Richmond v. City of Newport, No. 40954-6-III (2026)

Case details
Full caption
Gregory Richmond and Lynne Richmond v. City of Newport, Washington
Country
United States
Jurisdiction
Washington (WA)
Court
Washington Supreme Court
Decided
2026
Disposition
Dismissed
GREGORY RICHMOND AND LYNNE RICHMOND, husband..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 746700Only the Westlaw citation is currently available.NOTE: UNPUBLISHED OPINION,SEE WA R GEN GR 14.1UNPUBLISHED OPINIONCourt of Appeals of Washington, Division 3.GREGORY RICHMOND AND LYNNERICHMOND, husband and wife, Appellants,v.CITY OF NEWPORT, WASHINGTON, Respondent.No. 40954-6-III|MARCH 17, 2026OpinionLawrence-Berrey, C.J.*1 Raw sewage flooded Gregory and Lynne Richmonds’basement because a downhill property's sewer line wasblocked. The Richmonds sued the city of Newport (City),alleging three claims: (1) failure to enforce a local sewerline ordinance, (2) intentional infliction of emotional distress,and (3) violation of the Consumer Protection Act, chapter19.86 RCW. In their response to the City's cross motion forsummary judgment, the Richmonds raised a takings clauseclaim. The trial court granted summary judgment because thepublic duty doctrine precluded the City from tort liability. Onappeal, the Richmonds seek to revive their first claim andargue the trial court failed to adjudicate their takings clauseclaim. We affirm the trial court.FACTSGregory and Lynne Richmond live in the city of Newport.In March 2024, raw sewage backed up into the Richmonds’basement. After a plumbing contractor was unable to findany obstruction within 75 feet of the Richmonds’ sewer line,the Richmonds contacted the City's sewage superintendent.The superintendent stated that he assumed the Richmonds’sewer line connected to the City's main sewer line. Eventually,a different plumber cleared the blockage 220 feet down thesewer line.One week later, raw sewage again flooded the Richmonds’basement. Upon inspection, the Richmonds discovered thattheir sewer line ran through a neighbor's lot rather thandirectly to the City's main sewer line. Mr. Richmondcontacted the City the next day and was told therewere ongoing problems with the City's residential sewerconnections.Soon after, an excavation of adjoining properties revealedthat the line originated from the Richmonds’ home, randownhill through the neighbor's property, and connectedfurther downhill to a sewer line from a third person's home.The line from the third home connected to the City's mainsewer line. The floodings damaged many of the Richmonds’possessions and rendered 50 percent of their house unusable.The Richmonds filed a complaint against the City. Thecomplaint alleged three causes of action: failure to enforce alocal sewer line ordinance, intentional infliction of emotionaldistress, and violation of the Consumer Protection Act.The Richmonds sent multiple public records requests to theCity. Two requests were for pre-1992 “permits and signoffs for certificate of occupancy, and what was required”for their home address, as well as “any testing on [theirhome's] sewer line and how the testing was completedand all of its finding[s].” Clerk's Papers (CP) at 129-30(emphasis omitted). The City found no records responsive tothe Richmonds’ public records request.In October 2024, the Richmonds moved for partial summaryjudgment. They filed an unsworn letter from an ownerof a plumbing company. The owner stated that the Cityhad no plans that showed the connecting sewer lines. Hefurther stated that he had “reviewed the plumbing codesper request of Mr. Richmond and found that there are astaggering number of plumbing code violations concerningall three homes.” CP at 42. The owner also noted that theline downhill from the Richmonds and their neighbor usedOrangeburg pipe to connect to the main line. The Richmondsalso filed an unsworn letter written by a plumber's apprentice.The apprentice stated that the Orangeburg pipe had “be[en]compromised,” implying that this was the cause of the sewerbackup. CP at 43.*2 The Richmonds also filed a letter written by the downhillowner, the one whose property contained the Orangeburgpipe that connected to the City's main sewer line. Relevanthere, the owner stated that when his sewer line was built,
GREGORY RICHMOND AND LYNNE RICHMOND, husband..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Orangeburg pipe was normal “for that time period. However,Mr. Richmond's home was built in the late 1980's and Mr.Buckley's home was built in the early 1990's, and at that timeOrangeburg pipe was not acceptable.” CP at 39.In their summary judgment motion, the Richmonds pointed tolocal regulations restricting the placement of sewer lines into alot other than the property served by the line. The Richmondsargued that if the City had “follow[ed] codes and requiredinspections” then the defective sewer configuration wouldhave been discovered before any damage occurred. CP at 24.They also argued that the City should have learned of thedefective sewer line in 1990, when the third house added itsline to the Richmonds’ existing line. The Richmonds arguedthat the public duty doctrine did not apply because operatinga sewage system is a proprietary function, not a governmentalfunction.The City responded that the Richmonds’ central claim isnot based on how the City operates its sewage system buton its purported failure to enforce plumbing codes duringthe building inspection process. This, it argued, fell squarelywithin its public duty doctrine affirmative defense.The Richmonds replied that “the [City] has not kept anyrecords of their inspection reports. Through FOIA[1] thedefendant could not produce any records, this is not theplaintiff's issue. What the Plaintiff has shown the courtis the State adopted Plumbing code and the defendant[’]sadopted ordinances recognizing those codes and duties andresponsibility.” CP at 201.The City filed a cross motion for summary judgment. Itargued that the public duty doctrine barred the Richmonds’central claim and that the facts as alleged by the Richmondsfailed to support an intentional infliction of emotional distressclaim. The City characterized the Richmonds’ theory ofliability as negligent permitting or inspections, which theyargued was precluded by the public duty doctrine.After a hearing, the trial court granted the City's motion forsummary judgment and dismissed the Richmonds’ claimswithout prejudice. The City moved for reconsideration,requesting a dismissal with prejudice. The trial court grantedthe City's motion.The Richmonds appeal to this court.ANALYSISPUBLIC DUTY DOCTRINEThe Richmonds argue that the trial court misapplied the publicduty doctrine to preclude the City from incurring liability onits negligence claim.2 We disagree.The public duty doctrine prohibits liability for a publicofficial's negligent conduct unless the duty breached wasowed to the injured person as an individual rather than oneowed to the public in general. Taylor v. Stevens County,111 Wn.2d 159, 163, 759 P.2d 447 (1988). The dutyto issue building permits and conduct inspections is toprotect the health and safety of the general public. Id. at164-65. “Issuance of a building permit does not implicitlyimply that the plans submitted are in compliance with allapplicable codes. Nor do periodic building code inspectionsimplicitly imply that the construction is in compliance withall applicable codes. Building permits and building codeinspections only authorize construction to proceed; they donot guarantee that all provisions of all applicable codes havebeen complied with.” Id. at 167. In short, “no duty is owedby local government to a claimant alleging negligent issuanceof a building permit or negligent inspection to determinecompliance with building codes.” Id. at 168.*3 Taylor squarely applies to this case. The Richmondsallege that the City was negligent in its permitting andinspection of their sewer line. Assuming that this is true, perTaylor, any duty breached by the City would be one owed tothe public, not to the Richmonds. Further, as explained below,even if the inspections were mandatory, this does not cause theCity's duty to be owed to an individual rather than the public.The Richmonds cite Osborn v. Mason County, 157 Wn.2d 18,134 P.3d 197 (2006), for the proposition that “a municipalitycannot escape liability when it fails to perform mandatoryinspections under its own [plumbing] code, and that failureresults in identifiable harm to property owners.” Appellants’Br. at 18. Osborn does not say this. Osborn addresses whetherMason County had a duty to warn the Osborns of the presenceof a sex offender who raped and murdered a woman. Id.at 20. Plumbing codes are not mentioned at all nor aremandatory inspections. To the extent the public duty doctrinewas implicated, the court held that “no public duty doctrineanalysis is necessary because Mason County had no duty towarn the Osborns of [the sex offender's] presence.” Id. at 27. It
GREGORY RICHMOND AND LYNNE RICHMOND, husband..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.3is unclear how the Richmonds arrived at their understandingof the case.3The Richmonds similarly quote Bailey v. Town of Forks,108 Wn.2d 262, 737 P.2d 1257 (1987), as stating: “ ‘Wherethe government fails to enforce mandatory inspections afteractual or constructive knowledge of the danger, the PublicDuty Doctrine does not apply.’ ” Appellants’ Am. OpeningBr. at 54-55. This language does not appear in the case. Baileydiscusses the Town of Fork's liability after a police officerfailed to prevent a man he knew to be intoxicated from drivinga truck, and the truck driver then striking a motorcyclist.Id. at 263-64. The Richmonds also quote Phillips v. KingCounty, 136 Wn.2d 946, 968 P.2d 871 (1998), as stating “‘Municipal immunity does not apply where specific statutoryinspection duties are owed to identifiable individuals, andfailure to perform such duties results in harm.’ ” Appellants’Am. Opening Br. at 55. This language also does not appearin the case, which discusses inverse condemnation liabilityagainst the county due to surface water inundating property.Id. at 950.This court could not locate any cases standing for theproposition that mandatory inspections impose a duty on theCity that would defeat the public duty doctrine. “ ‘Whereno authorities are cited in support of a proposition, the courtis not required to search out authorities, but may assumethat counsel, after diligent search, has found none.’ ” Statev. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000)(quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122,126, 372 P.2d 193 (1962)). This proposition applies equallywhen the cases cited in no way support the supposed holding.*4 The Richmonds argue that two exceptions to the publicduty doctrine would also apply to this case. The firstexception is the failure to enforce exception. This occurswhen governmental agents responsible for enforcing statutoryrequirements possess actual knowledge of a statutoryviolation, fail to take corrective action despite a statutoryduty to do so, and the plaintiff is within the class the statuteintended to protect. Bailey, 108 Wn.2d at 268. This exceptionimposes a “limited duty of care to act reasonably withinthe framework of the laws governing the municipality andthe economic resources available to it.” Id. at 271. We notethat Taylor, the controlling case, was decided after Bailey,and Taylor’s holding is specific to a city's inspection andpermitting function. For these reasons, we follow Taylor.The second exception is the special relationship exception.“A special relationship triggers an actionable duty where: (1)there is direct contact or privity between the public officialand the injured plaintiff which sets the latter apart from thegeneral public, and (2) there are express assurances by apublic official, which (3) give rise to justifiable reliance on thepart of the plaintiff.” Honcoop v. State, 111 Wn.2d 182, 192,759 P.2d 1188 (1988). Here, there is no evidence of expressassurances by a public official to the Richmonds or justifiablereliance on any assurances by the Richmonds. Accordingly,no exception applies to the public duty doctrine in this case.We conclude that the trial court did not err in summarilydismissing the Richmonds’ negligent inspection/permittingclaim against the City.TAKINGS CLAUSEThe Richmonds argue that the trial court erred by notadjudicating their takings clause claim. We disagree.Washington follows notice pleading rules, which requirea concise statement of the claim and the relief sought.Champagne v. Thurston County, 163 Wn.2d 69, 84, 178 P.3d936 (2008). Pleadings are intended to give notice to the courtand the opponent of the general nature of the claim asserted.Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 23,974 P.2d 847 (1999). Although inexpert pleading is permitted,insufficient pleading is not. Id. A pleading is insufficient whenit does not give the opposing party fair notice of what theclaim is and the grounds on which it rests. Id. A complaintmust at least identify the legal theories on which the plaintiff isseeking recovery. Id. at 25. Pleadings consist of the complaint,the answer, a reply to the answer, a reply to a counterclaim, ananswer to a cross claim, a third party complaint, a third partyanswer, and a reply to a third party answer. CR 7(a). We havereviewed the Richmonds’ complaint carefully and there is nohint of a takings clause claim.The Richmonds first raised their takings clause claim inresponse to the City's motion for summary judgment. Whenissues that are not raised by the pleadings are tried by expressor implied consent of the parties, they will be treated in allrespects as if they had been raised in the pleadings. Dewey, 95Wn. App. at 26. In determining whether the parties impliedlytried an issue, an appellate court will consider the record asa whole, including whether the issue was mentioned beforethe trial and in opening arguments, the evidence on the issueadmitted at the trial, and the legal and factual support for thetrial court's conclusions regarding the issue. Id. In Dewey, the
GREGORY RICHMOND AND LYNNE RICHMOND, husband..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.4parties did not try a First Amendment to the United StatesConstitution claim by implication where the claim was raisedfor the first time in response to a motion to dismiss. Id.Here, like Dewey, the Richmonds first raised their takingsclause claim in response to a dispositive motion. The Citydid not acknowledge the new claim, much less impliedlyconsent to it being raised. We conclude that the Richmondswere precluded from raising their untimely claim below andon appeal.*5 Affirmed.A majority of the panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will befiled for public record pursuant to RCW 2.06.040.WE CONCUR:Murphy, J.Hill, J.All CitationsNot Reported in Pac. Rptr., 2026 WL 746700Footnotes1Freedom of Information Act, 5 U.S.C. § 552.2The Richmonds do not argue that the trial court erred in dismissing their intentional infliction of emotionaldistress or their Consumer Protection Act claims.3The Richmonds likely used AI for their briefing. AI is notorious for fabricating opinions and/or quotes. Here,the Richmonds cited an actual opinion, Osborn, for a proposition that would be convenient for them but whichdoes not appear in the case. This pattern repeats with other cases cited by the Richmonds. AI fabricationsoccur by prompting a generative AI for a specific holding, and AI fabricating a result. This explains othercases cited by the Richmonds—King County v. Vincent, 167 Wn.2d 671 (2009), Carlyle v. Dep't of Soc. &Health Servs., 155 Wn. App. 895, 231 P.3d 218 (2010), and State v. Johnson, 194 Wn.2d 704, 451 P.3d1082 (2019)—none of which this court could locate. We expect all parties, including pro se litigants, to ensurethat the cases cited be real cases that plausibly support the proposition for which they are cited.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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