one guaranteed me that they would find Tanya.... they did not give me expressed
                                                 No,
                                             the                            looking." CP   at 58 59.
                                                                                                 -      While he
guarantees. They did give             me           impression they   were




assumed they would use all reasonable methods" to locate Tanya, he neither sought nor

received express assurances of specific conduct. CP at 301.

         Moreover, even if we were to conclude that Tommy did receive a promise of specific

conduct, we could not conclude that he relied on that promise to his detriment.

         Whether a party justifiably relies on information is a question of fact generally not

amenable to summary judgment. Babcock, 144 Wn. d at 792. For the government to be bound,
                                             2
the                                   the               to their detriment.   Babcock, 144 Wn. d
                                                                                             2         at 793.   In
      plaintiffs   must   rely   on         assurance




Babcock, the facts did not show detrimental reliance because the homeowner ignored the alleged

assurance      from the fire     fighter and attempted      to   move   his truck. "He did not discontinue his


efforts to salvage his property because of the statements made by the fire fighter."Babcock, 144
Wn. d
  2       at   793.   By contrast, detrimental reliance was shown in Beal, where the victim went

outside to wait after being assured that police protection was forthcoming, and was then shot by

the   estranged husband      who had        prompted the   911 call. 134 Wn. d at 786.
                                                                           2
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        The Riders assert that Tommy went back to work on Monday after talking to Rhodes,

confident that the County would find his wife. Tommy also continued to drive Tanya's route to

and from work, however, in addition to posting flyers and calling her cell phone. The Riders do

not describe any additional action Tommy would have taken but for Rhodes's statement, and

they do not show that any such action by Tommy would have made any difference in the

investigation. Tommy admitted in his deposition that the County never prevented him from

doing anything to find Tanya and that Rhodes told him " he more help, the better." CP at 61.
                                                      t

When asked in his deposition what else he could have done in searching for Tanya, he stated that

he could have hired a private investigator and added, But as far as what I could have done
                                                      "

differently, I   don't know."CP at 61.        There is no evidence that Tommy could have obtained

the cell   phone   records   on   his own without law enforcement involvement.   Consequently, the

Riders can show neither the detrimental reliance nor the specific assurance that the special

relationship exception requires.

           B.      RESCUE EXCEPTION


           The Riders argue in addition that the County assumed a duty to find Tanya under the

rescue exception to the public duty doctrine. This exception applies if a governmental entity (1)

undertakes a duty to aid a person in danger, 2)
                                             ( fails to exercise reasonable care, and ( ) offer
                                                                                      3 the

to render aid is relied on by either the person to whom the aid is to be rendered or by another

who, as a result of the promise, refrains from acting on the victim's behalf. Johnson, 164 Wn.

App. at 750. "Integral to this exception is that the rescuer, including a state agent, gratuitously

assumes the duty to warn the endangered parties of the danger and breaches this duty by failing

to warn them."Babcock v. Mason County Fire Dist. No. 6, 101 Wn. App. 677, 685, 5 P. d 750
                                                                                  3

2000), d on other grounds, 144 Wn. d 774 (2001).
     aff'                        2
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        In Babcock, the rescue exception did not apply because the firefighting district did not

gratuitously   choose to      fight   a   house fire.     101 Wn.   App.     at 686.     Rather, the district was

established for the very purpose of fighting fires and protecting the property of all citizens.

Babcock, 101 Wn. App. at 686. In Johnson, the exception did not apply when the Washington
State Patrol told a concerned citizen it would notify troopers about his report of an erratic driver.

164 Wn. App. at 751. The State's action was a general promise to render aid made as part of the

State's duty to all citizens and not a gratuitous offer to aid a specific citizen. Johnson, 164 Wn.

App. at 751.

        The County asserts that a missing person investigation is a core police function and that it

did not gratuitously assume a duty to rescue Tanya. The Riders respond that if the County did
not assume a duty based on express assurances under the special relationship exception, it

gratuitously assumed     the     duty     to search for   Tanya, and the      rescue   doctrine   applies. As we

recognized in Babcock, this reasoning allows the rescue exception to swallow up the public duty
doctrine, and   we   reject   it.     101 Wn. App. at 686. Rhodes's performance of a public duty to

investigate missing persons was not a legal duty to find Tanya.

        Moreover, there again is no evidence that Tommy refrained from acting on Tanya's

behalf as a result of the County's action. Even though he returned to work, he kept searching on

his   own.   Consequently, the         rescue   exception   fails for this   reason as   well. See Osborn, 157


Wn. d at 25 (reliance is the linchpin of the rescue,exception).
  2

        Finally, the Riders argue that there are issues of fact that cannot be resolved on summary

judgment, and they point to a declaration from a former police officer who concludes that the

County's investigative efforts showed a breach of the standard of care. Having found no duty,


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we need not explore the issue of breach, and we affirm the trial court's summary dismissal of the

Riders' complaint.

       Affirmed.


       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
  0




We concur:




       Johanson, A. .
                 J.
                  C
0
       B' rgen, J.




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