On April 2, 2020, a unanimous Supreme Court[1] issued Ehrhart v. King County, 2020 WL 1649891, which addressed the contours and applicability of the public duty doctrine, a doctrine of common law that has been a substantial source of confusion and inconsistent court rulings for decades. Generally, the public duty doctrine holds that statutes and regulatory directives impose a duty on governmental officials toward the public as a whole, and not potential tort claimants allegedly injured by the governmental failure to comply with that duty. The doctrine is often used as an affirmative defense in actions brought against government entities.
The specific substantive issue in Ehrhart was whether King County’s regulatory responsibility to issue health advisories over certain conditions created a duty to a specific patient who expired of organ failure days after contracting the hantavirus, a family of viruses spread by deer mice that can lead to infection and the highly-lethal Hantavirus Pulmonary Syndrome (HPS).[2] The Supreme Court ultimately held that King County was not responsible for enforcing state regulations that set forth the duties of local health officers or the local health department; and therefore, the failure to enforce such regulations did not fall under an exception to the public duty doctrine.
1. Factual and procedural background.
In February 2017, a man living near Issaquah presented to Swedish Medical Center with fever, chills, vomiting, and a persistent cough. The providers concluded he was experiencing flu-like symptoms, provided treatment, and discharged the patient. The following day, the man was rushed to the emergency room at Overlake, but ultimately died of organ failure later determined to be from a hantavirus-related infection.
The patient’s wife and his Estate filed suit against multiple providers and King County, alleging that King County breached a regulatory duty to the man by failing to issue a health advisory after it learned of a previous case involving a woman also living near Issaquah, who contracted hantavirus in December 2016 and who was hospitalized at Overlake Medical Center. The trial court denied King County’s motion for summary judgment, and instead, it “conditionally” granted the Estate summary judgment on the public duty doctrine dependent on the jury’s factual findings at trial. The Supreme Court accepted the case on a motion for direct discretionary review.
2. The public duty doctrine barred Ehrhart’s suit because the regulation at issue creates a duty to the public as a whole and not the decedent, individually.
The Supreme Court, in its opinion authored by Chief Justice Debra Stephens, reversed the trial court, holding that the regulation at issue, WAC-246-101-505, created a duty on King County to the public as a whole to “review and determine appropriate action” when it receives reports of certain serious conditions. The Court rejected the plaintiff’s argument that one of the recognized exceptions to the public duty doctrine, the “failure to enforce” exception, applied to the facts of the case. For this exception to apply, the plaintiff must show:
(1) governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, (2) fail to take corrective action despite a statutory duty to do so, and (3) the plaintiff is within the class the statute intended to protect.
2020 WL 1649891 at *5.[3]
The Supreme Court concluded the plaintiff failed to make the requisite showing for the first element because: (1) King County is not responsible for enforcing the regulation; (2) there was no evidence King County was aware of a violation of the regulation, so it could not have taken “corrective action”; and (3) the plaintiff failed to establish that King County actually violated the regulation, when it “in fact made a determination about how to respond to the December 2016 report of a hantavirus case.” Id. at *7.
The Court further concluded that the plaintiff failed to meet the second and third elements of the failure to enforce exception when King County took corrective action and when the applicable regulations make it clear that the class of people to be protected by WAC 246-101-505 is the general public as a whole, respectively. Id. at **7-8.
The Court ruled as a matter of law that King County was entitled to summary judgment on its affirmative defense under the public duty doctrine and remanded to the trial court to enter judgment consistent with the opinion. Id. at *9.
3. Impact and import of Ehrhart’s holding.
The Supreme Court’s reversal of the trial court’s ruling should bring some measure of comfort to public health departments and their officials in several regards, particularly when the Ehrhart decision was issued in the midst of a world-wide public health crisis created by uncontrolled spread of the novel coronavirus causing COVID-19.
Had the trial court’s ruling been affirmed by the Court on discretionary review, it could have changed the manner in which all public health departments that oversee reportable conditions conduct their investigatory and policy decision-making and to the detriment of the public. In order to avoid potential tort liability to individuals, all departments would have no choice but to issue public advisories over any one of over 80 conditions in almost all circumstances, which in turn would cause foreseeable difficulties in the management of the limited resources for effective and coordinated responses. As aptly noted by amici, the National Association of County & City Health Officials and the Big Cities Health Coalition in Ehrhart, such a scenario would also effectively remove the role of professional and medical judgment in determining under what circumstances issuing public health advisories would be to the public health benefit.
If you have additional questions regarding this decision, please contact attorney David Norman. 206-622-5511 or dnorman@bbllaw.com.
[1] New Justice Raquel Montoya-Lewis did not participate in the decision.
[2] Some studies estimate the mortality of HPS at 30%.
[3] Quoting Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987).