Fred Binschus, Individually and as Personal Representative, et al., Appellants ,
The Department of Corrections et al., Defendants, Skagit County et al., Respondents
Reconsideration denied April 6, 2015.
Oral Argument: November 4, 2014.
[Copyrighted Material Omitted]
Appeal from Snohomish Superior Court. Docket No: 11-2-08078-0. Judge signing: Honorable Ellen J. Fair. Judgment or order under review. Date filed: 08/28/2013.
Gene R. Moses (of Law Offices of Gene R. Moses PS ); Dean R. Brett (of Brett Murphy Coats Knapp McCandlis & Brown PLLC ); W. Mitchell Cogdill (of Cogdill Nichols Rein Wartelle Andrews ); Nathan P. Roberts and John R. Connelly Jr. (of Connelly Law Offices PLLC ); Jaime D. Allen (of Davis Wright Tremaine LLP ); Jeffrey D. Dunbar (of Ogden Murphy Wallace PLLC ); and Philip A. Talmadge (of Talmadge / Fitzpatrick / Tribe, for appellants.
John E. Justice (of Law Lyman Daniel Kamerrer & Bogdanovich PS ), for respondent Skagit County.
Christopher J. Kerley (of Evans, Craven & Lackie PS ), for respondent Okanogan County.
Authored by Michael J. Trickey. Concurring: Stephen J. Dwyer, James Verellen.
[186 Wn.App. 80] [¶1] On September 2, 2008, Isaac Zamora killed six people and injured several others. Shortly before [186 Wn.App. 81] the tragic incident, Zamora had been incarcerated in Skagit County and Okanogan County jails for committing nonviolent crimes. At the time of the shooting, Zamora was experiencing a psychotic episode.
[¶2] The estates of five people Zamora killed, together with four people he injured (collectively Binschus), brought the present lawsuit against Okanagan and Skagit Counties, Skagit Emergency Communications Center (Skagit 911), and Washington State Department of Corrections (DOC), alleging negligence. Binschus claimed, among other things, that although the counties knew or should have known of Zamora's deteriorating mental illness during his incarceration, they failed to provide a thorough mental evaluation and appropriate treatment for his schizophrenia. The trial court granted Okanogan and Skagit Counties' motions for summary judgment, concluding that the counties owed no duty to the victims and, even if they did, Binschus failed to prove proximate causation.
[¶3] On appeal, Binschus contends that the trial court erred in granting the counties' motions for summary judgment, arguing that the counties owed a legal duty to protect the victims from Zamora's violent propensities because the counties (1) had a " take charge" relationship with Zamora under § § 315 and 319 of the Restatement (Second) of Torts (1965) or (2) committed misfeasance under § 302B of the Restatement (Second) of Torts. Binschus additionally argues that the counties' purported breach was the cause in fact of the victims' injuries.
[¶4] We hold that with regard to Skagit County, material issues of fact preclude summary judgment on the question of whether § § 315 and 319 imposed a legal duty on the counties. We further hold that material issues of fact remain as to whether the alleged breach was the cause in fact of the victims' injuries. We hold, however, that a duty is not established under § 302B. Accordingly, we reverse and remand for additional proceedings.
[186 Wn.App. 82] FACTS
[¶5] Zamora " had a long-standing psychiatric disorder that began to emerge when Zamora was in his late-teens, more than a decade before the incident on September 2, 2008."  In May 2000, Zamora began experiencing symptoms of insomnia, paranoia, and anger. In 2003, Zamora was involuntarily committed at North Sound Evaluation and Treatment Center, where he endorsed hallucinations and was prescribed an antipsychotic medication that is commonly used for treatment of schizophrenia. According to Binschus's expert psychiatrist, Dr. Csaba Hegyvary, Zamora was not given a proper diagnosis at that time.
Skagit County Jail
[¶6] On April 4, 2008, Skagit County police officers responded to Zamora's parents' residence to investigate a 911 hang-up call from the residence. The officers soon discovered that Skagit County District Court had issued warrants for Zamora's arrest. Zamora complained of a sore shoulder when arrested. As a result, the officers transported Zamora to a local hospital to determine whether he was fit for jail. The hospital subsequently released Zamora, who then was transported to Skagit County Jail.
[¶7] Zamora remained in the Skagit County Jail pending trial and his eventual guilty pleas. On May 15, 2008, the Skagit County Superior Court sentenced him to 6 months of confinement for malicious mischief in the second degree and possession of a controlled substance. The 6-month term was to be followed by 12 months of community supervision by DOC. Under the community supervision provision of the judgment and sentence,
the trial court ordered " mental health eval/treatment" and " drug evaluation to comply with [186 Wn.App. 83] all treatment recommendation."  The trial court did not make any specific findings regarding Zamora's mental health.
[¶8] Zamora remained in custody and began serving his sentence at the Skagit County Jail. The jail housed Zamora in a jail unit known as " C-Pod."  The C-Pod unit is more secure and isolated than other units in the jail. The Skagit County Jail would place a particular class of inmates in the C-Pod unit: inmates who fought with others, who threatened the general population of the jail, who were considered " anti-social," who had severe behavioral issues, who were in protective custody, and who had mental health issues.
[¶9] During his time at the jail, Zamora's mother, Dennise Zamora, made several requests to the Skagit County Jail and the county prosecutor, asking that Zamora receive mental health assistance. Dennise made such a request to the jail on April 7, 2008. She informed the Skagit County Jail that Zamora was bipolar and aggressive, and had anger problems. Dennise added that Zamora refused to obtain treatment and medication. She also reported that she and her husband were in fear of Zamora. In response, on April 11, 2008, Stephanie Inslee, a licensed mental health care professional, visited Zamora at the jail. In a document referred to as " Skagit County Jail Multi-Purpose Request Form," Inslee noted:
Persecutorial thoughts, easily moved into rageful thinking, ... feels victimized by just about everyone in his world. Some grandiosity about his education / intelligence and his role in the world: to fix the crazy systems, make people treat him better. Very focused on the issue of chronic pain and poor ... . Reports anxiety ... sounds like panic attack. He needs something! [186 Wn.App. 84] Recommend beginning Lamictal: He is paranoid about poison and not messing w/ his brain. Can a person in medical please meet with him if meds are approved and address his fears?
[¶10] Three days later, a physician approved the Lamictal prescription. According to Dr. Hegyvary, Lamictal is prescribed for seizure disorders and commonly used as a mood stabilizer. Lamictal is not an antipsychotic medication.
[¶11] On April 23, 2008, another mental health counselor, Cindy Maxwell, saw Zamora after he submitted a mental health request. According to the " Skagit County Jail Multi-Purpose Request Form" memorializing that visit, Zamora was refusing to take the Lamictal medication. Zamora told Maxwell, however, that he was taking the prescription only because it helped him sleep. He said that he preferred to refrain from taking any type of mental health medications. In addition, Zamora expressed extreme anger toward his mother for calling the jail. Maxwell noted that Zamora appeared upset and easily angered, and that his speech was rambling. Maxwell recommended that the jail continue to offer Zamora " psych. meds." 
[¶12] On May 10, 2008, Zamora submitted a request to see a mental health counselor. He reported that he was seeing black dots and white flashes. The request form does not indicate whether jail staff responded to his request.
[¶13] The only evidence of any violent occurrence involving Zamora was a jail record reporting that another inmate attacked Zamora and was charged with assaulting Zamora. Otherwise, there were reports describing Zamora's insolent demeanor toward jail staff. Most commonly, however, Zamora complained that he was not receiving adequate medical care for his fractured clavicle and protested his placement in the C-Pod unit.
[186 Wn.App. 85] Okanogan County Corrections Center
[¶14] On May 29, 2008, Skagit County Jail transferred Zamora to the Okanogan County Corrections Center. At the time of Zamora's transfer, Okanogan County Corrections Center was a party to a contract with Skagit County Jail for the housing of Skagit County Jail inmates. During the term of the contract, when a Skagit County Jail inmate was transferred to Okanogan County Corrections Center, Skagit County Jail would prepare a " Skagit County Jail Transport Form," which was usually sent to Okanogan County Corrections Center in advance of the inmate's arrival. The form identified the inmate, provided basic information about the Skagit County charges for which the inmate was serving time, indicated whether the inmate presented a risk of escape or violence, and listed the inmate's release date.
[¶15] The contract required that Skagit County Jail send all of an inmate's medical records when it transferred an inmate to Okanogan County Corrections Center. However, during the term of the contract, Skagit County Jail developed a practice in which it transmitted only records dealing with current problems that the jail deemed pertinent to the inmate's management. When Skagit County Jail transferred Zamora to Okanogan County Corrections Center, it did not send the " Skagit County Jail Multi-Purpose Request Form[s]" that memorialized Zamora's three mental health requests and visits with mental health professionals, as detailed above. One of those forms documented the April 7, 2008 call made by Zamora's mother requesting that Zamora receive mental health assistance. Skagit County Jail did send a copy of Zamora's medication log, however, which listed the Lamictal prescription. Otherwise, the records that were transferred generally reported only Zamora's clavicle, shoulder, and back problems, and his request for pain medication.
[186 Wn.App. 86] [¶16] When Zamora arrived at Okanogan County Corrections Center, the booking corrections officer asked him a series of questions. Those officers were trained to watch for signs of mental illness or problems. They noted no behavioral issues exhibited by Zamora during the booking process.
[¶17] Based on Zamora's behavior and information transmitted by Skagit County Jail, Okanogan County Corrections Center classified Zamora as a minimum custody inmate and housed him in " F module," a dormitory style unit for inmates without any special needs or risk factors. The Okanogan County Corrections Center inspection records indicate that Zamora did ...