                                                                           F7ILEi
                                                                     COURT OF APPEALS
                                                                         DIVISION 11

                                                                    2013 NOV - 5   Air 8'. 58

                                                                    STATE OF WASHINGTON

                                                                     BY
                                                                              EL1 Y ____




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II



GARY SMITH,
                  Appellant /
                            Cross -Respondent,                     No. 41811 -8 -II
                                                                   consolidated with

       V.                                                           No. 42231 -0 -II


CLARK PUBLIC UTILITIES, a municipal                           UNPUBLISHED OPINION
corporation of the State of Washington;
                  Respondent/ Cross- Appellant,


and




CLARK COUNTY by and through the
DEPARTMENT OF PUBLIC WORKS, a
political subdivision of the State of Washington,
                                Respondent.




                      TEM1—

       LEE, J. PRo             Gary Smith contacted a high -
                                                           voltage power line and suffered

personal injuries while riding atop a house being transported down State Route 500 in Camas,

Washington. Smith sued the Clark County Department of Public Works ( County) for negligently

approving the move permits and Clark Public Utilities (CPU) for negligently reviewing the

proposed route for utility hazards.

       The trial court granted the County' s summary judgment motion, holding that the public

duty doctrine barred Smith' s suit against the County; but it denied CPU' s summary judgment

1 Judge Linda Lee is serving as judge pro tempore of the Court of Appeals, Division II, under
CAR 21(     c).
No. 41811 -8 -II consolidated with No. 42231 -0 -II


motion, concluding that the public duty doctrine did not apply because CPU acted in a

proprietary capacity when it reviewed the move.

         Smith appeals the trial court' s order granting summary judgment dismissing the County,

arguing that ( 1) the    public    duty   doctrine   should   be    abolished and, (   2) even if the public duty

doctrine applies, the failure to enforce exception results in liability. CPU joins Smith' s failure to

enforce exception arguments regarding the County'.s liability, but not his claim that the public

duty doctrine should be abolished.

         CPU also appeals the trial court' s denial of its summary judgment motion, arguing that

 1) it did   not owe a   duty to   Smith    under    the   public   duty   doctrine; ( 2) regardless of the


applicability of the public duty doctrine, CPU owed no duty to Smith because his employer had

sole   responsibility to   ensure   Smith'   s   safety;   and, (   3) even if CPU owed a duty to Smith, CPU did

not breach that duty as a matter of law.

          We affirm the trial court' s order granting summary judgment dismissing the County

because Clark County Codes ( CCC) 10. 06A.020, 10. 06A.030, and 10. 06A.070( c)( 11) do not

create a mandatory and specific duty and the County has discretion over permit approval. Thus,

the failure to enforce exception does not apply.

          We also affirm the trial court' s order denying CPU' s summary judgment motion because

CPU performed a proprietary function when reviewing the proposed move route. Thus, the

public duty doctrine does not bar Smith' s suit against CPU.

                                                            FACTS


          Smith' s   employer,     Northwest Structural        Moving ( NSM), contracted to move two houses,

one on April 3 and one on April 10, 2005. During the April 10 move, Smith and another NSM

employee were positioned on the roof to move any low- hanging, non -hazardous wires over the

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No. 41811 -8 -II consolidated with No. 42231 -0 -II


peak of the roof. Smith contacted a high -
                                         voltage power line while riding atop the house on State

Route 500 in Camas, Washington, and suffered severe personal injuries. Smith' s injuries

occurred while he was walking along the roof holding a telephone cable and a high -voltage wire

contacted his back or neck.

          NSM had conducted the April 3 move " ithout incident. The structures moved on April 3
                                             w

and on April 10 were the same height and were transported from the same location along the

same route. The same employees rode atop the house on April 3 and lifted approximately 20 to

25 non -hazardous utility lines over the structure. The only difference between the two moves

was Smith' s position. On April 3, Smith stayed low on the roof' s eaves throughout the move;

whereas on April 10, he went to the roof s peak and stood up. NSM trained its employees to

position themselves as low as possible on top of the structure and not to stand on the roof peak

while the structure was moving.


          In February 2005, Christy Settle, vice president of NSM, asked Robert Hinkel, a CPU
                                                                                 2
associate    design   engineer,      to   remove a number of " guy stubs"            that made the roadway too narrow

to accommodate the houses' width on a portion of the proposed route for the April 3 and April

 10   moves.   She also submitted a partial proposed route map showing where the guy stubs needed

to be   removed.      In   a   fax to Hinkel, Settle   stated   that "[   w]e also measured the entire route for


utility wire moves and both houses are below any utility wires so this will not be an issue for us."
 Clerk' s Papers ( CP) at 825.


           Although CPU lacked written guidelines for processing house moves, it was CPU' s

 common practice to inspect the proposed route to determine whether there were any conflicts


 2
     A "guy stub" is part of the apparatus used to anchor a utility pole to maintain its upright
 position. Clerk' s Papers at 850.

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No. 41811 -8 -II consolidated with No. 42231 -0 -II



with CPU facilities based on the contractor' s measurements. Before reviewing a proposed route,

CPU generally required the mover to provide the move route, the date and time of the move, the

height and width of the structure to be moved, and any utility facilities that needed to be

relocated. CPU reviewed proposed routes' to prevent contractor injury, to ensure general public

safety, and to prevent damage to its facilities because " we may have outages and we have

responsibility for   customer       reliability." CP at 830.


          Hinkel informed Settle that he would need a complete proposed route map, but Settle

responded that she had driven the route and made the necessary measurements. Thus, she did

not provide    CPU   with a    map. Settle also stated that the houses' heights when loaded for


transport were 17 feet, 2 inches.


          Hinkel was concerned about the houses' height because, although the required clearance


for utility lines was 18 feet, the height of electrical wires can fluctuate by a few inches depending

on weather conditions. Thus, Hinkel informed Settle that CPU wanted to supervise the move for


safety   purposes and    to   prevent   damage to CPU'   s   facilities. Settle responded that she had driven


the route and that there were no conflicts with CPU' s facilities, so they did not need CPU' s

supervision    for the   move.      She stated that NSM employees were " professionals" and did not need


CPU'     s assistance.   CP   at   830. CPU did not supervise either move.


          In March 2005, using the partial map NSM provided, Hinkel drove the proposed route,

looking for    possible clearance       issues. Generally, when reviewing a route over which a structure


would be moved, Hinkel would measure any lines that looked like they might be too low in

relation to the height of the structure to be moved. For the April 3 and April 10 moves, Hinkel


was concerned about any lines that were lower than 18 feet from the road, but he did not

encounter     any lines lower than 18 feet along the         proposed route.   Thus, based   on   NSM'   s
No. 41811 -8 -II consolidated with No. 42231 -0 -II


representation of the structures' heights, Hinkel determined there were no conflicts with CPU

facilities.


           Although CPU grants requests to move or shut down its facilities to accommodate


structure moves, it does not have authority to approve or deny a proposed structure move.

Instead, under CCC 10. 06A.070, NSM applied for and received a County structure move permit.

The CCC requires permits " for the movement of buildings and structures removed from their

foundation" and provides that


             a] rrangements for the disconnection and connection of any utilities or other
            facilities in the right - - ay shall be the responsibility of the permittee and any
                                    of w
            expenses in connection therewith shall be paid by the permittee.      The permittee

            and /or permit applicant shall bring proof acceptable to the director of public
            works or his designee that demonstrates that the necessary arrangements with the
            utilities or other facilities have been made.


CCC 10. 06A.070( b), (      c)(   11).    All applicants for structure move permits from the County " must

submit all information requested by the [ County] related to the activity sought to be permitted

before a permit can be issued. Failure to provide requested information will result in the denial

of   the   permit application."      CCC 10. 06A.020.


            On March 16, 2005, NSM submitted permit applications for the two structure moves and


represented that the houses' heights were 17 feet, 6 inches. The applications included a " House

Movers Check List" that required the applicant to ( 1) obtain information from CPU, the

telephone company,        and     the    cable   company regarding any fee       paid; ( 2)   indicate whether the


route was approved and whether any utility companies were going to assist; and ( 3) note any

conditions or restrictions placed on              the   move.   The   application stated, "   Please contact the utilities


to obtain the following information. This information must be obtained before any County




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No. 41811 -8 -II consolidated with No. 42231 -0 -II


permits will   be issued."   CP at 755. In this section of the applications, for each utility, NSM

wrote "   below utility   wire   height."   CP at 755 -56.


          Sheila Ensminger,                                                           the   applications.   She
                                 a   County   employee, reviewed and processed




stated that the structure mover was required to pre -run the proposed structure move route using a


pole to measure the height of any low-hanging wires to determine whether arrangements needed

to be made with the utilities. She also stated that the County relied on the accuracy of the

applicant' s measurements when processing a structure move permit application. Based on her

training, the fact that the structures were shorter than 18 feet, 6 inches ( which was the utility wire

height), and given the information provided in NSM' s structure move permit applications,

Ensminger concluded that " there was no issue with utility wires" and did not request proof of

arrangements with the utility companies. CP at 750. On April 1, 2005, Clark County issued the

house move permits, one for April 3 and one for April 10.


          Gary Boe of CPU conducted an incident report on the date of Smith' s accident and
recorded the house' s height as 18 feet, 11 inches. When Boe made the measurement, the house

was on a hydraulic jack that was raised approximately 4 to 6 inches. Thus, Boe stated that the

house' s height alone could have been as low as 18 feet 5 inches. Boe also measured the height

of the utility lines at the site of the accident. The energized primary line was 23 feet, 7 inches
 above the road center line and the neutral line was 18 feet, 5 inches above the road center line.

          It is a common practice for house movers to have employees on top of houses to move

 utility lines over the house. The Washington Industrial Safety and Health Administration
 WISHA) requires a minimum clearance of 10 feet between a worker and an energized high -

 voltage electrical wire.    WAC 296- 155- 428( 1)(      e)(     i). At either the 17 feet, 2 inch height provided




                                                             0
No. 41811 -8 -II consolidated with No. 42231 -0 -II


to CPU or the 17 feet, 6 inch height provided to the County in NSM' s application permit, the

house' s peals was within 6 feet of overhead high voltage lines.


         Smith sued CPU and the County for negligence. He claimed that the County negligently

issued the move permit. He also claimed that CPU negligently evaluated the proposed house

move and failed to ensure compliance with statutory minimum clearance requirements for utility

lines.


         The County successfully moved for summary judgment, arguing that ( 1) it did not owe a

duty to Smith under the public duty doctrine and ( 2) it did not owe a duty to Smith because the
accident occurred on a state   highway    and "[   t] he County does not have the authority to permit or

regulate   house   moves on state   highways."     CP   at   542.   Smith and CPU responded that the


County owed a duty to Smith under the " failure to enforce" exception to the public duty doctrine.
CP at 417, 438.


         The trial court concluded that the failure to enforce exception to the public duty doctrine

did not apply because ( 1) the County did not have actual knowledge of a violation of CCC

10. 06A.070 concerning permitting for house moves and ( 2) the County' s duties under CCC

10. 06A.070 were owed to the public in general, not to a specific individual. The trial court also

concluded that the County did not have a duty with respect to the permitting of house moves on

state roads and any negligence by the County in issuing a permit for the move was not the

proximate cause of Smith' s damages. Thus, the trial court dismissed all of Smith' s claims

against the County. Smith and CPU timely appeal the order granting the County' s summary

judgment motion.


           CPU subsequently moved for summary judgment, arguing that under the public duty

 doctrine it owed no duty to Smith as an individual because it acted in a regulatory rather than in a
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No. 41811 -8 -II consolidated with No. 42231 -0 -II



proprietary capacity when it reviewed whether the two house moves could proceed without

conflicting with CPU' s utility lines. The trial court denied CPU' s motion, concluding that

 CPU' s acts were a combination of governmental and proprietary but were more proprietary than

governmental.... [         T] he acts were not so purely governmental in their nature so as to immunize

CPU from        liability." CP at 988.

           The trial court certified its order denying CPU' s summary judgment motion for
                                                         3
discretionary      review under      RAP 2. 3( b)( 4).       We granted CPU' s motion for discretionary review

and consolidated the appeal with Smith' s and CPU' s appeal of the trial court' s summary


judgment dismissal of the County.

                                                         ANALYSIS


I.         STANDARD OF REVIEW


           We review a trial court' s summary judgment order de novo, engaging in the same inquiry

as the trial court. Ruvalcaba v. Kwang Ho Baek, 175 Wn.2d 1, 6, 282 P. 3d 1083 ( 2012).

     Summary judgment is appropriate ` if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any     material   fact   and   that the moving party is      entitled   to   a   judgment   as   a    matter of   law. "' Visser


v.    Craig,   139 Wn.     App.    152, 157, 159 P. 3d 453 ( 2007) (          quoting CR 56( c)).

           The moving party bears the burden of demonstrating that there is no genuine issue of

material                                       Owners Ass' n Bd. of Dirs.
               fact. Atherton Condo. Apartment —                                                  v.   Blume Dev. Co., 115


Wn. 2d 506, 516, 799 P. 2d 250 ( 1990). "            After the moving party submits adequate affidavits, the


3
     RAP 2. 3( b)( 4) provides that we may grant discretionary review if
            t]he superior court has certified, or all the parties to the litigation have stipulated,
           that the order involves a controlling question of law as to which there is
           substantial ground for a difference of opinion and that immediate review of the
           order may materially advance the ultimate termination of the litigation.
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No. 41811 -8 -II consolidated with No. 42231 -0 -II


nonmoving party must set forth specific facts which sufficiently rebut the moving party' s

contentions and        disclose the   existence of a genuine        issue   as   to   a material   fact."    Meyer v. Univ, of

Wash., 105 Wn.2d 847, 852, 719 P. 2d 98 ( 1986). "                 If the nonmoving party fails to do so, then

summary judgment is          proper."    Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16,

26, 109 P. 3d 805 ( 2005).


         We consider all evidence submitted and all reasonable inferences from the evidence in

the light most favorable to the nonmoving party. McPhaden v. Scott, 95 Wn. App. 431, 434, 975

P. 2d 1033 ( 1999). But a nonmoving party " may not rely on speculation[ or on] argumentative

assertions     that   unresolved   factual issues   remain."       Seven Gables Corp. v. MGM/UA Entm' t Co.,

106 Wn.2d 1, 13, 721 P. 2d 1 ( 1986).


         Here, the parties dispute whether the public duty doctrine precludes the County or CPU

from owing a duty to Smith and, if not, whether the County or CPU negligently caused Smith' s

injuries. To prove an action for negligence, a plaintiff must demonstrate that the defendant owed

a duty to the plaintiff, breached this duty, and that this breach proximately caused the plaintiffs

injury. Hertog v. City        of Seattle, 138 Wn.2d 265, 275, 979 P. 2d 400 ( 1999). "                      Existence of a duty

is   a question of     law. Breach    and proximate cause are         generally ...        questions for the trier of


fact."   Hertog, 138 Wn.2d at 275 ( citation omitted).

          Once it is determined that a legal duty exists, it is generally the jury' s function to
          decide the foreseeable        range of           limiting the scope of that duty. In
                                                    danger, thus
          other words, given the existence of a duty, the scope of that duty under the
          particular circumstances of the case is for the jury.

Briggs                       120 Wn.    App.   319, 322 -23, 85 P. 3d 369 ( 2003) (           citation omitted).      But if
          v.   Pacificorp,

 reasonable minds could not differ on the issues of breach and proximate cause, they may be

 determined as a matter of law. Hertog, 138 Wn.2d at 275.


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No. 41811 -8 -II consolidated with No. 42231 -0 -II


II.       THE PUBLIC DUTY DOCTRINE AND ITS CONTINUING VIABILITY


          As a preliminary matter, Smith argues that the public duty doctrine should be abolished.

But we are bound by our Supreme Court' s holding that the public duty doctrine applies in the

state of Washington. See Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784 - 86,

30 P. 3d 1261 ( 2001).        Accordingly, we decline to consider this argument further.

III.      THE FAILURE TO ENFORCE EXCEPTION DOES NOT APPLY TO THE COUNTY


           Smith next argues that the public duty doctrine' s failure to enforce exception applies

because the County breached its mandatory duty to enforce the CCC 10. 06A.020, 10. 06A.030,

and    10. 06A.070( c)( 11).    CPU joins in these arguments. The County responds that the failure to

enforce exception does not apply here because the CCC provisions involving structure move

permit applications did not impose a mandatory and specific duty on the County. We agree with

the County.

           A determination of whether the CCC provisions imposed a mandatory duty on the

County to deny NSM' s permit application is a matter of statutory interpretation and a question of

law that we review de novo. Dot Foods, Inc. v. Dep' t ofRevenue, 166 Wn.2d 912, 919, 215 P. 3d

185 ( 2009).       When interpreting a statute, our " fundamental objective is to ascertain and carry out

the Legislature' s intent, and if the statute' s meaning is plain on its face, then the court must give

effect   to that   plain   meaning   as an expression of    legislative intent."   Dep' t ofEcology v. Campbell

      Gwinn, L.L. C., 146 Wn.2d 1, 9 - 10, 43 P. 3d 4 ( 2002). "       Under this plain meaning rule,

examination of the statute in which the provision at issue is found, as well as related statutes or

other provisions of the same act in which the provision is found, is appropriate as part of the

determination       whether a plain    meaning   can   be   ascertained."   State ex rel. Citizens Against Tolls


  CAT)    v.   Murphy,     151 Wn.2d 226, 242, 88 P. 3d 375 ( 2004). "       We give effect to all statutory

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No. 41811 -8 -II consolidated with No. 42231 -0 -II



language, considering statutory provisions in relation to each other and harmonizing them to

ensure proper construction."                Joy   v.   Dep' t of Labor          and   Indus.,   170 Wn. App. 614, 620, 285 P. 3d

187 ( 2012),      review    denied, 176 Wn.2d 1021 ( 2013).                      We also avoid construing a statute in a

manner    that    results   in " unlikely,      absurd, or strained consequences."                   Glaubach v. Regence


BlueShield, 149 Wn.2d 827, 833, 74 P. 3d 115 ( 2003).

          Under the       public     duty   doctrine'     s   failure to     enforce exception, "[ a] public official owes a




duty to   an                    1)
                 individual if ( the          official   has    a   duty   to   enforce a statute, (   2) the official has actual


knowledge         of a   statutory   violation, (      3) the official fails to correct the violation, and ( 4) the


plaintiff   is   within   the   class   the   statute protects."           Smith v. City ofKelso, 112 Wn. App. 277, 282,

48 P. 3d 372 ( 2002). "         This exception applies only where there is a mandatory duty to take a

specific action      to   correct a     known statutory             violation."       Donohoe v. State, 135 Wn. App. 824,

849, 142 P. 3d 654 ( 2006). "            Such a duty does not exist if the government agent has broad

discretion       about whether and          how to      act."    Halleran       v.   Nu West Inc.,   123 Wn. App. 701, 714, 98

P. 3d 52 ( 2004).        The plaintiff has the burden to establish each element of the failure to enforce

exception.        Atherton, 115 Wn.2d             at   531.     Courts construe the exception narrowly. Atherton, 115

Wn.2d at 531.


          The CCC requires a permit " for the movement of buildings and structures removed from

their foundation" and provides:


          Arrangements for the disconnection and connection of any utilities or other
          facilities in the right -of way shall be the responsibility of the permittee and any
                                      -
          expenses in connection therewith shall be paid by the permittee.       The permittee

          and /or permit applicant shall bring proof acceptable to the director of public
          works or his designee that demonstrates that the necessary arrangements with the
          utilities or other facilities have been made.




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No. 41811 -8 -II consolidated with No. 42231 -0 -II


CCC 10. 06A. 070( b), (     c)(   11).   The CCC also provides that applicants for structure move permits


from the County " must submit all information requested by the [ County] related to the activity

sought to be permitted before a permit can be issued. Failure to provide requested information

will result    in the denial    of the permit application."          CCC 10. 06A.020.


            Here, the County' s permit application included a " House Movers Check List" that

required the applicant to include information relating to CPU, the telephone company, and the

cable company as to whether any fees were paid, whether the route was approved, whether there

would be assistance from the utility companies, and. any conditions or restrictions on the move.

CP    at   755 -56. The   application stated, "      Please contact the utilities to obtain the following

information. This information            must   be   obtained   before any   County     permits will   be issued."   CP


at   755.   In this section of the application, NSM wrote " below utility wire height" for each utility.

CP at 755 -56.


            Smith contends that CCC 10. 06A.070( c)( 11) required the County to obtain information

from NSM regarding arrangements with each utility. NSM' s permit application included no

information that necessary arrangements with the utilities had been made. Thus, according to

Smith, the County breached its mandatory duty to deny the application.

            Although CCC 10. 06A.070( c)( 11) contains the mandatory " shall" language with respect

to the proof of arrangements with utilities, it states that the applicant " shall bring proof

acceptable to the director ofpublic works or his designee that demonstrates that the necessary

arrangements with         the   utilities or other   facilities have been    made." (   Emphasis   added.)    Thus, the


provision' s plain language affords the County broad discretion to determine ( 1) what, if any,

arrangements with the utility are " necessary" and ( 2) what proof of those arrangements is

  acceptable."     CCC 10. 06A. 070( c)( 11).


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No. 41811 -8 -II consolidated with No. 42231 -0 -II



        Furthermore, examining the provision as a whole, the first sentence of CCC

10. 06A.070( c)( 11) clearly states that making arrangements with utilities " shall be the

responsibility     of   the   permittee."   Accordingly, we hold that CCC 10. 06A.070( c)( 11) imposes a

duty on the permit applicant to make arrangements with utilities and to provide acceptable proof

of those arrangements to the County. Any County action on the permit application based on the

information provided by the applicant is discretionary.

        Smith further contends that Campbell v. City ofBellevue, 85 Wn.2d 1, 530 P.2d 234

 1975) is instructive with regard to his argument. According to Smith, under CCC 10. 06A.020,

the County had a mandatory duty to deny the permit application because NSM omitted

 requested information" regarding its arrangements with utilities.

        In Campbell, a woman was electrocuted when she fell into a stream that contained a live

electrical wire, and her estate sued the city of Bellevue for allowing the dangerous condition to

persist. 85 Wn.2d at 4 -5. Before the incident, a dead raccoon was discovered in the creek, and

the woman who attempted to remove the raccoon received an electric shock. Campbell, 85

Wn.2d   at   3.   The city' s electrical inspector inspected the site of the first incident and notified the

landowner that the "[          w] iring running thr[ ough the] creek is unsafe and constitutes a threat to life.

This situation will have to be corrected immediately or the service will be disconnected."

Campbell, 85 Wn.2d at 3 -4 ( internal quotation marks omitted).


        Despite the existence of a Bellevue Municipal Code ( BMC) provision addressing this

situation, the City took no further action to disconnect the wiring. Campbell, 85 Wn.2d at 4.

Specifically, the BMC provision stated:

         The       building      official   shall   have the authority to inspect[ ]    any previously
        installed       electrical equipment....        Should he find such installation or equipment
        to be manifestly unsafe to life or property, he shall serve written notice to the

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No. 41811 -8 -II consolidated with No. 42231 -0 -II


       owner and /or user thereof that such unsafe conditions exist and must be
       eliminated within a period of not           to    exceed   sixty days.   If such requirements are
       not complied with within the stated time, he shall disconnect or cause to be
       disconnected, the current from such installation or equipment."


Campbell, 85 Wn.2d        at   6 ( emphasis   added) (   quoting former BMC 16. 3 2. 110 ( Ordinance 163, §

11 ( June 12, 1956))).    Our Supreme Court held that the city' s electrical engineer knew of the

danger posed by the electrical Wires, but failed to comply with the ordinance requiring him to

disconnect the                                                  threat to life. Campbell, 85 Wn. 2d                13.   The
                 wires upon      finding that they   were a                                                   at




ordinance was " not only designed for the protection of the general public but more particularly

for the benefit of those persons or class of persons residing within the ambit of the danger

involved."    Campbell, 85 Wn.2d at 13.


         Here, unlike the statute in Campbell that clearly required disconnection of the wiring

upon a determination that it created a condition threatening to life, CCC 10. 06A.020 states,

 Failure to   provide requested      information    will result   in the denial   of   the   permit application."        The


broad "[   fJailure to provide requested information" does not describe a specific duty that the

                           but instead   states what will       happen if the   applicant      fails to   perform.       The
County     must perform,




public duty doctrine' s failure to enforce-exception requires a " specific duty to take corrective

action."    Ravenscroft   v.   Wash. Water Power Co.,         87 Wn. App. 402, 415, 942 P. 2d 991 ( 1997)

 emphasis added),    aff'd in part, rev' d in part on other grounds by Ravenscroft, 136 Wn.2d 911,

969 P. 2d 75 ( 1998).


           Although CCC 10. 06A.020 provides that the County will deny a permit if the applicant

fails to provide requested information, CCC 10. 06A.070( c)( 11) specifically allows the County to

determine what is " acceptable" proof regarding the requested information. Moreover, whereas in

Campbell, the city official made the necessary finding prerequisite to disconnecting the lines;


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No. 41811 -8 -II consolidated with No. 42231 -0 -II


here, no County official determined that the information provided regarding arrangements with

utilities was unacceptable under        CCC 10. 06A.070( c)( 11).       Thus, CCC 10. 06A.070( c)( 11) does


not impose a mandatory duty on the County, and CCC 10. 06A.020 does not impose a specific

duty on the County with respect to the CCC violation alleged here.

          Smith relies on two additional cases, Bailey v. Town ofForks, 108 Wn.2d 262, 737 P. 2d

1257 ( 1987),   753 P. 2d 523 ( 1988) and Waite v. Whatcom County, 54 Wn. App. 682, 775 P. 2d

967 ( 1989),   in which Washington courts have held that the failure to enforce exception applied.

Both are distinguishable.


          In Bailey, a woman was injured by a driver who was under the influence of alcohol while

driving   in the town   of   Forks.   108 Wn.2d at 263 -64. A Forks police officer had previously seen

the man and knew him to be intoxicated, but failed to take him into custody contrary to former

RCW 70. 96A. 120( 2) ( 1977),         which provided that " a person who appears to be incapacitated by

alcohol and who    is in     a public place ...   shall be taken into protective custody by the police or

the emergency     service patrol."      Bailey,   108 Wn.2d    at   264, 269 ( emphasis   added).   The statute in


Bailey, similar to that in Campbell, specifically delineated the trigger for the officer' s duty (i.e.,

once an officer determined that an individual was publicly intoxicated, the officer had a statutory

duty to   take the intoxicated individual into custody).            By contrast, here, CCC 10. 06A.070( c)( 11)

merely defines what will happen if the applicant fails to provide " acceptable" proof to the

County.     Moreover, "[     f]ailure to provide requested information" can encompass a broad

spectrum of conduct and does not apply to the specific alleged failure on the County' s part

here —failure    to receive specific information regarding arrangements with utilities. CCC

 10. 06A.020.




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No. 41811 -8 -II consolidated with No. 42231 -0 -II


           In Waite, a man was injured when he lit a propane furnace in his basement and the

furnace exploded. 54 Wn. App. at 684. The Uniform Mechanical Code in effect at the time the

injury   took   place prohibited    the installation      of propane     furnaces in basements. Waite, 54 Wn.


App. at 684. Before installation of the furnace, a county inspector had advised the contractor
that the   proposed    installation    complied with       the   mechanical code.    Waite, 54 Wn. App. at 684.

Division One of this court reversed the trial court' s award of summary judgment to the county

because the plaintiff raised a genuine issue of material fact regarding. the inspector' s actual

knowledge       of a code violation.      Waite, 43 Wn. App. at 687. But in Waite, unlike here, the

undisputed facts revealed a statutory violation and the court' s reversal of summary judgment to

the county was based on a factual dispute on the second element of the failure to enforce
exception —      actual knowledge of the statutory violation. Here, the issue is whether the CCC.

provisions cited by Smith imposed a mandatory duty on the county to act, a question of law that

we have resolved in the County' s favor.

           Finally,   Smith   argues   that "[   a]t the least, the County had a duty to investigate and

confirm     that the wires    would pose no        danger,"   citing CCC 10. 06A.030. Br. of Appellant Smith

at   18. That    provision states   in   part, "   If the permit application requires an investigation, the


permit application along with any supporting documents and information may be checked for

 accuracy and whether the activity is appropriate and consistent with the public health, safety and
 welfare."      CCC 10. 06A.030.


           Contrary to Smith' s contention that this provision imposed a mandatory duty to
 investigate, the     provision' s plain    language      states, "   Ifthe permit application requires an

 investigation, the     permit application ...        may be checked for accuracy and whether the activity is

 appropriate and consistent with          the    public   health, safety   and welfare."   CCC 10. 06A.030


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 emphasis added).       Nothing in the provision imposes a mandatory duty on the County to check

that NSM' s representation that the structure was " below utility wire height" was accurate. See

also   Meaney   v.   Dodd, 111 Wn.2d 174, 180, 759 P. 2d 455 ( 1988) ( " A              governmental authority is

entitled to rely upon the statements made by a permit applicant and has no duty to verify them. ")

          Accordingly, we hold that CCC 10. 06A.020, 10. 06A.030, and 10. 06A.070( c)( 11) did not

impose a mandatory and specific duty on the County to deny NSM' s permit application; and

thus, we hold that the trial court properly concluded that the public duty doctrine' s failure to

enforce exception did not apply. Because the public duty doctrine applies here, we hold that the

trial court properly granted the County' s summary judgment motion and dismissed Smith' s

claims against it.


IV.       CPU' s LIABILITY'


           CPU argues that ( 1) it did not have a duty to Smith under the public duty doctrine

because it acted in a governmental capacity when it reviewed the proposed route in the present

case; (   2) regardless of the public duty doctrine, CPU owed no duty to Smith because it was

NSM' s sole responsibility to ensure Smith' s safety; and ( 3) even if CPU owed a duty to Smith, it

did not breach that duty as a matter of law. Smith responds that ( 1) the public duty doctrine does

                                  involvement in the house                        proprietary in   nature; ( 2)   NSM' s
not    apply because CPU'     s                                   moves was




duty to enforce workplace safety laws does not preclude CPU from having a duty of care as an
electrical utility; and ( 3) there are issues of material fact regarding the scope of CPU' s duty and

whether it was breached. We agree with Smith.


           A. CPU Performed a Proprietary Function When Reviewing the Structure Move

           CPU argues that it performed a governmental function when it reviewed the proposed

structure move       because it   reviewed   the   move   for   public   safety   purposes.   Smith responds that


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CPU acted in a proprietary capacity when it reviewed the proposed structure move because the

purpose of reviewing the move was to prevent damage to CPU' s facilities and to avoid

disruption of service to its customers.


         In   addition   to   the   public        duty   doctrine'    s " exceptions,"      the doctrine does not apply when

the   government    is performing             a   proprietary function.          Bailey,    108 Wn.2d    at   268. " A public


entity acts in a proprietary rather than a governmental capacity when it engages in businesslike

activities    that are normally          performed        by   private enterprise."        Stiefel v. City ofKent, 132 Wn.

App.    523, 529, 132 P. 3d 1111 ( 2006). "                 The principal test in distinguishing governmental

functions from proprietary functions is whether the act performed is for the common good of all,

or whether     it is for the   special        benefit     or profit of    the   corporate    entity."   Okeson v. City ofSeattle,

150 Wn.2d 540, 550, 78 P. 3d 1279 ( 2003).                          If the governmental entity is performing a

proprietary function, it is " held to the same duty of care as private individuals or institutions

engaging in the     same      activity."          Bailey,   108 Wn.2d       at   268. "    A city' s electric utility serves a

proprietary function          of   the   government."              Okeson, 150 Wn.2d at 550.


          By   contrast, "[    g] overnmental functions are those generally performed exclusively for

governmental entities."             Stiefel, 132 Wn. App. at 529. Governmental functions tend to involve

activities ensuring compliance with state law; issuing permits; or performing activities for the

public health, safety, and welfare. See Okeson, 150 Wn.2d at 551 ( operating street lights);

Stiefel, 132 Wn.2d       at    529 -30 ( operating             a   fire department);      Taylor v. Stevens County, 111 Wn.2d

 159, 164 -65, 759 P. 2d 447 ( 1988) (               issuing building permits and conducting building

inspections); Dorsch           v.   City      of Tacoma, 92 Wn.           App.    131, 136, 960 P. 2d 489 ( 1998) (      issuing

 electrical permits);     Moore          v.   Wayman, 85 Wn.            App.    710, 716, 934 P. 2d 707 ( 1997) ( building


 code   inspections).
No. 41811 -8 -II consolidated with No. 42231 -0 -II


         In providing certain utilities, a governmental entity may act in both a governmental and a

proprietary capacity. See Okeson, 150 Wn.2d at 550 -51 ( municipal electric utility is proprietary
function; provision and maintenance of streetlights is governmental function); Stiefel, 132 Wn.

App. at 530 ( operation of municipal water system is proprietary function; failure to maintain
adequate water         supply to fire hydrant is           governmental        function). Thus, because the same utility


can perform         both    governmental and           proprietary functions, " application       of the public duty

doctrine depends           on     the   particular   function   being   challenged."    Stiefel, 132 Wn. App. at 530.

         Here, Hinkel, a CPU associate design engineer, testified that the reason CPU performed

route checks for structure moves was to ensure contractor and general public safety, to prevent

damage to its facilities, and to prevent interruption of service to customers. Thus, there were

both proprietary and governmental functions to CPU' s review of proposed structure move routes.

         CPU contends that when there are both proprietary and governmental components of a

government          entity'   s   activity, " the    critical issue is not the predominant character of the activity,

but   rather   the target         of the plaintiff' s allegations."      Br. of Appellant CPU at 15. Relying on

Stiefel, CPU argues that because Smith alleges that CPU was negligent for failing to protect him

from electric shock, not for failing to protect its facilities for the benefit of customers, the utility

was performing a governmental function.

          CPU misinterprets Stiefel and other cases discussing governmental entities performing

dual functions. In Stiefel, Division One noted that " where a public entity acts in a dual capacity,

                                                doctrine depends         the                function   being   challenged."   132
application of        the   public       duty                       on         particular




Wn.    App.    at   530.      Contrary to CPU' s interpretation of this statement, the Stiefel court merely

 stated the general rule that in determining whether the government performed a proprietary

 function, we look to the type of governmental activity that allegedly caused the plaintiff's injury.

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No. 41811 -8 -II consolidated with No. 42231 -0 -II



We do not, as CPU contends, determine whether the government performed a proprietary

function based on the type of injury the plaintiff suffered in a particular case. Were the rule to be

such, a governmental entity would be shielded from liability any time a plaintiff was physically

injured because the injury could be linked to the government' s failure to protect the public

health, safety, and welfare, which is generally a governmental function.

            CPU contends that Dorsch, in which we held that the city of Tacoma acted in a

governmental       capacity   when    approving     an electrical permit,   is " particularly    analogous."   Br. of


Appellant CPU at 14. In that case, an advertising company applied to the city of Tacoma for an

electrical permit to illuminate a billboard, and the city approved the application. Dorsch, 92 Wn.

App. at 133. One of the company' s employees subsequently received an electrical shock and

died   of   his injuries   while   working   on   the billboard. Dorsch, 92 Wn.      App.   at   133. The


employee' s wife sued the city and we affirmed the trial court' s dismissal of the suit based on the

public duty doctrine. Dorsch, 92 Wn. App. at 133, 136. We held that because the Tacoma

Municipal Code provision under which the city granted the permit was for the purpose of

protecting the public health, safety, and welfare, the city' s action in approving the permit was

governmental and, thus, the city was not liable. Dorsch, 92 Wn. App. at 136. We noted:

            In considering the [      permit]     request, the City assesses the practicality of the
            proposed use,    giving due      regard  to the potential of hazard. Contrary to Dorsch' s

            assertion that the City is engaged in selling and distributing electricity, the City
            acts more in a regulatory manner by initially determining whether the proposed
            use may be accomplished safely. Therefore, approving the electricity use to
            illuminate the billboard is a noncommercial, governmental function uniquely

            within the regulatory power of the municipal authority.

Dorsch, 92 Wn. App. at 136.

            But here, unlike in Dorsch, CPU concedes that it "lacks permitting authority over a

structure move and is not required by any statute, regulation, or ordinance to review, evaluate,

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No. 41811 -8 -II consolidated with No. 42231 -0 -I1


supervise, or otherwise address a structure     move."        Br. of Appellant CPU at 15. Thus, unlike in


Dorsch and similar cases involving building inspections and permits, CPU was not primarily

concerned with ensuring compliance with state law and was not authorized to approve or deny

the structure move. Therefore, although Hinkel stated that one of the purposes for reviewing the

structure move route was to ensure the safety of the public and NSM' s employees, that concern

was not specifically stated in an authorizing statute as in Dorsch. Furthermore, Hinkel stated

that one of CPU' s concerns with the structure move was damage to its facilities and its

responsibilities to its customers, a uniquely proprietary function not present in Dorsch.

Accordingly, we hold that CPU performed a proprietary function when it reviewed NSM' s

proposed structure move and that the trial court properly concluded that the public duty doctrine

did not bar Smith' s suit against CPU.

        B.   CPU' s Duty

        CPU next argues that even if the public duty doctrine does not apply, it had no duty to

Smith as a matter of law because any duty to ensure compliance with jobsite safety regulations

belonged solely to NSM. We disagree.

        WISHA generally imposes a duty to ensure compliance with safety regulations on

employers.    RCW 49. 17. 060( 2)   provides   that "[   e] ach employer... [   s] hall comply with the rules,

regulations, and orders promulgated under        this    chapter."   The regulations promulgated under


WISHA specifically require employers to ensure minimum clearances between their employees

and hazardous electrical lines:


        No person, firm, corporation, or agent of same, shall require or permit any
        employee to perform any function in proximity to electrical conductors or to
        engage in any excavation, construction, demolition, repair, or other operation,
        unless and until danger from accidental contact with said electrical conductors has


                                                         21
No. 41811 -8 -II consolidated with No. 42231 -0 -II



         been effectively guarded by de- energizing the circuit and grounding it or by
         guarding it by effective insulation or other effective means.

WAC 296 -155- 428( 1)( b).          The regulations also require a minimum clearance of 10 feet over

equipment and materials          for high voltage     power   lines. WAC 296 -155- 428( 1)(          e).    Thus, to the


extent that Smith claims that CPU had a duty to ensure proper clearance above structures being

moved in its jurisdiction and the employees involved in those moves, CPU is correct that the

claim fails because it was clearly NSM' s duty to comply with the regulations.

         CPU argues that it has no duty to enforce workplace safety laws. But the issue here is not
whether CPU had a duty to enforce workplace safety laws. Rather, the issue is whether CPU had

a duty to perform its review of the house move with reasonable care.

         An electric utility' s duty of care with respect to the construction and maintenance of its

lines varies according to the danger posed by the utility' s activity. Keegan v. Grant County Pub.
Util. Dist. No. 2, 34 Wn.        App.      274, 279, 661 P. 2d 146 ( 1983). "       If the danger is minimal, the


utility is held to   conventional negligence concepts.             But   when ...    the utility' s operation exposes


the public to serious accidents or death, the utility is held to the highest degree of care human

prudence    is   equal   to."   Keegan, 34 Wn. App. at 279. Here, CPU had a duty to operate the high

voltage lines that injured Smith with " the highest degree of care human prudence is equal to."

Keegan, 34 Wn. App. at 279.

          Smith contends that CPU had the additional duty " to control its own facilities to ensure

their   operation and     to inform NSM if they        posed a. danger,"     but he fails to provide any support

for   imposing    this   specific   duty   on                        Reply Br.
                                                CPU. Cross -Response /                  of   Smith   at    33.   In malting

this assertion, Smith conflates the issue of whether CPU had a duty to Smith at all with the issue

 of the scope of that duty and whether it was breached, both of which are fact issues not properly


                                                              22
No. 41811 -8 -II consolidated with No. 42231 -0 -II


decided on summary judgment. Briggs, 120 Wn. App. at 322. Accordingly, we hold that the

trial court did not err when it denied CPU' s summary judgment motion.

         C. Breach


         Finally, CPU argues that even if it owed a duty to Smith, it did not breach that duty as a

matter of law because it had no duty to verify the information NSM provided. We disagree.

         CPU argues that because NSM informed CPU that it measured the entire route and its

structure was below utility wire height, CPU had no duty to verify that information and, thus,

reasonable minds could not conclude       that CPU breached its   duty.   CPU is   correct   that "[   a]




governmental authority is entitled to rely upon the statements made by a permit applicant and has
no   duty to   verify them."   Meaney, 111 Wn.2d at 180. But the question of whether CPU breached

its duty requires a more involved factual inquiry than merely determining whether CPU was

required to verify the information NSM provided.

         In addition to Smith' s claims that CPU should have verified the information' s accuracy,

Smith presented evidence that CPU should have had one of its employees present on the date of

the move for safety purposes and that the accident would not have happened had a CPU

employee been present. He also presented evidence that CPU should not have removed the guy

stubs until it had a complete route map from NSM.

         The parties dispute the scope of CPU' s duty, creating a question of fact that must be

submitted to the jury. Briggs, 120 Wn. App. at 322. Accordingly, we hold that there are genuine

 issues of material fact remaining as to the scope of CPU' s duty and whether CPU breached that

 duty and, thus, the trial court did not err when it denied CPU' s summary judgment motion.




                                                    23
No. 41811 -8 -I1 consolidated with No. 42231 -0 -II


        We affirm both the trial court' s order granting summary judgment dismissing the County

and the trial court' s denial of CPU' s summary judgment motion. We remand for trial on the

remaining issues.

        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.




                                                  LEE, J
We coutur:




W15 WICK. C. J.




                                                 AM
