Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 76101-9
Title of Case: John Osborn, et al., v. State of Washington,
Dept of Corrections; Mason County, et al.
File Date: 05/18/2006
Oral Argument Date: 09/13/2005
SOURCE OF APPEAL
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Appeal from Superior Court,
County
Honorable Gordon L Godfrey
JUSTICES
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Authored by Richard B. Sanders
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Gerry L Alexander
Susan Owens
Mary Fairhurst
Dissenting: Charles W. Johnson
Tom Chambers
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Charles Philip Edwar Leitch
Lee Smart Cook et al
One Convention Place
701 Pike St Ste 1800
Seattle, WA 98101-3929
Michael Alexander Patterson
Lee Smart Cook et al
701 Pike St Ste 1800
Seattle, WA 98101-3929
Counsel for Respondent(s)
Stephen Louis Bulzomi
Messina/Bulzomi
5316 Orchard St W
University Place, WA 98467-3633
Kenneth Wendell Masters
Wiggins & Masters PLLC
241 Madison Ave N
Bainbridge Island, WA 98110-1811
John Louis Messina
Messina/Bulzomi
5316 Orchard St W
Tacoma, WA 98467-3633
Amicus Curiae on behalf of Washington Association of Sheritts & Police Chiefs
Bertha Baranko Fitzer
Pierce County Prosecutors Office
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2171
Dennis Hunter
Attorney at Law
PO Box 5000
Vancouver, WA 98666-5000
Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys
Bertha Baranko Fitzer
Pierce County Prosecutors Office
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2171
Dennis Hunter
Attorney at Law
PO Box 5000
Vancouver, WA 98666-5000
Amicus Curiae on behalf of Washington State Association of Counties
Bertha Baranko Fitzer
Pierce County Prosecutors Office
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2171
Dennis Hunter
Attorney at Law
PO Box 5000
Vancouver, WA 98666-5000
Amicus Curiae on behalf of ASSOCIATION OF WASH CITIES
Daniel Brian Heid
City of Auburn
25 W Main St
Auburn, WA 98001-4998
Amicus Curiae on behalf of WASHINGTON STATE ASSOC OF MUNICIPAL ATORNEYS
Daniel Brian Heid
City of Auburn
25 W Main St
Auburn, WA 98001-4998
Amicus Curiae on behalf of NORTHWEST WOMEN'S LAW CENTER
Sara Lyle Ainsworth
Northwest Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Brian D Buckley
DLA Piper Rudnick Gray Cary US LLP
701 5th Ave Ste 7000
Seattle, WA 98104-7044
Anthony Todaro
DLA Piper Rudnick Gray Cary US LLP
701 5th Ave Ste 7000
Seattle, WA 98104-7044
Amicus Curiae on behalf of WASHINGTON STATE TRIAL LAWYERS ASSOC
Bryan Patrick Harnetiaux
Attorney at Law
517 E 17th Ave
Spokane, WA 99203-2210
Debra Leigh Williams Stephens
Attorney at Law
6210 E Lincoln Ln
Spokane, WA 99217-9332
JOHN OSBORN, individually, )
and as the Personal ) No. 76101-9
Representative of Jennie Mae )
Osborn, Deceased, and KANDI ) En Banc
OSBORN, individually, )
) Filed May 18, 2006
Respondent, )
)
v. )
)
MASON COUNTY, a municipality, )
and STATE OF WASHINGTON, )
Department of Corrections; )
JOSEPH ROSENOW and "JANE DOE )
ROSENOW," husband and wife, )
)
Petitioner.
SANDERS, J.--On February 24, 2001, registered sex offender Joseph Rosenow
raped and murdered Jennie Mae Osborn. Osborn's parents sued Mason County
for failing to warn them of Rosenow's presence. The superior court denied
Mason County's motion for summary judgment. The Court of Appeals, Division
Two, affirmed the superior court, holding Mason County had a duty to warn
the Osborns of Rosenow's presence under the rescue doctrine. We hold that
Mason County had no duty to warn the Osborns because they did not rely on a
promise to warn and Jennie Mae Osborn was not a foreseeable victim.
Accordingly, we reverse the Court of Appeals and grant Mason County's
motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
Neither party disputes the tragic facts of this case. Rosenow was a
registered sex offender. In 1993, he pleaded guilty to third degree rape
of a woman at knifepoint, and in 1999 he pleaded guilty to second degree
assault for choking unconscious a former sexual partner. When Rosenow was
released from prison in June 2000 he moved to Hoodsport, Mason County. The
prison preliminarily classified Rosenow a level II sex offender, but Mason
County reclassified him a level III sex offender.1
Detective Jason Dracobly handled sex offender registration and community
notification for the Mason County Sheriff's Department.2 Before Rosenow's
release Shannyn Wiseman, a resident of Mason County, contacted Dracobly who
said he would post fliers and otherwise notify the community of Rosenow's
presence. Dracobly registered Rosenow and posted a notice identifying him
as a sex offender on Mason County's website, but did not distribute fliers.
Wiseman contacted Dracobly again, informing him that Rosenow had followed
two minor children, reporting Rosenow's change of address, and asking
whether Dracobly still intended to distribute fliers. Dracobly told her he
was too busy to distribute fliers and discouraged her from doing so
herself. Id. In December 2000 Rosenow moved from Hoodsport to Shelton.
But on February 24, 2001, he returned to Hoodsport where he raped and
murdered Osborn.
Osborn's parents sued Mason County for failing to warn them of Rosenow's
presence. Mason County moved for summary judgment, arguing that the sex
offender statute then in effect, former RCW 4.24.550 (1998), imposed no
duty to warn and conferred immunity from liability for failure to warn and
moreover no duty to warn existed under the public duty doctrine.3 The
trial court denied Mason County's motion for summary judgment, finding
former RCW 4.24.550 imposed an implied duty to warn. The Court of Appeals
granted Mason County's motion for discretionary review and affirmed the
trial court's ruling on different grounds. It found no duty to warn under
former RCW 4.24.550, but held Mason County might have had a duty to warn
under the rescue doctrine. Osborn v. Mason County, 122 Wn. App. 823, 95
P.3d 1257 (2004). We granted Mason County's petition for review. We hold
Mason County had no statutory or common law duty to warn the Osborns of
Rosenow's presence and remand to the trial court with directions to grant
Mason County's cross-motion for summary judgment.
STANDARD OF REVIEW
A motion for summary judgment presents a question of law reviewed de novo.
See Denaxas v. Sandstone Court of Bellevue, L.L.C., 148 Wn.2d 654, 662, 63
P.3d 125 (2003). We construe the evidence in the light most favorable to
the nonmoving party, Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d
301 (1998), and grant summary judgment if "there is no genuine issue as to
any material fact" and "the moving party is entitled to a judgment as a
matter of law." CR 56(c).
ANALYSIS
This case presents a question of law: did Mason County have a duty to warn
the Osborns of Rosenow's presence? Puzzlingly, the Court of Appeals denied
summary judgment because "the Osborns have asserted facts from which a
trier of fact could find that Mason County's actions affirmatively created
a separate duty under the rescue doctrine." Osborn, 122 Wn. App. at 837.
But, of course, the "existence of duty is a question of law," not a
question of fact. Kae Kim v. Budget Rent A Car Sys. Inc., 143 Wn.2d 190,
195, 15 P.3d 1283 (2001). And neither party disputes any fact relevant to
the existence of a duty. Rather, as the Court of Appeals recognizes, these
parties dispute only whether Mason County's actions "negligently increased
the risk of harm to Rosenow's potential victims." Osborn, 122 Wn. App. at
835. So, presumably, the Court of Appeals meant the Osborns have asserted
facts sufficient for a jury to find Mason County breached a duty to warn
under the rescue doctrine.
I. Mason County Had No Duty to Warn the Osborns of Rosenow's Presence
But the Osborns do not assert facts sufficient to show Mason County had a
duty to warn them of Rosenow's presence because they do not claim they
relied on Mason County's assurances. A duty exists under the rescue
doctrine only if an injured party reasonably relies on the assurances of a
negligent rescuer. The Court of Appeals held Mason County had a duty to
warn the Osborns under the rescue doctrine because Dracobly assured Wiseman
he would post fliers, failed to post fliers, and discouraged Wiseman from
posting fliers. Id. In other words, it held Mason County had a duty to
warn the Osborns because Wiseman relied on its assurances. But that cannot
support a duty under the rescue doctrine unless the Osborns reasonably
relied on Wiseman. And the Osborns fail to show such reliance. Because
Mason County had no duty to warn the Osborns--under the rescue doctrine or
any other theory of liability--it is entitled to summary judgment.
A. Mason County Had No Statutory Duty to Warn the Osborns
The Court of Appeals correctly rejected the superior court's conclusion
former RCW 4.24.550 created an implied duty to warn of the presence of a
sex offender. Clerk's Papers at 316-17. Its conclusion follows inexorably
from the plain language of the statute: "Except as may otherwise be
provided by law, nothing in this section shall impose any liability upon a
public official, public employee, or public agency for failing to release
information authorized under this section." Former RCW 4.24.550(6). Thus,
former RCW 4.24.550 neither imposed a duty to warn nor conferred immunity
from liability for failure to warn.
B. Mason County Had No "Take Charge" Duty to Warn the Osborns
Under the "special relationship" doctrine, a public entity has a duty to
control persons it has authority to control and a duty to protect
foreseeable victims of dangerous persons leaving its custody. See, e.g.,
Joyce v. Dep't of Corrs., -- Wn.2d --, 119 P.3d 825, 830-31 (2005). In
other words, a public entity "has a duty to take reasonable precautions to
protect against reasonably foreseeable dangers." Taggart v. State, 118
Wn.2d 195, 217, 822 P.2d 243 (1992).
Accordingly, a public entity has a "take charge" duty to control parolees,
id., mental patients, Petersen v. State, 100 Wn.2d 421, 428-29, 671 P.2d
230 (1983), and others it has authority to control, to the extent it has
authority to control them. See, e.g., Couch v. Dep't of Corrs., 113 Wn.
App. 556, 571, 54 P.3d 197 (2002) (holding authority to control limits duty
to control). And a public entity has a duty to protect foreseeable victims
of criminals, mental patients, and others leaving its custody. See
Petersen, 100 Wn.2d at 428-29. See also Doyle v. United States, 530 F.
Supp. 1278, 1288 (C.D. Cal. 1982) (holding "a duty to warn arises only when
the potential victim is known and foreseeable"); Hoff v. Vacaville Unified
Sch. Dist., 19 Cal. 4th 925, 937, 80 Cal. Rptr. 2d 811, 968 P.2d 522 (1998)
(holding "public entities have no affirmative duty to warn of the release
of an inmate with a violent history unless the inmate makes a specific
threat against a specific, identifiable victim or group of victims");
Thompson v. County of Alameda, 27 Cal. 3d 741, 754, 167 Cal. Rptr. 70, 614
P.2d 728 (1980) (finding "no affirmative duty to warn of the release of an
inmate with a violent history who has made nonspecific threats of harm
directed at nonspecific victims" (emphasis omitted)). But Mason County did
not "take charge" of Rosenow because it had no authority to control him.
And it had no "special relationship" duty to warn the Osborns because
Jennie Mae Osborn was not a foreseeable victim of Rosenow.
C. Mason County Had No Duty to Warn the Osborns under the Rescue Doctrine
Nor does the rescue doctrine apply because the Osborns did not rely on
Mason County's assurances. The Court of Appeals mistakenly concluded
reliance "is not a necessary element" of the rescue doctrine, holding Mason
County had a duty to warn because it increased Osborn's risk of injury by
promising to warn, failing to warn, and discouraging a third party from
warning. Osborn, 122 Wn. App. at 835. On the contrary, reliance is the
linchpin of the rescue doctrine.
Under the rescue doctrine, a public entity has a "special" duty "to
exercise reasonable care after assuming a duty to warn or come to the aid
of a particular plaintiff." Bailey v. Forks, 108 Wn.2d 262, 268, 737 P.2d
1257, 753 P.2d 523 (1987). That "special" duty exists because a public
entity's assurances may induce reliance. "A person who voluntarily
promises to perform a service for another in need has a duty to exercise
reasonable care when the promise induces reliance and causes the promisee
to refrain from seeking help elsewhere." Folsom, 135 Wn.2d at 676. See
also Couch, 113 Wn. App. at 572 n.66 (finding no duty under rescue doctrine
without reliance). And see Restatement (Second) of Torts sec. 323, cmt. d
(1965) ("There is no essential reason why the breach of a promise which has
induced reliance and so caused harm should not be actionable in tort.").
Cf. Bd. of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548
(1972) (holding due process protects reasonable reliance on assurances of
public entity). A person may reasonably rely on explicit or implicit
assurances. "Even where an offer to seek or render aid is implicit and
unspoken, a duty to make good on the promise has been found by most courts
if it is reasonably relied upon." Brown v. MacPherson's, Inc., 86 Wn.2d
293, 301, 545 P.2d 13 (1975). But the Osborns do not claim Mason County
promised to warn them of Rosenow's presence.
A public entity also has a duty under the rescue doctrine when an injured
party reasonably relies on a third party that "refrains from acting" as a
result of the public entity's assurances. Chambers-Castanes v. King
County, 100 Wn.2d 275, 286 n.3, 669 P.2d 451 (1983). See also Brown, 86
Wn.2d at 301 (holding "a duty to act" is "created by reliance not by the
person to whom the aid is to be rendered, but by another who, as a result
of the promise, refrains from acting on that person's behalf"); Meneely v.
S.R. Smith, Inc., 101 Wn. App. 845, 859-60, 5 P.3d 49 (2000) (holding trade
association "voluntarily assumed the duty to warn" because "manufacturers
relied upon" assurances). So, in Brown, a duty existed because the injured
parties reasonably relied on their broker to warn them of danger, a public
entity promised a third party it would warn the injured parties of danger,
and the public entity caused the broker to believe no danger existed. 86
Wn.2d at 301-02. And in Meneely, a duty existed because the injured
parties relied on a manufacturer to warn them of danger, a trade
association promulgated "industry wide safety standards," and the
manufacturer relied on the safety standards. 101 Wn. App. at 857-62. No
duty can exist under the rescue doctrine without this privity of reliance.
In sum, a public entity has a duty under the rescue doctrine when an
injured party reasonably relies, or is in privity with a third party that
reasonably relies, on its promise to aid or warn. See, e.g., Bratton v.
Welp, 145 Wn.2d 572, 576-77, 39 P.3d 959 (2002); Babcock v. Mason County
Fire Dist. No. 6, 144 Wn.2d 774, 778, 30 P.3d 1261 (2001) (finding no duty
to aid because reliance was unreasonable); Beal v. City of Seattle, 134
Wn.2d 769, 785, 954 P.2d 237 (1998) (analyzing duty to aid under "special
relationship" doctrine); Honcoop v. State, 111 Wn.2d 182, 192-93, 759 P.2d
1188 (1988) (holding duty to warn exists only if public entity makes
"assurances that could give rise to justifiable reliance"). But the
Osborns relied on neither Mason County nor Wiseman to warn them of
Rosenow's presence. Accordingly, Mason County had no duty to warn the
Osborns under the rescue doctrine.
II. This Case Does Not Implicate the Public Duty Doctrine
The Osborns urge us to abandon the "public duty" doctrine. But no public
duty doctrine analysis is necessary because Mason County had no duty to
warn the Osborns of Rosenow's presence. "We have almost universally found
it unnecessary to invoke the public duty doctrine to bar a plaintiff's
lawsuit." Bailey, 108 Wn.2d at 266. And this case is no exception.
A cause of action for negligence exists only if "the defendant owes a duty
of care to plaintiff." Chambers-Castanes, 100 Wn.2d at 284. Accordingly,
under the public duty doctrine, a public entity has a duty of care when it
owes a duty "to the injured plaintiff," but does not have a duty of care
when it owes a duty "to the public in general." Babcock, 144 Wn.2d at 785.
We often paraphrase this "basic principle of negligence law" as "a duty to
all is a duty to no one." Id.
Because a public entity is liable in tort "to the same extent as if it were
a private person or corporation," former RCW 4.92.090 (1963) (state) and
former 4.96.010 (1967) (municipality), the public duty doctrine does not--
cannot--provide immunity from liability. Rather, it is a "'focusing tool'"
we use to determine whether a public entity owed a duty to a "'nebulous
public'" or a particular individual. Taylor v. Stevens County, 111 Wn.2d
159, 166, 759 P.2d 447 (1998) (quoting J&B Dev. Co. v. King County, 100
Wn.2d 299, 304-05, 669 P.2d 468 (1983)). The public duty doctrine simply
reminds us that a public entity--like any other defendant--is liable for
negligence only if it has a statutory or common law duty of care. And its
"exceptions" indicate when a statutory or common law duty exists. "The
question whether an exception to the public duty doctrine applies is thus
another way of asking whether the State had a duty to the plaintiff."
Taggart, 118 Wn.2d at 218. See also Bishop v. Miche, 137 Wn.2d 518, 530,
973 P.2d 465 (1999) ("Exceptions to the doctrine generally embody
traditional negligence principles and may be used as focusing tools to
determine whether a duty is owed."). In other words, the public duty
doctrine helps us distinguish proper legal duties from mere hortatory
"duties."
Assuredly, Mason County has a "duty" to protect its citizens in a
colloquial sense, but it does not have a legal duty to prevent every
foreseeable injury. See Thompson v. County of Alameda, 27 Cal. 3d 741,
753, 167 Cal. Rptr. 70, 614 P.2d 728 (1980). An "action for negligence
does not lie unless the defendant owes a duty of care to the plaintiff,"
Bailey, 108 Wn.2d at 266, and "a broad general responsibility to the public
at large rather than to individual members of the public" simply does not
create a duty of care. Campbell v. City of Bellevue, 85 Wn.2d 1, 9, 530
P.2d 234 (1975). Under the rescue doctrine, both public, Brown, 86 Wn.2d
at 301, and private, Meneely, 101 Wn. App. at 860, entities have a duty to
warn those who reasonably rely on a promise to warn. But no duty to warn
exists under the rescue doctrine without reasonable reliance on such a
promise.
And so, the facts as presented by the Osborns cannot support a duty to warn
under the rescue doctrine. They contend Mason County had a duty to warn
them of Rosenow's presence under the rescue doctrine because Dracobly
promised to warn the community, failed to warn the community, and
discouraged Wiseman from warning the community. But no general duty to
warn exists "in the absence of a known danger to a specific individual"
because there is no basis on which to warn anyone. Sharpe v. Dep't of
Mental Health, 292 S.C. 11, 15, 354 S.E.2d 778 (1987). See also Thompson,
27 Cal. 3d at 754-55 ("Notification to the public at large of the release
of each offender who has a history of violence and who has made a
generalized threat at some time during incarceration or while under
supervision would, in our view, produce a cacophony of warnings that by
reason of their sheer volume would add little to the effective protection
of the public."); VanLuchene v. State, 244 Mont. 397, 403, 797 P.2d 932
(1990) ("The merit of issuing a warning to the general public in the
instant case is equally questionable. Appellants do not set forth how their
actions would have differed had respondent made a general public
warning."); Mangeris v. Gordon, 94 Nev. 400, 403, 580 P.2d 481 (1978) ("In
such circumstances, the defendant is impressed with a duty to warn
foreseeable victims of foreseeable harm."); Melinda K. Blatt, Comment,
State Liability for Injuries Inflicted by Parolees, 56 U. Cin. L. Rev. 615,
635 (1987) (finding "no duty to provide a warning of the release of a
dangerous prisoner to the public at large"). The Osborns do not allege
that Dracobly "engaged in conduct within the scope of employment that would
render" him liable for their daughter's death, and "there is no basis for
imposing vicarious liability upon" Mason County. Zelig v. County of Los
Angeles, 27 Cal. 4th 1112, 1130-31, 119 Cal. Rptr. 2d 709, 45 P.3d 1171
(2002). Mason County is not liable for failing to warn the Osborns of
Rosenow's presence--with or without the public duty doctrine--simply
because it had no statutory or common law duty to warn them.
CONCLUSION
We reverse the Court of Appeals and grant Mason County's motion for summary
judgment. The Osborns fail to assert facts sufficient to show Mason County
had a duty to warn them of Rosenow's presence.
AUTHOR:
Justice Richard B. Sanders
WE CONCUR:
Chief Justice Gerry L. Alexander
Justice Susan Owens
Justice Barbara A. Madsen Justice Mary E. Fairhurst
Justice James M. Johnson
Justice Bobbe J. Bridge
1 Level I sex offenders are low risk reoffenders, level II are moderate
risk, and level III are high risk. RCW 72.09.345(5).
2 Former RCW 9A.44.130 (2000) required counties to record the name,
address, date and place of birth, criminal convictions, dates and places of
conviction, aliases, Social Security number, photograph, and fingerprints
of released sex offenders.
3 In 2000, the "state's policy" was "to authorize the release of necessary
and relevant information about sexual predators to members of the general
public." Laws of 1990, ch. 3, sec. 116. A 2001 amendment requires county
sheriffs to publish a notice in a newspaper of general circulation when a
level III sex offender moves to their jurisdiction. See RCW 4.24.550(4);
Laws of 2001, ch. 283, sec. 2.