Citations and pinpoint citations are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANGELA M. BARD and WILLIAM 

BARD, individually and as legal 

guardians of minor J.D.B.; JESSICA 

L. BARD; JOHN M. BEUTLER;

STACY R. MULLENDELAND and 

ERIC DELAND, individually and as 

legal guardians of minors A.S.M.D. 

and C.R.M.D.; DONYA C. GRANT 

and WELDON J. GRANT, 

individually and as legal guardians of 

minors H.B.G, K.M.G, M.A.G and 

R.K.G.; CEANNA N. HEIT; 

MELANIE K. LONG, individually and 

as legal guardian of minors A.D.L., 

A.R.L. and I.R.L; ILYANA A. LONG; 

HOLLY A. MILLS; CHERYL T. 

PRITCHETT and JOEL 

PRITCHETT, individually and as 

legal guardians of minors I.G.P. and 

M.E.P.; JILL E. SAVERY and 

JAMES SAVERY, individually and 

as legal guardians of minors M.E.S. 

and S.L.S.; ARICA L. SMITHSIMMER, individually and as legal 

guardian of minors K.R.M.S. and 

N.D.S.; ILLYEANNA WOLFSTORM, 

individually and as legal guardian of 

minor I.S.W.; JAMES L. 

WOODARD; and DOES 1-250;

Appellants,

v.

MONSANTO COMPANY, a 

Delaware corporation; SOLUTIA, 

INC., a Delaware corporation; 

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No. 79475-2-I

DIVISION ONE

UNPUBLISHED OPINION
No. 79475-2-I/2

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PHARMACIA LLC, a Delaware 

limited liability corporation, f/k/a 

Pharmacia Corporation; STATE OF 

WASHINGTON; MONROE 

SCHOOL DISTRICT NO. 103 d/b/a 

MONROE PUBLIC SCHOOLS; 

UNION HIGH SCHOOL DISTRICT 

NO. 402; SNOHOMISH HEALTH 

DISTRICT; and ROES 1-10;

Respondents.

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HAZELRIGG, J. — A group of students, parents, teachers, and staff from Sky 

Valley Education Center seek reversal of an order granting summary judgment for 

Snohomish Health District (SHD). They argue that the court erred in ruling that 

their claims against SHD were barred by the public duty doctrine and that RCW 

43.20.050 does not create an implied statutory cause of action. Because the 

appellants did not show that an exception to the public duty doctrine applied and 

the statute does not evidence legislative intent to create a remedy for a protected 

class, we affirm.

FACTS

In 2018, a group of 44 students, parents, teachers, and staff from Sky Valley 

Education Center (collectively, “the Bards”) sued Monsanto Company, Solutia, 

Inc., and Pharmacia, LLC (collectively, “Monsanto”); Monroe School District No. 

103 and Union High School District No. 402 (collectively, “the District”); the State 

of Washington; and the Snohomish Health District (SHD). The Bards alleged that 

Sky Valley was contaminated with polychlorinated biphenyls and related toxic 

chemicals (collectively, “PCBs”) in electrical fixtures and construction materials 
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installed before PCBs were banned due to toxicity. They claimed that they 

sustained serious injuries due to chronic exposure to PCBs at the school. The 

Bards raised product liability claims against Monsanto, alleging that it was the only 

manufacturer of PCBs in the United States. They claimed that the State and 

District negligently failed to provide, maintain, and supervise a reasonably safe 

school building. Finally, the Bards alleged that SHD negligently allowed Sky Valley 

to remain in use by failing to inspect school buildings and enforce environmental 

regulations.

The State moved for dismissal, arguing that it had no duty to supervise a 

school district’s building maintenance. The court granted the motion and 

dismissed the State from the suit, finding that the Bards’ claims against the State 

were barred by the public duty doctrine. SHD then moved for summary judgment, 

arguing that, like the claims against the State, the Bards’ claims against SHD were 

barred by the public duty doctrine as a matter of law. The court granted summary 

judgment for SHD. The Bards appealed the summary judgment order.

ANALYSIS

This court reviews a trial court’s order granting summary judgment do novo. 

Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “Summary 

judgment is appropriate only when there is no genuine issue as to any material 

fact and the moving party is entitled to judgment as a matter of law.” Id. (citing CR 

56(c)). When making this determination, courts view all facts and reasonable 

inferences in the light most favorable to the nonmoving party. Id. When a party 

has moved for summary judgment, “an adverse party may not rest upon the mere 
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allegations or denials of a pleading, but a response, by affidavits or as otherwise 

provided in this rule, must set forth specific facts showing that there is a genuine 

issue for trial.” CR 56(e).

I. Public Duty Doctrine

In Washington, all local governmental entities are liable for damages arising 

from their tortious conduct to the same extent as if they were private persons or 

corporations. RCW 4.96.010(1). A fundamental element of any negligence action, 

including an action against a government entity, is the duty owed by the defendant 

to the plaintiff. Meaney v. Dodd, 111 Wn.2d 174, 178, 759 P.2d 455 (1988). “When 

the defendant in a negligence action is a governmental entity, the public duty 

doctrine provides that a plaintiff must show the duty breached was owed to him or 

her in particular, and was not the breach of an obligation owed to the public in 

general, i.e., a duty owed to all is a duty owed to none.” Munich v. Skagit 

Emergency Commc’n Ctr., 175 Wn.2d 871, 878, 288 P.3d 328 (2012).

The public duty doctrine has four recognized exceptions: (1) legislative 

intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship. 

Id. at 879. “If any one of the exceptions applies, the government is held as a matter 

of law to owe a duty to the plaintiff.” Id.

A. Failure to Enforce

The Bards first argue that the trial court erred in ruling that the failure to 

enforce exception to the public duty doctrine did not apply. The failure to enforce 

exception applies “where governmental agents responsible for enforcing statutory 
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requirements possess actual knowledge of a statutory violation, fail to take 

corrective action despite a statutory duty to do so, and the plaintiff is within the 

class the statute intended to protect.” Bailey v. Town of Forks, 108 Wn.2d 262, 

268, 737 P.2d 1257 (1987). The plaintiff bears the burden to establish each of 

these elements. Ehrhart v. King County, 195 Wn.2d 388, 402, 460 P.3d 612 

(2020). The duty to act must be “a mandatory duty to take a specific action to 

correct a known statutory violation. . . . ‘Such a duty does not exist if the 

government agent has broad discretion about whether and how to act.’” Donohoe 

v. State, 135 Wn. App. 824, 849, 142 P.3d 654 (2006) (quoting Halleran v. Nu 

West Inc., 123 Wn. App. 701, 714, 98 P.3d 52 (2004)).

The Bards contend that SHD’s statutory duty to take corrective action stems 

from RCW 43.20.050. This statute provides that “[a]ll local boards of health . . . 

shall enforce all rules adopted by the state board of health.” RCW 43.20.050(5). 

Chapter 43.20 RCW incorporates RCW 43.70.190 and RCW 43.70.200, which 

detail enforcement options available to a local health district. These statutes 

provide that a local health board “may bring an action to enjoin a violation or the 

threatened violation of any of the provisions of the public health laws of this state 

or any rules or regulation made by the state board of health or the department of

health pursuant to said laws,” “may institute any civil legal proceeding authorized 

by the [law],” or may request that the secretary of health take legal action to enforce 

public health laws, rules, and regulations. RCW 43.70.190; RCW 43.70.200.

SHD argues that the enforcement options detailed in RCW 43.70.190 and 

RCW 43.70.200 do not create a mandatory duty to act because they list only 
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discretionary actions that the health board “may” take. In McKasson v. State, we

found no mandatory duty to take specific action when the relevant statutes and 

regulations were “replete with ‘mays,’ and throughout the statutes, broad discretion 

is vested in the director.” 55 Wn. App. 18, 24–25, 776 P.2d 971 (1989). In Forest 

v. State, Division Two of this court found no mandatory duty to take specific action 

in a statute indicating that “parole officers ‘may’ arrest for parole violations.” 62 

Wn. App. 363, 369–70, 814 P.2d 1181 (1991). Likewise, the statutes at issue here 

specify actions that a board of health “may” take, indicating that the actions are 

discretionary.

At oral argument, the Bards contended that, although the board is not 

restricted to one specific action, the statute providing that the local board of health 

“shall enforce” the rules mandates that the board take one of the three enumerated 

discretionary enforcement actions. SHD argues that the “shall enforce” language 

does not create a duty to take corrective action because it “does not specify what 

must be done to enforce a particular violation or mandate a specific corrective 

action.” It argues that “many statutory/regulatory schemes in Washington provide 

that a particular government officer or agency ‘shall enforce’ laws and regulations[] 

without prescribing a specific enforcement action” but “no Washington court has 

ever held that the general phrase ‘shall enforce’ is sufficient to satisfy the [failure 

to enforce] exception.” One such statute cited by SHD is RCW 19.27.050, which 

provides that “[t]he state building code required by this chapter shall be enforced 

by the counties and cities.” Washington courts have found that cities did not owe 

a duty to individuals under the building code. Rosen v. City of Tacoma, 24 Wn. 
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App. 735, 740–41, 603 P.2d 846 (1979); Weston v. New Bethel Missionary Baptist 

Church, 23 Wn. App. 747, 753, 598 P.2d 411 (1978).

In support of their argument, the Bards point to two Washington Supreme 

Court cases in which the court found that the failure to enforce exception to the 

public duty doctrine applied. In Bailey v. Town of Forks, a police officer allowed a 

driver “obviously impaired by intoxication” to drive away in his truck. 108 Wn.2d at 

264–65. The driver then collided with a motorcycle, seriously injuring a motorcycle 

passenger. Id. at 263. The court concluded that the officer had a duty to enforce 

state statutes prohibiting and establishing criminal sanctions for driving while under 

the influence of alcohol and pointed to a specific statute requiring that a publicly 

intoxicated individual “shall be taken into protective custody by the police.” Id. at 

269, 269 n.1.

In Campbell v. City of Bellevue, a city electrical inspector knew of the danger 

created by a nonconforming underwater lighting system but “failed to comply with 

the City’s ordinances (Bellevue Municipal Code ss 16.32.090 and .110) directing 

that he sever or disconnect the lighting system until it was brought into compliance 

with electrical code requirements.” 85 Wn.2d 1, 13, 530 P.2d 234 (1975). 

Accordingly, the court found that the public duty doctrine did not protect the City 

from liability when the plaintiff’s wife was electrocuted. Id. at 2, 13.

In both of these cases, a statute or regulation detailed a very specific 

corrective action that the government agent was obligated to perform. Here, 

however, the statute does not specify any particular action to be taken by the local 

health boards to enforce the state board of health’s rules. Like McKassen and 
No. 79475-2-I/8

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Forest, the enforcement actions listed in RCW 43.70.190 and RCW 43.70.200 are 

discretionary, and there is nothing in the statute to indicate that the local health 

boards are obligated to choose among them as alternatives. Because the Bards 

have not shown that SHD had a mandatory duty to take a specific corrective action, 

the failure to enforce exception does not apply.

B. Legislative Intent

The Bards also argue that the trial court erred in finding that the legislative 

intent exception to the public duty doctrine did not apply. The legislative intent 

exception applies “when the terms of a legislative enactment evidence an intent to 

identify and protect a particular and circumscribed class of persons.” Bailey, 108 

Wn.2d at 268. This intent will not be implied and must be clearly expressed in the 

provision. Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 930, 969 P.2d 

75 (1998). The requirement that the class be particular and circumscribed does 

not necessarily mean that the class must be small or narrow. Yonker ex rel. 

Snudden v. Dep’t of Soc. & Health Servs., 85 Wn. App. 71, 79, 930 P.2d 958 

(1997). “‘Particular’ means ‘involving, affecting, or belonging to a part rather than 

the whole of something: . . . not universal,’” while “‘[c]ircumscribe’ means ‘to set 

limits or bounds to: . . . to define, mark off or demarcate carefully.’” Id. (quoting 

Webster’s Third New International Dictionary 410 (3d ed.1976)).

RCW 43.20.050 authorizes the state board of health to “[a]dopt rules 

controlling public health related to environmental conditions including but not 

limited to heating, lighting, ventilation, sanitary facilities, and cleanliness in public 

facilities including but not limited to food service establishments, schools, 
No. 79475-2-I/9

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recreational facilities, and transient accommodations.” RCW 43.20.050(2)(d). The 

statute states that these rules should be adopted “[i]n order to protect public 

health.” RCW 43.20.050(2). By its terms, RCW 43.20.050 is intended to protect 

the health of users of public facilities, a category so broad as to be essentially 

universal. It does not evidence a legislative intent to identify and protect a 

particular and circumscribed class.

The Bards argue that this case is analogous to Halvorson v. Dahl, in which 

the Washington Supreme Court determined that, unlike most codes, the housing 

code was not merely enacted for purposes of public safety or for the general 

welfare. 89 Wn.2d 673, 677, 574 P.2d 1190 (1978). Because the housing code 

identified “‘conditions and circumstances . . . dangerous and a menace to the 

health, safety, morals or welfare of the occupants of such buildings and of the 

public’” and stated that its purpose was to provide for effective enforcement of 

minimum standards, the court determined that the code was “enacted for the 

benefit of a specifically identified group of persons as well as, and in addition to, 

the general public.” Id.

SHD contends that Taylor v. Stevens County is a closer fit. 111 Wn.2d 159, 

759 P.2d 447 (1988). In Taylor, the plaintiffs contended that the State Building 

Code Act1indicated an intent to protect them individually, rather than the public as 

a whole. Id. at 164. The Act stated that its purpose was to provide building codes 

throughout the state and that it was designed “[t]o promote the health, safety and 

welfare of the occupants or users of buildings and structures and the general 

 

1 Chap. 19.27 RCW.
No. 79475-2-I/10

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public.” Id. The court acknowledged that the building code promoted the welfare 

of occupants but distinguished it from the housing code at issue in Halvorson, 

saying that the building code’s “primary purpose is to require that minimum 

performance standards and requirements for building and construction materials 

be applied consistently throughout the state.” Id. at 165. By contrast, the court 

stated that the housing code’s purpose section “focuses on substandard housing 

that is unfit for human habitation,” and the purpose of the housing code “is 

necessarily more focused on the public health and safety of occupants of 

substandard buildings.” Id.

The Bards dismiss Taylor as “an economic damages-only case that 

involved building permitting under the building code, unrelated to protecting the 

health and safety of building occupants.” Despite these factual differences, the 

provision at issue here is more analogous to the building code in Taylor than to the 

housing code in Halvorson. The express purpose of RCW 43.20.050 is to promote 

public health by requiring the state board of health to adopt health and safety 

regulations for public facilities. RCW 43.20.050(2)(d). Like the code at issue in 

Taylor, these health and safety regulations are designed to create minimum 

standards to be applied consistently for the health of the public, rather than to 

remedy a specific danger to the public like the hazardous living conditions 

referenced in Halvorson. The legislative intent exception to the public duty doctrine 

does not apply.
No. 79475-2-I/11

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II. Implied Cause of Action

The Bards also contend that RCW 43.20.050 gives rise to an implied cause 

of action. “Where appropriate, a cause of action may be implied from a statutory 

provision when the legislature creates a right or obligation without a corresponding 

remedy.” Ducote v. Dep't of Soc. & Health Servs., 167 Wn.2d 697, 703, 222 P.3d 

785 (2009). The Washington Supreme Court recently reaffirmed that Washington 

courts use the three-factor analysis adopted in Bennett v. Hardy, 113 Wn.2d 912, 

920–21, 784 P.2d 1258 (1990), to determine whether a statute creates an implied 

cause of action: “[t]he factors are (1) whether the plaintiff is within the class for 

whose ‘“especial”’ benefit the statute was enacted, (2) whether legislative intent 

supports creating or denying a remedy, and (3) whether implying a remedy is 

consistent with the underlying purpose of the legislation.” Rocha v. King County, 

195 Wn.2d 412, 424–25, 460 P.3d 624 (2020) (quoting Bennett, 113 Wn.2d at 

920). The implied cause of action analysis is similar to that of the public duty 

doctrine in that it “focuses on determining whether a statute or regulations creates 

a duty that can be enforced by a lawsuit in tort.” Ehrhart, 195 Wn.2d at 400 n.6.

A. Protected Class

Courts look to the language of the statute to ascertain whether the plaintiff 

is a member of the protected class. Swank v. Valley Christian Sch., 188 Wn.2d 

663, 576, 398 P.3d 1108 (2017). The Bards argue that “students, teachers, staff, 

and adults who volunteer in schools[] fall within the class of persons RCW 

43.20.050 intends to protect.” To support this argument, they point to the WAC 

provisions meant “to maintain minimum environmental health and safety standards 
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for school facilities” and specifying that “[t]he existence of unsafe conditions which 

present a potential hazard to occupants of the school are in violation of these 

regulations.” WAC 246-366-005; WAC 246-366-140(1). However, RCW 

43.20.050 itself does not specifically protect occupants of school buildings. As 

discussed above, the express purpose of the statute is “to protect public health.” 

RCW 43.20.050(2). This factor does not support an implied cause of action under 

RCW 43.20.050.

B. Legislative Intent

When assessing whether the legislature intended to grant a right of recovery 

for statutory violations, courts “‘“can assume that the legislature is aware of the 

doctrine of implied statutory causes of action,”’ even where the statute is silent as 

to civil remedies.” Beggs v. Dep’t of Soc. & Health Servs., 171 Wn.2d 69, 78, 247 

P.3d 421 (2011) (quoting Bennett, 113 Wn.2d at 919). This factor requires courts 

“to determine whether legislative intent supports implying the requested remedy,

rather than any remedy.” Rocha, 195 Wn.2d at 428.

The presence or absence of certain features in a statute informs the 

analysis of whether the legislature intended to create a right of recovery. A grant 

of immunity from civil liability to certain groups under a statute indicates that the 

legislature contemplated the possibility of civil liability and is evidence of the 

legislature’s intent to imply a cause of action. Swank, 188 Wn.2d at 677–78. If a 

remedy for a violation of a statute already exists, it is unlikely that the legislative 

intent includes implying another cause of action. See Wright v. Lyft, Inc., 189 

Wn.2d 718, 727, 406 P.3d 1149 (2017) (“CEMA’s plain language demonstrates 
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the legislature’s intent that the recipient of unsolicited text messages bring a CPA 

claim. This legislative intent does not support creating a remedy where one 

already exists.”). The absence of an enforcement mechanism in a statute showing 

a “clear legislative concern” for a particular group weighs in favor of an implied 

cause of action. See Swank, 188 Wn.2d at 677 (“The legislative concern with 

youth athlete concussions is clear in the Lystedt law. . . . Despite this clear concern, 

there is no mechanism in the Lystedt law to enforce the requirements intended to 

address the risks of youth athlete concussions. Given the clear legislative concern, 

it is logical to infer that the legislature intended that there be some sort of 

enforcement mechanism.”). The existence of an express enforcement mechanism 

for one subset of the protected class does not necessarily preclude an implied 

cause of action for another subset of the protected class. See Kim v. Lakeside 

Adult Family Home, 185 Wn.2d 532, 546, 374 P.3d 121 (2016) (finding that the 

express cause of action in the Abuse of Vulnerable Adults Act for vulnerable adults 

who have suffered abuse or neglect did not preclude also finding an implied cause 

of action against mandated reporters for failure to report because “[t]he express 

liability provision provides redress for actual abuse; it does not provide redress for 

those who breach their mandatory reporting duty”).

SHD argues that the inclusion of the discretionary enforcement 

mechanisms in RCW 43.70.190 and RCW 43.70.200 indicates that the legislature 

did not intend to imply a cause of action against a health district for failure to 

enforce any regulations adopted under the authorization in RCW 43.20.050(2). 

The Bards argue that these statutes do not provide enforcement mechanisms to 
No. 79475-2-I/14

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be taken by members of the protected class and therefore do not preclude an 

implied cause of action. RCW 43.20.050 provides that “[a]ll local boards of health 

. . . shall enforce all rules adopted by the state board of health.” RCW 

43.20.050(5). It also provides that,

In the event of failure or refusal on the part of any member of such 

boards or any other official or person mentioned in this section to so 

act, he or she shall be subject to a fine of not less than fifty dollars, 

upon first conviction, and not less than one hundred dollars upon 

second conviction.

RCW 43.20.050(5).

The discussion of this issue is hobbled by the conclusion above that there 

was no specific class protected by the statute. Because there is no specific 

protected class, the legislature cannot have intended to imply a cause of action for 

its members. However, even if the Bards are members of a protected class under 

the statute, they do not point to any clear legislative intent to provide them a 

remedy for a local health board’s failure to enforce regulations. The statute also 

provides for other enforcement mechanisms and penalties for failure to enforce. 

This factor also weighs against implying a cause of action for members of the 

public.

C. Purpose of the Legislation

The third Bennett factor “looks to the entire statutory scheme to determine 

whether the requested remedy is consistent.” Rocha, 195 Wn.2d at 428. SHD 

argues:

[A]llowing a cause of action against a local health district for its failure 

to enforce a regulation adopted by the Board of Health under RCW 

43.20.050 would not be consistent with the purpose of the statute, 
No. 79475-2-I/15

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which is to promote public health, not to address a specific societal 

concern such as the prevention of concussions in youth sports 

(Swank), child abuse/neglect ([Tyner] v. Dep’t of Soc. & Health Servs., 

141 Wn.2d 68, 1 P.3d 1148 (2000) and [Beggs]), or age discrimination 

in employment (Bennett).

SHD is correct that the explicit purpose of the statute’s grant of authority to the 

state board of health to adopt rules regarding environmental conditions in public 

facilities is “to protect public health.” RCW 43.20.050(2)(5). Allowing a cause of 

action for failure to enforce rules promulgated under this authority, while consistent 

with this basic purpose, does not appear to be warranted by such a general 

statement. This factor weighs against implying a cause of action.

Because all three factors weigh against it, RCW 43.20.050 does not imply 

a cause of action against local health districts for failure to enforce rules and 

regulations created under its authority. The trial court did not err in granting 

summary judgment for SHD.

Affirmed.

WE CONCUR: