      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           )
THE ESTATE OF ZINA LINNIK, and             )         No. 67475-7-1
MIKHAIL and VALENTINA LINNIK, a            )                                              (""')
                                                                            ~

married couple, and STANSISLAV M.          )                                =        too
                                                     DIVISION ONE
LINNIK, and NINA LINNIK, and               )
                                                                            (.a.)
                                                                                    ~~
                                                                                    -1_,
                                                                            J>
                                                                                    ~
MIKHAIL LINNIK, as parent and              )                                -o           r
                                                                            ::0
                                                                                    ~~-,r~
guardian for PAVEL LINNIK,                 )                                 I      -->~~
SVETLANA LINNIK, OKSANA LINNIK,            )
                                                                                    ::::-:"'"Dr
                                                                                    y-ar''
                                                                            :boo    ()')r;·l--.
VADIM LINNIK, SAMUEL LINNIK, his           )                                ~       ~:r> 1_:
                                                                                    zr
minor children,                            )                                m       G") (,;')
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                                           )                                w
                                                                            (X)     ~~<
                    Appellants,            )         UNPUBLISHED
                                           )
             v.                            )         FILED: April 1. 2013
                                           )
STATE OF WASHINGTON, by and                )
through its various agencies and           )
subdivisions, including DEPARTMENT         )
OF CORRECTIONS and CHILD                   )
PROTECTIVE SERVICES, PIERCE                )
COUNTY, a municipal corporation, and       )
CITY OF TACOMA,                            )
                                           )
                     Respondents.          )
                                           )


       Cox, J.- This wrongful death action arises from the tragedy of Terapon

Adhahn's kidnapping, rape, and murder of Zina Linnik, a twelve year-old child, on

July 4, 2007. Her estate and parents (collectively "the Estate") together with

other members of her family commenced this negligence action against the state

Department of Corrections (DOC), the Department of Social and Health Services
No. 67475-7-1/2


(DSHS), Pierce County, and the City of Tacoma. These defendants moved for

summary judgment dismissal, which the trial court granted. Because the Estate

fails in its burden to establish that any defendant owed a duty, there are no

genuine issues of material fact. We affirm. 1

       The material facts are not in dispute. Adhahn, a lawful permanent

resident originally from Thailand, kidnapped, raped, and murdered this twelve-

year old child in Tacoma. Seventeen years before these heinous crimes, Adhahn

pleaded guilty to first degree incest after raping his half sister. Adhahn received

a special sex offender sentence alternative (SSOSA), subject to an exceptional

sentence of sixty months of community supervision.

       In 1991, Adhahn's community corrections officer (CCO) submitted a

Notice of Violation to the court, reporting that Ad hahn had failed to enter into

sexual deviancy treatment as required by his judgment and sentence. The court

entered an agreed order modifying Adhahn's sentence, requiring him to enter

into treatment. Adhahn actually began attending group therapy sessions a

month before the court entered this order, and he continued to do so.

       In September 1992, Adhahn was charged in Tacoma Municipal Court for

intimidation with a weapon. The municipal court sentenced him to five days in jail

for this misdemeanor.

       In 1997, the sex offender treatment provider notified the court that

"Ad hahn has completed all aspects of the sex offender treatment program with


       1
         Pierce County moved to strike portions of Brief of Appellant and Reply Brief of
Appellant Re: Pierce County. We grant the motion, in part. We do not consider the
portions of the Reply Brief that first argue on the basis of RCW 10. 70.140. See
Engstrom v. Goodman, 166 Wn. App. 905,911,271 P.3d 959 (2012).

                                                2
No. 67475-7-1/3


this agency." On July 8, the superior court held a hearing to determine whether

Ad hahn had complied with the terms of his alternative sentence at which the

prosecutor and Ad hahn were present. At the conclusion of this hearing, the court

terminated DOC supervision of Adhahn.

       Adhahn was classified as a Ieveii sex offender. This is the lowest risk

level classification for sex offenders. Adhahn lived in several different locations

in Pierce County, but he did not update his sex offender registration when he

moved. In 2002, Adhahn was stopped for a traffic infraction and at that point

updated his registration. He moved several times between 2002 and the date he

raped and murdered the Unnik child.

       In January 2004, the Department of Child Protective Services (CPS)

received an anonymous report that an unnamed man was living with a young girl

whom he had purchased or traded for furniture. Though not clear from this initial

call, the authorities later determined that Ad hahn was the subject of this report.

The CPS worker who screened the initial call referred it to Pierce County law

enforcement. When the Pierce County Sheriff's Office received the CPS referral,

they sent an officer to investigate. The officer did not find a girl at the address

listed in the referral.

       About two weeks after the first report, CPS received another call from the

anonymous caller. At that point, she provided Ad hahn's name to the CPS intake

worker. Typically, CPS forwards this updated information to the relevant law

enforcement agency. But here, Pierce County claims it never received this

second referral with Adhahn's name.



                                              3
No. 67475-7-1/4


       In 2007, three years after the report to CPS, Ad hahn approached the

Linnik child in an alley behind her home, forced her into his grey van, and

kidnapped her. The Linnik family called 911 approximately five minutes later,

upon realizing that the child was gone. Tacoma law enforcement responded to

the scene at 10:00 p.m.

      At the outset, Tacoma police targeted an Asian neighbor of the Linniks.

The Linnik family reported seeing a vehicle that matched the one owned by their

neighbor driven by an Asian man pull away from the alley. Because the police

were in pursuit of this suspect, the lead detective decided not to request an

AMBER Alert the night of the Linnik child's abduction. The AMBER Alert is a

public warning system that broadcasts child abduction information on the radio,

television, and highway signs.

       The police located and questioned the Linnik's neighbor sometime after

midnight and eliminated him as a suspect. At around 4:00a.m., the lead

detective called the Tacoma police's public information officer and requested an

AMBER Alert. Tacoma police protocol then required that the public information

officer initiate the issuance of an AMBER Alert. After receiving the AMBER Alert

request, the Tacoma public information officer fell back asleep. Consequently,

he did not initiate the AMBER Alert until later that morning at around 8:00a.m.,

some four hours after the request.

       Four days after the Linnik child's abduction, Tacoma police detained

Adhahn and questioned him regarding the child's disappearance. Adhahn

eventually confessed to kidnapping, murdering, and raping the Linnik child.



                                            4
No. 67475-7-1/5


          In 2010, the Estate and other family members commenced this action for

wrongful death against DOC, DSHS, Pierce County, and the City of Tacoma.

The trial court dismissed the claims brought by the Linnik child's siblings and that

dismissal is not before us, as counsel properly conceded at oral argument.

          The Estate appeals.

                                              DUTY

          The Estate argues that the defendant governmental entities were

negligent and liable for the Linnik child's death. We hold that the Estate has

failed in its burden to show that any of these entities owed an actionable duty.

          In a motion for summary judgment by a defendant, the initial burden is on

the moving party "to prove by uncontroverted facts that there is no genuine issue

of material fact." 2 "A material fact is one upon which the outcome of the litigation

depends .... "3 Bare assertions of ultimate facts and conclusions of fact are

insufficient. 4 "Likewise, conclusory statements of fact will not suffice." 5

          If the moving party meets this initial burden of showing an absence of
                                                                                         6
material fact, then the inquiry shifts to the party with the burden of proof at trial.

This party must then '"make a showing sufficient to establish the existence of an




          2
              Young v. Key Pharma. Inc .. 112 Wn.2d 216, 235, 770 P.2d 182 (1989).
          3
              Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980).
          4
              Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517
(1988).

          5lfl
          6
              Young, 112 Wn.2d at 225.

                                                    5
No. 67475-7-1/6


element essential to that party's case, and on which that party will bear the

burden of proof at trial."' 7

          An appellate court reviews the trial court's order granting summary

judgment de novo, reviewing the facts in the light most favorable to the

nonmoving party. 8

          To prove an action for negligence, a plaintiff must demonstrate that the

defendant owed a duty to him, breached this duty, and that this breach

proximately caused the plaintiff's injury. 9 "A cause of action for negligence will

not lie unless the defendant owes a duty of care to plaintiff." 10 "Existence of a

duty is a question of law. Breach and proximate cause are generally fact

questions for the trier of fact. "11

          Where the liability of a governmental entity is at issue, Washington courts

"have employed the 'public duty doctrine' to determine whether the duty is one

owed to a nebulous public or whether that duty is owed to a particular

individual." 12 Because the Washington legislature has made public entities liable




          7
         !fLat 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)).
          8
               Ruvalcaba v. Kwang Ho Baek, 175 Wn.2d 1, 6, 282 P.3d 1083 (2012).
          9
               Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
          1
              °Chambers-Castanes v. King County, 100 Wn.2d 275, 284, 669 P.2d 451
(1983).
          11
               Hertog, 138 Wn.2d at 275.
          12
               Hencoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988).

                                                     6
No. 67475-7-1/7


"to the same extent as" private persons, 13 "the public duty doctrine does not-

cannot-provide immunity from liability." 14 Instead, it is:

       a focusing tool [used] to determine whether a public entity owed a
       duty to a 'nebulous public' or a particular individual. The public duty
       doctrine simply reminds us that a public entity-like any other
       defendant-is liable for negligence only if it has a statutory or
       common law duty of care. And its 'exceptions' indicate when a
       statutory or common law duty exists.l 151

       Thus, a plaintiff bringing a case against a public entity must show that the

entity owed a duty to him, specifically. 16 What differentiates a public entity

defendant from other defendants is that the examination of whether it owed a

specific duty to the plaintiff is particularly stringent. 17 This is because public

entities owe general duties to the public at large-they must, for instance,

respond to 911 calls and police the streets. But public entities are not negligent

for a breach of these general duties. 18

                                           State

       The Estate argues that DOC and DSHS both owed a duty to the Linnik

child under several different theories of negligent liability. Because the Estate

cannot demonstrate that either state agency owed the Linnik child a duty, we

disagree.


       13
            RCW 4.92.090.
       14
            Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006).
       15
            ~at 27-28 (quoting Taylor v. Stevens County, 111 Wn.2d 159, 166, 759 P.2d
447 (1988)).

            ~at 27.
       16


       17
            ~at 27-28.

       18~


                                                   7
No. 67475-7-1/8


                        Implied Statutory Duty Under RCW 26.44.050 and .030

          The Estate argues that the state DSHS was negligent because it did not

fulfill its implied duties under RCW 26.44.050 and .030, causing the Linnik child's

death. We hold that there was no duty to the Linnik child under the

circumstances of this case.

          RCW 26.44.050 states:

          Upon the receipt of a report concerning the possible occurrence of
          abuse or neglect, the law enforcement agency or the department of
          social and health services must investigate and provide the
          protective services section with a report in accordance with chapter
          74.13 RCW, and where necessary to refer such report to the court.

          The supreme court has recognized that under this statute the "State has a

statutorily mandated duty to investigate child abuse allegations brought to its

attention." 19 This duty had been recognized to flow not only to the child victim of

abuse but also to parents whose parental rights are interfered with due to abuse

allegations? 0 Thus, in Tyner v. Department of Social and Health Services, the

supreme court held that DSHS owed a duty to Tyner, a father who was

separated from his children during a child abuse investigation. 21 There, the court

implied a cause of action in favor of a parent of a child who was the subject of an

investigation under RCW 26.44.050:

                   In [Bennett v. Hardy], we outlined when a cause of action will
          be implied from a statute. The following questions must be asked:
          "[F]irst, whether the plaintiff is within the class for whose 'especial'


          19
               Tyner v. Dep't of Social and Health Servs., 141 Wn.2d 68, 77, 1 P.3d 1148
(2000).
          20
               19..:. at 82.
          21   19..:.

                                                    8
No. 67475-7-1/9


       benefit the statute was enacted; second, whether legislative intent,
       explicitly or implicitly supports creating or denying a remedy; and
       third, whether implying a remedy is consistent with the underlying
       purpose of the legislation."1221

       The Tyner court held that RCW 26.44.050's legislative history made "it

clear that a parent's interests were contemplated by the Legislature."23 It also

concluded that the Legislature's emphasis on the close relationship between a

child and a parent's interests demonstrated that it intended "a remedy for both

the parent and the child if that interest is invaded."24 And, as the court noted,

"RCW 26.44.050 has two purposes: to protect children and preserve the integrity

of the family," and thus protection of a parent's rights were explicitly part of the

statute's goals. 25

       After Tyner, this state's courts have rejected attempts to broaden the duty

implied by RCW 26.44.050. Thus, in Ducote v. Department of Social and Health

Services, the supreme court rejected claims from stepparents that DSHS owes

them a duty under RCW 26.44.050 for negligent investigation of child abuse. 26

       RCW 26.44.010 does not designate the bond between a child and
       his or her stepparent or other family member as one entitled to this
       same protection. Because the legislature did not designate
       stepparents as members of the class protected by RCW 26.44.050,




       22
            kL_ at 77-78 (quoting Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258
(1990)).
       23
            kL, at 78.
       24
            kL, at 80.
       25   kL.
       26
            167 Wn.2d 697, 704, 222 P.3d 785 (2009).

                                                9
No. 67475-7-1/10


          Ducote does not have standing to bring a negligent investigation
          claim. 1271

And, this court in Blackwell v. Department of Social and Health Services held that

the implied duty created by RCW 26.44.050 was not owed to foster parents? 8 As

in Ducote, this court looked to the language of RCW 26.44.01 0, which

emphasizes the parent-child relationship and does "not include caretakers within

that classification." 29

          Similarly, the supreme court has rejected claims of negligent investigation
                                                                                   30
where the plaintiff was not actually investigated for abusing her own child,            and

where a DSHS investigation, not DSHS placement, led to a child's physical and

emotional injuries. 31

          The supreme court has also implied a duty owed by those required to

report child abuse under RCW 26.44.030. Under RCW 26.44.030:

                When any ... employee of [DSHS] . . . has reasonable
          cause to believe that a child has suffered abuse or neglect, he or
          she shall report such incident, or cause a report to be made, to the
          proper law enforcement agency or to the department as provided in
          RCW 26.44.040.




          27
               !fL. at 704.
          28
               131 Wn. App. 372, 378, 127 P.3d 752 (2006).
          29
               !fL. at 377.
          30
               Roberson v. Perez, 156 Wn.2d 33, 45-46, 123 P.3d 844 (2005).
          31
               M.W. v. Dep't of Social and Health Servs., 149 Wn.2d 589, 591, 70 P.3d 954
(2003).
                                                   10
No. 67475-7-1/11


       In Beggs v. Department of Social and Health Services, the court applied

the Bennett "implied cause of action test" to RCW 26.44.030. 32 The court

concluded that "victims of child abuse are certainly within the class for whose

['especial'] benefit the legislature enacted the reporting statute, as this court has

acknowledged. "33

       Here, the Estate attempts to broaden the limited duty the courts have

implied from RCW 26.44.050 and .030, arguing that DSHS owed a duty to the

Linnik child. Such an argument is unsupported by the case law and by the

statute itself. While CPS received a report that a "young girl" had been sold to

Adhahn and was living with him, the Linnik child was not the subject of the report.

All the cases that have addressed both RCW 26.44.050 and .030 have limited

the class of persons who are owed a duty to those children who are allegedly

abused and their parents. 34

       The first anonymous report to CPS stated that a "young girl" was living

and having sex with a 42-year-old man. The DSHS worker who received this call

determined that it was a "third party report'' and referred it to Pierce County. This

was consistent with the requirements of the statute.

       The Estate argues that because the girl was reported to be under 16,

DSHS's failure to "screen in" the report and investigate it was a violation of

DSHS's duty. Even if this were so, DSHS's duty would have been to the child



       32
            171 Wn.2d 69,77-78,247 P.3d 421 (2011).
       33
            ld. at 77 (emphasis added).
       34
            Blackwell, 131 Wn. App. at 378.
                                              11
No. 67475-7-1/12


who was the subject of the referral, not the Linnik child. DSHS owes a duty

under RCW 26.44.050 and .030 to a child who is abused and about whom they

receive a report. Under this duty, DSHS must non-negligently investigate the

report and properly inform law enforcement about it. 35 DSHS never received a

report concerning the Linnik child in connection with Adhahn, the alleged abuser.

Thus, she was not one to whom DSHS owed a duty under either RCW 26.44.030

or .050.

       In arguing that DSHS owed a duty to this child, the Estate relies on Lewis

v. Whatcom Countv. 36 That reliance is misplaced.

       There, this court held that upon receipt of a report concerning possible

abuse or neglect, Whatcom County owed a duty to Lewis, who was being abused

by her uncle. 37 The County argued that "it owed no duty to Lewis because her

abuser was her uncle rather than her parent."38 But the Lewis court rejected this

argument. 39 "Nothing in the plain language of this statute, which imposed a duty

to investigate on law enforcement, limits that duty to children who have been

abused by their parents or guardians. Indeed, it is a broad mandate covering

any report of possible abuse or neglect."40 But, nowhere in the Lewis opinion did



       35
            Tyner, 141 Wn.2d at 77.
       36
            136 Wn. App. 450, 149 P.3d 686 (2006).
       37
            k!.. at 453-54.
       38
            k!.. at 453.
       39   k!..
       40
            ld. at 454.


                                               12
No. 67475-7-1/13


this court imply that a public entity owes a duty to those children who are not the

subject of a DSHS report or referral but who are later harmed by a child abuser's

actions.

       The Estate argues that Lewis held "that both the statutory language and

prior Washington case law provided that 'children who may be abused or

neglected' were the class protected by the statute." But the Estate does not fully

quote the Lewis opinion, distorting the duty it implied. The court stated:

       [t]he trial court granted summary judgment, adopting the County's
       argument that it owed [] no duty to investigate because the abuse
       allegations were not against [Lewis's] parent or guardian. But RCW
       26.44.050 creates a duty to all children who may be abused or
       neglected, regardless of the relationship between the child and his
       or her alleged abuser.[41 l

It thus emphasized that RCW 26.44.050 creates a duty to children who may be

abused or neglected about whom a public entity receives a report and then

negligently investigates. Lewis does not stand for the proposition that DSHS

owes a duty to any child harmed as a result of a report of child abuse or neglect.

Nor that DSHS owes a duty to all children abused by someone about whom a

report has been submitted. Such a reading would obviate the requirement that

for a public entity to be negligent, it must have a duty to a particular person, not

to every citizen or every child.

       The Estate also argues that "[r]ather than being arbitrarily limited to the

child named in the abuse referral, this duty should instead be limited by''

foreseeability. But such an analysis ignores the duty requirement of a negligence




       41
            Lewis, 136 Wn. App. at 452.
                                             13
No. 67475-7-1/14


claim and would conflict with the longstanding jurisprudence of this state that we

discussed earlier in this opinion.

       Because the Estate fails in its burden to show any duty, we need not

address whether proximate cause exists.

                                   "Take Charge" Duty

       The Estate argues that the state DOC was negligent because it owed a

"take charge" duty to non-negligently supervise and classify Adhahn and its

failure to do so proximately caused the Linnik child's death. We hold there is no

such duty here.

       A public entity may owe a duty to an individual for a third person's criminal
                                            42
act, though this is usually not the case.        This duty exists if the entity had a

special relationship with the third person and this relationship created a duty to

take reasonable precautions to protect anyone who might foreseeably be

endangered. 43

       The supreme court first enunciated this "take charge" duty in Petersen v.
                                                                                        45
State. 44 There, the court looked to the Restatement (Second) of Torts § 315.

This section echoes the general principle that there is no duty to control the

conduct of a third person to prevent him from physically harming another, unless:




       42
         Robb v. Citv of Seattle, 159 Wn. App. 133, 142-43, 245 P.3d 242 (2010),
review granted, 171 Wn.2d 1024 (2011 ).
       43
            Taggart v. State, 118 Wn.2d 195, 218, 822 P.2d 243 (1992).
       44
            100 Wn.2d 421, 671 P .2d 230 (1983).
       45
            lit. at 426-27.
                                                  14
No. 67475-7-1/15


             (a) a special relation exists between the actor and the third
       person which imposes a duty upon the actor to control the third
       person's conduct, or

             (b) a special relation exists between the actor and the other
       which gives to the other a right to protection.

       In Petersen, Larry Knox struck and killed the plaintiff five days after being

released from Western State Hospital. 46 The doctor supervising Knox had

previously obtained a court order allowing his detention for an additional fourteen

days. 47 The evening before Knox's discharge, Knox was "apprehended by

hospital security personnel while driving his car on the hospital grounds in a

reckless fashion .... "48 Nevertheless, the doctor ordered Knox's discharge. 49

Five days later, he injured Peterson in a car collision. 50

       In the lawsuit that followed, the court held that the Knox's psychiatrist had

a "take charge" duty, as enunciated in the Restatement (Second) of Torts § 315,

to protect Knox's foreseeable victims because he should have determined that

Knox presented a serious danger to others. 5 1 In doing so, the court relied on a

California supreme court decision, Tarasoff v. Regents of University of

California. 52 There, Prosenjit Poddar told his psychologist that he planned to kill



       46
            lQ.. at 423.
       47
            lQ.. at 424.
       48   1.9.:.




       51
            .!.9.:. at 428-29.
       52
            17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

                                                 15
No. 67475-7-1/16


Tatiana Tarasoff. 53 Though the campus police briefly detained Poddar, he was

released without further action. 54 Two months later, Poddar killed Tarasoff. 55

       Following Tarasoff and Petersen, Washington courts have applied the

"take charge" duty to DOC supervision of parolees. In Taggart v. State, the

supreme court held that "parole officers have a duty to protect others from

reasonably foreseeable dangers engendered by parolees' dangerous

propensities."56 The Taggert court specifically noted that "a duty will be imposed

under§ 315 only upon a showing of a 'definite, established and continuing

relationship between the defendant and the third party."' 57 It went on to conclude

that RCW 72.04A.080, the statute governing parolees' supervision, established a

'definite, established and continuing relationship' between parole officers and

their parolees. 58 Under RCW 72.04A.080, parolees:

       shall be subject to the supervision of the department of corrections,
       and the probation and parole officers of the department shall be
       charged with the preparation of progress reports of parolees and to
       give guidance and supervision to such parolees within the
       conditions of a parolee's release from custody.

       The court also noted that sections 316 through 320 of the Restatement

(Second) of Torts were helpful in identifying where ''take charge" duties occur, "in




       53
            !Q.. at 430.




       56
            118 Wn.2d 195, 224, 822 P.2d 243 (1992).
       57
            !Q.. at 219 (quoting Honcoop, 111 Wn.2d at 193) (emphasis added).



                                                16
No. 67475-7-1/17


accordance with the general principle stated in § 315 ...."59 The court

concluded that § 319 was the most relevant in the context of parolees. 60 Section

319 states, "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."61

       In Hertog v. Citv of Seattle, the supreme court extended this "take charge"

duty as expressed under§ 319 to probation counselors and pretrial release

counselors. 62 It held that probation counselors owed such a duty because they

are "clearly in charge of monitoring the probationer to ensure that conditions of

probation are being followed, and [have] a duty to report violations to the court."63

Pretrial release counselors, too, the Hertog court held, have a "take charge" duty

because they are charged with reporting the violations of those they monitor.54

       While the Taggart court recognized that DOC may owe a "take charge"

duty to one injured by a parolee, the supreme court has also limited the extent of

this duty. In Osborn v. Mason County, the plaintiff claimed that the county had a

duty under the "take charge" doctrine to warn others of a sex offender's




       59   1ft.
       60
            1ft. at 219-20.
       61
            RESTATEMENT (SECOND) OF TORTS,§ 319 (1965).

       62
            138 Wn.2d 265, 281, 292, 979 P .2d 400 (1999).
       63
            1ft. at 279.
       64
            1ft. at 287-88.
                                                17
No. 67475-7-1/18

                65
presence.            The court rejected this claim, holding "Mason County did not 'take

charge' of [the sex offender] because it had no authority to control him."66

          Similarly, in Couch v. Department of Corrections67 and Hungerford v.

Department of Corrections, 58 both of which involved the same felon, Anthony

Davis, Division Two of this court held that DOC did not have a "take charge"

relationship with Davis. 69 At the time that Davis murdered Couch and

Hungerford, DOC:

          had authority to monitor Davis for legal financial obligations only, it
          lacked authority to monitor Davis for future criminal behavior; and if
          DOC lacked the ability to monitor Davis for future criminal behavior,
          it was not participating in a "take-char~e" relationship of the kind
          that Taggart and its progeny requireF I

          Here, as in Couch, Hungerford, and Osborn, DOC had no "take charge"

duty to Ad hahn's victims at the time that the Linnik child was murdered. The last

time that it had such control over Adhahn and an accompanying duty was in July

1997, ten years prior to the Linnik child's murder. That was when DOC

supervised Adhahn as part of his SSOSA sentence for his 1990 incest

conviction. This supervision ended at that time when the court entered its Order

Terminating Treatment and Supervision. Under Taggart and its progeny, DOC


          65
               157 Wn.2d 18, 23-24, 134 P.3d 197 (2006).
          66
               12:. at 25.
          67
               113 Wn. App. 556, 54 P .3d 197 (2002), review denied, 149 Wn.2d 1012
(2003).
          68
               135 Wn. App. 240, 139 P.3d 1131 (2006), review denied, 160 Wn.2d 1013
(2007).
          69
               12:. at 246, Couch,   113 Wn. App. at 571.
          7
           °Couch, 113 Wn. App. at 571 (emphasis added).
                                                      18
No. 67475-7-1/19


no longer had any ability to control Ad hahn's actions after termination of

supervision, or any special relationship with him. Thus, it owed no duty to the

Linnik child thereafter.

       The Estate argues that "[i]t is not the law ... that a take-charge duty

terminates when the take-charge relationship does." It then points to what it

argues was DOC's negligent supervision of Adhahn from 1990 to 1997, arguing

that these actions breached DOC's duty which it owed to the Linnik child, a

foreseeable victim. It cites Petersen to support its contention that a public entity

that breaches its duty during the "take charge" period may be liable for injuries

after the period has ended.

       But, as the Taggart court noted, in Petersen, "the patient who caused the

plaintiff's injuries was released from the hospital, where the psychiatrist had a

high degree of control over him .... "71 Taggart and its progeny have noted

that, in the context of duties owed by DOC, the degree of control and supervision

it has over an individual is critical for ascertaining whether there is a ''take

charge" duty. 72

       Here, after July 1997, DOC had no control over Ad hahn, and thus no duty

to his future victims. Further, in Petersen, only five days separated the patient's




       71
            Taggart, 118 Wn.2d at 222.
       72
          1d., Aba Sheikh v. Choe, 156 Wn.2d 441, 453, 128 P.3d 574 (2006) (''The mere
existence of some ability to control a third party is not the dispositive factor in
determining whether a take charge duty exists; rather, the purpose and extent of such
control defines the relationship for purposes of tort liability.").


                                               19
·-~No.   67475-7-1/20


 release from Western State Hospital and his causing Petersen's injuries. 73 In

 Tarasoff, two months separated the specific threat from the negligent act. 74 No

 case cited by the Estate or that we could find applies the duty to any substantially

 longer period of time. Here, ten years separated the court's termination of DOC's

 supervision and the Linnik child's murder. Thus, Petersen is distinguishable.

           In addition to Petersen, the Estate relies on several out-of-state cases to

 support its contention that a "take charge" duty does not terminate when a "take

 charge" relationship does. None of these cases are helpful, even if we chose to

  ignore the clear lines of authority that our state cases provide?5

           As with Petersen, two of these cases deal with the "take charge" duty in

 the mental health context. 76 In the third case, Smith v. Hope Village. Inc., the

  court applied the principles of duty that have developed in the District of

  Columbia, which are broader than those that Washington courts have

  expressed.n Thus, Smith is not helpful.

           The Estate argues that DOC negligently supervised Adhahn when it did

  have a "take charge" relationship with him. But, even if DOC did negligently

  supervise Ad hahn during that period, this supervision ended ten years prior to


           73
                Petersen, 100 Wn.2d at 423.
           74
                Tarasoff, 17 Cal. 3d at 430.
           75
             See Am. Best Food. Inc. v. Alea London Ltd., 168 Wn.2d 398, 408, 229 P.3d
  693 (201 0) (noting that "persuasive out-of-state precedent should not trump binding in-
  state law'').
           76
            Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St. 3d 284, 673
  N.E.2d 1311, 1332 (OH 1997); Littleton v. Good Samaritan Hasp. & Health Ctr., 39 Ohio
  St. 3d 86, 529 N.E.2d 449, 455 (OH 1988).

           n 481 F. Supp. 2d 172, 186-87 (D.C. Dist. 2007).

                                                 20
No. 67475-7-1/21


Adhahn's murder of the Linnik child. Thus, any negligent supervision from 1990

to 1997 has no impact on our analysis.

         Finally, the Estate argues that holding that DOC's "take charge" duty ends

when it terminates supervision is contrary to public policy. Public policy, as

expressed in the controlling decisions that we discussed earlier in this opinion

refutes this claim, which is unsupported by any citation to authority.

         Because there was no duty of DOC to take charge of Adhahn after the

court terminated its supervision, we need not reach the question of proximate

cause.

                                    Pierce County

         The Estate next argues that Pierce County owed a duty to the Linnik child

under several different theories, and that its breach of this duty proximately

caused her death. We disagree.

                                 "Take Charge" Duty

         First, the Estate claims that the County had a "take charge" duty to

monitor Ad hahn's sex offender registration and that its failure to do so

proximately caused Linnik's death. We reject this argument.

         As noted above, public entities have a "take charge" duty when there is a

'"definite, established and continuing relationship between the defendant and the

third party."' 78 Thus, in Taggart, the supreme court held that DOC had a "take
                                         79
charge" duty with respect to parolees.        In doing so, it looked to the language of


         78
        Taggart, 118 Wn.2d at 219 (quoting Honcoop, 111 Wn.2d at 193) (quotation
marks omitted).
         79
              kL, at 223-24.
                                                21
No. 67475-7-1/22


RCW 72.04A.080, which states that parolees "shall be subject to the

supervision of the department of corrections .... "80 Similarly, in Hertog, the

court held that, though a probation counselor lacks the ability to take full custodial

control of the parolee that is not the key question. 81 "The relevant inquiry is the

relationship of the officer with the parolee. A probation counselor is clearly in

charge of monitoring the probationer to ensure that conditions of probation are

being followed, and has a duty to report violations to the court."82

       Here, the Estate argues that RCW 9A.44.135 imposes a "take charge"

duty on counties to monitor sex offenders residing within their borders. The plain

language of this statute belies this claim. Under RCW 9A.44.135(2}:

              The chief law enforcement officer of the jurisdiction where
       the offender has registered to live shall make reasonable attempts
       to locate any sex offender who fails to return the verification form
       or who cannot be located at the registered address.

              If the offender fails to return the verification form or the
       offender is not at the last registered address, the chief law
       enforcement officer of the jurisdiction where the offender has
       registered to live shall promptly forward this information to the
       county sheriff and to the Washin~ton state patrol for inclusion in the
       central registry of sex offenders. 1 31

The statute requires the chief law enforcement officer to make reasonable

attempts to locate a sex offender. If an offender fails to return a verification form,

the law enforcement officer must then forward the offender's information to the




       80
            ld. at 219 (emphasis added).
       81
            Hertoq, 138 Wn.2d at 276-77.
       82
            .!!t. at 279.
       83
            (Emphasis added.)

                                              22
No. 67475-7-1/23


county sheriff and the Washington state patrol. There is no language in this

statute that states or implies that the chief law enforcement officer in Pierce

County has a duty to take charge of anyone under this statute.

       Indeed, the supreme court has already decided that there is no such duty

under this statute. In Osborn, the court rejected the plaintiff's claim that the

county had a "take charge" duty to warn others of a sex offender's presence,

holding "Mason County did not 'take charge' of Rosenow because it had no
                             84
authority to control him."

       The Estate argues that, because of Adhahn's history, it was foreseeable

that he would reoffend and thus the county owed a "take charge" duty to all other

inhabitants to control Adhahn. But, as discussed above, the county had no

statutory right to control him, nor any duty to do so. Without a duty, we need not

address the question of foreseeability. 85

       Additionally, the Estate contends that Pierce County owed a separate

"take charge" duty to the Linnik child to report Adhahn's presence to immigration

officials when Adhahn was in the County's custodial control. In 1992, Adhahn

served five days in the Pierce County jail. But, Pierce County had no reason to

know that Adhahn, more than any other inmate in its jails, was a danger to a third

person. Thus, this argument fails.




       84
            Osborn, 157 Wn.2d at 25.
       85
          See Halleran v. Nu West. Inc., 123 Wn. App. 701, 717, 98 P.3d 52 (2004)
(noting that foreseeability limits the scope of the duty, but does not independently create
a duty).

                                                23
No. 67475-7-1/24


      The Estate also argues that the report the County received from DSHS

regarding Adhahn "strengthened" its "take charge" duty. But this argument fails

as there was no duty to "strengthen."

      Because the Estate cannot demonstrate duty, we need not reach

proximate cause.

                     Implied Duty Under RCW 26.44. 050 and .030

      The Estate also argues that the County owed a duty under RCW

26.44.050 and .030. We disagree.

      As discussed previously in this opinion, the supreme court has recognized

an implied duty owed to abused and neglected children and to parents under

RCW 26.44.050 and .030. 86 Since recognizing this duty, the court has

continuously limited to whom this duty is owed. 87 Here, because the Linnik child

was not a subject of such a referral, the County owed no duty to her to

investigate any reports it received regarding Adhahn.

       Because Pierce County owed no duty to the Linnik child under these

statutes, we need not address proximate cause.

                    Failure to Enforce Exception - RCW 9A.44. 135

       The Estate also claims that the County owed it a duty to enforce the

requirements of RCW 9A.44.135. We reject this claim.




       86
            Tyner, 141 Wn.2d at 77-78.
       87
            Ducote, 167 Wn.2d at 704; Blackwell, 131 Wn. App. at 378.

                                               24
No. 67475-7-1/25


       The "failure to enforce exception" is another of the focusing tools that our

courts have enunciated with respect to public entity liability. 88 It applies "where

governmental agents responsible for enforcing statutory requirements possess

actual knowledge of a statutory violation, fail to take corrective action despite a

statutory duty to do so, and the plaintiff is within the class the statute intended to

protect."89 This duty applies "only where there is a mandatory duty to take a

specific action to correct a known statutory violation." 90 Thus, "[s]uch a duty

does not exist if the government agent has broad discretion about whether and

how to act. "91

       In Bailey v. Town of Forks, the supreme court held that Forks owed Bailey

a duty under the failure to enforce exception. 92 There, Bailey was injured after an

intoxicated motorcyclist collided with her truck. 93 Prior to the accident, a Forks

police officer had contact with the motorcyclist and knew or should have known

that the motorcyclist was intoxicated. 94 The court held that under RCW

46.61 .515 and 70.96A.120(2), "a police officer has a statutory duty to take into




       88
             Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987).
       89
             .!9.:. at 268.
       90
             Donohoe v. State, 135 Wn. App. 824, 849, 142 P.3d 654 (2006) (emphasis
added).
       91
             Halleran, 123 Wn. App. at 714.
       92
             108 Wn.2d 262,269, 737 P.2d 1257 (1987).
        93
             .!9.:. at 263.
        94
             .!9.:. at 264-65.
                                                25
No. 67475-7-1/26


custody a publicly incapacitated individual." 95 The court also noted that the

police officer "took no corrective action and possessed actual knowledge of [the

motorcyclist's] statutory violations. "96

       Here, the Estate argues that the County breached a duty by failing to

enforce RCW 9A.44.135. But, in contrast to Bailey, RCW 9A.44.135 does not

create a mandatory duty for the County to act. As previously discussed, the plain

words of the statute state that the chief law enforcement officer of a jurisdiction

"shall make reasonable attempts to locate any sex offender who fails to return

the verification ...         :m   Nowhere does this statute require law enforcement to act

in a specific way once the express requirements of the stature are met.

       Because RCW 9A.44.135 does not mandate law enforcement take a

specific action to verify sex offenders' addresses, it does not create a mandatory

duty. Thus, we reject the Estate's argument.

                                               Tacoma

       The Estate also argues that Tacoma owed a duty to the Linnik child under

the rescue doctrine and RCW 26.55.050. We disagree.

                                          Rescue Doctrine

       First, the Estate argues that because Tacoma issued an AMBER Alert

more than 10 hours after Linnik was reported missing, it assumed a duty to warn




       95
            !.9.:. at 269.
       96   !it
       97
            RCW 9A.44.135(2) (emphasis added).

                                                     26
No. 67475-7-1/27


or come to Linnik's aid and did so negligently, proximately causing her death.

We disagree.

       As enunciated in Bailey, a public entity may owe a duty to an individual

plaintiff, and thus may be liable for negligence, ''when governmental agents fail to

exercise reasonable care after assuming a duty to warn or come to the aid of a

particular plaintiff (rescue doctrine)."98 Under this doctrine, a person "may be

liable for attempting a voluntary rescue and making the plaintiff's situation

worse if that person (1) increases the danger; (2) misleads the plaintiff into

believing the danger has been removed; or (3) deprives the plaintiff of possible

help from others."99 As the supreme court noted, "reliance is the linchpin of the

rescue doctrine." 100

       In Osborn, the supreme court held that Mason County did not owe the

plaintiff a duty under the rescue doctrine because "the Osborns did not rely on

Mason County's assurances." 101 There, a Mason County detective told one

county resident that he would post fliers notifying the community that a registered

sex offender had moved into the area. 102 He never spoke with Osborn. 103 The

detective failed to post any fliers, and the sex offender raped and murdered

       98
             Bailey, 108 Wn.2d at 268.
       99
             Ganno v. Lanoga Corp., 119 Wn. App. 310, 316, 80 P.3d 180 (2003).
       100
             Osborn, 157 Wn.2d at 25; see also Chambers-Castanes, 100 Wn.2d at 285
n.3 (noting that under the rescue doctrine a governmental entity may be liable where
''the offer to render aid is relied upon by either the person to whom the aid is to be
rendered or by another .... ").
       101
             k!:. at 25.
       102
             k!:. at 21.
       103   k!:.
                                                27
No. 674 75-7-1/28


Osborn. 104 The court held that Mason County did not owe Osborn a duty and

thus was not negligently liable for her death. 105

       [T]he Osborns do not claim Mason County promised to warn them
       of [the sex offenders] presence .



              . . . [T]he Osborns relied on neither Mason County nor [the
       police officer] to warn them of [the sex offenders] presence.
       Accordingly, Mason County had no duty to warn the Osborns under
       the rescue doctrine.r1061

The court noted that, "[u]nder the rescue doctrine, both public and private,

entities have a duty to warn those who reasonably rely on a promise to warn.

But no duty to warn exists under the rescue doctrine without reasonable reliance

on such a promise." 107

       Here, the Estate could not reasonably rely on a promise made by Tacoma

to issue the AMBER Alert within a specific time. Nowhere in the record does the

Estate claim that Tacoma assured the Linniks that it would issue an AMBER

Alert. Thus, the Estate cannot demonstrate that it detrimentally relied on Tacoma

with specific regard to the AMBER Alert. Because detrimental reliance is an

essential element of the rescue doctrine, the Estate cannot demonstrate that

Tacoma owed it a duty under this theory.




       104llt


       105
             llt   at 23-26.
       106
             ld. at 26-27.

       1o7llt      at 28.

                                              28
No. 67475-7-1/29


          The Estate argues that "[i]ssuance of an Amber Alert is a rescue attempt,"

because its goal, as defined by the U.S. Department of Justice, is to "instantly

galvanize the entire community to assist in the search for and safe recovery of

the child." 108 But, this is essentially a claim for negtigent investigation.

          "A claim for negligent investigation is not cognizable under Washington
        109
law."         This is because "[a] mandatory duty to investigate ... would be

completely open ended as to priority, duration, and intensity. . . . Law

enforcement must be vested with broad discretion to allocate limited resources

among the competing demands." 110

          As Tacoma notes, an AMBER Alert galvanizes the entire community to

assist in the "police investigatiori' in the search and safe recovery of an

abducted child. Thus, to argue that an AMBER Alert was issued negligently is to

argue that a police investigation was negligent. This is not a cognizable claim. 111

          The Estate also relies on Brown v. MacPherson's lnc. 112 and Folsom v.
                   113
Burger King,             arguing that these cases support its position that Tacoma owed it

a duty. They do not.




          108
                Brief of Appellants at 40-41.
          109
                Fondren v. Klickitat Countv, 79 Wn. App. 850, 862, 905 P.2d 928 (1995).
          110
                Donaldson v. City of Seattle, 65 Wn. App. 661,671-72,831 P.2d 1098 (1992).
          111
                .!.Q.. at 671; Fondren, 79 Wn. App. at 862.
          112
                86Wn.2d 293,545 P.2d 13 (1975).
          113
                135 Wn.2d 658, 958 P.2d 301 (1998).

                                                      29
No. 67475-7-1/30


       In Brown, two plaintiffs sued the State of Washington for injuries to life and

property sustained after an avalanche. The State ''was specifically warned of the

extreme hazard of avalanche danger'' on the plaintiffs' property but failed to

communicate this warning to any of the known owners and occupants of the

property. 114 The supreme court held that the trial court incorrectly dismissed the

suit against the State. 115 In so holding, the court relied on the fact that the

State's failure to inform the property owners of the avalanche danger may have

prevented the property owners from other aid or assistance. 116 Thus, the State's

actions may have "increase[d] the risk of harm to those" it was trying to assist. 117

       Here, in contrast to Brown, the issuance of an AMBER Alert, tardy as it

was, did not cause others to refrain from acting, nor did it increase the risk of

harm to the Linnik child. In the absence of Tacoma's issuance of the AMBER

Alert, the Linnik child would not have received further aid from others. Thus,

whether it was issued four hours after Tacoma police initially requested did not

increase the risk of the harm to the Linnik child.

       Nor does Folsom alter our analysis. There, the court outlined the

principles of the rescue doctrine, holding that the respondents in the case owed

no duty to Folsom. The court stated that "[a] person who undertakes, albeit

gratuitously, to render aid to or warn a person in danger is required by



       114
             Brown, 86 Wn.2d at 295-96.
       115
             !!l at 299.
       116   !!l
       117   !!l
                                              30
No. 67475-7-1/31


Washington law to exercise reasonable care in his or her efforts." 118 But, the

court continued, noting that only if "a rescuer fails to exercise such care and

consequently increases the risk of harm to those he or she is trying to

assist' is there a duty under this doctrine. 119 Here, Tacoma did not increase the

risk of harm to the Linnik child, as noted above. Thus, Folsom is not helpful.

                     Restatement (Second) of Torts Section 3028

       Finally, the Estate argues that the State, Pierce County, and Tacoma all

owed it a duty because they all acted affirmatively and exposed the Linnik child

to an unreasonable risk of harm from a third party. They rely on Restatement

(Second) of Torts§ 3028. We hold that the Estate cannot demonstrate that any

of the respondents owed it or the Linnik child a duty under § 3028.

       In Parrilla v. King County, the supreme court recognized that a duty of
                                         120
care could be compelled by § 3028.             This section provides: "An action or

omission may be negligent if the actor realizes or should realize that it involves

an unreasonable risk of harm to another through the conduct of the other or a

third person which is intended to cause harm, even though such conduct is

criminal." 121 The comments to the section go on to note that:

       [t]here are ... situations in which the actor, as a reasonable man, is
       required to anticipate and guard against the intentional, or even
       criminal, misconduct of others. In general, these situations arise
       where the actor is under a special responsibility toward the one
       who suffers the harm, which includes the duty to protect him

       118
             Folsom, 135 Wn.2d at 676.

       1191!t.


       120
             138 Wn. App. 427,439, 157 P.3d 879 (2007).
       121
             RESTATEMENT (SECOND) OF TORTS,      § 3028 (1965).

                                                  31
No. 67475-7-1/32


       against such intentional misconduct; or where the actor's own
       affirmative act has created or exposed the other to a
       recognizable high degree of risk of harm through such
       misconduct, which a reasonable man would take into
       account. !1221

       Two cases have found a duty owed by a public entity under § 3028:

Parrilla and Robb v. City of Seattle. 123 In Parrilla, a bus driver affirmatively acted

by leaving a passenger on a running bus. 124 The passenger was "exhibiting

bizarre behavior, including acting as if he were talking to somebody outside of

the vehicle although nobody was there, yelling unintelligibly, and striking the

windows of the bus with his fists." 125 The driver left the bus, and the passenger
                                                                               126
then moved into the driver's seat and drove the bus into several vehicles.           The

court held that:

       the bus driver left the bus with the engine running next to the curb
       of a public street, with [a disturbed passenger] on board.
       Significantly, the bus driver was fully aware that [the passenger]
       was acting in a highly volatile manner .... Furthermore, ... the 14-
       ton bus here was a vehicle uniquely capable of inflicting severe
       damage. The risk of harm arising from the criminal operation of
       such a vehicle was recognizably high. Moreover, the bus was
       stolen by [the passenger] mere moments after it was left
       unattended, not at a remote future time by an unknown individual ..
         [127]




       122
             .!Q, (emphasis added).
       123
          159 Wn. App. 133, 245 P.3d 242 (2010), vacated, _Wn.2d _ , 295 P.3d
212 (2013).
       124
             Parrilla, 128 Wn. App. at 431.
       125   .!Q,

       126
             .!Q, at 430.
       127
             .!Q, at 440.
                                              32
No. 67475-7-1/33


      Similarly, in Robb this court held that the evidence in that case would

support a duty instruction based on § 3028. 128 There, Samson Berhe shot and

killed Michael Robb. 129 Before murdering Robb, Berhe had twice been taken to

Harborview Hospital for a mental evaluation at the request of his family, who

were afraid for their safety. 130 And, during the week in which he shot Robb,

police learned that Behre "was again engaging in bizarre and aggressive
                                             131
behavior and that he possessed a shotgun."         Finally, the day of Robb's

murder, Berhe was detained by two Seattle police officers. 132 During the

detention, the officers "noticed yellow shotgun shells on the curb next to where

Berhe was standing." 133 They then released Berhe. 134 The officers took control

of the situation and then departed from it, "leaving shotgun shells lying around

within easy reach of a young man known to be mentally disturbed and in

possession of a shotgun." 135 This court held that, given the Seattle Police

Department's knowledge of Berhe's erratic and violent behavior, a jury could find




       128
             Robb, 159Wn. App. at 135.

       129   .!.Q..

       130
             .!.Q.. at 136.
       131   .!.Q..

       132   .!.Q..

       133
             .!.Q.. at 137.

       1341d.
       135
             .!.Q.. at 147.
                                            33
No. 67475-7-1/34


that the officers' affirmative acts created a recognizable and extremely high risk

of injury to a third person. 136

       In contrast to Parrilla and Robb, in Tae Kim v. Budget Rent A Car

Systems. Inc., the supreme court held that Budget owed no duty under§ 302B to
              137
Peter Kim.          There, Kim was injured by a Budget vehicle after Demicus Young

stole the car and ran a red light, severely injuring the plaintiff. 138 The car had

been left in the Budget lot with the keys in the ignition, and Kim argued that

Budget should have foreseen the theft of this car and possible injury of others. 139

The court rejected this argument. Section 302B, the court noted, "does not mean

that any risk of harm gives rise to a duty. Instead, an unusual risk of harm, a

'high degree of risk of harm,' is required." 140

        Here, the Estate fails to identify any specific affirmative acts of any of the

defendants that could have foreseeably resulted in Linnik's death. That is

because, as in Kim, there were none.

        Because none of the respondents undertook any identifiable affirmative

acts that would imply a duty under § 302B, the Estate cannot demonstrate that

they were negligent.




        136   kL.
        137
              143 Wn.2d 190, 194, 15 P.3d 1283 (2001).
        138
              kL. at 194.
        139
              kL. at 195.
        140
              kL. at 196 (emphasis added).
                                                34
No. 67475-7-1/35


                                   General Negligence

       In addition to arguing that each governmental entity breached the specific

duties we have already discussed in this opinion, the Estate also argues that

these entities were more generally negligent. It also argues that "neither duties

nor causation may be parsed out act by act-instead, the defendants' negligence

must be considered as a whole." We reject these assertions.

       The Estate relies on Osborn and Robb to argue a more general duty of

negligence. Neither case supports its argument.

       The supreme court's holding in Osborn, emphasized the need for a

particularized duty. 141 As we have previously noted, there, a Mason County

police officer failed to distribute fliers notifying the community of a level three

registered sex offender's presence in the community. 142 The court held that

Mason County owed no particularized duty to the Osborns because the police

officer never promised them it would distribute these fliers. 143 Thus, the duty that

Mason County owed to the Osborns was no different from the duty it owed to the

public at large. 144

       Nor does this court's opinion in Robb alter this duty analysis. There, this

court held that summary judgment was inappropriate where Seattle could have




        141
              Osborn, 157 Wn.2d at 27-28.
        142
              lQ.. at 21.
        143
              ld. at 23-26, 28.
        144
              lQ.. at 28.
                                               35
No. 67475-7-1/36

                                                        145
breached a particularized duty it owed to Robb.               This duty resulted from law

enforcement's specific affirmative act that they should have reasonably known
                                 146
would create a risk of injury.         The court stated "[i]f a risk is foreseeable, an

individual generally has a duty to exercise reasonable care to prevent it." 147

       But, foreseeabilty does not obviate the need to first establish a duty owed

to the plaintiff by the defendant. As the supreme court recently stated, "[w]hen a

duty is found to exist from the defendant to the plaintiff then concepts of

foreseeability serve to define the scope of the duty owed." 148 Thus, "(i]t is not ...

the unusualness of the act that resulted in injury to plaintiff that is the test of

foreseeability, but whether the result of the act is within the ambit of the hazards

covered by the duty imposed upon [the] defendant." 149

       The Estate argues that "the existing exceptions" to the public duty doctrine

that our courts have outlined "do not exhaust the universe of liability for public

entity defendants." This is true. But the Estate must still demonstrate that each

public entity it charges with negligence had a specific duty to it, rather than a

general duty to the public as a whole. It has failed to do so.




       145
             Robb, 159 Wn. App. at 147.
       146
             lih at 142.
       147&


       148
           Michaels v. CH2M Hill. Inc., 171 Wn.2d 587, 608, 257 P.3d 532 (2011)
(quoting Schooley v. Pinch's Deli Market. Inc., 134 Wn.2d 468, 475, 951 P.2d 749
(1998)) (alteration in original).
       149
             Rikstad v. Holmberg, 76 Wn.2d 265, 269, 456 P.2d 355 (1969) (emphasis
added).

                                                   36
No. 67475-7-1/37


                    ESTATE'S MOTION TO RECONSIDER OR AMEND

          The Estate argues that the trial court abused its discretion when it denied

its Motion to Reconsider Striking Briefing on RCW 26.44.050, or in the

AUernative, Plaintiffs' Motion to Amend Complaint. We disagree.

          CR 15(a) provides that "[a] party may amend the party's pleading only by

leave of court or by written consent of the adverse party; and leave shall be freely

given when justice so requires." An appellate court reviews a trial court's denial

of a motion to amend for an abuse of discretion. 150 A court should freely grant

leave to amend, unless doing so would result in prejudice to the nonmoving
         151
party.          "In determining whether prejudice would result, a court can consider

potential delay, unfair surprise, or the introduction of remote issues" as well as

the futility of the amendment. 152

          Here, the court denied the Estate's supplemental briefing on the duty

Tacoma owed the Estate under RCW 26.44.050, as well as its motion to

reconsider this decision or, in the alternative, to allow it to amend its complaint.

This was not an abuse of discretion. As Tacoma correctly argued below and on

appeal, the Estate's argument under RCW 26.44.050 was futile. As discussed



          15
               °Karlbera v. Otten, 167 Wn. App. 522, 529,280 P.3d 1123 (2012).
          151
          Caruso v. Local Union No. 690 of lnt'l Bhd. of Teamsters, 100 Wn.2d 343,
350, 670 P.2d 240 (1983).
          152
           Kirkham v. Smith, 106 Wn. App. 177, 181, 23 P.3d 10 (2001); Haselwood v.
Bremerton Ice Arena. Inc., 137 Wn. App. 872, 889, 155 P.3d 952 (2007); see Doyle v.
Planned Parenthood of Seattle-King Countv. Inc., 31 Wn. App. 126, 131,639 P.2d 240
(1982) ("In addition to timeliness, the court may consider the probable merit or futility of
the amendments requested."); see also lno lno. Inc. v. Citv of Bellevue, 132 Wn.2d 103,
142, 937 P.2d 154 (1997) (holding that denial of motion to amend was not abuse of
discretion because it was both untimely and ''would have been futile").

                                                  37
No. 67475-7-1/38


above, RCW 26.55.040 has been interpreted by the courts to imply a duty owed

to children and their parents who are abused or neglected, about whom law

enforcement has received reports. 153 Because Linnik is not within the group of

people to whom this duty is owed, Tacoma owed no duty to her under this

statute, and any argument that it did is futile. Thus, the lower court's denial of the

Estate's motion was not an abuse of discretion.

       The Estate argues that because Washington is a notice pleading state,

and because its complaint against Tacoma set forth a general theory of recovery,

it was an abuse of discretion for the court not to allow amendment. But, this

argument does not address the fact that any argument that Tacoma had a duty to

Linnik under RCW 26.44.050 was futile. Thus, it is not helpful.

       We affirm the summary judgment orders dismissing the claims.




WE CONCUR:




       153
             Tyner, 141 Wn.2d at 77-78.

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