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Ann Trivett
By Ann Trivett
Defense attorneys who represent law enforcement agencies know this: times are changing. The past five years have brought monumental changes to the way the public thinks about all aspects of police work and the way our jury pools see policy liability, as well as verdict values. Across the country, defense attorneys have been learning to adapt in the way we evaluate our cases, advocate for our clients, and effectively communicate our message. Here in Washington, we are also learning to adapt to changing state law.
For many years, claims against governmental entities were evaluated under the public duty doctrine, which recognizes that a public entity does not owe a duty to an individual member of the public when that duty is one owed to the public in general. See Osborn v. Mason County, 157 Wn.2d 18, 134 P.3d 197 (2006). For example, plaintiffs cannot state a claim for negligent police training, because a municipality’s duty to train its police force is a duty owed to the public in general, not to any particular person. A plaintiff wishing to sue a municipality or police officer for negligence would have the burden to prove that one of four enumerated exceptions to the public duty doctrine applied. Over time, however, Washington courts have found numerous exceptions to a traditional application of the public duty doctrine, and its effectiveness has been eroding.
In its most recent opinion, Norg v. City of Seattle, 522 P.3d 580 (2023), the Washington Supreme Court “clarified” (but in reality held for the first time) there are two separate avenues for establishing governmental liability: (1) conduct specifically related to governmental actions, which requires a public duty doctrine analysis; or (2) an affirmative interaction with a member of the public, which triggers a common law duty to use reasonable care. In Norg, that common law duty applied as soon as a 911 dispatcher told a woman that paramedics were on the way. Because the paramedics went to the wrong building, delaying their medical response, the plaintiff could maintain a common law negligence claim against the municipality for the harm allegedly caused by the delayed response.
Norg is only the latest of a series of opinions “clarifying” Washington law and creating a legal framework whereby plaintiffs have a greater probability of asserting actionable negligence claims against police officers. While Washington state law
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FDCC ANNUAL FIVES 2023
Civil Rights and Public Entity Law
The Changing Landscape of Police Liability in
Washington State