                                                                                        FILED
                                                                                COURT OF APPEALS
                                                                                      DIVISION IT

                                                                               20I5 MAY - 5 AM 9: 21
      IN THE COURT OF APPEALS OF THE                                               FEWJT          WN
                                                                      STATF5. .
                                                     DIVISION II                BY
                                                                                            PpTY
 BEVERLY GORDON, a single woman,                                                No. 45648 -6 -I1


                                        Appellant,


           v.



 KITSAP          COUNTY,             KITSAP     COUNTY                   UNPUBLISHED OPINION
 CHIEF OF CORRECTIONS NED NEWLIN,
 JOHN AND JANE DOES 1 - 20. BRAXTON
 MADISON NEAL, and JANE DOE NEAL, and
 the marital community comprised thereof,

                                        Respondents.




         LEE, J. -      Beverly Gordon appeals the superior court' s order granting summary judgment

in favor   of   Kitsap County ( County)        and   dismissing her   negligence claim.     Gordon' s claim arose


from an incident where an inmate in the Kitsap County Jail assaulted her while she was attempting

to   draw blood.      Gordon argues that the County acted negligently by not preventing the assault.

Assuming without deciding that the County owed Gordon some duty in this instance, we hold that

Gordon has failed to present any evidence establishing the applicable standard of care that she

alleges the County breached. Therefore, Gordon has failed to raise any genuine issue of material

fact that the     County breached        a   duty   of care.   The superior court correctly granted summary

judgment in favor of Kitsap County, and we affirm.

                                                         FACTS


         Kitsap County contracted with Conmed to provide healthcare services for inmates in the

Kitsap County        Jail ( Jail).   Conmed   employed     Beverly   Gordon   as a nurse.   The   contract   between
No. 45648 -6 -II



Conmed      and       the   County      provided         that Conmed " assumes all legal, financial, and operational



responsibility for the health               care staff     working       under   any     contract."   Clerk' s Papers ( CP) at 167.


Further, the contract stated that Conmed " has a complete understanding of the types of services

required, [ and]       the    population served."              CP at 168.


           On January 24, 2010, Braxton Neal was booked into Jail for assaulting hospital staff at

Kitsap   Mental Health. Neal has                   a   history   of violence and mental           health issues. Based on Neal' s


history,   he     was placed          in the highest security "              pod"   in the Jail.'      CP   at   254.   Neal was also


designated      as a "      two   person     detail,"     requiring two officers to be present with Neal when he was

removed     from his          cell    but in his       unit.   CP   at   195, 272, 274.         Further, Neal was required to be


restrained      in    belly   chains        when   he     was removed          from the     unit.     While in the Jail, Neal was


compliant with his medication and did not present any behavioral problems.

           On   February          4   and   February       5, 2010, Conmed           requested a      blood draw from Neal.        On


February     4,   a   Conmed          nurse performed a          blood draw         on   Neal   without   incident.     On February 5,

Gordon went to the dayroom of Neal' s unit to perform a second blood draw. Three correctional

officers were in the dayroom with Gordon and Neal. Correctional officers instructed Gordon that

Neal would be seated at a table across from her in the dayroom during the blood draw. Neal told

Gordon that he preferred to stand during the blood draw. Contrary to Gordon' s understanding of

prevailing medical standards, she agreed. As Gordon prepared Neal' s arm for the blood draw, he

struck her in the face. Correctional officers immediately restrained him. Following the incident,




1 Within Kitsap County Jail, pods are comprised of units, which are made up of cells and a
dayroom.




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No. 45648 -6 -II



the Jail increased Neal' s restraints, and required him to be in belly chains and leg irons whenever

he was removed from his cell.


        On January 23, 2012, Gordon filed a complaint against the County, alleging that the County

negligently allowed Neal to assault her. The County filed an answer, denying that it was negligent,

and asserting that Gordon assumed any risk and was contributorily negligent.

        Gordon moved for partial summary judgment.2 The superior court denied Gordon' s motion

for partial summary judgment in its entirety on October 11, 2013.

        On November 1, the County moved for summary judgment, seeking dismissal of Gordon' s

claims. The County argued that if a duty of reasonable care exists, Gordon failed to establish what

constitutes " reasonable care" in this instance. CP at 218, 237.


        The superior court granted the County' s motion for summary judgment and dismissed

Gordon' s claims. Gordon then filed a motion for reconsideration, which the superior court denied.


Gordon appeals the superior court' s order denying her motion for partial summary judgment and

the superior court' s order granting the County' s motion for summary judgment. 3




2 Gordon asked the trial court to rule that ( 1) the County had a duty to prevent Neal from harming
others, (   2) the   County   negligently       allowed     Neal to   assault   her, ( 3)   Gordon was not contributorily
negligent     and    her conduct     was not a proximate cause of               the   assault, (   4) she had not failed to
mitigate    damages, ( 5)     she   had   not   failed to   state a claim upon which relief can          be   granted, ( 6)   the
County is not immune from her lawsuit, and (7) she had not voluntarily assumed the risk of injury.

3 Gordon appeals the trial court' s order denying, her motion for partial summary judgment.
However, she has failed to support that appeal with authority. Accordingly, we need only consider
her appeal of the trial court' s order granting the County' s summary judgment motion. Cowiche
Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992) ( this court will not
consider a challenge unsupported                by argument or authority).

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No. 45648 -6 -II



                                                           ANALYSIS


           Gordon argues that the superior court erred by granting the County' s motion for summary

judgment. Because Gordon has not presented evidence as to what constitutes " reasonable standard


of care"     that the County allegedly breached in this instance, we affirm the superior court' s

summary judgment ruling.

A.         LEGAL STANDARD


           We review a trial court' s order granting summary judgment de novo, engaging in the same

inquiry as the trial court. Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey P.C., 180 Wn.

App.   689, 698, 324 P. 3d 743,               review   denied, 181 Wn.2d 1008 ( 2014).                  We resolve all factual


disputes    and reasonable          inferences in favor        of   the nonmoving party. Id. "[ I] ssues of law are not


resolved     in   either   party'   s   favor, but   are reviewed        de   novo."   Rice   v.   Dow Chem. Co., 124 Wn.2d


205, 208, 875 P. 2d 1213 ( 1994).                Summary judgment is appropriate where there' is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Clark County

Fire, 180 Wn. App. at 698. We may affirm a summary judgment order on any grounds supported

by   the   record.   Blue Diamond            Grp., Inc.   v.   KB Seattle 1, Inc.,       163 Wn. App. 449, 453, 266 P. 3d

881 ( 2011).


           A defendant moving for summary judgment meets its initial burden by showing that there

is an absence of evidence to support the plaintiff's case. Dania, Inc. v. Skanska USA Bldg. Inc.,

       Wn.   App.             340 P. 3d 984, 987 ( 2014).                Then, the burden shifts to plaintiff to present

specific    facts demonstrating             a genuine   issue for trial.         Id. "   To avoid summary judgment in a

negligence case, the plaintiff must show a genuine issue of material fact on each element of


negligence —       duty,    breach,      causation and     damage."            Clark County Fire, 180 Wn. App. at 699.



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No. 45648 -6 -II



Here, as the nonmoving party, Gordon failed to establish a genuine issue of fact as to whether the

County breached the standard of care because Gordon has failed to establish the applicable

standard of care.



B.        STANDARD OF CARE


          Gordon argues that the County was obligated to exercise " reasonable care" to control Neal

and prevent    him from      harming   her. Br.      of   Appellant   at   9, 10, 15.   However, beyond stating that

the   County had a duty to      exercise " reasonable care,"       Gordon has not presented evidence as to what


constitutes " reasonable care" in a correctional facility. Because Gordon has failed to establish the

applicable standard of care, she is unable to establish a genuine issue of material fact as to whether


the County breached that standard of care.

          The County argues that expert testimony is required to establish the appropriate standard

of reasonable care needed for handling inmates because it is a specialized issue that involves

interrelated issues     of jail   security, inmates'      constitutional rights, and       statutory   compliance.   We


agree.




          Expert testimony may be required for establishing the standard of care for highly technical

or specialized roles.     See Geer     v.   Tonnon, 137 Wn.       App. 838,      851, 155 P. 3d 163 ( 2007) ( holding


expert testimony is necessary to establish the applicable standard of care for legal negligence

claim), review     denied, 162 Wn.2d 1018 ( 2008);            see also Seybold v. Neu, 105 Wn. App. 666, 676,

19 P. 3d 1068 ( 2001) (      holding "[ e] xpert testimony is required when an essential element in the case

is best   established   by   an opinion     that   is beyond the   expertise of a       layperson "). The manner and


degree of handling inmates necessarily involves an inmate' s civil and constitutional rights, and is

an issue of jail security and jail policy. U.S. CONST. amend. VIII; Farmer v. Brennan, 511 U.S.



                                                              5
No. 45648 -6 -II



825, 832, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811 ( 1994); McNabb v. Dep' t of Corr., 163 Wn.2d

393, 405, 180 P. 3d 1257 ( 2008) (        holding that the courts give " judicial deference to the decisions

of prison administrators in light of their unique interest in maintaining security and day -to -day

order ").   These     matters cannot     be   said   to be   within   the   expertise of a   layperson.   In light of the


complex considerations inherent in the management of a correctional facility, we hold that expert

testimony was necessary to establish what constitutes " reasonable care. "4

         As the nonmoving plaintiff, Gordon had the burden to present evidence that raised a

genuine issue of material fact as to an essential element of the claim. Greenhalgh v. Dep 't ofCorr. ,

160 Wn.       App.    706, 714, 248 P. 3d 150 ( 2011). "              Mere allegations, argumentative assertions,


conclusory statements, and speculation do not raise issues of material fact that preclude a grant of

summary judgment."          Id. Here, Gordon was required to raise an issue of material fact concerning

breach   of   the   applicable standard of care.        But, because Gordon did not present expert testimony

as to what constitutes " reasonable care" in this instance, she has failed to raise an issue of material


fact regarding breach of the standard of care.


4
    Although    controlling, authority from other jurisdictions reach the same conclusion. See
                not

District of Columbia v. Carmichael, 577 A.2d 312, 314 ( D. C. 1990) ( " The question of whether

prison officials acted reasonably to secure the safety of an inmate is not one within the realm of
the everyday experiences of a lay person. The reasonably prudent juror cannot be expected to

appreciate the ramifications of prison security as well as the parallel considerations involving the
safekeeping of prisoners, and therefore, whether, under given circumstances, reasonable care was
exercised. . . .      Thus, expert testimony or supporting evidence is necessary to establish that
standard. ") ( quoting     Hughes   v.   Dist. of Columbia, 425 A. 2d 1299, 1303 ( D. C. 1981)).                See also
Villalobos v. Bd. of County Comm' rs, 2014 -NMCA -044, 322 P. 3d 439, 440 -41 ( N.M. Ct. App.
2014) ( holdingexpert testimony needed to establish reasonable care standard because reasonably
prudent jurors cannot be expected to appreciate the ramifications prison security along with the
issues of prisoner safety); Wilkins v. Dist. of Columbia, 879 F. Supp. 2d 35, 41 -42 ( D.D. C. 2012)
 holding whether prison officials acted reasonably is not within everyday experiences of a lay
person, so expert testimony is required to establish the standard of care).



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No. 45648 -6 -I1



           Summary judgment in favor of the defendant is proper if the plaintiff fails to make a prima

facie   case   concerning   an essential element of   the   claim."
                                                                      Seybold, 105 Wn. App. at 676. Because

Gordon has failed to present any evidence establishing the applicable standard of care she alleges

the County breached, she has failed to raise any genuine issue of material fact that the County

breached a duty of care. Accordingly, we affirm.

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

Washington Appellate reports, but will be filed for .public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                                  Lee, J.
 We concur:




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