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


SABRINA RASMUSSEN,                              No. 67518-4-1


                          Appellant,

                v.



STATE OF WASHINGTON, by and                     ORDER DENYING MOTION
through DEPARTMENT OF                           FOR RECONSIDERATION
CORRECTIONS,                                    AND AMENDING OPINION

                          Respondent,

PIERCE COUNTY, a municipal
corporation, and CITY OF TACOMA,

                          Defendants.

       The appellant Sabrina Rasmussen filed a motion for reconsideration. The
respondent State of Washington Department of Corrections filed an answer. The
panel having determined that the motion should be denied but the opinion amended;
now, therefore, it is hereby

       ORDERED that the motion for reconsideration is denied. The opinion of this

court in the above-entitled case filed April 1, 2013 shall be amended as follows:
No. 67518-4-1/2



      1.   On Page 19, footnote 12 that states:

             The 2007 Federal Bureau of Investigation report Rasmussen relies on
             also provides nothing more than speculation that Adhahn would have
             been deported before 2000.

           shall be deleted and replaced with the following:

             The 2007 Federal Bureau of Investigation report Rasmussen relies on
             also provides nothing more than speculation that Adhahn would have
             been deported before 2000. Further, Rasmussen's theory of causation
             is speculative because it depends on when exactly between 1990 and
             1997 immigration learned of Adhahn. As Rasmussen's immigration
             expert Sampson admits, "Between 1990 and July 1997, immigration
             laws changed significantly."

      The remainder of this opinion shall remain the same.

      Dated this _[^ day of \Jp\imbt/             2013.



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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SABRINA RASMUSSEN,                                  No. 67518-4-1                                      o
                                                                                       r-o         UIO


                            Appellant,              DIVISION ONE                       «*>         •S3
                                                                                        —o         ^c
                                                                                        =o         ^       -v
                  v.
                                                                                        _1_        r£~or
                                                                                                    OJP^'r-:
STATE OF WASHINGTON, by and
through DEPARTMENT OF                                                                    s             £/£
CORRECTIONS,                                        UNPUBLISHED OPINION
                                                                                             vi3       •'•-,:

                            Respondent,

PIERCE COUNTY, a municipal
corporation, and CITY OF TACOMA,

                            Defendants.             FILED: April 1,2013

       Schindler, J. — In 1990, Terapon Adhahn pleaded guilty to incest in the first

degree. The court found he was eligible for a special sexual offender sentencing

alternative (SSOSA),1 and imposed a 14-month suspended sentence with an
exceptional sentence of 60 months for sex offender treatment and supervision by the

Department of Corrections (DOC). On July 8, 1997, the court entered an order

terminating sex offender treatment and supervision. In 2007, Adhahn was arrested in

the kidnapping and murder of 12-year-old Zina Linnik. DNA2 testing linked Adhahn to
the kidnapping and rape of 11-year-old Sabrina Rasmussen on May 31, 2000.

       1Former RCW 9.94A.120(7) (1989). Laws of 1989 ch. 252, § 4. The SSOSA was recodified at
RCW9.94A.670 in 2001. LAWS OF 2001, 2d Spec. Sess., ch. 12, § 312.
       2(Deoxyribonucleic acid.)
No. 67518-4-1/2


Rasmussen appeals summary judgment dismissal of her lawsuit against DOC for

negligent supervision. Rasmussen contends DOC had a duty to take reasonable

precautions to protect her from the foreseeable dangers posed by Adhahn even after

the court terminated supervision on July 8, 1997. In the alternative, Rasmussen

contends there are material issues of fact as to whether DOC's supervision from 1990

until July 1997 was the proximate cause of the kidnapping and rape on May 31, 2000.

We affirm.


                                          FACTS

      Terapon Adhahn was born in Bangkok, Thailand on August 30, 1964. After his

mother married a military officer, the family moved to the United States. After

graduating from high school in 1983, Adhahn enlisted in the United States Army.

      On March 26, 1990, the State charged Adhahn with rape in the second degree of

his half sister. Adhahn pleaded guilty to incest in the first degree. With an offender

score of zero, the standard sentence range was 12 to 14 months. The State agreed

that if eligible, Adhahn should receive a SSOSA. The plea agreement states Comte

and Associates, Inc. should evaluate Adhahn to determine whether he was eligible for a

SSOSA. If not eligible, the State would recommend 14 months of confinement.

       Sex offender treatment therapist Michael Comte conducted an evaluation of

Adhahn. Comte described personality and behavior problems, but notes Adhahn had

no prior criminal history and he recognized the need to address "his poor impulse

control." The evaluation states, in pertinent part:

              Mr. Adhahn presents some symptoms characteristic of unresolved
       post-traumatic stress related to his childhood sexual victimization, which
       was probably an additional contributor to his later sexual deviancy.
       Personality and behavioral problems were influenced by parental
No. 67518-4-1/3


      abandonment, economic deprivation and the cultural adjustments
      necessitated by his move from Thailand to the United States when he was
      12 years old. Apparently, he has always sought to compensate for over-
      stress, anger and frustration by escapist behavior. He sexually molested
      his half-sister when she was three and he later developed alcoholism.
      These compensations allow him temporary respite from inner turmoil and
      frustration. He has probably been depressed throughout his life.

             Unlike many rapists, Mr. Adhahn does not seem to have an
      antisocial (criminal) orientation. He does not have a criminal history and
      he has generally been conforming to societal expectations. He has some
      recognition of his poor impulse control and army life has provided him the
      external structure and control to contain him. He is alcoholic and he has
      some recognition that it is even more difficult to control himself under the
      influence. He is actively involved in treatment for his alcoholism and
      stress problems, but there is no question he has a long way to go.

      Comte concluded Adhahn was "amenable to treatment and a manageable risk to

be at large." However, because it was "unlikely treatment goals can be satisfied within
the two years" authorized under the SSOSA, Comte recommended Adhahn agree to an
exceptional 60-month sentence ofsex offender treatment and community supervision.
      Very few offenders are able to accomplish their treatment goals within that
      time frame. I am, therefore, requesting Mr. Adhahn and his attorney
      stipulate to an exceptional five year probation sentence, which would allow
      adequate time to complete treatment goals and to de-escalate him from
      intensive weekly psychotherapy. Ongoing and active probation
      supervision would allow the criminal justice professionals to monitor his
       movements and activities in the community to ensure there is no relapse
       in his alcoholism and control of his anger and sexual impulses.

      At the sentencing hearing on September 4, 1990, the court found Adhahn was

eligible for a SSOSA. The court imposed a suspended sentence of 14 months on
condition that he serve 60 days in the Pierce County jail. The judgment and sentence
requires inpatient sex offender treatment with a "qualified provider; such treatment to be
successfully followed - completed." Adhahn agreed to an exceptional sentence of 60
No. 67518-4-1/4


months for sexual offender treatment and community supervision.3 The judgment and
sentence states that "treatment provider of opinion 60 months necessary for treatment."

The court also ordered Adhahn to successfully complete an alcohol counseling

program, remain in the State of Washington "unless [he] receives military orders

removing him from State," and no contact with the victim unless approval by the victim,

her therapist, and Adhahn's therapist.

       After entry of the judgment and sentence, Adhahn enrolled in an alcohol

treatment program, registered as a sex offender, and contacted a certified sex offender

treatment provider at Comte and Associates, Daniel DeWaelsche.

       On March 19, 1991, DOC filed a notice of violation requesting the court schedule

a hearing. DOC alleged Adhahn violated the terms of the judgment and sentence by

failing to enter into sex offender treatment. According to the report, Adhahn had served

60 days in jail as ordered by the court. However, since his release, Adhahn had "spent

a great deal of his time looking for employment" and was struggling financially. The
report states that Adhahn "is currently involved in treatment for substance abuse at
Tacoma TASC.t4] He goes in weekly for urinalysis                 He has not yet begun out
patient counseling but is expected to do so in the very near future."

        By July 31, Adhahn had successfully completed the alcohol treatment program.

The discharge report states, in pertinent part:

        Adhahn did very well at TASC, complied with all the terms of his TASC
        treatment contract. He completed all required sessions of outpatient
        counseling both at the Alliance and the Center. In addition, he faithfully
        attended AA[5] meetings, and met [his case manager] twice monthly.

        3Because Adhahn was in the military, the court allowed him to serve 30 days in one year and 30
days the following year.
        4(Treatment Alternatives for Safe Communities.)
        5(Alcoholics Anonymous.)
No. 67518-4-1/5




The discharge report recommends Adhahn begin sex offender treatment and continue

to attend AA meetings. Adhahn began sex offender treatment with DeWaelsche on

October 29.


      At the violation hearing on November 27, the court entered an agreed order

modifying the terms of the judgment and sentence. The order states that Adhahn shall

enter sex offender treatment "no later than 11/01/91," and the exceptional sentence for

60 months of treatment and supervision should begin on November 1. Adhahn

participated in sex offender treatment with DeWaelsche from November 1991 until July

1997. Throughout treatment, DeWaelsche submitted quarterly reports.

      In 1992, the Washington State Patrol (WSP) contacted DOC to report Adhahn

was arrested by Tacoma police in June for unlawful display of a weapon. In September

1992, the municipal court found Adhahn guilty of intimidation with a weapon and

sentenced him to serve five days in the Pierce County jail.

       In the quarterly report DeWaelsche sent to the community corrections officer

(CCO) and the Pierce County Prosecutor's Office in January 1994, DeWaelsche

expressed concerns about Adhahn's recent disclosure about driving home a woman,

later identified as a prostitute, and the previous misdemeanor conviction for unlawful

display of a weapon. The report states, in pertinent part:

              Throughout treatment, Terapon has made great efforts to complete
      all assigned work, participate in the group process and shows a genuine
      interest in his treatment. His progress in therapy has been commendable.
      However, during a recent group therapy session, he disclosed he had
      picked up a young woman on South Tacoma Way just after leaving
       work. . . .
               This may be cause for concern as it is the second issue within the
       past two years that involved Terapon being in highly questionable
       situations. As you will recall, approximately one year ago, he had gone to
No. 67518-4-1/6


       a local night club, which was off limits to him. He became involved that
       evening with an individual who had a weapon on him. The latest incident
       similarly involves an individual of questionable character, but whom he
       says he knows vaguely. He will be submitting to a polygraph examination
       in January. This issue will be addressed more thoroughly then.

       On August 6, 1996, the court scheduled a treatment termination review hearing.

The order states that by the time of the hearing, Adhahn shall complete a polygraph and

plethysmograph exam. The judge also ordered "[t]he State is to check for any criminal

charges against the defendant since 11/90." The termination review hearing took place

on July 8, 1997.

       Before the hearing, DeWaelsche submitted a letter stating Adhahn had

"completed all aspects of the sex offender treatment program" and he would "graduate

from treatment at the end of July 1997." The letter states, in pertinent part:

              Throughout treatment, Terapon has been an active and cooperative
       group therapy member. He has willingly participated in the treatment
       process, and offered valuable input during his group therapy sessions. He
       has exhibited empathy for his victim, and has a clear understanding of his
       offense cycle. Furthermore, Terapon has demonstrated that he is using
       the skills and techniques, gleaned in sex offender treatment, on a day-to
       day basis to avoid recidivism. Terapon's treatment plan addressed the
       following issues:
                      Sexually deviant arousal
                     Identification of deviant behavior patterns
                     Disruption of deviant behavior patterns
                     Victim clarification awareness
                     Empathy training
                     Assertiveness/anger management
                     Thinking errors
                     Sex education
                     Social skills
                      Relapse prevention
               As long as Terapon positions himself by choice to remain offense-
       free, his potential to recidivate vastly diminishes. He is aware he may see
       me free of charge any time he feels there is a need in the future. It has
       been a pleasure working with Terapon.
No. 67518-4-1/7


       At the review hearing on July 8, the prosecutor informed the court that Adhahn

successfully completed sex offender treatment. The prosecutor also told the court that

according to the CCO, Adhahn had "completed all other aspects" of his treatment and

supervision.

       The defense provided me with a letter dated July 3rd of 1997, which a
       copy has been filed with the Court, from Dan DeWalshe [sic] which does
       indicate that the defendant has completed all aspects of the sex offender
       treatment program and he is set to graduate the end of July of 1997.
              I also made a phone call to [the CCO] in this case, to determine
       whether there were any other aspects of this file that needed to be
       completed in the form of legal financial obligations or otherwise, since I
       haven't been the prosecutor on this file, and [the CCO] indicated to me
       that the defendant had completed all other aspects of the file.

The court entered an order terminating sex offender treatment and DOC supervision.

The order states, in pertinent part:

               IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
               1)    The requirement of treatment in this cause is hereby
       terminated;
               2)    The requirement of supervision in this cause is hereby
       terminated;
               3)    All other conditions and requirements of the Judgment and
       Sentence dated 9/4/90, remain in full force and effect.

       Adhahn was classified as a Level I sex offender, the lowest risk classification. In

April 2002, the WSP stopped Adhahn for a traffic infraction. Adhanh re-registered as a

sex offender with the WSP on April 2. Adhahn moved several times after April 2002

without re-registering as a sex offender.

       In July 2007, Adhahn was arrested as a suspect in the kidnapping and murder of

12-year-old Zina Linnik. Adhahn confessed to kidnapping and murdering Linnik. DNA

testing linked Adhahn to the kidnapping and rape of 11-year-old Sabrina Rasmussen on

May 31, 2000. The Pierce County Sheriff's Office requested the prosecuting attorney to
No. 67518-4-1/8


issue a warrant to arrest Adhahn for failure to register as a sex offender. United States

Immigration and Customs Enforcement notified Adhahn that he was subject to removal

because he had been convicted of two crimes of moral turpitude. Adhahn did not

contest deportation, and asked "to be deported as soon as possible." On July 19, the

State charged Adhahn with the kidnapping and rape of Rasmussen on May 31, 2000.

      On September 21, 2010, Rasmussen filed a lawsuit against DOC, Pierce County,

and the City of Tacoma. Rasmussen alleged DOC failed to "adequately monitor or

control" Adhahn after the court terminated supervision. Rasmussen also alleged that

but for DOC's negligence before termination of supervision, Adhahn "could have been

jailed or deported." Rasmussen alleged that Pierce County breached its statutory duty

to report Adhahn to the United States immigration authorities when he was in jail for five

days on the misdemeanor conviction in 1992.

       Rasmussen also alleged Pierce County and the City of Tacoma breached the

duty to require Adhahn to register as a sex offender. Rasmussen asserted that if

Adhahn had been convicted of failure to register after July 2002, it was "less likely" he

would have committed the kidnapping and rape.

       Had Adhahn been convicted of failing to register after July 1, 2002, his
       DNA would have been drawn and he would have been linked to the 2000
       rape of Sabrina Rasmussen. Had Adhahn been registered at his 2000
       address, he would have been linked to Ms. Rasmussen's rape at that time
       because registered sex offenders in the area are primary suspects in any
       new sex offense. IfAdhahn had been compelled to register, it is
       substantially less likely he would have raped Ms. Rasmussen.

Rasmussen also alleged the City of Tacoma negligently misclassified Adhahn as a

Level I sex offender.
No. 67518-4-1/9


       Pierce County filed a CR 12(b)(6) motion to dismiss for failure to state a claim.

Pierce County asserted that as a matter of law, neither the 1990 conviction for incest in

the first degree nor a conviction for failure to register as a sex offender would have

resulted in deportation. Pierce County also argued the claim that Adhahn would have

been deported ifthe 1992 misdemeanor conviction for intimidation with a weapon had

been reported, was speculative.

       In opposition, Rasmussen argued Pierce County breached the duty to enforce

the sex offender registration requirements, to properly classify Adhahn, and to report the

1992 misdemeanor conviction to the immigration authorities and to the court at the

treatment termination hearing on July 8, 1997. The court granted the motion to dismiss

the claims against Pierce County.

       DOC filed a motion for summary judgment. DOC argued that as a matter of law,

it did not have a duty to monitor or control Adhahn after the court terminated supervision

on July 8, 1997. DOC also argued that any breach ofthe duty to supervise Adhahn
before the court terminated supervision was not the proximate cause of the kidnapping

and rape on May 31, 2000. DOC argued that even if the court had revoked the SSOSA,
it would not have prevented the kidnapping and rape in 2000. DOC asserted that

because the undisputed record showed Adhahn was never in DOC custody, it had no
duty to report his immigration status or require him to register as a sex offender. DOC
submitted the court order terminating supervision, evidence that Adhahn was "never

committed to a state correctional facility," and the declaration of a corrections officer

with the Pierce County Detention and Corrections Center stating that the United States
Immigration and Naturalization Service came to the jail "every weekday" in 1992 but did
No. 67518-4-1/10


not place an immigration hold on Adhahn. DOC also submitted the declaration of an

attorney with expertise on immigration law, Manuel Rios. Rios states that as a matter of

law, neither the 1990 conviction for incest in the first degree, nor a conviction for failure

to register as a sex offender, were offenses that would have subjected Adhahn to

deportation.

       In opposition, Rasmussen submitted the declaration of former CCO William

Stough, the declaration of a former Pierce County deputy prosecutor, and the

declaration of a former immigration officer, John Sampson.

       The court granted summary judgment and dismissed the claims against DOC.

Rasmussen appealed the orders dismissing Pierce County and DOC. Rasmussen later

withdrew the appeal of the order dismissing Pierce County.

                                         ANALYSIS

       To establish DOC is liable for the May 31, 2000, kidnapping and rape,

Rasmussen must establish (1) DOC owed her a duty, (2) breach of that duty, and (3)

injury proximately caused by the breach. Hansen v. Friend, 118 Wn.2d 476, 479, 824

P.2d 483 (1992).

       Duty

       Relying on Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), Rasmussen

contends DOC had a duty to protect her from the foreseeable danger posed by Adhahn

after the court terminated supervision on July 8, 1997. The existence of a duty is a

question of law that we review de novo. Sheikh v. Choe, 156Wn. 2d 441, 448, 128

P.3d 574 (2006).




                                              10
No. 67518-4-1/11


       Unless a special relationship exists to control the third person's conduct, there is

no duty to prevent a third person from causing harm. Restatement (Second) of Torts

§ 315 (1965). Absent a special relationship, "the actor is not subject to liability if he

fails, either intentionally or through inadvertence, to exercise his ability so to control the

actions of third persons as to protect another from even the most serious harm."

Restatement (Second) of Torts § 315 cmt. b.

       Restatement (Second) of Torts section 315 states, in pertinent 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 person's conduct,
       or

               (b) a special relation exists between the actor and the other which
       gives to the other a right to protection.161
       In Petersen, the patient had been involuntarily committed to Western State

Hospital. Petersen, 100 Wn.2d at 422-23. The psychiatrist knew the patient was

having hallucinations, would likely revert to using drugs and was dangerous, but did not

seek additional commitment or take any other precautions. Petersen, 100 Wn.2d at

428-29. Five days after his release, while under the influence of drugs, the patient

injured Cynthia Petersen when he ran a red light and struck her car. Petersen, 100

Wn.2d at 422-23.

        Because the psychiatrist continued to exercise a high degree of control over the

patient, the court held that under section 315 of the Restatement (Second) ofTorts, the
psychiatrist had "a duty to take reasonable precautions to protect anyone who might



       6The special relationships indentified in the Restatement (Second) of Torts sections 316-20
(1965) are parent/child, master/servant, possessor ofland orchattels/licensee, onewho takes charge ofa
third person, and person having custody of another.


                                                      11
No. 67518-4-1/12


foreseeably be endangered" by the patient's drug-related mental problems. Petersen.

100 Wn.2d at 427-28.

      DOC contends that unlike in Petersen, it did not have a duty to control Adhahn or

protect Rasmussen from harm three years after the court entered an order terminating

supervision. DOC relies on Hunqerford v. Dep't of Corr., 135 Wn. App. 240, 139 P.3d

1131 (2006). review denied, 160Wn.2d 1013, 161 P.3d 1027(2007).

      In Hunqerford, DOC supervised an offender after his release from prison for a

felony assault conviction. Hunqerford, 135 Wn. App. at 247. The court later terminated
supervision except for monitoring payment of his legal financial obligations. Hunqerford,
135Wn. App. at 248. Approximately ten months aftertermination ofsupervision, the
offender murdered Hungerford-Trapp. Hunqerford, 135 Wn. App. at 249. The Estate
appealed summary judgment dismissal ofthe lawsuit against DOC for negligent
supervision. Hunqerford, 135 Wn. App. at 249. On appeal, the court concluded that
monitoring an offender only for legal financial obligations did not create a special
relationship, and held that DOC did not have a take-charge relationship after active
supervision ended. Hunqerford, 135 Wn. App. at 257-58/
       We hold that the duty to supervise does not require DOC to prevent future
       crimes an offender might commit after his supervision ends even when the
       offender is placed on [legal financial obligation] status. DOC owes a duty
       to those who are injured during an offender's active supervision, not after
       it ends.

Hunqerford, 135 Wn. App. at 258.

       Rasmussen contends Hunqerford was wrongly decided and conflicts with

Petersen. We disagree. InTaqqartv. State. 118Wn.2d 195, 822 P.2d 243 (1992), the

       7See also Couch v. Dep't of Corr., 113Wn. App. 556, 54 P.3d 197 (2002), review denied, 149
Wn.2d 1012, 69 P.3d 874 (2003).


                                                12
No. 67518-4-1/13


supreme court clarified Petersen and the type of special relationship necessary to

create a duty to control the conduct of another to prevent harm.

       In Taqqart, two persons injured by parolees in separate assaults filed lawsuits

alleging the State negligently released and supervised the parolees. Taqqart, 118

Wn.2d at 198. In evaluating whether the State owed a duty to the plaintiffs, the court

addressed Petersen.


      Petersen .. . stands for the proposition that a "special relation" exists
      between a state psychiatrist and his or her patients, such that when the
      psychiatrist determines, or pursuant to professional standards should
      determine, that a patient presents a reasonably foreseeable risk of serious
      harm to others, the psychiatrist has "a duty to take reasonable precautions
      to protect anyone who might foreseeably be endangered."

Taqqart, 118 Wn.2d at 218-19 (quoting Petersen. 100 Wn.2d at 428). The court held

that under section 319 of the Restatement (Second) of Torts (1965), the relationship

between an offender subject to supervision and DOC creates a duty to exercise

reasonable care of control to prevent reasonably foreseeable harm to others. Taqqart,

118 Wn.2d at 219-20. Restatement (Second) of Torts section 319 states:

              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.

But the court emphasized that the duty exists only where there is a " 'definite,

established and continuing relationship between the defendant and the third party.'"

Taqqart, 118 Wn.2d at 219 (quoting Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d

1188 (1988)). See ajso Hertoq v. City of Seattle. 138 Wn.2d 265, 276, 979 P.2d 400

(1999); Jovce v. Dep't of Corr., 155 Wn.2d 306, 319-20, 119 P.3d 825 (2005).




                                            13
No. 67518-4-1/14



         Rasmussen argues that here, as in Petersen, DOC had a duty to take

reasonable measures to guard against the foreseeable dangers posed by Adhahn after

the take-charge relationship terminated. However, unlike in Petersen, there was no

" 'definite, established and continuing relationship'" after the court terminated

supervision on July 8, 1997. Taqqart, 118 Wn.2d at 219 (quoting Honcoop, 111 Wn.2d

at 193).8 We hold that afterthe court terminated supervision, DOC did not have a take-
charge duty under Restatement (Second) of Torts section 319.

         Proximate Cause

         In the alternative, Rasmussen contends there are material issues of fact as to

whether DOC's negligent supervision from September 1990 until July 1997 was the

proximate cause of the kidnapping and rape on May 31, 2000.

         We review summary judgment de novo. Hartley v. State, 103 Wn .2d 768, 774,

698 P.2d 77 (1985). Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. CR

56(c).

         The defendant on summary judgment has the burden of showing the absence of

evidence to support the plaintiff's case. Young v. Kev Pharms., Inc., 112Wn.2d 216,
225, 770 P.2d 182 (1989). Once the moving party shows an absence of a genuine
issue of material fact, the burden shifts to the nonmoving party. Young, 112 Wn.2d at

225.




        8The outofstate case cited by Rasmussen, Estates of Morgan v. Fairfield Family Counseling
Center. 77 Ohio St. 3d 284, 1997-Ohio-194, 673 N.E.2d 1311, is also distinguishable. In Morgan, the
court noted the importance of establishing the therapist's control over the patient; otherwise, "it would be
tantamount to imposing strict liability to require the defendant to control a third person's conduct where he
lacks the ability to do so." Morgan, 77 Ohio St. 3d at 298.


                                                     14
No. 67518-4-1/15


       While we construe the evidence and reasonable inferences in the light most

favorable to the nonmoving party, ifthe nonmoving party" '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,'" summary judgment is proper.

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)); Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300-01,

45 P.3d 1068 (2002).

       The nonmoving party may not rely on speculation to create a material issue of

fact. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).

"[M]ere allegations, denials, opinions, or conclusory statements" do not establish a

genuine issue of material fact. Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co., 122

Wn. App. 736, 744, 87 P.3d 774 (2004).

       To establish cause in fact, Rasmussen must show a direct, unbroken sequence

of events that link the acts or omissions of DOC and the harm. Joyce, 155 Wn.2d at

322. Cause in fact is usually a question for a jury, but where reasonable minds cannot

differ, it may be determined as a matter of law. Joyce, 155 Wn.2d at 322. Legal

causation is grounded in the determination of how far the consequences of a

defendant's act should extend, and focuses on whether the connection between the

defendant's act and the result is too remote or inconsequential to impose liability.

Hartley, 103 Wn.2d at 778-79.

       Relying on Joyce, Rasmussen argues DOC's failure to investigate and report

violations of the judgment and sentence was the proximate cause of the kidnapping and

rape on May 31, 2000. Rasmussen argues that Adhahn violated a number of the



                                             15
No. 67518-4-1/16


conditions of the judgment and sentence, including the failure to obtain an AA sponsor

or attend AA meetings, consuming alcohol in 1992, and having contact with the victim.

Rasmussen also asserts DOC did not monitor whether Adhahn re-registered as a sex

offender, did not notify the court about the 1992 misdemeanor conviction for intimidation

with a weapon, or provide that information to the court before the termination hearing.9
Rasmussen contends that as in Joyce, but for breach of the duty to supervise and

report violations of the judgment and sentence, Adhahn would have been in jail on May

31,2000.

       In Joyce, DOC was responsible for supervising an offender convicted of assault

and possession of stolen property. Joyce, 155 Wn.2d at 309. Approximately one week

after DOC filed a notice of violation and requested a court hearing, the offender stole a

vehicle while under the influence of marijuana, struck the plaintiff's vehicle, and killed

her. Joyce, 155 Wn.2d at 313-14.

       The Estate sued DOC for negligent supervision. Joyce. 155 Wn.2d at 314. The

evidence at trial showed the offender did not comply with any of the conditions of the

judgment and sentence, and that DOC knew the offender had been admitted to

psychiatric institutions and was using illegal drugs. Joyce, 155 Wn.2d at 312-14.
Former CCO William Stough testified that if DOC had obtained a bench warrant, the

offender would have been in jail on the date of the car accident that killed the plaintiff.

Joyce, 155Wn.2dat322.

        DOC appealed the jury verdict, arguing the court erred in denying its motion to
dismiss because it did not owe a duty to the plaintiff. Joyce, 155 Wn.2d at 314-15. The

        9Rasmussen also argues DOC breached itsduty by incorrectly classifying Adhahn as a Level I
sex offender. But it is undisputed thatAdhahn was never in DOC custody and Rasmussen concedes she
was unable to locate any documentation concerning the classification decision.


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No. 67518-4-1/17


supreme court concluded the evidence supported the jury finding that but for DOC's

breach of its duty to investigate and report numerous violations of the judgment and

sentence, the offender would have been in jail. Joyce, 155 Wn.2d at 322. The court

held there was "a direct, unbroken sequence of events" that linked the offender's

actions with the injury to the plaintiff. Joyce, 155 Wn.2d at 322.

               It is undisputed that [the offender] committed numerous violations
       of his supervision that were not reported to the court or diligently pursued
       by community corrections officials. A court had previously sentenced [the
       offender] to jail time for reported violations. Joyce's expert, William
       Stough, testified that if [DOC] had obtained a bench warrant for [the
       offender] prior to the accident, he "would have been in jail, either awaiting
       a hearing or doing time on the violations" without bail on [the date of the
       car accident that killed Joyce].

Joyce, 155Wn.2dat322.

       Here, construing the evidence in the light most favorable to Rasmussen, there is

not a direct, unbroken sequence of events that linked the alleged violations of the

judgment and sentence to the kidnapping and rape on May 31, 2000. There is no

dispute that Adhahn successfully completed sex offender treatment and the court

terminated supervision on July 8, 1997.

       Further, unlike in Joyce, here, Stough did not testify that Adhahn would have

been in jail when he kidnapped and raped Rasmussen on May 31, 2000. According to

Stough, the court would have revoked Adhahn's SSOSA "on the spot." Stough states

that if DOC had properly supervised Adhahn and reported violations to the court,

including the 1992 misdemeanor conviction for intimidation with a weapon and failure to

re-register as a sex offender, "the judge would have promptly revoked Adhahn's SSOSA
and sent him off to prison." And according to a former Pierce County deputy

prosecutor, the 1992 misdemeanor conviction, the allegation that Adhahn was


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No. 67518-4-1/18


continuing to consume alcohol, and failure to register as a sex offender after changing

addresses, "if proven by a preponderance of the evidence at a review hearing

would have resulted in the court imposing harsh, additional sanctions on Mr. Adhahn,

including periods ofconfinement in the Pierce County Jail."10
       Even if DOC had reported the alleged violations of the judgment and sentence to

the court and the court revoked the SSOSA, the maximum period of incarceration the

court could impose was 12 months. And, as DOC points out, if the State proved

Adhahn violated the terms of the judgment and sentence and the court had decided to

not revoke the SSOSA, DOC supervision would have ended before July 1997. In State

v. Onefrey, 119 Wn.2d 572, 835 P.2d 213(1992), the supreme court held that the court

did not have the authority to impose more than two years of treatment and supervision

under a SSOSA, former RCW 9.94A.120(7). The explicit language of former RCW

9.94A.120(7)(a) limits treatment and supervision to two years. Onefrey, 119 Wn.2d at

574-577 ("If Onefrey could not be treated within the requisite 2 years, then he was

outside the population that the Legislature intended to be eligible for SSOSA. The

language of the statute limiting the term of treatment allowed is susceptible to no other

interpretation.")

       Rasmussen also claims that if DOC had notified the immigration authorities about

his 1990 conviction for incest in the first degree and the 1992 misdemeanor conviction

of intimidation with a weapon, as well as failure to register as a sex offender, Adhahn

would have been deported.




        10 Theformer prosecutor also speculates thatAdhahn could have been charged and convicted of
felony charges based on the misdemeanor conviction. But the former Pierce County deputy prosecutor
does not state that Adhahn would have been in jail on May 31, 2000.


                                                  18
No. 67518-4-1/19


       Because it is undisputed that Adhahn was never in DOC custody, DOC did not

have a duty to report to the immigration authorities.11 And, as a matter of law, neither
the conviction in 1990 for incest in the first degree, the 1992 misdemeanor conviction,

nor failure to register as a sex offender would have subjected Adhahn to deportation.

       Rasmussen's immigration expert Sampson admits that Adhahn was not subject

to deportation for the 1990 incest conviction. Sampson mischaracterizes the

misdemeanor conviction of intimidation with a weapon as a felony, and then speculates

that ifAdhahn had been convicted of felony possession of a firearm under federal law,

he would have been subject to deportation. Sampson also claims that ifAdhahn had

been convicted of failure to register as a sex offender, he would have been subject to

deportation. However, failure to register as a sex offender is not a crime that would

have subjected Adhahn to deportation. Pannu v. Holder, 639 F.3d 1225, 1227-28 (9th

Cir. 2011); Efaqene v. Holder, 642 F.3d 918, 922-23 (10th Cir. 2011).12 In sum, absent
speculation, there is no direct, unbroken sequence of events that connect the alleged

negligent supervision of DOC before the court terminated supervision and the

kidnapping and rape three years later.




       11 RCW 10.70.140 states:
       Whenever any person shall be committed to a state correctional facility, the county jail, or
       any other state or county institution which is supported wholly or in part by public funds, it
       shall be the duty of the warden, superintendent, sheriff or other officer in charge of such
       state or county institution to at once inquire into the nationality of such person, and if it
       shall appear that such person is an alien, to immediately notify the United States
       immigration officer in charge of the district in which such penitentiary, reformatory, jail or
       other institution is located, of the date of and the reasons for such alien commitment, the
       length of time for which committed, the country of which the person is a citizen, and the
       date on which and the port at which the person last entered the United States.
       12 The 2007 Federal Bureau of Investigation report Rasmussen relies on also provides nothing
more than speculation that Adhahn would have been deported before 2000.


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No. 67518-4-1/20


                                                                                                    13
       We affirm summary judgment dismissal of Rasmussen's claims against DOC




WE CONCUR:




                                                                  Cot




       13 For the first time in the reply brief, Rasmussen makes an argument based on Restatement
(Second) of Torts section 302B (1965). We do not address arguments raised for the first time in reply.
Cowiche Canvon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).


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