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Harper v. State

Court of Appeals of Washington, Division 1

January 16, 2018

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,
v.
STATE OF WASHINGTON; WASHINGTON DEPARTMENT OF CORRECTIONS, a governmental entity, Respondents, RHONDA FREELAND and JOHN DOE FREELAND, and their marital community Defendants.

         ORDER DENYING MOTION FOR RECONSIDERATION AND ORDER WITHDRAWING OPINION AND SUBSTITUTING OPINION

         The 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

         ORDERED that the respondent's motion for reconsideration is denied; and it is further

         ORDERED that the opinion filed on December 4, 2017 is withdrawn; and it is further

         ORDERED that a substitute opinion shall be filed to correct a factual conclusion, and the substituted opinion shall be published in the Washington Appellate Reports.

          DWYER, J.

         Cathy 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.

         We 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.

         I

         DOC was 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.

         In 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.

         Upon 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.[1] 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.[2]

         On 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.

         Pursuant 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 incarceration.

         Over 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.[3] 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 Patricelli.

         Freeland 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.

         On 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.

         On 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.

         On 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.

         Harper 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 dismissal.

         II

         Harper 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.

         A

         Summary 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.

         B

         DOC's 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 at 219.

         Applying 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.

         Statutory 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.[4]

"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, ...

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