Court of Appeals weighs whether 911 dispatch statements can create a private duty after a fatal incident

The Division II Court of Appeals of the State of Washington heard argument in case No. 616858 on whether statements by a 911 dispatcher and the agencies that responded can create a private duty of care after a fatal incident.

Ron Farley, counsel for appellant Frederick Birney, said the case concerns common-law negligence and that the public-duty doctrine does not apply where a dispatcher makes concrete representations to a caller. "When the dispatcher made the determination to say… 'hang tight, wait, we're coming,' that is when the duty attached," Farley argued, saying the facts as pleaded show a particularized relationship and foreseeable harm to neighbors.

The dispute turns on whether the dispatcher’s words and the agencies’ follow-up removed this case from the general rule that government actors do not owe a duty to protect private third parties. Farley relied on the Norg precedent and urged the court to permit factual development, arguing the trial court erred in disposing of the case on a motion on the pleadings and that the appellate court should reverse and remand.

Scott Marlow, representing Snohomish County, countered that there was no promise like the one in Norg and that the facts pleaded do not show an affirmative undertaking by the county. "There's no such promise in this case," Marlow said, arguing that any duty under the Involuntary Treatment Act would run to Mr. Lemasters, not to the neighbor Mr. Birney, and that extending liability to third parties would be an overbroad reach.

Tom Miller, counsel for the City of Lynnwood, told the panel the city’s role — serving a protection order — was a law-enforcement function distinct from medical emergency response. He said the city had no direct contact or particularized relationship with the injured neighbor and that the Involuntary Treatment Act (ITA) provides the only appropriate statutory mechanism for intervening in such mental-health crises.

Anne Trivette, counsel for Snohomish County 911, emphasized limits on applying a private-duty theory to dispatching services. Citing Hutchinson and Bartlett, she said dispatch does not provide medical care or ambulances and that allowing liability for any government interaction would eliminate the public-duty doctrine. "The only person who could have relied upon the statements by the 911 dispatcher was Mr. Lemasters," Trivette said, adding that the record shows law enforcement did call and later handled the situation before the fatal incident.

Panel members pressed counsel on whether the dispatcher’s comments amounted to an assurance that responders were en route and on how long a caller could reasonably be expected to "hunker down" and wait. The back-and-forth focused on whether the existence of a duty is a matter of law for the court to decide or whether it raises factual disputes suitable for a trial.

Farley urged reversal and remand so a factfinder could determine whether the defendants were negligent and whether any negligence was the proximate cause of the harm. The court took a brief recess at the close of argument and said it would reconstitute the panel for its next case.

The case will be decided by the appellate panel; no decision was announced from the bench during the session.