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                                                                                                           APPEA


                                                                                        2014 AUG _12            PM 2: 118




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

DOUGLAS McLEAN,                                                           No. 44543 -3 -II


                                     Appellant,


          v.



THE TOWN OF STEILACOOM, a municipal                               UNPUBLISHED OPINION
corporation,




                                     Respondent.


          JOHANSON, C. J. —          Douglas McLean appeals the superior court' s summary judgment

order dismissing his negligence -based contract claim for damages against the Town of

Steilacoom ( the Town). 1         McLean alleged that he had a contract with the Town for the provision

of storm drain services to his property and that the Town breached its contract by failing to

control    storm   water   that    damaged his property    following   substantial   rainfall.   Because the


superior court did not err in applying the public duty doctrine to McLean' s negligence -based

contract claim under       Ravenscroft    v.   Washington Water Power Co.,    87 Wn. App. 402, 942 P. 2d

991 ( 1997) ( Ravenscroft I),       aff'd in part and reversed in part on other grounds, 136 Wn.2d 911,




1 The superior court also dismissed McLean' s negligence claims on summary judgment.
McLean does        not challenge    that decision.
No. 44543 -3 -II


969 P. 2d 75 ( 1998),            and     Ravenscroft    v.   Washington     Water Power         Co.,    136 Wn.2d 911


Ravenscroft II),      we affirm.



                                                             FACTS


          In 2007, McLean purchased a home and property in Steilacoom and applied to the Town

to   establish   full utility   service, which      included   storm    drain   services.   McLean consistently paid

his utility bill.

          In mid -
                 January 2009, a storm deposited substantial rainfall on McLean' s property, and a

portion   of his    property    sloughed off and slid        down the   side of an   abutting   ravine..   Just over three


years later, McLean filed a summons and complaint against the Town for damages caused by the

landslide. He alleged several negligence claims and a breach of contract claim, asserting that the

Town had breached its utility services contract with him by negligently maintaining its storm

water collection system.



          The Town       moved      for summary judgment          on all of     McLean'     s claims.   In regard to the


contract claim, the Town argued that it was based on an unwritten contract so the statute of


limitations had expired and that the claim was " frivolous" because the contract did not contain a


promise that McLean' s property would never be damaged by storm water and no such verbal

agreement was        binding     under    the   applicable municipal code.       Clerk' s Papers at 27. Although the


superior court granted summary judgment and dismissed the negligence claims, it initially denied

summary judgment          as    to the   contract claim.
No. 44543 -3 -II



        The Town moved for reconsideration on the contract claim issue arguing that under
                                                                                                  2
Ravenscroft I   and   II, the   public   duty    doctrine     precluded the   contract   claim.       Agreeing with the

Town, the superior court granted the motion for reconsideration and dismissed the contract

claim. McLean appeals this order.


                                                       ANALYSIS


        The dispositive issue in this case is whether the superior court erred in applying the

public duty doctrine to McLean' s negligence -based contract claim. We hold that it did not.

                                               I. STANDARD OF REVIEW


        We   review    summary judgment              orders   de   novo.   Aba Sheikh v. Choe, 156 Wn.2d 441,


447, 128 P. 3d 574 ( 2006).         The superior court properly grants summary judgment when the

pleadings and affidavits show no genuine issue of material fact and the moving party is entitled

to judgment   as a matter of     law. CR 56( c). We consider all facts and reasonable inferences in the


light most favorable to the nonmoving party and review de novo all questions of law. Mountain

Park Homeowners Ass 'n v. Tydings, 125 Wn.2d 337, 341, 883 P. 2d 1383 ( 1994).


                                II. PUBLIC DUTY DOCTRINE AND RAVENSCROFT


        Courts usually apply the public duty doctrine in tort claims:

              Municipal corporations 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 corporation.               RCW 4. 96. 010( 1).   When the defendant in 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


2 McLean appears to assert here that the superior court should not have considered the public
duty doctrine /contract argument because the Town did not present this argument earlier. But
McLean does not present any argument or legal citation in support of this issue. " Passing
treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration."
Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P. 2d 290, review denied, 136 Wn.2d
1015 ( 1998);   see also   RAP 10. 3(    a)(   6).   Accordingly, we decline to address this issue.

                                                               3
No. 44543 -3 -II



            was not      the breach           of an obligation owed                     a duty
                                                                                   to the   public     in   general,    i. e.,
            owed    to   all   is
                            duty    a          owed  Babcock v. Mason County Fire Dist. No. 6,
                                                       to   none. [

            144 Wn.2d 774, 785, 30 P. 3d 1261 ( 2001)]; Beal v. City of Seattle, 134 Wn.2d
            769, 784, 954 P. 2d .237 ( 1998) ( citing Taylor v. Stevens County, 111 Wn.2d 159,
            163, 759 P. 2d 447 ( 1988)).                 This doctrine " recognizes that a fundamental element
            of any negligence action is a duty owed by the defendant to the plaintiff."
            Meaney v. Dodd, 111 Wn.2d 174, 178, 759 P. 2d 455 ( 1988). In this way, the
            public duty doctrine is a focusing tool used to determine whether the defendant
             owed a      duty       to   a ` nebulous public'        or a particular        individual."        Osborn v. Mason

            County,      157 Wn.2d              18, 27,      134 P. 3d 197 ( 2006) ( internal quotation marks
            omitted) (    quoting Taylor, 111 Wn.2d at 166).

Munich       v.   Skagit       Emergency         Commc'       n    Ctr., 175 Wn.2d 871, 878, 288 P. 3d 328 ( 2012).                       In


Ravenscroft I, Division Three of this court addressed whether the public duty doctrine can also

apply to              based claims under certain circumstances and
             contract -                                                                               held that it   could.      87 Wn. App.

at 416 -17.


            In Ravenscroft I, the plaintiff, Ravenscroft, asserted a contract claim against Spokane


County as a third party beneficiary to a cooperative agreement between the State and the county

that provided funding for boating safety and enforcement programs in exchange for the county' s
                                                   3
participation       in those         programs.           87 Wn.      App. at       406 -07.      Division Three held that although


    g] enerally     a    breach          of   contract      does    not   give      rise    to   an    action   in tort[,] the negligent


performance of a contract may create a tort claim if a duty exists independently of the

performance of           that contract."          Ravenscroft I, 87 Wn. App. at 417 '( citing Am. Nursery Prods.,

Inc.   v.   Indian Wells Orchards, 115 Wn.2d 217, 230, 797 P. 2d 477 ( 1990)).                                       Ultimately, the court

held that         even   assuming that Ravenscroft                    was      a   third party        beneficiary      to the "   cooperative




agreement         between the State              of    Washington         and [    Spokane]      County," the public duty doctrine



3
    Ravenscroft was injured when a boat he was riding in hit submerged tree stumps in an area of
Long Lake that Spokane County was responsible for maintaining. Ravenscroft I, 87 Wn. App. at
407 -09.


                                                                           4
No. 44543 -3 -II



barred his claim because the basis for the claim was an underlying negligence action and the

duties the contract imposed on the county were duties owed the public and not a particular

individual.        Ravenscroft I,           87 Wn.        App.   at    416.        On appeal before our Supreme Court,


Ravenscroft did not challenge Division Three' s conclusion that the public duty doctrine applies

 to   a   negligence          action   based       on    failure to        perform   contractual   duties,   if a duty exists

independent      of    the   contract."     Ravenscroft II, 136 Wn.2d at 928.


          We hold, in accordance with Ravenscroft I, that the public duty doctrine is applicable to

McLean' s breach of contract claim, which is based solely on the municipality' s negligence, and

we affirm       the    court' s   granting    of       summary judgment.            McLean' s contract4 with the Town for


storm drain services was based on municipal codes that required the Town to provide these

services    to the     public.    In fact, McLean admits that the Town' s obligation to maintain the storm


water     system arises        from the Town' s           municipal        code.    Specifically, he cites to the Steilacoom

Municipal Code ( SMC) 13. 50. 020( 3), ( 8), ( 9),                    and ch. 13. 50 SMC for the premise that the Town

storm water        system was "        necessary to protect property owners from water runoff, to decrease

storm water -
            related damage, and to protect the health, safety and welfare of the inhabitants of the
                                                   5
Town."       Br.      of   Appellant   at    12.       And he    asserts, "    These are the services for which [ he] has


contracted with            the Town. "6     Br. of Appellant at 12.




4 Because we are not asked to decide whether an oral or written contract exists, we presume the
contract' s existence. Nor do we decide the applicable statute of limitations.

5 McLean cites SMC 13. 24.030, but it is clear from his argument that he is referring to SMC
 13. 50. 020.


 6 We note that McLean has never argued that the public duty doctrine does not apply for any
 other reason than this issue is a contract issue.
                                                                       5
No. 44543 -3 -II




         McLean'      s attempt   to distinguish   Ravenscroft       I   and   11 is   not   persuasive.   He argues that


the Ravenscroft I and II opinions are inapposite because ( 1) Ravenscroft was not a party to the

contract and       had   claimed to   only be   a third   party    beneficiary     to the contract, ( 2) there was no



privity of contract between Ravenscroft and the parties that had executed the contract, and ( 3) the

contract   had     expired   before Ravenscroft    suffered       his injuries.        But Division Three assumed for


purposes of its public duty doctrine analysis that there was a contract and that Ravenscroft was a

third party beneficiary of that contact, and the court never mentioned that the contract had

expired before Ravenscroft was injured. Thus, these distinctions are immaterial.


         Given the basis for McLean' s negligence -
                                                  based contract claim is the municipal code that


applies to the public in general and McLean has not shown any disputed facts as to whether the

Town showed a duty to him in particular, the trial court did not err in applying Ravenscroft I and

finding that the public duty doctrine precludes McLean' s negligence -based contract claim.

Accordingly, we affirm.

         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

2.06.040, it is so ordered.




We concur:




MAXA, J.




MELNICK, J.


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