§ 17.4 - Actions for Damages—Tort

• Jurisdiction: Washington

§17.4 ACTIONS FOR DAMAGES—TORT

Damages actions arising from misconduct with respect to land use and permit applications have been based upon negligence, negligent misrepresentation, and tortious interference with business expectancy. The claims and remedies under tort are nonexclusive and may be pursued in conjunction with damages claims under RCW 64.40.020 and 42 U.S.C. §1983.

(1) Jurisdictional limitations/constraints

Limitations on land use damages actions arising in tort are set out below.

(a) Sovereign immunity

The legislature eliminated sovereign immunity for local government entities and provided that such entities shall be liable for tortious conduct "to the same extent as if they were a private person or corporation." RCW 4.96.010. It has been recognized "that RCW 4.96.010 was not intended to create new duties where none existed before ...," but rather "it was to permit a cause of action in tort if a duty could be established, just the same as with a private person." J & B Dev. Co., Inc. v. King Cnty.,100 Wn.2d 299, 305, 699 P.2d 468 (1983), overruled on other grounds by Taylor v. Stevens Cnty.,111 Wn.2d 159, 759 P.2d 447 (1988). The existence of a duty in the usual permit-issuing context requires something more than control over the issuance of a permit that is later determined to have been granted in error. See §17.4.1(b), below.

The courts have also recognized that there is no immunity for discretionary activities unless the government could show that a "policy decision, consciously balancing risks and advantages, took place." King v. City of Seattle,84 Wn.2d 239, 246, 525 P.2d 228 (1974). Discretionary immunity exists with respect "only to those high level discretionary acts exercised at a truly executive level." Bender v. City of Seattle,99 Wn.2d 582, 588, 664 P.2d 492 (1983). The courts have found that there is no discretionary immunity with respect to the issuance or denial of permits. Miotke v. City of Spokane,101 Wn.2d 307, 678 P.2d 803 (1984); Haslund v. City of Seattle,86 Wn.2d 607, 547 P.2d 1221 (1976); King, 84 Wn.2d at 247. No discretionary immunity exists with respect to the provision of false or inaccurate information regarding zoning requirements, when there is evidence that a duty arose to provide accurate information through direct contact and the providing of express assurances. Sundberg v. Evans,78 Wn. App. 616, 897 P.2d 1285 (1995), review denied,128 Wn.2d 1008 (1996). The courts have held, however, that the imposition of conditions on a subdivision involves discretionary governmental acts that are protected by discretionary immunity. Miller v. City of Port Angeles,38 Wn. App. 904, 913-14, 691 P.2d 229 (1984), review denied, 103 Wn.2d 1024 (1985).

Local jurisdictions do retain immunity for legislative acts. Fabre v. Town of Ruston, 180 Wn. App. 150, 162-64, 321 P.3d 1208 (2014) (passage of ordinances were legislative actions).

(b) Public duty doctrine

Under the "public duty doctrine," recovery from a municipal corporation in tort is possible only when the plaintiff shows that the duty breached was owed to an individual, and was not the breach of a general obligation owed to the public in general (i.e., a duty owed to all is a duty owed to no one). Taylor, 111 Wn.2d at 163; Fabre v. Town of Ruston, 180 Wn. App. 150 (2014) (enactment of ordinance subject to public duty doctrine). There are four exceptions to the public duty doctrine in which the governmental agency will acquire a special duty of care owed to a particular plaintiff or a limited class of potential plaintiffs: (1) legislative intent; (2) failure to enforce; (3) the rescue doctrine; and (4) a special relationship. Babcock v. Mason Cnty. Fire Dist. No. 6, 144 Wn.2d 774, 785-86, 30 P.3d 1261 (2001); Woods View II, LLC v. Kitsap Cnty., 188 Wn. App. 1, 26, 352 P.3d 807 (2015). If any one of the exceptions applies, the government owes the plaintiff a duty as a matter of law. Babcock, 144 Wn.2d at 785-86.

In the context of land use decisions, the public duty doctrine exception for "special relationships" is the most commonly asserted exception. A special relationship arises when: (1) there is a direct contact or privity between the public official and the injured party that sets the latter...