                                                                                       1LED
                                          COURTOF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF  A9SPifGTON


                                                  DIVISION II                2015 AUG 2f PM -12: 53

 JOYCE           M.    SMITH,                                                Sj(POT       g1NG T 0 N
                                   individually    and     as

 Personal Representative for the Estate of James                              BY,—
 W. Smith; IZETTA DILLINGHAM, as Limited                                              E UTY
 Guardian Ad Litem for the minor children,
 JA' MARI SMITH, JANAJA SMITH, and
 JAMAE SMITH; and SHAREE DAMMELL,
 as Limited Guardian Ad Litem for the minor
 child SHALYSE SMITH,


                                         Appellants,


            V.



 WASHINGTON STATE DEPARTMENT OF                                           PUBLISHED OPINION
 CORRECTIONS; and JOHN AND JANE DOE
  1- 10)




           MELNICK, J. — Joyce Smith, individually and in her capacity as personal representative

of   the   estate     of   her husband James Smith,'        appeals from the trial court' s grant of summary

judgment in the Department          of   Corrections' (   DOC) favor. The Estate argues that DOC negligently

supervised an offender on community custody, causing the offender to murder James Smith. We

conclude that because DOC promptly issued an arrest warrant for the offender after he absconded

and it had no information about his whereabouts, DOC had no further duty to control the offender.

Additionally, the Estate failed to establish a prima facie case of proximate cause for any alleged

negligent supervision before the offender absconded. Accordingly, we affirm the trial court' s grant

of summary judgment to DOC.




  For the purpose of clarity, we will refer to the appellants collectively as " the Estate" and will
referto James Smith individually by name. We intend no disrespect.
45479 -3 - II



                                                               FACTS


I.        BACKGROUND


          Antwane Goolsby pleaded guilty to a charge of conspiracy to commit robbery in the first

degree.    He received a sentence of 56. 25 months in prison and. 18 to 36 months of community

custody. Goolsby was released from prison on January 21, 2009. Judith Lang, a DOC community

corrections officer, supervised Goolsby' s community custody.

          Lang   understood         that   Goolsby      was a "    high       risk offender"      and   she was "   skeptical about




 his]   motivation    for    change."       Clerk' s Papers ( CP)             at   62.   Goolsby had gang affiliations, mental
                                                                          2
health issues,    and       an    extensive      criminal     history.             Although Goolsby required mental health

medications,     he had      not   been     on   his   medication     for      a month      before his   release.   Because of his


criminal
            history    and       his " behaviors        while      incarcerated,"          Lang believed that Goolsby was

unsuitable to be released in the community. CP at 723.

          DOC    categorized        Goolsby       as a "   High Violent,            untreated,   Level II Sex Offender."     CP at


300. DOC requires its officers to have three " face to face" contacts and one " collateral" contact


per month with offenders at               this level.    CP   at   180.       Two of the three " face to face" contacts must

be outside the DOC office. CP at 180. At no time during Goolsby' s community custody did Lang

contact    Goolsby      in       person    outside      the   DOC        office.         Goolsby received no mental health

medications.




2
     Goolsby' s criminal history included prior convictions for rape in the third degree, violation of
the Uniform Controlled Substances Act, failure to register as a sex offender, unlawful possession
of a firearm in the second degree, and several misdemeanors.




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45479 -3 - II



II.       GOOLSBY' S COMMUNITY CUSTODY


          The terms of Goolsby' s community custody forbade him from using drugs or associating

with drug users. He had to obey all laws and all DOC' s instructions. Lang instructed Goolsby to

report to DOC daily, to stay in DOC -approved housing, and to stay in King County.

           Goolsby had inconsistent             compliance.        Goolsby reported to DOC on most days when he

was not    detained.'        Goolsby also entered a chemical dependency treatment program, but failed to

attend most. of        his   sessions.    Goolsby lied to DOC about where he resided; he never stayed in a

DOC -approved location. Instead, he stayed at a motel where he associated with a fellow offender

and     drug   user.    Goolsby may also have been " prostituting girls out and/or dealing from motel

room."     CP at 54.


           DOC arrested and detained Goolsby twice for violating his community custody terms. On

his first day of community custody, January 22, 2009, Goolsby walked away from the homeless

shelter where Lang had left him. DOC requested a warrant for Goolsby' s arrest.4 Four days later,
when     Goolsby       reported       to DOC,   he   was arrested.      On that same day, before his arrest, Goolsby

submitted to a drug test that came back positive for marijuana. Goolsby was detained until a DOC

hearing    on    February       18.    The hearing officer found Goolsby guilty of violating his community

custody conditions, and imposed 21 days confinement as a sanction, with credit for time served.




      DOC indicated that some of Goolsby' s failures to report may have been because he was
  legitimately,busy handling DOC requirements." CP at 56. Additionally, it is noted in the report

that Goolsby' s illiteracy was causing him problems accomplishing tasks.

4 Both of the warrants for Goolsby' s arrest were administrative secretary' s warrants that may be
served     either      by law    enforcement         or   by   a   DOC community    corrections   officer.   See RCW
9. 94A.716( 1).




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45479 -3 - II



Lang alerted the DOC Community Response Unit (CRU) in Tacoma that Goolsby was out ofjail
                                                 5
and could not      be in Pierce        County.

           Goolsby' s second arrest occurred on March 6, when a DOC agent visited Goolsby at his

motel room. There, a man later identified as a fellow gang member of Goolsby' s ran to the toilet

and attempted       to   flush    a   baggie containing        cocaine.       Goolsby attempted to block the agent from

recovering the baggie.                The DOC         agent   immediately detained Goolsby.                   Pending Goolsby' s

violation hearing, Lang reported to the hearing officer in a report of "Alleged Violations" that

Goolsby'     s " activities outside       the   office are    indicative     of    his   continued criminal    thinking,"   and that


his " behavior     and    his   recent affiliations" are "       truly      a concern      for community safety."       CP at 300.


Lang    recommended           that     Goolsby be      sanctioned         to 60 days       confinement.       Instead, the hearing

officer    imposed 16 days            as a sanction, with credit           for time      served.    Because he had served all of


his   time   for the     violation,     Goolsby      was released on          March 23       after   the   hearing.   DOC warned


Goolsby      not   to    reside   in   a motel       and   Goolsby        stated   that   he intended to " reside homeless in


Seattle."    CP at 53- 54.


           Goolsby' s last        contact with        DOC     occurred on           April 10.       On that day, a DOC officer

confronted      Goolsby       because he had been             lying   about        staying in   a   DOC -approved     shelter.   The


officer warned Goolsby that " failure to reside at [ the shelter] would result in violation and possibly

arrest."     CP    at   50.   Goolsby agreed to stay at the shelter, but absconded from supervision the

following day. On April 16, DOC requested an arrest warrant for Goolsby, which issued the next

day. Goolsby was missing until August 5, when he shot and killed James Smith in Tacoma.




5 A CRU is responsible for cooperating with law enforcement to apprehend DOC violators.

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45479 -3 - II



III.        PROCEDURAL HISTORY


            The Estate           sued   DOC, claiming that DOC had negligently                    supervised      Goolsby.   The


Estate' s expert, William Stough, declared that " intensive supervision, combined with treatment"


has a statistically significant downward effect on recidivism. CP at 154. Stough opined that DOC

had failed to enforce Goolsby' s community custody conditions and that DOC' s omissions " directly

led to him absconding, supervision,"                  and   led to James Smith' s death. CP           at   157.   Stough further


opined      that if DOC          had done     more   to   enforce   Goolsby' s    conditions, "   Goolsby would have been

under       control    or    incarcerated      and    would    not       have   absconded    and `   blown off       supervision


completely."         CP at 157. Finally, Stough opined that strict enforcement of supervision and holding

offenders accountable prevents absconding and recidivism and would have done so in this case.

            DOC moved for summary judgment dismissal of the Estate' s claim for negligent

supervision.         After hearing argument and considering the proffered evidence both in support of

and in opposition to the motion, the trial court granted DOC' s motion for summary judgment. The

Estate appeals.


                                                              ANALYSIS


            The Estate argues that DOC negligently supervised Goolsby, causing him to murder James

Smith. "      The elements of a negligence cause of action are the existence of a duty to the plaintiff,

breach      of the   duty, and injury to       plaintiff proximately caused         by the   breach."      Hertog ex rel. S.A. H.

v.
     City   of Seattle, 138 Wn.2d 265, 275, 979 P. 2d 400 ( 1999).                          Initially, DOC owed a duty to

supervise Goolsby; however that duty ended when Goolsby absconded supervision and DOC

issued a warrant for his arrest. DOC is not liable for its alleged inaction after Goolsby absconded

because its      duty       to    supervise   him    ended.    As for DOC' s alleged negligent supervision before


Goolsby absconded, we conclude that the Estate failed to establish a prima facie case of proximate



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45479 -3 -II



cause.       Therefore, the trial court did not err by granting DOC' s summary judgment motion to

dismiss the Estate' s negligent supervision claim.


I.           STANDARD OF REVIEW


             We review a trial court' s decision to grant summary judgment de novo. Hertog, 13 8 Wn.2d

at    275.   Summary judgment is appropriate where there are no genuine issues of material fact and

the moving party        is   entitled   to judgment        as a matter of   law. CR 56( c);     Hertog, 138 Wn.2d at 275.

We     consider all    facts in the light      most     favorable to the nonmoving party. Vallandigham v. Clover


Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d 805 ( 2005).                          But we do not weigh evidence


or resolve factual disputes. Babcock v. State, 116 Wn.2d 596, 598- 99, 809 P. 2d 143 ( 1991).


             The parties bear different burdens in a summary judgment motion. The moving party bears

the burden of showing that there is no genuine issue of material fact. Atherton Condo. Apartment—

Owners Ass'       n   Bd. of Dirs.      v.   Blume Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990).                  If the


moving party is the defendant and meets its burden,6 then the inquiry shifts to the party with the
burden of proof at trial to present admissible evidence to establish a material factual dispute.


Atherton, 115 Wn.2d at 516; Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989).

     If, at this point, the plaintiff `fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden of proof at trial,'

then the trial, court should grant the                motion."   Young, 112 Wn.2d at 225 ( quoting Celotex Corp. v.

Catrett, 477 U. S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)). In such a situation, a failure


of proof "`     concerning an essential element of the nonmoving party' s case necessarily renders all

other    facts immaterial"'.       Young, 112 Wn.2d at 225 ( quoting Celotex Corp., 477 U.S. at 322- 23).


6
     The moving defendant may                meet     this initial showing "`   by   pointing   out"'   to the court that there
is    an absence of evidence         to      support    the nonmoving party'     s case.    Young, 112 Wn.2d at 225 n. 1
     quoting Celotex     Corp.,   477 U. S.      at   325).
45479 -3 - II




              Circumstantial evidence is sufficient to establish a prima facie case of negligence if it

affords room          for ...    reasonable minds to conclude that there is a greater probability that the

conduct relied upon was the proximate cause of the injury than there is that it was not."'

Hernandez        v.    W. Farmers Assn, 76 Wn.2d 422, 426, 456 P. 2d 1020 ( 1969) (                       quoting Wise v.

Hayes, 58 Wn.2d 106, 108, 361 P. 2d 171 ( 1961));                         Martini v. Post, 178 Wn. App. 153, 165, 313

P. 3d 473 ( 2013).         But the nonmoving party may not rely on speculation or argumentative

assertions      that   unresolved        factual issues    remain.    White v. State, 131 Wn.2d 1, 9, 929 P. 2d 396


 1997).


Il.       DUTY


          The Estate argues that DOC had a duty to exercise reasonable care to supervise Goolsby

and protect the public from his harmful propensities. DOC concedes that it initially had a duty to

supervise Goolsby, but argues that this duty ended when Goolsby absconded from community

custody and a warrant issued for his arrest. We agree with DOC.

          The     existence of a          duty   is   a question of   law.   Hertog,   138 Wn. 2d     at   275.   Generally, an

actor "   has   no     duty     to   prevent a   third   person   from causing   physical   injury   to   another.   Taggart v.


State, 118 Wn.2d 195,                 218,   822 P. 2d 243 ( 1992). An important exception to this rule exists when


 a special relation exists between the actor and the third person which imposes a duty upon the

actor   to   control     the third person' s          conduct."    Taggart, 118 Wn.2d at 218 ( quoting RESTATEMENT

 SECOND)        OF    TORTS § 315 ( 1965)).              One example of such a special relation is the relationship

between a parole officer and a parolee. Taggart, 118 Wn.2d at 219. Because a parole officer takes

charge of a parolee, our Supreme Court imposes a special duty on parole officers:

             When a parolee' s criminal history and progress during parole show that the parolee
             is likely to cause bodily harm to others if not controlled, the parole officer is under
             a duty to exercise reasonable care to control the parolee and to prevent him or her
             from doing such harm.


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45479 -3 - II




Taggart, 118 Wn.2d       at   220;   see     RESTATEMENT ( SECOND) OF TORTS § 319 ( 1965).           Community

corrections officers have the same duty with regard to the offenders they supervise. Joyce v. Dep' t

of Corr., 155 Wn. 2d 306, 316- 17, 119 P. 3d 825 ( 2005).              DOC " assume[ s] the duty of supervising

an offender' s conduct" and " has the ability to take steps to ensure, as a condition of release, that

the   offender complies with      the   conditions of release."      Joyce, 155 Wn.2d at 316.


         Recently, Division One of our court considered whether DOC continues to owe a duty to

supervise an offender after the offender absconds and DOC issues a warrant for his arrest. Husted

v.   State, 187 Wn. App. 579, 348 P. 3d 776, 778 ( 2015). The Husted court recognized that DOC' s


ability to exercise control over an offender is dependent on the continuing nature of the relationship

between    an offender and       his    or   her community       corrections officer.   Husted, 348 P. 3d at 780.


Where an offender absconds and a warrant issues for his arrest, the offender is no longer subject


to the community correction officer' s control because the offender cannot be monitored, given

direction, or sanctioned. Husted, 348 P. 3d at 780. Division One concluded 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."    Husted, 348 P. 3d at 781.


          We agree with Division One that DOC' s duty to supervise an offender is dependent on the

existence of a continuing relationship between the offender and the community corrections




                                                            N.
45479 -3 - II




officer.7 In this case, the special relationship between the offender and DOC terminated once

Goolsby absconded and an arrest warrant issued.

         Here,    Goolsby' s    last   contact with   DOC     occurred on      April 10.   DOC issued a warrant for


Goolsby' s      arrest within one week.       DOC had no contact with Goolsby and no information about

his whereabouts until August 5, when he shot and killed James Smith in Tacoma. Under the facts


of this case, DOC' s ongoing relationship with Goolsby ended when he absconded community

supervision and DOC issued a warrant for his arrest. The take charge relationship ceased to exist

and   there are no      facts to   support   the   reestablishment of    the   special   relationship.   Therefore, we


conclude that DOC did not have a duty to supervise Goolsby at the time he murdered James Smith.
         This    conclusion,       however, does     not end our analysis.       It is undisputed that DOC owed a


duty to supervise Goolsby for compliance with the court' s sentencing order prior to his absconding.

Therefore; we must still consider the Estate' s argument that DOC' s breach of its duty to supervise

Goolsby, prior to him absconding and a warrant issuing, was a proximate cause James Smith' s

murder.




  We want to make clear that, we are not adopting Division One' s holding that the relationship
cannot   be   reestablished " unless and until        the   person   is apprehended." Husted, 348 P. 3d at 781. A

court evaluating whether DOC owes an ongoing duty to supervise an offender must determine
whether, under the facts of the particular case, the offender and his or her community corrections
officer have a continuing relationship that enables DOC to exercise meaningful control over the
offender.  We note that there may be circumstances short of apprehending the, offender that
arguably could reestablish DOC' s duty to supervise an offender. For example, DOC cannot ignore
information about an absconding offender' s whereabouts to avoid reestablishing a continuing
relationship     with   the   offender.   But, such facts are not present here, and we decline to speculate
what facts would constitute that situation.




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45479 -3 - II




III.     CAUSATION$


         We now address whether the Estate' s evidence raised an issue of material fact regarding

whether DOC' s alleged breaches of its duty to supervise, prior to Goolsby absconding and a

warrant    issuing,   caused   James Smith' s death. The Estate seems to argue that DOC proximately


caused    James Smith'    s   death based   on   two theories:   if DOC had not breached its duty, Goolsby

either would have been in custody at the time of the murder or he would have been rehabilitated.

No genuine issue of material fact exists regarding causation under either theory.

         Proximate cause is generally a question for the trier of fact, but if reasonable minds cannot

differ, then it may be decided        as a matter of    law.   Hertog,   138 Wn.2d   at   275.   Proximate cause


consists of two elements: cause in fact and legal causation. Hartley v. State, 103 Wn.2d 768, 777,

698 P. 2d 77 ( 1985).    Cause in fact concerns the " but for" consequences of an act: those events the


act produced in a direct, unbroken sequence, and which would not have resulted had the act not


occurred. Hartley, 103 Wn.2d at 778. Legal causation rests on considerations of logic, common

sense,    policy, justice,     and precedent as to how far the defendant' s responsibility for the

consequences of its actions should extend. Hartley, 103 Wn.2d at 779.

          DOC argued on summary judgment that its actions were not a proximate cause of James

Smith' s death. Specifically, it argued that the connection between its conduct and James Smith' s

murder was too speculative and indirect to impose liability because there was no evidence that had

DOC acted differently, Goolsby would have been in jail at the time he murdered James Smith. By

pointing out that there was no evidence of causation, DOC met its initial burden to show that no

material    factual dispute     existed.   Therefore, the critical inquiry is whether the Estate presented



8 For purposes of this appeal, we assume without deciding that material factual issues exist
regarding whether DOC breached its duty to supervise Goolsby before he absconded supervision
and a warrant issued.



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45479 -3 - II




evidence of a sufficient quantity or quality to raise a material issue of fact as to whether Goolsby

would not have killed James Smith if DOC had acted differently.

          The Estate argues that DOC breached its duty regarding Goolsby in two ways, and that

issues   of material        fact   exist   regarding    whether    these   breaches   caused     Smith' s   murder.   First, the


Estate argues that DOC failed to properly sanction Goolsby for violations of his community

custody    conditions.         For instance, DOC should have asked the hearing officer to incarcerate

Goolsby    before April 10 for             failing    to live in   approved    housing. The Estate argues that if DOC

had sought appropriate sanctions for Goolsby' s violations, he would have been in jail at the time

of Smith' s murder.9

          However, it is pure speculation that if DOC had reported Goolsby' s violations before April

10 that he would have been in jail almost four months later when he murdered James Smith. DOC

reported   two       of   Goolsby' s    violations.      At the first violation hearing, the hearing officer imposed

21 days confinement as a sanction; and, at the second violation hearing, the hearing officer

imposed 16 days confinement as a sanction, despite Lang' s recommendation for a sanction of 60

days     confinement.          The Estate presented no evidence suggesting that if DOC had reported

Goolsby' s violations before April 10, he would have been sanctioned with confinement of over




9 The Estate claims Stough testified that Goolsby would have been in jail at the time of Smith' s
murder     if DOC had              engaged   in    proper     supervision.   However, the Estate provides no record
citation   for this testimony          and    Stough'    s    declaration does not contain such testimony. Even if it
did, Stough is not qualified to give an opinion on what a hearing' s officer might have done at a
specific SRA ( Sentencing Reform Act of 1981) violation hearing. See Estate of Bordon ex rel.

Anderson v. Dep' t of Corr., 122 Wn. App. 227, 246- 47, 95 P. 3d 764 ( 2004) ( affirming
determination that Stough is not qualified to testify about what ajudge would do in a SRA violation
hearing, where he is not a judge, has never supervised an SRA offender, and has never attended
an   SRA   violation        hearing).      An     expert' s   opinion   must   be based   on   facts. Theonnes v. Hazen, 37
Wn.    App.     644, 648, 681 P. 2d 1284 ( 1984). "   An opinion of an expert which is simply a conclusion
or   is based    on an assumption            is                      take a case to the jury." Theonnes, 37
                                                  not evidence which will

Wn.    App.     at   648.   In any event, we will address the Estate' s argument.

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45479 -3 - II




115 days. Any suggestion that Goolsby would have committed additional violations and received

further sanctions is pure speculation which is insufficient to create a genuine issue of material fact.

Hungerford      v.   Dep' t   of Corrs.,   135 Wn. App. 240, 254, 139 P. 3d 1131 ( 2006).

          Second, the Estate argues that DOC negligently failed to gain control over Goolsby through

its   supervision.      The Estate relies on Stough' s testimony that appropriate supervision reduces

recidivism and that if DOC had properly supervised Goolsby, he would not have absconded.

          However, we expressly rejected a similar recidivism argument in Hungerford, 135 Wn.

App.    240.    In Hungerford, Stough also testified that there was a correlation between recidivism


and    supervision.       135 Wn.     App.    at   255.   We   emphasized   that DOC "   does not have a duty

enforceable in tort" to rehabilitate offenders. Hungerford, 135 Wn. App. at 256. As a result, we

concluded:



          Even if Hungerford could show that DOC' s lack of supervision contributed to
          Davis' s recidivism, as a matter of policy, the connection between the ultimate result
          and DOC' s action is too remote to establish liability. Accordingly, we hold that as
          a matter of law, DOC' s alleged failure to closely supervise Davis and rehabilitate
          him is not the legal cause of Hungerford -Trap' s death.

Hungerford, 135 Wn. App. at 256.

          Similarly, DOC' s supervision duties did not encompass a duty to rehabilitate Goolsby or

to somehow change his behavior such that he would not commit murder. As a result, we hold that

there is no causal connection between DOC' s failure to control Goolsby and the fact that he

absconded or the fact that he was willing to engage in criminal activity such as murdering James

Smith.


          The Estate has failed to meet its prima facie case because it did not identify a theory of

causation and provide admissible evidence in support of that theory. The Estate relies on Stough' s

declaration to show causation. But in reviewing the evidence in the light most favorable to the



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45479 -3 -II



Estate, we conclude that because the Estate failed to make a prima facie showing of causation,

DOC was entitled to judgment as a matter of law.


        We affirm the trial court' s grant of summary judgment -in DOC' s favor.




                                                            Melnick, J.   J

We concur:




        IV ax aj.J.




        Lee, J.




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