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Gadd v. State12/31/1997
ded to protect (failure to enforce); (3) when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff (rescue doctrine); or (4) where a relationship exists between the governmental agent and any reasonably foreseeable plaintiff, setting the injured plaintiff off from the general public and the plaintiff relies on explicit assurances given by the agent or assurances inherent in a duty vested in a governmental entity (special relationship) . . . ." Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257, 753 P.2d 523 (1988) (citations omitted).
Gadd and Randel argue that WSP and CPD had a duty to arrest Grigsby, that they negligently failed to do so, and that the police presence may have prevented others from coming to the aid of Randel. We therefore address only the "failure to enforce" and "rescue doctrine" exceptions to the public duty doctrine. Viewing the facts in the light most favorable to plaintiffs, the facts are insufficient as a matter of law to support plaintiffs' claims.
A. Failure to Enforce
The "failure to enforce" exception to the public duty doctrine applies where a government agent (1) has actual knowledge of a statutory violation and (2) a statutory duty to take corrective action, but (3) fails to take action. Bailey, 108 Wn.2d at 268-69. Any duty of care runs only to persons within the class the statute was intended to protect. Bailey, 108 Wn.2d at 269-70. Therefore, Gadd and Randel must establish: that the officers had actual knowledge of a violation; that the officers had a duty to take corrective action or a duty to arrest on that violation; and that Gadd and Randel are within the protected class to whom the duty is owed.
1. Duty
Generally, "where an officer has legal grounds to make an arrest he has considerable discretion to do so." Donaldson v. City of Seattle, 65 Wn. App. 661, 670, 831 P.2d 1098 (1992). In Forest, this court explained the distinction between having authority to arrest and having a duty to arrest.
In the McKasson case, the court explicitly held that an enforceable duty to act requires a mandatory duty to take specific action . . . The court did an extensive analysis of a number of "failure to enforce" cases and distinguished situations where the governmental employee had a specific directive to do something from situations where the statute is replete with "mays" and broad discretion is vested in the governmental official. Forest, 62 Wn. App. at 369-70 (quoting McKasson v. State of Washington, 55 Wn. App. 18, 25, 776 P.2d 971 (1989)). Accordingly, there can be no duty to arrest where an arrest is discretionary.
a. Domestic Assault
Gadd and Randel first contend that the officers had a duty to arrest Grigsby for assaulting Grigsby's mother with a knife. But there is no evidence that the officers knew the assault was against a family or household member as opposed to a general assault. The 911 dispatcher told the officers only that there was an assault with a knife in progress. If the officers had actual knowledge that Grigsby assaulted his mother with a knife, then there would have been a duty to take him into custody under RCW 10.31.100(2)(b) (police must take a suspect into custody if they believe he or she committed an assault against a family or household member). Although police officers "have the authority" to arrest for felony assault, and "may arrest" for misdemeanor assault, they are not required to arrest. RCW 10.31.100. Here the officers lacked actual knowledge of the domestic nature of the assault and thus were not compelled to arrest Grigsby. RCW 10.31.100(
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