IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ELIZABETH PITOITUA, Administratrix 

for the ESTATE OF HANA M. LETOI 

and Guardian for minors WESLEY 

TAVETE LETOI, SURESA SARAI 

LETOI and MELISSA PEPESINA 

LETOI,

Appellants,

v.

CLARENCE GAUBE, ABIGAIL 

INGRAM, JONATHAN NORMAN, QUI 

NGUYEN, JAMES ARBUCKLE, JULIE 

CORLEY, TYLER JEFFERYS, 

CLIFFORD FEJERAN, JESSICA 

D’ARCIS, AUSTIN GUTHRIE, in each 

of their personal capacities, 

Respondents.

No. 84359-1-I

DIVISION ONE

PUBLISHED OPINION

MANN, J. — Hana Letoi died after an altercation with her partner, Nomeneta 

Tauave, in the parking lot of the Tulalip Resort Casino (casino). Elizabeth Pitoitua, the 

administratix for Letoi’s estate, sued multiple casino employees that were present that 

night for the negligent failure to intervene and protect Letoi. The trial court dismissed 

the complaint for lack of jurisdiction based on tribal sovereign immunity and the absence
No. 84359-1-I/2

-2-

of a legal duty. Pitoitua appeals and argues that (1) tribal sovereign immunity does not 

extend to tribal employees, (2) the defendants owed, and breached, a common law duty 

to Letoi, and (3) the employees breached their duty under the voluntary rescue doctrine. 

We agree with Pitoitua that the trial court erred in dismissing the case based on tribal 

sovereign immunity. But the trial court did not err in concluding that the employees did 

not owe a legal duty to Letoi. We therefore affirm. 

I

On October 23, 2020, Letoi visited the casino with her partner Tauave. The 

casino is located on the federally charged municipality of Quil Ceda Village and owned 

by the Tulalip Tribes (Tribes). 

After drinking a large amount of alcohol, Tauave became physically violent 

toward Letoi while inside the casino. Tauave forcefully grabbed Letoi’s neck while they 

argued.1 At about 6:41 p.m., Clifford Fejeran observed the altercation between Letoi

and Tauave.2 Fejeran reported the altercation to Tyler Jefferys and Qui Nguyen but 

they said that the situation had “been cleared.” Nevertheless, security was informed by 

another casino employee that Tauave had not actually left the premises. Clarence 

Gaube and Jefferys saw Tauave but did not confront him or ask him to leave the casino. 

Gaube and Jessica D’Arcis saw another altercation at about 7:45 p.m. Abigail 

Ingram contacted Letoi and Tauave at about 7:46 p.m. She did not try to physically 

 1 Because this matter was decided on a CR 12(c) motion, our recitation of the facts is taken from 

the complaint and assumes all factual allegations are true. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 

830, 355 P.3d 1100 (2015).

2 All individuals, other than Letoi and Tauave, are casino employees that were working at the 

casino on October 23, 2020. 
No. 84359-1-I/3

-3-

separate the couple despite the obvious threat to Letoi. Instead, Ingram allowed Letoi

and Tauave to leave the casino together. 

At some point Nguyen, James Arbuckle, and Julie Corley were notified of 

Tauave’s assault of Letoi. 

At about 7:48 p.m., Tauave yelled for Letoi to come with him to their vehicle. 

Letoi and Tauave entered the vehicle at about 7:50 p.m. Nguyen told Gaube and 

Jonathon Norman to follow the couple, but only from a distance. At about the same 

time Norman heard loud arguing from the parking lot. Gaube saw Tauave grab Letoi by 

the neck and lower area and shake her. 

At 7:53 p.m., Tauave began to reverse the vehicle to leave the property after he 

saw Gaube watching the assault. Tauave then pushed Letoi out of the moving vehicle. 

Only then did Gaube call for police assistance. 

Letoi died two days later from hypoxic ischemic encephalopathy, that is, 

strangulation. 

Elizabeth Pitoitua, the administratrix of Letoi’s estate, and guardian for Letoi’s 

minor children, sued Gaube, Ingram, Norman, Nguyen, Arbuckle, Corley, Jefferys, 

Fejeran, D’Arcis, and Austin Guthrie (employees). The complaint alleged causes of 

action for negligence, negligent infliction of emotional distress, and loss of parental 

consortium. The complaint named each of the employee defendants in their “personal 

capacity only.” For example, for Gaube, the complaint stated:

Defendant Gaube is sued in his personal capacity only. The suit is 

brought against Defendant Gaube in his capacity as a tribal employee 

acting within the scope of his employment, and any judgment against him 

will not operate against the Tulalip Tribes. This is not a suit against 

Defendant Gaube in his official capacity. It is a suit against Defendant 
No. 84359-1-I/4

-4-

Gaube to recover for his personal actions, which will not require action by 

the Tulalip Tribe or disturb the Tribes’ property. 

The trial court granted the employees’ motion for judgment on the pleadings 

under CR 12(c). The trial court found that (1) Pitoitua’s allegations against the 

employees in their personal capacities failed because they owed no personal duty to 

Letoi as casino employees, even if the establishment itself owed her a duty and (2) the 

state court lacked subject matter jurisdiction because sovereign immunity barred the 

claims as the Tulalip Tribes were the real parties in interest, not the individual 

defendants. 

Pitoitua appeals.

II

We review a CR 12(c) dismissal de novo. Davidson v. Glenny, 14 Wn. App. 2d 

370, 375, 470 P.3d 549 (2020). Like a CR 12(b)(6) motion, the purpose of a CR 12(c) 

motion is to “determine if a plaintiff can prove any set of facts that would justify relief.”

P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 203, 289 P.3d 638 (2012). On a CR 12(c) 

motion, “[f]actual allegations contained in the complaint are accepted as true.” Silver v.

Rudeen Mgmt. Co., Inc., 197 Wn.2d 535, 542, 484 P.3d 1251 (2021). When applying 

the CR 12 standard, we grant the plaintiff the benefit of all reasonable inferences from 

the factual allegations in the complaint, as well as hypothetical facts consistent with the 

complaint. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830, 355 P.3d 1100 (2015).

Courts may dismiss under CR 12 for lack of subject matter jurisdiction. CR 

12(b)(1). The existence of subject matter jurisdiction over a party asserting tribal 

sovereign immunity is a question of law that we review de novo. Young v. Duenas, 164 

Wn. App. 343, 348, 262 P.3d 527 (2011). 
No. 84359-1-I/5

-5-

A

Pitoitua first argues that the trial court erred in dismissing the action for lack of 

subject matter jurisdiction because tribal sovereign immunity does not apply when the 

claims were asserted against the employees acting in their personal capacity. We

agree.

Tribal sovereign immunity arises under federal law. Young, 164 Wn. App. at 

348-49. An Indian tribe is subject to suit only where Congress has authorized the suit or 

the tribe has waived its immunity. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 

751, 754, 118 S. Ct. 1700, 140 L. Ed 2d (1998). “Sovereign immunity extends not only 

to the tribe itself, but also to tribal officers and tribal employees, as long as their alleged 

misconduct arises while they are acting in their official capacity and within the scope of 

their authority.” Young, 164 Wn. App. at 349.

“Once a defendant requests dismissal under CR 12(b)(1) on the basis of 

sovereign immunity, the party asserting jurisdiction has the burden of proving the other 

party has no immunity or waived it.” Long v. Snoqualmie Gaming Comm’n, 7 Wn. App. 

2d 672, 679, 435 P.3d 339 (2019).

We follow Lewis v. Clarke, 581 U.S. 155, 137 S. Ct. 1285, 197 L. Ed. 2d 631 

(2017), to determine whether sovereign immunity bars a suit against tribal employees. 

In Lewis, a tribal employee was sued after causing a car crash on an off-reservation

state highway. 581 U.S. at 159-60. The Court rejected the sovereign immunity 

defense, holding that the lawsuit was not against the tribal employee in his official 

capacity, but instead “is simply a suit against Clarke to recover for his personal actions, 

which ‘will not require action by the sovereign or disturb the sovereign’s property.’” 
No. 84359-1-I/6

-6-

Lewis, 581 U.S. at 163 (quoting Larson v. Domestic and Foreign Com. Corp., 337 U.S. 

682, 687, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949)). 

The Supreme Court held that to determine whether an action is one of official or 

personal capacity, “courts should look to whether the sovereign is the real party in 

interest to determine whether sovereign immunity bars the suit.” Lewis, 581 U.S. at 

161-62. “In making this assessment, courts may not simply rely on the characterization 

of the parties in the complaint, but rather must determine in the first instance whether 

the remedy sought is truly against the sovereign.” Lewis, 581 U.S. at 162.

The Ninth Circuit recently applied Lewis in Acres Bonusing v. Marston, 17 F.4th

901 (9th Cir. 2021), cert. denied, 142 S. Ct. 2836 (2022). In Acres Bonusing, Blue Lake 

Rancheria sued actors from a tribal court arising from a casino gaming system dispute. 

17 F.4th at 905. Entities sued included the tribal court judge, his law clerks, the clerk of 

the tribal court, tribal officials, and outside law firms and lawyers that represented the 

tribe. Acres Bonusing, 17 F.4th at 905. The Ninth Circuit concluded that a tribal 

government is “not the real party in interest” when the suit expressly seeks “money 

damages from the defendants in their individual capacities.” Acres Bonusing, 17 F.4th 

at 905. “Tribal sovereign immunity [will] not apply [where] the judgment will not operate 

against the Tribe.” Acres Bonusing, 17 F.4th at 909. According to the court, “[t]he 

critical question is ‘whether the remedy sought is truly against the sovereign.’” Acres 

Bonusing, 17 F.4th at 908 (citing Lewis, 581 U.S. at 162). 

“Whether the remedy sought is one against the sovereign or the individual officer 

turns on ‘[t]he distinction between individual-and official-capacity suits.’” Acres 

Bonusing, 17 F.4th at 908 (alteration in original) (quoting Lewis, 581 U.S. at 162). An 
No. 84359-1-I/7

-7-

official-capacity claim, although nominally against the official, “‘in fact is against the 

official’s office and thus the sovereign itself.’” Acres Bonusing, 17 F.4th at 908 (quoting

Lewis, 581 U.S. at 162). In contrast, officials are sued in their personal capacity when 

the plaintiff “‘seek[s] to impose individual liability upon a government officer for action 

taken under color of . . . law.’” Acres Bonusing, 17 F.4th at 909 (quoting Lewis, 581 

U.S. at 162). 

The Ninth Circuit held that tribal sovereign immunity did not bar this action for 

money damages against individual tribal employees and tribal agents in their personal 

capacities. Acres Bonusing, 17 F.4th at 908. In support, the court cited Lewis, stating, 

“[T]hat ‘an employee was acting within the scope of his employment at the time the tort 

was committed is not, on its own, sufficient to bar a suit against that employee on the 

basis of tribal sovereign immunity.’” Acres Bonusing, 17 F.4th at 909 (quoting Lewis, 

581 U.S. at 158). 

Before Lewis, the Ninth Circuit analyzed tribal sovereign immunity in Pistor v. 

Garcia, 791 F.3d 1104 (9th Cir. 2015). Pistor is instructive here. In Pistor, the plaintiffs 

were gamblers who “won a significant amount of money” at the Mazatzal Hotel and

Casino which is owned and operated by the Tonto Apache Tribe. Pistor, 791 F.3d at 

1108. Following the win, the chief of the tribal police department, the general manager 

of the casino, and the tribal gaming office inspector handcuffed the plaintiffs and

interrogated them. Pistor, 791 F.3d at 1108. The gamblers sued for damages under 

state tort law and 42 U.S.C. § 1983 for violating their Fourth and Fourteenth 

Amendment rights. Pistor, 791 F.3d at 1109. The Ninth Circuit held that tribal 

sovereign immunity did not bar the suit and reasoned that “any remedy will operate 
No. 84359-1-I/8

-8-

against the officers individually, and not against the sovereign.” Pistor, 791 F.3d at 

1108. 

An earlier Ninth Circuit decision, Maxwell v. County of San Diego, 708 F.3d 1075 

(9th Cir. 2013), is also in line with Lewis and Pistor. In Maxwell, the Ninth Circuit 

determined that two tribal employees could not invoke tribal sovereign immunity in a 

damages suit against them for providing allegedly deficient medical care following a 

shooting incident. Maxwell, 708 F.3d at 1087. The court held that the tribal paramedics 

“do not enjoy tribal sovereign immunity because a remedy would operate against them, 

not the tribe.” Maxwell, 708 F.3d at 1089. 

Applying Lewis, its progeny, and its predecessors, we conclude that tribal 

sovereign immunity did not extend to the casino employees. As in Lewis, the 

employees were acting within the scope of employment while the alleged negligence 

occurred. Yet the employees were sued in their individual and personal capacity only. 

Any remedy would expressly operate against them, not the Tribes. 

The employees argue that the case is distinguishable because the alleged 

negligence occurred on tribal land and the simultaneous suit in tribal court suggests an 

action against the Tribes, not employees. But the alleged conduct in Acres Bonusing

and Pistor also occurred on tribal land. Acres Bonusing, 17 F.4th at 905; Pistor, 791 

F.3d at 1108. And the plaintiffs in Acres Bonusing sued in tribal court in addition to

federal court. Acres Bonusing, 17 F.4th at 905. Further, case law does not suggest

that the presence of a suit in tribal court affects the analysis. 

The employees rely on Genskow v. Prevost, 825 F. App’x 388 (7th Cir. 2020), an 

unpublished Seventh Circuit Court of Appeals decision. There, the case involved 
No. 84359-1-I/9

-9-

alleged excessive force by tribal police officers removing an elder from a tribal meeting. 

Genskow, 825 F. App’x at 388. The Seventh Circuit affirmed that the real party of 

interest was the tribe, not the officers, meaning the case was barred by tribal immunity 

notwithstanding the individual capacity claim for excessive force. The court 

distinguished Lewis by concluding that the plaintiff was “seek[ing] to hold individual tribal 

officers liable for using excessive force while removing her from a meeting of the 

Nation’s governing body on tribal land.” Genskow, 825 F. App’x at 391.

Here, the employees argue that, like Genskow, this case is distinguishable from 

Lewis. They argue that, even though Pitoitua sued the employees in their personal 

capacity, the real case is against the tribal employees for their alleged negligence within 

the scope of their employment under the tribe on tribal land. And this case is more like

Genskow, where the plaintiff brought her suit as a tribal member over tribal events that 

took place on tribal land. 825 F. App’x at 391. 

But Genskow is distinguishable. Here, the employees were not engaging in tribal 

events and the alleged actions did not include the Tribes other than the Tribes’ 

ownership of the establishment. Pitoitua expressly sued the employees in their 

personal capacity based on their alleged negligence while acting as security at a casino 

owned by a tribe. Any remedy would not operate against the Tribes, but the employees 

themselves. 

We follow Acres Bonusing, and conclude that the trial court erred in dismissing 

Pitoitua’s claims based on a lack of subject matter jurisdiction based on sovereign 

immunity. 
No. 84359-1-I/10

-10-

B

Pitoitua next argues the trial court erred in concluding that the employees did not 

owe a duty of care to Letoi. We disagree. 

“A cause of action for negligence requires the plaintiff to establish (1) the 

existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a 

proximate cause between the breach and the injury.” Tincani v. Inland Empire 

Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). The existence of a 

legal duty is a question of law. Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 

(1984). 

A duty of care is “an obligation, to which the law will give recognition and effect, 

to conform to a particular standard of conduct toward another.” Centurion Props. III, 

LLC v. Chi. Title Ins. Co., 186 Wn.2d 58, 64, 375 P.3d 651 (2016). In determining 

whether a duty is owed, “a court must not only decide who owes the duty, but also to 

whom the duty is owed, and what is the nature of the duty owed.” Keller v. City of 

Spokane, 146 Wn.2d 237, 243, 44 P.3d 845 (2002). 

1

Pitoitua argues that the employees owed Letoi a duty of reasonable care to 

protect her from reasonably foreseeable injury. The employees argue that because

there is no special relationship between the employees and Letoi, there is no cognizable 

duty. We agree with the employees.

As a general rule, “in the absence of a special relationship between the parties, 

there is no duty to control the conduct of a third person so as to prevent [them] from 

causing harm to another.” Robb v. City of Seattle, 176 Wn.2d 427, 433, 295 P.3d 212 
No. 84359-1-I/11

-11-

(2013). The “special relationship” must be between the defendant and the victim or the 

defendant and the criminal for the imposition of liability. Robb, 176 Wn.2d at 433.

“[A] business owes a duty to its invitees to protect them from imminent criminal 

harm and reasonably foreseeable criminal conduct by third persons.” Nivens v. 7-11 

Hoagy’s Corner, 133 Wn.2d 192, 205, 943 P.2d 286 (1997). A business or business 

owner has a special relationship with his or her business invitees. Wilbert v. Metro. 

Park Dist., 90 Wn. App. 304, 308, 950 P.2d 522 (1998). 

Pitoitua alleged that the individual employee owed a duty of reasonable care. 

But there was no special relationship between the casino employees and Letoi. The 

casino itself may have owed Letoi a duty arising out of their special relationship as 

business and invitee, but this does not extend to the employees in their personal and 

individual capacity. 

2

Pitoitua argues that the employees’ failure to intervene or remove Tauave was a 

breach of their duty of reasonable care. Pitoitua also argues, for the first time on 

appeal, that the employees owed Letoi a common law duty of care and breached that 

duty through affirmative actions that harmed Letoi. Conversely, the employees argue 

that they had no legal duty to Letoi personally and individually as security personnel and 

did not commit any affirmative acts injuring Letoi. We agree with the employees.

“At common law, every individual owes a duty of reasonable care to refrain from 

causing foreseeable harm.” Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 550, 

442 P.3d 608 (2019). This duty “encompasses the duty to refrain from directly causing 

harm to another through affirmative acts of misfeasance.” Beltran-Serrano, 193 Wn.2d 
No. 84359-1-I/12

-12-

at 550. The common law distinguishes between torts based on “acts” and “omissions”;

refusing to impose liability for the latter. Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 

300, 545 P.2d 13 (1975). 

Misfeasance involves active misconduct resulting in positive injury to others and 

“necessarily entails the creation of a new risk of harm to the plaintiff.” Robb, 176 Wn.2d 

at 437. Conversely, nonfeasance is a “passive inaction or failure to take steps to 

protect others from harm.” Robb, 176 Wn.2d at 437. In Robb, the court held that the 

duty to prevent a third party’s criminal act may only arise absent a special relationship 

where the actor’s conduct constitutes misfeasance. 176 Wn.2d at 439.

In Robb, Seattle police officers failed to pick up and remove shotgun shells 

during a Terry stop. Robb, 176 Wn.2d at 429. The suspect returned after police left 

and used one of the cartridges to kill the plaintiff. Robb, 176 Wn.2d at 429. The court 

determined that the police did not commit misfeasance and thus had no independent 

duty to protect. Robb, 176 Wn.2d at 429. The court held that the duty to prevent a third 

party’s criminal act may only arise absent a special relationship where the actor’s 

conduct constitutes misfeasance. Robb, 176 Wn.2d at 439. The court reasoned that 

“the situation of peril . . . existed before law enforcement stopped [the subject], and the 

danger was unchanged by the officers’ actions.” Robb, 176 Wn.2d at 438. As a result,

the officers only committed nonfeasance, which is insufficient to create a duty to protect. 

Robb, 176 Wn.2d at 439.3 

This case is analogous. Here, the employees failed to intervene and deescalate 

the situation, however, that is nonfeasance and does not constitute an affirmative act. 

 3 We reached the same conclusion in a similar context in Garcia v. Joey’s 1983, Inc., No. 70395-

1-I, (Wash. Ct. App. Mar. 24, 2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/703951.pdf.
No. 84359-1-I/13

-13-

Tauave was also violent before and after the employees “made contact” with the couple. 

As in Robb, the situation of peril created by Tauave existed before the employees were 

involved and there is no allegation that the employees’ “contact” changed the danger. 

176 Wn.2d at 438.

The employees’ failure to intervene or deescalate the encounter was at best 

nonfeasance, and therefore, without a special relationship, there is no duty for the 

employees to violate. 

In her complaint, Pitoitua alleges that the “[d]efendants owed [Letoi] a duty of 

reasonable care to protect her from reasonably foreseeable injury” and that the

“[d]efendants breached their duty of reasonable care by failing to take appropriate deescalation steps in response to an obviously violent domestic encounter.” The 

complaint also stated that the “[d]efendants had a duty to exercise due care toward 

[Letoi]” and that “[d]efendants knew, or should have known, that their failure to exercise 

due care in the performance of safety and security functions would cause Plaintiff to 

suffer severe emotional distress.”

We decline to consider Pitoitua’s argument that certain actions by the employees 

were “affirmative acts” as they were not raised in her complaint. RAP 9.12. The 

complaint alleged that the employees’ failure to act was the breach of their duty, not an 

affirmative act of misfeasance. 
No. 84359-1-I/14

-14-

3

Pitoitua argues that the affirmative act of “clearing” the danger posed by Tauave 

triggered the rescue doctrine, making the employees’ liable for the subsequent harm to 

Letoi. We disagree.4

“The rescue doctrine recognizes that a duty to exercise reasonable care arises 

when a person undertakes ‘to render aid to or warn a person in danger.’” BeltranSerrano, 193 Wn.2d at 550 n.10 (quoting Brown, 86 Wn.2d at 299). Under the 

voluntary rescue doctrine, liability exists when the defendant makes the plaintiff’s 

situation worse by: (1) increasing the danger; (2) misleading the plaintiff into believing 

the danger had been removed; or (3) depriving the plaintiff of the possibility of help from 

other sources. Folsom v. Burger King, 135 Wn.2d 658, 676, 958 P.2d 301 (1998). “If a 

rescuer fails to exercise such care and consequently increases the risk of harm to those 

he or she is trying to assist, the rescuer may be liable for physical damage caused.” 

Folsom, 135 Wn.2d at 676.

Pitoitua’s complaint is based on the employees’ alleged inaction: (1) Gaube and 

Jeffreys’ failure to confront Tauave or ask him to leave, (2) Ingram made contact with

the couple but did not physically separate the couple and allowed them to leave 

together, and (3) Nguyen told Gaube and Norman to follow the couple from a distance. 

And in the complaint Pitoitua alleged that the employees failed to deescalate the 

situation. 

Pitoitua cannot show that the employees intervened in an attempt to rescue. The 

employees did not act and did not attempt to render aid. Nor did Pitoitua argue that the 

 4 Pitoitua did not argue the voluntary rescue doctrine in her complaint but argued it in response to 

the employees’ motion to dismiss. 
No. 84359-1-I/15

-15-

employees increased the danger, misled Letoi into believing the danger was removed, 

or removed the ability for help in another form. Folsom, 135 Wn.2d at 676. 

We conclude that Pitoitua’s voluntary rescue doctrine theory fails as it is not 

sufficiently pleaded, and the alleged facts do not support the theory. 

Affirmed.

WE CONCUR: