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      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON                                         wo
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JANET G. HUSTED as Personal                                                                            3>—*
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Representative of the ESTATE OF                          No. 71662-0-1
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KURT HUSTED; WILBERT R. PINA,                                                              2£     :r>l~,
an individual; and JOEL FLORES,                          DIVISION ONE
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guardian ad litem for minor
                                                                                            *•



                                                                                            |S>   O-;
EMMETT PINA;                                                                                      3C'<


                       Appellants,                       UNPUBLISHED OPINION


       v.



STATE OF WASHINGTON,

                       Respondent.                       FILED: March 16, 2015

       Spearman, C.J. — This appeal arises from entry of summary judgment in

an action for negligent supervision of a parolee, Calvin Finley, by the Department

of Corrections (DOC). Appellants contend that, as a matter of law, DOC had no

duty to control the parolee once he absconded from supervision and a warrant

was issued for his arrest. Because we conclude that under the facts of this case,

the State had no duty to control Finley's behavior at the time he caused the death

of Husted and injuries to Pina, we affirm.1

                                            FACTS


       On September 1, 2006, Calvin Finley was convicted of a violation of a


       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



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

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 convicted 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, 2009.2




          2 During the summary judgment proceedings, the State did not argue that Appellants
lacked sufficient evidence to raise a fact issue with respect to whether DOC's actions or inaction
in its effort to locate Finley constituted a breach of the duty to supervise. The State makes no
such argument on appeal. And neither party addresses the applicable standard of care.
Consequently, we do not address DOC's efforts to locate Finley after he absconded or whether
these efforts constituted a breach of the applicable duty of care.
No. 71662-0-1/3



       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 parole violations. He was sanctioned with

120 days confinement for the parole 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 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. Hertoq, 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
No. 71662-0-1/4



facts and reasonable inferences from the facts in the light most favorable to the

nonmoving party, ]d_. (citing Tagqart, 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 Vallandigham v. Clover Park School Dist. No. 400. 154 Wn.2d

16, 26, 109 P.3d 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. Sligar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010)

(citing Young v. Kev 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. ]d. 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 Deqel v. Majestic 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 a parolee who absconds supervision, has no contact with

his parole officer, and for whom a warrant has been issued for his or her arrest.
No. 71662-0-1/5



The State contends that under these circumstances the duty is suspended until

the parolee is apprehended. Husted and Pina argue the duty continues at all

times until the State's duty to supervise the parolee 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.

       'n 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 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. 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.'" Id. (quoting Honcoop v.

State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). The court determined that
No. 71662-0-1/6



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

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


         3 RCW 72.04A.080, which Taggart found created the take charge relationship between
the parole officer and the parolee, was repealed effective July 1, 1984. The authority of parole
officers, now called "corrections officers," 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). RCW 9.94A.720 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



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).

       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 parole officer and the parolee.

Because of the continuing relationship, the parole officer has the ability to

monitor and supervise the parolee. He or she can also control and modify the

parolee's conduct by coercive action against the parolee as authorized by the

legislature. But when the parolee 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 parolee'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
No. 71662-0-1/8



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 a parolee has absconded and is on warrant

status. They point out that the Taggart court expressly rejected the State's

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


                                          8
No. 71662-0-1/9



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." Id. 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." jd. at 223. Thus, Husted and Pina contend that

because neither custody nor a continuous relationship are necessary

components of the duty under § 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 Taggart. "[Cjustody or [a] continuous relationship"

which is not required to establish a take charge relationship and a "definite,

established and continuing relationship" which is. Taggart. 118 Wn.2d at 219-23.

       In this case, the basis of the take charge relationship, and the duty created

thereby, is the parole officer's statutory authority to supervise the parolee under

RCW 9.94A.720. Pursuant to that statute, a parole officer must monitor the

offender's compliance with the conditions of supervision and his or her progress

while on supervision. And when necessary, the parole 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).

Taggart tells us that the exercise of this authority depends on neither custody nor

a condition of "'continuing hourly or daily dominance and dominion.'" Taggart, at

224, (quoting Fox, 236 Va. at 75). Thus, even though an offender may have only
No. 71662-0-1/10



weekly or monthly contact with a parole officer, that is sufficient to establish and

maintain a take charge relationship. But Taggart also tells us that a take charge

relationship entails ongoing contact between the parole officer and the parolee

because the relationship must be a "direct, established and continuing" one. Id.

at 219. It is the continuing nature of the relationship that allows the parole officer

to exercise control. A parolee who has absconded and for whom a warrant has

been issued, no longer has a continuing relationship with the parole officer.

When this occurs the offender is not subject to the parole 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 parole 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 parole 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


        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



his parole officer and no warrant was issued for his arrest. Thus, the requisite

continuing relationship between the parole officer and parolee was intact and the

State's take charge duty remained.

       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 parole 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 a parolee 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.




                                         11
No. 71662-0-1/12



       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 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 parole officer and the parolee. That relationship exists

when the offender is in custody and subject to control by his or her parole officer.

       We conclude that where a parolee absconds from supervision and a

warrant is issued for his or her arrest, the requisite continuing relationship no




                                          12
No. 71662-0-1/13


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.

       Affirmed.




WE CONCUR:                                            '               x




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