                                                                  F IL En
                                                          COURT OF
                                                           STATE OFAPPEALS-DIV
                                                                    WASHINGTON
                                                                               I

                                                          2017 DEC -4 MIO:15




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CATHY HARPER, individually, as
Personal Representative of the                  DIVISION ONE
ESTATE OF TRICIA PATRICELLI, as
Guardian ad Litem for KHALANI                   No. 76008-4-1
MICHAEL, a minor child, and as
Guardian ad Litem for NIYERRAH
MICHAEL, a minor child,
                                                PUBLISHED OPINION
                    Appellant,

             v.               )
                              )
STATE OF WASHINGTON;          )
WASHINGTON DEPARTMENT OF      )
CORRECTIONS, a governmental   )
entity,                       )
                              )
                 Respondents, )
                              )
RHONDA FREELAND and JOHN DOE )
FREELAND, and their marital   )
community                     )
                              )
                 Defendants.  )
                              )                 FILED: December 4, 2017
                              )

      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
No. 76008-4-1/2


as to whether DOC breached its take charge duty owed toward PatriceIli 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.

                                                 1

        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 PatriceIli, Harper's daughter. Specifically, Miller had

been convicted of 4 domestic violence felonies, 2 of which were against PatriceIli,

and 18 domestic violence misdemeanors,4 of which were against PatriceIli.

        In addition, multiple no-contact orders had been issued against Miller,

barring him from interacting with PatriceIli. 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 PatriceIli.

        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




        1 Miller's misdemeanant supervision was in part due to a prior conviction for violation of a
no-contact order prohibiting him from contacting PatriceIli.

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No. 76008-4-1/3


release effectively prohibited him from having physical contact with PatriceIli 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 DOG 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


        2 The no-contact order permitted Miller to have personal contact with PatriceIli in the
event that he was incarcerated or in residential chemical dependency treatment.
        3 Freeland received verification the next day that Miller had scheduled an intake
appointment to begin receiving mental health services.

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No. 76008-4-1/4


assignment as supervisor of Miller's community placement. Freeland telephoned

PatriceIli and left a message for her, requesting a return call. Freeland did not

again attempt to contact PatriceIli.

       Freeland also contacted Angela Coker, who was currently assigned to

PatriceIli as a DOC community victim liaison due to Miller's prior crimes of

domestic violence against PatriceIli. In the time leading up to Freeland's

supervision of Miller, Coker had successfully contacted PatriceIli using a different

telephone number than the number dialed by Freeland. Coker told Freeland that

she had spoken with PatriceIli and that PatriceIli said that she had changed

residences, believed that Miller did not know where she would be living, and was

aware that she could contact DOG 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



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No. 76008-4-1/5


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 PatriceIli's apartment. Inside the

apartment, she found PatriceIli near death, the victim of multiple stab wounds.

PatriceIli died shortly thereafter. Miller was later convicted of PatriceIli'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.

                                          11

       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. Hertoq,

138 Wn.2d at 275.




                                          5
No. 76008-4-1/6




       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




                                          6
No. 76008-4-1/7


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, 155 Wn.2d at 320; Taggart, 118 Wn.2d at 224; Bishop Iv.
        Michel, 137 Wn.2d [518,1 528-29, 531[, 973 P.2d 465(1999)1.

               Whether the department owed plaintiffs a section 319 duty
        actionable in the circumstances of this case depends on the terms
        defining [the community corrections officer's] relationship with [the
        offender]. See Bishop, 137 Wn.2d at 528("The relevant inquiry is
        the relationship of the officer with the parolee.") Statutes and
        conditions of sentence are relevant to this inquiry. Taggart, 118
        Wn.2d at 219; Bishop, 137 Wn.2d at 528-29, 531; Joyce, 155
        Wn.2d at 317, 319-20. The tort of negligent supervision is not
        unlimited. If the department "is not authorized to intervene, it
        cannot have a duty to do so." Couch v. Dep't of Corr., 113 Wn.
        App. 556, 569, 54 P.3d 197(2002), review denied, 149 Wn.2d
        1012,69 P.3d 874 (2003); Joyce, 155 Wn.2d at 320 n.3.

Mock, 403 P.3d at 108.




         4 A claim that DOC made during oral argument with regard to instructing the jury on its
take charge duty bears mentioning. Specifically, DOC claimed that it is unnecessary to instruct
the jury as to the take charge duty so long as the jury is instructed as to the gross negligence
standard.
         This is incorrect. We have never held that instructing the jury as to a party's duty in a
special relationship case is unnecessary. Indeed, we have expressly rejected that proposition,
reversing trial court decisions when the jury was not instructed as to the applicable common law
special relationship duty. See ext., Hendrickson v. Moses Lake Sch. Dist., 199 Wn. App. 244,
247-49, 398 P.3d 1199 (2017); Quynn v. Bellevue Sch. Dist., 195 Wn. App. 627, 641, 383 P.3d
1053(2016); Hopkins v. Seattle Pub. Sch. Dist. No. 1, 195 Wn. App. 96, 103, 107-08, 380 P.3d
584, review denied, 186 Wn.2d 1029(2016).

                                                 7-
No. 76008-4-1/8


                                           C

          Harper contends that genuine issues of material fact remain for trial as to

whether DOC breached its take charge duty toward PatriceIli while supervising

Miller.

          The statutory provision guiding whether DOC and its community

corrections officers breached their take charge duty while rendering community

placement activities is set forth in RCW 72.09.320. The statute provides:

          Community placement—Liability. The state of Washington, the
          department and its employees, community corrections officers, their
          staff, and volunteers who assist community corrections officers in
          the community placement program are not liable for civil damages
          resulting from any act or omission in the rendering of community
          placement activities unless the act or omission constitutes gross
          negligence.

RCW 72.09.320(emphasis added).

          Thus, DOC and its correctional officers breach their take charge duty

when they are grossly negligent in rendering community placement activities. A

weathered but still vital Supreme Court opinion explicates upon the quantum of

care that constitutes gross negligence.

                                            1

          More than half a century ago, our Supreme Court decided Nist v. Tudor,

67 Wn.2d 322, 407 P.2d 798 (1965), a vehicular collision case that impelled the

court to undertake a "study of gross negligence." Nist, 67 Wn.2d at 323. The

court's opinion, authored by Justice Hale, acknowledged at the outset that

                [a] review of the commentaries, scholarly treaties and case
          law on gross negligence shows the term to have universally
          escaped definition, and despite the most assiduous efforts to give it
          precision it retains its amorphous quality. Every qualifying word


                                           8
No. 76008-4-1/9


       added to sharpen the phrase seems to obscure in about the same
       degree as it clarifies it and inevitably invites further definition. Or,
       standing alone in its self-contained significance, great negligence,
       the idea remains extremely difficult for the trial courts to apply in
       specific situations. The problem ever remains: Was there sufficient
       proof of great negligence to submit the issue to the jury?

Nist, 67 Wn.2d at 325 (footnote omitted). The court then reviewed its decades-

old decisions, noting that, lailthough retaining slight care as a standard, this

court has in recent years, where there is substantial evidence of acts or

omissions seriously negligent in character, inclined toward leaving the question

of gross negligence to the jury." Nist, 67 Wn.2d at 326.

       Thereafter, the court set out to clarify the gross negligence standard:

                We have many times said that failure to exercise slight care
       is gross negligence within the meaning of the motor vehicle
       statutes. Since this statement seems as appropriate in describing
       the concept as the other definitions offered, we should amplify the
       definition so that it may be more readily applied by the trial courts in
       given situations.
                Gross negligence may be more readily understood if
       anchored to or guided by other more understandable concepts, and
       ought to be directly related to the hazards of the occasion in which
       it is invoked. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162
       N.E. 99, 59 A.L.R. 1253(1928). A gentle push of one window
       washer by another may be merely a playful gesture and of only the
       slightest negligence when both are standing in a basement window
       well, but put the same two men on the window ledge of a
       skyscraper, 30 stories above the ground, and the same playful
       gesture becomes an act of the grossest negligence, if not one of
       wanton depravity.
                The term gross negligence, then, to have practical validity in
       the trial of a cause, should be related to and connected with the
       law's polestar on the subject, ordinary negligence. . . . Gross
       negligence, being a form of negligence on a larger scale, must also,
       like ordinary negligence, derive from foreseeability of the hazards
       out of which the injury arises.
                It means, therefore, gross or great negligence, that is,
       negligence substantially and appreciably greater than ordinary
       negligence. Its correlative, failure to exercise slight care, means
       not the total absence of care but care substantially or appreciably


                                          9
No. 76008-4-1/10


       less than the quantum of care inhering in ordinary negligence. In
       determining the degree of negligence, the law must necessarily
       look to the hazards of the situation confronting the actor.

Nist, 67 Wn.2d at 330-31.

       As one pertinent application of the gross negligence standard, the Nist

court discussed its decision in Emery v. Milk, 62 Wn.2d 617, 384 P.2d 133

(1963), in which the court observed that although

       the host driver demonstrated a number of the elements of care by
       driving in her proper lane with her lights on, keeping her car under
       control, we said that failure to stop at a stop sign and yield the right
       of way in driving through an obstructed intersection provided
       evidence of gross negligence, creating an issue of fact for the jury.

67 Wn.2d at 328. The court emphasized that, in Emery, "[t]he elements of care

shown in controlling and operating the car did not cancel the elements of gross

negligence implicit in driving across an obstructed arterial street at 30 miles per

hour without stopping." Nist, 67 Wn.2d at 328.

       With this framework, the Nist court proceeded to address the merits of the

case before it.

              Although Mrs. Tudor, the driver, had slowed her car to a
       near stop, had her left-turn blinker signal on to warn following cars
       and waited for them to go by, her negligence, if any, should
       therefore, be measured in the case not by dangers from following
       cars but from the hazards whereof plaintiff received her injuries—
       the oncoming truck. Any care or prudence exerted by the
       defendant driver here had reference to following cars and little or no
       relationship to the hazards generated by the approaching truck, for
       the truck had the right of way, and the duty to yield rested upon the
       Tudor car before making its left turn.
              Neither slowing down, nor signaling, nor looking toward a
       truck coming toward her on a clear, dry day on a straight, level road
       reduced the hazards from so imminent and perceptible a danger
       unless her actions suited the needs of the occasion. Her acts and
       omissions in turning suddenly into so obvious a danger supplied
       evidence from which a jury could well infer that she acted in the
       exercise of so small a degree of care under the circumstances as to

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No. 76008-4-1/11


      be substantially and appreciably more negligent than ordinary, and
      hence could be held guilty of gross or great negligence.

Nist, 67 Wn.2d at 331-32.

      Given that, the court instructed:

             If there is substantial evidence of seriously negligent acts or
      omissions on the part of the host driver, then the issue of gross
      negligence should be resolved by the jury under proper
      instructions.

              Because gross negligence is a species of aggravated
      negligence, the jury should have an understanding of what the law
      means by ordinary negligence so that it may have a basis of
      comparison; consequently, the jury should be given the benefit of
      the law's classic definition of negligence coupled with the definition
      of and the rule concerning proximate cause....
              Finally, we believe the jury—having received the classic
      definition of ordinary negligence—will better understand the idea of
      gross negligence if it is informed that gross negligence means what
      the term implies—great negligence, negligence substantially or
      appreciably greater than ordinary negligence.

Nist, 67 Wn.2d at 332-33.

      In the present case, if the question of whether DOC was grossly negligent

in its community placement actions was put to a jury, the law summarized in the

Washington Pattern Jury Instructions regarding ordinary negligence, ordinary

care, and gross negligence would be pertinent. These instructions read:

                                   WPI 10.01
                     NEGLIGENCE—ADULT—DEFINITION
             Negligence is the failure to exercise ordinary care. It is the
      doing of some act that a reasonably careful person would not do
      under the same or similar circumstances or the failure to do some
      act that a reasonably careful person would have done under the
      same or similar circumstances.

                                 WPI 10.02
                 ORDINARY    CARE—ADULT—DEFINITION
            Ordinary care means the care a reasonably careful person
      would exercise under the same or similar circumstances.
No. 76008-4-1/12



                                     WPI 10.07
                      GROSS NEGLIGENCE—DEFINITION
              Gross negligence is the failure to exercise slight care. It is
       negligence that is substantially greater than ordinary negligence.
       Failure to exercise slight care does not mean the total absence of
       care but care substantially less than ordinary care.

6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 10.01,

.02, .07, at 124, 126, 132 (6th ed. 2012)(boldface omitted).

       In summary, as Justice Hale well-illustrated with his example of the

window washers, the sufficiency of evidence of gross negligence is not merely a

function of the quantity of evidence presented, it is also a function of the

significance the jury could give to that evidence in light of the foreseeable

danger. It is in this latter respect that the distinction between ordinary negligence

and gross negligence will often be manifest. But the drawing of such distinction

will almost always require the fact-finding judgment of a jury, as opposed to the

legal analysis of a court.

                                          2

       We must next determine whether genuine issues of material fact exist as

to whether DOC breached its take charge duty owed to Patricelli.

       Our analysis necessarily focuses on the sentencing condition most

pertinent to Patricelli's safety—the no-contact order. Just as with the driver in

Nist, that DOC may have exercised the appropriate care with regard to other

factors does not, as a matter of law, "cancel," Nist, 67 Wn.2d at 328, the

evidence of gross negligence regarding the enforcement of the no-contact order.




                                        -12-
No. 76008-4-1/13


       First, Freeland attested during her deposition that she possessed a

physical copy of Miller's field file and had access to DOC's electronic offender

management system. This is significant because these records detailed that

Miller had a long history of violating no-contact orders prohibiting him from

contacting PatriceIli and of lying to community corrections officers when asked if

he was contacting or residing with PatriceIli.

       Next, Freeland attested in her deposition that, in determining whether

Miller had truthfully filled out his housing report log, "1 can't assume that he's

always lying to me, but 1 can't always assume that he's telling me the truth."

Accordingly, viewed in the light most favorable to Harper, Freeland reviewed

Miller's hOusing report logs in the same manner as she would have with any

other offender, notwithstanding Miller's clear record of violating no-contact orders

so that he could reside with PatriceIli and lying to DOC officers about whether he

had been residing with her.

       Furthermore, the parties do not dispute that Freeland made only one

attempt to contact PatriceIli by telephone in the two weeks of her supervision of

Miller—an attempt that was unsuccessful. This is significant because available

to Freeland in DOC's electronic records system was another telephone number

for PatriceIli at which she had been successfully contacted in the weeks leading

up to her murder. However, Freeland did not make any attempt to contact

PatriceIli using the alternative telephone number.

       Lastly, when Benton called Freeland to indicate that Miller could reside

with her going forward, Freeland did not ask Benton whether Miller had, in



                                        -13-
No. 76008-4-1/14


actuality, been residing with her during his community placement, as Miller's

housing report logs suggested. If Freeland had the requisite level of familiarity

with Miller's record of lying about where he had been residing, she would have

been more likely to inquire into whether he had actually been staying with Benton

during his term of community placement. This is significant because it would

have given Freeland a basis on which to inquire into whether Miller had violated

the no-contact order.

       Taking all reasonable inferences in favor of Harper, a jury could find that,

notwithstanding the steps that were taken in discharge of the take charge duty,

Nist, 67 Wn.2d at 328, these facts support a conclusion that, with regard to the

no-contact order, DOC exercised less than slight care in its supervision of Miller,

thereby breaching its applicable duty.

        Accordingly, the trial court erred by granting summary judgment of

dismissa1.5

                                               III

        Harper also contends that she may prevail on her negligent infliction of

emotional distress claim by establishing ordinary negligence, rather than gross

negligence, on the part of DOC in its rendering of community placement

activities. Harper is wrong.

        Again, RCW 72.09.320 provides:


          5 We do not consider DOC's claim that Harper failed to establish proximate cause
because DOC did not present this argument to the trial court in its opening summary judgment
materials. King v. Rice, 146 Wn. App. 662, 668, 191 P.3d 946(2008)(citing White v. Kent Med.
Ctr., Inc., P.S., 61 Wn. App. 163, 169, 810 P.2d 4(1991)).
          We further emphasize that our determination is restricted to the circumstances of this
case. No record was made of the abilities or authorization to intervene applicable to probation
officers in limited jurisdiction courts. Cf. Couch, 113 Wn. App. at 569.

                                             - 14 -
No. 76008-4-1/15


       Community placement—Liability. The state of Washington, the
       department and its employees, community corrections officers, their
       staff, and volunteers who assist community corrections officers in
       the community placement program are not liable for civil damages
       resulting from any act or omission in the rendering of community
       placement activities unless the act or omission constitutes gross
       negligence.

(Emphasis added.) Accordingly, in a civil action against DOC regarding its

rendering of community placement activities, no liability attaches to DOG for any

act or omission unless the act or omission constitutes gross negligence.

       Harper's negligent infliction of emotional distress claim is a civil action

against DOG regarding its rendering of community placement activities. Thus, as

a predicate to establishing her negligent infliction of emotional distress claim

against DOG, Harper must establish that DOG acted with gross negligence,

rather than ordinary negligence. Harper's contrary contention fails.

       However, given our resolution of the first issue presented, it follows that

the trial court also erred by dismissing Harper's negligent infliction of emotional

distress claim.

       Reversed.



We concur:




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