Ehrhart v. King Cnty.

195 Wash.2d 388

460 P.3d 612

Sandra EHRHART, individually and as personal representative of the Estate of Brian Ehrhart, Respondent,

v. KING COUNTY, operating through its health department, Public Health–Seattle & King County, Petitioner,andSwedish Health Services, a non-profit entity, and Justin Warren Reif, an individual, Defendants.

No. 96464-5

Supreme Court of Washington.

Argued November 12, 2019

Filed: APRIL 2, 2020

Matthew J. Segal, Paul J. Lawrence, Kymberly Kathryn Evanson, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, Athanasios P. Papailiou, Attorney at Law, 6 S 2nd St. Ste. 412, Yakima, WA, 98901-2629, for Petitioner.

Todd Wesley Reichert, Christopher Holmes Anderson, Fain Anderson, et al., Joseph Vickers Gardner, Attorney at Law, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Elizabeth Ann Leedom, Lauren Michelle Martin, Bennett Bigelow & Leedom, P.S., 601 Union St. Ste. 1500, Seattle, WA, 98101-1363, for Defendant.

Daniel Andrew Brown, Williams Kastner, 601 Union St. Ste. 4100, Adam Rosenberg Williams, Kastner & Gibbs PLLC, Seattle, WA, 98101-1368, Kathleen Goodman, Attorney at Law, 601 Union St. Ste. 4100, 2 Union Sq., Seattle, WA, 98101-1368, Richard Howard Adler, Melissa D. Carter, Adler Giersch PS, 333 Taylor Ave. N., Seattle, WA, 98109-4619, for Respondent.

Denise L. Ashbaugh, Jeremy E. Roller, Arete Law Group, 1218 3rd Ave. Ste. 2100, Seattle, WA, 98101-3094, for Amici Curiae on behalf of National Association of County & City Health Officials, Big Cities Health COAlition.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw. Aspen St., Camas, WA, 98607-8302, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Mellani R. Hughes McAleenan, Washington State Association of Counties, 206 10th Ave. Se., Olympia, WA, 98501-1311, for Amicus Curiae on behalf of Washington State Association of Counties.

STEPHENS, C.J.

¶1 This case concerns the tragic death of Brian Ehrhart, who died within days of contracting hantavirus near his Issaquah home in early 2017. His widow, Sandra Ehrhart, sued King County's public health department, Swedish Medical Center, and an emergency room physician, arguing all three had negligently caused Brian's death.¹ King County asserted the public duty doctrine as an affirmative defense, arguing it was not liable for Brian's death because it did not owe him any duty as an individual. Ehrhart moved for partial summary judgment asking the court to dismiss this defense and others. The trial court granted Ehrhart's motion but conditioned its ruling on the jury finding particular facts. King County appealed, and we accepted direct discretionary review.

¶2 This interlocutory appeal asks us to resolve two questions: one procedural and one substantive. The procedural question is whether the trial court could properly grant summary judgment conditioned on the jury finding particular facts. We hold it could not because summary judgment is appropriate only when there are no genuine issues of material fact.

¶3 The substantive question—a question at the heart of the public duty doctrine—is whether the regulations governing King County's responsibility to issue health advisories create a duty owed to Brian individually as opposed to a nonactionable duty owed to the public as a whole. We conclude King County does not owe an individualized duty to Brian and no exception to the public duty doctrine applies. Accordingly, we reverse the trial court's ruling and remand for entry of summary judgment in King County's favor on its public duty doctrine defense.

FACTS

¶4 Hantavirus is a rare and serious infection transmitted by deer mice through their droppings. It initially presents with flu-like symptoms such as fever and chills but can quickly progress to life-threatening respiratory complications. Infected patients may require intensive care, including intubation and oxygen therapy in cases of severe pulmonary distress. There were more than 40 reported cases of hantavirus in Washington in 2016, including 1 in King County.

¶5 In November 2016, a woman living near Issaquah contracted hantavirus. She went to the urgent care facility at Group Health Cooperative, where she was treated for nausea and discharged. She returned to Group Health the next day after her condition deteriorated and was then admitted as a patient at Overlake Medical Center. She spent several days in a coma, but she survived.

¶6 Overlake notified King County of that patient's case in December 2016 and King County promptly assigned a public health nurse to conduct an investigation, which included a review of the patient's medical records, interviews with her and her husband regarding exposure and recent travel, and consultation with her physicians. This investigation indicated that the patient had likely contracted hantavirus on her own property. Because the patient had not traveled out of the area and the likely source of hantavirus exposure was confined to her rural land outside Issaquah, King County determined there were no other likely exposures and so a health advisory was not warranted. Over the course of this investigation, the patient's husband repeatedly shared with King County his concerns that a potential cluster of hantavirus in the area could lead to more exposures.

¶7 In February 2017, Brian—who also lived near Issaquah—came to the emergency room of Swedish Medical Center with fever, chills, vomiting, and a persistent cough. The emergency room physician discharged Brian with instructions to return if his symptoms worsened or if he had any additional concerns. The next day, Brian was rushed to the emergency room at Overlake—several of his organs were already failing. Brian died shortly thereafter.

PROCEDURAL HISTORY

¶8 In June 2018, Sandra Ehrhart filed suit on behalf of herself and Brian's estate against King County, the emergency room physician, and Swedish Medical Center, alleging their negligence caused Brian's death. Ehrhart argues WAC 246-101-505, which requires King County to "[r]eview and determine appropriate action" whenever it receives reports of certain serious conditions, created a duty that King County breached by failing to issue a health advisory after it learned of the November 2016 case. King County asserted the public duty doctrine among other affirmative defenses in its amended answer.

¶9 Ehrhart moved for partial summary judgment, asking the court to strike several of King County's defenses, arguing, among other things, that the "failure to enforce" and "rescue doctrine" exceptions to the public duty doctrine applied. King County moved for a continuance under CR 56(f) and CR 6(b), asking for time to undertake discovery and file a cross motion for summary judgment on the public duty doctrine, and arguing that the court should consider the motions together to promote judicial economy. The court granted King County's motion in part, renoting Ehrhart's motion for partial summary judgment. King County also filed its cross motion for summary judgment on the public duty doctrine. But the trial court did not consider King County's cross motion for summary judgment alongside Ehrhart's motion for summary judgment during oral argument on September 28, 2018.

¶10 After that argument, the court ruled from the bench before issuing a brief written order. The court began by saying it "ha[d] this sense of for[e]boding" because "[t]he public duty doctrine ha[d] frustrated [the court] for years." Verbatim Transcript of Proceedings (Sept. 28, 2018) (VTP) at 19. The court briefly described Washington's waiver of sovereign immunity and the emergence of the discretionary immunity doctrine, and stated, "The public duty doctrine was essentially adopted without any analysis .... And ever since then, there has been nothing but inconsistency in the case law." Id. at 20. The court explained, "There's never really been a good case where the Supreme Court or any other court of appeals has shown us how to meld the original discretionary immunity analysis with the public duty doctrine." Id. The court tried to "meld" the doctrines itself, walking through the analysis of discretionary immunity "for comparison purposes" and concluding the discretionary immunity doctrine would not apply because King County "was merely effectuating policy that had already been determined."² Id. at 20-21.

¶11 The court then briefly analyzed WAC 246-101-505 and concluded it contained both a "mandatory" provision and a provision that provided for the exercise of limited discretion.³ Id. at 21-22. The court determined King County had discretion, but only to act "appropriate[ly]." Id. at 22. Because the court did not "know what is appropriate" in the circumstances, it decided that question "necessarily requires some kind of a factual analysis." Id. Despite recognizing that "[d]uty is always supposed to be a legal issue," the court decided to treat "duty as being partially legal and partially factual." Id. So the court ruled "that there is a mandatory duty" for King County to "review and determine" appropriate action, but that "the jury needs to decide whether what the County did was or was not appropriate." Id. The court granted partial summary judgment for Ehrhart on the failure to enforce exception, "conditioned on a finding by the jury that [King] County's action was not appropriate."⁴ Id. at 23.

¶12 King County moved for direct discretionary review by this court, which we granted.

ANALYSIS

¶13 This case requires us to once again examine the public duty doctrine, the development of which spans decades and intersects with distinct but related doctrines concerning governmental liability. Given the sometimes wandering path of the doctrine, we appreciate the trial court's efforts to struggle with the case law. We ultimately conclude, however, that the doctrine clearly applies in this case and precludes Ehrhart's...