IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DONNA GARCIA, a Washington resident; CONCEPCION GARCIA, an individual; and PATRICIAJANE LEIKAM, as the administrator ofthe estate ofTiairra Garcia, a deceased person, Appellants,

JOEY'S 1983, INC., a Washington corporation; MARNICUS ANTONIO LOCKHARD, a Washington resident; ASHONE HOLLINQUEST, a Washington resident; "JOHN DOE" 1-10; and Defendants, CITY OF PASCO, WASHINGTON, a municipal city, Respondent. No. 70395-1-1 DIVISION ONE UNPUBLISHED OPINION

FILED: March 24, 2014 r-o era

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### Appelwick, J. — Garcia1 appeals the trial court's grant of summary judgment dismissing her negligence claim against the City. Garcia argues that the public duty doctrine did not bar her claim, because the rescue exception applied. She further 

### contends that Pasco had a duty underRestatement (Second) ofTorts § 302B (1965) to protectherdaughterfromthe criminal acts of a third party. We affirm. 1 Donna Garcia isjoined inthe suit by her daughter, Concepcion Garcia, and Patricia Jane Leikam, the administratorofTiairra's estate. Forthe sake of clarity, we referto the appellants simply as "Garcia."No. 70395-1-1/2

FACTS On June 22, 2008, Tiairra Garcia drove Marnicus Lockhard and Ashone Hollinquest to a tavern in Pasco. In the parking lot, Lockhard reached for a gun 

### Hollinquestwasholding. The gundischargedandstruckTiairra.2 Lockhard panicked and took control of the van. Instead of taking Tiairra to the hospital, he drove to the home of a woman referred to as "Granny." Lockhard drove erratically, striking a number of cars before parking on the lawn. This alerted several neighbors who called 911. Policewere dispatched to the scene. One ofthe neighbors who called 911 was John Gorton. While Gortonwas on the phone, Lockhard and Hollinquest pulled Tiairra's body out ofthe van and around to the 

### back of the house. Gorton relayed this information to the operator. Gorton told the operator the police had arrived. The operator replied, "Okay. The police are there now," and tookdown Gorton's name. The police questioned Granny aboutthe vehicle collisions and arranged to have 

### the van towed. They did not investigate the allegation that a body had been dragged intothe house. Tiairra lay unconscious in a room inside, where she ultimatelydied. Tiairra's mother, Donna Garcia, sued the City of Pasco (City) for negligent 

### performance of its duties. The trial court granted summaryjudgment, finding that the public duty doctrine barred Garcia's claim. Garcia appeals. DISCUSSION Garcia asserts that the public duty doctrine does not bar her claim. She maintains thatthe rescue exception to thatdoctrine applies, because the City assumed

We useTiairra'sfirst nameto avoid confusion, butintend no disrespect.No. 70395-1-1/3



### the duty to aid Tiairra. She further argues that summary judgment was improper, becausethe police had a dutyto protectTiairra underthe Restatement§ 302B. This court reviews a trial court's summaryjudgment order de novo. Korslund v. 

### DvnCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is proper ifthere are no genuine issues ofmaterial fact and the moving party is entitled to judgment as a matter of law. Id. This court construes the facts and 

### reasonable inferencestherefrom inthe lightmostfavorable to the nonmoving party, jd. I. Public Duty Doctrine: Rescue Exception Garcia argues that her claim should have survived summaryjudgment, because the rescue exception to the public duty doctrine applies here. Under the public duty doctrine, a government actor is not liable for injuries caused by his or her negligent conduct, unless that conduct breached a duty to the injured person as an individual, rather than the actor's duty to the general public. Babcock v. Mason County Fire Dist. No. 6. 144 Wn.2d 774, 785, 30 P.3d 1261 (2001). There are four exceptions to this doctrine, including the rescue exception, id. at785-86. The rescue exception applies where a government actor (1) assumes the duty to aid orwarn a person indanger; (2) fails to exercise reasonable care; (3) offers to render aid; and (4) in doing so, causes eitherthe person to whom the aid is to be rendered, or another acting on that person's behalf, to refrain from acting on the victim's behalf. Vergeson v. Kitsap County. 145 Wn. App. 526, 539, 186 P.3d 1140 (2008). Apublic official's routine responses will notgive riseto an enforceable promise of protection. See Torres v. City ofAnacortes, 97 Wn. App. 64, 76, 981 P.2d 891 (1999). In public duty doctrine cases involving 911 calls, Washington courts have found that aNo. 70395-1-1/4 

### duty was owed to the victim where the operator made an express assurance that help would be provided, but itwas not. See, e.g., Beal v. City of Seattle, 134 Wn.2d 769, 786, 788, 954 P.2d 237 (1998); Chambers-Castanes v. King County, 100 Wn.2d 275, 279-81, 669 P.2d 451 (1983). In Beal, the victim called 911 for a civilstandby so she 

### could pick up her belongings from her estranged husband. 134 Wn.2d at 773. The operatortold the victimthat "'we're going to send somebody there'" and "'[wje'llgetthe police overtherefor you okay?'" Id. at774 (alteration in original). Twenty minutes later, the victim's husband shot and killed herwhile she waited for the police, jd. No officer 

### had been dispatched by that point. Id. In Chambers-Castanes, a woman called 911 

### multipletimesto reportan ongoing assault. 100 Wn.2d at 279-80. Duringeach call,the operator assured that help would be provided, stating, "'All right, we'll getsomebody up there then'"; '"We have the officer; he is on the way'"; and that the police "'are almost 

### there now. Infact they are probably there.'" jd. Police were not dispatched untilthe
woman called a third time, roughly 30 minutes afterthe original call. Id 

### No express assurance was made in the present case. The following is a transcriptofthe call between Gorton and the 911 operator: 911 Operator. 911. John Gorton: Yeah, I live across the street from 1611 Parkview and 

### there's something going on overthere. There's smoke coming out from a van on the north side ofthe house. 

### 911 Operator. Okay, and what's the addressthere? John Gorton: 1611 Parkview. 911 Operator. 1611 Parkview. John Gorton: Yeah, and there's been a little - ah -1 think it's like a Chevy Luv or small pickup

- Chevy S10

-that's driven by like seven - 

### 911 Operator.And isthatthe address ofthe house? John Gorton: Yes. It's driven by like seven or eighttimes. 

### 911 Operator.Where's the smoke coming from?No. 70395-1-1/5 

### John Gorton: It's comingfromthe north sideofthe house. Idon'tknow if it look[s] likes [sic] it's outside ofthe house. 

### 911 Operator.Okay, and do you see anyflames? John Gorton: No. Noflames. Just smoke. They pulled somebody out of a van in the back of the house and dr[a]gged them to the back of the house. 

### 911 Operator. Soyou don'tknow if it's a caror it'sthe houseor -? John Gorton: I

- don'tknow. The smoke is - smoke is gone now. 911 Operator. Sothe smoke is gone? John Gorton: Yeah. There's

-there's something going on overthere. You 

### need to getsomebodyoverhere. 911 Operator.Okay. And do you think it's a fire or -? John Gorton: No. It's not a fire. There's been something going on all 

### weekend overhere. Therewas a huge domesticfightyest
- lastnight. Voice in background: Yep. Cop car's alreadythere. John Gorton: Okay. Police are here now. 

### 911 Operator.Okay. The police arethere now. John Gorton: Yeah. 911 Operator. Okay. What'syourname? John Gorton: John Gorton. 

### 911 Operator. John Gorton. And did you guys call already? John Gorton: No. We didn't. 911 Operator. Okay. Thankyou. John Gorton: Uh huh. 911 Operator. Bye. Bye. 

### The operator repeatedly said, "okay" and took down Gorton's name, but made no statements about a police response to Gorton's observations. No affirmative promise
was made. This does not amountto an assumption ofthe dutyto aid orwarnTiairra. 

### Garcia does not demonstrate thatthe City affirmatively assumed a duty to aid or 

### warn Tiairra. Instead, she argues that the 911 operator made an implicit promise to 

### convey Gorton's statementto the police and that the police would then investigate. She cites no authority for this assertion, and Washington caselawdoes notsupportit. Even ifthe 911 operatorpromised to relay Gorton's statementto the police, that would have been within the scope of her duty to the general public—not a gratuitous 

### promise. And, to trigger liability under the rescue exception, the government actor'sNo. 70395-1-1/6 

### assumption ofthe duty to aid or warn must be gratuitous. Babcock v. Mason County Fire Dist. No. 6, 101 Wn. App. 677, 685, 5 P.3d 750 (2000), aff'd on othergrounds, 144 Wn.2d 774, 30 P.3d 1261 (2001). While the Babcockcourtcalled this aspect "integral," it did not define gratuitous. See id However, itfound thatwhen a fire district assumes the duty of fighting a fire, itdoes notdo so gratuitously. Id. at686. The courtreasoned that the district was established for "this very purpose—to fight fires and to protect the propertyof allcitizens." Id (emphasis inoriginal). Like a fire district responding to a fire, the very purpose of a 911 dispatch is to receive emergency calls and relay information to the police. See Johnson v. State, 164 Wn. App. 740, 752, 265 P.3d 199 (2011), review denied, 178 Wn.2d 1027, 273 P.3d 982 (2012). In Johnson, a man called 911 to report a car driving erratically in front of him. ]d at745. The 911 operatortransferred him to the Washington State Patrol, who told the man that it would notify troopers. ]d When the erratic driver exited the 

### highway, the callerdid not follow herand continued along the highway. ]d The erratic driver was later found dead. Id Her widower brought suit, arguing that the State caused the 911 callerto refrain from aiding his late wife. Id at 751. The court found that the State did not make a gratuitous offer to render aid, because its actions were 

### "made as partof its duty to 'allcitizens.'" Id (quoting Babcock, 101 Wn. App. at 686). Here, the 911 operatordid nothing more than herduty to all citizens: responding to and relaying calls. This was not a gratuitous promise to an individual necessary to 

### trigger the rescue exception. The trial court did not err in granting summaryjudgment dismissing Garcia's claims on the basis ofthe publicduty doctrine.No. 70395-1-1/7

II. Restatement (Second) ofTorts § 302B 

### Garcia argues thatthe police had a dutyto protectTiairra underthe Restatement § 302B. Section 302B provides that "[a]n act or omission may be negligent ifthe actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm,

even though such conduct is criminal." More specifically, the provision imposes a limited duty to protect third parties where an actor's own affirmative act creates a recognizable and unreasonable risk of harm. Robb v. City of Seattle, 176 Wn.2d 427, 433-34, 295 P.3d 212 (2013). Garcia contends that § 302B creates a duty here, 

### because the police affirmatively indicated that they would investigate Gorton's statementaboutTiairra's body and failed to do so. As a threshold matter, the City argues that Garcia should not be allowed to raise 

### this argument for the first time on appeal. This court may refuse to review any assignmentoferrorthatwas not first raised inthe trial court. RAP 2.5(a). Anexception applies when, while the appeal is pending, a new issue arises because of a change in law. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191 P.3d 879 (2008). 

### Garcia maintains that a change in law occurred afterthe trial courtdismissed herclaim. She cites to Robb v. City ofSeattle, where this courtheld that a government actor—like


### a private actor—can owe a duty under § 302B. 159 Wn. App. 133, 145, 245 P.3d 242 (2010). reversed by, 176 Wn.2d 427. Garcia argues that this constituted a significant change in public duty doctrinejurisprudence. While the Court ofAppeals decision may have represented a significant change in the law, the Washington Supreme CourtNo. 70395-1-1/8 subsequently reversed the outcome of the appellate decision in Robb. 176 Wn.2d at 439-40. InRobb, the courtfound thatthe officers' failure to actdid notcreate a duty under § 302B. Id at 437-38. There, two officers stopped a man named Samson Berhe on 

### suspicion of burglary. ]d at 430. During their stop, the officers observed several shotgun shells on the ground near Berhe, but did not question him about them or pick 

### them up. ]d Because they did not have probable cause to hold Berhe, the officers released him. Id Less than two hours later, Berhe shot and killed Michael Robb, likely with the same shells. See id 

### Robb's widow sued the city, arguing that the officers breached their duty under § 302B. ]d at429. The court recognized that § 302B may create a dutyto certain third 

### parties, but emphasized that this duty arises out of only affirmative acts, rather than omissions. Id at 433, 436-37. Itexplained that an affirmative act—or misfeasance— entails the creation of a new risk to the plaintiff. ]d at437. Bycontrast, an omission—


### or nonfeasance—consists ofpassive inaction or failure to protect others from harm. ]d The courtfound thatthe officers' failure to pick up the shells (and thereby preventBehre 

### fromshooting Robb) was an omission, notan affirmative act. jd. at437-38. Bycontrast, in Parrilla v. King County, 138 Wn. App. 427, 440-41, 157 P.3d 879 (2007), a government actor's affirmative act led to liability. There, a bus driver exited his bus with the engine still running, leaving a visibly erratic passenger inside. ]d at 

### 431. Thepassengertook control ofthe bus and crashed into a car. ]d The court found that the bus driver committed an affirmative act that gave rise to a duty of care to occupants ofthe carunder § 302B. ]d at440-41.

8No. 70395-1-1/9
Here, there was no affirmative act. The record does not demonstrate that the 

### police promised to investigate Gorton's statement or were even aware of it. The 911 operator did not indicate that the police would take any particular action and did not acknowledge Gorton's statement about a body, other than to respond, "Okay." This does not constitute an affirmative indication that the police would investigate Gorton's

statement. 

### This leaves the police's failure to investigate as the remaining potential source of a duty to Tiairra. But, their failure to investigate was an omission. Like the officers in Robb, the police did not create a new risk. Instead, they failed to reduce an already

### existing risk: Tiairra's injuries from the gunshot. Conversely, the driver in Parrilla increased the risk to nearby drivers through his affirmative act of leaving the bus 

### running with an erratic passenger inside. 138 Wn. App. at 438. Here, the officers' failure to investigate was nonfeasance, which does not give rise to liability under § 302B. 

### The City did not have a duty to Tiairra under either the rescue exception to the public duty doctrine or Restatement (Second) of Torts § 302B. The trial court properly granted summaryjudgmentdismissing Garcia's negligenceclaims. We affirm.

WE CONCUR: