Lead Opinion
[As amended by order of the Supreme Court January 17, 2017.]
¶1 In 1992, we held that the State could be held liable for crimes committed by parolees if those crimes resulted from the State’s negligence in supervising the parolees. Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992). Today, plaintiffs ask us to extend Taggart and hold that a county jail can be held liable for crimes committed by a former inmate. However, the crimes in this case occurred well after the inmate left that jail—long after the county had the duty (or ability) to supervise the former inmate. Plaintiffs contend that the jail could have prevented the inmate from committing crimes after he was released, but a jail’s duty to supervise and control inmates during incarceration does not include a general duty to somehow pre
FACTS
¶2 Isaac Zamora was incarcerated at Skagit County Jail for nonviolent crimes from April 4, 2008, until May 29, 2008, when he was transferred to Okanogan County Corrections Center. Zamora then served the rest of his sentence at Okanogan County Corrections Center and was released on August 2, 2008.
¶3 On September 2, 2008, Zamora had a psychotic episode and went on a shooting spree in Skagit County. He ultimately killed six people and injured several others. Some of his victims and their families (plaintiffs) sued a number of parties, including Skagit County. The plaintiffs alleged that Skagit County was liable for Zamora’s actions because of its failure to “exercise . . . ordinary and reasonable care” while Zamora was incarcerated in Skagit County Jail several months prior to the shooting. Clerk’s Papers (CP) at 3868. The plaintiffs’ claims against the other institutions were either settled out of court or dismissed on summary judgment.
¶4 Plaintiffs contend that while Zamora was incarcerated in Skagit County Jail from April 4, 2008, until May 29, 2008, the jail failed to fully evaluate and treat Zamora’s mental illness. They argue that (1) Skagit County was on notice that Zamora was in need of mental health services, (2) if Zamora had received a thorough mental health evaluation, he would been diagnosed and prescribed treatment, (3) Zamora might have complied with treatment resulting from that evaluation, and (4) if Zamora had complied with that treatment, he might not have had the psychotic break that led to the shooting in September. For the sake of our analysis today, we will treat those allegations as true.
¶6 The Court of Appeals reversed. It held that there were material issues of fact as to whether Skagit County had a legal duty to the victims and whether a breach of that alleged duty was the proximate cause of the injuries to the victims. Binschus v. Dep’t of Coir., 186 Wn. App. 77, 81, 345 P.3d 818 (2015). We granted Skagit County’s petition for review. 184 Wn.2d 1001, 357 P.3d 665 (2015).
ISSUE
¶7 Did the trial court properly grant summary judgment to Skagit County because the county’s duty to control Zamora did not extend to the plaintiffs?
ANALYSIS
¶8 We review summary judgment orders de novo. Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. “All facts and reasonable inferences are considered in the light most favorable to the nonmoving party.” Id.
¶9 In this case, the trial court granted summary judgment to Skagit County because Skagit County had no duty to prevent Zamora from committing criminal acts after he was lawfully released from its custody. As explained below, we affirm the trial court. Under the Restatement, a
¶10 As a general rule, people and institutions are not responsible for preventing a person from physically harming others. Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983). However, there is an exception 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.’ ” Id. (quoting Restatement (Second) of Torts § 315 (Am. Law Inst. 1965)). Crucial to our analysis is the nature of that duty: “ ‘to control the third person’s conduct.’ ” Id. (emphasis added) (quoting Restatement § 315).
¶11 One of those special relationships that gives rise to a duty to control the third person’s conduct is the relationship between a jail and an inmate. Specifically, the jail-inmate relationship is often a take charge relationship, described in § 319 of the Restatement:
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Again, we note the nature of that duty: “to exercise reasonable care to control the third person to prevent him from doing such harm.” Id. (emphasis added).
¶12 We adopted the Restatement’s rule for take charge relationships in Taggart, 118 Wn.2d at 219-20. In that case, we held that parole officers have a take charge relationship with parolees. Id. at 220. We explained that the take charge duty is fundamentally about control: “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 her from doing such harm.” Id. (emphasis added). We
¶13 Importantly, the take charge duty is not without limitation. Throughout our case law, we have consistently reiterated a fundamental limit on duties arising from a take charge relationship: such a duty will be imposed “only upon a showing of a ‘definite, established and continuing relationship between the defendant and the third party.’ ” Taggart, 118 Wn.2d at 219 (quoting Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)); see also Joyce, 155 Wn.2d at 319-20.
¶14 Plaintiffs ask this court to greatly expand the take charge duty described above. Rather than imposing a duty to control a person’s conduct, plaintiffs contend that the take charge duty imposes a broad duty to “to use reasonable care to protect against reasonably foreseeable dangers [the offender] posed.” Resp’ts’ Suppl. Br. at 13, 20. In theory, this could include all reasonably foreseeable dangers, even those that might occur long after the take charge duty has ended. For support, plaintiffs point to language in Taggart and Joyce where we summarized the duty that results from a take charge relationship. Taken out of context, one could read the individual sentences as imposing such a broad duty. However, a thorough reading of those cases reveals that they did not create such a radical expansion of the take charge duty. The Restatement sections and our case law consistently explain the take charge duty is a duty to control, and that liability results from negligently failing to control, not failing to protect against all foreseeable dangers.
¶15 In Taggart, we held that parole officers have a take charge relationship with parolees, despite the fact that they
¶16 Plaintiffs point to one particular statement in Taggart where we did not emphasize control. We stated, “We conclude that parole officers have a duty to protect others from reasonably foreseeable dangers engendered by parolees’ dangerous propensities.”
¶17 The practical implications of imposing such a broad duty on jails are striking. By some estimates, the recidivism rate is well over 50 percent. See Matthew R. Durose, Alexia D. Cooper & Howard N. Snyder, U.S. Dep’t of Justice, Office of Justice Programs Bureau of Justice Statistics, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (2014), http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf [https://perma.cc/A4QF-84XQ]. Thus, one could argue that in almost any case, it is foreseeable that an inmate may commit another crime after release. Are jails civilly liable for those crimes if they failed to take adequate measures to prevent that foreseeable recidivism? Such an expansive interpretation is not supported by the Restatement sections or a thorough reading of our precedent.
¶18 Applying the rule from the Restatement sections, Skagit County owed a duty to exercise reasonable care to control Zamora to prevent him from doing harm. This duty was owed during the time when Skagit County had a take charge relationship with Zamora. Skagit County owed this duty to anyone who might foreseeably suffer bodily harm resulting from the failure to control Zamora. Skagit County did not owe such a duty for harms unrelated to its duty to control Zamora. The trial court correctly held that as a matter of law, the crimes Zamora committed after his lawful release were not a foreseeable consequence of any failure to control Zamora during incarceration. Thus, the trial court correctly granted summary judgment for Skagit County.
¶19 This is not to say that jails can never be liable for a former inmate’s actions. First, there may be situations in which a jail’s failure to control an inmate results in fore
¶20 Second, a jail could theoretically be liable for injuries caused by former inmates under a separate section of the Restatement that explains,
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to*583 another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
Restatement (Second) of Torts § 302B (Am. Law Inst. 1965). We have held that “Restatement § 302B may create an independent duty to protect against the criminal acts of a third party where the actor’s own affirmative act creates or exposes another to the recognizable high degree of risk of harm.” Robb v. City of Seattle, 176 Wn.2d 427, 429-30, 295 P.3d 212 (2013). While the trial court held that the jail’s alleged actions in this case do not rise to that standard,
¶21 Because we find that Skagit County had no duty to the plaintiffs, we do not reach the issue of whether its actions in April and May 2008 were the proximate cause of Zamora’s psychotic break in September 2008.
CONCLUSION
¶22 We affirm the trial court’s grant of summary judgment to Skagit County. Jails have a responsibility to control violent inmates while they are incarcerated, but they do not have a general duty to prevent such inmates from committing crimes after they are lawfully released from incarceration.
Zamora was briefly detained by Skagit County on August 5, 2008, but was released by a judge on his own recognizance the next day. The plaintiffs do not allege any negligence by the county during that time period.
We also quoted this statement in Joyce, but we did not broaden our holding from Taggart. See 155 Wn.2d at 316 (“We have answered all of the questions raised by the State about its duty before.’’). As in Taggart, the statement must be read in the context of the opinion, where we again discussed the nature of that duty: “[O]nce the relationship is created, it is the relationship itself which ultimately imposes the duty upon the government, and ‘the failure to adequately monitor and report violations, thus failure to adequately supervise the probationer,' may result in liability.’’ Id. at 319 (emphasis added and omitted) (quoting Bishop v. Miche, 137 Wn.2d 518, 526, 973 P.2d 465 (1999)).
The dissent criticizes us for focusing on the word “control” in § 319, but we might levy a similar criticism for their refusal to acknowledge the word altogether. Section 319 imposes “a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Restatement §319. We stand by our conclusion that the concept of “control” must be a part of any § 319 analysis.
The dissent contends that we focus solely on physical control and that any other action, such as transferring Zamora’s files to his new jail, was “categorically” outside of Skagit County’s § 319 duty. Dissent at 591. This is incorrect. Section 319 requires that jails “exercise reasonable care to control the third person to prevent him from doing such harm.” A variety of actions might be needed to control a person to prevent him or her from doing harm, and there is nothing in § 319 or this majority that limits that duty to physical control. However, there is a limit on the jail’s responsibilities under § 319; unfortunately, the dissent ignores that limit. By § 319’s language, jails have a duty to exercise reasonable care to control a person so as to prevent him or her from doing harm. We do not change that limit today; we simply abide by it.
The trial court dismissed the plaintiffs’ § 302B claim because the jail in this case did not commit an affirmative act, and the Court of Appeals affirmed. To the extent that respondents contend they raised this issue in their answer to the petition for review, we note that we granted only the petition for review; therefore, the § 302B claim is not before us.
Dissenting Opinion
¶23 (dissenting) — The issue presented is not whether counties should be subject to an expansive duty to
FACTUAL BACKGROUND
¶24 Because the duty imposed by § 319 requires a highly fact-specific inquiry, I present these additional facts to supplement the factual summary in the majority opinion. And as the nonmoving parties at the summary judgment stage, the plaintiffs are entitled to have “all facts submitted and all reasonable inferences therefrom” viewed in the light most favorable to them. Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992).
¶25 The records from Skagit County’s own jail and sheriff’s office indicate that Skagit County had known for years that Isaac Zamora suffered from mental health issues. See Clerk’s Papers (CP) at 3551 (“At this time we are aware that ISAAC ZAMORA does have some mental problems and his mom will be monitoring him, calling if there is any change.” (emphasis added)). The events surrounding Zamora’s incarceration in Skagit County Jail in the spring of 2008 reaffirmed this knowledge and also strongly indicated that his condition was worsening and becoming potentially dangerous.
¶27 By this time, Zamora’s mother was very concerned about his deteriorating mental health. Three days after Zamora was taken to jail, she wrote a letter to the Skagit County prosecutor, requesting that his sentence include “a mental health evaluation and treatment.” Id. at 142. She also spoke to a Skagit County corrections officer by phone that day, reporting that she was “afraid” of Zamora due to his mental illness and unpredictable behavior. Id. at 2580. Zamora’s mother reported he was “bi-polar and is aggressive [and] has anger problems,” and “begged” the officer to keep Zamora in jail and get him mental health treatment. Id. at 3681. The next day, a mental health counselor asked Zamora if he would like contact with a mental health provider, but he would not answer the question at that time. Id. at 3683.
¶28 However, while Zamora was in Skagit County Jail, he did make three separate requests for mental health care. The first mental health counselor Zamora spoke with described him as having “[p]ersecutorial thoughts,” being “easily moved into rageful thinking,” having “pressured speech,” feeling “victimized,” having “[s]ome grandiosity” about “his role in the world,” and suffering from “anxiety”
¶29 Zamora later spoke with a different mental health counselor and stated he was taking his Lamictal, although the medication log indicated he was refusing it. Id. at 3687. Zamora also told the counselor that he would take medication to help him sleep, but not any other “ ‘mental’ medications.” Id. He “expressed extreme anger” regarding his mother’s efforts to get him mental health treatment and asked the counselor to call his mother and “tell her to ‘get the fuck out of my life.’ ” Id. The counselor noted he “appeared upset, [was] easily angered,” and had “rambling style speech.” Id. The counselor’s recommendation was to “continue to offer psych meds.” Id.
¶30 After Zamora had spent a little over a month in Skagit County Jail, he made a third mental health request, stating, “[I’]d like [t]o talk because [I] keep seeing black dots and white flashes.” Id. at 2958. Unlike Zamora’s previous mental health requests, there are no notes indicating whether there was any follow-up on this third request.
¶31 On May 15, 2008, after spending approximately 6 weeks in Skagit County Jail as a pretrial detainee, Zamora pleaded guilty to one count of malicious mischief in the second degree and one count of possession of a controlled substance. Id. at 3483, 3494. He was sentenced to 6 months of confinement, which, “if medically appropriate/required,” could be served as in-home detention. Id. at 3498. Following confinement, Zamora was to serve 12 months of community
¶32 Three days after Zamora was released, his mother called 911 because Zamora “was aggressive and angry towards his mother and brother.” Id. at 2858. The responding deputy discovered Zamora had an outstanding warrant, arrested him, and took him back to Skagit County Jail. Zamora’s mother told officers that he was “suffering from undiagnosed and untreated mental illness and that he has been a problem for some time.” Id. at 3557. The deputy who brought Zamora to the jail specifically asked them not to release Zamora the same day in order to give his mother time to seek a no-contact order. Zamora was released the next day on his own recognizance.
¶33 About a month later, one of Zamora’s neighbors, Clinton Griffith, called police to report Zamora had confronted Griffith’s wife, demanding to know how long she had been living there. As Zamora left, he apparently tore down a sign on Griffith’s gate. Griffith was less concerned about the property damage than about Zamora’s “weird behavior” and the possibility that he was suffering from “some sort of mental illness.” Id. at 3562. On that same day, Zamora underwent a mental health evaluation to determine his eligibility for services from the Department of Social and Health Services. Zamora “apparently really needed help,” id. at 162, and the evaluator found him qualified for services. Zamora’s mother viewed this evaluation as a “glimmer of hope” because in the preceding weeks
¶34 The violence underlying this lawsuit occurred the next day. Another of Zamora’s neighbors, Chester Rose, called Zamora’s mother to say Zamora was in Rose’s house and “didn’t seem to be himself.” Id. at 170. Zamora apparently let himself into Rose’s house, then demanded to know what Rose was doing there. Zamora’s mother told Rose to call the police, which he did, and Skagit County Sheriff’s Deputy Anne Jackson responded. Upon getting out of her patrol car at Rose’s house, Deputy Jackson encountered Zamora and the two exchanged gunfire. Deputy Jackson was shot six times and died at the scene. In the ensuing melee, five of Zamora’s neighbors were also killed and four more were injured.
ANALYSIS
¶35 As correctly noted by the majority, the duty contemplated by § 319 stems from the special relationship that arises where one “takes charge” of someone else who has a known likelihood of harming others if not controlled. However, the majority incorrectly seizes on the single word “control” to unduly limit the scope of that duty. This interpretation is inconsistent with our precedent. It also encourages counties to detain individuals with known mental health issues in jail without making reasonable efforts to provide them with adequate treatment, to transfer such individuals to another county without providing adequate information about their mental health needs, and to release such individuals into the community with more severe mental health problems than they had to begin with. We should not tolerate, much less encourage, such practices, which contribute to a revolving door, conveyor belt system of justice.
¶36 The majority’s analysis rests on a single word: “control.” From this single word, the majority concludes that so long as Skagit County maintained physical control over Zamora while he was lawfully in custody, Skagit County fully discharged its § 319 duty. However, the scope of § 319 duty to control depends on the nature of the specific relationship at issue; it is not strictly limited to physical control.
¶37 Indeed, the very first case in which this court adopted § 319 applied it to the relationship between the State and parolees under its supervision. Taggart, 118 Wn.2d at 219. A parolee, by definition, is not within the State’s immediate physical control, and we specifically rejected the argument that the duty imposed by § 319 is limited to custodial relationships involving physical control over a person. Id. at 223. Nevertheless, we held “that the State has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees,” id. at 217 (emphasis added), and we evaluated the scope of those reasonable precautions in light of the actual scope of the State’s authority over parolees, id. at 219-20. Our subsequent case law has adhered to this approach of evaluating the actual relationship giving rise to a § 319 duty to determine its proper scope. See, e.g., Osborn v. Mason County, 157 Wn.2d 18, 24, 134 P.3d 197 (2006); Joyce v. Dep’t of Corr., 155 Wn.2d 306, 320 n.3, 119 P.3d 825 (2005). In light of this precedent, it seems anomalous to hold, as the majority appears to, that § 319 imposes only a limited duty on counties to maintain physical control over its jail population, even though it imposes a broader duty on a state parole officer to take reasonable precautions to prevent foreseeable violence by parolees in the community.
¶38 There are, without question, important limitations on a county’s authority to control its jail population. Of
¶39 It must also be emphasized that in this context, as in all negligence cases, “only reasonable care is owed.” Lowman v. Wilbur, 178 Wn.2d 165, 170, 309 P.3d 387 (2013). The law does not demand perfect results, but merely reasonable efforts. For example, while Skagit County had the duty to provide Zamora with necessary medical treatment, including mental health care, while he was in custody, it had no overarching duty to completely rehabilitate Zamora or somehow cure his mental illness. See RCW 70.48.130(1); Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 635-36, 244 P.3d 924 (2010) (Sanders, J., lead opinion); id. at 646 (Madsen, C.J., concurring/dissenting); cf. Melville v. State, 115 Wn.2d 34, 38-39, 793 P.2d 952 (1990) (holding that general statutes do not impose a specific duty on the Department of Corrections to provide a particular course of mental health care treatment).
¶41 The majority rightly acknowledges that “[a] variety of actions might be needed to control a person to prevent him or her from doing harm.” Majority at 582 n.4. However, this acknowledgment is inconsistent with the majority’s apparent conclusion that such actions do not include reasonably following up on available information and conveying that information to other responsible parties. Those are in fact precisely the type of actions that may be required to fulfill a § 319 duty because the ability to meaningfully control a foreseeably violent person necessarily requires adequate information about that person. See, e.g., Joyce, 155 Wn.2d at 316-17 (“[A] jury could conclude that this duty was breached by the State’s failure to report egregious violations of the conditions of release to the court so that the
¶42 By focusing only on physical control, the majority’s analysis treats the special relationship between a county and its jail population as analogous to the relationship between a warehouse and its inventory. This is unacceptable as applied to anyone, but is particularly disconcerting as applied to a presumptively innocent pretrial detainee who is known to be suffering from mental illness, as Zamora was for most of the time he was in Skagit County Jail. I therefore cannot join the majority.
B. Foreseeability and proximate cause
¶43 Because the majority does not need to reach the other issues raised, I address them only briefly. I would affirm the Court of Appeals holding that there are material factual questions precluding summary judgment dismissal of the plaintiffs’ § 319 claim.
¶44 First, Skagit County argues that it did not owe any take charge duty to the victims because their injuries and deaths occurred after Zamora left its custody. As the Court of Appeals correctly determined, “[T]his argument confuses the existence of a duty with the scope of the duty.” Binschus v. Dep’t of Corr., 186 Wn. App. 77, 95, 345 P.3d 818, review granted, 184 Wn.2d 1001, 357 P.3d 665 (2015). Section 319 itself plainly contemplates that the duty extends to anyone who is foreseeably injured by a breach occurring during the
A operates a private hospital for contagious diseases. Through the negligence of the medical staff!,] B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage.... B ... communicate [s] the scarlet fever ... to D. ... A is subject to liability to D.
Restatement (Second) of Torts § 319 cmt. a, illus.1 (Am. Law. Inst. 1965). In this illustration, A’s take charge relationship with B ended when B was permitted to leave the hospital. However, A’s negligence during its take charge relationship with B foreseeably caused D’s later injury, so A is liable.
¶45 Our case law is consistent with this analysis. Most on point is Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983).
¶46 Once a special relationship giving rise to a § 319 duty is established, the question of whether the actual
¶47 Additionally, Skagit County contends that proximate cause is precluded as a matter of law. “Washington ‘recognizes two elements to proximate cause: [clause in fact and legal causation.’ ” Lowman, 178 Wn.2d at 169 (alteration in original) (quoting Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)). While proximate cause does present a close question in this case, I would hold it cannot be resolved as a matter of law based on the record presented.
¶48 As to cause in fact, Skagit County contends that there is no evidence that Zamora would have consented to any additional mental health care measures or that any such measures would have been effective. However, the evidence in the record indicates that Zamora’s willingness to accept mental health care fluctuated—he did in fact specifically request mental health treatment on three separate occasions while in Skagit County Jail. CP at 2958, 3685, 3687. Zamora’s intermittent refusal to participate in mental health treatment cannot be treated as definitive proof that he would certainly have refused all treatment if, for instance, a medical professional had spoken to him as Skagit County Jail’s mental health counselor had requested. Id. at 3685. Moreover, the record indicates that after the shootings, Zamora was confined at Western State Hospital and took medications that did in fact control his psychotic symptoms. Id. at 2545. This is significantly more concrete evidence than what we have rejected in the past as overly speculative. See, e.g., Melville, 115 Wn.2d at 40-41.
CONCLUSION
¶50 I cannot join the majority’s narrow interpretation of the duty imposed by § 319. And because the evidence, viewed in the light most favorable to the plaintiffs, is sufficient to create genuine issues of material fact on all the elements of their § 319 claim, I would affirm the Court of Appeals and remand for further proceedings. I respectfully dissent.
After modification, further reconsideration denied January 17, 2017.
In Smith, Division Two of the Court of Appeals held that the Department of Corrections’ (DOC) take charge duty with respect to an offender on community custody “ended when [the offender] absconded from community custody and a warrant issued for his arrest.’’ Smith, 189 Wn. App. at 848. However, it separately analyzed DOC’s actions that occurred before the offender absconded, ultimately holding that any such actions or omissions did not proximately cause the victim’s murder, which occurred almost four months later. Id. at 850-53.
I also note that while N.L. v. Bethel School District, 186 Wn.2d 422, 378 P.3d 162 (2016), does not rely on § 319, there is considerable tension between the reasoning of the majority in this case and the reasoning of the majority in N.L.
Petersen discusses the general special relationships contemplated by Restatement (Second) of Torts § 315 (Am. Law Inst. 1965), rather than the specific take charge relationship contemplated by § 319. However, it illustrates well that a victim can be foreseeable even if he or she does not suffer injury until after the special relationship ends.