CATHY HARPER, individually, as Personal Representative of the ESTATE OF TRICIA PATRICELLI, as Guardian ad Litem for KHALANI MICHAEL, a minor child, and as Guardian ad Litem for NIYERRAH MICHAEL, a minor child, Appellant,
STATE OF WASHINGTON; WASHINGTON DEPARTMENT OF CORRECTIONS, a governmental entity, Respondents, RHONDA FREELAND and JOHN DOE FREELAND, and their marital community Defendants.
DENYING MOTION FOR RECONSIDERATION AND ORDER WITHDRAWING
OPINION AND SUBSTITUTING OPINION
respondent, State of Washington Department of Corrections,
having filed a motion for reconsideration of the court's
opinion filed December 4, 2017, and a majority of the panel
having determined that the motion should be denied, now,
therefore it is hereby
that the respondent's motion for reconsideration is
denied; and it is further
that the opinion filed on December 4, 2017 is withdrawn; and
it is further
that a substitute opinion shall be filed to correct a factual
conclusion, and the substituted opinion shall be published in
the Washington Appellate Reports.
Harper, personal representative of the estate of Tricia
Patricelli, appeals from the trial court's order granting
summary judgment to the Department of Corrections (DOC) and
dismissing her lawsuit. On appeal, Harper contends that the
trial court erred because genuine issues of material fact
exist as to whether DOC breached its take charge duty owed
toward Patricelli in its supervision of Scottye Miller.
conclude that genuine issues of material fact remain for
trial as to whether DOC exercised less than slight care in
its supervision of Miller. Accordingly, we reverse.
assigned to supervise Miller during his term of community
placement to begin on October 15, 2012. Prior to this term of
community placement, Miller had a lengthy criminal record,
much of it involving crimes of domestic violence against
Patricelli, Harper's daughter. Specifically, Miller had
been convicted of 4 domestic violence felonies, 2 of which
were against Patricelli, and 18 domestic violence
misdemeanors, 4 of which were against Patricelli.
addition, multiple no-contact orders had been issued against
Miller, barring him from interacting with Patricelli. In the
past, Miller had repeatedly violated these no-contact orders
and lied to his community corrections officers when asked
whether he was residing with Patricelli.
his release from incarceration on October 15, Miller was
placed under the supervision of DOC community corrections
officer Rhonda Freeland. At the time of his release, Miller
was to be supervised by DOC as a misdemeanor domestic
violence offender. A no-contact order in place at the time of
Miller's release effectively prohibited him from having
physical contact with Patricelli but permitted him to have
telephone contact with her.
October 16, Miller reported to Freeland at her Auburn office.
While there, Miller was subjected to a urinalysis test to
monitor his drug and alcohol use. The test results were
negative, indicating that Miller had not used drugs or
alcohol since his release from incarceration the day before.
to DOC policy, Freeland asked Miller where he would be
residing. Miller indicated that he was homeless but that he
would be staying with his mother, Leola Benson, as well as
with nearby relatives. Freeland required that Miller report
to her office weekly and complete a housing report log, a
form document listing where he resided each night to be
verified by the signature of the person with whom he had
resided. Because Miller was subject to community placement
pursuant to a misdemeanor conviction-rather than a felony
conviction-DOC's policy did not require that Miller
establish an approved address upon his release from
the next two days, Freeland made several telephone calls.
First, she contacted Miller's previous mental health
counselor, who told her that Miller would be required to sign
up for mental health services and to schedule an intake
appointment. Freeland then contacted Dave Albers, a
King County probation officer who had supervised Miller in
2010 and 2011, to inform him of the community custody
conditions that were imposed on Miller and of her assignment
as supervisor of Miller's community placement. Freeland
telephoned Patricelli and left a message for her, requesting
a return call. Freeland did not again attempt to contact
also contacted Angela Coker, who was currently assigned to
Patricelli as a DOC community victim liaison due to
Miller's prior crimes of domestic violence against
Patricelli. In the time leading up to Freeland's
supervision of Miller, Coker had successfully contacted
Patricelli using a different telephone number than the number
dialed by Freeland, Coker told Freeland that she had spoken
with Patricelli and that Patricelli said that she had changed
residences, believed that Miller did not know where she would
be living, and was aware that she could contact DOC or the
police if she saw Miller.
October 23, seven days after his initial visit, Miller again
reported to Freeland's office. He was subjected to
another urinalysis test, the result of which was negative for
drug or alcohol use. He gave Freeland a completed housing
report log with Benson's signature placed thereon,
suggesting that he had been residing with Benson for the past
week. Miller also brought Freeland verification of food
assistance benefits and acknowledged that he had a
psychological examination scheduled for October 24. Freeland
directed Miller to report to her again on October 30.
October 29, Benson contacted Freeland and indicated that she
would be willing to let Miller live with her at her residence
going forward. Freeland did not inquire of Benson as to
whether Miller had been staying at her residence for the past
two weeks. Freeland thereafter sent an e-mail to Coker
inquiring into whether the area surrounding Benson's
address was associated with any of Miller's past domestic
violence victims. Coker responded that there were no known
security concerns regarding Benson's address.
October 30, Harper visited Patricelli's apartment. Inside
the apartment, she found Patricelli's body, the victim of
multiple stab wounds. Harper believed Patricelli to be dead,
and she was later pronounced as such by medical personnel.
Miller was later convicted of Patricelli's murder.
sued DOC alleging gross negligence and negligent infliction
of emotional distress. DOC moved for summary judgment as to
both claims. The trial court granted summary judgment of
contends that the trial court erred by granting summary
judgment as to her gross negligence claim. The trial court
erred, Harper asserts, because genuine questions of material
fact remain for trial as to whether DOC breached its take
charge duty in its supervision of Miller upon his release
from incarceration. We agree.
judgment is proper where there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Hertog v. City of Seattle, 138
Wn.2d 265, 275, 979 P.2d 400 (1999). We engage in the same
inquiry as the trial court and consider the facts and
reasonable inferences therefrom in the light most favorable
to the nonmoving party. Hertog, 138 Wn.2d at 275.
community corrections officers have a "take charge"
duty over the offenders they supervise. Taggart v.
State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992). Our
Supreme Court announced the existence of this duty with
reference to the special relationship provision in the
Restatement (Second) of Torts, § 319 (1965), which
reads: "'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.'" Taggart, 118 Wn.2d
this duty to parole officers, our Supreme Court in
Taggart, held that, "parole officers have a
duty to protect others from reasonably foreseeable dangers
engendered by parolees' dangerous propensities." 118
Wn.2d at 224. "When a parolee's criminal history and
progress during parole show that the parolee is likely to
cause bodily harm to others if not controlled, " the
court continued, "the parole officer is under a duty to
exercise reasonable care to control the parolee and to
prevent him or her from doing such harm."
Taggart, 118 Wn.2d at 220. Thus, DOC's duty when
supervising offenders is the "take charge" duty set
forth in Taggart.
provisions and an offender's sentencing conditions are
not the origin of the duty. Mock v. Dep't of Corr.,
___Wn.App.___, 403 P.3d 102, 108 (2017). Rather, the
conditions of the sentence and the statutory authority
granted to DOC inform the contours of the special
relationship duty discussed in Taggart,
Mock. 403 P.3d at 108.
"Once the relationship is created, it is the
relationship itself which ultimately imposes the
duty upon the government." Joyce v. Dep't of
Corr.,155 Wn.2d 306, 318-19, 119 P.3d 825 (2005). The
section 319 duty-also referred to as the "take
charge" duty-is imposed only when there is a "
'definite, established and continuing relationship
between the defendant and the third party.'"
Taggart, 118 Wn.2d at 219 (quoting Honcoop v.
State,111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). It has
been imposed on community corrections officers as well as
parole officers and probation officers. Joyce, ...