DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 43309-1-I
Title of Case: Rosalie Stevenson, et al, Appellants
v.
State of Washington, et al, Respondents
File Date: 04/10/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-2-09351-0
Judgment or order under review
Date filed: 06/12/1998
Judge signing: Hon. Donald Haley
JUDGES
------
Authored by Faye C. Kennedy
Concurring: Ronald E. Cox
Ann L. Ellington
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Rebecca J. Roe
Attorney At Law
Ste 500
810 3rd Ave
Seattle, WA 98104
Jenny A. Durkan
810 3rd Ave Ste 500
810 3rd Ave
Seattle, WA 98104
Counsel for Respondent(s)
John J. Kirschner
Assistant Attorney General of Washington
Office of the Atty Gen.
900 4th Ave., Ste 2000
Seattle, WA 98164-1001
Therese A. McGuire
King Co Pros Aty-Civil Dv
700 5th Ave Ste 3900
Seattle, WA 98104
Michael Rosenberger
600 4th Avenue, Room 1000
Seattle, WA 98104-1877
Kristofer J. Bundy
700 5th Ave Ste 3900
Seattle, WA 98104
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROSALIE STEVENSON, individually and )
as Personal Representative for the )
Estate )
of Stanley Stevenson; and JEANNE ) NO. 43309-1-I
BAKER, individually, )
) DIVISION ONE
Appellants, )
v. )
STATE OF WASHINGTON, KING ) UNPUBLISHED OPINION
COUNTY; and CITY OF SEATTLE, )
)
Respondents. ) FILED
KENNEDY, C.J. -- On August 24, 1997, Dan Van Ho stabbed and killed
Stanley Stevenson on a public street in Seattle. Twelve days earlier, on
August 12, 1997, a competency hearing had been scheduled to determine
whether Dan Van Ho was competent to stand trial on pending misdemeanor
theft charges in Seattle Municipal Court. But the City Attorney's office
misplaced Dan Van Ho's file prior to that hearing. As a result, the
assistant city attorney assigned to the case came to court unaware that a
competency hearing was scheduled and unaware that Western State Hospital
had issued a written report to the court and to the City Attorney stating
that Dan Van Ho was paranoid and physically threatening, had seriously
injured two hospital staff members, and should be civilly committed.
Moreover, the assistant city attorney and the pro tem judge assigned to the
hearing were unaware that Dan Van Ho, who had a long criminal history and a
long history of violent mental disturbance, was in violation of the terms
of probation for a prior conviction in Seattle Municipal Court and that he
was also in violation of the terms of community supervision following a
Pierce County assault conviction -- because of multiple intervening
convictions in Seattle Municipal Court and other municipal courts in the
vicinity of Seattle. The City's probation department had failed to report
these violations and to seek revocation of Dan Van Ho's probation. Knowing
none of this, the assistant city attorney moved to dismiss the pending
misdemeanor theft charges. The pro tem judge, having received the written
warning from Western State Hospital, had misgivings that Dan Van Ho was
safe to be at large but nevertheless granted the City's motion, dismissing
the pending theft charge, and ordering that Dan Van Ho be released from
jail without conditions. On the following day, August 13, 1997, the King
County Jail released Dan Van Ho without referring him for commitment
evaluation by the County Designated Mental Health Professional -- this in
spite of the fact that officials at the King County Jail were well aware of
Dan Van Ho's violent behavior due to mental illness, based on extensive
contacts while Dan Van Ho was in custody in the jail -- and in spite of the
fact that someone at Western State Hospital had recently telephoned the
jail to warn officials that Dan Van Ho was dangerous to custodial staff.
The day following his release from jail, Dan Van Ho allegedly slashed the
face of a woman he encountered on a street in Seattle. Then, on August 24,
1997, Dan Van Ho fatally stabbed Stanley Stevenson, who was walking with
his wife and daughter from the King Dome following a Mariner's baseball
game1.
Stevenson's wife, Rosalie Stevenson, individually and as personal
representative of his estate, and his daughter, Jeanne Baker, subsequently
brought this lawsuit against the State of Washington, King County, and the
City of Seattle. This appeal arises from the trial court's dismissal of
the claims against King County and the City of Seattle.2 In their
complaint, the plaintiffs alleged that King County is liable to them for
releasing Dan Van Ho from jail instead of requesting mental health
evaluation and commitment when jail officials knew that Dan Van Ho was
mentally ill and dangerous to others, and claiming further that the County
was negligent in training and supervising its jail personnel with respect
to issues regarding civil commitment -- thereby proximately causing Stanley
Stevenson's death. The plaintiffs also alleged that the City of Seattle is
liable to them for failure to adequately supervise Dan Van Ho while on
probation, for negligent training and supervision of assistant city
attorneys on issues relating to mental commitment, for negligent training
of pro tem judges on issues relating to mental commitment, and for failing
to institute civil commitment proceedings against Dan Van Ho, whom they
knew was mentally ill and dangerous to others, instead releasing him with
inevitable results -- thereby proximately causing Stanley Stevenson's
death.
The plaintiffs served interrogatories and requests for production of
documents upon King County, but before the deadline for the County's
response expired, the County moved for dismissal of all claims against it
under CR 12(b)(6). The trial court granted dismissal to the County under
this rule, over the plaintiffs' objection that the motion was premature
pending completion of discovery. Plaintiffs also served interrogatories
and requests for production upon the City of Seattle. The City responded
to discovery in part, but refused to answer a number of questions and to
provide documents relating to Dan Van Ho's probation status and the City's
probation policies and practices. The City then moved under CR 12(b)(6)
for dismissal of all of plaintiffs' claims against it except for the claim
for negligent supervision of Dan Van Ho on probation -- and as to that
claim, the City moved for summary judgment. The trial court granted the
City's motions, denied the plaintiffs' motion for a continuance in order to
complete discovery, and denied the plaintiffs' ensuing motions for
reconsideration of the rulings dismissing all claims.
The trial court made its rulings before the Supreme Court issued Bishop v.
Miche, 137 Wn.2d 518, 973 P.2d 465 (1999) and Hertog v. City of Seattle,
138 Wn.2d 265, 979 P.2d 400 (1999). Based in significant part on those two
decisions, we reverse the trial court's dismissal of the claims against
King County. We also reverse the trial court's dismissal of the negligent
supervision of a probationer claim. But we affirm the dismissal of the
plaintiffs' remaining claims against the City. We remand the reinstated
claims for such proceedings as shall be consistent with this ruling and
other applicable law, following the completion of discovery.
FACTS
In accord with the rules governing review of dismissals under CR
12(b)(6), we presume the plaintiffs' factual allegations to be true and may
consider hypothetical facts not contained in the record. And, in accord
with the rules governing review of summary judgments, we view disputed
facts in the light most favorable to the non-moving party, here, the
plaintiffs.
On August 24, 1997, Dan Van Ho stabbed Stanley Stevenson to death as Mr.
Stevenson walked with his wife and daughter from a baseball game. Twelve
days earlier, on August 12, 1997, Dan Van Ho had appeared in Seattle
Municipal Court for a competency hearing on pending misdemeanor theft
charges. While in jail awaiting trial on those charges, Dan Van Ho had
exhibited psychotic behavior and had been sent to Western State Hospital
for a competency evaluation. While at Western State Hospital for the
competency evaluation, Dan Van Ho had assaulted two staff members, causing
serious injuries.3
On August 8, 1997, Western State Hospital sent a report to the Seattle
Municipal Court and the Seattle City Attorney, stating in relevant part:
{Ho} was angry, hostile, labile, paranoid, exhibiting extremely loose
associations and mental disorganizations . . .. He was verbally and
physically threatening, and, within 24 hours of his hospitalization, had
assaulted two staff seriously enough that they had to be removed from duty,
and {Ho} had to be maintained in up to five point restraints for the
duration of his hospitalization.
. . . He should be civilly committed{.}
Clerk's Papers at 387-388.
By August 12, 1997, the City Attorney and Seattle Municipal Court had
received the report. And a King County Jail official had spoken with
someone at Western State Hospital before Dan Van Ho was released from jail
on August 13, 1997, and noted in jail records that Dan Van Ho was
dangerous.
The City Attorney's office misplaced Dan Van Ho's file for the pending
misdemeanor theft charges and competency hearing. As a result, the
assistant city
attorney assigned to the case went to court on August 12 unaware that a
competency hearing was scheduled, and unaware of the contents of the report
from Western State Hospital. The assistant city attorney, not being
prepared to proceed, moved to dismiss the pending theft charges. The pro
tem judge who was presiding over the hearing had misgivings about whether
Dan Van Ho was safe to be at large, based on the report from Western State
Hospital which was in the court file. Nevertheless, the pro tem judge
granted the City's motion and ordered that Dan Van Ho be released from jail
without conditions. On the following day, August 13, 1997, the jail
released Dan Van Ho without conditions -- neither the City nor County Jail
officials having taken any steps to have him civilly committed.
Unbeknownst to either the pro tem judge or the assistant city attorney, Dan
Van Ho had an extensive record of violent mental disturbance and criminal
activity. He had been convicted in Seattle Municipal Court of numerous
misdemeanors, some of them involving physical violence or the threat of
physical violence. He repeatedly had been given suspended sentences and
placed on probation with conditions, and had repeatedly violated those
conditions. But the violations were never reported to the Seattle
Municipal Court. The relevant history, insofar as this lawsuit is
concerned, is outlined below.
On July 13, 1995, Dan Van Ho pleaded guilty in Seattle Municipal Court to
assaulting his sister's son. He received a 365 day sentence, with 335 days
suspended, and was placed on 24 months probation to expire on July 13,
1997. The court imposed conditions of probation, including no further
criminal law violations, possession of no weapons, and compliance with a 2-
year no-contact order.
On August 2, 1995, Dan Van Ho was arrested again for violation of a no-
contact order in an incident where he also caused property damage. Charges
were filed in Seattle Municipal Court, where they were dismissed with
prejudice. And, on January 6, 1996, Dan Van Ho was again arrested and
charged with theft; these charges were also dismissed.
On February 22, 1996, Dan Van Ho was arrested for violating the no-contact
order that was entered on July 13, 1995. While he was detained at the King
County Jail, jail officials sent him to the Northwest Evaluation Treatment
Center for a civil commitment evaluation because a jail psychologist
concluded that he was psychotic and needed psychiatric treatment.
Dan Van Ho was subsequently involuntarily committed to Western State
Hospital, where, on June 15, 1996, he stabbed a hospital attendant. Dan
Van Ho was found competent to stand trial for that assault, and it was also
found that he "presented a greater than average risk of re-offense in the
near future." Clerk's Papers at 370. On November 14, 1996, Dan Van Ho
pleaded guilty to that assault in Pierce County, and was sentenced to 150
days time served and placed on 12 months of community supervision with the
State Department of Corrections. There is no evidence that the City of
Seattle attempted to revoke the July 13, 1995, 2-year probation despite
these subsequent criminal law violations, the weapons possessions, and the
violations of the no-contact order.
Approximately 6 months later, on May 23, 1997, Dan Van Ho was arrested
again and charged in Seattle Municipal Court with theft, vehicle prowling,
and property destruction. He pleaded guilty, and on June 6, 1997, the
court imposed a 1-year sentence, with 335 days suspended and 24 months
probation on condition of no further criminal law violations. Again, there
was no effort to revoke probation due to violations of conditions of
probation previously imposed.One month later, on June 23, 1997, Dan Van Ho
was charged with, and pleaded guilty to, theft and trespass charges in
Edmonds Municipal Court. He was released on a suspended sentence. There
is no evidence in the record showing that the City of Seattle's probation
department ever informed the Seattle Municipal Court of Dan Van Ho's
repeated violations of his two separate suspended sentences. Nor is there
evidence that any steps were taken by the City to revoke his probation.
Furthermore, there is no evidence that the City informed the State of any
of Dan Van Ho's additional convictions or any of the violations of his
suspended sentence conditions.
Finally, on July 7, 1997, Dan Van Ho was charged with the misdemeanor
theft charges in Seattle Municipal Court that were still pending on August
12, 1997. He was held for a time in the King County Jail pending trial
and, while the charges were still pending, he was sent to Western State
Hospital for a competency evaluation, where he assaulted two staff members
and was kept in restraints for the remainder of his stay. The hospital
then issued the aforementioned report, on August 8, 1997. And, as also
aforementioned, the City Attorney's office misplaced the file, the theft
charges were dismissed, and Dan Van Ho was released. He killed Stanley
Stevenson 12 days later.
This lawsuit was filed on April 10, 1998. On May 6, 1998, plaintiffs
served interrogatories and requests for production of documents on the
County and the City. On May 15, 1998, well before its deadline for
responding to the discovery documents, the County moved for dismissal of
all claims against it under CR 12(b)(6). Over the plaintiffs' objections
that the motion was premature pending any response whatsoever to the
outstanding discovery, the trial court granted the County's motion to
dismiss, on June 12, 1998.
The City responded in part to the plaintiffs' interrogatories and requests
for production, providing documents that showed that the King County Jail
regularly screened inmates for mental competency, that jail staff conducted
mental health competency exams, that jail personnel sometimes referred
inmates for commitment evaluation regardless of the status of criminal
charges against them, but that sometimes referrals were not made even when
jail staff thought they ought to be made because there were so many 'road
blocks' imposed by the County Designated Mental Health Professionals. The
City also produced evidence that the County Jail had "many violent
confrontations" with Dan Van Ho, which required the use of pepper spray.
However, the City declined to answer plaintiffs' questions requesting
information and documents relating to Dan Van Ho's probation status, and to
answer any questions or provide any documents relating to the City's
probation policies and practices.
On July 23, 1998, the City moved, pursuant to CR 12(b)(6), to dismiss
all of the claims against it except for the negligent supervision of a
probationer claim, and moved for summary judgment with respect to that
claim. Plaintiffs opposed the City's motions, objected to the City's
failure to produce discovery related to the probation issues, and moved for
a continuance in order to conduct discovery on those issues. At the same
time, plaintiffs moved for reconsideration of the dismissal of the claims
against the County, pointing to discovery documents produced by the City
relating to knowledge the County Jail had with respect to the danger posed
by Dan Van Ho and with respect to the County's policies and procedures
regarding mental commitment issues.
The trial court denied plaintiffs' motion for reconsideration of its
dismissal of all claims against the County. The trial court then entered
an order granting the City's motion for summary judgment and the City's
motion to dismiss pursuant to CR 12(b)(6). The trial court also entered an
order denying plaintiffs' motion for a continuance and additional
discovery. Lastly, the trial court entered orders for final judgment
pursuant to CR 54, in favor of both the City and the County. On appeal,
plaintiffs contend that all but one of these dismissals were in error --
during oral argument for this appeal, plaintiffs withdrew the claim that
the City was liable for failing to properly train its pro tem judges with
respect to mental commitment procedures. Accordingly, we will not consider
that claim.
DISCUSSION
Standards of Review
A trial court's dismissal under CR 12(b)(6) involves a question of law
which is reviewed de novo. Such a dismissal is appropriate only if it
appears beyond a doubt that the plaintiff cannot prove any set of facts
that would justify recovery. Tenore v. AT&T Wireless Servs., 136 Wn.2d
322, 329-30, 962 P.2d 104 (1998) (citing Hoffer v. State, 110 Wn.2d 415,
420, 755 P.2d 781 (1988), aff'd, 113 Wn.2d 148, 776 P.2d 963 (1989); Bravo
v. Dolsen Co., 125 Wn.2d 745, 750, 888 P.2d 147 (1995)). For purposes of
review of a dismissal under CR 12(b)(6) a plaintiff's allegations are
presumed to be true. Tenore, 136 Wn.2d at 330. In deciding the motion, a
court may consider hypothetical facts not included in the record. Id.
Motions under CR 12(b)(6) should be granted sparingly and only in the
unusual case in which a plaintiff includes allegations that show on the
face of the complaint that there is some insurmountable bar to relief. Id.
Summary judgment is proper if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." CR 56(c).
In reviewing an order of summary judgment, this court engages in the same
inquiry as the trial court. Our Lady of Lourdes Hosp. v. Franklin County,
120 Wn.2d 439, 451, 842 P.2d 956 (1993). All facts and reasonable
inferences from the facts are considered in the light most favorable to the
nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125
Wn.2d 337, 341, 883 P.2d 1383 (1994). Questions of law are reviewed de
novo. Id.
Claims Against the County
A. King County's Duties under the Restatement (Second) of Torts, sec.sec.
315, 319
Plaintiffs contend that King County had a duty to them, pursuant to
Restatement (Second) of Torts sec.sec. 315, 319, to exercise reasonable
care to control Dan Van Ho and prevent him from causing harm.
Specifically, plaintiffs argue that King County Jail employees had a duty
to refer Dan Van Ho for civil commitment, rather than releasing him the day
following the Municipal Court's order to do so, because jail personnel were
aware of Dan Van Ho's dangerous propensities.
The trial court did not have the benefit of the Washington State Supreme
Court's recent opinions in Bishop v. Miche, 137 Wn.2d 518, 973 P.2d 465
(1999) and Hertog v. City of Seattle, 138 Wn.2d 265, 979 P.2d 400 (1999)
when it made its rulings. These two opinions clarify the proper analysis
for negligence actions against third party governmental actors. In Bishop,
the court held that a County probation officer owed a duty to use
reasonable care to control a probationer who had received a suspended
sentence for driving while under the influence of alcohol, so as to prevent
reasonably foreseeable harm to others. Bishop, 137 Wn.2d at 531.
Similarly, in Hertog, the court held that municipal probation counselors,
county pretrial release counselors who have supervisory authority, and
their employing agencies have a duty to protect others from reasonably
foreseeable danger resulting from the dangerous propensities of
probationers and pretrial releasees under their supervision. Hertog, 138
Wn.2d at 275. Both Bishop and Hertog applied the following analysis from
the Restatement (Second) of Torts.
The existence of a duty is a question of law. Schooley v. Pinch's Deli
Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Whether a person
has a duty to control the conduct of third persons to prevent harm to
others is assessed by standards set forth in the Restatement (Second) of
Torts:
There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives
to the other a right to protection.
Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983) (quoting
Restatement (Second) of Torts sec. 315 (1965)). Section 315 states an
exception to the common law rule that one has no duty to prevent a third
party from causing harm to another. Taggart v. State, 118 Wn.2d 195, 218,
822 P.2d 243 (1992). This special relation exception is also an exception
to the public duty doctrine. Hertog, 138 Wn.2d at 407 (citing Taggart, 118
Wn.2d at 219 n. 4).
Restatement (Second) of Torts sec.319 provides: "One who takes charge of a
third person whom he knows or should know to be likely to cause bodily harm
to others if not controlled is under a duty to exercise reasonable care to
control the third person to prevent him from doing such harm."
The relevant questions for purposes of sections 315 and 319 of the
Restatement (Second) of Torts are whether the actor has taken charge of the
third party and whether the actor knows or should know of the danger posed
by the third party. Bishop, 137 Wn.2d at 527. Neither a custodial nor a
continuous relationship is required to trigger the duty to protect others.
Taggart, 118 Wn.2d at 223.
King County concedes that it had control over Dan Van Ho while he was in
its physical custody. King County Jail officials received a telephone
warning from Western State Hospital and made a notation in jail records
that Dan Van Ho was dangerous. King County Jail officials also had
independent knowledge of Dan Van Ho's dangerous propensities, based on
their own experience with him when he had to be controlled with pepper
spray. Dan Van Ho had committed acts of violence in the jail, and the jail
had successfully referred him for civil commitment in the past when its
psychiatric staff determined that he was dangerous and psychotic.
Furthermore, the record indicates that the County sometimes detains people
and has them civilly committed, regardless of the status of their criminal
cases.
Nonetheless, the County argues that it did not have control over Dan Van Ho
once the Municipal Court ordered his release.4 The record is silent
regarding the County Jail's system for screening mentally ill criminal
defendants, and how it determined who should be referred for civil
commitment, because the trial court dismissed the claims against the County
under CR 12(b)(6) before the County was required to respond to discovery.
Information produced by the City indicates that such referrals have been
made after a defendant was ordered released by a court, however. Moreover,
the County Jail retained control of Dan Van Ho until the day following the
entry of the court's order. There is also evidence that jail officials
were sometimes reluctant to refer inmates for civil commitment due to 'road
blocks' placed by County mental health professionals.
We agree with plaintiffs that the trial court's dismissal of the claims
against the County must be reversed in light of the Supreme Court's holding
in Hertog. There, the guardian ad litem for a 6-year-old girl raped by a
probationer on pretrial release brought a negligence action against the
City of Seattle and King County, claiming that a City probation counselor
and a County pretrial release counselor negligently supervised the
probationer. The Hertog court ruled that a duty will be imposed, under
sec. 315 of the Restatement (Second) of Torts, "only where there is a
'definite, established and continuing relationship between the defendant
and the third party.'" 138 Wn.2d at 276 (citing Taggart, 118 Wn.2d at
219). There is some evidence in the record that the King County Jail had
such a relationship with Dan Van Ho -- who had been in the jail many times,
who had resided in the jail for several months before and after his
referral to Western State Hospital for the competency evaluation, who had
been successfully civilly committed from the jail in the past, and who was
recognized by jail officials to have exhibited psychotic behavior and to be
dangerous to others. And notably, in light of the County's claim that its
duty to control Dan Van Ho expired once the court ordered his release, the
Court in Hertog concluded that the fact that a probation counselor must
seek revocation through a court does not preclude existence of duty. 138
Wn.2d at 275. By analogy, the fact that jail personnel could only refer
Dan Van Ho for commitment through the County Designated Mental Health
Professional does not lessen its duty to do so under certain circumstances.
Moreover, it is clear that the jail retained custody of Dan Van Ho until
the day following the entry of the court's release order.
Plaintiffs also cite Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983)
as analogous to the claims against the County. Petersen involved a
negligence claim brought by a plaintiff who had been injured in an
automobile accident where the other driver had been recently released from
a State psychiatric hospital and was under the influence of drugs. There
the court held that a special relationship exists between a State
psychiatrist and his or her patient such that when the psychiatrist
determines or should determine that the patient presents a reasonably
foreseeable risk of serious harm to others, the psychiatrist has a duty to
take reasonable precautions to protect anyone who might foreseeably be
endangered. Petersen, 100 Wn.2d at 428. The Petersen court concluded that
the psychiatrist breached the duty owed, by failing to petition the court
for a 90-day commitment or to take other reasonable precautions to protect
those who might be foreseeably endangered by the patient's drug-related
mental problems. Id. at 428-29.
Plaintiffs argue persuasively that the theories of liability that were
successful in Hertog and Petersen are analogous to their claims against the
County: that jail officials have a duty, under the Restatement (Second) of
Torts sec.sec. 315, 319, to refer inmates or pretrial detainees with known
dangerous propensities for a mental health evaluation for civil commitment.
Conversely, King County asserts that Walker v. State, 60 Wn. App. 624, 806
P.2d 249 (1991), held that such a duty does not exist in Washington.
In Walker, the plaintiffs sued Western State Hospital for failing to
petition the trial court for involuntary commitment of a defendant, when
the defendant had been returned to jail following a competency evaluation
where he was found competent to stand trial but dangerous, and then
released on his own recognizance by the trial court. The appellate court
concluded that the hospital did not owe a duty to the plaintiffs because
Mr. Walker was not the hospital's patient, nor was he within the hospital's
control once the court released him. Walker, 60 Wn. App. at 629. We first
observe that Walker, although decided after Petersen, was decided before
Taggert, Bishop, and Hertog. Moreover, the Walker court relied heavily on
Metlow v. Spokane Alcoholic Rehabilitation Ctr., Inc., 55 Wn. App. 845,
848, 781 P.2d 498 (1989). Our Supreme Court had this to say about Metlow,
in Bishop, 137 Wn.2d at 528 n.1: 'Metlow is inconsistent with our decision
in Taggart, which it predated. Taggart holds that a custodial relationship
is not required. In light of Taggart, Metlow is not persuasive.' We find
Walker similarly unpersuasive for the same reasons.
Furthermore, the County fails to articulate any basis for this court to
conclude that the Restatement-based duty of persons with control over
dangerous third parties to protect foreseeable victims from the third
parties' known dangerous propensities, as applied in Taggart, Hertog,
Bishop and Petersen does not apply to jails and their employees. Although
it is true that the County Jail had no control over Dan Van Ho 12 days
after it released him, this begs the question of whether the jail had a
duty to petition the appropriate county mental health professionals to have
Dan Van Ho held involuntarily for evaluation for civil commitment, instead
of releasing him to roam the streets of Seattle. Viewing the facts alleged
by plaintiffs and the reasonable inferences therefrom as true, as we must
in reviewing a CR 12(b)(6) dismissal, plaintiffs have stated viable
theories of liability against the County under Petersen, Taggart, Bishop
and Hertog -- not only for failing to seek civil commitment of Dan Van Ho
but for failing to adequately train and supervise County employees with
respect to civil commitment policies and procedures.
Finally, King County contends that, as a public agency, the King County
Jail and its employees are immune under RCW 71.05.120 for their decisions
regarding civil commitments. RCW 71.05.120, Washington's civil commitment
statute, provides in pertinent part:
(1) No officer of a public or private agency, nor . . . a unit of local
government, . . . shall be civilly or criminally liable for performing
duties pursuant to this chapter with regard to the decision of whether to
admit, release, administer antipsychotic medications, or detain a person
for evaluation and treatment: Provided, that such duties were performed in
good faith and without gross negligence.
Because there is no evidence in the record regarding why Dan Van Ho was
not civilly committed, or what the King County Jail procedures are related
to civil commitments, the record is insufficient to support the conclusion
that the County's conduct was not grossly negligent or performed in bad
faith. In the absence of discovery on these issues, it cannot be
determined what immunity, if any, exists for the County under RCW
71.05.120. CR12(b)(6) cannot properly be used both as a shield against
proper discovery and a sword to obtain dismissal on the ground of lack of
evidence of gross negligence or bad faith.
Accordingly, we reverse the trial court order dismissing King County, and
the order denying reconsideration and entering final judgment, because (1)
plaintiffs were improperly precluded from conducting reasonable discovery;
(2) the record shows that King County had control of Dan Van Ho, and case
law establishes that it had a duty to take reasonable care to protect
others from reasonably foreseeable harm resulting from known dangerous
propensities under the Restatement (Second) of Torts sec.sec. 315, 319; and
(3) the County's claim of statutory immunity cannot be evaluated without
reasonable discovery.
B. Proximate Cause In Negligence Claims Against King County
Plaintiffs also contend that dismissal of its claims against the County
under CR 12(b)(6) was improper because a jury could reasonably find that
the County proximately caused Stevenson's death by its failure to refer Dan
Van Ho for civil commitment. Plaintiffs maintain that if the County had
referred Dan Van Ho for commitment he would have been in the hospital
rather than free to kill Mr. Stevenson on August 24, 1997.
To establish a tort claim for negligence, plaintiffs must demonstrate
(1) the existence of a duty to the complaining party; (2) a breach of that
duty; and (3) an injury proximately caused by that breach. Ruff v. King
County, 125 Wn.2d 697, 704, 887 P.2d 886 (1995).
The County contends that dismissal was proper because even if plaintiffs
can establish that the County breached a duty, they cannot show that Mr.
Stevenson's death was proximately caused by that breach. "A cause is
'proximate' only if it is both a cause in fact and a legal cause." Gall v.
McDonald Indus., 84 Wn. App. 194, 207, 926 P.2d 934 (1996).
To establish cause in fact in a negligence suit there must be substantial
evidence that some act or omission of the defendant produced injury to the
plaintiff in a direct, unbroken sequence under circumstances where the
injury would not have occurred but for the defendant's act or omission.
Tyner v. State, 92 Wn. App. 504, 514, 963 P.2d 215 (1998), review granted,
137 Wn.2d 1020 (1999) (citing Hartley v. State, 103 Wn.2d 768, 778, 698
P.2d 77 (1985)). This factual aspect of proximate cause is generally a
matter for the jury, unless only one reasonable conclusion is possible.
Id.
"The focus in the legal causation analysis is whether, as a matter of
policy, the connection between the ultimate result and the act of the
defendant is too remote or insubstantial to impose liability." Schooley v.
Pinch's Deli Market, 134 Wn.2d 468, 478-79, 951 P.2d 749 (1998). This
determination depends upon "mixed considerations of logic, common sense,
justice, policy, and precedent." Id. at 479 (citation omitted); Tyner, 92
Wn. App. at 515 (citing Taggart, 118 Wn.2d at 226). Legal causation "rests
on considerations of policy and common sense as to how far the defendant's
responsibility for the consequences of its actions should extend." Id.;
Hartley, 103 Wn.2d at 779.
Legal causation is intertwined with the question of duty. Taggart, 118
Wn.2d at 226; Hartley, 103 Wn.2d at 779-80, (quoting William L. Prosser,
Handbook of the Law of Torts 244-45 (4th ed.1971)). While the same policy
considerations may be relevant to both elements, existence of a duty does
not automatically satisfy the requirement of legal causation. Schooley,
134 Wn.2d at 479. Where a special relationship exists based upon taking
charge of a third party, the defendant's ability and duty to control the
third party indicates that the defendant's actions in failing to meet that
duty are not too remote to impose liability. See generally McCoy v.
American Suzuki Motor Corp., 136 Wn.2d 350, 360, 961 P.2d 952 (1998).
The County contends that plaintiffs cannot show "cause in fact." The
County cites Hartley, supra, in support of this claim. Hartley involved a
wrongful death action for a woman who was killed in a car collision with an
automobile driven by an intoxicated person. Ms. Hartley's estate argued
that Washington State and Pierce County were liable for their failure to
revoke the person's driver's license where the intoxicated driver was
subject to revocation of his license. The court found that the failure of
the government to revoke the license was too remote and insubstantial
because, as a habitual traffic offender, the revocation of that driver's
license had not kept him from driving on several previous occasions.
Hartley is distinguishable from the case at bar. In Hartley, the
alleged negligent government action -- failure to revoke a license -- could
not reasonably be expected to inhibit, let alone prevent, the harm caused
to Ms. Hartley. By contrast, the record strongly indicates that had King
County Jail personnel referred Dan Van Ho for civil commitment, he would
have been in a hospital on the day that he killed Stanley Stevenson.
Experts at Western State Hospital opined that Dan Van Ho was paranoid, very
dangerous to the safety of others, and should be civilly committed.
Furthermore, the County has not argued any policy grounds that would weigh
against finding legal causation. As discussed above, plaintiffs set forth
a cognizable claim that the County had a duty under the Restatement.
Accordingly, considerations of policy and common sense dictate that the
County's actions in failing to meet that duty are not too remote to impose
liability.
Claims Against the City of Seattle
A. Negligent Supervision of a Probationer
The City of Seattle maintains that plaintiffs' claim for negligent
supervision of a probationer fails because the City did not have an
obligation to supervise Dan Van Ho. The City states that because Dan Van
Ho was not specifically ordered to be on "supervised probation," the
Municipal Court orders that specifically ordered "probation" with
conditions did not impose any responsibilities on the City to respond to
Dan Van Ho's repeated probation violations. Consistent with this argument,
the City declined to answer plaintiffs' discovery requests for information
and documents relating to Dan Van Ho's probation status and questions
relating to the City's probation policies and practices.
As a result of the City's refusal to respond to plaintiffs' discovery
requests, the record does not contain sufficient facts pertaining to this
issue to enable this court to determine what duties the City may have had
in regard to Dan Van Ho's probation status, and whether or not the City's
probation staff may have been negligent in failing to report Dan Van Ho's
criminal activities and probation violations to the Municipal Court.The
record does show however that, as a result of Dan Van Ho's multiple crimes,
several sentencing orders were entered that appear to require activity by
City probation officials. These orders are summarized as follows: Dan Van
Ho was sentenced to 24-months probation with conditions on July 7, 1995.
Dan Van Ho was subsequently arrested three times, in violation of various
conditions of his probation -- yet it was not revoked. Again, on June 15,
1996, Dan Van Ho was arrested and sentenced to 12-months community
supervision. And on May 23, 1997, Dan Van Ho was arrested again and
sentenced to an additional 24-months probation. Dan Van Ho was also
arrested on June 23, 1997, and received only a suspended sentence.
Finally, Dan Van Ho was arrested on July 7, 1997, and again was released in
spite of his violations of two conditional probations, a community
supervision order, and a suspended sentence. Despite Dan Van Ho's
extensive criminal history, the record does not reflect that the City's
probation department reported these violations to the Municipal Court or
that it ever took steps to revoke Dan Van Ho's suspended sentences.
It is therefore unclear from the record -- and should be a matter for
additional discovery following our remand -- what is intended by Seattle
Municipal Court orders placing a defendant on supervised probation,
probation with conditions but without supervision, or unsupervised
probation. Specifically, the questions to be addressed are (1) what does
the court expect when it sets those terms, (2) what should the court get
from probation departments when conditions of probation are violated, and
(3) what are the differences in terms of supervisory and reporting
responsibility of the probation officers with each type of probation.
Plaintiffs' requests for information and documents relating to Dan Van Ho's
probation status and questions relating to the City's probation policies
and practices were reasonably calculated to obtain information necessary to
understand this situation. Although the City won dismissal of this claim
by way of summary judgment, by refusing to respond to these legitimate
discovery requests the City left the record in the state more generally
seen in reviews of dismissals under CR 12(b)(6), insofar as this claim is
concerned. The City cannot properly both refuse to respond to discovery
with respect to a given issue and then claim that the record fails to raise
any genuine issues of material fact under the summary judgment standard as
to that issue. Accordingly, we elect to review this claim under the
standard applicable to reviews of CR 12(b)(6) dismissals. We find nothing
on the face of the complaint that serves as an insurmountable bar to
relief. Moreover, under the standard applicable to summary judgments, the
record is insufficient to show that the City is entitled to judgment as a
matter of law on this claim. The trial court should have either denied
summary judgment altogether on this claim on that basis or granted the
plaintiffs the continuance they requested in order to obtain additional
discovery from the City, before ruling on the motion. Accordingly, we
reverse the summary judgment dismissing the plaintiffs' claim for negligent
supervision of a probationer, and remand for additional discovery and such
further proceedings as shall thereafter be consistent with this ruling and
existing case law regarding liability for failure to properly supervise
probationers.
B. Prosecutorial Immunity
Plaintiffs contend that the Seattle City Attorney had a duty to Stevenson,
pursuant to Restatement (Second) of Torts sec.sec. 315, 319, to exercise
reasonable care to control Dan Van Ho and prevent him from causing harm.
Specifically, plaintiffs argue under the Restatement, the City Attorney had
a duty to refer Dan Van Ho for civil commitment, either during or after Dan
Van Ho's August 12, 1997 hearing, because the City Attorney knew or should
have known of Dan Van Ho's dangerous propensities by virtue of the Western
State hospital report. In making this claim, plaintiffs argue that the
City Attorney is not immune as a prosecutor because initiating civil
commitment proceedings is not one of the core functions of a prosecutor --
cannot be, because others who are not prosecutors can do the same thing --
and because the prosecutor is a 'peace officer' within the meaning of RCW
71.05.150, which provides that any peace officer may take or cause a person
to be taken into custody and delivered to an evaluation and treatment
facility when he or she has reasonable cause to believe that the person is
suffering from a mental disorder and presents imminent likelihood of
serious harm to himself or others. Plaintiffs contend, in sum, that
actions relating to the initiation of civil commitment proceedings are
administrative, non-prosecutorial functions and thus are not immune.
We are not persuaded by these arguments. The City Attorney's actions as a
prosecutor are shielded by absolute immunity from tort liability. Anderson
v. Manley, 181 Wash. 327, 331, 43 P.2d 39 (1935); Gilliam v. D.S.H.S., 89
Wn. App. 569, 582, 950 P.2d 20 ("Public prosecutors enjoy absolute judicial
process immunity for their advocacy functions{.}") review denied, 135 Wn.2d
1015 (1998). Also, a prosecutor's absolute immunity from tort liability
extends to the governmental employer. Creelman v. Svenning, 67 Wn.2d 882,
410 P.2d 606 (1966).
The United States Supreme Court, in Kalina v. Fletcher, 522 U.S. 118 S. Ct.
502, 139 L. Ed. 2d 471 (1997), recently affirmed the scope of prosecutorial
immunity: "'{A}cts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in the
course of his role as an advocate for the State are entitled to the
protections of absolute immunity.'" Kalina, 118 S. Ct. at 507, quoting
Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed 2d
209 (1993).
This court decided, in Collins v. King County, 49 Wn. App. 264, 742 P.2d
185 (1987), overruled on other grounds by Lutheran Day Care v. Snohomish
County, 119 Wn.2d 91, 829 P.2d 746 (1992) that prosecutorial immunity
barred a claim based upon allegations that a non-attorney staff person in
the Victim Assistance Unit (VAU) of the prosecutor's office made erroneous,
negligent representations to a victim. The plaintiffs in Collins argued
that the VAU was not a traditional prosecutorial function and, therefore,
prosecutorial immunity did not apply. Collins, 49 Wn. App. at 271. This
court rejected that argument because state law expressly authorized the
formation of the VAU in the prosecutor's office, and the staff person was,
therefore, carrying out a mandated function of the prosecuting attorney.
Id. at 272.
Here, plaintiffs argue that RCW 71.05.155 gave the City Attorney the power
to request an evaluation by a County Designated Mental Health Professional.
Under Collins, the fact that the Legislature granted this power makes the
exercise of that statutory power a prosecutorial function that is immune.
Furthermore, if the City Attorney had asked the court to detain Dan Van Ho
for a mental health evaluation, he would have been relying solely on the
Western State Hospital report, which he received in his role as a
prosecutor -- such reports being confidential except as to courts,
prosecutors and others directly involved in the process of dealing with the
mentally ill. Accordingly, the City Attorney could only perform that
function, during or after the Municipal Court hearing, in his capacity as a
prosecuting attorney.
We are not persuaded that the analysis is different because 'peace
officers' in the traditional sense of that term are given authority to
deliver persons for evaluation by designated County mental health
professionals. Indeed, RCW 71.05.120 provides such peace officers with
limited immunity from civil liability for decisions whether to detain
persons for evaluation and treatment.
Finally, Stevenson contends that the trial court should be reversed because
it did not conduct a detailed factual inquiry into the issue of
prosecutorial immunity (citing Lutheran Day Care v. Snohomish County,
supra). However, the absence of such evidence is not reversible error if
the trial court reached the correct decision. Hannum v. Friedt, 88 Wn.
App. 881, 889-90, 947 P.2d 760 (1997). The trial court reached the right
decision with respect to prosecutorial immunity.
C. City's Duty to Train and Supervise Assistant City Attorneys
Lastly, plaintiffs argue that the City can be found liable for negligently
failing to train its assistant city attorneys on issues related to civil
commitment. First, this claim fails because there is no statutory duty to
train assistant city attorneys on any legal issue. Second, it fails
because, under the public duty doctrine, there is no common law duty to
train assistant city attorneys. The public duty doctrine provides that "no
liability may be imposed for a public official's negligent conduct unless
it is shown that 'the duty breached was owed to the injured person as an
individual and was not merely the breach of an obligation owed to the
public in general (i.e., a duty to all is a duty to no one).'" Taylor v.
Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988) (quoting
J & B Dev. Co. v. King County, 100 Wn.2d 299, 304, 669 P.2d 468, 41
A.L.R.4th 86 (1983) (overruled in Taylor)).
SUMMARY OF RULINGS
In sum, we reverse the trial court's dismissal of plaintiffs' claims
against the County. We also reverse the trial court's dismissal of
plaintiffs' claim of negligent supervision of a probationer against the
City. We affirm the dismissal of the remaining claims against the City.
We remand for further discovery and for such proceedings following
discovery as shall be consistent with this decision and applicable law.
WE CONCUR:
1 Dan Van Ho was subsequently found not guilty of Stevenson's death by
reason of insanity.
2 Plaintiffs' claims against the State of Washington were scheduled for
trial; however a stay of those proceedings was subsequently entered pending
the outcome of this appeal.
3 During an earlier stay at Western State Hospital, Dan Van Ho had stabbed
another staff member, resulting in a conviction in Pierce County for felony
assault. As of August 12, 1997, Dan Van Ho was still on community
supervision for the felony assault.
4 During oral argument for this appeal, for purposes of clarification, we
asked the County to explain what it was, or was not, abandoning with
respect to its supplemental authorities filed on June 1, 1999, in which it
abandoned its alternative public duty doctrine argument set forth in sec.
III(f) of its brief. In response, the County conceded that the special
relationship exception to the public duty doctrine applies generally to the
County Jail. However, the County asserted that its fundamental argument
was that that theory of liability does not apply in this case because the
harm complained of occurred after the jail's duty to control Dan Van Ho
expired as a function of the court's order to release him.