           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



JANET G. HUSTED as Personal
Representative of the ESTATE OF                  No. 71662-0-
KURT HUSTED; WILBERT R. PINA,
an individual; and JOEL FLORES,
guardian ad litem for minor
EMMETT PINA;                                     ORDER GRANTING MOTION TO
                                                AMEND AND MOTION TO PUBLISH
                    Appellants,                 AND WITHDRAWING AND
                                                 REPLACING OPINION
      v.



STATE OF WASHINGTON,

                     Respondent.

      A motion to amend and a motion to publish was filed by respondent, State of

Washington asking the court to amend the opinion filed in this case on March 16, 2015.

Appellants filed an opposition to the respondent's motion to publish. The panel has

considered the motions and determined they should be granted.

       Now, therefore, it is hereby

       ORDERED that the motion to amend and the motion to publish are granted and

the opinion of this court filed March 16, 2015 is withdrawn and replaced with a revised

opinion.


       SO ORDERED
                                                                                 on


       Dated this ll^ day of_JT\M_                     ,2015.

                                         FOR THE COURT:
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          IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



JANET G. HUSTED as Personal
Representative of the ESTATE OF                          No. 71662-0-1
                                                                                                           CO o
KURT HUSTED; WILBERT R. PINA,                                                                     en

an individual; and JOEL FLORES,                          DIVISION ONE
guardian ad litem for minor
EMMETT PINA;

                       Appellants,                       PUBLISHED OPINION




STATE OF WASHINGTON,

                       Respondent.                       FILED: May 11. 2015

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

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

Corrections (DOC). Appellants contend the trial court erred in concluding that, as a

matter of law, DOC had no duty to control the offender once he absconded from

supervision and a warrant was issued for his arrest. Finding no error, we affirm.1

                                                 FACTS


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

domestic violence court order in Pierce County and sentenced to 15 months

confinement and 9 to 18 months of community custody. After his release from the




       1 In light of our disposition of the case, we do not address the issues of qualified immunity and
proximate cause.
No. 71662-0-1/2


Pierce County Jail on March 1, 2007, he reported to DOC for supervision, as

required by his judgment and sentence. Over the course of the next year and a

half, Finley repeatedly violated the terms of his supervision. He was found guilty of

several violations, sanctioned repeatedly, and eventually remanded to the Kitsap

County Jail.

       While Finley was in jail, DOC filed another violation report, charging Finley with

eleven separate violations. DOC requested the hearing officer to impose 240 days

confinement as a sanction. A hearing was held on October 15, 2008, and Finley was

found guilty of seven violations and sanctioned with 200 days confinement. Finley was

ordered to report for supervision within one business day of his release from jail.

       Finley was released on Saturday, February 14, 2009. According to the

terms of his supervision, he was to report to DOC on the next business day,

Tuesday, February 17, 2009. He failed to do so. A DOC officer immediately

requested a Secretary's Warrant for his arrest and attempted to ascertain his

whereabouts. However, the officer was unable to locate Finley, who remained a

fugitive until June 2, 2009.

       On June 2, 2009, Finley robbed an armored car at the Lakewood,

Washington Walmart store. During the course of the robbery, Finley shot and killed

Kurt Husted and injured Wilbert Pina. He was subsequently apprehended and

found guilty of various crimes and community custody violations. He was

sanctioned with 120 days confinement for the community custody violations. And,

on March 19, 2010, Finley plead guilty to the following crimes: aggravated first

degree murder; assault in the first degree; robbery in the first degree; criminal
No. 71662-0-1/3


solicitation to commit robbery in the first degree; and unlawful possession of a

firearm in the first degree.

       On May 16, 2012, appellants Janet G. Husted and Wilbert Pina initiated this

action against the State of Washington in Pierce County Superior Court, alleging

that DOC was negligent in its supervision of Finley and, as a result, the State is

liable for the injuries he inflicted during the June 2, 2009 robbery committed by

Finley. The State moved for summary judgment that it had no duty to control Finley

at the time he caused the death of Husted and injuries to Pina. The trial court

agreed and entered judgment for the State. Husted and Pina appeal.

                                     DISCUSSION


       Because this appeal arises from the trial court's entry of summary judgment,

we review de novo, making the same inquiry as the trial court, i.e., summary

judgment is proper when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Hertog, ex rel. S.A.H. v. City of

Seattle. 138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing Taqqart v. State. 118

Wn.2d 195, 199, 822 P.2d 243 (1992); CR 56(c)). We construe all facts and

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

party. Id. (citing Taqqart. 118 Wn.2d at 199). Questions of law are reviewed de novo.

Sherman v. State. 128 Wn.2d 164, 183, 905 P.2d 355 (1995).

       Summary judgment is subject to a burden-shifting scheme. Ranger Ins. Co. v.

Pierce Cntv.. 164 Wn.2d 545, 552, 192 P.3d 886 (2008).The initial burden to show

the nonexistence of a genuine issue of material fact is on the moving party. Id.; see

also Vallandiqham v. Clover Park School Dist. No. 400. 154Wn.2d 16,26, 109 P.3d
No. 71662-0-1/4


805 (2005). For example, a defendant may move for summary judgment by showing

that there is an absence of evidence to support the plaintiff's case. Sliqarv. Odell.

156 Wn. App. 720, 725, 233 P.3d 914 (2010) (citing Young v. Key Pharm., Inc.. 112

Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). Once this initial showing is made, the

inquiry shifts to the plaintiff because the plaintiff bears the burden of proof at trial. Id.

at 725.


          In order to make a prima facie case for negligence, Appellants, as plaintiffs,

bore the burden of first establishing the existence of a duty owed them by the State.

Hertog, 138 Wn.2d at 275 (citing Degel v. Maiestic Mobile Manor, Inc.. 129 Wn.2d 43,

48, 914 P.2d 728 (1996)). The State moved for summary judgment, arguing that

Appellants failed to do so.

          The parties agree that under Taggart and its progeny, DOC officers and the

State have a duty to control the behavior of persons committed to DOC for

supervision. The dispute hinges on whether those cases also dictate that the State's

duty extends to an offender who absconds supervision, has no contact with his

community corrections officer, and for whom a warrant has been issued for his or

her arrest. The State contends that under these circumstances the duty is

suspended until the offender is apprehended. Husted and Pina argue the duty

continues at all times until the State's duty to supervise the offender is terminated or

modified in some material way. We conclude that under the facts of this case, the

State had no such duty and affirm.

          In Taggart. our supreme court recognized an exception to the common law rule

that a person has no duty to prevent another person from causing physical injury to
No. 71662-0-1/5


another. Taggart, 118 Wn.2d at 219-20. The exception to the common law rule is set

forth in Restatement (Second) of Torts, §§ 315 and 319. Section 315(a) states in

relevant part:

        There is no duty so to control the conduct of a third person as to
        prevent him from causing physical harm to another unless
           (a) a special relation exists between the actor and the third
        person which imposes a duty upon the actor to control the third
        persons conduct. . . .

        The court specifically adopted one class of the "special relation" cases described

in § 319 as most relevant to the relationship between parole officer and parolee.2 Id. at

219. Section 319 provides:

        One who takes charge of a third person whom he knows or
        should know to be likely to cause bodily harm to others if not
        controlled is under a duty to exercise reasonable care to control
        the third person to prevent him from doing such harm.

        The Taggart court held that to "take charge" of a third person as that term is

used in § 319 means to have a "'definite, established and continuing relationship

between the defendant and the third party.'" kl (quoting Honcoop v. State, 111

Wn.2d 182, 193, 759 P.2d 1188 (1988)). The court determined that such a

relationship existed between parole officers and parolees based on RCW

72.04A.080, which states that parolees "'shall be subject to the supervision of the

department of corrections, and the probation and parole officer of the department



          2 The terms "parole officer" and "parolee" are generally associated with cases arising before
enactment of the Sentencing Reform Act (SRA) or with opinions from courts in other jurisdictions. Under
the SRA, the term "offender" is generally used to refer to individuals under the supervision of DOC while on
parole, probation, community supervision, or community custody, while the term "community corrections
officer" (CCO) refers to DOC officers who supervise sentenced offenders and monitor sentence conditions.
See former RCW 9.94A.720(1 )(a) and (b) (2009). For purposes of this opinion, the terms "parole officer"
and "parolee" are interchangeable, respectively, with the terms "community corrections officer" and
"offender."
No. 71662-0-1/6


shall be charged with ... giv[ing] guidance and supervision to such parolees within

the conditions of a parolee's release from custody.'"3 Id. (quoting RCW

72.04A.080). Under this statute, the State could, among other things, regulate the

parolee's movements within the state, require the parolees to report, impose special

conditions such as refraining from alcohol or undergoing drug rehabilitation or

psychiatric treatment, and order parolees not to possess firearms. Further, under

the statute, parole officers are or should be aware of their parolee's criminal

histories and monitor or should monitor, their parolee's progress. The Taggart court

concluded that "[bjecause of these factors ... parole officers have 'taken charge' of

the parolees they supervise for purposes of § 319." Taggart, 118 Wn.2d at 220.

Thus, "the 'take charge' aspect of special relationship liability became a term of art

incorporating the kinds of attributes described in Taggart." Sheikh v. Choe, 156

Wn.2d 441, 449, 128 P.3d 574 (2006).




         3 RCW 72.04A.080, which Taqqart found created the take charge relationship between the parole
officer and the parolee, is inapplicable to felonies committed on or after July 1, 1984, the effective date of
the SRA. The authority of DOC officers to supervise and monitor felony offenders was recodified under
RCW 9.94A.700 et seq., effective date July 1, 1984. See, Estate of Davis v. State, Dept. of Corrections,
127 Wn. App. 833, 842-43, 113 P.3d 487 (2005). Laws of 2008, ch. 9.94A, § 720 RCW (repealed August
1, 2009) provides in relevant part:
            (1)(a) Except as provided in RCW 9.94A.501, all offenders sentenced to terms
        involving community supervision, community restitution, community placement,
        or community custody shall be under the supervision of the department and shall
        follow explicitly the instructions and conditions of the department. The
        department may require an offender to perform affirmative acts it deems
        appropriate to monitor compliance with the conditions of the sentence imposed.
        The department may only supervise the offender's compliance with payment of
        legal financial obligations during any period in which the department is authorized
        to supervise the offender in the community under RCW 9.94A.501.
                (b) The instructions shall include, at a minimum, reporting as directed to
        a community corrections officer, remaining within prescribed geographical
        boundaries, notifying the community corrections officer of any change in the
        offender's address or employment, and paying the supervision fee assessment.
No. 71662-0-1/7


       In this case, it is undisputed that DOC "took charge" of Finley within the

meaning of § 319 when he reported for supervision in 2007, as required by his 2006

judgment and sentence. RCW 9.94A.700 et seq. empowered DOC to control Finley

and gave rise to the definite, established, and continuing relationship necessary to

create a duty to control under § 319. But at the time of the robbery that lead to the

death of Husted and the injuries to Pina, Finley had absconded from supervision

and a warrant had been issued for his arrest. The State contends that under these

circumstances, its duty to control Finley was suspended.

       The State argues that Taggart recognizes that the premise underlying of §

319 is the continuing relationship between the community corrections officer and

the offender. Because of the continuing relationship, the community corrections

officer has the ability to monitor and supervise the offender. He or she can also

control and modify the offender's conduct by coercive action against the offender as

authorized by the legislature. But when the offender absconds from supervision and

a warrant is issued for his or her arrest, the State argues that the requisite

continuing relationship is terminated and the ability to monitor and control the

offender's behavior no longer exists. Accordingly, the State contends that during

such times, because the rationale for imposing the duty under § 319 and Taggart

has disappeared, so to should the duty itself, until the offender is apprehended and

the continuing relationship is re-established.

       Husted and Pina contend the State's duty to third persons under Taggart and

§ 319 is not diminished because an offender has absconded and is on warrant

status. They point out that the Taggart court expressly rejected the State's
No. 71662-0-1/8


argument in that case that a take charge relationship requires "nothing less than a

full custodial relationship. . . ." Taggart. 118 Wn.2d at 222. They also point out that

the court distinguished and rejected the principal cases upon which the State relied,

Fox v. Custis. 236 Va. 69, 372 S.E.2d 373 (1988) and Lamb v. Hopkins. 303 Md.

236, 492 A.2d 1297 (1985). In Fox, the victims of a parolee's crimes sued the state

parole officers responsible for the parolee's supervision. The Taggart court

observed:


       The case was analyzed under § 319, and the court held that
       the parole officers did not 'take charge' of the parolee because
       the statute empowering the officers to supervise parolees 'does
       not contemplate continuing hourly or daily dominance and
       dominion by a parole officer over the activities of a parolee.'

Taggart. 118 Wn. 2d at 222 (quoting Fox, 236 Va. at 75). Similarly, the court noted

that in Lamb:


       the Maryland court expressly adopted § 319, but held that
       probation officers do not 'take charge' of probationers such as to
       give rise to a duty to exercise due care in controlling the
       probationers because of the lack of a custodial relationship and
       the relative freedom the probationers have in conducting their day-
       to-day affairs.

Taggart. 118 Wn. 2d at 222. Taggart explicitly rejected these views. The court

observed that "the Washington statute empowering parole officers to supervise

parolees contemplates neither a custodial relationship, such as the Maryland court

required in Lamb, nor continuous supervision, such as the Virginia court demanded

in Fox." jd. at 223. Accordingly, the court held that "a parole officer takes charge of

the parolee he or she supervises despite the lack of a custodial or continuous

relationship." Id. at 223. Thus, Husted and Pina contend that because neither

custody nor a continuous relationship are necessary components of the duty under

                                              8
No. 71662-0-1/9


§ 319, the State's take charge relationship with Finley continued even though he

had absconded from supervision and a warrant had been issued for his arrest.

       The flaw in the argument made by Husted and Pina is that it conflates two

distinct concepts discussed in Taqqart. "[Cjustody or [a] continuous relationship"

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

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

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

thereby, is the community corrections officer's statutory authority to supervise the

offender under RCW 9.94A.720. Pursuant to that statute, a community corrections

officer must monitor the offender's compliance with the conditions of supervision

and his or her progress while on supervision. And when necessary, the community

corrections officer can control the offender's behavior by threat of incarceration,

limiting movements to prescribed boundaries, increasing reporting requirements

and the like. RCW 9.94A.720(1). Taqqart tells us that the exercise of this authority

depends on neither custody nor a condition of "'continuing hourly or daily

dominance and dominion.'" Taqqart. at 224, (quoting Fox, 236 Va. at 75). Thus,

even though an offender may have only weekly or monthly contact with a

community corrections officer, that is sufficient to establish and maintain a take

charge relationship. But Taqqart also tells us that a take charge relationship entails

ongoing contact between the community corrections officer and the offender

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

219. It is the continuing nature of the relationship that allows the community

corrections officer to exercise control. An offender who has absconded and for
No. 71662-0-1/10


whom a warrant has been issued, no longer has a continuing relationship with the

community corrections officer. When this occurs the offender is not subject to the

community corrections officer's control because he or she cannot be monitored,

given direction or sanctioned.

       Husted and Pina cite Joyce v. Dep't of Corrections. 155 Wn.2d 306, 119

P.3d 825 (2005) in support of their argument that the State still had a take charge

relationship with Finley. But the case is distinguishable. In Joyce, the parolee,

Stewart, was on DOC supervision as a result of convictions for assault, possession

of stolen property and driving offenses. Although he repeatedly failed to report to

his community corrections officer as directed, the evidence showed that he had

continuing and ongoing contact with her by phone, through family members and

unscheduled visits. As a result, the community corrections officer filed two "notices

of violation" with the court, but did not request a warrant for Stewart's arrest.4

Subsequently, Stewart drove a stolen car at a high rate of speed into a small pickup

truck driven by Paula Joyce, killing her. The supreme court rejected the State's

argument in that case that it owed no duty to Joyce. But unlike here, in Joyce there

was no issue that despite failing to report as directed, Stewart maintained contact

with his community corrections officer and no warrant was issued for his arrest.

Thus, the requisite continuing relationship between the community corrections

officer and offender was intact and the State's take charge duty remained.




       4The facts of the case are set forth in great chronological detail in Joyce v. Dep't of Corrections,
116 Wn. App. 569, 575-85, 75 P.3d 548 (2003).

                                                     10
No. 71662-0-1/11


       In this case, however, it is undisputed that only one brief telephone contact

occurred between Finley and DOC from the date of his release from custody on

February 14, 2009 and the date of his arrest on June 3, 2009. It is also undisputed

that a warrant for his arrest was issued on February 18, 2009, the day after he

failed to report as directed. Here, unlike in Joyce, there was no continuing

relationship between Finley and his community corrections officer and since the

basis for the take charge did not exist, the State had no duty to control him.

       Husted and Pina rely on In re Pers. Restraint of Dalluge, 162 Wn.2d 814,

177 P.3d 675 (2008), to argue that the take charge relationship continues even

after an offender is on warrant status. Dalluge was serving a year of community

custody when he was arrested and taken to jail where he was involved in an

altercation. DOC determined that the altercation violated the terms of his

community custody and, after a hearing, sanctioned him. Dalluge argued that since

his term of community custody was tolled while he was in confinement pursuant to

former RCW 9.94A.625 (2008), recodified as RCW 9.94A.171, the department did

not have the authority to discipline him for the alleged violation. The supreme court

disagreed, holding that although the statute tolled Dalluge's term of community

custody while he was incarcerated, that did not diminish DOC's authority to enforce

the terms of his supervision.

       Husted and Pina point out that under RCW 9.94A.171 the period of

community supervision is similarly tolled for an offender who absconds from

supervision. They contend that here, as in Dalluge. absconding does not diminish

DOC's power and duty to supervise the offenders committed to it. Thus, they argue


                                             11
No. 71662-0-1/12


that even though Finley's supervision was tolled by issuance of the warrant, DOC's

authority to supervise him continued and the take charge relationship remained

intact. We disagree that Dalluge is controlling.

           First, Dalluge does not discuss to what extent, if any, RCW 9.94A.171 affects

DOC's take charge relationship with an offender who absconds from supervision. It

held only that when a person subject to DOC supervision is in custody, the terms of

supervision remain in effect and are enforceable even though the term of

community custody is tolled for the duration of the offender's confinement. Second,

even if Dalluge were controlling, it is entirely consistent with the idea that the take

charge relationship is linked to an ongoing, continuing relationship between the

community corrections officer and the offender. That relationship exists when the

offender is in custody and subject to control by his or her community corrections

officer.

           We conclude that where an offender absconds from supervision and a

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

exists and the duties associated with the take charge relationship are terminated

unless and until the person is apprehended. Accordingly, we hold that the State had

no duty to control Finley's behavior at the time he committed the acts giving rise to

the claims in this case because Finley had absconded supervision, had only

minimal contact with DOC and was on warrant status at that time. The trial court did

not err when it granted the State's motion for summary judgment dismissal.




                                               12
No. 71662-0-1/13




      Affirmed.




                        )4.jC(?v^&—i   jGX

WE CONCUR:


JL*/, J.                fahwK




                   13
