Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 76575-8
Title of Case: Robert Harvey, et ux., Respondents v. The
County of Snohomish, et al., Petitioners.
File Date: 05/18/2006
Oral Argument Date: 11/17/2005
SOURCE OF APPEAL
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Appeal from Superior Court,
Snohomish Co
02-2-10168-1
Honorable Thomas J Wynne
JUSTICES
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Authored by Tom Chambers
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Susan Owens
Mary Fairhurst
Dissenting: Richard B. Sanders
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Mark Richard Bucklin
Keating Bucklin & McCormack Inc PS
800 5th Ave Ste 4141
Seattle, WA 98104-3175
Shannon Mary Ragonesi
Keating Bucklin & McCormack
800 5th Ave Ste 4141
Seattle, WA 98104-3175
Robert Tad Seder
Civil Div Snohomish County Prosecutor's
3000 Rockefeller Ave
Everett, WA 98201-4046
Counsel for Respondent(s)
Stephen Lionel Conroy
Attorney at Law
19303 44th Ave W
Lynnwood, WA 98036-5664
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ROBERT HARVEY and MARISSA )
HARVEY, individually and as )
husband and wife, and the marital )
community composed thereof, )
)
Respondents, ) No. 76575-8
)
v. ) En Banc
)
THE COUNTY OF SNOHOMISH, a )
political subdivision of Washington )
State, SNOHOMISH COUNTY )
SHERIFF'S OFFICE, an agent of )
Snohomish County, RICK BART, )
SNOHOMISH COUNTY SHERIFF, )
an agent and employee of )
Snohomish County, SNOPAC and )
the BOARD OF DIRECTORS OF )
SNOPAC, a political subdivision and )
agency of Snohomish County, and )
JANE DOE #1, an employee of )
SNOPAC and an agent of Snohomish )
County, )
)
Petitioners. ) Filed May 18, 2006
)
CHAMBERS, J. -- Robert Harvey, his eight-month-old son, and Alex Keltz, a
neighbor, were attacked by a disturbed stranger who claimed to be on a
mission from God. They retreated into Harvey's home and called 911 for
police assistance. The Snohomish County Police Staff and Auxiliary Service
Center (SNOPAC), an entity created pursuant to an interlocal agreement that
provides 911 emergency services to various public agencies and localities,
including Snohomish County, took the call. In the approximately eight
minutes between the call and the arrival of officers, the stranger broke
into the home and Harvey shot him six times. Harvey later sued, claiming
that the police failed to timely rescue him. We conclude that under the
facts of this case, Harvey has failed to demonstrate that assurances were
given by the 911 operator to his detriment and even if such assurances
could be gleaned from the record, Harvey cannot, as a matter of law, show
any breach of duty toward him. Because we find neither duty nor breach of
duty, we do not reach the interlocal agreement issue.
FACTS
On November 17, 1999, at approximately 5:35 p.m., Keltz called 911 to
report that a disturbed man, who had a painted face, appeared to be wearing
a straight jacket, and claiming to be "serving God," was breaking into
Harvey's condominium.1 Harvey, Keltz, and Harvey's son were all inside
Harvey's home at the time of the call. The 911 operator remained on the
line with Keltz and at the same time informed a SNOPAC police dispatcher of
the situation. At 5:38 p.m., the dispatcher, over radio, requested that
all available law enforcement respond to Harvey's residence. Between 5:38
p.m. and 5:39 p.m., two Snohomish County sheriff deputies responded to the
call and informed the dispatcher they were on their way to the scene. At
approximately the same time, the operator informed Harvey (who had taken
the phone from Keltz) that she had notified the police about the situation.
The dispatcher advised the police that the suspect was threatening to shoot
Harvey, was armed with a handgun, and was stating he wanted to die.
Snohomish County Deputy Bynum was sent to get the ballistics shield from
the precinct.
At 5:44:28 p.m., Snohomish County Deputy Durand arrived and began to set up
a couple of blocks away from Harvey's residence while he waited for backup
units to arrive. Deputy Durand reported that there was no place to set up
right in front of Harvey's home without crossing the path of a potentially
armed suspect, so officers set up down the street from Harvey's residence.
At approximately 5:45 p.m., the operator informed Harvey that there were
deputies in the area preparing to respond. At 5:46:09 p.m., Snohomish
County Deputy Shaw arrived at the scene. Between 5:46:02 - 5:48:07 p.m.,
Harvey, who apparently had lost sight of the suspect, asked the operator
whether he should go out on the porch to look for the man or if he should
lock himself in the bathroom. The operator told Harvey he should do
whatever he felt was most safe to do.
At 5:48:01 p.m., the dispatcher advised police that the suspect was
attempting to get in through a window on the balcony. The operator told
Harvey she had informed the deputies about the suspect's attempts to enter
through the window. At 5:49:43 p.m., another deputy responded to the
incident and asked if he should block off the street in front of Harvey's
residence. Five seconds later, deputies stated they did not have time to
block off the street, ordered all power cut, and moved in on the residence.
At 5:50:17 p.m., two other deputies arrived with the ballistics shield.
Ten seconds later, the operator stated that gunfire had been heard and they
had lost phone contact with Harvey. At approximately the same time,
deputies moving in on the suspect discovered Harvey and Keltz making their
way toward them. Harvey told the deputies that the suspect had been shot
several times and was in his home. Four deputies entered Harvey's home and
ordered the suspect not to move. However, despite the orders from the
deputies and the extensive injuries to the suspect, the suspect attacked,
grabbing Deputy Durand's leg in an attempt to bite him. The suspect was
finally subdued and medical personnel arrived to provide treatment.
Mercifully, neither Harvey, his son, nor Keltz sustained any physical
injuries as a result of the incident.
Harvey sued Snohomish County, among others, for negligent infliction of
emotional distress, alleging the county and the sheriff's department failed
to rescue him, his son, and his neighbor. Harvey also filed civil rights
claims. Defendants successfully removed the action to federal court, where
the court dismissed Harvey's civil rights claims. The federal court
returned the remaining state claims to Snohomish County Superior Court,
whereupon, the trial court granted defendant's motion for summary judgment.
The Court of Appeals reversed in part and remanded, holding that Snohomish
County cannot use its interlocal cooperation agreement to shield itself
from its legal obligations and is, therefore, liable for SNOPAC's potential
negligence. Further, the court held that it was a question of fact best
left to a jury to decide whether the 911 operator gave Harvey express
assurances that he justifiably relied upon to his detriment. Harvey v.
Snohomish County, 124 Wn. App. 806, 818-19, 103 P.3d 836 (2004). We
reverse.
ANALYSIS
Standard of Review
Summary judgment is proper when the pleadings, affidavits, depositions, and
admissions on file demonstrate there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Babcock
v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784, 30 P.3d 1261 (2001)
(citing Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)).
The moving party bears the burden of demonstrating there is no genuine
dispute as to any material fact. Id. at 784. The appellate court engages
in the same inquiry as the trial court when reviewing an order on summary
judgment. Id. In addition, all facts and reasonable inference are
considered in a light most favorable to the nonmoving party. Id.
Did Snohomish County Owe a Duty to Harvey?
Privity
As a preliminary matter, we note there was sufficient contact between
Harvey and the SNOPAC operator to establish privity. In Beal v. City of
Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998), privity was established
where the victim told the operator that her estranged husband had been
threatening her. She identified her location, and the operator told her
that police were being dispatched. Similarly, in this case, Harvey was in
contact with the SNOPAC operator throughout the incident, stated his
location, and in response, the dispatcher told Harvey multiple times that
she had let the police know the nature of the incident, that they were in
the area, and that they were setting up nearby. However, while Harvey can
establish privity, Harvey cannot show that any alleged assurance made by
the operator was false, unfulfilled, relied upon, or made to his detriment.
See generally Beal, 134 Wn.2d 769.
Express Assurance
Historically, this court has held in cases concerning 911 calls for
police assistance, that the government has no duty to a member of the
public unless an express assurance of assistance is made by the government
to the caller. See Beal, 134 Wn.2d at 785. This court has dealt
specifically with the express assurances requirement in the context of 911
calls for police assistance in three cases: Chambers-Castanes v. King
County, 100 Wn.2d 275, 669 P.2d 451 (1983), Beal, and Bratton v. Welp, 145
Wn.2d 572, 39 P.3d 959 (2002). In all three cases, this court found that
assurances were made to the detriment of the caller when the operator told
the callers police were dispatched when they had not been. See Chambers-
Castanes, 100 Wn.2d at 279-80 (police received numerous calls about the
incident, did not respond for an hour and a half, and, at one point, the
operator told the caller that an officer had been dispatched but in fact
was not); Beal, 134 Wn.2d at 774, 785 (the caller was told by the operator
to wait in her car for the police to arrive, but the police were never
dispatched and the caller was shot and killed); Bratton, 145 Wn.2d at 575
(the operator told the caller that "'if she or her family was threatened
again that the police would be sent.'" Another call was made to report
another threat, however, the operator did not send the police, and the
caller was shot).
Unlike Chambers-Castanes, Beal, and Bratton, in this case, Harvey never
received any assurance from the operator that was untruthful or inaccurate.
Nor has Harvey shown that he relied on any assurance to his detriment. In
other words, when the operator told Harvey she had notified police of the
situation, she had.2 When the operator told Harvey the police were in the
area and officers were setting up, they were.3
Nevertheless, Harvey contends that he relied on the operator's assurances
to his detriment when the operator asked Harvey to remain on the line on
several occasions. However, Harvey never asked whether he should try to
escape or remain in the condo, nor did the operator ever tell him that he
should remain in the condo and wait for the police to arrive instead of
escaping. Nor does Harvey even suggest that in the absence of the
operator's request, he would have left the condo, especially knowing that
there appeared to be a crazed man waiting outside. Simply put, no
assurance was ever sought by Harvey and none was ever given by the
operator. Furthermore, even if we assume the statements relied upon by the
Court of Appeals created a duty, there is no showing the 911 operator ever
breached that duty or that Harvey relied on those statements to his
detriment. 4
INTERLOCAL AGREEMENT
The effect, if any, of the interlocal agreement was not raised nor argued
by the parties at the trial court. Consequently, the record is void of
evidence relating to the legal responsibilities and obligations, if any,
imposed by the interlocal agreement. In addition, there is very little on
the record outlining the nature of the relationship between Snohomish
County and SNOPAC. It appears that issues relating to the interlocal
agreement were raised for the first time by the Court of Appeals sua
sponte. Given that we find there was no duty owed to Harvey, we find it
unnecessary to consider this issue.5
CONCLUSION
In order to demonstrate that a duty has been created to respond to a 911
call for police assistance, a claimant must show that assurances were made
to the detriment of the caller. A careful review of the record reveals
that Harvey never received any assurance from the operator that was
untruthful or inaccurate nor has he shown that he relied on any assurance
to his detriment. Even if we were to agree with the Court of Appeals that
express assurances were made by the 911 operator, there was never any
breach of duty. On the contrary, in this case, the SNOPAC operator and the
Snohomish County Sheriff's Office seemed to have acted swiftly and
effectively throughout the entire 15 minutes between the initial call and
the shooting. We reverse the Court of Appeals and remand for any
proceedings consistent with this opinion.
AUTHOR:
Justice Tom Chambers
WE CONCUR:
Chief Justice Gerry L. Alexander
Justice Charles W. Johnson Justice Susan Owens
Justice Barbara A. Madsen Justice Mary E. Fairhurst
Justice James M. Johnson
Justice Bobbe J. Bridge
1 There are minor discrepancies between the 911 transcriptions provided by
Harvey and SNOPAC. Unless otherwise noted, for the purposes of this
opinion, we cite to the transcript submitted by SNOPAC. Decl. of def.
Thomas Howell, SNOPAC Mot. for Summ. J., Clerk's Papers (CP) at 201-03; Ex.
A (CP at 204-18). Under either transcription version, we reach the same
result. For ease of the reader, we have translated military time notation
to Pacific standard time notation.
2 "{5:38:15 Harvey} Hey, hello, is someone on their way?" CP at 208.
"{5:38:16 Operator} Robert, I've already let them {police dispatcher}
know." CP at 208.
Between 5:35 -:38 the operator communicated the incident to a dispatcher.
CP at 226. Between 5:38 - :39 a call by the dispatcher was placed to
police over radio. Id.
3 "{5:45:38 Operator} Alright Robert, well hang on, I know they're in the
area." CP at 214.
"{5:45:40 Harvey} Ok, what's going on?" CP at 214.
"{5:45:42 Operator} I show that there are five deputies in that area."
CP at 214.
At approximately 5:44, Deputy Durand had arrived at the scene to set up.
CP at 132, 228. At around this time, additional deputies were in the area.
CP at 228-32.
4 While we disagree, the Court of Appeals held, Harvey, 124 Wn. App. at 815-
18, 20-21, among other exchanges, that it was a question of fact for a
jury to decide whether the following statements by the operator were relied
upon to the detriment of Harvey. The Court of Appeals appears to cite to
the 911 transcription submitted by plaintiff. Id. As stated above, under
either version we reach the same conclusion:
{Keltz}: Ma'am, get a cop out here right now!
911: Okay {Keltz}, I've already let them {the police} know. I've
already let them know what's happening.
. . . .
{Keltz}{: We have no freaking clue {who the intruder is}!
911: Okay. Hang on. I've let 'em know, okay?
. . . .
{Harvey}: He {the suspect} still tried. I don't want to shoot him.
911: Yeah, I think that's a good idea, as soon as you see the
police officers, go ahead and secure the gun and let me know
. . . but don't hang up on me, you have to let me know.
. . . .
911: Hang on, stay on the line, do not hang up with me, okay?
. . . .
{Harvey}: He's {the suspect is} rubbing on it {the window} hard. Oh,
damn it, where are they?
911: Well you've seen them so you know that they're {the
police} there.
{Harvey saw a police car drive by his residence that was not responding nor
involved with the incident. Harvey and the operator mistook the apparent
off-duty officer for a deputy actually responding to this incident.}.
. . . .
{Harvey}: Oh {expletive}, where are they at? Where in the hell are
they at?
911: All right Robert, well, hang on, I know that they're {the
police} are in the area, okay? . . . Actually, there are five
deputies in the area.
. . . .
. . . .
{Keltz}: in the background: Come on, where are the cops at?
911: They're there. Tell, tell {Harvey} . . . they are
definitely there, they're setting up now.
. . . .
. . . .
{Harvey}: He's {the suspect} pounding on my windows. Should, should
we lock ourselves up in the bathroom or anything? Or . . . .
911: If you feel safe enough to go ahead and lock yourself up in
the bathroom.
{Harvey}: The cops are here you said?
911: They're {the police} definitely there. Again, they're
setting up.
5 This court neither endorses nor rejects the reasoning and analysis of the
Court of Appeals regarding RCW 39.34.030.