Orn v. City of Tacoma et al

Filing 128

ORDER denying 127 Defendant City of Tacoma's Motion for Reconsideration; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C13-5974 RBL

THAN ORN,
Plaintiff,
v.

ORDER DENYING MOTION FOR
RECONSIDERATION

CITY OF TACOMA, et al.,
Defendants.

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THIS MATTER is before the Court on the City of Tacoma’s Motion for Reconsideration

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[Dkt. # 127] of the Court’s Order [Dkt. # 124] denying the City’s Motion for Summary Judgment

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[Dkt. # 90] on Plaintiff Orn’s negligence claim.

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The City argues that the Court committed manifest error for three reasons: (1) under the

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public duty doctrine the officers owed Orn no duty; (2) Orn’s battery claim alleges an

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intentional, not a negligent, act; and (3) Orn did not establish that the officers’ policy violations

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were the proximate cause of his injuries and damages (instead, it argues, these were caused

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solely by the intentional act of shooting him, as a matter of law).

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The public duty doctrine does not hold that an officer owes any given individual “no
duty,” and none of the cases cited say that it does. This Court articulated its view on this subject

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ORDER DENYING MOTION FOR
RECONSIDERATION - 1

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in response to a similar argument in Escalante v. City of Tacoma, Cause No. CV14-5774RBL

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(December 19, 2016):
The public duty doctrine does not apply to claims of negligence premised on a
police officer’s alleged misfeasance, as opposed to nonfeasance. While the public
duty doctrine is properly used to shield police officers for their alleged failure to
perform statutory duties—typically, protecting citizens from harm by third
parties—the doctrine is not properly used to shield officers from their own
tortious conduct. See, e.g., Washburn, 310 P.3d at 1291 (“We have long
recognized that where a municipal entity owes a duty to specific individuals, it
must not discharge this duty negligently.”); also Coffel v. Clallam County, 735
P.2d 686, 690 (Wash. App. 1987) (“The [public duty] doctrine provides only that
an individual has no cause of action against law enforcement officials for failure
to act. Certainly, if the officers do act, they have a duty to act with reasonable
care.”). See also Munich v Skagit Emergency Comm. Ctr. 288 P.3d 328 (2012).

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Taken to its logical extreme, the defendants’ argument is that officers cannot be
negligent, and that one injured by an officer’s misfeasance—say, speeding
through a busy crosswalk—has no claim as a matter of law, because the duty not
to so speed is owed to the public at large. There is no support for that position.
The public duty doctrine does not bar [Plaintiff’s] negligence claim.

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[See Dkt. #58 in that case].
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The City’s Motion for Reconsideration on this basis is DENIED.
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The two remaining arguments are related. It is of course true that battery is an intentional
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tort, and that the intentional act of shooting Orn, by itself, cannot support a negligence claim. But
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the claim, and the denial of summary judgment, is based on the totality of the circumstances
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leading up to the shooting—the failures to follow policies and orders. The City’s conclusory
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claim that there is “no evidence” that those failures were one of the proximate causes of Orn’s
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injuries is dubious, at best. A reasonable jury could find otherwise.
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ORDER DENYING MOTION FOR
RECONSIDERATION - 2

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The Motion for Reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated this 27th day of April, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING MOTION FOR
RECONSIDERATION - 3