IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CATHY HARPER,individually,as Personal Representative ofthe ESTATE OF TRICIA PATRICELLI,as Guardian ad Litem for KHALANI MICHAEL,a minor child,and as Guardian ad Litem for NIYERRAH MICHAEL,a minor child, )

Appellant, )

) v. ) ) STATE OF WASHINGTON; ) WASHINGTON DEPARTMENT OF ) CORRECTIONS,a governmental ) entity, ) ) Respondents, )

) RHONDA FREELAND and JOHN DOE ) FREELAND,and their marital ) community ) ) Defendants. )

) ) DIVISION ONE No.76008-4-1

ORDER DENYING MOTION FOR RECONSIDERATION AND ORDER WITHDRAWING OPINION AND SUBSTITUTING OPINION

The respondent,State ofWashington Department of Corrections, having filed a motion for reconsideration ofthe court's opinion filed December 4,2017,and a majority of the panel having determined that the motion should be denied, now,therefore it is hereby ORDERED thatthe respondent's motion for reconsideration is denied;and it is furtherNo.76008-4-1/2

furtherORDERED thatthe opinion filed on December 4,2017 is withdrawn; and it is

ORDERED that a substitute opinion shall be filed to correct a factual conclusion, and the substituted opinion shall be published in the Washington Appellate Reports.

2 

# a (1 3 -ec-14 ,IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CATHY HARPER,individually, as ) Personal Representative ofthe ) DIVISION ONE 173 ESTATE OF TRICIA PATRICELLI,as ) =0 U7C3 Guardian ad Litem for KHALANI ) No.76008-4-1 SP' --1 rri CD MICHAEL,a minor child, and as ) CD -11 Guardian ad Litem for NIYERRAH ) r• - >7.1 MICHAEL,a minor child,

Appellant, )

) ) PUBLISHED OPINION

NI =>. xr— mu) C. 1 CD v. ) ) ) STATE OF WASHINGTON; ) WASHINGTON DEPARTMENT OF ) CORRECTIONS,a governmental entity, ) ) ) Respondents, )

) RHONDA FREELAND and JOHN DOE ) FREELAND,and their marital ) community ) ) Defendants. )

) ) FILED: January 16, 2018

DWYER,J.— Cathy Harper, personal representative ofthe estate ofTricia Patricelli, appealsfrom the trial court's order granting summary judgmentto the Department of Corrections (DOC)and dismissing her lawsuit. On appeal, Harper contends that the trial court erred because genuine issues of material fact existNo.76008-4-1/2

as to whether DOC breached its take charge duty owed toward PatriceIli in its supervision of Scottye Miller. We conclude that genuine issues of material fact remain for trial as to whether DOC exercised less than slight care in its supervision of Miller. Accordingly,we reverse. 1 DOC was assigned to supervise Miller during his term of community placement to begin on October 15, 2012. Prior to this term ofcommunity placement, Miller had a lengthy criminal record, much of it involving crimes of domestic violence against PatriceIli, Harper's daughter. Specifically, Miller had been convicted of4domestic violence felonies, 2ofwhich were against PatriceIli, and 18 domestic violence misdemeanors,4 ofwhich were against PatriceIli. In addition, multiple no-contact orders had been issued against Miller, barring him from interacting with PatriceIli. In the past, Miller had repeatedly violated these no-contact orders and lied to his community corrections officers when asked whether he was residing with PatriceIli. Upon his release from incarceration on October 15,Miller was placed under the supervision of DOC community corrections officer Rhonda Freeland. Atthe time of his release, Miller was to be supervised by DOC as a misdemeanor domestic violence offender) A no-contact order in place at the time of Miller's

1 Miller's misdemeanantsupervision was in part due to a prior conviction for violation ofa no-contact order prohibiting him from contacting PatriceIli.

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release effectively prohibited him from having physical contactwith PatriceIli but permitted him to have telephone contactwith her.2 On October 16, Miller reported to Freeland at her Auburn office. While there, Miller was subjected to a urinalysis test to monitor his drug and alcohol
use. The test results were negative, indicating that Miller had not used drugs Or alcohol since his release from incarceration the day before. Pursuant to DOC policy, Freeland asked Miller where he would be residing. Miller indicated that he was homeless but that he would be staying with his mother,Leola Benson,as well as with nearby relatives. Freeland required that Miller report to her office weekly and complete a housing report log,a form document listing where he resided each nightto be verified by the signature of the person with whom he had resided. Because Miller was subjectto community placement pursuant to a misdemeanor conviction—rather than a felony conviction—DOC's policy did not require that Miller establish an approved address upon his release from incarceration. Over the next two days, Freeland made several telephone calls. First, she contacted Miller's previous mental health counselor,who told her that Miller would be required to sign up for mental health services and to schedule an intake appointment.3 Freeland then contacted Dave Albers,a King County probation officer who had supervised Miller in 2010 and 2011,to inform him ofthe community custody conditions that were imposed on Miller and of her

2 The no-contact order permitted Miller to have personal contact with PatriceIli in the eventthat he was incarcerated or in residential chemical dependency treatment.

3 Freeland received verification the nextday that Miller had scheduled an intake appointment to begin receiving mental health services.

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assignment as supervisor of Miller's community placement. Freeland telephoned PatriceIli and left a message for her, requesting a return call. Freeland did not again attempt to contact PatriceIli. Freeland also contacted Angela Coker,who was currently assigned to PatriceIli as a DOC community victim liaison due to Miller's prior crimes of domestic violence against PatriceIli. In the time leading up to Freeland's supervision of Miller, Coker had successfully contacted PatriceIli using a different telephone number than the number dialed by Freeland. Coker told Freeland that she had spoken with PatriceIli and that PatriceIli said that she had changed residences,believed that Miller did not know where she would be living, and was
aware that she could contact DOC or the police if she saw Miller. On October 23,seven days after his initial visit, Miller again reported to Freeland's office. He was subjected to another urinalysis test, the result ofwhich

was negative for drug or alcohol use. He gave Freeland a completed housing report log with Benson's signature placed thereon,suggesting that he had been residing with Benson for the pastweek. Miller also brought Freeland verification offood assistance benefits and acknowledged that he had a psychological examination scheduled for October 24. Freeland directed Miller to report to her again on October 30. On October 29,Benson contacted Freeland and indicated that she would be willing to let Miller live with her at her residence going forward. Freeland did not inquire of Benson as to whether Miller had been staying at her residence for the pasttwo weeks. Freeland thereafter sent an e-mail to Coker inquiring into

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whether the area surrounding Benson's address was associated with any of Miller's past domestic violence victims. Coker responded that there were no known security concerns regarding Benson's address. On October 30, Harper visited PatriceIli's apartment. Inside the apartment,she found PatriceIli's body,the victim of multiple stab wounds. Harper believed PatriceIli to be dead,and she was later pronounced as such by medical personnel. Miller was later convicted of PatriceIli's murder. Harper sued DOG alleging gross negligence and negligent infliction of emotional distress. DOG moved for summary judgment as to both claims. The trial court granted summary judgment of dismissal. II Harper contends that the trial court erred by granting summary judgment

as to her gross negligence claim. The trial court erred, Harper asserts, because genuine questions of material fact remain for trial as to whether DOG breached its take charge duty in its supervision of Miller upon his release from incarceration. We agree. A Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Hertoq v. City of Seattle, 138 Wn.2d 265,275, 979 P.2d 400(1999). Weengage in the same inquiry as the trial court and consider the facts and reasonable inferences therefrom in the light mostfavorable to the nonmoving party. Hertoq, 138 Wn.2d at 275.

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DOC's community corrections officers have a "take charge"duty over the offenders they supervise. Taggart v. State, 118 Wn.2d 195, 219,822 P.2d 243 (1992). Our Supreme Court announced the existence ofthis duty with reference to the special relationship provision in the Restatement (Second)ofTorts,§ 319 (1965),which reads: "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." Taggart, 118 Wn.2d at 219. Applying this duty to parole officers, our Supreme Court in Taggart held that, "parole officers have a duty to protect others from reasonably foreseeable dangers engendered by parolees'dangerous propensities." 118 Wn.2d at 224. "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 court continued,"the parole officer is under a duty to exercise reasonable care to control the parolee and to prevent him or herfrom doing such harm." Taggart, 118 Wn.2d at 220. Thus,DOC's duty when supervising offenders is the "take charge"duty setforth in Taggart. Statutory provisions and an offender's sentencing conditions are notthe origin ofthe duty. Mock v. Dep't of Corr., Wn.App ,403 P.3d 102, 108 (2017). Rather,the conditions ofthe sentence and the statutory authority

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granted to DOC inform the contours ofthe special relationship duty discussed in Taggart. Mock,403 P.3d at 108.4

"Once the relationship is created, it is the relationship itself which ultimately imposes the duty upon the government." Joyce v. Dep't of Corr., 155 Wn.2d 306,318-19, 119 P.3d 825(2005). The section 319 duty—also referred to as the "take charge"duty—is imposed only when there is a "'definite, established and continuing relationship between the defendant and the third party.'" Taggart, 118 Wn.2d at 219(quoting Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). It has been imposed on community corrections officers as well as parole officers and probation officers. Joyce, 155Wn.2d at 320;Taggart, 118 Wn.2d at 224; Bishop Iv. Michel, 137Wn.2d [518,]528-29, 531[, 973 P.2d 465(1999)]. Whether the departmentowed plaintiffs a section 319duty actionable in the circumstances ofthis case depends on the terms defining [the community corrections officer's]relationship with [the offender]. See Bishop, 137 Wn.2d at 528 ("The relevant inquiry is the relationship ofthe officer with the parolee.") Statutes and conditions ofsentence are relevant to this inquiry. Taggart, 118 Wn.2d at 219; Bishop, 137 Wn.2d at 528-29,531;Joyce, 155 Wn.2d at 317,319-20. The tort of negligent supervision is not unlimited. If the department "is not authorized to intervene, it cannot have a duty to do so." Couch v. Dep't of Corr., 113Wn. App.556,569,54 P.3d 197(2002), review denied, 149 Wn.2d 1012,69 P.3d 874 (2003);Joyce, 155Wn.2d at 320 n.3. Mock,403 P.3d at 108.

4 A claim that DOC made during oral argumentwith regard to instructing the jury on its take charge duty bears mentioning. Specifically, DOC claimed that it is unnecessary to instruct the jury as to the take charge duty so long as the jury is instructed as to the gross negligence standard. This is incorrect. We have never held that instructing the jury as to a party's duty in a special relationship case is unnecessary. Indeed,we have expressly rejected that proposition, reversing trial courtdecisions when the jury was not instructed as to the applicable common law special relationship duty. See e.g., Hendrickson v. Moses Lake Sch. Dist., 199Wn.App. 244, 247-49, 398 P.3d 1199(2017); Quvnn v. Bellevue Sch. Dist., 195 Wn.App.627,641, 383 P.3d 1053 (2016); Hopkins v. Seattle Pub.Sch. Dist. No. 1, 195 Wn.App.96, 103, 107-08, 380 P.3d 584,review denied, 186 Wn.2d 1029 (2016). 7No. 76008-4-1/8

C Harper contends that genuine issues of material fact remain for trial as to whether DOC breached its take charge duty toward PatriceIli while supervising Miller. The statutory provision guiding whether DOC and its community corrections officers breached their take charge duty while rendering community placement activities is setforth in RCW 72.09.320. The statute provides: Community placement—Liability. The state ofWashington,the departmentand its employees,community corrections officers, their staff, and volunteers who assist community corrections officers in the community placement program are notliable forcivildamages resulting from any actoromission in the rendering ofcommunity placementactivities unless the actoromission constitutes gross negligence. RCW 72.09.320(emphasis added). Thus,DOC and its correctional officers breach their take charge duty when they are grossly negligent in rendering community placement activities. A weathered but still vital Supreme Court opinion explicates upon the quantum of

care that constitutes gross negligence. 1 More than half a century ago,our Supreme Court decided Nist v.Tudor, 67Wn.2d 322,407 P.2d 798 (1965),a vehicular collision case that impelled the court to undertake a "study ofgross negligence." Nist, 67 Wn.2d at 323. The court's opinion, authored by Justice Hale,acknowledged atthe outset that

[a]review of the commentaries,scholarly treaties and case law on gross negligence shows the term to have universally escaped definition, and despite the most assiduous efforts to give it precision it retains its amorphous quality. Every qualifying word

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added to sharpen the phrase seems to obscure in about the same degree as it clarifies it and inevitably invites further definition. Or, standing alone in its self-contained significance, great negligence, the idea remains extremely difficult for the trial courts to apply in specific situations. The problem ever remains: Was there sufficient proof of great negligence to submit the issue to the jury? Nist,67Wn.2d at 325 (footnote omitted). The court then reviewed its decades

old decisions, noting that, "[a]lthough retaining slight care as a standard,this court has in recent years,where there is substantial evidence of acts or omissions seriously negligent in character, inclined toward leaving the question of gross negligence to the jury." Nist,67Wn.2d at 326. Thereafter,the court set out to clarify the gross negligence standard: We have many times said thatfailure to exercise slight care is gross negligence within the meaning ofthe motor vehicle statutes. Since this statement seems as appropriate in describing the concept as the other definitions offered,we should amplify the definition so that it may be more readily applied by the trial courts in given situations. Gross negligence may be more readily understood if anchored to or guided by other more understandable concepts,and ought to be directly related to the hazards ofthe occasion in which it is invoked. Palsqrafv. Long Island R.Co., 248 N.Y. 339, 162 N.E. 99,59A.L.R. 1253(1928). A gentle push of one window washer by another may be merely a playful gesture and of only the slightest negligence when both are standing in a basement window well, but put the same two men on the window ledge ofa skyscraper, 30 stories above the ground,and the same playful gesture becomes an act ofthe grossest negligence, if not one of wanton depravity. The term gross negligence,then,to have practical validity in the trial of a cause,should be related to and connected with the law's polestar on the subject,ordinary negligence. . . . Gross negligence, being a form of negligence on a larger scale, must also, like ordinary negligence,derive from foreseeability ofthe hazards out ofwhich the injury arises. It means,therefore,gross or great negligence,that is, negligence substantially and appreciably greater than ordinary negligence. Its correlative,failure to exercise slight care, means notthe total absence of care but care substantially or appreciably

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less than the quantum of care inhering in ordinary negligence. In determining the degree of negligence,the law must necessarily look to the hazards ofthe situation confronting the actor. Nist, 67Wn.2d at 330-31. As one pertinent application ofthe gross negligence standard,the Nist court discussed its decision in Emery v. Milk, 62Wn.2d 617, 384 P.2d 133 (1963), in which the court observed that although the hostdriver demonstrated a number ofthe elements ofcare by driving in her proper lane with her lights on,keeping her car under control, we said thatfailure to stop at a stop sign and yield the right ofway in driving through an obstructed intersection provided evidence ofgross negligence, creating an issue offactfor the jury. 67Wn.2d at 328. The court emphasized that, in Emery, "[t]he elements of care shown in controlling and operating the car did not cancel the elements of gross negligence implicit in driving across an obstructed arterial street at 30 miles per hour without stopping." Nist, 67Wn.2d at 328. With this framework,the Nist court proceeded to address the merits ofthe

case before it.

Although Mrs.Tudor,the driver, had slowed her car to a near stop, had her left-turn blinker signal on to warn following cars and waited for them to go by, her negligence, if any,should therefore, be measured in the case not by dangers from following cars butfrom the hazards whereof plaintiff received her injuries— the oncoming truck. Any care or prudence exerted by the defendantdriver here had reference to following cars and little or no relationship to the hazards generated by the approaching truck,for the truck had the right ofway,and the duty to yield rested upon the Tudor car before making its left turn. Neither slowing down,nor signaling, nor looking toward a truck coming toward her on a clear,dry day on a straight, level road reduced the hazards from so imminent and perceptible a danger unless her actions suited the needs ofthe occasion. Her acts and omissions in turning suddenly into so obvious a danger supplied evidence from which a jury could well infer that she acted in the exercise ofso small a degree of care under the circumstances as to

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be substantially and appreciably more negligent than ordinary, and hence could be held guilty ofgross or great negligence. Nist 67Wn.2d at 331-32. Given that,the court instructed: If there is substantial evidence ofseriously negligent acts or omissions on the part of the host driver,then the issue ofgross negligence should be resolved by the jury under proper instructions. Because gross negligence is a species of aggravated negligence,the jury should have an understanding ofwhatthe law means by ordinary negligence so that it may have a basis of comparison; consequently,the jury should be given the benefit of the law's classic definition of negligence coupled with the definition of and the rule concerning proximate cause. .. . Finally, we believe the jury—having received the classic definition of ordinary negligence—will better understand the idea of gross negligence if it is informed that gross negligence means what the term implies—great negligence, negligence substantially or appreciably greater than ordinary negligence. Nist, 67Wn.2d at 332-33. In the present case, if the question ofwhether DOC was grossly negligent in its community placement actions was put to a jury,the law summarized in the Washington Pattern Jury Instructions regarding ordinary negligence, ordinary care,and gross negligence would be pertinent. These instructions read: WPI 10.01 NEGLIGENCE—ADULT—DEFINITION Negligence is the failure to exercise ordinary care. It is the doing ofsome act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances. WPI 10.02 ORDINARY CARE—ADULT—DEFINITION Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances.No. 76008-4-1/12

WPI 10.07 GROSS NEGLIGENCE—DEFINITION Gross negligence is the failure to exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care but care substantially less than ordinary care. 6WASHINGTON PRACTICE:WASHINGTON PATTERN JURY INSTRUCTIONS:CIVIL 10.01, .02, .07,at 124, 126, 132 (6th ed. 2012)(boldface omitted). In summary,as Justice Hale well-illustrated with his example ofthe window washers,the sufficiency ofevidence ofgross negligence is not merely a function ofthe quantity of evidence presented,it is also a function ofthe significance the jury could give to that evidence in light of the foreseeable danger. It is in this latter respect thatthe distinction between ordinary negligence and gross negligence will often be manifest. Butthe drawing of such distinction will almost always require the fact-finding judgment of a jury, as opposed to the legal analysis ofa court. 2 We must next determine whether genuine issues of material fact exist as to whether DOC breached its take charge duty owed to Patricelli. Our analysis necessarily focuses on the sentencing condition most pertinentto Patricelli's safety—the no-contact order. Just as with the driver in Nist that DOG may have exercised the appropriate care with regard to other factors does not, as a matter of law,"cancel," Nist, 67Wn.2d at 328,the evidence ofgross negligence regarding the enforcement ofthe no-contact order.

- 12-No. 76008-4-1/13 First, Freeland attested during her deposition that she possessed a physical copy of Miller's field file and had access to DOC's electronic offender managementsystem. This is significant because these records detailed that Miller had a long history ofviolating no-contact orders prohibiting him from contacting PatriceIli and of lying to community corrections officers when asked if he was contacting or residing with PatriceIli. Next, Freeland attested in her deposition that, in determining whether Miller had truthfully filled out his housing report log, "1 can't assume that he's always lying to me,but 1 can't always assume that he's telling me the truth." Accordingly,viewed in the light mostfavorable to Harper, Freeland reviewed Miller's housing report logs in the same manner as she would have with any other offender, notwithstanding Miller's clear record ofviolating no-contact orders

so that he could reside with PatriceIli and lying to DOG officers aboutwhether he had been residing with her. Furthermore,the parties do not dispute that Freeland made only one attempt to contact PatriceIli by telephone in the two weeks of her supervision of Miller—an attempt that was unsuccessful. This is significant because available to Freeland in DOC's electronic records system was another telephone number for PatriceIli at which she had been successfully contacted in the weeks leading up to her murder. However,Freeland did not make any attempt to contact PatriceIli using the alternative telephone number. Lastly,when Benton called Freeland to indicate that Miller could reside with her going forward, Freeland did notask Benton whether Miller had,in

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actuality, been residing with her during his community placement,as Miller's housing report logs suggested. If Freeland had the requisite level offamiliarity with Miller's record of lying aboutwhere he had been residing,she would have been more likely to inquire into whether he had actually been staying with Benton during his term ofcommunity placement. This is significant because it would have given Freeland a basis on which to inquire into whether Miller had violated the no-contact order. Taking all reasonable inferences in favor of Harper,a jury could find that, notwithstanding the steps that were taken in discharge ofthe take charge duty, Nist, 67Wn.2d at 328,these facts support a conclusion that,with regard to the

no-contact order, DOC exercised less than slight care in its supervision of Miller, thereby breaching its applicable duty. Accordingly,the trial court erred by granting summary judgment of dismissa1.5 Ill Harper also contends that she may prevail on her negligent infliction of emotional distress claim by establishing ordinary negligence, rather than gross negligence, on the part of DOC in its rendering of community placement activities. Harper is wrong. Again, RCW 72.09.320 provides:

5 We do not consider DOC's claim that Harper failed to establish proximate cause because DOC did not presentthis argumentto the trial court in its opening summary judgment materials. King v. Rice, 146 Wn.App.662,668,191 P.3d 946 (2008)(citing White v. Kent Med. Ctr., Inc., P.S., 61 Wn.App. 163, 169,810 P.2d 4(1991)). Wefurther emphasize that our determination is restricted to the circumstances of this case. No record was made of the abilities or authorization to intervene applicable to probation officers in limited jurisdiction courts. Cf. Couch, 113Wn.App.at 569.

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-No.76008-4-1/15 Community placement—Liability. The state ofWashington,the department and its employees,community corrections officers, their staff, and volunteers who assist community corrections officers in the community placement program are notliable forcivildamages resulting from any actoromission in the rendering ofcommunity placementactivities unless the actoromission constitutes gross negligence. (Emphasis added.) Accordingly, in a civil action against DOC regarding its rendering of community placement activities, no liability attaches to DOC for any act or omission unless the act or omission constitutes gross negligence. Harper's negligent infliction ofemotional distress claim is a civil action against DOC regarding its rendering of community placement activities. Thus,as
a predicate to establishing her negligent infliction ofemotional distress claim against DOC,Harper mustestablish that DOC acted with gross negligence, rather than ordinary negligence. Harper's contrary contention fails. However,given our resolution ofthe first issue presented, itfollows that the trial court also erred by dismissing Harper's negligent infliction ofemotional distress claim. Reversed.

We concur: 

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