1LED COURTOF APPEALS IN THE COURT OF APPEALS OF THE STATE OF A9SPifGTON DIVISION II JOYCE M. SMITH, individually and as Personal Representative for the Estate ofJames W. Smith; IZETTA DILLINGHAM, as Limited Guardian Ad Litem for the minor children, JA' MARI SMITH, JANAJA SMITH, and JAMAE SMITH; and SHAREE DAMMELL, as Limited Guardian Ad Litem for the minor child SHALYSE SMITH, Appellants,

V. WASHINGTON STATE DEPARTMENT OF CORRECTIONS; and JOHN AND JANE DOE 1- 10) 

### 2015 AUG 2f PM -12: 53 

### Sj(POT g1NGT0N BY,— E UTY

PUBLISHED OPINION

MELNICK, J. — Joyce Smith, individually and in her capacity as personal representative
of the estate of her husband James Smith,' 

### appeals from the trial court's grant of summary judgment in the Department ofCorrections' ( DOC) favor. The Estate argues that DOC negligently 

### supervised an offender on community custody, causing the offender to murderJames Smith. We 

### conclude that because DOC promptly issued an arrestwarrant forthe offender after he absconded and it had no information about his whereabouts, DOC had no furtherdutyto control the offender. 

### Additionally, the Estate failed to establish a prima facie case ofproximate cause for any alleged negligent supervision beforethe offenderabsconded. Accordingly,we affirmthetrial court' s grant 

### ofsummaryjudgment to DOC.



### For the purpose of clarity, we will refer to the appellants collectively as " the Estate" and will refer to James Smith individually 

### by name. We intend no disrespect.45479 - 3 - II FACTS I. BACKGROUND 

### Antwane Goolsby pleaded guilty to a charge ofconspiracy to commit robbery in the first degree. He received a sentence of 56.25 months in prison and. 18 to 36 months of community 

### custody. Goolsbywas released from prison onJanuary21, 2009. Judith Lang,aDOC community corrections officer, supervised Goolsby' s community custody. Lang understood that Goolsby was a " high risk offender" and she was " skeptical about his] motivation for change." Clerk' s Papers ( CP) at 62. Goolsby had gang affiliations, mental health issues, and an extensive criminal history.2 

### Although Goolsby required mental health medications, he had not been on his medication for a month before his release. Because of his
criminal history and his " behaviors while incarcerated," 

### Lang believed that Goolsby was unsuitable to be released in the community. CP at 723.

DOC categorized Goolsby as a " High Violent, untreated, Level II Sex Offender." CP at 300. DOC requires its officers to have three " face to face" contacts and one " collateral" contact
per month with offenders at this level. CP at 180. Two ofthe three " face to face" contacts must 

### be outsidethe DOC office. CP at 180. At no time during Goolsby' s community custody did Lang
contact Goolsby in person outside the DOC office. 

### Goolsby received no mental health
medications.

2 

### Goolsby's criminal history included prior convictions for rape in the third degree, violation of the Uniform Controlled Substances Act, failure to register as a sex offender, unlawful possession of a firearm in the second degree, and several misdemeanors.
245479 - 3 -II II. GOOLSBY' S COMMUNITY CUSTODY 

### The terms ofGoolsby' s community custody forbade him from using drugs or associating 

### with drug users. He had to obey all laws and all DOC' s instructions. Lang instructed Goolsbyto 

### report to DOC daily,to stay in DOC - approved housing, andto stay in King County. Goolsby had inconsistent compliance. 

### Goolsby reported to DOC on most days when he

was not detained.' 

### Goolsby also entered a chemical dependencytreatment program, but failed to
attend most.of his sessions. 

### Goolsby lied to DOC about where he resided; he never stayed in a DOC - approved location. Instead, he stayed at a motel where he associated with a fellow offender
and drug user. 

### Goolsby may also have been " prostituting girls out and/or dealing from motel room." CP at 54. 

### DOC arrested and detained Goolsbytwice forviolating his community custodyterms. On 

### his first day ofcommunity custody, January 22, 2009, Goolsby walked away from the homeless 

### shelterwhere Langhad left him. DOC requested awarrantfor Goolsby's arrest.4 Fourdays later,
when Goolsby reported to DOC, he was arrested. On that same day, before his arrest, Goolsby 

### submittedto adrug testthat came backpositive formarijuana. Goolsbywas detained until aDOC hearing on February 18. 

### The hearing officer found Goolsby guilty ofviolating his community 

### custody conditions, and imposed 21 days confinement as a sanction, with credit for time served.

DOC indicated that some of Goolsby's failures to report may have been because he was legitimately,busy handling DOC requirements." 

### CP at 56. Additionally, it is noted in the report 

### thatGoolsby's illiteracywas causing him problems accomplishing tasks. 4 Both ofthe warrants for Goolsby's arrest were administrative secretary's warrants that may be served either by law enforcement or by a DOC community corrections officer. See RCW 9. 94A.716( 1).
345479 - 3 -II 

### Lang alerted the DOC Community Response Unit (CRU) in Tacomathat Goolsbywas out ofjail
and could not be in Pierce 

### County. 5 

### Goolsby's second arrest occurred on March 6, when a DOC agent visited Goolsby at his motel room. There, a man later identified as a fellow gang member of Goolsby' s ran to the toilet
and attempted to flush a baggie containing cocaine. Goolsby attempted to block the agent from recovering the baggie. The DOC agent immediately detained 

### Goolsby. Pending Goolsby' s 

### violation hearing, Lang reported to the hearing officer in a report of "Alleged Violations" that Goolsby' s " activities outside the office are indicative ofhis continued criminal thinking," and that his " behavior and his recent affiliations" are " truly a concern for community safety." CP at 300. Lang recommended that Goolsby be sanctioned to 60 days confinement. Instead, the hearing
officer imposed 16 days as a sanction, with credit for time served. Because he had served all of his time for the violation, Goolsby was released on March 23 after the 

### hearing. DOC warned 

### Goolsby not to reside in a motel and Goolsby stated that he intended to " reside homeless in Seattle." CP at 53- 54. Goolsby' s last contact with DOC occurred on April 10. 

### On that day, a DOC officer
confronted Goolsby because he had been 

### lying about staying in a DOC - approved shelter. The 

### officerwarned Goolsbythat "failureto reside at [the shelter] would result inviolation and possibly
arrest." CP at 50. 

### Goolsby agreed to stay at the shelter, but absconded from supervision the 

### following day. On April 16, DOC requested an arrestwarrantfor Goolsby,which issuedthe next day. Goolsbywas missing until August 5, when he shot and killed James Smith in Tacoma.

5 A CRU is responsible for cooperating with law enforcementto apprehend DOC violators. M45479 - 3 -II III. PROCEDURAL HISTORY

The Estate sued DOC, claiming that DOC had negligently supervised 

### Goolsby. The Estate' s expert, William Stough, declared that " intensive supervision, combined with treatment" 

### has astatistically significant downward effecton recidivism. CP at 154. Stough opined that DOC hadfailedto enforce Goolsby's community custodyconditions andthatDOC' s omissions "directly led to him absconding, supervision," and led to James Smith' s death. CP at 157. Stough further opined that if DOC had done more to enforce Goolsby' s conditions, " 

### Goolsby would have been
under control or incarcerated and would not have absconded and ` blown off supervision completely." 

### CP at 157. Finally, Stough opinedthat strict enforcement ofsupervision and holding 

### offenders accountable prevents absconding and recidivism and would have done so in this case. 

### DOC moved for summary judgment dismissal of the Estate' s claim for negligent supervision. 

### After hearing argument and considering the proffered evidence both in support of and in oppositionto the motion,thetrial court granted DOC' s motionfor summaryjudgment. The Estate appeals. ANALYSIS The Estate arguesthat DOC negligently supervised Goolsby, causing him to murder James Smith. " The elements of a negligence cause of action are the existence ofa duty to the plaintiff, breach ofthe duty, and injury to plaintiffproximately caused by the breach." 

### Hertog ex rel.S.A.H.

v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 ( 1999). 

### Initially, DOC owed a duty to 

### supervise Goolsby; however that duty ended when Goolsby absconded supervision and DOC issued a warrant for his arrest. DOC is not liable for its alleged inaction after Goolsby absconded because its 

### duty to supervise him ended. As for DOC' s alleged negligent supervision before 

### Goolsby absconded,we conclude that the Estate failed to establish aprimafacie case ofproximate

E45479 - 3 -II

cause. 

### Therefore, the trial court did not err by granting DOC' s summary judgment motion to dismiss the Estate' s negligent supervision claim. I. STANDARD OF REVIEW We review atrial court's decisionto grant summaryjudgment de novo. Hertog, 138 Wn.2d
at 275. 

### Summaryjudgment is appropriate where there are no genuine issues ofmaterial fact and the moving party is entitled tojudgment as a matter of law. CR 56( c); Hertog, 138 Wn.2d at 275. We consider all facts in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d 805 ( 2005). But we do not weigh evidence or resolve factual disputes. Babcock v. State, 116 Wn.2d 596, 598- 99, 809 P.2d 143 ( 1991). 

### The parties beardifferent burdens in asummaryjudgmentmotion. The moving partybears the burden ofshowing thatthere is no genuine issue ofmaterial fact. Atherton Condo.Apartment— Owners Ass' n Bd. ofDirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990). If the 

### moving party is the defendant and meets its burden,6then the inquiry shifts to the partywith the burden of proof at trial to present admissible evidence to establish a material factual dispute. 

### Atherton, 115 Wn.2d at516; Youngv. KeyPharm., Inc., 112 Wn.2d216, 225, 770 P.2d 182 (1989). If,at this point,the plaintiff `fails to make a showing sufficient to establish the existence of an 

### elementessential to thatparty's case, and on whichthat partywill bearthe burden ofproofattrial,' then the trial,court should grant the motion." 

### Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)). In such a situation, a failure
of proof "`

### concerning an essential element ofthe nonmoving party's case necessarily renders all
other facts immaterial"'. 

### Young, 112 Wn.2d at225 (quoting Celotex Corp.,477 U.S. at 322-23).

6 The moving defendant may meet this initial showing "` 

### by pointing out"' to the court that there is an absence of evidence to support the nonmoving party' s case. Young, 112 Wn.2d at 225 n.1 quoting Celotex 

### Corp., 477 U.S. at 325).45479 - 3 - II Circumstantial evidence is sufficient to establish aprimafacie case ofnegligence if it affords room for ... reasonable minds to conclude that there is a greater probability thatthe conduct relied upon was the proximate cause ofthe injurythan there isthat it was not."' Hernandez v. W.Farmers Assn, 76 Wn.2d 422, 426, 456 P.2d 1020 ( 1969) ( quoting Wise v. Hayes, 58 Wn.2d 106, 108, 361 P.2d 171 ( 1961)); 

### Martini v. Post, 178 Wn.App. 153, 165, 313 P. 3d 473 ( 2013). Butthe nonmoving party may not rely on speculation or argumentative
assertions that unresolved factual issues remain. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 1997). Il. DUTY 

### The Estate argues that DOC had a duty to exercise reasonable care to supervise Goolsby and protect the public from his harmful propensities. DOC concedes that it initially had a dutyto 

### supervise Goolsby, but argues that this duty ended when Goolsby absconded from community custody and awarrant issued for his arrest. We agree with DOC.

The existence of a 

### duty is a question of law. Hertog, 138 Wn.2d at 275. Generally, an actor " has no 

### duty to prevent a third person from causing physical injury to another. Taggart v. State, 118 Wn.2d 195, 218, 822 P. 2d 243 ( 1992). An important exception to this rule exists when a special relation exists between the actor and the third person which imposes a duty upon the
actor to control the third person' s conduct." Taggart, 118 Wn.2d at 218 ( quoting RESTATEMENT SECOND) OF TORTS § 315 ( 1965)). One example of such a special relation is the relationship between a parole officer and a parolee. Taggart, 118 Wn.2d at 219. Because a parole officertakes 

### charge ofaparolee, our Supreme Court imposes a special duty on parole officers: When aparolee' s criminal history and progress during parole showthatthe parolee 

### is likelyto cause bodily harmto others ifnotcontrolled,the parole officer is under a duty to exercise reasonable care to control the parolee and to prevent him or her from doing such harm.
745479 - 3 - II Taggart, 118 Wn.2d at 220; see RESTATEMENT ( SECOND) OF TORTS § 319 ( 1965). Community 

### corrections officers havethe same dutywith regard to the offenders they supervise. Joyce v. Dep't ofCorr., 155 Wn.2d 306, 316- 17, 119 P. 3d 825 ( 2005). 

### DOC " assume[ s] the duty ofsupervising an offender' s conduct" and " has the ability to take steps to ensure, as a condition ofrelease, that the offender complies with the conditions of release." Joyce, 155 Wn.2d at 316. 

### Recently, Division One ofour court considered whether DOC continues to owe a duty to supervise an offender after the offender absconds and DOC issues a warrant for his arrest. Husted

v. State, 187 Wn. App. 579, 348 P. 3d 776, 778 ( 2015). The Husted court recognized that DOC' s 

### abilityto exercise control overan offender is dependent onthe continuing nature ofthe relationship between an offender and his or her community corrections officer. Husted, 348 P. 3d at 780. Where an offender absconds and a warrant issues for his arrest, the offender is no longer subject 

### to the community correction officer' s control because the offender cannot be monitored, given direction, or sanctioned. Husted,348 P. 3d at 780. Division One concluded that "where an offender absconds from supervision and a warrant is issued for his or her arrest, the requisite continuing 

### relationship no longer exists and the duties associated with the take charge relationship are terminated unless and until the person is apprehended." Husted, 348 P.3d at 781. 

### We agree with Division One that DOC' s dutyto supervise an offender is dependent on the existence ofa continuing relationship between the offender and the community corrections

N.45479 - 3 - II 

### officer.7 In this case, the special relationship between the offender and DOC terminated once Goolsby absconded and an arrest warrant issued.

Here, Goolsby' s last contact with DOC occurred on April 10. DOC issued a warrant for Goolsby' s arrest within one week. DOC had no contact with Goolsby and no information about his whereabouts until August 5, when he shot and killed James Smith in Tacoma. Under the facts 

### of this case, DOC' s ongoing relationship with Goolsby ended when he absconded community supervision and DOC issued awarrant for his arrest. The take charge relationship ceased to exist
and there are no facts to support the reestablishment of the special relationship. Therefore, we 

### concludethatDOCdidnothaveadutytosuperviseGoolsbyatthetime hemurderedJames Smith.

This conclusion, however, does not end our analysis. It is undisputed that DOC owed a 

### dutytosupervise Goolsbyforcompliancewiththe court'ssentencing orderpriortohisabsconding. Therefore;we must still considerthe Estate' s argumentthat DOC' s breach ofits dutyto supervise 

### Goolsby, prior to him absconding and a warrant issuing, was a proximate cause James Smith's murder.

We want to make clear that, we are not adopting Division One' s holding that the relationship cannot be reestablished " unless and until the person is apprehended." Husted, 348 P. 3d at 781. A 

### court evaluating whether DOC owes an ongoing duty to supervise an offender must determine whether, underthe facts ofthe particular case, the offender and his or her community corrections officer have a continuing relationship that enables DOC to exercise meaningful control over the offender. 

### We note that there may be circumstances short of apprehending the, offender that 

### arguably could reestablish DOC' s dutyto supervise anoffender. Forexample, DOC cannot ignore information about an absconding offender' s whereabouts to avoid reestablishing a continuing relationship with the offender. But, such facts are not present here, and we decline to speculate what facts would constitute that situation. 045479 - 3 - II III. CAUSATION$ We now address whether the Estate' s evidence raised an issue of material fact regarding 

### whether DOC' s alleged breaches of its duty to supervise, prior to Goolsby absconding and a warrant issuing, caused James Smith' s death. The Estate seems to argue that DOC proximately
caused James Smith' s death based on two theories: if DOC had not breached its duty, Goolsby either would have been in custody at the time ofthe murder or he would have been rehabilitated. No genuine issue ofmaterial fact exists regarding causation under either theory. 

### Proximate cause is generally a question forthe trier offact, but ifreasonable minds cannot differ, then it may be decided as a matter of law. Hertog, 138 Wn.2d at 275. Proximate cause consists oftwo elements: cause in fact and legal causation. Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 ( 1985). Cause in fact concerns the " but for" consequences ofan act: those events the act produced in a direct, unbroken sequence, and which would not have resulted had the act not 

### occurred. Hartley, 103 Wn.2d at 778. Legal causation rests on considerations oflogic, common
sense, policy, justice, 

### and precedent as to how far the defendant' s responsibility for the consequences ofits actions should extend. Hartley, 103 Wn.2d at 779. 

### DOC argued on summaryjudgment that its actions were not a proximate cause ofJames Smith's death. Specifically, it arguedthatthe connection between its conduct and James Smith's murderwas too speculative and indirectto impose liabilitybecausethere was no evidence that had 

### DOC acted differently, Goolsby would have been injail atthe time he murdered James Smith. By 

### pointing outthat there was no evidence ofcausation, DOC met its initial burden to showthat no material factual dispute existed. 

### Therefore, the critical inquiry is whether the Estate presented 

### 8 For purposes of this appeal, we assume without deciding that material factual issues exist regarding whether DOC breached its duty to supervise Goolsby before he absconded supervision and a warrant issued. 1045479 - 3 -II 

### evidence ofa sufficient quantity or qualityto raise a material issue offact as to whether Goolsby would not have killed James Smith if DOC had acted differently. 

### The Estate argues that DOC breached its duty regarding Goolsby in two ways, and that issues of material fact exist regarding whether these breaches caused Smith' s murder. First, the 

### Estate argues that DOC failed to properly sanction Goolsby for violations of his community custody conditions. 

### For instance, DOC should have asked the hearing officer to incarcerate Goolsby before April 10 for failing to live in approved 

### housing. The Estate argues that if DOC 

### had sought appropriate sanctions for Goolsby's violations, he would have been injail at the time of Smith' s murder.9 However, it is pure speculationthat ifDOC had reported Goolsby'sviolations before April 10 that he would have been injail almost four months laterwhen he murdered James Smith. DOC reported two of Goolsby' s violations. 

### At the first violation hearing, the hearing officer imposed 21 days confinement as a sanction; and, at the second violation hearing, the hearing officer 

### imposed 16 days confinement as a sanction, despite Lang's recommendation for a sanction of60 days confinement. 

### The Estate presented no evidence suggesting that if DOC had reported 

### Goolsby's violations before April 10, he would have been sanctioned with confinement of over 

### 9 The Estate claims Stough testified that Goolsby would have been injail at the time of Smith's murder if DOC had engaged in proper supervision. However, the Estate provides no record citation for this testimony and Stough' s declaration does not contain such testimony. Even if it 

### did, Stough is not qualified to give an opinion on what a hearing' s officer might have done at a specific SRA (Sentencing Reform Act of 1981) violation hearing. See Estate ofBordon ex rel. Anderson v. Dep' t of Corr., 122 Wn. App. 227, 246-47, 95 P. 3d 764 ( 2004) ( affirming 

### determinationthat Stough is notqualifiedtotestifyaboutwhatajudgewoulddo in aSRAviolation 

### hearing, where he is not ajudge, has never supervised an SRA offender, and has never attended an SRA violation hearing). An expert' s opinion must be based on facts. Theonnes v. Hazen, 37 Wn.App. 644, 648, 681 P. 2d 1284 ( 1984). " An opinion ofan expertwhich is simply a conclusion or is based on an assumption is not evidence which will take a case to the jury." Theonnes, 37 Wn.App. at 648. 

### In any event, we will address the Estate' s argument. 1145479 - 3 - II 115 days. Any suggestion that Goolsbywould have committed additional violations and received further sanctions is pure speculation which is insufficientto create a genuine issue ofmaterial fact. Hungerford v. Dep' t ofCorrs., 

### 135 Wn.App. 240, 254, 139 P.3d 1131 ( 2006). Second,the Estate argues that DOC negligentlyfailed to gain control overGoolsbythrough its supervision. The Estate relies on Stough' s testimony that appropriate supervision reduces 

### recidivism and that ifDOC had properly supervised Goolsby, he would not have absconded. However, we expressly rejected a similar recidivism argument in Hungerford, 135 Wn. App. 240. In Hungerford, Stough also testified that there was a correlation between recidivism
and supervision. 135 Wn. App. at 255. We emphasized that DOC " 

### does not have a duty enforceable in tort" to rehabilitate offenders. Hungerford, 135 Wn.App. at 256. As a result, we concluded:

Even if Hungerford could show that DOC' s lack of supervision contributed to 

### Davis' s recidivism,as amatterofpolicy,the connection betweenthe ultimate result and DOC' s action is too remote to establish liability. Accordingly, we hold that as a matter of law, DOC' s alleged failure to closely supervise Davis and rehabilitate him is not the legal cause ofHungerford - Trap' s death. Hungerford, 135 Wn.App. at 256. 

### Similarly, DOC' s supervision duties did not encompass a dutyto rehabilitate Goolsby or to somehow change his behavior such that he would not commit murder. As a result, we hold that there is no causal connection between DOC' s failure to control Goolsby and the fact that he 

### absconded orthe fact that he was willing to engage in criminal activity such as murdering James Smith. The Estate has failed to meet its prima facie case because it did not identify a theory of 

### causation and provide admissible evidence in support ofthattheory. The Estate relies on Stough's 

### declaration to show causation. But in reviewing the evidence in the light mostfavorable to the

1245479 - 3 -II Estate, we conclude that because the Estate failed to make a prima facie showing of causation, DOC was entitled tojudgment as a matter of law. 

### We affirm the trial court' s grant ofsummaryjudgment - in DOC' s favor.

We concur:



### IV axaj. J.

Lee, J.

13 Melnick, J. J