                                                                          FILED 

                                                                       JUNE 24,2014 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division HI 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


SHIZUKO MITA, surviving spouse of Kay       )         No. 31457-0-111
K. Mita; and FLOYD MITA, individually,      )
and as Personal Representative of the       )
Estate of Kay K. Mita,                      )
                                            )
                    Appellants,             )
                                            )         PUBLISHED OPINION
               v.                            )
                                            )
GUARDS MARK, LLC, a Delaware limited        )
liability company; and SPOKANE              )
COUNTY, a municipal corporation of the      )
State of Washington,                        )
                                            )
                    Respondents.            )

      BROWN, A.C.J. -   The estate of Kay Mita, along with Shizuko Mita and Floyd Mita

individually, appeal the summary judgment dismissal of their negligence suit against

Spokane County (County) and Guardsmark, LLC, arising from the tragic death of Kay.1

The Mitas contend the trial court erred in ruling the County and Guardsmark owed Kay

no duty of care. We agree with the Mitas. Thus, we reverse and remand for further

proceedings.




      1 For clarity, we refer to the Mitas by their given names.
No. 31457-0-111
Mila v. Guardsmark, LLC

                                             FACTS

       Because we are reviewing summary judgment, we present the facts in the light

most favorable to the Mitas as the nonmoving party. On the morning of November 26,

2007, 84-year-old Kay reported to the Spokane County Superior Court as a potential

juror. When he parked his car and walked to the courthouse, the temperature outside

was about 23 degrees with a wind chill of 17 degrees Fahrenheit. The temperature

remained in the 20s all day while snow accumulated.

      Around 12:00 p.m., the trial judge dismissed the jury panel with instructions to

return by 2:00 p.m. Kay did not return to the jury room. A jury manager soon called

Shizuko, Kay's 82-year-old wife, and asked about Kay's location. Shizuko answered

she did not know, then recounted the conversation to Floyd, her adult son.

      Around 5:00 p.m., the trial judge's court clerk left the courtholJse and saw Kay in

the parking lot as she walked to her car. When the clerk asked Kay why he did not

return to the jury room, he answered he had been searching for his car all afternoon but

could not find it. He declined her offers of assistance and repeated he could not find his

car. Upon her suggestion, he started back to the courthouse to seek help from security

personnel. In an interview with the Mitas' expert witness, the clerk said Kay "seemed

confused and bewildered." Clerk's Papers (CP) at 389, 402. But in her later affidavit

supporting the County's summary judgment motion, the clerk said Kay "was coherent

and interacted appropriately." CP at 250.




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No. 31457-0-111
Mita v. Guardsmark, LLC

       A Guardsmark security officer saw Kay enter the courthouse and sit down on a

bench next to a heater at about 5:10 p.m. At 5:30 p.m., the officer ushered Kay out the

main door and locked the courthouse.

       Floyd and Shizuko became very concerned when Kay did not return home from

the courthouse between 6:00 and 6:30 p.m. Around 6:50 p.m., Floyd called the

Spokane Crime Reporting Center (SCRC), a service provided by the County for

nonemergencies, including missing person reports. Floyd told the call receiver Kay was

missing. SCRC instructed Floyd to contact the four local hospitals and call the reporting

center back if he could not find Kay.

       Floyd followed these instructions and called SCRC back at about 7:11 p.m. to

officially report Kay as missing. This time, SCRC collected information about Kay,

including his name, sex, age, race, weight, height, and other physical descriptors, to

assist a law enforcement officer in searching for him. Floyd narrated for SCRC how Kay

did not return to the jury room that afternoon and did not return home from the

courthouse that evening, which was unusual because he was a very responsible

person. SCRC asked Floyd if Kay had parked his car in a jury lot. Floyd answered

affirmatively and described the car. Floyd told SCRC he had not searched for Kay

because Shizuko was very worried and he was afraid to leave her at home alone.

      Then, Floyd told SCRC he was '''very concerned' about the fact it was snowing

and very cold outside." CP at 665. U[T]he call receiver replied, with concern and

urgency in her voice, ... 'we will send out a policeman to immediately search for your

father.'" Id. The call receiver soon repeated SCRC would immediately send a law


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No. 31457-0-111
Mita v. Guardsmark, LLC

enforcement officer to search for Kay and contact Floyd when the officer found Kay.

Trusting these statements, Floyd forwent his own search efforts and waited for an

officer to contact him about Kay. However, SCRC never transmitted the missing person

report to dispatch and no law enforcement officer searched for Kay.

       Meanwhile, at 6:00 p.m., local law students began using the courthouse to

conduct mock trials. Guardsmark assigned two security officers to facilitate the event

while the courthouse remained locked. Around 7:00 p.m., the officers saw Kay pacing

outside the main door, stopping periodically to peer inside. The officers noted Kay was

cold, sluggish, and shivering because he was underdressed for the ongoing snowstorm

and subfreezing temperatures. The temperature outside was then about 26 degrees

with a wind chill of 19 degrees Fahrenheit. Kay was thin, weighing just 146 pounds, and

was wearing only corduroy slacks and a light jacket. Thinking Kay was homeless or

transient, the officers brought him inside the locked courthouse and seated him next to

the heater. As they did so, the officers saw Kay was very cold, shaking, and unable to

communicate intelligibly.

      Around 8:45 p.m., the officers unlocked the main door for the law students to exit.

Then, at 9:00 p.m., the officers ushered Kay back outside the courthouse and locked

the main door. It was still snowing and the temperature outside was about 27 degrees

with a wind chill of 21 degrees Fahrenheit. That night, Kay died of hypothermia,

slumped against a garbage container near the front steps of the courthouse. By the

time someone found him, he was covered in about two inches of snow. Investigators

found his car in the juror parking area covered with snow.


                                            4

t

     No. 31457-0-111
     Mita v. Guardsmark, LLC
1
I           The Mitas sued the County and Guardsmark for wrongful death based on


i    negligence. Both the County and Guardsmark moved successfully for summary

     judgment. arguing they owed Kay no duty of care. The Mitas appealed.

                                             ANALYSIS
1
            The issue is whether the trial court erred in summarily dismissing the Mitas'


I
j
     negligence suit. The Mitas contend the County and Guardsmark owed Kay a duty of

     care imposed by common law, specifically the voluntary rescue doctrine and a special

     relationship.

            We review summary judgment de novo, engaging in the same inquiry as the trial

     court. Highline Sch. Dist. No. 401 v. Port of Seattle. 87 Wn.2d 6, 15, 548 P .2d 1085

     (1976); Mahoney v. Shinpoch, 107 Wn,2d 679, 683, 732 P.2d 510 (1987). Summary

     judgment is proper if the records on file with the trial court show "there is no genuine

     issue as to any material fact" and "the moving party is entitled to a judgment as a matter

     of law," CR 56(c). A genuine issue is one upon which reasonable people may

     disagree; a material fact is one controlling the litigation's outcome, Morris v. McNicol,

     83 Wn.2d 491,494,519 P.2d 7 (1974); Ranger Ins. Co. v. Pierce County, 164 Wn.2d

     545,552, 192 P.3d 886 (2008). We construe all evidence and reasonable inferences in

     the light most favorable to the nonmoving party. Barber v. Bankers Life & Cas. Co., 81

     Wn.2d 140, 142,500 P,2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656

     P.2d 1030 (1982). We limit our review to evidence and issues the parties called to the

     trial court's attention. RAP 9.12.




                                                  5

No. 31457-0-111
Mita v. Guardsmark, LLC

       The threshold issue in a negligence suit is whether the defendant owed the

plaintiff a duty of care, a legal question for the court. Pedroza v. Bryant, 101 Wn.2d

226,228,677 P.2d 166 (1984); Bemethy v. Walt Failor's, Inc., 97 Wn.2d 929, 933, 653

P.2d 280 (1982). However, "summary judgment is inappropriate where the existence of

a legal duty depends on disputed material facts" requiring jury resolution. Afoa   v. Port
of Seattle, 176 Wn.2d 460,466,296 P.3d 800 (2013); see Sjogren v. Props. of Pac.

Nw., LLC, 118 Wn. App. 144, 148,75 P.3d 592 (2003). A duty is '''an obligation, to

which the law will give recognition and effect, to conform to a particular standard of

conduct toward another.'" Transam. Title Ins. Co. v. Johnson, 103 Wn.2d 409,413,693

P.2d 697 (1985) (quoting WILLIAM L. PROSSER, HANDBOOK OF THE LAw OF TORTS § 53, at

331 (3d ed. 1964». Whether a duty exists depends on "mixed considerations of 'logic,

common sense, justice, policy, and precedent. '" Snyder v. Med. Servo Corp. of E.

Wash., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001) (quoting Lordsv. N. Auto. Corp., 75

Wn. App. 589, 596,881 P.2d 256 (1994».

      We begin with whether the County owed Kay a duty of care. A local government

is liable in tort "to the same extent as if [it] were a private person or corporation." RCW

4.96.010(1). Applying this liability can be problematic because statutes, ordinances,

and administrative rules mandate that public entities perform many functions private

entities do not. Munich   V.   Skagit Emergency Commc'ns Ctr., 175 Wn.2d 871,887,288




                                             6

    No. 31457-0-111
    Mita v. Guardsmark, LLC

    P.3d 328 (2012) (Chambers, J., concurring).2 Thus, where a plaintiff alleges the public

    entity breached a duty imposed by statute, ordinance, or administrative rule, we must

    employ the public duty doctrine as a tool analyzing whether the legislative body

    intended the duty to extend to the general public or a particular class of individuals. Id.

    at 888. If the public entity owes this legislatively mandated duty to the general public, it

    does not owe the duty to any particular person harmed by its breach. See id. at 888-90.

    This limitation ensures the public entity has no greater liability than private entities. See

    id. at 886, 894. However, the public duty doctrine does not apply where, as here, a

    plaintiff alleges the public entity breached a common law duty it shares in common with

    private entities. 3 Id. at 888, 894. As a matter of law, the public entity owes this common


I   law duty to a person it should reasonably foresee may be harmed by its breach. Id. at

    891.

           Under common law, a defendant owes a plaintiff the duty to exercise reasonable

    care if (1) the defendant, by act or misfeasance, poses a risk of harm to the plaintiff, as

    where the defendant actively creates or increases peril and exposes the plaintiff to it; or

    (2) the defendant, by omission or nonfeasance, fails to prevent harm to the plaintiff


           2 Justice Chambers's concurring opinion has precedential value because it
    received five votes from justices who also signed the majority opinion.
           3 While we do not apply the public duty doctrine, we acknowledge it has four
    exceptions that embody traditional tort principles and, therefore, are better
    conceptualized as explanations why the public entity owes a duty to a particular person
    harmed by its breach. Taggart v. State, 118 Wn.2d 195,217-18,822 P.2d 243 (1992).
    These exceptions include (1) "legislative intent," (2) "failure to enforce," (3) the "rescue
    doctrine," and (4) a "special relationship." Hofferv. State, 110 Wn.2d 415, 423, 755
    P.2d 781 (1988) (citing Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257,
    753 P.2d 523 (1987)). Cases discussing the last two exceptions inform our common
    law duty analysis here.

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No. 31457-0-111
Mita v. Guardsmark, LLC

despite an obligation to do so, as where the defendant passively tolerates peril after

voluntarily assuming responsibility to protect the plaintiff from it. See Robb v. City of

Seattle, 176 Wn.2d 427,436-37,295 P.3d 212 (2013); 16 DAVID K. DEWOLF & KELLER

W. ALLEN, WASHINGTON PRACTICE: TORT LAw AND PRACTICE § 2:2, at 37-38 (4th ed.

2013). Our case mainly concerns omissions or nonfeasance. Our focus is the

voluntary rescue doctrine and a special relationship.4

      An actor generally has no duty to rescue a stranger. Folsom v. Burger King, 135

Wn.2d 658, 674, 958 P.2d 301 (1998). But under the voluntary rescue doctrine, an

actor owes a duty to a person he or she should know is in need if (1) the actor

voluntarily promises to aid or warn the person in need, and (2) the person in need

reasonably relies on the promise or a third person who reasonably relies on the

promise. Osborn v. Mason County, 157 Wn.2d 18,25-26, 134 P.3d 197 (2006);

Folsom, 135 Wn.2d at 675-77; Chambers-Castane"s v. King County, 100 Wn.2d 275,

285 n.3, 669 P.2d 451 (1983); Brown v. MacPherson's, Inc., 86 Wn.2d 293, 300-01, 545

P.2d 13 (1975); see RESTATEMENT (SECOND) OF TORTS §§ 323(b), 324A(c) (1965);

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM §§ 42(b),

43(c) (2012).

      The person in need may reasonably rely on the promise if it induces him or her to

"refrain from seeking help elsewhere." Folsom, 135 Wn.2d at 676; Brown, 86 Wn.2d at

300. The person in need may reasonably rely on the third person if "privity of reliance"


      4 Though the voluntary rescue doctrine and a special relationship are distinct, we
analyze them together because they are analogous and intertwined. See Munich, 175
Wn.2d at 894 (Chambers, J., concurring).

                                             8

1
I   No. 31457-0-111
    Mita v. Guardsmark, LLC

    exists between them. Osborn, 157 Wn.2d at 26. The third person, in turn, may

    reasonably rely on the promise if it induces him or her to "refrain from acting on ...

    behalf' of the person in need. Chambers-Castanes, 100 Wn.2d at 285 n.3; accord

    Brown, 86 Wn.2d at 299-300. "[Either] person may reasonably rely on explicit or implicit

    assurances." Osborn, 157 Wn.2d at 26; Brown, 86 Wn.2d at 301.

          Additionally, an actor owes a common law duty to a person with whom he or she

    has a special relationship. Folsom, 135 Wn.2d at 674-75. A special relationship arises

    between a public entity and a person where {1} the entity has direct contact or privity

    with the person that sets him or her apart from the general public, {2} the entity makes

    an express assurance, and (3) the person justifiably relies on the assurance. Taylor v.

    Stevens County, 111 Wn.2d 159, 166,759 P.2d 447 (1988).

          Where a public entity negligently responds to a request for assistance, we

    broadly construe privity to encompass the relationship between the entity and a person

    it should reasonably foresee may be harmed by its breach. Bratton v. Welp, 145 Wn.2d

    572,577,39 P.3d 959 (2002); Chambers-Castanes, 100 Wn.2d at 286. A public entity

    may have privity with a person even if it does not communicate with him or her

    personally. Cummins v. Lewis County, 156 Wn.2d 844, 854,133 P.3d 458 (2006);

    Bratton, 145 Wn.2d at 577. A public entity makes an express assurance when it tells a

    person it has sent or will send a law enforcement officer. Munich, 175 Wn.2d at 884;

    Bratton, 145 Wn.2d at 577; Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237

    (1998); Chambers-Castanes, 100 Wn.2d at 287. Justifiable reliance is a factual




                                                9

No. 31457-0-111 

Mita v. Guardsmark, LLC 


question not generally amenable to summary judgment. Munich, 175 Wn.2d at 879; 


Beal, 134 Wn.2d at 786-87. 


       The County had direct contact with Floyd when he called SCRC on the

telephone. s Based on the information Floyd provided SCRC, the County should have

known Kay was in need. The Mitas presented evidence the County made an express

assurance to Floyd when the call receiver told him SCRC would immediately send a law

enforcement officer to search for Kay and contact Floyd when the officer found Kay.

Floyd reasonably relied on this promise because it induced him to forgo his own search

efforts and wait for an officer to contact him about Kay. In his vulnerable state, Kay

reasonably relied on his immediate family members to find him, thereby establishing

privity of reliance between him and Floyd. And, because SCRC should have

reasonably foreseen Kay might be harmed if it failed to send an officer to search for

him, the County had privity with Kay setting him apart from the general public.

Therefore, the Mitas argue, the County owed Kay a common law duty under the

voluntary rescue doctrine and a special relationship.

      The County disputes whether SCRC promised to send aid to Kay. But in this

summary judgment appeal, we view the facts most favorably to the Mitas as the


      S   The County invites us to ignore all evidence of this conversation because it is
hearsay. We cannot decide this issue because the trial court admitted the evidence for
purposes of summary judgment and the County did not cross-appeal that ruling. Even
so, the County is incorrect. The Mitas did not offer the out-of-court statements to prove
the truth of the matters they assert. See ER 801{c). The statements the County made
to Floyd are admissible as party-opponent admissions. See ER 801 (d)(2). The
statements Floyd made to the County are admissible to show what information he
provided that prompted it to make an express assurance. See ER 801(c).


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No. 31457-0-111
Mita v. Guardsmark, LLC

nonmoving party. Whether SCRC made the promise is, of course, a material fact left for

further summary judgment proceedings or trial. Our focus is on whether the facts

viewed most favorably to the Mitas raise a legal duty under the voluntary rescue

doctrine and a special relationship, and we conclude under our standard of review that

they do. Therefore, the trial court erred in summarily dismissing the Mitas' negligence

suit against the County.

       Next, we turn to whether Guardsmark owed Kay a duty of care. Under the

voluntary rescue doctrine, an actor owes a duty to a person he or she should know is in

need if (1) the actor voluntarily undertakes to aid or warn the person in need, and (2) the

undertaking increases the risk of harm to the person in need. Fa/sam, 135 Wn.2d at

675-77; Brown, 86 Wn.2d at 299-300; see RESTATEMENT (SECOND) OF TORTS § 323(a);

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 42(a).

But a special variation of this rule is more relevant here.

       An actor owes a duty to a person who reasonably appears imperiled and

incapable of adequately caring for himself or herself if (1) the actor voluntarily takes

charge of the helpless person intending to assist him or her in confronting the peril, and

(2) the actor discontinues the assistance and leaves the helpless person in a worse

position than before. See RESTATEMENT (SECOND) OF TORTS § 324(b); RESTATEMENT

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 44(b); see a/so

BLACK'S LAw DICTIONARY 1253 (9th ed. 2009) (defining peril as U[e]xposure to the risk of




                                             11 

No. 31457-0-111
Mila v. Guardsmark, LLC

injury, damage, or loss" without limiting it to the risk of death).6

       The helpless person may be imperiled by a "force of nature" and incapable of

adequately caring for himself or herself because of age or other circumstances.

RESTATEMENT (SECOND) OF TORTS § 324 cmt. b. Imminent peril is sufficient but not

necessary. See Fo/som, 135 Wn.2d at 675-77; RESTATEMENT (SECOND) OF TORTS § 324

& cmts.7 The actor cannot, after successfully removing the helpless person from some

peril, unreasonably put him or her "back into the same peril, or into a new one."

RESTATEMENT (SECOND) OF TORTS § 324 cmt. g. Doing so would leave the helpless

person in a worse situation than before, and thereby increases the risk of harm to h~m or

her, because the assistance "misle[d the helpless person] into believing the danger had

been removed" and meanwhile "depriv[ed him or her] of the possibility of help from



      6 The Restatement (Second) of Torts § 324(b) provides,

      One who, being under no duty to do so, takes charge of another who is
      helpless adequately to aid or protect himself is subject to liability to the
      other for any bodily harm caused to him by[:]

          (b) the actor's discontinuing his aid or protection, if by so doing he
          leaves the other in a worse position than when the actor took charge of
          him.

See a/so RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM §
44{b). While our courts have not had an occasion to adopt § 324{b), they already
recognize its fundamental principles. See Fa/sam, 135 Wn.2d at 676-77; Webstad v.
Stortini, 83 Wn. App. 857, 874, 924 P.2d 940 (1996). Therefore, we do not hesitate to
apply § 324(b) here.
        7 Cf. French v. Chase, 48 Wn.2d 825,830,297 P.2d 235 (1956) (requiring a
reasonable appearance of imminent peril in a different variety of the rescue doctrine
applicable where an injured rescuer seeks compensation from a person who caused the
danger requiring rescue); McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 355, 961
P.2d 952 (1998) {explaining the imminent peril requirement, like the other elements in

                                              12 

No. 31457-0-111
Mita v. Guardsmark, LLC

other sources." Fo/som, 135 Wn.2d at 676; see RESTATEMENT (SECOND) OF TORTS § 324

cmt. g.

          The Mitas presented evidence Guardsmark should have known Kay was in need,

considering the ongoing snowstorm and subfreezing temperatures combined with his

lack of suitable clothing, advanced age, and thin build, as well as his earlier

sluggishness, shivering, shaking, and inability to communicate intelligibly. Moreover,

the Mitas presented evidence that Kay reasonably appeared imperiled by a natural

force and incapable of adequately caring for himself because of age and other

circumstances. By bringing him inside the locked .courthouse and seating him next to

the heater for two hours, Guardsmark took charge of Kay, intending to assist him in

confronting the peril. But after successfully removing Kay from this peril, Guardsmark

put him back outside the locked courthouse into the same peril, or into a new one.

Arguably, doing so left Kay in a worse situation than before and increased the risk of

harm to him because, in his seemingly confused and bewildered state, the assistance

misled Kay into believing Guardsmark had removed the danger and meanwhile

deprived him of an opportunity to seek help outside the locked courthouse. Therefore,

the Mitas argue, Guardsmark owed Kay a common law duty under the voluntary rescue

doctrine.

          Guardsmark disputes whether Kay reasonably appeared imperiled and incapable

of adequately caring for himself. But in this summary judgment appeal, we view the

facts most favorably to the Mitas as the nonmoving party. Whether Kay reasonably


that variety of the rescue doctrine, exists partly to negate the argument that the rescuer

                                            13
No. 31457-0-111
Mita v. Guardsmark, LLC

appeared this way is, of course, a material fact left for further summary judgment

proceedings or trial. Our focus is on whether the facts viewed most favorably to the

Mitas raise a legal duty under the voluntary rescue doctrine, and we conclude under our

standard of review that they do. Therefore, the trial court erred in summarily dismissing

the Mitas' negligence suit against Guardsmark.

      The County and Guardsmark urge us to affirm for two additional reasons. First,

the County and Guardsmark argue they could not have reasonably foreseen Kay's

death. Whether some general form of harm was foreseeable is an issue concerning the

existence of a duty, a topic central to this appeal. But whether death, as a particular

form of harm, was foreseeable is a different issue concerning the scope of a duty. We

do not decide this foreseeability of death issue because we think the parties need to

develop it further on remand. Second, the County and Guardsmark argue they did not

breach any duty, even if they owed one to Kay. We do not decide this breach of duty

issue because the parties did not raise it on summary judgment.

      Reversed.


                                                 ~\&;J.
                                                 Br   n, A.C.J.
WE CONCUR:




                                                 Lawrence-Berrey,




assumed the risk of injury in confronting the danger requiring rescue).

                                            14
