### FILED JUNE 24,2014 In theOfficeoftheClerkofCourt W AStateCourt ofAppeals, 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 ofthe ) Estate of Kay K. Mita, ) ) Appellants, ) ) PUBLISHED OPINION 

### v. ) ) GUARDSMARK, LLC, a Delaware limited ) liability company; and SPOKANE ) COUNTY, a municipal corporation ofthe ) StateofWashington, ) ) Respondents. ) BROWN, A.C.J.

- The estate of Kay Mita, along with Shizuko Mita and Floyd Mita individually, appeal the summaryjudgmentdismissal oftheir negligence suit against Spokane County (County) and Guardsmark, LLC, arising from thetragic death ofKay.1 The Mitas contend thetrial court erred in ruling the County and Guardsmark owed Kay

no duty ofcare. We agreewith the Mitas. Thus, we reverse and remand forfurther proceedings.

1 For clarity, we refertothe Mitas bytheirgiven names.No. 31457-0-111 Mila v. Guardsmark, LLC FACTS Becausewe are reviewing summaryjudgment, we presentthe facts in the light mostfavorable to the Mitas as the nonmoving party. On the morning of November26, 2007, 84-year-old Kay reported tothe Spokane County Superior Court as a potential juror. When he parked his car and walked to the courthouse, the temperature outside

was about 23 degreeswith a wind chill of 17 degrees Fahrenheit. The temperature remained in the 20s all daywhile snowaccumulated. Around 12:00 p.m., the trialjudge dismissed thejury panel with instructions to return by 2:00 p.m. Kay did not return to thejury room. Ajury 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, heradult son. Around 5:00 p.m., the trial judge's court clerk left the courtholJse and saw Kay in the parking lot as shewalked to her car. When the clerk asked Kay why he did not return to thejury room, he answered he had been searching for his carall afternoon but could notfind it. He declined her offers ofassistance and repeated he could notfind his

car. Upon hersuggestion, he started back to the courthouse to seek help from security personnel. In an interviewwith the Mitas' expertwitness, the clerk said Kay "seemed confused and bewildered." Clerk's Papers (CP) at 389, 402. But in her lateraffidavit supporting the County's summaryjudgment motion, the clerk said Kay "was coherent and interacted appropriately." CP at 250.



### 2No. 31457-0-111 Mita v. Guardsmark, LLC A Guardsmark security officer saw Kay enterthe courthouse and sit down on a bench nextto a heateratabout 5:10 p.m. At5:30 p.m., the officer ushered Kay outthe main doorand 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 bythe Countyfor nonemergencies, including missing person reports. Floyd told the call receiver Kay was missing. SCRC instructed Floyd to contactthe four local hospitals and call the reporting center back ifhe could notfind Kay. Floyd followed these instructions and called SCRC back atabout7:11 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 thejury room that afternoon and did not return home from the courthousethat evening, which was unusual because he was a very responsible person. SCRC asked Floyd if Kay had parked his car in ajury lot. Floyd answered affirmatively and described the car. Floyd told SCRC he had notsearched for Kay because Shizukowas very worried and he was afraid to leave herat home alone. Then, Floyd told SCRC he was '''very concerned' aboutthe fact itwas snowing and very cold outside." CP at665. U[T]he call receiver replied, with concern and urgency in hervoice,

... 'we will send out a policeman to immediately search foryour father.'" Id. The call receiver soon repeated SCRC would immediately send a law 

### 3

### No. 31457-0-111 Mita v. Guardsmark, LLC enforcement officerto search for Kay and contact Floyd when the officerfound Kay. Trusting these statements, Floyd forwent his own search efforts and waited for an officerto contact him about Kay. However, SCRC nevertransmitted the missing person report to dispatch and no lawenforcement officersearched for Kay. Meanwhile, at 

### 6:00 p.m., local lawstudents began using the courthouse to conduct mock trials. Guardsmark assigned two security officers tofacilitate the event while the courthouse remained locked. Around 

### 7:00 p.m., the officers saw Kay pacing outside the main door, stopping periodicallyto peer inside. The officers noted Kaywas cold, sluggish, and shivering because he was underdressed forthe ongoing snowstorm and subfreezing temperatures. The temperature outside was then about 26 degrees with a wind chill of 

### 19 degrees Fahrenheit. Kay wasthin, weighing just 

### 146 pounds, and

was wearing only corduroy slacks and a lightjacket. Thinking Kay was homeless or transient, the officers brought him inside the locked courthouse and seated him nextto the heater. As they did so, the officers saw Kay was very cold, shaking, and unableto communicate intelligibly. Around 

### 8:45 p.m., the officers unlocked the main doorforthe 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 of21 degrees Fahrenheit. That night, Kay died ofhypothermia, slumped against a garbage container nearthe front steps ofthe courthouse. By the time someone found him, he was covered in abouttwo inches ofsnow. Investigators found his car in thejuror parking area covered with snow. 

### 4

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

# 1 

# I The Mitas sued the County and Guardsmarkforwrongful death based on 

# i negligence. Both the County and Guardsmark moved successfully for summary judgment. arguing they owed Kay no duty ofcare. The Mitas appealed. ANALYSIS 

# 1 The issue iswhetherthe trial court erred in summarily dismissing the Mitas' 

# I negligence suit. The Mitas contend the County and Guardsmark owed Kay a duty of j care imposed by common law, specificallythe voluntary rescue doctrine and a special relationship. We review summaryjudgmentde novo, engaging in the same inquiry asthe trial court. Highline Sch. Dist. No. 401 v. PortofSeattle. 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoneyv. Shinpoch, 107Wn,2d 679, 683, 732 P.2d 510 (1987). Summary judgment is proper ifthe 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 ajudgment as a matter oflaw," 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); RangerIns. Co. v. Pierce County, 164Wn.2d 545,552, 192 P.3d 886 (2008). We construe all evidence and reasonable inferences in the light mostfavorable to the nonmoving party. Barberv. 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 reviewto evidence and issuesthe parties called to the trial court's attention. RAP 9.12.



### 5No. 31457-0-111 Mita 

### v. Guardsmark, LLC The threshold issue in a negligence suit is whetherthe defendantowed the plaintiffa duty ofcare, a legal question forthe court. Pedroza v. Bryant, 101 Wn.2d 226,228,677 P.2d 166 (1984); Bemethy

### v. WaltFailor's, Inc., 97 Wn.2d 929, 933, 653 P.2d 280 (1982). However, "summaryjudgment is inappropriate where the existence of

a legal duty depends on disputed material facts" requiring jury resolution. Afoa 

### v. Port ofSeattle, 176Wn.2d 460,466,296 P.3d 800 (2013); see Sjogren v. Props. ofPac. Nw., LLC, 118 Wn. App. 144, 148,75 P.3d 592 (2003). A duty is '''an obligation, to which the lawwill give recognition and effect, to conform to a particular standard of conducttoward another.'" Transam. Title Ins. Co. 

### v. Johnson, 103Wn.2d 409,413,693 P.2d 697 (1985) (quoting WILLIAM L. PROSSER, HANDBOOK OF THE LAwOF TORTS 

### § 53, at 331 (3d ed. 1964». Whether a dutyexists depends on "mixed considerations of'logic,

common sense, justice, policy, and precedent.'" Snyder

### v. Med. 

### Servo Corp. of

### E. Wash., 145Wn.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 whetherthe County owed Kay a duty ofcare. A local government is liable in tort "tothe 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 mandatethat public entities perform manyfunctions private entities do not. Munich V. SkagitEmergencyCommc'ns Ctr., 175 Wn.2d 871,887,288



### 6

# I No. 31457-0-111 Mita v. Guardsmark, LLC P.3d 328 (2012) (Chambers, J., concurring).2 Thus, where a plaintiffalleges the public entity breached a duty imposed by statute, ordinance, oradministrative 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 ora particular class of individuals. Id. at 888. Ifthe public entity owes this legislatively mandated duty to the general public, it does not owe the dutyto 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 plaintiffalleges 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 law dutyto a person it should reasonably foresee may be harmed by its breach. Id. at 891. Under common law, a defendant owes a plaintiffthe dutyto 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 plaintiffto 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 ofForks, 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. 

### 7No. 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 protectthe plaintifffrom it. See Robb v. Cityof Seattle, 176Wn.2d 427,436-37,295 P.3d 212 (2013); 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAwAND PRACTICE 

### § 2:2, at 37-38 (4th ed. 2013). Our case mainly concerns omissions or nonfeasance. Ourfocus is the voluntary rescue doctrine and a special relationship.4 An actor generally has no duty to rescue a stranger. Folsom v. BurgerKing, 135 Wn.2d 658, 674, 958 P.2d 301 (1998). But underthe 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 orwarn the person in need, and (2) the person in need reasonably relies on the promise ora third person who reasonably relies on the promise. Osborn v. Mason County, 157Wn.2d 18,25-26, 134 P.3d 197 (2006); Folsom, 135Wn.2d at 675-77; Chambers-Castane"s v. King County, 100Wn.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 PHYSICALAND EMOTIONAL HARM 

### §§ 42(b), 43(c) (2012). The person in need may reasonably rely on the promise if it induces him or herto "refrain from seeking help elsewhere." Folsom, 135Wn.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, 157Wn.2d at 26. The third person, in turn, may reasonably rely on the promise if it induces him or herto "refrain from acting on ... behalf' ofthe person in need. Chambers-Castanes, 100Wn.2d at285 n.3; accord Brown, 86 Wn.2d at 299-300. "[Either] person may reasonably rely on explicit or implicit assurances." Osborn, 157Wn.2d at26; Brown, 86 Wn.2d at 301. Additionally, an actorowes a common lawdutyto a person with whom he orshe has a special relationship. Folsom, 135Wn.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 herapartfrom the general public, {2} the entity makes

an express assurance, and (3) the personjustifiably relies on the assurance. Taylorv. 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 itshould reasonably foresee may be harmed by its breach. Bratton v. Welp, 145Wn.2d 572,577,39 P.3d 959 (2002); Chambers-Castanes, 100Wn.2d at286. A public entity may have privitywith a person even ifit does not communicate with him or her personally. Cummins v. Lewis County, 156Wn.2d 844, 854,133 P.3d 458 (2006); Bratton, 145Wn.2d at577. A public entity makes an express assurance when ittells a person it has sent orwill send a lawenforcement officer. Munich, 175Wn.2d at 884; Bratton, 145Wn.2d at 577; Bealv. CityofSeattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998); Chambers-Castanes, 100Wn.2d at 287. Justifiable reliance is a factual



### 9No. 31457-0-111 Mita v. Guardsmark, LLC question not generally amenable to summaryjudgment. Munich, 175 Wn.2d at 879; Beal, 134Wn.2d at 786-87. The County had direct contactwith 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 enforcementofficerto search for Kay and contact Floyd when the officerfound Kay. Floyd reasonably relied on this promise because it induced him to forgo his own search efforts and waitfor an officerto contact him about Kay. 

### In his vulnerable state, Kay reasonably relied on his immediatefamily membersto find him, thereby establishing privity of reliance between him and Floyd. And, because SCRC should have reasonably foreseen Kay might be harmed if itfailed to send an officer to search for him, the County had privity with Kay setting him apartfrom the general public. Therefore, the Mitas argue, the County owed Kay a common law duty underthe voluntary rescue doctrine and a special relationship. The County disputeswhether SCRC promised to send aid to Kay. But in this summaryjudgmentappeal, we viewthe facts mostfavorably tothe Mitas asthe

S The County invites us to ignore all evidence ofthis conversation because it is hearsay. We cannot decidethis issue because the trial court admitted the evidence for purposes ofsummaryjudgment and the County did not cross-appeal that ruling. Even so, the County is incorrect. The Mitas did not offerthe out-of-court statements to prove the truth ofthe mattersthey 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 madetothe County are admissible to showwhat information he provided that prompted it to make an express assurance. See ER 801(c).

10

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

### nonmoving party. Whether SCRC made the promise is, ofcourse, a material fact leftfor further summaryjudgment proceedings ortrial. Ourfocus is on whetherthe facts viewed mostfavorably to the Mitas raise a legal duty underthe voluntary rescue doctrine and a special relationship, and we conclude under ourstandard of review that they do. Therefore, the trial court erred in summarily dismissing the Mitas' negligence suit againstthe County. Next, we turn to whether Guardsmark owed Kay a duty ofcare. Underthe voluntary rescue doctrine, an actor owes a duty to a person he orshe should know is in need if (1) the actorvoluntarily undertakes to aid orwarn the person in need, and (2) the undertaking increases the risk ofharm to the person in need. Fa/sam, 

### 135 Wn.2d at 675-77; Brown, 

### 86 Wn.2d at 299-300; see 

### RESTATEMENT (SECOND) OFTORTS 

### § 323(a); RESTATEMENT(THIRD) OFTORTS: LIABILITY FOR PHYSICALAND EMOTIONAL HARM 

### § 42(a). But aspecial variation ofthis rule is more relevant here. An actor owes a duty to a person who reasonably appears imperiled and incapable ofadequately caring for himselfor herself if (1) the actorvoluntarily takes charge ofthe 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) OFTORTS 

### § 324(b); RESTATEMENT (THIRD) OFTORTS: LIABILITY FOR PHYSICALAND 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

11No. 31457-0-111 Mila v. Guardsmark, LLC injury, damage, or loss" without limiting it to the risk ofdeath).6 The helpless person may be imperiled by a "force of nature" and incapable of adequately caring for himselfor herselfbecause ofage 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, aftersuccessfully removing the helpless person from some peril, unreasonably put him or her "back into the same peril, or into a newone." RESTATEMENT (SECOND) OF TORTS 

### § 324 cmt. g. Doing sowould leave the helpless person in a worse situation than before, and thereby increases the risk of harm to**h~m** or her, becausethe assistance "misle[d the helpless person] into believing the danger had been removed" and meanwhile "depriv[ed him or her] ofthe possibility of help from

6 The Restatement (Second) of Torts 

### § 324(b) provides, Onewho, being under no dutyto do so, takes charge ofanotherwho is helpless adequatelyto aid or protect himselfis subjectto liabilityto the otherfor any bodily harm caused to him by[:] (b) the actor's discontinuing his aid or protection, ifby so doing he leavesthe other in a worse position than when the actortook charge of him. Seea/so RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICALAND EMOTIONAL HARM 

### § 44{b). While ourcourts 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, 83Wn. App. 857, 874, 924 P.2d 940 (1996). Therefore, we do not hesitateto apply 

### § 324(b) here. 7 Cf. French v. Chase, 48 Wn.2d 825,830,297 P.2d 235 (1956) (requiring a reasonable appearance ofimminent peril in a differentvariety ofthe rescue doctrine applicable where an injured rescuer seeks compensation from a person who caused the danger requiring rescue); McCoy v. Am. SuzukiMotorCorp., 136Wn.2d 350, 355, 961 P.2d 952 (1998) {explaining the imminent peril requirement, likethe otherelements in 12No. 31457-0-111 Mita v. Guardsmark, LLC othersources." Fo/som, 135 Wn.2d at676; 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 ofsuitable 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 ofadequately caring for himselfbecause ofage and other circumstances. By bringing him insidethe locked .courthouse and seating him nextto the heaterfortwo hours, Guardsmarktook charge ofKay, intending to assist him in confronting the peril. But aftersuccessfully removing Kay from this peril, Guardsmark put him back outsidethe locked courthouse intothe same peril, or into a newone. 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 dangerand meanwhile deprived him ofan opportunityto seek help outside the locked courthouse. Therefore, the Mitas argue, Guardsmark owed Kay a common law duty underthe voluntary rescue doctrine. Guardsmark disputes whether Kay reasonably appeared imperiled and incapable ofadequately caring for himself. But in this summaryjudgment appeal, we viewthe facts mostfavorably to the Mitas as the nonmoving party. Whether Kay reasonably

that variety ofthe rescue doctrine, exists partlyto negatethe argumentthatthe rescuer 13No. 31457-0-111 Mita v. Guardsmark, LLC appeared this way is, ofcourse, a material fact leftforfurther summaryjudgment proceedings ortrial. Ourfocus is on whetherthe facts viewed mostfavorably to the Mitas raise a legal duty underthe voluntary rescue doctrine, and we conclude under our standard ofreviewthat they do. Therefore, thetrial court erred in summarily dismissing the Mitas' negligence suit against Guardsmark. The County and Guardsmark urge us to affirm fortwo additional reasons. First, the County and Guardsmark arguethey could not have reasonably foreseen Kay's death. Whether some general form ofharm was foreseeable is an issue concerning the existence ofa 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 ofa duty. We do not decidethis foreseeability ofdeath 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 ifthey owed one to Kay. We do not decidethis breach ofduty issue because the parties did not raise it on summaryjudgment. Reversed.

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

Lawrence-Berrey,

assumed the risk of injury in confronting the danger requiring rescue). 14