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Moore v. Wayman

April 11, 1997

KENNETH MOORE AND MADELON MOORE HUSBAND AND WIFE, RESPONDENTS AND CROSS APPELLANTS,
v.
SUSAN WAYMAN, DARIUS WILLETT, GREAT HABITATIONS, INC., RESPONDENTS AND CROSS APPELLANTS, PIERCE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF WASHINGTON, APPELLANT, COLDWELL BANK REAL ESTATE D/B/A COLDWELL BANKER REAL ESTATE, INC., LINDA DUPAR, AMERICAN NORTHWEST REALTY, INC. D/B/A WINDEMERE REAL ESTATE, DAVID P. DAILEY AND "JANE DOE" DAILEY, HUSBAND AND WIFE, MELISSA SCUPINE, DEFENDANTS.



Appeal from Superior Court of Pierce County. Docket No: 92-2-09905-1. Date filed: 03/24/95. Judge signing: Hon. Nile E. Aubrey.

Authored by Carroll C. Bridgewater. Concurring: J. Dean Morgan, David H. Armstrong.

The opinion of the court was delivered by: Bridgewater

BRIDGEWATER, A.C.J.--Pierce County appeals a judgment that held it responsible for negligent inspection of a residence based upon a special relationship with the builders. We hold that building code compliance inspections are a governmental, not proprietary, function. We also hold that the public duty doctrine remains constitutional because the Supreme Court has not abolished it. We hold that with no express assurance that the residence was in compliance with building codes, there is not sufficient evidence to support the jury's finding of a special relationship as an exception to the public duty doctrine. Further, absent evidence of actual knowledge by building inspectors of violations that continue after notice of the violations to the builders, there is not sufficient evidence of a failure to enforce that would act as an exception to the public duty doctrine. Finally, there is no merit to the argument that the Legislature intended to remove the enforcement of building codes as an exception to the public duty doctrine and transferred the liability from builders to the counties. We reverse.

This case arises out of the purchase of a house that was so badly constructed that the buyers believe it is uninhabitable. Ken and Madelon Moore (the buyers) sued Susan Wayman and Darius Willett, doing business as Great Habitations, Inc. (collectively referred to as the builders); Pierce County, the realtors who sold them the house; an adjacent property owner; and the appraiser. At trial, the only claim remaining was the builders' cross-claim against the County for negligent inspection, which the builders had assigned to the buyers. The jury found the County liable for negligence. The County brings this appeal claiming that the public duty doctrine, which holds that government is not liable to individuals except in certain circumstances relieves them from liability for negligence. The builders and the buyers both responded and brought their own cross-appeals; but they adopt each other's arguments.

The buyers entered into an agreement to buy a Gig Harbor house from Wayman in July 1991. The builders had built the home for themselves in 1990. During the course of the construction, Pierce County building inspectors came to the site and inspected the house for compliance with the local building code. After several inspections, the County issued a certificate of occupancy to the builders.

The construction of the house was plagued with problems. Apparently, Willett, who was supervising the building, was completely unfamiliar with the building code and repeatedly made errors in construction. The buyers were unaware of the problems with the house and did not have an inspection contingency clause in their contract of sale. After moving into the house, the buyers discovered that the house had several problems with its construction, making the house essentially uninhabitable.

The buyers brought suit in Pierce County Superior Court against the various defendants. Several of the defendants cross-claimed each other, including the builders' cross-action against the County for negligence and contribution. The County's motion for summary judgment against the realtors, the appraiser, and the buyers was granted. The trial court ruled as a matter of law that the builders had established that a special relationship existed between the builders and the County, thus establishing an exception to the public duty doctrine. The County appealed the summary judgment order. The trial court agreed to strike the finding of special relationship from its order and submit the issue to the jury, and the appeal was dismissed.

The buyers subsequently settled with all remaining defendants except the County. The builders assigned their claim against the County to the buyers as a part of the settlement agreement. The buyers, standing in the shoes of the builders, continued to trial on the claim against the County. The jury found that the County was negligent in its inspection of the house and that this negligence was the proximate cause of 85 percent of the buyers' economic and non-economic damages, while the builders were liable for 15 percent of the damages.

The County moved for judgment as a matter of law, claiming that the builders failed as a matter of law to establish the elements of the special relationship exception and that the builders could not assign their claim against the County to the buyers. The motion was denied.

I

APPLICABILITY OF THE PUBLIC DUTY DOCTRINE

The builders' claim against the County is for negligence in approving the house for occupation when it failed to meet building code requirements.

The County argues that a verdict finding it liable was improper because under the "public duty doctrine," it owed no duty to the builders or the buyers. The builders' claim prevailed because the jury found that they had established the elements of the "special relationship" exception to the public duty doctrine, thus establishing that the County did owe a duty of due care to the builders. The County contends that as a matter of law the evidence was insufficient to establish the existence of a special relationship between it and the builders. The buyers/builders, in response, claim that the public duty doctrine does not apply to this case.

We first address the applicability of the public duty doctrine, then we turn to the proof of exceptions.

A. Proprietary Function

The buyers/builders contend that the public duty doctrine should not apply because building code compliance inspections should now be considered proprietary functions, not governmental functions. The public duty doctrine does not apply where the government is performing proprietary functions. Bailey v. Forks, 108 Wash. 2d 262, 737 P.2d 1257 (1987). The buyers argue that because RCW 19.27.050 *fn1 of the state building code authorizes local governments to contract out the inspection service, inspection is a proprietary act. "A government acts in a proprietary capacity 'when it engages in a business-like venture as contrasted with a governmental function.'" Hoffer v. State, 110 Wash. 2d 415, 422, 755 P.2d 781 (1988) (citing Black's Law Dictionary 1097 (5th ed. 1979)), reconsidered on other grounds, 113 Wash. 2d 148 (1989). Medical and psychiatric care are examples of a proprietary functions. See Petersen v. State, 100 Wash. 2d ...


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