## Facts

- A developer sought a City of Seattle building permit to construct condominium units on a steep slope known to present landslide and soil-movement risks.
- As a permitting condition, the City required the developer to record an exculpatory covenant running with the land, provide notice to future purchasers, and obtain insurance.
- The covenant stated that current and future owners waived claims against the City arising from soil movement and issuance of the permit, except for damage directly caused by the City’s sole negligence.
- After the units were completed and sold, severe winter weather triggered a slope failure; soil supporting the condominiums moved, and the units became uninhabitable.
- The condominium association and unit owners sued the City alleging (1) negligent permitting and (2) negligent maintenance of public storm drains that allegedly contributed to the slide.
- The trial court granted summary judgment to the City on all claims based on the covenant and, alternatively, the public duty doctrine and assumption of risk.
- The Court of Appeals ruled the covenant did not run with the land, barred the negligent-permitting claim under the public duty doctrine, and reinstated the storm-drain maintenance claim.
- The Washington Supreme Court granted review limited to claims against the City.

## Issues

1. Whether the recorded exculpatory covenant “touched and concerned” the land and therefore ran with the land to bind subsequent purchasers.
2. Whether the public duty doctrine barred tort claims against the City for negligent issuance of a building permit absent a recognized exception.
3. Whether an exception to the public duty doctrine permitted a negligence claim against the City for storm-drain maintenance under alleged direct contact, express assurances, and reliance.

## Decision

- The court held the exculpatory covenant ran with the land and was enforceable against the homeowners because it related to the parcel’s use and enjoyment by allocating landslide/soil-movement risk.
- The court held the public duty doctrine barred the negligent-permitting claim because permitting is a regulatory function owed to the public generally and no exception created a duty to these homeowners.
- The court allowed the negligent storm-drain maintenance claim to proceed because the record supported a potential exception to the public duty doctrine based on a special relationship theory.
- The disposition was affirmed in part and reversed in part: dismissal of negligent permitting was affirmed; dismissal of storm-drain maintenance was reversed and remanded.

## Legal Principles

- A real covenant may bind successors when the traditional requirements are met, including that the covenant “touch and concern” the land by affecting the land’s use, occupation, or enjoyment.
- An exculpatory covenant allocating risks tied to the physical condition of a specific parcel (such as soil movement) can “touch and concern” the land and run with it, binding later purchasers with notice.
- Under Washington’s public duty doctrine, a municipality’s regulatory duties (including permitting) are owed to the public at large and do not create tort duties to individual plaintiffs absent a recognized exception.
- Government liability for negligent maintenance of public infrastructure may proceed when a recognized exception to the public duty doctrine applies, including a special relationship grounded in direct contact, express assurances, and justifiable reliance.

## Conclusion

The Washington Supreme Court enforced a recorded no-suit covenant as running with the land, held that negligent permitting claims against the City were barred by the public duty doctrine, and permitted storm-drain maintenance claims to continue on a potential special-relationship exception, remanding for further proceedings.


1515-1519 Lakeview Blvd. Condo. Ass'n v. Apartment Sales Corp., 146 Wn. 2d 194, 43 P.3d 1233 (Wash. 2002)