No. 27805-7-II.The Court of Appeals of Washington, Division Two.
Filed: August 16, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 99-2-01553-1, Hon. Daniel J. Berschauer, February 9, 2001, Judgment or order under review.
Counsel for Appellant(s), Allen T. Miller Jr., Connolly Tacon
Meserve, Ste 301, 201 W 5th St, Olympia, WA 98501-1060.
Jack E. Bucknell, Connolly Tacon Meserve, 201 5th Ave S.W. Ste 301, Olympia, WA 98501.
Allen T. Miller Jr., Connolly Tacon Meserve, Ste 301, 201 W 5th St, Olympia, WA 98501-1060.
Jack E. Bucknell, Connolly Tacon Meserve, 201 5th Ave S.W. Ste 301, Olympia, WA 98501.
Counsel for Respondent(s), Mark H. Calkins, 3535 7th Ave SW, 2424 South Evergreen Park, Olympia, WA 98502-5010.
ELAINE M. HOUGHTON, J.
Elizabeth Hewitt and Geoffrey Hughes appeal the dismissal of their negligence claim against Thurston County. We reverse and remand for further proceedings.
FACTS
Between 1994 and 1996, Hewitt and Hughes built a house on waterfront property on Steamboat Island Peninsula in Thurston County.[1]
During the winter of 1996-97, two nearby houses were rendered uninhabitable by landslides. One of the damaged houses was immediately east of Hewitt and Hughes’s home and the other was several lots to the west.
In spring 1997, three Thurston County Development Services Department employees inspected the damaged parcels and the surrounding area. The County employees were Paula Ehlers, a senior planner and manager of the SEPA/Shoreline section; Pene Speaks, an environmental planner; and Janet Kessell, a planning technician.
After viewing the damaged sites, the County employees paid an unannounced visit to Hewitt and Hughes’s home. Hewitt was at home. According to her, the County employees identified themselves and told her that they were there to evaluate the slope and shoreline on her property in light of damage to the nearby lands. In particular, Ehlers identified herself as a County shoreline management specialist.
During Hewitt’s conversation with the County employees, Hewitt asked them `detailed questions’ about measures she and Hughes might take to preserve slope stability to protect their house. Hewitt found Ehlers particularly reassuring. According to Hewitt, the employees told her that her house was not at risk. Hewitt says that Speaks and Ehlers recommended allowing vegetation to grow naturally. According to Hewitt, Speaks and Ehlers `specifically said that we did not [have to improve the drainage] and that our site appeared to them to be stable.’ Clerk’s Papers (CP) at 563.
The County employees told Hewitt that the damaged houses were closer to the shoreline than hers and Hughes’s house. Ehlers reportedly told Hewitt that `there really wasn’t anything special that [Hewitt and Hughes] needed to do to protect [their] house because it was a totally different situation from what was going on in the neighboring properties.’ CP at 513. Based on these reassurances, Hewitt and Hughes did not consult a geologist about their property’s stability.
About two years later, in the winter of 1998-99, a major landslide occurred on Hewitt and Hughes’s property after heavy rains. The landslide rendered their house uninhabitable and a total loss. Hewitt and Hughes’s geologist now states that cost-effective remedial measures could have been taken in 1997 that likely would have prevented or minimized the damage to Hewitt and Hughes’s home.
Hewitt and Hughes sued the County for damages, claiming that the County was negligent in (1) issuing the building permit for their house[2] and in (2) assuring Hewitt and Hughes that the soil on their property was stable. The County moved for summary judgment, and the superior court granted the motion. In its oral ruling, the superior court stated that even when the facts are viewed in the light most favorable to Hewitt and Hughes, `the county employees did not breach any duty owed to the plaintiffs . . . because the county employees owed no duty to the public in general.’ CP at 624.
Hewitt and Hughes appeal.[3]
ANALYSIS
Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784, 30 P.3d 1261 (2001). We uphold an order of summary judgment when the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Babcock, 144 Wn.2d at 784. We view the facts in the light most favorable to the nonmoving party. Babcock, 144 Wn.2d at 784. We review questions of law de novo. Babcock, 144 Wn.2d at 784.
The Public Duty Doctrine and the Special Relationship Exception
Because Hewitt and Hughes claim negligence, they must establish that (1) the County had a duty to them; (2) the County breached this duty; (3) they suffered an injury; and (4) the County’s breach of its duty was the proximate cause and cause-in-fact of their injury. See Miller v. Jacoby, 145 Wn.2d 65, 74, 33 P.3d 68 (2001). The threshold issue is whether the County owed Hewitt and Hughes a duty of care when giving information about the ground stability on their property. See Babcock, 144 Wn.2d at 784-85.
Our state has abolished sovereign immunity. RCW 4.92.090.[4]
Nevertheless, under the public duty doctrine, a public official’s duty to the general public cannot be a source of liability unless the “duty breached was owed to the injured person as an individual[.]” Babcock, 144 Wn.2d at 785 (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988)). “[A] duty to all is a duty to no one.” Taylor, 111 Wn.2d at 163 (quoting J B Dev. Co. v. King County, 100 Wn.2d 299, 303, 669 P.2d 468 (1983)). One exception to this rule is the `special relationship’ exception.[5] Babcock, 144 Wn.2d at 786. The special relationship exception to the public duty doctrine is a `focusing tool’ used to determine whether a local government has a duty only to the general public or whether the local government had assumed a duty to an individual citizen. Babcock, 144 Wn.2d at 786 (quoting Taylor, 111 Wn.2d at 166). A special relationship arises when “(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff.” Babcock, 144 Wn.2d at 786 (quoting Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998) (quoting Taylor, 111 Wn.2d at 166)).
In other words, an individual must make a direct inquiry, the government must clearly give incorrect information that the government intends the individual to rely on, and the individual must rely on it to his or her detriment. Only then is the government bound. Meaney v. Dodd, 111 Wn.2d 174, 180, 759 P.2d 455 (1988). Hewitt and Hughes have met these requirements sufficiently to avoid summary judgment of dismissal. Hewitt had direct contact with County employees. Ehlers in particular gave Hewitt information that was purportedly incorrect. The evidence supports an inference that the employees intended for Hewitt and Hughes to rely on this information, and Hewitt and Hughes did rely on this information to their detriment. The evidence also supports an inference that Hewitt and Hughes’s reliance on these employees’ information was justified. Justifiable reliance is a factual question not generally amenable to summary judgment. See Beal, 134 Wn.2d at 786-87.
The County maintains that the above analysis is premised on an underlying general duty to provide correct information to the public, which does not exist in the present case. The County argues that its employees had no duty to provide Hewitt and Hughes with correct information because they were not implementing a County policy, program, or regulation. We disagree. County employee Ehlers identified herself as a County shoreline management specialist who was visiting the area to inspect the shoreline for landslide damage to other homes as part of her job. Therefore, a jury could consider the reasonableness of Hewitt and Hughes’s reliance on Ehlers’s authority to assess the property and make assurances about its stability. Reasonable reliance on this authority would give rise to the County’s duty to Hewitt and Hughes, regardless of whether Ehlers was speaking following a written policy.[6]
Proximate Cause
The County further argues that any breach of duty by the County could not be the proximate cause of the damage to Hewitt and Hughes’s house. The County argues that its expert witnesses, Jon Koloski, gave the `only credible professional analysis’ of the landslide, and that it was an `act of God.’ Respondent’s Brief at 26. But Hewitt and Hughes’s geologist, David Strong, declared that dewatering wells installed in 1997 would have saved the house.
Witness credibility and proximate cause are issues of material fact to be determined by the trier of fact. City of University Place v. McGuire, 144 Wn.2d 640, 652, 30 P.3d 453 (2001); Hough v. Ballard, 108 Wn. App. 272, 284, 31 P.3d 6 (2001). On review of this summary judgment order, we will not choose one expert over the other. Reversed and remanded for further proceedings.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., QUINN-BRINTNALL, A.C.J.