April 22, 2011
Estate sues after cops arrive too late at scene of the crime
By ANDREW BERGH
Special to the Journal

The frantic 911 call was made at exactly 6 p.m. The deputy sheriff arrived 18 minutes later, but tragically, his arrival was two minutes too late to save Bill Munich's life.

Munich and his wife, Gaye, owned land in rural Skagit County. The couple's property was a work in progress, with a garage but no other buildings.

The fateful day was Oct. 1, 2005, the same day Munich flew solo to his property in his privately owned plane.

As later revealed by his cell phone records, Munich initially called a friend, Bruce Heiner, at 5:57 p.m. to tell him that a neighbor, Marvin Ballsmider, had just fired a shot at him. At his friend's suggestion, Munich immediately called 911. According to the computer-aided dispatch record, this call was placed at 6 p.m.

Munich told the dispatcher, Norma Smith, that his neighbor had aimed a rifle and shot at him from about 25 feet away. He also said he was “rattled” and that his neighbor was “an alcoholic.”

At 6:01 p.m., Smith notified the Skagit County Sherriff's Office about the incident by making a notation in the CAD system, advising that a man with a rifle had reportedly fired one shot at his neighbor. This call was entered as a “priority two weapons offense.” It's unclear from court records whether a higher priority could (or should) have been assigned.

The sheriff's office responded by dispatching one of its deputies, Dan Luvera, to Munich's property. Luvera had to drive an unspecified distance from La Conner. Smith meanwhile finished her conversation with the caller, telling him that a deputy was en route. An appreciative Munich replied that he would be waiting at his garage. This call ended at 6:03 p.m.

But the situation rapidly worsened.

At 6:05 p.m., Munich again called his friend, this time saying that he was running down the road and the “crazy bastard” still had his gun. When Heiner suggested that he stop a motorist and leave the area by car, Munich said they were going too fast and wouldn't stop for him. After Heiner heard gunshots, Munich said Ballsmider was at the top of the driveway and reloading his rifle.

After hanging up with his friend, Munich at once made another 911 call. The time was now 6:10 p.m.

While talking with a different 911 operator, Munich related how Ballsmider was driving a green station wagon, chasing him up the road, and shooting at him with his rifle. He also described his location and Ballsmider's appearance. But at approximately 6:16 p.m., while Munich was still on the phone with the 911 operator, Ballsmider gunned him down with a shot through his car's open window.

The shooting was fatal. Two minutes later at 6:18 p.m., Luvera arrived at the scene and arrested Ballsmider for murder.

On behalf of her late husband's estate, Gaye Munich later sued three governmental entities for damages in Skagit County Superior Court. The named defendants — Skagit County, Skagit County Sheriff's Office, and Skagit Emergency Communications Center (dba Skagit 911) — were liable, the suit claimed, for negligently responding to the incident.

Under Washington law, governmental entities are generally insulated from civil liability by the so-called “public duty doctrine.”

There is an exception, however, where a “special relationship” exists between the plaintiff and the governmental entity. To establish this type of relationship, the plaintiff must prove three things. First, that he had “direct contact” with a public official that set him apart from the general public. Second, that he received an “express assurance” from the public official. And third, that he justifiably relied upon such assurance.

Against this background, the Skagit County defendants later moved for summary judgment, arguing that the estate had failed to establish the existence of a special relationship.

But on top of the usual three elements, the defense claimed that the estate had also failed to prove a fourth: that any assurance Munich received from the public officials (i.e., the 911 operators) was false or inaccurate. Since the first 911 dispatcher correctly told Munich a deputy was en route, the defendants reasoned, they weren't liable to his estate.

The trial court disagreed, however, rejecting the defense arguments across the board and ruling that the estate had sufficient evidence to present its case to a jury.

The defendants then took the unusual step of asking a Washington appeals court to intervene prior to trial. When, as in this case, the court agrees to do so, it's often a bad sign for the opposing party. Not this time, however. Eleven days ago the appeals court sided with the estate.

The main legal point dealt with the defense attempt to add a fourth element to the special relationship exception.

The appeals court agreed that when the alleged assurance involves “providing information,” its falsity or lack of accuracy is relevant and must be proven by the plaintiff. Not so, said the court, when the claim against the governmental entity instead involves “a promise of future action” — e.g., that the police will be timely dispatched.

In short, the estate will have its day in court. As for the outcome, that'll depend on whether the evidence shows the 911 calls and/or the police response were somehow mishandled. For example, the estate's chances will increase if Munich's 911 calls should've been given higher priority, or if another deputy was closer to the scene and could've been sent.

As a postscript, Ballsmider was convicted of second degree murder in February 2007 and sentenced to 28 years in prison. But after serving less than three years, he died from pancreatic cancer.

All in all, a sad and tragic case on every front.