                                                                            FILED
                                                                         JULY 12, 2016
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

SHERRIE LENNOX, as Personal                   )
Representative of the ESTATE OF               )         No. 33201-2-111
VIOLA WILLIAMS,                               )
                                              )
                     Appellants,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
LOURDES HEAL TH NETWORK a                     )
Washington non-profit corporation;            )
BENTON COUNTY and FRANKLIN                    )
COUNTY, Washington municipal                  )
corporations,                                 )
                                              )
                     Respondents.             )
                                              )
                                              )
                                              )

       FEARING, C.J. -Under RCW 71.05.120, an entity enjoys immunity from conduct

related to the failure to involuntarily commit a mental health patient, but not for gross

negligent acts. On the basis of this immunity, the trial court dismissed on summary

judgment claims against Lourdes Health Network and Benton and Franklin Counties

Crisis Response Unit for the murder of Viola Williams by her grandson, Adam Williams,
No. 33201-2-111
Lennox v. Lourdes Health Network


a mental health patient. We affirm the summary dismissal in favor of the Crisis Response

Unit and reverse the dismissal in favor of Lourdes Health Network.

                                         FACTS

       The background to Sherrie Lennox's lawsuit against Lourdes Health Network and

the Crisis Response Unit concerns the mental illness of Adam Williams and treatment for

the illness. From the age of eleven, Adam Williams struggled with attention deficit

hyperactivity disorder, major depression, and substance abuse. He began using

methamphetamine, marijuana, and alcohol at age twelve. He abused inhalants such as

gasoline and glue, hallucinogenic mushrooms, lysergic acid diethylamide (LSD) and

other drugs, and participated in substance abuse treatment several times. By the age of

sixteen, Williams sat in juvenile detention sixteen times, with ten convictions for crimes

such as malicious mischief, forgery, residential burglary, and eluding the police. At age

seventeen, Williams began hearing voices and developed the delusion that he could read

minds and communicate with God and others telepathically. Williams tried to kill

himself three times, once by jumping into a river and twice by refusing food for extended

periods of time while incarcerated.

       On June 6, 2006, Adam Williams was found not guilty by reason of insanity of

third degree assault and the court involuntarily committed him to Eastern State Hospital

(Eastern). Due to ongoing mental health issues, he remained civilly committed at Eastern

for the next five years, the maximum permissible time. Eastern staff diagnosed Williams

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with, and treated him for, chronic paranoid schizophrenia, recurrent major depression,

and polysubstance abuse.

       On March 8, 2011, nine days before Adam Williams' scheduled release date of

March 17, Eastern psychiatrist Dr. Imelda Borromeo and designated mental health

professional (DMHP) Scott Burke petitioned the Spokane County Superior Court for a

seventy-two-hour hold to evaluate Williams to determine whether his involuntary
  .
commitment should continue beyond his release date. A DMHP is a mental health

professional designated by a county or other government entity to perform duties with

regard to mental health patients under the Involuntary Treatment Act, chapter 71.05

RCW. RCW 71.05.012(11). In their petition, Borromeo and Burke alleged that Williams

qualified as "gravely disabled." RCW 71.05.020(17).

       In their March 8, 2011, petition, Dr. Imelda Borromeo and DMHP Scott Burke

declared that Adam Williams still experienced delusions, auditory hallucinations, and

baseline depressive disorder. Williams lacked insight into his substance abuse. When

outside a structured environment, Williams' illness increased such that he heard

commands to injure others. Borromeo and Burke believed that Williams would not

voluntarily admit himself for inpatient psychiatric treatment if his condition worsened

again after his release from Eastern.

       On March 10, 2011, Eastern State Hospital staff, including Dr. Imelda Borromeo,

evaluated Adam Williams for possible release from Eastern on a less restrictive

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alternative status. A less restrictive alternative status consists of "outpatient treatment

provided to an individual who meets criteria for commitment but is not residing in a

facility providing inpatient treatment." What is a Less Restrictive Alternative (LRA)?,

WASH. ST. DEP'T OF Soc. & HEALTH SERVS., https://www.dshs.wa.gov/faq/what-less-

restrictive-alternative-lra [https://perma.cc/9SYW-EV77]. A court will order a less

restrictive alternative release for a gravely disabled individual if the court determines that

such alternative treatment is in that person's best interest. Former RCW 71.05.240(3)

(2009). A less restrictive alternative release is similar to being on probation for a

criminal offense insofar as the court orders specific conditions with which an individual

must comply in order to remain in an outpatient setting. Former RCW 71.05.340(3)(a)

(2009).

       In her evaluation for the less restrictive alternative, Dr. Imelda Borromeo

observed:

               Although Mr. Williams continues to present with ongoing positive
       and negative symptoms of schizophrenia, he also has been able to manage
       his symptoms quite well without any aggressive or violent behaviors within
       this five years of inpatient stay. He has continued to mumble to himself
       and stare at others while in conversation. However, these have not
       interfered with his ability to communicate effectively. . . . Due to the fact
       that he has been hospitalized for quite some time, the temptation to use
       illegal substances and alcohol is extremely high as soon as he steps out of
       this safe environment into the community. He will, therefore, require some
       form of monitoring while in the community to ensure his compliance with
       medications and LRA [less restrictive alternative] conditions, thus, this
       petition is for a 90-day with LRA the day after his maximum commitment
       expires. Mr. Williams has done quite well during his time at Eastern State

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       Hospital, has developed his WRAP [wellness recovery action plan] ...
       which he tends to use when he is out in the community. Further monitoring
       while doing that would help ensure his full integration into the community.
       Therefore, I petition for a 14-day with LRA release when his NORI [not
       guilty by reason of insanity] expires on 3/17/11.

Clerk's Papers (CP) at 214.

       On March 11, 2011, the Spokane County Superior Court released Adam Williams

from Eastern State Hospital on a ninety-day less restrictive alternative placement,

administered by Lourdes Health Network in Pasco; As part of the release, the Spokane

court ordered Williams to attend appointments with Lourdes or cancel in advance, refrain

from threatening to harm himself or others, refrain from using alcohol or drugs, refrain

from possessing firearms, attend Alcoholics Anonymous and Narcotics Anonymous

meetings, and take medications as prescribed. At the time of his release in March 2011,

Eastern administered a complex course of medications to Williams consisting of the anti-

psychotics haloperidol, quetiapine, and clozapine, anti-depressants lithium, venlafaxine,

and bupropion, and medications to manage the side effects of the other medications.

       Lourdes Health Network features a "program of assertive community treatment"

(PACT) team, which is:

             a person-centered recovery-oriented mental health service delivery
      model that has received substantial empirical support for facilitating
      community living, psychosocial rehabilitation, and recovery for persons
      who have the most severe and persistent mental illnesses, have severe
      symptoms and impairments, and have not benefited from traditional
      outpatient programs.


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               PACT services are individually tailored with each consumer and
       address the preferences and identified goals of each consumer. The
       approach with each consumer emphasizes relationship building and active
       involvement in assisting individuals with severe and persistent mental
       illness to make improvements in functioning, to better manage symptoms,
       to achieve individual goals, and to maintain optimism.
               The PACT team is mobile and delivers services in community
       locations to enable each consumer to find and live in their own residence
       and find and maintain work in community jobs rather than expecting the
       consumer to come to the program. Seventy-five percent or more of the
       services are provided outside of the program offices in locations that are
       comfortable and convenient for consumers.

CP at 227. All Lourdes PACT teams incorporate a team leader, a psychiatrist, registered

nurses, a mental health professional, a chemical dependency specialist, and a vocational

specialist.

       As a provider of outpatient treatment, Lourdes Health Network retained statutory

duties, the most relevant being:

              The hospital or facility designated to provide outpatient treatment
       shall notify the secretary or designated mental health professional when a
       conditionally released person fails to adhere to terms and conditions of his
       or her conditional release or experiences substantial deterioration in his or
       her condition and, as a result, presents an increased likelihood of serious
       harm.

Former RCW 71.05 .340(3 )(b) (2009). Benton and Franklin Counties jointly operate the

Bi-County Crisis Response Unit, which employs the respective counties' DMHPs. Thus,

Lourdes was obligated to report violations by Adam Williams, of his less restrictive

alternative release order, to the Crisis Response Unit. Lourdes could not on its own

revoke the least restrictive alternative placement. The Crisis Response Unit held this

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prerogative under RCW 71.05.340.

       Despite the terms of Adam Williams' less restrictive alternative release order,

Lourdes Health Network viewed Williams' participation in its outpatient treatment

program as voluntary. For example, Lourdes nurse Michelle Aronow testified in a

deposition:

             Q. Okay, did you have the ability to ensure that he took his, or that
      he underwent regular urinalysis?
             A. I could write a standing order.
             Q. Did you ever write a standing order?
             A. No.
             Q. Why not?
             A. I could only answer that on the fact that this being a voluntary
      program and my ability to attempt to build rapport with a patient is very
      important because if you do not, in my experience, the patient says, I'm not
      being a part of this program and then he would be on the streets in no
      program and not have the intensity of the PACT team.

CP at 283. Dana Oatis also testified that Adam Williams joined "the PACT team

on a voluntary basis." CP at 292.

      During its supervision of Adam Williams, Lourdes Health Network PACT team

members visited with Williams in person one hundred and seventeen times. PACT

members called Williams one hundred and sixty-nine times, although we do not know on

how many occasions Lourdes employees spoke with Williams on the phone.

      From the first day of his release from Eastern State Hospital on March 17, 2011,

Adam Williams missed meetings with Lourdes or untimely cancelled appointments.

Lourdes PACT team members did not report these violations of the court order to the

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Lennox v. Lourdes Health Network


Crisis Response Unit and did not insist that Williams attend the meetings. Rather,

Lourdes allowed Williams to set the terms of his meetings and allowed him to cancel

meetings for no reason. On April 7, 2011, Lourdes PACT member Dana Oatis expressed

concern for Williams "since he hasn't been seen much since being discharged from

[Eastern]." CP at 262.

         On April 21, 2011, Ann Rayment, a Lourdes Health Network nurse, drove Adam

Williams to a blood test and explained to Williams that his less restrictive alternative

release could be revoked if he abused drugs or refused treatment and medications.

Rayment offered to contact Lourdes chemical dependency case worker, Suzanne Kieffer,

with whom Williams could arrange Narcotics Anonymous meetings.

         On June 2, 2011, Adam Williams met with Suzanne Kieffer. Kieffer wrote in her

notes:

                 I did remind Adam that marijuana is more expensive and more
         potent now all these years later. He said "I know." He then looked at me
         and made a funny face and said, "I mean I do not know" and he smiled. I
         asked [Williams] to please just be real around me that he does not need to
         lie or pretend just [because] I am the [chemical dependency] person and he
         said "I will try but I do not know that will be hard to do sometimes it is best
         to not tell anyone what you are doing." I asked him where that got him in
         the past and he said, "True it got me Eastern."

CP at 273-74. The record lacks any information that Kieffer arranged for Williams to

attend Alcoholics Anonymous or Narcotics Anonymous meetings as the less restrictive

alternative order demanded. Kieffer believed that Williams' use of methamphetamine


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Lennox v. Lourdes Health Network


contributed to his mental illness. On times she visited Williams, Keiffer knew he was

using drugs. The drugs' influence caused Williams to reject Keiffer's assistance and

rendered the meetings difficult for Keiffer.

       On June 14, 2011, Adam Williams underwent a urinalysis as part of community

supervision for another felony. The test showed the presence of marijuana. Williams

granted Lourdes access to his community supervision records, but Lourdes probably did

not obtain a copy of the urinalysis report.

       On July 19, 2011, a Lourdes Health Network team member visited Adam

Williams at his home in order to refill his medication box. The team member discovered

that Williams missed doses of medication. On July 22, Suzanna Kieffer traveled to

Williams' home for a scheduled visit, but Williams was not home. Keiffer telephoned

Williams and his phone went straight to voicemail. Lourdes staff spoke with Williams by

phone on July 25 and 26, and Williams stated he was with family. Lourdes team

members continued to attempt personal contact with Williams through July 28, in part to

refill his medications, but could not locate him.

       On July 29, 2011, Suzanne Kieffer visited Adam Williams' home, but Williams

was again absent. Kieffer later spoke with Williams' brother, who told Keiffer that he

had not seen Williams for a week and police also searched for him. Kieffer received a

call from Williams' parole officer, David Garcia, who informed her that he had attempted




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contact with Williams for three weeks. Lourdes Health Network did not notify Crisis

Response Unit of Williams' disappearance.

       On July 31, 2011, Adam Williams called his father from a payphone. The father

detected Williams to be in a disorganized, angry, anxious state. Williams informed his

father that he had been living on the street and sleeping under a bridge. He had stopped

taking medications and had relapsed with methamphetamine. Williams' parents took him

to Kadlec Medical Center emergency room where doctors treated Williams for

dehydration and dangerously low sodium and potassium levels. Williams expressed

suicidal thoughts to medical center staff.

       Lourdes Health Network PACT team member Suzanne Kieffer visited Adam

Williams at Kadlec Medical Center and authored a report following her observation of

Williams in the hospital:

              [H]e [Williams] said "I was hiding from PACT because I do NOT
       want to go back to ESH [Eastern State Hospital] and I have not taken my
       meds for about 9 days or so and I do not give a flying fuck I have been
       using crystal meth just flying high, but I am done with that I dumped about
       3 ounces down the drain" . . . [T]hey [Kadlec Medical Center] could not
       medically release him so he was asked to stay. He agreed but when the
       charge nurse came in to give him an IV and give him something to make
       him sleep he told her "Fuck you bitch you are not going to stick no needles
       in me fuck all you guys I am out of here[.]" I stepped out of his way and he
       ran out of the ER [emergency room] yelling at top of his lungs. [Williams']
       Dad followed him so [sic] somewhere about Les Schwab by the hospital
       Dad and security catch [sic] up with him and he pushes dad .... [Police
       returned him to the hospital.] He was doing good [sic] so the cops left and
       mom and dad went to get something to eat in the hospital and apparently
       Adam ripped his IV out of his arm and took off again .... I called [the Bi-

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       County Crisis Response Unit] and they said they could not do anything as
       he was not suicidal or threatening anyone else. . . . I left the hospital, as
       there was nothing that I could do. Do [sic] to his violent behavior I would
       not even attempt to detain him, transport him, nor be in the same room
       alone with him.

CP at 315.

       Cameron Fordmeir, a Crisis Response Unit DMHP, visited Kadlec Medical Center

on August 1, 2011, and performed an evaluation of Williams. Fordmeir either did not try

to contact Lourdes Health Network or was unable to contact Lourdes prior to evaluating

Williams.

       During a deposition, Cameron Fordmeir explained that, when evaluating someone

for revocation of a less restrictive alternative release, he determines if the mental health

patient meets criteria under the Involuntary Treatment Act. At the time of his August 1

evaluation of Williams, Fordmeir knew that Williams was subject to a less restrictive

alternative order, had been diagnosed with paranoid schizophrenia, had not taken his

medication in weeks, and had used methamphetamines. In a written evaluation of Adam

Williams, Cameron Fordmeir wrote: "Client denies [suicidal ideation] and contracts for

safety." CP at 369. In the evaluation, Fordmeir determined that Williams was not a

serious risk of harm to himself or others and that he was not gravely disabled.

       In the weeks following hospitalization at Kadlec Medical Center, Adam Williams'

condition improved. On October 6, 2011, Lourdes nurse Michelle Aronow prescribed

Concerta for Williams, Concerta being a stimulant to treat symptoms of Attention Deficit

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Disorder. Aronow warned Williams of the dangers of abusing stimulants.

       At a medication management appointment on November 23, 2011, with Michelle

Aronow, Adam Williams admitted to taking a month's worth of Concerta in a week.

Williams acknowledged abuse of the medication. Williams told Aronow that "at times he

believes that he can read people's minds, and ... that he was Jesus Christ in the past."

CP at 389. Williams admitted that he did not take his other medications regularly.

Following this revelation, Aronow chose to take Williams off of Clozaril, a powerful

anti-psychotic, and prescribe Abilify.

       On December 27, 2011, Theresa Chandler, a Lourdes Health Network nurse, met

with Adam Williams at his home. After the meeting Chandler wrote in a file note:

             I sat down on his bed as it is also his couch to fill his med box.
      Adam was very sexually inappropriate, he layed [sic] behind me, put his
      hand on my back, ran his hand up and down my back and down my arm,
      "how are you doing?" I turned to look at him and tell him that wasn't ok
      for him to touch me like that. ... I asked him if he was using any kind of
      other drugs right now because he appeared to be very laid back and mellow.
      He said, 'just heroin." I wasn't sure i heard him right and i asked him to
      repeat what he just said, he laughed and said, "no I'm just kidding, I'm not
      on heroin. You want to look at my eye's [sic]". I did look at his pupils and
      they appeared to be normal. I sat back down on the bed and was putting his
      medication bottles away and he sat next to me grabbing at me again saying
      "how are you doing" this time he tried to touch my breast. ...

CP at 427 (some capitalization omitted).

      On December 28, 2011, at a medication management appointment, Lourdes

Health Network nurse Michelle Aronow discussed, with Adam Williams, his sexual


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Lennox v. Lourdes Health Network


preoccupation and reminded him that he cannot make sexual comments to or sexually

touch a Lourdes staff member. Williams indicated that he understood, but said that "[he]

should be able to express [his] feelings." CP at 431. Aronow's notes from December 28

indicate: "if his behavior continues he may need to look at male staff only." CP at 432.

Aronow reminded Williams that he must take his medications regularly or she would

contact the Bi-County Crisis Unit.

      On January 6, 2012, Adam Williams met with Lourdes Health Network licensed

mental health counselor Cynthia Wallace. Wallace's notes from the meeting read:

              He spent the entire session leering at mhp [wallace] .... Adam stated
      I know 3 things about myself, "I need a women [sic], I love
      methamphetimines and I am an instrument of god." . . . He reported that
      "my grandma is part of a plot against me." Adam went onto [sic] describe
      how she is part of a conspiracy to do him harm. [Wallace] challenged him
      on this, asking him to provide evidence. He had non [sic] but remains
      convinced. Adam also reported that he is not getting along with his dad, "I
      hate him."

CP at 442 (some capitalization omitted).

      On January 11, 2012, Adam Williams and Linda Schroeder, a Lourdes Health

Network PACT member, met with State Division of Vocational Rehabilitation (DVR)

staff to discuss employment. Schroeder wrote concerning the drive to the division office:

              I drove Adam to DVR for a meeting. On the way there I reminded
      him that he has an appointment tomorrow with Steve [a Lourdes
      employee]. Adam said "I'm not coming. I don't want to see any of the
      men from the PACT team .... " I told him we couldn't force him since this
      is a volunteer program but it would be beneficial to him.


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CP at 445. (emphasis added). Schroeder wrote about the meeting with the Division of

Vocational Rehabilitation:

              I tried to reason with him [Williams] a little bit so that Jim [James
      Bischoff, a vocational counselor employed by DVR] might work with him
      in the future. Adam calmed for a minute and then got annoyed again and
      stood up and said "I'm done and out of here." Both Jim and Adrianna [a
      DVR employee] were concerned at Adam's hostile mood and dark looks he
      was giving and the fact that I was transporting him from the meeting. Jim
      asked me to call him when I dropped Adam off. When we got in the car,
      Adam said "I'm sorry but that guy was making me mad. I know he was
      trying to trick me and I wasn't going to stand for it." Adam's shoulder
      twitched every so often and his head jerked. I mentioned to Adam about
      the CD [chemical dependency] group tomorrow at 10 and he said "I don't
      like that group. I don't [like] the lady that runs it." I asked him why and he
      said "she's an alien and has lost her life. I haven't lost mine because God
      saved me." ... Adam is displaying anti-social tendencies and staff suspect
      he is using street drugs.

CP at 446.

      Following the January 11 meeting with Adam Williams and Linda Schroeder,

DVR counselor James Bischoff wrote:

              Adam was disheveled, poor complexion, appeared agitated, gave
      very little eye contact, and would not respond much to questions or small
      talk. Linda from the Lourdes PACT team was present as well as Adriana
      from Service Alternatives. In my office, Adam stated that he does not want
      to work. ... When YRC [I] ... said we would close his DVR case he
      became more agitated. He made a statement saying that he wanted to leave
      and YRC escorted him out and he became more paranoid and then almost
      ran out of the building. Adam is not currently in a stable state of mind to
      work and his DVR case is being closed.

CP at 448.




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       On January 16, 2012, Lourdes Health Network nurse Teresa Chandler e-mailed

concerns about Adam Williams' behavior to the rest of the Lourdes PACT team:

               Adam came in this morning to get his check and i was supposed to
      fill his med box. Adam had the excuse that his med box "dropped on the
      ground and shattered, my meds went all over the place, I had to throw them
      away.". . . He is obviously not taking them. He has been getting odder
      every day. Today he looked horrible ... Dishevled, smelly, and Linda said
      he smelled like alcohol. He became very agitated when I pointed out it was
      obvious he is not taking his medication and hasn't been for quite some
      time .... How long are we going to let this go before we revoke him? I
      thought early detection and intervention was our goal. He's getting so
      much worse. . . . I don't want to be any where in a room alone with him.
      Help . .. Teresa

CP at 450. (some capitalization omitted) (emphasis added).

      On January 18, 2012, Linda Schroeder retrieved Adam Williams from his

home and drove him to the Lourdes Health Network office for a medication

management appointment with Michelle Aronow and for an evaluation by the

Crisis Response Unit to evaluate whether he should be detained. Due to bad

weather, however, the Unit cancelled its portion of the appointment. Schroeder

wrote of her observations of Williams during their drive to the Lourdes office:

             The first thing he said to me was "How's you and your husband
      doing? Are you getting it on?" I immediately put a stop to that
      conversation going any further and he apologized. . . . I asked Adam if he
      took his medications today and he said "I took some. I only take them
      when he tells me I need them." I said he? and he said "You know God.
      God will tell me when I need to take my meds and when he does I take
      them." ... Adam's appearance is [disheveled] and clothes are dirty. He has
      several sores around his mouth.


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CP at 452.

      Despite the Crisis Response Unit's cancellation of its meeting on January 18,

Michelle Aronow spoke with Adam Williams about medication management. Aronow

observed:

             The patient [Adam Williams] presented to the facility casually
      dressed, however, somewhat disheveled. Continues to not shave or wash
      his hair or clean his clothes. He continues to reference this as wanting to
      feel scum on his body and does not believe in using soap any longer. He
      says cleanliness is next to Godliness inside not on the outside. . . . I asked
      where the medication boxes were, and he said that they broke, and he does
      not know where they are at this time.

                . . . I continue to get complaints of his sexual inappropriate
      discussions with female staff. He does admit that he is attracted to "all the
      female staff here." When I asked if he has any thoughts of hurting anyone
      female staff, he said "oh my God, no, I would never do that." "I just really
      really attracted to females, not males Michelle you know that just
      females."[ sic]

                ... I explained to the patient quite categorically in regards to his
      least restrictive alternative and that taking his medications and not using
      any drugs or alcohol was very important because I do not want to see him
      hospitalized or in jail if at all possible I would like to keep him out stable in
      the community, so he can continue to attempt to go to work or go to school
      or whatever he may want to do. I explained to him, however, though ifhe
      continues with the specific statements that he is making and not taking the
      medications or using drugs, then I believe that his insight and judgment will
      continue to deteriorate and then he would need to speak with the Crisis
      Response Unit people, which I explained who they were and that they can
      make the decision whether or not to put him back in the hospital. He stated
      an understanding, and he stated he did not want to talk to these people.

CP at 455-56.




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        After Adam Williams' medication management appointment on January 18, 2012,

Linda Schroeder chauffeured Adam Williams to the bank and grocery store. Schroeder

noticed that Williams quietly spoke and laughed to himself while shopping. On returning

to Williams' home, Schroeder espied a pile of over fifty black capsules on the floor.

Williams walked around the capsules. Schroeder did not ask what the capsules

contained, but she gave Williams medication boxes and left the home.

       In its brief, Lourdes Health Network writes that, on January 23, 2012, Adam

Williams went to the PACT office and had the competency to state that someone he knew

needed help and he wanted to know how to make this happen. The citation given for this

statement of fact is a trial court brief, not an affidavit or declaration.

       On January 25, 2012, Lourdes PACT member Linda Schroeder requested Lourdes

nurse Michelle Aronow meet with Adam Williams. Aronow visited Williams at the

Lourdes office and observed that Williams appeared disheveled and dirty, with long dirty

fingernails. Williams told Aronow that he had "been with the creator" that the "creator

does favors for me and for other people," and that he had been using "ice," a form of

crystal methamphetamine. CP at 470. Williams stated that he still took his medications,

but he did not bring his medication box for a refill. Aronow reminded Williams that he

must take his medications and refrain from using drugs in order to comply with the less

restrictive alternative order. Aronow asked Williams to submit to a blood test and urine

screen, but Williams declined. He commented: "I don't want to have my blood out

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there." Williams admitted that he would test positive for methamphetamine use. CP at

470. Aronow then received a call regarding another Lourdes patient.

       Lourdes nurse Michelle Aronow and Crisis Response Unit mental health

professional Kathleen Laws present differing versions of events that transpired later on

January 25, 2012. According to Aronow, she called the Crisis Response Unit and

requested an evaluation of Williams and another patient. Aronow wrote in a chart note:

               I wanted Kathleen from CRU to see the patient due to the
       noncompliance as best as we can tell in regard to his medication as well as
       his continued drug use. He also has been making some sexual statements to
       staff, which is making many of the female staff here quite unsettled and
       obviously fearful of this particular patient if in fact he is not taking his
       medication, and I felt that CRU needed to at least evaluate him and decide
       if his LRA needed to be revoked.

CP at 4 71-72. Aronow also wrote in her notes that Kathleen Laws and she met and

discussed Williams, after which Laws evaluated Williams for twenty to thirty minutes.

During the meeting, Williams denied wanting to hurt anyone.

       According to Kathleen Laws, she journeyed to the Lourdes Health Network office,

on January 25, to evaluate another patient and, on her travel to Lourdes, a Lourdes

employee requested that she remind Adam Williams of conditions for a less restrictive

alternative placement. Nevertheless, Laws' contemporaneous notes state: "PACT

Team's - Michelle Aronow - requested an eval." CP at 97. Laws' notes record she

spent thirty minutes of "client time." CP at 95. In her deposition, Laws testified that her

entire meeting with Williams lasted only five minutes and the remaining "client time"

                                            18
No. 33201-2-III
Lennox v. Lourdes Health Network


referred to travel and note taking. CP at 354. Laws declared that, at the time of the

meeting, she lacked a history for Williams and she did not meet with Aronow about him.

       On January 26, 2012, Adam Williams returned to Lourdes Health Network to refill

his medication box. A Lourdes nurse called Michelle Aronow and said that "he was

acting very strange-reading a Bible aloud and talking to someone who was not there ... "

CP at 656. Aronow then called Crisis Response Unit employee Kathleen Laws. The two

differ as to the content of the phone conversation. Aronow wrote

               called CRU and talked to Kathaleen [sic] Laws as she was the one
       who [ ] spoke with him yesterday in my office. I told her he had in fact
       come back to the office and filled his med box-but the nurse had observed
       some bizarre behavior of him talking to someone that wasn't there and
       reading the Bible aloud .... [She said he] evidenced [good] judgment by
       coming back and getting his med box filled, but talking to himself is typical
       with his diagnosis. [Aronow] stated to her again that staff continue to be
       fearful of him and [she did] not want him to be alone with a female staff as
       Linda was to take him shopping this Friday. She agreed that was a good
       plan to have only males. [Aronow] said [she] would take a male staff out
       with [her] Monday am and see if he has been taking his medication. She
       agreed. She said-then if he has not been and you want him revoked-we
       will revoke him as he has been explained what is in the LRA-

CP at 656.

       Kathleen Laws testified that Michelle Aronow called to notify her that Adam

Williams thanked her for Laws speaking to him. Aronow repeated Williams' comment

that he would obey his less restrictive alternative order.




                                              19
No. 33201-2-111
Lennox v. Lourdes Health Network


       According to Lourdes Health Network's brief, PACT team member Linda

Schroeder had thirteen contacts with Adam Williams between December 29, 2011, and

January 26, 2012.

       On January 27, 2012, Adam Williams visited his grandmother Viola Williams'

house. He then believed himself to be Lucifer Grand Am Dynasty and that God directed

him to kill his grandmother. He brutally murdered his grandmother in a manner too

bizarre and egregious to describe. A court later found him not guilty of first degree

murder by reason of insanity. During his psychological evaluation following the murder

charge, the doctor wrote: "The medications he was taking at the time of the murder

represented a total failure in treatment." CP at 408.

                                      PROCEDURE

       Sherrie Lennox, as personal representative of the Estate of Viola Williams, sues

Lourdes Health Network and Benton-Franklin County Crisis Response Unit. Both

defendants filed summary judgment motions.

       In opposition to Lourdes Health Network's and Crisis Response Unit's motions

for summary judgment motion, Sherrie Lennox's expert witness, Matthew Layton, signed

a declaration listing conduct of both Bi-County Crisis Unit and Lourdes he concluded

was "grossly negligent." CP at 547. Layton is a board certified psychiatrist and

professor at the College of Medical Sciences at Washington State University. He

reviewed the records of the Crisis Response Unit and Lourdes Health Network.

                                            20
No. 33201-2-III
Lennox v. Lourdes Health Network


      Pertinent portions of the declaration read:

             4. From 2000 to 2008, I was the Medical Director of Spokane
      Mental Health, a community mental health organization with multiple
      outpatient clinics and inpatient evaluation and treatment facilities. In that
      capacity, I oversaw the psychiatric administration of a Program for
      Assertive Community Treatment (PACT). In addition, the Designated
      Mental Health Professionals were employees of Spokane Mental Health.
      The DMHPs made decisions about detention of individuals under the
      Involuntary Treatment Act. As Medical Director, I oversaw work of the
      DMHPs and was part of their decision making process.

              8. The August 1, 2011 evaluation of Adam Williams by DMHP
      Cameron F ordmeir was grossly negligent.
              a. Mr. Fordmeir failed to adequately review CRU's own notes on
      Mr. Williams. CRU's notes showed that Mr. Williams posed an increased
      risk of violence when he is off his medication. The CRU notes also showed
      that he was at high risk to victimize his parents and to be a threat to others.
              b. Mr. Fordmeir did not apply the criteria for revocation of a
      conditional release under a Less Restrictive Alternative but rather evaluated
      Mr. Williams as though he was not already subject to the Involuntary
      Treatment Act. The criterion to revoke a LRA does not require a showing
      of imminent danger. It only requires a showing there is an increased
      likelihood of serious harm.
              c. Mr. Fordmeir failed to review the treatment notes from the PACT
      team. Had he done so, he would have learned that Adam Williams has very
      poor judgment, was refusing to participate in substance abuse treatment,
      had used street drugs before this hospitalization, failed to appear for his lab
      work, and was not consistently taking his medication.
              d. Mr. Fordmeir also failed to evaluate Adam Williams' risk of
      harm to other people. While, Mr. Fordmeir asked Mr. Williams ifhe was
      going to hurt himself or someone else and Mr. Williams said no, the
      literature shows that this is ineffective in determining risk.
              e. Even with the information Mr. Fordmeir did have, he should have
      revoked Mr. Williams' LRA. Mr. Williams violated the terms of his LRA
      and this violation led to an increased risk of serious harm to himself. Mr.
      Williams had admitted to violating his LRA. He was using street drugs and
      failing to take his medication. He was hospitalized for potassium depletion,



                                            21
No. 33201-2-III
Lennox v. Lourdes Health Network


      the result of his methamphetamine and cocaine use. . . . Revocation of the
      LRA and hospitalization at that time would have stabilized him.
              9. Kathleen Laws January 25, 2011 evaluation of Mr. Williams was
      grossly negligent.
              a. Ms. Laws failed to use the appropriate standard for evaluating
      Mr. Williams' for a revocation of his LRA. Like Mr. Fordmeir, Ms. Laws
      used the criteria for evaluating Mr. Williams as though he was not already
      detained under the Involuntary Treatment Act rather revocation of an LRA.
             b. Ms. Laws' deposition testimony is that she spent only five
      minutes with Mr. Williams. This is not sufficient time to do a competent
      evaluation. Ms. Laws testified in her deposition that she did not know Mr.
      Williams' diagnosis at the time of the evaluation.
             c. Ms. Laws' deposition testimony indicates that she was only there
      to remind Mr. Williams to take his medication. This is an abdication of her
      responsibility to make an independent evaluation of Mr. Williams. The
      expectation is that a DMHP conduct an evaluation and use his or her
      clinical judgment to see if a revocation should occur.

             e. Ms. Laws failed to review the notes of the PACT team. Ms.
      Laws did not know of Mr. Williams' violent history or history of
      noncompliance with the terms of his LRA ....
             f. Ms. Laws should have revoked Mr. Williams when he declined to
      take the do the [sic] "Gain-SS Form."
             g. Ms. Laws erred in taking Adam Williams at his word that he
      would follow the conditions of his LRA, when he had made these promises
      multiple times in the past.
             10. The PACT Team was grossly negligent in their supervision,
      monitoring and reporting of Adam Williams' compliance with his LRA.
             a. The PACT team failed to inform CRU that Mr. Williams
      regularly violated every term of his LRA. These violations included using
      methamphetamines and other street drugs, repeatedly failing to take his
      medication, failing to attend substance abuse treatment, and revoking his
      release of information to contact his family members.
             b. Michelle Aronow, ARNP, on the PACT team improperly
      monitored Mr. Williams' medications. In November, 2011 she
      discontinued Mr. Williams' Clozaril because he was noncompliant.
      Clozaril is a medication that should not be started and stopped abruptly.
      Literature shows that Clozaril is far more effective for patients like Mr.
      Williams and in combination with other medications improved his

                                          22
No. 33201-2-111
Lennox v. Lourdes Health Network


      psychotic symptoms and decreased his risk for violence enough to allow his
      conditional release back to the community. Mr. Williams' psychotic
      symptoms had been stabilized at Eastern State and for several years on
      Clozaril. Discontinuing the Clozaril was not medically indicated. Once
      she did discontinue the Clozaril, Ms. Aronow should have tapered the
      Clozaril rather than abruptly discontinuing it. Mr. Williams became
      increasingly psychotic after this medication change. Ms. Aronow failed to
      increase the dosage of the new medication or increase the monitoring of the
      medications as Mr. Williams psychotic symptoms steadily increased. The
      combination of the change in medication and the use of street drugs caused
      Mr. Williams to rapidly decompensate.
              c. The PACT team misunderstood the nature of Mr. Williams'
      participation in the program. The PACT team viewed this participation as
      voluntary. Mr. Williams was on a LRA because he was found unable
      and/or unwilling to voluntarily consent to treatment.
              d. The PACT team failed to notify CRU when Mr. Williams became
      sexually preoccupied, developed command hallucinations, and attempted to
      sexually assault two female staff members.
              e. The PACT team knew that Mr. Williams was dangerous. Female
      staff were afraid to be alone with Mr. Williams .... Yet, PACT failed to
      notify CRU of this dangerousness.
              f. The PACT team failed to notify CRU of Mr. Williams' rapid
      decompensation, and increased psychosis. The medical record is clear that
      the PACT team should have requested revocation by not later than January
      6th, 2014. His paranoid delusions and his erratic behavior in a meeting
      with Cynthia Wallace show that he was so decompensated he needed to be
      in the hospital.

             12. CRU had the legal authority to detain Mr. Williams on January
      25 and January 26, 2012 .... Had CRU detained [sic] Adam Williams
      would have been in the hospital on January 27, 2012, the date Viola
      Williams was murdered. Further when the case came before a judge, it is
      my experience that judges usually order detention and continued detention
      when requested by the DMHP ....

CP at 543-47.

      In a deposition, Lourdes Health Network asked Dr. Matthew Layton:



                                          23
No. 33201-2-III
Lennox v. Lourdes Health Network


              Q. And sometimes that requires a judgment decision whether you
       ask for a revocation of an LRA or decide not to?
              A. It may, yes.

CP at 897.

       The Crisis Response Unit filed a motion to strike Dr. Matthew Layton's

declaration. The Unit argued that the declaration improperly offered a legal opinion. The

Unit also argued that the court should not consider Layton's testimony, in paragraph

twelve of his declaration, as to how a judge usually rules.

       The trial court struck those portions of Matthew Layton's declaration referring to

gross negligence because of the conclusory nature of the testimony. The trial court also

struck Layton's testimony, in paragraph twelve, concerning how a judge usually rules.

The trial court granted both Lourdes Health Network's and the Crisis Response Unit's

summary judgment motions. The court concluded that affidavits established that both

defendants exercised more than slight care in that they had frequent contact with Adam

Williams.

                                 LAW AND ANALYSIS

                               Matthew Layton Declaration

       Sherrie Lennox contends the trial court erred in striking portions of her expert's

declaration. We do not consider the declaration of Matthew Layton important to the

resolution to this appeal. Therefore, we do not address this assignment of error.




                                            24
No. 33201-2-III
Lennox v. Lourdes Health Network


                      Lourdes Health Network Summary Judgment

                                    Gross Negligence

       On appeal, Lourdes Health Network contends that the undisputed evidence shows

it was not grossly negligent. Also, Lourdes argues that Lennox cannot establish

proximate cause. The first issue is whether questions of fact exist as to any gross

negligence by Lourdes Health Network. We answer in the affirmative.

       Sherrie Lennox claims that Lourdes Health Network should have recommended

and encouraged the Crisis Response Unit to revoke Adam Williams' least restrictive

alternative status and return him to involuntary commitment at a hospital. When the

plaintiff claims the mental health professional should have detained the patient, the

plaintiff is claiming the professional should have involuntarily committed the patient.

Volk v. DeMeerleer, 184 Wn. App. 389,424, 337 P.3d 372 (2014), review granted, 183

Wn.2d 1007, 352 P.3d 188 (2015). Under such circumstances, RCW 71.05.120 controls

and the mental health professional is entitled to immunity under the statute. Volk v.

DeMeerleer, 184 Wn. App. at 424.

      RCW 71.05.120 bestows incomplete immunity on Lourdes Health Network.

RCW 71.05.120 provides, in pertinent part:

             [No] county designated mental health professional, nor state, a unit
      of local government, or an evaluation and treatment facility shall be civilly
      or criminally liable for performing duties pursuant to this chapter with
      regard to the decision of whether to admit, discharge, release, administer
      antipsychotic rp.edications, or detain a person for evaluation and treated:

                                             25
No. 33201-2-111
Lennox v. Lourdes Health Network


      PROVIDED, That such duties were performed in good faith and without
      gross negligence.

RCW 71.05.120(1). An exception in the statute is gross negligence.

      As a result of assuming Adam Williams' outpatient care, Lourdes Health Network

undertook certain duties ungrammatically outlined in former RCW 71.05.340 (2009).

Those duties included:

               (3)(a) If the hospital or facility designated to provide outpatient care,
      the designated mental health professional, or the secretary determines that:
               (i) A conditionally released person is failing to adhere to the terms
      and conditions of his or her release;
               (ii) Substantial deterioration in a conditionally released person's
      functioning has occurred;
               (iii) There is evidence of substantial decompensation with a
      reasonable probability that the decompensation can be reversed by further
      inpatient treatment; or
               (iv) The person poses a likelihood of serious harm.
              Upon notification by the hospital or facility designated to provide
      outpatient care, or on his or her own motion, the designated mental health
      professional ... may order that the conditionally released person be
      apprehended and taken into custody and temporarily detained in an
      evaluation and treatment facility ....
              (b) The hospital or facility designated to provide outpatient treatment
      shall notify the secretary or designated mental health professional when a
      conditionally released person fails to adhere to terms and conditions of his
      or her conditional release or experiences substantial deterioration in his or
      her condition and, as a result, presents an increased likelihood of serious
      harm. The designated mental health professional ... shall order the person
      apprehended and temporarily detained in an evaluation and treatment
      facility ....

Former RCW 71.05.340 (2009) (emphasis added).

      Deviations from the duties under RCW 71.05 .340 must be judged against the gross



                                             26
No. 33201-2-III
Lennox v. Lourdes Health Network


negligence standard. "Gross negligence" is negligence substantially and appreciably

greater than ordinary negligence. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798

( 1965). "Gross negligence" also means the failure to exercise slight care. Nist v. Tudor,

67 Wn.2d at 331. "Gross negligence" does not mean the total absence of care, but care

substantially or appreciably less than the quantum of care inhering in ordinary

negligence. Nist v. Tudor, 67 Wn.2d at 331; Johnson v. Spokane to Sandpoint, LLC, 176

Wn. App. 453,460, 309 P.3d 528 (2013).

       Lourdes Health Network forwards six decisions in which Washington courts

rejected argument on appeal that a defendant's conduct constituted gross negligence.

O'Connell v. Scott Paper Co., 77 Wn.2d 186,460 P.2d 282 (1969); Johnson v. Spokane

to Sandpoint, LLC, 176 Wn. App. 453; Whitehall v. King County, 140 Wn. App. 761, 167

P.3d 1184 (2007); Estate ofDavis v. Dep 't of Corr., 127 Wn. App. 833, 113 P.3d 487

(2005); Kelley v. Dep 't of Corr., 104 Wn. App. 328, 17 P.3d 1189 (2000); and Boyce v.

West, 71 Wn. App. 657, 862 P.2d 592 (1993). I~ Boyce v. West, Boyce neither alleged

gross negligence in her complaint, nor provided the court with any evidence supporting

an allegation of gross negligence. Boyce presented excerpts of the deposition testimony

of her expert. In those excerpts, the expert expressed his opinion that the defendant

.committed negligence, but said nothing about gross negligence.

       In Kelley v. Department of Corrections, Kevin Ingalls assaulted Deborah Kelley

while he was on community custody status. Kelley argued Ingalls' correction officer

                                            27
No. 33201-2-111
Lennox v. Lourdes Health Network


should have returned Ingalls to prison because of community custody conditions

violations. The only evidence presented was that Ingalls was not in violation of

conditions, except for one violation unknown to the community corrections officer.

Kelley also contended that the corrections officer failed to make all the required field

contacts with Ingalls. Nevertheless, the undisputed evidence showed that any additional

contacts would not have prevented the assault.

       In Whitehall v. King County, Serena Whitehall sued King County for negligently

supervising a misdemeanant. This court affirmed a summary judgment dismissal of the

claim. Probation officers consistently met with the probationer and checked to determine

if he met his probation conditions. On one occasion when the officers learned that the

probationer could not meet a condition, the officers moved a court to modify probation

terms, and a court granted the motion.

       In Estate of Davis v. Department of Corrections, the estate did not claim that the

defendant acted grossly negligently, but argued immunity did not apply under RCW

71.05 .120 because the defendant did not assess the patient under the Involuntary

Treatment Act. Lourdes Health Network mistakenly contends this court held the

defendant, in Davis, not to be grossly negligent. We held the defendant to owe no duty.

      We believe the facts read in a light most favorable to Sherrie Lennox are more

analogous to the facts in Bader v. State, 43 Wn. App. 223, 716 P.2d 925 (1986) and

Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983). In Bader v. State, this court

                                            28
No. 33201-2-III
Lennox v. Lourdes Health Network


reversed summary judgment in favor of a treatment center in a suit for failure to detain a

mental health patient. We concluded that the jury could have found the center grossly

negligent when it knew that its patient missed appointments, refused to take his medicine,

exhibited paranoid behavior, threatened violence, and violated conditions of his release

from a hospital. The center failed to report the patient's condition to authorities.

       In Petersen v. State, Larry Knox, while under the influence of drugs, sped through

a red light, hitting and injuring Cynthia Petersen. Earlier, while at Western State

Hospital, Knox was diagnosed as having a schizophrenic reaction to the use of "angel

dust." His treating physician knew that he was potentially dangerous, that he disliked

taking prescribed medication, and that he was likely to relapse. Nonetheless, the

physician chose not to petition the court for commitment and released him. Five days

after release from Western State Hospital, Knox drove into Petersen. Based on these

facts, the court affirmed a jury finding of gross negligence. Though the court decided

Petersen before enactment ofRCW 71.05.120, gross negligence was the applicable

standard because Petersen presented no expert testimony.

      Appellate courts review summary judgment de novo. Heath v. Uraga, 106 Wn.

App. 506, 512, 24 P.3d 413 (2001). Summary judgment is appropriate when there is no

genuine issue of material fact and that the moving party is entitled to a judgment as a

matter oflaw. CR 56(c). The burden is on the party moving for summary judgment to

demonstrate there is no genuine issue of material fact. Folsom v. Burger King, 135

                                             29
No. 33201-2-III
Lennox v. Lourdes Health Network


Wn.2d 658,663,958 P.2d 301 (1998). All facts and reasonable inferences are viewed in

the light most favorable to the non-moving party. Folsom, 135 Wn.2d at 667. Where

different competing inferences may be drawn from the evidence, the issue must be

resolved by the trier of fact. Johnson, 176 Wn. App. at 457-58.

       Under the facts favorable to Sherrie Lennox, Lourdes Health Network saw

Williams deteriorating. Lourdes knew Williams thought he conversed with God, was

sexually preoccupied, believed his grandmother engaged in a conspiracy against him, and

used methamphetamines. Lourdes understood that Williams had a history of violence.

Lourdes knew that he groped one of its employees, and hit his father while under their

supervision. Lourdes observed that Williams skipped appointments and rejected his

medications. In short, Lourdes Health Network knew that Adam Williams violated the

conditions of his less restrictive alternative release and that he was dangerous, but never

requested Crisis Response Unit to revoke the less restrictive alternative status. Although

Lourdes contends its employee's testimony only meant to state Williams' use of its

services was voluntary, the trier of fact could conclude that Lourdes considered

Williams' participation voluntary rather than compelled by court order that should be

revoked if Williams violated conditions of the order.

       On January 16, 2012, Lourdes Health Network nurse Teresa Chandler e-mailed

concerns to other Lourdes employees pleading for help, because she did not wish to be

present with Adam Williams alone. Chandler questioned: "How long are we going to let

                                             30
No. 33201-2-III
Lennox v. Lourdes Health Network


this go before we revoke him?" CP at 450 (some capitalization omitted). An employee

requested an evaluation from the Crisis Response Unit, but still no Lourdes' employee

requested that the unit revoke the release.

       Lourdes Health Network contends that, because it provided some care and because

it had scores of contact with Adam Williams, it must not be grossly negligent. Lourdes

may believe the provision of some care necessarily means the care it provided was more

than slight care. We disagree. "Gross negligence" does not mean the total absence of

care. Simply engaging in contact with the patient does not exclude the possibility of

gross negligence. Also, the more contact Lourdes had with Williams, the more

knowledge it gained of the need to revoke and the more opportunities arose to encourage

the Crisis Response Unit to revoke the less restrictive alternative release.

       Lourdes Health Network contends that Sherrie Lennox's own experts admit that

whether Lourdes should have taken actions to commence the process of having Adam

Williams detained was a judgment call. On this assumed fact, Lourdes contends that a

mere error in judgment does not constitute negligence, let alone gross negligence. We

reject this argument because Lourdes misstates the testimony of Dr. Matthew Layton.

Layton testified that sometimes the decision to revoke a less restrictive alternative status

involves a judgment call. He did not testify that Lourdes' failure under these

circumstances entailed a judgment call.

       Lourdes Health Network claims that Matthew Layton testified that Lourdes need

                                              31
No. 33201-2-111
Lennox v. Lourdes Health Network


not have taken any steps to seek institutionalization of Adam Williams until January 6,

2012. Lourdes again misstates the testimony. Dr. Layton testified that Lourdes should

have taken these steps at least by January 6.

       Lourdes Health Network argues that it met any duty by asking the Crisis Response

Unit to evaluate Adam Williams. This argument fails to note the extensive knowledge

Lourdes possessed concerning the danger posed by Williams and his repeated violations

of the less restrictive alternative court order. The argument also fails to note Lourdes

staff members, including mental health counselors, could have strongly recommended to

the Crisis Response Unit to revoke the release, which recommendation likely would lead

to notification of the court under RCW 71.05.340(3)(d).

                                     Proximate Cause

       Lourdes Health Network argues that, as a matter of law, Sherrie Lennox cannot

establish proximate cause. Lourdes contends there is no evidence that shows that, but for

Lourdes' failure to recommend detaining Williams on January 6, 2012, he would not

have killed Viola Williams. Lourdes also argues that the Crisis Response Unit's alleged

gross negligence is a superseding cause severing the causal chain.

       Proximate cause has two parts: cause in fact and legal cause. Taggart v. State, 118

Wn.2d 195, 225, 822 P.2d 243 (1992). Factual cause is based on a physical connection

between an act and an injury. Schooley v. Pinch 's Deli Market, Inc., 134 Wn.2d 468,

478, 951 P.2d 749 (1998). Legal causation rests on considerations of policy and common

                                                32
No. 33201-2-III
Lennox v. Lourdes Health Network


sense as to how far the defendant's responsibility for the consequences of its actions

should extend. Taggart, 118 Wn.2d at 226. Lourdes argues the absence of both.

       Lourdes Health Network contends that the evidence of any alleged negligence

prior to January 6, 2012, lacks relevance because Dr. Matthew Layton testified that

Lourdes need not have sought revocation of the less restrictive alternative placement until

then. As already noted, Lourdes misstates the testimony of Dr. Layton. Layton testified

that Lourdes should have sought institutionalization by January 6, not beginning on

January 6.

       Sherrie Lennox contends Lourdes Health Network's ongoing failure to perform its

duties was the cause of Viola Williams' death. This argument draws from all of Lourdes'

interactions with Williams. Establishing cause in fact involves a determination of what

actually occurred and is generally left to the jury. Schooley, 134 Wn.2d at 478.

       Lourdes Health Network's superseding cause argument fails for at least two

reasons. First, the actions of Lourdes and the Crisis Response Unit occurred

concurrently. Second, the Unit's failure of revocation was foreseeable in light of

Lourdes' acts and omissions.

       For purposes of causation, Lourdes claims that Sherrie Lennox is bound by a

contention in her complaint that the Crisis Response Unit was grossly negligent. While a

party is generally bound by statements of fact in her complaint, allegations of gross

negligence are not statements of fact, but rather legal conclusions. Neilson v. Vashon

                                            33
No. 33201-2-111
Lennox v. Lourdes Health Network


Island Sch. Dist., 87 Wn.2d 955, 958, 558 P.2d 167 (1976); Thompson v. King Feed &

Nutrition Serv. Inc., 153 Wn.2d 447, 463, 105 P.3d 378 (2005). Legal conclusions are

treated differently than statements of fact. See e.g. Rodriguez v. Loudeye Corp., 144 Wn.

App. 709, 717-18, 189 P.3d 168 (2008). Lennox cannot be estopped from arguing in the

alternative nor from arguing concurrent tortfeasors, particularly in light of our later ruling

that facts do not support gross negligence on the part of the Crisis Response Unit.

       Lourdes Health Network contends that gross negligence is not foreseeable as a

matter of law. Therefore, according to Lourdes, the Crisis Response Unit's alleged gross

negligence is a superseding cause. Lennox posits that the Crisis Response Unit's failure

to revoke Adam Williams' less restrictive alternative release was foreseeable from

Lourdes' failure to insist on revocation. Lennox also claims that this appeal involves

multiple defendants and an indivisible injury, and, therefore, a superseding cause analysis

is inapplicable.

       There can be more than one proximate cause of an injury. Tortfeasors may act

independently and breach separate duties, yet the conduct of both may concur to produce

the injury. Stephens v. Omni Ins. Co., 138 Wn. App. 151, 182-83, 159 P.3d 10 (2007),

aff'd, 166 Wn.2d 27,204 P.3d 885 (2009). Concurrent negligence of a third party does

not break the chain of causation between original negligence and the injury. Travis v.

Bohannon, 128 Wn. App. 231,242, 115 P.3d 342 (2005). If the defendant's original

negligence continues and contributes to the injury the intervening negligence of another

                                             34
No. 33201-2-111
Lennox v. Lourdes Health Network


is an additional cause. Travis v. Bohannon, 128 Wn. App. at 242. It is not a superseding

cause and does not relieve the defendant of liability. Travis v. Bohannon, 128 Wn. App.

at 242. Only intervening acts which are not reasonably foreseeable are deemed

superseding causes. Anderson v. Dreis & Krump Mfg. Corp., 48 Wn. App. 432, 442, 739

P .2d 1177 (1987).

       The Supreme Court, in Campbell v. !TE Imperial Corp., 107 Wn.2d 807, 812-13,

733 P.2d 969 (1987), listed factors courts should consider when determining whether an

intervening cause is a superseding cause:

             [T]he relevant considerations under Restatement (Second) of Torts
      §442 (1965) are, inter alia, whether (1) the intervening act created a
      different type of harm than otherwise would have resulted from the actor's
      negligence; (2) the intervening act was extraordinary or resulted in
      extraordinary consequences; (3) the intervening act operated independently
      of any situation created by the actor's negligence.

The Campbell court quoted Restatement (Second) of Torts §449 (1965):

              [i]f the likelihood that a third person may act in a particular manner
      is ... one of the hazards which makes the actor negligent, such an act
      whether innocent, negligent, intentionally tortious, or criminal does not
      prevent the actor from being liable for harm caused thereby.

Campbell, 107 Wn.2d at 813.

      No Washington case directly addresses whether gross negligence is unforeseeable

as a matter of law. Therefore, in order to support its contention, Lourdes forwards

foreign law. Nevertheless, Washington's Campbell analysis is sufficient to determine

whether gross negligence is always unforeseeable. In Campbell, the court quoted the

                                            35
No. 33201-2-111
Lennox v. Lourdes Health Network


Restatement (Second) of Torts, which declares that intervening criminal conduct of a

third party can be foreseeable. It would be illogical to conclude gross negligence of a

third party to be less foreseeable than criminal acts of a third party. Thus, we reject

Lourdes' contention that gross negligence is unforeseeable as a matter oflaw.

       Since gross negligence can be foreseeable, the question is whether facts on appeal

support gross negligence's foreseeability. The record includes facts to support the

conclusion that, if Lourdes requested revocation, the Crisis Response Unit would have

revoked the less restrictive alternative release. Lourdes never made that request. A

reasonable jury could find that Lourdes' conduct was a proximate cause. Facts also

support the Crisis Response Unit and Lourdes Health Network to be concurrent

tortfeasors. Both parties chose not to act, and that inaction resulted in an indivisible

harm: the death of Viola Williams.

                   Bi-County Crisis Response Unit Summary Judgment

       We previously reviewed the summary judgment principles and rules of gross

negligence. Based on the foregoing, we conclude insufficient evidence supports a claim

for gross negligence against the Crisis Response Unit. The Unit had some, but limited,

contact with Adam Williams. The Spokane court order directed Lourdes Health

Network, not the Crisis Response Unit, to monitor Williams. Lourdes never

recommended revocation of the less restrictive alternative release. In Bader v. State, 43

Wn. App. 223 (1986) and Petersen v. State, 100 Wn.2d 421 (1983), only the entity that

                                             36
No. 33201-2-III
Lennox v. Lourdes Health Network


directly oversaw the treatment of the patient was held responsible under gross negligence.

       Dr. Matthew Layton criticizes Crisis Response Unit designated mental health

professionals Cameron Fordmeir and Kathleen Laws for deficient evaluations.

According to Layton, Fordmeir employed a wrong test for revocation of the less

restrictive alternative placement. Fordmeir failed to review all of Lourdes records.

Nevertheless, he reviewed Kadlec Medical Center records and spoke with Adam

Williams' father. Whereas, we agree Fordmeir's evaluation could be found negligent, we

do not discern the absence of slight care or gross negligence. Williams acted

appropriately for weeks after Fordmeir's evaluation.

       Lourdes Health Network's nurse Michelle Aronow and Crisis Response Unit's

designated mental health professional Kathleen Laws disagree concerning events

surrounding Laws' January 25, 2012 evaluation of Adam Williams. Laws claims she was

only asked to remind Adam Williams to follow the court order. Aronow indicates that

she asked Laws to evaluate Williams for revocation of his release. Laws says the

meeting lasted five minutes. Aronow says it lasted thirty minutes. The two disagree as to

the amount of information Aronow provided Laws. Both agree that there had not been a

previous appointment to perform an evaluation. According to Laws, she went to Lourdes

Health Network that day to evaluate someone else. Aronow did not insist to Laws that

the lesser restrictive alternative order be revoked. Aronow's notes do not indicate that

she explained the full history of Williams to Laws. During the meeting, Williams denied

                                            37
No. 33201-2-III
Lennox v. Lourdes Health Network


wanting to hurt anyone. Again, we do not observe an absence of slight care.

        Since we hold that insufficient facts support any finding that the Crisis Response

Unit engaged in gross negligence, we need not address whether any conduct of the unit

proximately caused the death of Viola Williams.

                                      CONCLUSION

        We reverse the summary judgment dismissal of defendant Lourdes Health

Network. We affirm the summary judgment dismissal of defendant Crisis Response

Unit.

        A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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Siddoway, J.                    '




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