A police officer directs traffic after an accident.
As he signals vehicles through an intersection, a driver doesn’t understand he’s supposed to stop and crashes into a vehicle the officer had waved through.
Is the city who employs the officer responsible for the wreck, or does state statute protect the government from liability?
That’s what a lawsuit filed by a couple in Pierce County Superior Court will decide.
Pierce County residents Pache Hein and Anthony James sued the city of Puyallup and the other driver over the wreck, which happened March 27, 2015. Hein was 24 weeks pregnant, and her daughter, Aria Le’Allyn James, was born prematurely after the accident.
“Four days after her birth, Baby Aria died,” according to the lawsuit, which was filed Aug. 1 and seeks unspecified damages.
A potential hurdle for the suit will be the protections Washington and other states give local governments in such situations, but which some attorneys say are slowly weakening. There’s controversy around the protection, and plaintiff’s attorneys have been slowly fighting it, said Hugh Spitzer, who teaches local government law at the University of Washington.
“I’ve seen a case here and a case there that comes from the state Supreme Court where they kind of chip away at this doctrine,” said Spitzer, who has more than 30 years of experience as an attorney in the field, such as a public finance and municipal law lawyer. “I would say the doctrine is definitely under attack, and it’s been weakened in the past 25 years.”
In the Puyallup incident, the initial crash happened at the eastbound state Route 512 off-ramp and 94th Avenue East.
A Puyallup police officer started directing traffic as emergency crews responded. The officer waved Hein and James through the intersection, and another driver T-boned their vehicle.
The lawsuit alleges the officer failed to properly secure traffic before waving the couple through. It also alleges the other driver should have seen what was happening and yielded.
According to the complaint, traffic lights at the intersection were working, and the other driver believed he had the right of way because his light was green.
The lawsuit alleges the officer and the second driver acted negligently.
Spitzer, who had no specific knowledge of the Puyallup suit, said it’s not unusual to sue a city, a county or a state when there’s a traffic accident; those are the governments responsible for managing the roads. But many states, including Washington, he said, have a major exception to the potential liability of those governments in such situations, known as the public duty doctrine.
It states that governments owe a duty to everyone in a community, not to an individual.
The doctrine isn’t written into state statute, but rather has been developed by precedent through the years as the state’s judges ruled on cases dealing with government liability.
Using a general example, Spitzer said, “When the police officer is directing traffic, she and the city owe the duty to everyone who is driving around, but to no specific person. ... She’s just doing her thing, being a police officer.”
In such situations, he said, a city generally can be held liable only if it created a special circumstance, such as an officer telling a driver it was safe to park in a specific area, and the vehicle then was hit.
“The sadder the story, the more pressure there is on a court to try to find some way to help these people out,” he said. “But on the other hand, (the public duty doctrine) is a fairly strong protection.”
He also used the example of 911 operators, who take a caller’s information but generally don’t give specifics, such as when an officer will arrive.
“If they say to you, ‘There will be an officer there within one minute,’ they’ve created a special duty to you,” Spitzer said.
Then if an officer doesn’t show up in that time, a city could be liable, he said.
The attorney representing the family in the Puyallup lawsuit, Karen Koehler, said the public duty doctrine does not apply in the case.
“This is a gentleman that’s engaged in negligence in the performance of a duty, he’s not a high-functioning, policy-making official,” she said of the officer involved. “... It’s hard to argue that the decisions made by employees of a government should be protected, and especially the lower the level goes for an employee.”
She agreed with Spitzer that the public duty doctrine has changed over the years, and she argued it now has only slim applications.
“Really what’s happened is that, as modern society has looked at what’s fair and right in light of these old doctrines and trying to make them applicable to now .... the law evolved,” Koehler said. Now it’s at the policy level where the public duty doctrine can come into play.
She used the example of the 2001 Mardi Gras riot in Seattle, in which outnumbered police officers were ordered to stand by as 70 people were hurt and one person died.
Koehler sued the city on behalf of some of the injured, and said the case was thrown out, essentially because of the public duty doctrine. It’s more complicated than that, she said, but that was the gist.
“The decision (for the officers to stand by) was made at a policy level, way high up,” she said. “It was not part of the every-day function of a police officer.”
Had an officer decided on his or her own to stand by as someone was hurt, she said, the public duty doctrine wouldn’t have applied.
She questioned why government should be insulated at all, in cases of negligence.
“The government should be as accountable as you or me,” she said. “Is that what the law says right now? No.”
Asked whether the public duty doctrine protects Puyallup from the lawsuit, city attorney Joe Beck said he needs to evaluate whether it applies and noted there’s little case law on the standard of care for an officer directing traffic.
He said the idea behind the public duty doctrine is, “You don’t want to discourage legislation for the public benefit just because of a fear or the potential for unlimited liability to an individual.”
Beck said the officer directing traffic when the wreck happened appeared to have followed the Police Department’s policies and that it didn’t look as if he could have done anything different.
“I think the police officer was doing his job in a difficult situation,” Beck said. “Unfortunately, somebody didn’t obey his directions, and a very tragic event unfurled from that.”