IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

CHRISTINE FOE, No. 78848-5-I DIVISION ONE UNPUBLISHED OPINION
FILED: November4, 2019 CHUN, J.

— Christine Foe sued Keith Willson, claiming negligence, negligent infliction ofemotional distress, negligent entrustment, and unlawful imprisonment. The trial court granted Willson’s motion forsummaryjudgment and dismissed Foe’s claims. Foe appeals. Because Foe does not provide a basis to reverse the trial court’s decision, we affirm. I. BACKGROUND Foe suffers from schizoaffective disorder, bipolartype. In January 2017, Foe experienced a manic episode that resulted in the City of Kirkland charging herwith criminal trespass in the second degree. Foe asked Willson, a friend, for help posting bail and he did so. In February2017, in the same case, Foe and Wilison attended a hearing in which the Kirkland Municipal Court released Foe on bail but ordered herto return for a pretrial hearing on the morning of March 20. Willson then drove Foe

v. KEITH WILLSON, Respondent,

Appellant.No. 78848-5-112

to Portland, Oregon (where Foe resided) and she repaid him the bail amount. Foe then declined Willson’s offerto assistfurtherwith the Kirkland criminal case.1 On March 10, Foe experienced another manic episode while driving in Oregon. She failed to stop for a pursuing police officer and “got into a serious
car accident.” A grandjury in Washington County2 indicted Foe forfleeing a police officer, reckless driving, and reckless endangerment. During Foe’s time in jail, she did not call or request any help from Willson. Nevertheless, Willson still learned about Foe’s Oregon criminal case. On March 19, Willson drove from his home in Mukilteo, Washington, to Oregon with the intention oftransporting Foe to the March 20 court appearance in Kirkland. Willson assisted in obtaining Foe’s release fromjail. Both Foe and Willson signed a “Release Agreement” with the Washington County Circuit Court. In pertinent part, Foe agreed to: (1) appear in the Washington County courtfor a hearing on March 20 at4:00 p.m., (2) obey all laws, and (3) “travel to the state of Washington forcourt purposes.” In anothersection ofthe agreement, Willson signed a statement that said: I agree to be responsible for and supervise the within named defendant [Foe] and to notifythe Court immediately ifthe defendant breaches any ofthe conditions of[their] release. I agreeto be aware of the conditions of this release, the defendant’s schedule of court appearances and to aid the defendant in attending all ofhis/hercourt appearances. I understand that myobligations underthis agreement continue in full force and effect until the case(s) is/are completed in court, provided the defendant is on release status. I understand that

1 Foe, age 39 atthe time, “wanted nothing to dowith” 81-year-old Willson. Foe felt uncomfortable around Wilison because Foe perceived some ofWilison’s actions as unwanted romantic gestures.

2Washington County is in the State ofOregon.

2No. 78848-5-1/3
to knowingly aid the defendant in a breach of his/her release agreement or to knowingly fail to report the defendant’s breach is punishable by CONTEMPT OF COURT with a penalty of 6 months in jail or $500 fine or both. Willson believed thatthey could drive to Mukilteo in the afternoon of March 19, appearforthe Kirkland court appearance the next morning, and drive backto Oregon for Foe’s 4:00 p.m. court appearance. After leaving thejail, they ate at a nearbyfast-food restaurant and got into Willson’s carto drive north to Mukilteo. Foe neitherobjected nor refused to get into Willson’s car. Before reaching the freeway, however, Foe told Willson: “This is my car. I don’t wantyou in it.” Foe then moved the steering wheel and Willson stopped the car. Foe exited the car and Wilison “ordered” herto get back in the
car. Foe reentered the car because “[i]twas almost dark” and they “were in a rural area.” During the 200-milejourney north that evening, Foe acted bizarrely. Among otherthings, shejumped back and forth from the frontto the back seat of the car, stuck parts of her body out the carwindow, played with the steering wheel and dashboard controls, threwWillson’s mobile phone out ofthe car, talked incoherently, and took offclothing.3 After arriving atWillson’s home, Foe slept in an upstairs room that night withoutfurther incident. On the morning of March 20, Willson attempted to get Foe to attend the Kirkland Municipal Court pretrial hearing, but she refused. Wearing only

~ Both parties attribute Foe’s behavior in the carthatevening to her having a manic episode.

3No. 78848-5-1/4

sweatpants and a bra, Foe went into Willson’s backyard and rolled on the grass. Willson then pulled Foe bythe hands and “forced [her] to come with him to court.” But Foe ran outside the house again, this time into the frontyard, and continued to act in a bizarre manner. Officers ofthe Mukilteo Police Department responded to Willson’s house “fora report ofa suspicious female” and fora “welfare check.” When OfficerJeremy Ballinger arrived on the scene, Foe “quickly brushed past” Willson, went into his house, and ran into an upstairs room. The room contained a number ofantique pistols, including one stored “inside a wooden box
on a desk” and the others “in a closet in leather cases.”4 Wilison told Officer Ballingerthat Foe was “a familyfriend who was bi-polar and was having an, [sic] ‘episode.” As Sergeant Steven Fanning stood in Willson’s frontyard, Foe appeared at an upstairs window. Sergeant Fanning saw Foe with a handgun. She then pointed the gun at Sergeant Fanning and proceeded to drop various items out of the second floorwindow.5 Officers called for additional assistance and led Wilison away from the house. Members ofa SWAT6 team responded and relieved the officers. At some point during the process, they shot Foe in the leg with a rubber bullet. The

~Wilison told the police officersthat“there were numerous firearms in the room” that Foe occupied but“he did notthinktherewas any ammunition in the room.”

~Among the items Foe dropped were glassjars filled with coins, a metal folding chair, papers, and a pistol.

6 Special Weapons and Tactic (SWAT).

4No. 78848-5-1/5

SWATteam eventuallytook Foe into custody. In September2017, Foe pleaded guilty in Snohomish County Superior Courtto third degree assaultfor pointing a pistol at Sergeant Fanning. In January 2018, Foe filed a Complaint in the Snohomish County Superior Court againstWillson, asserting claims for negligence, intentional infliction of emotional distress, negligent infliction ofemotional distress, negligent entrustment, and unlawful imprisonment. Foe laterfiled an Amended Complaint and, subsequently, withdrewthe intentional infliction ofemotional distress claim. In June 2018, Willson moved for summaryjudgment dismissal ofall of Foe’s remaining claims. Willson argued that Foe could not establish all the elements ofthe asserted claims. Foe responded to Willson’s motion and supported that response with herdeclaration, along with a single exhibit. In July 2018, atthe summaryjudgment hearing, the trial court initially struck portions of Foe’s declaration as hearsay. Then, after considering the pleadings and hearing arguments from the parties, the trial court granted Willson’s motion and dismissed all of Foe’s claims. Foe appeals. II. DISCUSSION Foe claims the trial court’s summaryjudgment orderwas improperfor various reasons.7 We disagree and affirm.

~As an initial matter, we observe that portions of Foe’s briefing are incomprehensible, In violation ofthe Rules ofAppellate Procedure, in certain instances, Foe fails to provide coherent legal argumentsupported by citationsto authority or references to the record. RAP 1O.3(a)(6). An appellate courtwill notsearch through the record forevidence relevantto a litigant’s arguments. Millsv. Park, 67Wn.2d 717, 721, 409 P.2d 646 (1966). Moreover, we may decline to consider issues unsupported by legal argument and citation to relevantauthority. Saundersv.

5No. 78848-5-1/6

A. Standard of Review We review an order granting summaryjudgment de novo. Lybbertv. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). Summaryjudgment is appropriate where, viewing the evidence in the light mostfavorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled tojudgment as a matterof law. Bercjerv. Sonneland, 144 Wn.2d 91, 102, 26 P.3d 257 (2001). B. Preliminary Issue Foe assigns errorto the trial court’s failure to identifythe portions of her declaration that it struck as hearsay and refused to consider at summary judgment. But because Foe does not supportthis claim oferrorwith legal authority orargument, we decline to address it.8 Island Countyv. Mackie, 36 Wn. App. 385, 395, 675 P.2d 607 (1984) (“It is well settled that assignments of
error unsupported by legal argument need not be considered on appeal.”); see also RAP 10.3(a)(6). C. False Imprisonment Foe first argues thatthe trial court erred by summarily dismissing the “false imprisonment”9 claim.

Lloyd’s of London, 113Wn.2d 330, 345, 779 P.2d 249 (1989). Thus, to the extent thatwe are able to discern Foe’s arguments on appeal, we address them.

8And in any event, the consideration ofthe apparent hearsay portions ofthe declaration does notaffectouranalysis.

~ Foe usesthe terms “false imprisonment” and “unlawful imprisonment” interchangeably.

6No. 78848-5-1/7

“In an action forfalse imprisonment, the plaintiff must prove thatthe liberty of his or her person was restrained.” Moore v. Pay’N Save Coni, 20 Wn. App. 482, 486, 581 P.2d 159 (1978) (citing W. PROSSER, LAWOFTORTS 

### § 11(4th ed. 1971)). A person is restrained when “deprived ofeither liberty of movement or freedom to remain in the place of [their] lawful choice.” Moore, 20 Wn. App. at 486. Such restraint “may be accomplished by physical force alone, or bythreat offorce, or by conduct reasonably implying thatforce will be used.” Moore, 20 Wn. App. at 486. However, if“the undisputed facts indicate thatthe person voluntarily accompanied” another individual to a location, “the person is not restrained or imprisoned as a matter of law.” Moore, 20 Wn. App. at486-87 (citing James v. MacDouqall & Southwick Co., 134 Wash. 314, 235 P. 812 (1925)). Even when viewing the evidence mostfavorably to Foe, there are no facts showing thatWillson deprived Foe of liberty of movement. Rather, the evidence indicates that Foe voluntarily entered an agreementwith an Oregon courtto travel with Wilison “to the state ofWashington for court purposes.”1° Upon release from jail in Oregon, Foe did not objectto getting into Wilison’s car. Even afterforcing Willson to stop the car by pulling on the steering wheel, Foe chose to reenterWillson’s caron theirjourney north to Mukilteo. Upon arriving in Mukilteo, Foe slept overnight atWillson’s home. There is
no evidence thatWillson restricted Foe’s freedom of movement during thattime.

10Though Foe asserts thatWillson used a “false identity” to remove Foe fromjail, she failed to provide anyadmissible evidence to supportthatassertion.

7No. 78848-5-1/8

Nor is there any evidence that, on the following day, Willson limited Foe’s freedom byforcing herto remain inside his home. On the morning of March 20, Foe ran into Wilison’s backyard. AfterWillson pulled her hands, Foe “ran outside” into the frontyard. Once police officers arrived on the scene, Foe ran by Willson and into an upstairs room. The evidence indicates thatWillson was unable to restrict Foe’s abilityto move as she desired. Underthese circumstances, we conclude thatWilIson’s actions did not confine Foe in a mannerthat deprived her offreedom of movement. See RESTATEMENT (SECOND) OFTORTS 

## § 36 (1965).h1 The trial court did not err in dismissing Foe’s false imprisonment claim.12 D. Negligence Foe next argues thatthe trial court erred by dismissing the negligence claim. Foe contends that, based on theirspecial relationship and Willson’s
awareness of her bipolar diagnosis, he had a dutyto secure her safety (e.g., prevent Foe from engaging in criminal activity).

~ Section 36 states: (1) To make the actor liable forfalse imprisonment, the other’s confinement within the boundaries fixed bythe actor must be complete. (2) The confinement is complete although there is a reasonable means of escape, unless the other knows ofit. (3) The actordoes not become liable forfalse imprisonment by intentionally preventing anotherfrom going in a particulardirection in which he [orshe) has a rightor privilege to go. 12 Given ourdisposition ofthis claim, we need notaddress Foe’s assertion thatthe trial court interpreted the parties’ release agreementwith the Oregon courtas overriding Willson’s duty notto engage in false imprisonment.

8No. 78848-5-1/9

To establish negligence, a plaintiff must prove four basic elements: “(I) the existence ofa duty owed to the complaining party; (2) a breach ofthat duty; (3) resulting injury; and (4) thatthe breach was the proximate cause ofthe injury.” Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). Because ‘a negligence action will not lie ifa defendant owed a plaintiff no duty of care, the primary question is whethera duty of care existed.” Folsom, 135 Wn.2d at 671; Funkhouserv. Wilson, 89 Wn. App. 644, 653, 950 P.2d 501 (1998) (“Summaryjudgment dismissal of negligence claims is proper ifthe defendant owed no dutyto the plaintiff.”). “The existence ofa duty is a question of law.” Folsom, 135 Wn.2d at 671. Washington courts recognize a limited dutyto control the actions ofa third person to prevent harm to others “in cases where: (1) a ‘special relationship’ exists between the defendant and eitherthe victim orthe tort-feasor; or (2) the defendant acts orfails to actwhile knowing that doing so involves an unreasonable risk of harm to the plaintiffvia the conduct ofthe tort-feasor.” Funkhouser, 89 Wn. App. at 653 (citing RESTATEMENT (SECOND) OF TORTS 

### § 315; 

### § 302B; see also Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 227-30, 802 P.2d 1360 (1991)); see alsoWebstad v. Stortini, 83 Wn. App. 857, 866, 924 P.2d 940 (1996) (“Furthermore, the law provides no general dutyto protect others from self-inflicted harm[.]”) (citing Donaldson v. Young Women’s Christian Ass’n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995)).

9No. 78848-5-1110

A duty of care is warranted bythe existence of a “special relation” between the parties. RESTATEMENT (SECOND) OF TORTS 

### § 315 (1965). Section 315 provides: There is no duty so to control the conduct of a third person as to prevent him [or her] from causing physical harm to another unless (a) a special relation exists between the actorand the third person which imposes a duty upon the actorto control the third person’s conduct, or (b) a special relation exists between the actorand the otherwhich gives to the othera right to protection. Our Supreme Court has instructed that a dutywill be imposed under

### § 315 “only upon a showing ofa ‘definite, established and continuing relationship between the defendant and the third party.” Taqciart v. State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992) (quoting Honcoopv. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). “One who takes charge ofa third person whom he [orshe] knows or should knowto be likelyto cause bodily harm to others if not controlled is under a dutyto exercise reasonable care to control the third person to prevent him [or her] from doing such harm.” RESTATEMENT (SECOND) OF TORTS 

### § 319 (1965). The Taciciart case is instructive here. In Taqc~art, our Supreme Court concluded that byvirtue oftheirstatutory authorityto supervise parolees, parole officers “take charge” ofthem: Parole officers have the statutory authority under RCW 72.04A.080 to supervise parolees. The State can regulate a parolee’s movements within the state, require the parolee to reportto a parole officer, impose special conditions such as refraining from using alcohol or undergoing drug rehabilitation or psychiatric treatment, and orderthe parolee notto possess firearms. The parole officer is

10No. 78848-5-I/li the person through whom the State ensures that the parolee obeys the terms of his or her parole. Additionally, parole officers are, or should be, aware oftheir parolees’ criminal histories, and monitor, or should monitor, their parolees’ progress during parole. Because of these factors, we hold that parole officers have “taken charge” ofthe parolees they supervise for purposes of 

### § 319. When a parolee’s criminal history and progress during parole show that the parolee is likely to cause bodily harm to others if not controlled, the parole officer is under a duty to exercise reasonable care to control the parolee and to prevent him or herfrom doing such harm. Tacicjart, 118 Wn.2d at 219-20. The Taqqart courtthen held “that a parole officer may ‘take charge’ ofa parolee, thereby assuming the dutyto protect against reasonablyforeseeable dangers, despite the absence ofa custodial relationship and without exercising the ‘continuing hourly or daily dominance and dominion’ overthat parolee.” TaQclart, 118 Wn.2d at 223-24 (quoting Foxv. Custis, 235 Va. 69, 372 S.E.2d 373 (1988)). Here, WilIson agreed with an Oregon courtto supervise Foe in traveling to Washington State for court purposes and to be responsible for returning Foe to Oregon foranothercourt appearance. The critical question, then, is whether Willson “took charge” of Foe byvirtue ofthat agreement. The record before us indicates thatWillson had none ofthe responsibilities orfunctions identified by the Taggart court as indicia of control. First, unlike a parole officerwho enforces the terms of parole, Willson’s responsibilities included only being aware of Foe’s “schedule ofcourt appearances” and aiding Foe “in attending all” court appearances. It cannot be

11No. 78848-5-1/12

said thatWilison was charged with supervising orenforcing any other aspects of Foe’s conduct. Second, if Foe failed to perform in accordance with the agreement, Willson’s only recourse would have been onlyto reportthat she was not in compliance. Nothing in the record indicates thatWillson would have been required to compel Foe’s performance. In fact, the evidence on record establishes thatWillson was unable to influence Foe’s behavior. There is no evidence to showthat Foe’s failure to perform would have triggered otherduties forWillson. In short, the facts ofthis case do not indicate thatWillson “took charge” of Foe. Foe also argues that, by removing herfrom the Oregon jail and transporting herto Washington, Willson undertook a dutyto “secure the safety” of Foe pursuantto RESTATEMENT (SECOND) OF TORTS 

## § 324 (1965). Foe’s reliance
on 

## § 324 here is misplaced. In the course ofdiscussing “the importance of ‘special relationships’ in relation to tort law,” our Supreme Court observed the following abouttort actions arising out ofa duty imposed by

## § 324: Sometorts, forexample, those involving thefailure to rescue orwarn after a gratuitous promise to do so, require some type of representation, either express or implied, by the promisor to the promisee or a third party, to create a special relationship

. . . The failure to do what is gratuitously promised, followed by injury stemming from thefailure, istheveryessence ofthesetypes oftorts. See RESTATEMENT (SECOND) OF TORTS

## § 324 (1965). In this context, the assurances made bythe promisorboth createthe relationship as well as define the duty, that is, ifthe promisorfails to do what [they] promised to the detriment ofthe promisee, the duty has necessarily

12No. 78848-5-1113 been breached. Importantly, the duty is limited to what is promised. The promise both creates and limits the duty. Cummins v. Lewis County, 156 Wn.2d 844, 867-68, 133 P.3d 458 (2006) (internal citations omitted). Here, there is no evidence in the record thatWilison made any gratuitous promises to Foe. Nor is there any evidence thatWilison failed to fulfill any promise to Foe that resulted in Foe being injured. Absent evidence thatWillson took charge of, or gratuitously made and broke a promise to, Foe, no special relationship can be said to exist between them. Furthermore, absent a special relationship, Willson had no duty, as a matterof law, to control Foe in an effortto prevent Foe from engaging in criminal activities. In failing to establish a duty, Foe cannot sustain a negligence claim againstWillson. The trial court did not err in summarily dismissing it.13 E. Negligent Entrustment Foe also argues thatthe trial court erred by dismissing the negligent entrustment claim because Willson knewthat she could not be entrusted with firearms. A party in control ofan instrumentality, such as a firearm, may be held liable fordamages resulting from the use ofthat instrumentalitywhen it is supplied orentrusted to someone who is incompetent. Bernethyv. Walt Failor’s, Inc~ 97 Wn.2d 929, 933-34, 653 P.2d 280 (1982); RESTATEMENT (SECOND) OF

13 Because all fourelements ofa negligence claim must be met, and Foe fails to prove thefirstelement, we need notaddress Foe’s arguments regarding the remaining elements.

13No. 78848-5-1/14

TORTS

## § 390 (1965).14 But the plain meaning ofthe word “entrustment” requires
some manner ofagreement orconsent, eitherexpress or implied, to relinquish control ofthe instrumentality in question.15 The facts here, even when viewed in Foe’s favor, do not showthatWillson entrusted Foe with firearms. The evidence establishes that, when police officers arrived, Foe ran inside Willson’s home and into a second-floor room. There is no evidence thatWilison instructed Foe to run anywhere, much less that particular
room. Once in that room, Foe found several ofWillson’s firearms. Butthere is
no evidence thatWillson affirmatively agreed to relinquish control ofthe firearms to Foe. Nor is there any evidence thatWillson’s firearms were loaded atthe time. Consequently, Foe’s negligent entrustment claim fails. The trial court correctly dismissed it. F. Negligent Infliction of Emotional Distress Foe argues thatthe trial court erred by summarily dismissing the negligent infliction ofemotional distress claim because the courtfailed to consider evidence of Foe’s symptomology.

14 Section 390 provides: One who supplies directly or through a third person a chattel for the use of anotherwhom the supplier knows or has reason to knowto be likely because of [their] youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to [themselves] and others whom the supplier should expect to share in or be endangered by its use, is subject to liabilityfor physical harm resulting to them. 15 See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY759 (2002) (defining “entrust” as “to conferatrust upon; commitorsurrenderto anotherwith a certain confidence regarding [their] care, use, ordisposal of.”); BLAcK’s LAW DICTIONARY674 (11th ed. 2019) (“Entrust” means “To give (a person) the responsibilityforsomething, usu[ally] afterestablishing a confidential relationship.”).

14No. 78848-5-1115

In addition to establishing the elements of negligence, a plaintiffasserting
a negligent infliction ofemotional distress claim must establish thatthe emotional distress is “manifested by objective symptomatology.” Hunsleyv. Giard, 87 Wn.2d 424, 436, 553 P.2d 1096 (1976). “[T]here must be objective evidence regarding the severity ofthe distress and the causal link” between the defendant’s actions and “the subsequent emotional reaction” ofthe plaintiff. Haubrvv. Snow, 106 Wn.App. 666,679,31 P.3d 1186 (2001). Here, Foe submitted only one exhibit—a Social SecurityAdministration Notice dated June 20, 2018—in an attemptto support this claim. While the Social Security Notice concluded that Foe met conditions for disability payments
as ofApril 2017, it did not correlate any of Foe’s symptoms to a diagnosable emotional disorderthatwas proximately caused bythe March 19-20 incidents giving rise to Foe’s claims againstWillson. Thus, Foe failed to satisfythe burden required. The trial court properly dismissed Foe’s negligent infliction ofemotional distress claim. G. Other Evidence and Willson’s Motion to Strike Lastly, Foe also claims otherdocumentation existthat satisfies the objective symptomology requirement, which Foe appends to the opening brief. Foe failed to presentthis documentation to the trial court in response to Wilison’s summaryjudgment motion. “On review of an ordergranting or deny a motion forsummaryjudgmentthe appellate courtwill consider only evidence and issued called to the attention ofthe trial court.” RAP 9.12; see also Herron v.

15No. 78848-5-1/16

Tribune PubI’c~ Co., 108 Wn.2d 162, 173 n. 4, 736 P.2d 249 (1987) (“On appeal ofa summaryjudgment orderwe cannot consider evidence not before the trial court.”). Thus, because Foe failed to bring this documentation to the trial court’s attention, we will not now consider it on appeal.16 We affirm.

WE CONCUR: 

# /

16 Foe asks us to considerthe additional documentation and seeks to “supplementthe record with furtherdocument should it be deemed helpful.” Willson movesto strike the documentation appended to Foe’s brief because Foe failed to present itto the trial court below. We grantWillson’s motion to strike.

16