                                                                                                        !
                                                                          FILED
                                                                       April 12, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III   I
           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

DONNA GARCIA, A Washington                   )
Resident; CONCEPCION GARCIA, an              )         No. 33204-7-111
Individual; PATRICIA JANE LEIKAM,            )
as the Administrator of the Estate of        )
Tiairra Garcia, A Deceased Person,           )
                                             )
                     Appellants,             )         UNPUBLISHED OPINION
                                             )
      v.                                     )
                                             )
FRANKLIN COUNTY, A Municipal                 )
Corporation,                                 )
                                             )
                     Respondent.             )

      KORSMO, J. -    The trial court dismissed this action against Franklin County on the

basis that the appellants were collaterally estopped by a previous appeal involving the

city of Pasco. We affirm, but on different grounds.

                                         FACTS

      Appellants are the family and estate ofTiairra Garcia, whose death on June 22,

2008, is the basis for this lawsuit. That evening she had gone out with two friends,

Mamicus Lockhard and Ashone Hollinquest. They drove to a bar, and she waited inside

the van. When they were thrown out of the bar due to an altercation with another patron,                l

Ms. Garcia drove them to another bar.
                                                                                                        t

                                                                                                        Il
                                                                                                        i
No. 33204-7-III
Garcia v. Franklin Co.


       After Ms. Garcia parked the van, Lockhard asked Hollinquest to hand him a gun

that was in the backseat. While handing the weapon forward, it accidentally discharged

and the bullet struck Ms. Garcia. Rather than take her to the hospital, Lockhard drove the

van from his passenger seat toward a friend's house. He struck a number of vehicles

along the route and several telephone calls were placed to the 911 system. The phone

call at issue in this appeal was placed by neighbors across the street from where the van

came to rest in the yard of a house at 1611 Parkview.

       Melissa Gennett observed the activity while her husband, John Gorton, called 911.

She saw two men take what looked like a body out of the van and carry it into the

backyard. Mr. Gorton relayed to the 911 operator: "They pulled somebody out of a van

in the back of the house, drove [sic] them to the back of the house. 1' 1 Clerk's Papers (CP)

at 692. Mr. Gorton stayed on the phone until an officer arrived. Ms. Garcia was still

alive at this point.

       The officer did not inquire about the "body" nor check the back of the premises;

he investigated only the hit and run. Ms. Garcia died while at 1611 Parkview. The two

men then attempted to hide the body. Ultimately, they dumped the body in Mt. Rainier

National Park. It was not recovered until June, 2009.



       1
        A transcript provided by the city of Pasco for the first appeal translated the
"drove" reference as "drugged", while Division One ultimately used the word "dragged."
Clerk's Papers at 187.

                                             2
No. 33204-7-111
Garcia v. Franklin Co.


          The following June the appellants filed suit against the city of Pasco, Hollinquest,

Lockhard, and the bar where the two men had been drinking. Our record does not

indicate the resolution of the action against the last three defendants. The city of Pasco,

however, successfully obtained summary judgment dismissal of the case on the basis of

the public duty doctrine. The appellants appealed to this court, which administratively

transferred the case to Division One of the Court of Appeals.

          While that appeal was pending, Division One decided the case of Robb v. City of

Seattle. 2 Robb recognized a cause of action under the Restatement (Second) of Torts§

3028 (1965) notwithstanding the public duty doctrine. The appellants added that issue to

their pending appeal in Division One. They also filed suit against Franklin County and

the city of Pasco. Franklin County was named in the second action due to the actions of

its employee, the 911 operator. The amended complaint alleged that the county's 911

operator negligently conveyed to the responding officer "either false and/or incomplete

information regarding facts provided." CP at 14.

       Division One issued its decision and affirmed the dismissal of the case against the

city of Pasco and its officers. The court also discussed the actions of the 911 operator in

the course of its analysis. 3 After the Division One opinion issued, the city of Pasco was


       2
           159 Wn. App. 133, 245 P.3d 242 (2010), rev'd, 176 Wn.2d 427, 295 P.3d 212
(2013).
       3
           This opinion will address the Division One analysis later in this opinion.

                                                3
No. 33204-7-III
Garcia v. Franklin Co.


dismissed from the current case. Franklin County also sought dismissal, arguing that the

Division One opinion in the first appeal collaterally estopped the appellants from

pursuing action against the 911 operator and the county. The trial court granted summary

judgment in favor of the county.

       The appellants once again appealed to this court. We retained this case and the

parties presented oral argument to a panel.

                                       ANALYSIS

       The primary issue in this appeal is whether the ruling in the first appeal required

the trial court to dismiss this action against Franklin County. The appellants also argue

that the county undertook a duty to Ms. Garcia due to the county's operation of the 911

system and the acceptance of the telephone call from Mr. Gorton. We conclude that

appellants correctly argue that collateral estoppel does not apply, but we nonetheless

affirm because they do not establish that the county had a duty to act under the

Restatement.

      This court applies de novo review to an order granting summary judgment on the

basis of collateral estoppel. Barr v. Day, 124 Wn.2d 318, 324, 879 P.2d 912 (1994).

Summary judgment is proper if there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. CR 56( c); Wilhelm v.

Beyersdorf, 100 Wn. App. 836, 842, 999 P.2d 54 (2000). We consider the facts in a light




                                              4
No. 33204-7-III
Garcia v. Franklin Co.


most favorable to the nonmoving party. Reid v. Pierce County, 136 Wn.2d 195, 201, 961

P.2d 333 (1998).

       Collateral estoppel precludes re-litigation of the same issue in a subsequent action

involving the parties. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299,

306, 96 P.3d 957 (2004). In order to prevail on a claim of collateral estoppel, the party

seeking application of the doctrine bears the burden of showing that ( 1) the identical issue

necessarily was decided, (2) there was a final judgment on the merits, (3) the party

against whom the doctrine is asserted must have been a party (or in privity with a party)

to the earlier proceeding, and (4) application of collateral estoppel will not work an

injustice against the estopped party. Id. at 307. The estopped party must have had a "full

and fair opportunity to litigate the issue in the earlier proceeding." Id.

       Although Washington abolished sovereign immunity in 1967, 4 that action did not

itself create any new causes of action, duties, or liabilities where none existed before.

J & B Dev. Co. v. King County, 100 Wn.2d 299, 304-305, 669 P.2d 468 (1983),

overruled on other grounds by Taylor v. Stevens County, 111 Wn.2d 159, 759 P.2d 447

(1988); see also Chambers-Castanes v. King County, 100 Wn.2d 275, 288, 669 P.2d 451

(1983 ). It has been repeatedly held that

       [t]he threshold determination in a negligence action is whether a duty of
       care is owed by the defendant to the plaintiff. Whether the defendant is a


       4
           LAWS OF   1967, ch. 164.

                                              5
No. 33204-7-III
Garcia v. Franklin Co.


       governmental entity or a private person, to be actionable, the duty must be
       one owed to the injured plaintiff, and not one owed to the public in general.
       This basic principle of negligence law is expressed in the "public duty
       doctrine."

Taylor, 111 Wn.2d at 163 (citation omitted); accord Babcock v. Mason County Fire Dist.

No. 6, 144 Wn.2d 774, 784-785, 30 P.3d 1261 (2001). Under the public duty doctrine

       no liability may be imposed for a public official's negligent conduct unless
       it is shown that "the duty breached was owed to the injured person as an
       individual and was not merely the breach of an obligation owed to the
       public in general (i.e., a duty to all is a duty to no one)."

Taylor, 111 Wn.2d at 163 (quoting J & B Dev. Co., 100 Wn.2d at 303).

       Plaintiffs must fall within one of the established exceptions 5 to the public duty

doctrine in order to demonstrate that they were owed a duty of care by a governmental

entity. Cummins v. Lewis County, 156 Wn.2d 844, 853, 133 P.3d 458 (2006). It is only

once plaintiffs have established that they were owed a duty of care as an exception to the

public duty doctrine that "claimants may proceed in tort against municipalities to the

same extent as if the municipality were a private person." J & B Dev. Co., 100 Wn.2d at

305-306. Thus, at the outset of a negligence action against a governmental entity, courts

look to the public duty doctrine to determine whether the government owed the plaintiffs

a duty of care.



       5
         There are four exceptions to the public duty doctrine, "( 1) legislative intent, (2)
failure to enforce, (3) the rescue doctrine, and (4) a special relationship." Cummins v.
Lewis County, 156 Wn.2d 844, 853 n.7, 133 P.3d 458 (2006).

                                              6
No. 33204-7-III
Garcia v. Franklin Co.


       The appellants originally relied upon the rescue doctrine exception to assert that

the county owed Ms. Garcia a duty of care. One who undertakes to render aid or warn

someone in danger is required to exercise reasonable care in his or her efforts. Brown v.

MacPherson 's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). Where that person fails to

exercise reasonable care and the offer to render aid is relied upon, the rescuer may be

liable for negligence. Chambers-Castanes, 100 Wn.2d at 285 n.3. This doctrine applies

even if the state agent is acting gratuitously or beyond his or her statutory authority. Id.

The purpose of the rescue doctrine is to impose a duty where the government

affirmatively undertakes to either warn someone of danger or render aid. Brown, 86

Wn.2d at 299.

       An alternative basis to the public duty doctrine for finding governmental liability

is found in Restatement§ 302B. That section provides that an "act or an omission may

be negligent if the actor realizes or should realize that it involves an unreasonable risk of

harm to another through the conduct of the other or a third person which is intended to

cause harm, even though such conduct is criminal."

       In the previous appeal, Division One concluded that the city of Pasco did not owe

Ms. Garcia a duty under either the rescue doctrine or§ 302B. 6 In this appeal, the

appellants do not pursue their claim that the rescue doctrine exception applied and only



       6
           Garcia v. City of Pasco, noted at 181 Wn.2d 1009, slip op. at 9 (2014).

                                              7
No. 33204-7-III
Garcia v. Franklin Co.


argue§ 3028. Since the primary issue presented involves the scope of the Division One

ruling, it is time to consider it.

       At issue in the first appeal was whether the city of Pasco and its officers were

liable for failing to investigate the report by Mr. Gorton that the occupants of the van had

taken a body to the back of the house at 1611 Parkview. Specifically, the appellants

contended that the Pasco Police Department had knowledge that someone had been

dragged 7 into the 1611 Parkview house and did not act upon the information. Division

One rejected the argument on both factual and legal grounds. Reciting the transcribed

conversation between Mr. Gorton and the 911 operator, the court noted that the operator

had not promised to do anything with the information. Garcia, slip op. at 4-5. The court

also rejected the argument that the operator had implicitly promised to convey the

information to the police. Id. at 5. Because there was no gratuitous promise to aid Ms.

Garcia, the rescue doctrine was inapplicable. Id. at 5-6.

       The court then turned to analyze potential liability under§ 3028. Id. at 7-8. The

court found that there was no affirmative act by the police that would give rise to

liability. Id. at 9. The court stated:

       The record does not demonstrate that the police promised to investigate
       Gorton' s statement or were even aware of it. The 911 operator did not
       indicate that the police would take any particular action and did not


       7
         As noted in footnote 1, different verbs have been used in different transcripts of
the recording. We use "dragged" in accordance with appellants' view of the evidence.

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No. 33204-7-111
Garcia v. Franklin Co.


       acknowledge Gorton's statement about a body, other than to respond,
       "Okay." This does not constitute an affirmative indication that the police
       would investigate Gorton' s statement.

Id. The court then noted that the officers' failure to investigate was at most nonfeasance

and did not give rise to liability under the § 302B. Id.

       With this background in mind, it is finally time to address the appellants'

arguments. First, they contend that the trial court erred in granting summary judgment on

the basis of collateral estoppel. We agree. Critical here is whether the Division One

opinion necessarily determined the identical issue. Christensen, 152 Wn.2d at 307. It

did not.

       At issue before Division One was the duty, if any, owed by the city of Pasco and

its police force to Ms. Garcia under§ 302B. The duty of Franklin County and its 911

operator8 was not necessarily at issue. Nonetheless, the Division One opinion appears to

address, in part, the operator's actions. It expressly notes that the operator did not convey

Gorton's comment about a dragged body to the police. For that reason, the police did not

know about Ms. Garcia and had no obligation to investigate because there was no

affirmative action taken. Slip opinion at 9. Accordingly, Franklin County argues that



       8
         There apparently was confusion in the early stages of the first case whether or
not the 911 operator was employed by Pasco or by Franklin County. It is unclear
whether that confusion reached Division One or not. The discovery that the operator was
employed exclusively by the county was the basis for the current suit listing the county as
a defendant.

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No. 33204-7-III
Garcia v. Franklin Co.


Division One already determined that the operator undertook no action for purposes of §

302B liability.

       That contention fails for two reasons. First, in context, the Division One opinion

was addressing the duty, if any, of the police to act. It did not address the operator's

responsibilities, but simply noted the fact that the operator's failure to convey the

information did not amount to an affirmative action by the police. Second, even if it had

squarely addressed the duty of the 911 operator, that discussion would not have been

necessary to the resolution of the question concerning any duty owed by the officers.

Any such discussion would amount to little more than informative dicta on this topic.

       At most, the trial court could have given collateral estoppel to the factual ruling

that the operator did not convey Mr. Gorton's information to the police. The legal

consequences flowing from that fact were decided only as they related to the duty of the

police, but not as to any duty of the operator. Accordingly, the Division One opinion did

not necessarily resolve whether Franklin County owed a duty to Ms. Garcia and the trial

court erred in ruling otherwise.

       Nonetheless, that error does not resolve this case. The appellants argue that the

facts establish that Franklin County owed Ms. Garcia a duty under§ 302B. Specifically,

they contend that the operation of a 911 system and the receipt of the phone call from Mr.

Gorton constituted an affirmative action giving rise to liability under§ 302B. We

disagree.

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No. 33204-7-III
Garcia v. Franklin Co.


       This issue was decided in Robb, 176 Wn.2d 427. There the court authoritatively

construed§ 3028. At issue was the fact that police investigating a disturbance noticed,

but did not seize, several shotgun shells laying on the ground near the men they talked to.

After police left, one of the men returned to scene, picked up one of the shells, and soon

thereafter used it to shoot and kill Mr. Robb. Id. at 430. Our court suggested that§ 3028

was an alternative basis to the public duty doctrine's four exceptions for finding

governmental liability. Id. at 433, 439 n.3. However, that duty arose only in situations

where the government's own affirmative act created a high risk of harm. Id. at 433-434.

The fact that the police did not pick up and remove the shells was, at most, an omission.

It was not an affirmative action that created a risk of harm. Id at 435-438. To rule

otherwise would be to extinguish the "firm line between misfeasance and nonfeasance."

Id. at 439.

       The same problem is presented in this case. Allegedly, the operator failed to

convey information to the police that Ms. Garcia had been dragged into the house. On its

face, that allegation involves nothing more than a failure to act, i.e., a failure to pass on

the information. That failure is not an affirmative action. Even if the receipt of the 911

call gave rise to a duty to alert the police about the caller's report-an issue we do not

decide-the operator's failure to live up to that duty was not an affirmative action within

the meaning of§ 3028. It was no more than an omission. As Robb teaches, that

omission is not a basis for liability.

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No. 33204-7-111
Garcia v. Franklin Co.


      Summary judgment was properly granted to Franklin County. The judgment is

affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




      Lawrence-Berrey, A.C ..




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