Robb v. City of Seattle
295 P.3d 212, 176 Wash. 2d 427 (2013)
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Rule of Law:
Under the Restatement (Second) of Torts § 302B, a duty to protect a third party from the criminal acts of another, absent a special relationship, arises only when the actor's own affirmative act (misfeasance) creates a new risk of harm. A mere failure to eliminate a pre-existing risk (nonfeasance) is insufficient to establish such a duty.
Facts:
- Officers McDaniel and Lim had prior contact with Samson Berhe and were aware of his erratic behavior, previous threats, and reports that he possessed shotguns.
- Just days before the incident, Berhe's father had called 911 to report that his son and Raymond Valencia were fighting in their backyard with shotguns.
- On June 26, 2005, Officers McDaniel and Lim stopped Berhe and Valencia on suspicion of burglary.
- During the stop, a witness saw Valencia throw shotgun shells to the ground, and the officers observed three to five shells on the ground near the suspects.
- The officers chose not to question the suspects about the shells or retrieve them from the ground.
- After approximately 20 minutes, the officers released Berhe because they had no probable cause to arrest him.
- A witness saw Berhe return to the scene shortly after his release and pick something up from the ground.
- Less than two hours later, Berhe used a shotgun and one of the shells to shoot and kill Michael Robb.
Procedural Posture:
- Elsa Robb, on behalf of her deceased husband Michael Robb, filed a negligence lawsuit against the City of Seattle and Officers McDaniel and Lim in a state trial court.
- The City of Seattle filed a motion for summary judgment, arguing it owed no duty of care to Michael Robb.
- The trial court denied the City of Seattle's motion for summary judgment.
- The City of Seattle appealed the denial to the Washington Court of Appeals.
- The Court of Appeals affirmed the trial court's ruling.
- The City of Seattle then appealed to the Supreme Court of Washington.
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Issue:
Does a police officer's failure to remove shotgun shells found near a suspect during a temporary investigative stop constitute an affirmative act that creates a duty under Restatement (Second) of Torts § 302B to protect a third party from being harmed by that suspect?
Opinions:
Majority - Madsen, C.J.
No. A police officer's failure to remove shotgun shells found near a suspect does not constitute an affirmative act creating a duty to protect a third party. The court distinguished between misfeasance (an affirmative act creating a new risk) and nonfeasance (an omission or failure to act that does not worsen an existing risk). While a duty to protect from third-party criminal acts can arise from misfeasance even without a special relationship, liability for nonfeasance is generally limited to situations where a special relationship exists. Here, the officers did not provide the shells or the weapon; the peril existed before they arrived and their actions did not create a new risk of harm. Their failure to collect the shells was an omission (nonfeasance), as it merely failed to eliminate a danger they did not create, and therefore did not give rise to a duty to protect Michael Robb.
Analysis:
This decision solidifies the critical common law distinction between misfeasance and nonfeasance in negligence law, particularly as it applies to law enforcement. By defining 'affirmative act' narrowly—as conduct that creates a new risk rather than merely failing to mitigate an existing one—the court significantly limits the scope of police liability for the subsequent criminal acts of individuals they encounter. This ruling prevents an expansion of tort duty that could hold officers liable for failing to neutralize every potential danger they observe in the field. The precedent makes it more difficult for plaintiffs to succeed in negligence claims against police unless they can demonstrate that the officers' actions actively and directly created the specific peril that caused the harm.
