The opinion
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JANET G. HUSTED as Personal
Representative of the ESTATE OF No. 71662-0-
KURT HUSTED; WILBERT R. PINA,
an individual; and JOEL FLORES,
guardian ad litem for minor
EMMETT PINA; ORDER GRANTING MOTION TO
AMEND AND MOTION TO PUBLISH
Appellants, AND WITHDRAWING AND
REPLACING OPINION
v.
STATE OF WASHINGTON,
Respondent.
A motion to amend and a motion to publish was filed by respondent, State of
Washington asking the court to amend the opinion filed in this case on March 16, 2015.
Appellants filed an opposition to the respondent's motion to publish. The panel has
considered the motions and determined they should be granted.
Now, therefore, it is hereby
ORDERED that the motion to amend and the motion to publish are granted and
the opinion of this court filed March 16, 2015 is withdrawn and replaced with a revised
opinion.
SO ORDERED
on
Dated this ll^ day of_JT\M_ ,2015.
FOR THE COURT:
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JANET G. HUSTED as Personal
Representative of the ESTATE OF No. 71662-0-1
CO o
KURT HUSTED; WILBERT R. PINA, en
an individual; and JOEL FLORES, DIVISION ONE
guardian ad litem for minor
EMMETT PINA;
Appellants, PUBLISHED OPINION
STATE OF WASHINGTON,
Respondent. FILED: May 11. 2015
Spearman, C.J. — This appeal arises from entry of summary judgment in an
action for negligent supervision of an offender, Calvin Finley, by the Department of
Corrections (DOC). Appellants contend the trial court erred in concluding that, as a
matter of law, DOC had no duty to control the offender once he absconded from
supervision and a warrant was issued for his arrest. Finding no error, we affirm.1
FACTS
On September 1, 2006, Calvin Finley was convicted of a violation of a
domestic violence court order in Pierce County and sentenced to 15 months
confinement and 9 to 18 months of community custody. After his release from the
1 In light of our disposition of the case, we do not address the issues of qualified immunity and
proximate cause.
No. 71662-0-1/2
Pierce County Jail on March 1, 2007, he reported to DOC for supervision, as
required by his judgment and sentence. Over the course of the next year and a
half, Finley repeatedly violated the terms of his supervision. He was found guilty of
several violations, sanctioned repeatedly, and eventually remanded to the Kitsap
County Jail.
While Finley was in jail, DOC filed another violation report, charging Finley with
eleven separate violations. DOC requested the hearing officer to impose 240 days
confinement as a sanction. A hearing was held on October 15, 2008, and Finley was
found guilty of seven violations and sanctioned with 200 days confinement. Finley was
ordered to report for supervision within one business day of his release from jail.
Finley was released on Saturday, February 14, 2009. According to the
terms of his supervision, he was to report to DOC on the next business day,
Tuesday, February 17, 2009. He failed to do so. A DOC officer immediately
requested a Secretary's Warrant for his arrest and attempted to ascertain his
whereabouts. However, the officer was unable to locate Finley, who remained a
fugitive until June 2, 2009.
On June 2, 2009, Finley robbed an armored car at the Lakewood,
Washington Walmart store. During the course of the robbery, Finley shot and killed
Kurt Husted and injured Wilbert Pina. He was subsequently apprehended and
found guilty of various crimes and community custody violations. He was
sanctioned with 120 days confinement for the community custody violations. And,
on March 19, 2010, Finley plead guilty to the following crimes: aggravated first
degree murder; assault in the first degree; robbery in the first degree; criminal
No. 71662-0-1/3
solicitation to commit robbery in the first degree; and unlawful possession of a
firearm in the first degree.
On May 16, 2012, appellants Janet G. Husted and Wilbert Pina initiated this
action against the State of Washington in Pierce County Superior Court, alleging
that DOC was negligent in its supervision of Finley and, as a result, the State is
liable for the injuries he inflicted during the June 2, 2009 robbery committed by
Finley. The State moved for summary judgment that it had no duty to control Finley
at the time he caused the death of Husted and injuries to Pina. The trial court
agreed and entered judgment for the State. Husted and Pina appeal.
DISCUSSION
Because this appeal arises from the trial court's entry of summary judgment,
we review de novo, making the same inquiry as the trial court, i.e., summary
judgment is proper when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Hertog, ex rel. S.A.H. v. City of
Seattle. 138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing Taqqart v. State. 118
Wn.2d 195, 199, 822 P.2d 243 (1992); CR 56(c)). We construe all facts and
reasonable inferences from the facts in the light most favorable to the nonmoving
party. Id. (citing Taqqart. 118 Wn.2d at 199). Questions of law are reviewed de novo.
Sherman v. State. 128 Wn.2d 164, 183, 905 P.2d 355 (1995).
Summary judgment is subject to a burden-shifting scheme. Ranger Ins. Co. v.
Pierce Cntv.. 164 Wn.2d 545, 552, 192 P.3d 886 (2008).The initial burden to show
the nonexistence of a genuine issue of material fact is on the moving party. Id.; see
also Vallandiqham v. Clover Park School Dist. No. 400. 154Wn.2d 16,26, 109 P.3d
No. 71662-0-1/4
805 (2005). For example, a defendant may move for summary judgment by showing
that there is an absence of evidence to support the plaintiff's case. Sliqarv. Odell.
156 Wn. App. 720, 725, 233 P.3d 914 (2010) (citing Young v. Key Pharm., Inc.. 112
Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). Once this initial showing is made, the
inquiry shifts to the plaintiff because the plaintiff bears the burden of proof at trial. Id.
at 725.
In order to make a prima facie case for negligence, Appellants, as plaintiffs,
bore the burden of first establishing the existence of a duty owed them by the State.
Hertog, 138 Wn.2d at 275 (citing Degel v. Maiestic Mobile Manor, Inc.. 129 Wn.2d 43,
48, 914 P.2d 728 (1996)). The State moved for summary judgment, arguing that
Appellants failed to do so.
The parties agree that under Taggart and its progeny, DOC officers and the
State have a duty to control the behavior of persons committed to DOC for
supervision. The dispute hinges on whether those cases also dictate that the State's
duty extends to an offender who absconds supervision, has no contact with his
community corrections officer, and for whom a warrant has been issued for his or
her arrest. The State contends that under these circumstances the duty is
suspended until the offender is apprehended. Husted and Pina argue the duty
continues at all times until the State's duty to supervise the offender is terminated or
modified in some material way. We conclude that under the facts of this case, the
State had no such duty and affirm.
In Taggart. our supreme court recognized an exception to the common law rule
that a person has no duty to prevent another person from causing physical injury to
No. 71662-0-1/5
another. Taggart, 118 Wn.2d at 219-20. The exception to the common law rule is set
forth in Restatement (Second) of Torts, §§ 315 and 319. Section 315(a) states in
relevant part:
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
persons conduct. . . .
The court specifically adopted one class of the "special relation" cases described
in § 319 as most relevant to the relationship between parole officer and parolee.2 Id. at
219. Section 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 Taggart court held that to "take charge" of a third person as that term is
used in § 319 means to have a "'definite, established and continuing relationship
between the defendant and the third party.'" kl (quoting Honcoop v. State, 111
Wn.2d 182, 193, 759 P.2d 1188 (1988)). The court determined that such a
relationship existed between parole officers and parolees based on RCW
72.04A.080, which states that parolees "'shall be subject to the supervision of the
department of corrections, and the probation and parole officer of the department
2 The terms "parole officer" and "parolee" are generally associated with cases arising before
enactment of the Sentencing Reform Act (SRA) or with opinions from courts in other jurisdictions. Under
the SRA, the term "offender" is generally used to refer to individuals under the supervision of DOC while on
parole, probation, community supervision, or community custody, while the term "community corrections
officer" (CCO) refers to DOC officers who supervise sentenced offenders and monitor sentence conditions.
See former RCW 9.94A.720(1 )(a) and (b) (2009). For purposes of this opinion, the terms "parole officer"
and "parolee" are interchangeable, respectively, with the terms "community corrections officer" and
"offender."
No. 71662-0-1/6
shall be charged with ... giv[ing] guidance and supervision to such parolees within
the conditions of a parolee's release from custody.'"3 Id. (quoting RCW
72.04A.080). Under this statute, the State could, among other things, regulate the
parolee's movements within the state, require the parolees to report, impose special
conditions such as refraining from alcohol or undergoing drug rehabilitation or
psychiatric treatment, and order parolees not to possess firearms. Further, under
the statute, parole officers are or should be aware of their parolee's criminal
histories and monitor or should monitor, their parolee's progress. The Taggart court
concluded that "[bjecause of these factors ... parole officers have 'taken charge' of
the parolees they supervise for purposes of § 319." Taggart, 118 Wn.2d at 220.
Thus, "the 'take charge' aspect of special relationship liability became a term of art
incorporating the kinds of attributes described in Taggart." Sheikh v. Choe, 156
Wn.2d 441, 449, 128 P.3d 574 (2006).
3 RCW 72.04A.080, which Taqqart found created the take charge relationship between the parole
officer and the parolee, is inapplicable to felonies committed on or after July 1, 1984, the effective date of
the SRA. The authority of DOC officers to supervise and monitor felony offenders was recodified under
RCW 9.94A.700 et seq., effective date July 1, 1984. See, Estate of Davis v. State, Dept. of Corrections,
127 Wn. App. 833, 842-43, 113 P.3d 487 (2005). Laws of 2008, ch. 9.94A, § 720 RCW (repealed August
1, 2009) provides in relevant part:
(1)(a) Except as provided in RCW 9.94A.501, all offenders sentenced to terms
involving community supervision, community restitution, community placement,
or community custody shall be under the supervision of the department and shall
follow explicitly the instructions and conditions of the department. The
department may require an offender to perform affirmative acts it deems
appropriate to monitor compliance with the conditions of the sentence imposed.
The department may only supervise the offender's compliance with payment of
legal financial obligations during any period in which the department is authorized
to supervise the offender in the community under RCW 9.94A.501.
(b) The instructions shall include, at a minimum, reporting as directed to
a community corrections officer, remaining within prescribed geographical
boundaries, notifying the community corrections officer of any change in the
offender's address or employment, and paying the supervision fee assessment.
No. 71662-0-1/7
In this case, it is undisputed that DOC "took charge" of Finley within the
meaning of § 319 when he reported for supervision in 2007, as required by his 2006
judgment and sentence. RCW 9.94A.700 et seq. empowered DOC to control Finley
and gave rise to the definite, established, and continuing relationship necessary to
create a duty to control under § 319. But at the time of the robbery that lead to the
death of Husted and the injuries to Pina, Finley had absconded from supervision
and a warrant had been issued for his arrest. The State contends that under these
circumstances, its duty to control Finley was suspended.
The State argues that Taggart recognizes that the premise underlying of §
319 is the continuing relationship between the community corrections officer and
the offender. Because of the continuing relationship, the community corrections
officer has the ability to monitor and supervise the offender. He or she can also
control and modify the offender's conduct by coercive action against the offender as
authorized by the legislature. But when the offender absconds from supervision and
a warrant is issued for his or her arrest, the State argues that the requisite
continuing relationship is terminated and the ability to monitor and control the
offender's behavior no longer exists. Accordingly, the State contends that during
such times, because the rationale for imposing the duty under § 319 and Taggart
has disappeared, so to should the duty itself, until the offender is apprehended and
the continuing relationship is re-established.
Husted and Pina contend the State's duty to third persons under Taggart and
§ 319 is not diminished because an offender has absconded and is on warrant
status. They point out that the Taggart court expressly rejected the State's
No. 71662-0-1/8
argument in that case that a take charge relationship requires "nothing less than a
full custodial relationship. . . ." Taggart. 118 Wn.2d at 222. They also point out that
the court distinguished and rejected the principal cases upon which the State relied,
Fox v. Custis. 236 Va. 69, 372 S.E.2d 373 (1988) and Lamb v. Hopkins. 303 Md.
236, 492 A.2d 1297 (1985). In Fox, the victims of a parolee's crimes sued the state
parole officers responsible for the parolee's supervision. The Taggart court
observed:
The case was analyzed under § 319, and the court held that
the parole officers did not 'take charge' of the parolee because
the statute empowering the officers to supervise parolees 'does
not contemplate continuing hourly or daily dominance and
dominion by a parole officer over the activities of a parolee.'
Taggart. 118 Wn. 2d at 222 (quoting Fox, 236 Va. at 75). Similarly, the court noted
that in Lamb:
the Maryland court expressly adopted § 319, but held that
probation officers do not 'take charge' of probationers such as to
give rise to a duty to exercise due care in controlling the
probationers because of the lack of a custodial relationship and
the relative freedom the probationers have in conducting their day-
to-day affairs.
Taggart. 118 Wn. 2d at 222. Taggart explicitly rejected these views. The court
observed that "the Washington statute empowering parole officers to supervise
parolees contemplates neither a custodial relationship, such as the Maryland court
required in Lamb, nor continuous supervision, such as the Virginia court demanded
in Fox." jd. at 223. Accordingly, the court held that "a parole officer takes charge of
the parolee he or she supervises despite the lack of a custodial or continuous
relationship." Id. at 223. Thus, Husted and Pina contend that because neither
custody nor a continuous relationship are necessary components of the duty under
8
No. 71662-0-1/9
§ 319, the State's take charge relationship with Finley continued even though he
had absconded from supervision and a warrant had been issued for his arrest.
The flaw in the argument made by Husted and Pina is that it conflates two
distinct concepts discussed in Taqqart. "[Cjustody or [a] continuous relationship"
which is not required to establish a take charge relationship and a "definite,
established and continuing relationship" which is. Taqqart. 118 Wn.2d at 219-23.
In this case, the basis of the take charge relationship, and the duty created
thereby, is the community corrections officer's statutory authority to supervise the
offender under RCW 9.94A.720. Pursuant to that statute, a community corrections
officer must monitor the offender's compliance with the conditions of supervision
and his or her progress while on supervision. And when necessary, the community
corrections officer can control the offender's behavior by threat of incarceration,
limiting movements to prescribed boundaries, increasing reporting requirements
and the like. RCW 9.94A.720(1). Taqqart tells us that the exercise of this authority
depends on neither custody nor a condition of "'continuing hourly or daily
dominance and dominion.'" Taqqart. at 224, (quoting Fox, 236 Va. at 75). Thus,
even though an offender may have only weekly or monthly contact with a
community corrections officer, that is sufficient to establish and maintain a take
charge relationship. But Taqqart also tells us that a take charge relationship entails
ongoing contact between the community corrections officer and the offender
because the relationship must be a "direct, established and continuing" one. jd. at
219. It is the continuing nature of the relationship that allows the community
corrections officer to exercise control. An offender who has absconded and for
No. 71662-0-1/10
whom a warrant has been issued, no longer has a continuing relationship with the
community corrections officer. When this occurs the offender is not subject to the
community corrections officer's control because he or she cannot be monitored,
given direction or sanctioned.
Husted and Pina cite Joyce v. Dep't of Corrections. 155 Wn.2d 306, 119
P.3d 825 (2005) in support of their argument that the State still had a take charge
relationship with Finley. But the case is distinguishable. In Joyce, the parolee,
Stewart, was on DOC supervision as a result of convictions for assault, possession
of stolen property and driving offenses. Although he repeatedly failed to report to
his community corrections officer as directed, the evidence showed that he had
continuing and ongoing contact with her by phone, through family members and
unscheduled visits. As a result, the community corrections officer filed two "notices
of violation" with the court, but did not request a warrant for Stewart's arrest.4
Subsequently, Stewart drove a stolen car at a high rate of speed into a small pickup
truck driven by Paula Joyce, killing her. The supreme court rejected the State's
argument in that case that it owed no duty to Joyce. But unlike here, in Joyce there
was no issue that despite failing to report as directed, Stewart maintained contact
with his community corrections officer and no warrant was issued for his arrest.
Thus, the requisite continuing relationship between the community corrections
officer and offender was intact and the State's take charge duty remained.
4The facts of the case are set forth in great chronological detail in Joyce v. Dep't of Corrections,
116 Wn. App. 569, 575-85, 75 P.3d 548 (2003).
10
No. 71662-0-1/11
In this case, however, it is undisputed that only one brief telephone contact
occurred between Finley and DOC from the date of his release from custody on
February 14, 2009 and the date of his arrest on June 3, 2009. It is also undisputed
that a warrant for his arrest was issued on February 18, 2009, the day after he
failed to report as directed. Here, unlike in Joyce, there was no continuing
relationship between Finley and his community corrections officer and since the
basis for the take charge did not exist, the State had no duty to control him.
Husted and Pina rely on In re Pers. Restraint of Dalluge, 162 Wn.2d 814,
177 P.3d 675 (2008), to argue that the take charge relationship continues even
after an offender is on warrant status. Dalluge was serving a year of community
custody when he was arrested and taken to jail where he was involved in an
altercation. DOC determined that the altercation violated the terms of his
community custody and, after a hearing, sanctioned him. Dalluge argued that since
his term of community custody was tolled while he was in confinement pursuant to
former RCW 9.94A.625 (2008), recodified as RCW 9.94A.171, the department did
not have the authority to discipline him for the alleged violation. The supreme court
disagreed, holding that although the statute tolled Dalluge's term of community
custody while he was incarcerated, that did not diminish DOC's authority to enforce
the terms of his supervision.
Husted and Pina point out that under RCW 9.94A.171 the period of
community supervision is similarly tolled for an offender who absconds from
supervision. They contend that here, as in Dalluge. absconding does not diminish
DOC's power and duty to supervise the offenders committed to it. Thus, they argue
11
No. 71662-0-1/12
that even though Finley's supervision was tolled by issuance of the warrant, DOC's
authority to supervise him continued and the take charge relationship remained
intact. We disagree that Dalluge is controlling.
First, Dalluge does not discuss to what extent, if any, RCW 9.94A.171 affects
DOC's take charge relationship with an offender who absconds from supervision. It
held only that when a person subject to DOC supervision is in custody, the terms of
supervision remain in effect and are enforceable even though the term of
community custody is tolled for the duration of the offender's confinement. Second,
even if Dalluge were controlling, it is entirely consistent with the idea that the take
charge relationship is linked to an ongoing, continuing relationship between the
community corrections officer and the offender. That relationship exists when the
offender is in custody and subject to control by his or her community corrections
officer.
We conclude that where an offender absconds from supervision and a
warrant is issued for his or her arrest, the requisite continuing relationship no longer
exists and the duties associated with the take charge relationship are terminated
unless and until the person is apprehended. Accordingly, we hold that the State had
no duty to control Finley's behavior at the time he committed the acts giving rise to
the claims in this case because Finley had absconded supervision, had only
minimal contact with DOC and was on warrant status at that time. The trial court did
not err when it granted the State's motion for summary judgment dismissal.
12
No. 71662-0-1/13
Affirmed.
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WE CONCUR:
JL*/, J. fahwK
13