Harper v. State , 429 P.3d 1071 ( 2018 )

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GtUB'JUSTKe SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CATHY HARPER,individually, as NO. 95511-5
Personal Representative ofthe ESTATE
OF TRICIA PATRICELLI, as Guardian
ad Litem for KHALANI MICELAEL, a EN BANC
minor child, and as Guardian ad Litem for
NIYERRAH MICHAEL,a minor child.
Respondent, Filed HO\f 2 1 2018
STATE OF WASHINGTON;
WASHINGTON DEPARTMENT OF
CORRECTIONS, a governmental entity.
Petitioner,
and
RHONDA FREELAND and JOHN DOE
FREELAND and their marital community.
Defendants.
GORDON McCLOUD,J.—Scottye Miller murdered his longtime girlfriend,
Tricia Patricelli, 15 days after he was released from prison on Department of
Corrections(DOC)-supervised probation. It is undisputed that everyone involved—
Harper (Cathy) v. Dep't ofCorr., No. 95511-5
Patricelli,Patricelli's family and friends, and DOC—knew that Miller had physically
abused Patricelli in the past and would likely do so again if they resumed their
relationship.
They did resume that relationship. But Patricelli hid the renewed relationship
from her friends, family members, and DOC. In fact, Patricelli explicitly assured
DOC that she was not in a relationship with Miller, that she was moving to a place
where he could not find her, and that she would call the police if she saw him.
Miller's mother also verified in writing that he was sleeping at her home, though it
turns out that he was actually living with Patricelli.
The question here is whether DOC is liable for Patricelli's death, despite
Patricelli's, Miller's, and his mother's active and successful efforts to prevent DOC
from knowing that Miller was in contact with Patricelli. The parties agree that DOC
had a duty to supervise Miller while he was on probation and that DOC is not liable
unless its supervision constitutes "gross negligence." RCW 9.95.204(4); RCW
72.09.320. But the parties disagree on whether DOC's actions rose to the level of
gross negligence.
The trial court dismissed on summary judgment. Clerk's Papers(CP)at 1286-
89. The Court of Appeals reversed. Harper v. Dep't ofCorr.,2 Wn. App.2d 80,92-
94, 408 P.3d 735, review granted, 190 Wash. 2d 1025, 419 P.3d 409 (2018). It ruled
that DOC's failure to take additional steps to verify Patricelli's statements or Miller's
Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
housing arrangements could qualify as gross negligence. It also stated that whether
a defendant acted with simple or gross negligence is basically a question for the jury,
not the court. We reverse the Court of Appeals.
Facts and Procedural Background^
1. At the time of the murder, DOC was supervising Miller pursuant to two
misdemeanor convictions; one ofthe convictions included an order barring
Miller from contacting Patricelli
A. King County Superior Court, No. 10-1-03032-4 KNT
Miller had a lengthy criminal history. In 2010, the superior court sentenced
Miller to 12 months in jail for a misdemeanor violation of a court order barring him
from contacting Patricelli. CP at 80, 980. The superior court suspended that
sentence on condition that Miller serve 180 days in jail and submit to 24 months of
DOC-supervised probation. CP at 80-81. In addition to probation, the superior court
imposed various conditions, ordering Miller to (1) "enter into, make reasonable
progress and successfully complete a state certified domestic violence treatment
'Shortly before oral argument, DOC filed a motion to supplement the record and
correct misstatements of fact. Although Cathy Harper (Patricelli's mother) opposed the
motion, she did not argue that the supplements or corrections were either not authentic or
not relevant. We treat the motion to correct misstatements as an erratum and accept it. We
take judicial notice of referenced court documents.
Harper (Cathy) v. Dep 't ofCorr.,No. 95511-5
program," (2)"commit no criminal offenses," and (3)"comply with the standard
rules and regulations of supervision." CP at 81-82.^
DOC imposed numerous additional conditions, including that Miller (1)
remain within King County, (2) obtain written permission before leaving King
County or Washington State, (3) notify DOC before changing residences or
employment,(4) abide by written or verbal instructions issued by his community
corrections officer,(5) inform DOC of any prescribed medications,(6) not operate
a vehicle without a license, (7) not possess or consume alcohol or controlled
substances,(8)not frequent places where liquor is sold,(9)submit to breath alcohol
concentration and urinalysis testing,(10) complete requested chemical dependency
evaluations, (11) complete a mental health evaluation and enter into treatment as
directed,(12)not change treatment providers without prior DOC approval, and (13)
consent to home visits. CP at 576.
Because the probation period "tolled during any period of confinement," CP
at 81, it remained in effect at the time ofthe murder.
B. King County Superior Court, No. 12-1-00643-8 KNT
In 2011,during an argument about Miller's infidelity. Miller pushed Patricelli,
punched her in the eye, and threatened to kill her. CP at 1051-52. Miller pleaded
^ The court also originally ordered Miller to "have no contact with[ ] Tricia
Patricelli." CP at 81. But it later rescinded that order.
Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
guilty to felony harassment and misdemeanor assault. CP at 84(felony harassment),
93(misdemeanor assault).
For the felony harassment, the superior court gave Miller a special drug
offender sentencing alternative(DOSA). CP at 88. That DOSA required Miller to
undergo residential chemical dependency treatment for 3 to 6 months, followed by
24 months ofcommunity custody supervision. Id. The superior court memorialized
the sentence in a felony judgment and sentence (J&S). CP at 84-89. But that court
subsequently revoked Miller's DOSA,resentenced him to 366 days of confinement,
and rescinded the terms of community custody. CP at 97-99.
For the misdemeanor assault, the superior court sentenced Miller to 364 days
in jail but suspended it all on condition that Miller serve only a few days in jail and
submit to 24 months ofDOC-supervised probation. CP at 93-95. The superior court
ordered the following probation conditions: (1) ''have no contact with[ ] Tricia
Patricelliper the [separate no-contact order],"(2)"comply with the standard rules
and regulations of supervision,"(3)"commit no criminal offenses," and (4)"abide
by conditions on [the DOSA]." Id. (emphasis added). The cross-referenced DOSA
conditions were to (1) "not use illegal controlled substances," (2) "not use any
alcohol or controlled substances without prescription," (3)"report as directed to a
community corrections officer," (4) "[p]ay all court ordered legal financial
obligations," and again,(5)"have no contact with Tricia Patricelli per the separate
Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
[no-contact order]" CP at 88-89 (emphasis added). The superior court
memorialized the sentence in a separate misdemeanor J&S under the same cause
number as the felony. CP at 93-95. The 2012 conviction's probation period, like
the 2010 conviction's probation period, was "tolled during any period of
confinement." CP at 93-94.
The separate no-contact order barred Miller from contacting Patricelli for five
years, although it gave Miller permission to call and visit with her while he was in
custody and enrolled in treatment. CP at 101. As mentioned above, the superior
court directly incorporated by reference this no-contact order as a sentence condition
in the misdemeanor J&S. CP at 95.
The no-contact order says that Miller(1)"shall not cause, attempt, or threaten
to cause bodily injury to, assault, sexually assault, harass, stalk, or keep under
surveillance [Tricia Patricelli],"(2)"shall not contact the protected person, directly,
indirectly, in person or through others, by phone, mail or electronic means, except
for mailing or service ofprocess of court documents through a third party, or contact
by the defendant's lawyers," and (3)"shall not knowingly enter, remain, or come
within 1000 feet... ofthe [protected person or that] person's residence, school,[or]
workplace,...[e]xcept the defendant may have telephonic contact with the protected
person and may be visited by the protected person while in custody and in treatment
after the [b]lack out [p]eriod." CP at 101.
Harper (Cathy) v. Dep't ofCorr., No. 95511-5
In addition to the court-ordered conditions, DOC required Miller to (1)
"[w]ork at a DOC approved education, employment, and/or community restitution,"
(2)"[n]ot possess or consume controlled substances except pursuant to lawfully issued
prescriptions,"(3)"[p]ay supervision fees as determined by the DOC,"(4)"[rjeceive
prior approval for living arrangements and residence location,"(5)"[n]ot own, use, or
possess a firearm or ammunition,"(6)"[n]otify [his community custody supervisor] of
any change in address or employment,"(7)"[ujpon request of the DOC,notify [it] of
court-ordered treatment," and(8)"not consume any alcohol." CP at 577.
On October 15, 2012, Miller completed his felony sentence and was released.
CP at 1125. Fifteen days later, he killed Patricelli. CP at 575. As outlined above
and discussed below, the record shows that during those 15 days, DOC was actively
supervising Miller on both the 2010 misdemeanor probation, which had very few
conditions, and the 2012 misdemeanor probation, which included a no-contact order.
2. DOC communicated with Patricelli several times prior to Miller's release
Before Miller was released on the balance of his 2010 and 2012 misdemeanor
probation terms, Angella Coker, a victim services liaison from DOC, contacted
Patricelli four times to inform her of Miller's impending release and to help her
develop a safety plan. CP at 138-39. Patricelli assured Coker that she did not intend
to resume her relationship with Miller and that she planned to move without
informing Miller of her new address. Id. Coker also wrote a letter, which Patricelli
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
had requested, confirming Patricelli's status as a domestic violence victim so that
she could relocate without a penalty for terminating her lease. CP at 139, 162.
Although Coker knew Patricelli planned to move, she did not ask Patricelli for her
new address because "people frequently tell [her] they are moving, but do not do so"
and because she "did not want to create a record of that new location." CP at 139.
Patricelli did not relocate immediately. On October 17, two days after Miller
was released, Patricelli told Coker that she was in the '"process of moving.'" Id.
Patricelli reassured Coker that there were "'no problems'" and that she was
"'prepared to call police if needed.'" Id. Coker believed Patricelli, stating that "[i]t
was [her] clear impression from [her] communications with Ms. Patricelli that
[Patricelli] was not in contact with Mr. Miller and had no intention of resuming
contact with him." Id. As discussed below, both Patricelli's mother, CP at 208, and
Patricelli's best friend, CP at 163-64, also believed this.
3. DOC supervised Miller after his release
On October 16, one day after he was released on DOC supervision, Miller
reported to Rhonda Freeland, his DOC supervisor. CP at 33. Miller took a urinalysis
test, which came back negative for drugs and alcohol. Miller and Freeland made
arrangements to enroll Miller in domestic violence treatment. Id.
During their first meeting. Miller informed Freeland that "he was homeless
and was 'couch surfing' with relatives," id., even though he was released to an
Harper (Cathy) v. Dep't ofCorr., No. 95511-5
Auburn address connected with the Sober Solutions program, CP at 737, 1125.
According to Freeland, DOC did not require misdemeanor probationers like Miller
to establish an approved residence upon release from prison, CP at 33-34, although
he was supposed to obtain prior approval of address changes from DOC,CP at 576.
So Freeland told Miller to maintain a weekly shelter log documenting where he
stayed each night, with signature verification by someone at each location. See CP
at 33. Freeland did not discipline Miller for changing addresses without prior
approval.
Freeland also called one of the phone numbers she had for Patricelli but
received no answer. Id. Freeland did not call the other phone number that DOC had
listed for her.
On October 17, Freeland verified that Miller had initiated the process for
entering domestic violence treatment. Id. Freeland also contacted Coker,Patricelli's
victim liaison, who informed Freeland that Patricelli had moved to a new residence
(though Patricelli was still in the process of moving at that time) and would call the
police if Miller contacted her. Id.
On October 23, Miller reported to Freeland for his second check-in. Id. He
again tested negative for drugs and alcohol. Id. Miller recounted the steps he had
taken during the past week to enroll in domestic violence treatment, including
scheduling a psychological assessment. CP at 34. Miller also submitted a completed
Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
shelter log showing that he had stayed with his mother each night in Burien. CP at
33, 107-08. Miller's mother signed each entry. CP at 104, 107-08. No one disputes
that she signed it.
On October 29, the day before Miller was scheduled to report a third time,
Freeland called Miller's mother to verify his living arrangements. CP at 34. Miller's
mother confirmed that he "could live" with her in Burien, though she did not
specifically verify that he had been living with her already. CP at 34, 104. Freeland
then vetted the Burien address through Coker, the victim liaison, who said she had
no known concerns about the address at that time. CP at 34.
The next morning. Miller stabbed Patricelli to death in the shower. CP at 659.
Her mother, Cathy Harper, was one of the first people to discover the bloody crime
scene. CP at 225-27. Miller appears to have murdered Patricelli over accusations
that she was seeing someone else. See CP at 325. The day before the murder. Miller
posted a cryptic message on his Facebook account: "Well I just got got out na it'z
tyme tha go bacc to prison fo bout 10 or 15." CP at 1133. Miller's responses to
comments from other Facebook users about that message were "I got tha do this"
and "um bout tha do sum to were um gon do 10 or 15 but know I luv u." Id?
Freeland was unaware ofthose Facebook posts.
^ DOC objected to the admission of this evidence. CP at 1187. But the trial court
reviewed it before making its decision, and DOC did not appeal that ruling. CP at 1288-
89.
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Harper (Cathy) v. Dep 't ofCorr.,No. 95511-5
Miller was convicted of murder in the first degree and received an exceptional
sentence of48 years. CP at 800-10.
4. Miller and Patricelli renewed their relationship but hid it from others
It turns out that Miller, his mother, and Patricelli herself lied to DOC about
Miller's living arrangements while he was on probation. In fact, Patricelli had seen
Miller, even though she said she had not. And Miller was not staying with his
mother, despite his mother saying, in a signed document, that he was. Miller was
actually living with Patricelli. CP at 324." But the only people who knew that fact
were Patricelli, her daughters, their roommate, and Miller. CP at 325-26. And all
ofthem were actively hiding the relationship from DOC and others.
Patricelli even hid the relationship from her best friend, Breanna Capener. CP
at 164. Patricelli told Capener the same things she told Coker, her DOC victim
liaison: "Miller did not know the address of the Auburn apartment and . . . she did
not want to see him or for him to know her new address" and "she would call law
enforcement if he showed up at her Auburn apartment." Id. Like Coker, Capener
DOC disputes whether Miller was actually living with Patricelli. For purposes of
summary judgment review, we consider "[t]he facts and reasonable inferences from the
facts ... in the light most favorable to the nomnoving party." Hertog v. City ofSeattle,
138 Wash. 2d 265, 275, 979 P.2d 400 (1999)(citing Taggart v. State, 118 Wash. 2d 195, 199,
822 P.2d 243 (1992)). Here, the nonmoving party is Harper.
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Harper (Cathy) v. Dep't ofCorr., No. 95511-5
believed Patricelli despite Miller and Patricelli's long history of getting back
together. Id.
Patricelli also hid the fact that she and Miller were living together from her
mother, Cathy Harper,even though the two were very close. CP at 208-09. Patricelli
kept it secret even when she and her daughters slept over at Harper's house to get
away from Miller the night before the murder. CP at 237-38. Like Coker and
Capener, Harper believed Patricelli was no longer with Miller and had not seen him
while he was on probation. CP at 208-09.
5. Harper sued DOC
Harper sued DOC,alleging that DOC was grossly negligent in its supervision
of Miller. CP at 11-13.^ She argues that DOC should have monitored Miller's
whereabouts more closely because of his long history of committing domestic
violence crimes, breaking no-contact orders, and threatening to kill Patricelli. CP at
2. She notes that DOC was aware of Miller's history of domestic violence against
Patricelli, including the death threats he made to her in the past, CP at 1131, and that
DOC employees believed Miller would eventually try to contact Patricelli after his
release as he had done previously, CP at 1123.
^ Specifically, Harper sued for wrongful death, negligent inflietion of emotional
distress, and loss of consortium. CP at 11-13. The only issue before us now is whether the
trial court erred in dismissing these claims due to lack of proof that DOC was grossly
negligent.
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Harper (Cathy) v. Dep 't ofCorr., No. 95511 -.5
Specifically, Harper argues that DOC should have (1) imposed GPS (global
positioning system) monitoring and geographical restrictions on Miller,(2)required
Miller to take a polygraph test,(3)conducted field supervision, such as home visits,
(4) monitored Miller's social media accounts, (5) verbally verified with Miller's
mother that he was living with her rather than rely solely on her signature, (6)
arrested Miller for changing addresses without having first notified DOC, in
violation of one of his probation conditions, and (7) not authorized him to live in
sober housing in the city (Auburn) to which Patricelli eventually moved (though
DOC may not have known that Patricelli moved to Auburn). CP at 265-68, 293.
6. DOC moved for summary judgment
DOC moved for summary judgment, arguing that its actions do not amount to
gross negligence. CP at 15-29. The trial court agreed and dismissed Harper's
claims. CP at 1286-89. The Court of Appeals reversed, ruling that the evidence was
sufficient to withstand summary judgment. Harper, 2 Wash. App. 2d at 92-94. In
reversing, it said that the jury—not the court—should "almost always" draw the
distinction between simple and gross negligence. Id. at 91-92. We granted review.
Harper, 190 Wash. 2d 1025.
Standard of Review
We review a trial court's decision to grant summary judgment de novo.
Hertogv. City ofSeattle, 138 Wash. 2d 265, 275,979 P.2d 400(1999). On review, we
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
consider "facts and reasonable inferences from the facts . . . in the light most
favorable to the nonmoving party." Id. (citing Taggart v. State, 118 Wash. 2d 195,
199,822P.2d243(1992)). We grant summaryjudgment when "there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of
law." Id. (citing Taggart, 118 Wn.2d at 199; CR 56(c)).
Analysis
Harper alleges that DOC supervised Miller in a grossly negligent manner. If
this were a case involving simple negligence. Harper would have to show "the
existence ofa duty ..., breach ofthe duty, and injury to plaintiff proximately caused
by the breach." Id. (citing Degel v. Majestic Mobile Manor, Inc., 129 Wash. 2d 43, 48,
914 P.2d 728 (1996)). But this is a case of gross negligence.^ Gross negligence
most obviously differs from simple negligence in that it requires a greater breach; to
prove gross negligence. Harper must show that DOC ''substantially breached its
^ The parties seem to agree that Miller was on both probation and community
custody. Mot. to Suppl. R.& Correct Misstatements ofFact at 4 n.2; Resp. to Pet'r's Mot.
to Suppl. R. & Correct Misstatements of Fact at 2-3. Regardless, Harper must prove DOC
acted with gross negligence. RCW 9.95.204(4)(DOC is "not liable for civil damages
resulting from any act or omission in the rendering of superior court misdemeanant
probation activities unless the act or omission constitutes gross negligence." (emphasis
added)); RCW 72.09.320(DOC is "not liable for civil damages resulting from any act or
omission in the rendering of community placement activities unless the act or omission
constitutes gross negligence."(emphasis added)).
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
duty by failing to act with even slight care. Nist v. Tudor, 67 Wash. 2d 322, 331, 407
P.2d 798(1965)(emphasis added).
Before this court, the parties dispute whether DOC breached that duty ofslight
care. Although breach is generally a question left for the trier offact, the court may
determine the issue as a matter oflaw "ifreasonable minds could not differ." Hertog,
138 Wash. 2d at 275 (citing Sherman v. State, 128 Wash. 2d 164, 183, 905 P.2d 355
(1995)).
1. DOC faces potential liability based on the take charge duty, a duty that
arose from the 2010 misdemeanor probation and the 2012 misdemeanor
probation with a no-contact order
Generally, DOC is not responsible for preventing criminal defendants from
harming others absent a special relationship. Binschus v. Dep't ofCorr., 186 Wash. 2d
573, 578, 380 P.3d 468 (2016)(citing Petersen v. State, 100 Wash. 2d 421, 426, 671
P.2d 230(1983)). One such special relationship arises when DOC'"takes charge of
a third person whom [it] knows or should know to be likely to cause bodily harm to
others if not controlled.'" Taggart, 118 Wash. 2d at 219 (quoting Restatement
(Second)OF Torts § 319(Am.LawInst. 1965)).
In the simple negligence context, we have described this take charge duty as
the "duty to take reasonable precautions to protect against reasonably foreseeable
dangers posed by the dangerous propensities of[the person supervised]." Id. at 217.
This means that DOC must determine whether an offender "is likely to cause bodily
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
harm to others if not controlled." Id. at 220. DOC makes this determination by
considering the offender's "criminal history and progress" during release. Id. If
DOC determines that an offender is likely to cause bodily harm to others if not
controlled, then it "is under a duty to exercise reasonable care to control the
[offender] and to prevent him or her from doing such harm." Id.
We have recognized a take charge duty under various types of community
supervision programs. See Joyce v. Dep't of Corr., 155 Wash. 2d 306, 315-16, 119
P.3d 825 (2005)(recognizing a duty of community corrections officers); Hertog,
138 Wash. 2d at 281, 288-90 (recognizing a duty of city probation counselors and
county pretrial release counselors); Bishop v. Miche, 137 Wash. 2d 518, 531, 973 P.2d
465 (1999)(recognizing a duty of county probation officers).
DOC had a take charge duty to supervise Miller on both the 2010 and 2012
misdemeanor probations—including the 2012 no-contact order. DOC argues that it
was not grossly negligent in discharging that duty.
2. To survive summary judgment. Harper must present substantial evidence
that DOC failed to exercise slight care
We must determine whether a jury could find that DOC's alleged
shortcomings rise to the level of gross negligence. In Nist, the foundational case on
the issue, we expanded on the "frequently expressed statement that gross negligence
means the failure to exercise slight care." 67 Wash. 2d at 324 (citing Crowley v. Barto,
59 Wash. 2d 280, 367 P.2d 828 (1962); Eichner v. Dorsten, 59 Wash. 2d 728, 370 P.2d
16
Harper (Cathy) v. Dep't ofCorr., No. 95511-5
592 (1962)). In doing so, we described "gross negligence" as "negligence
substantially and appreciably greater than ordinary negligence." Id. at 331. The
failure to exercise slight care, we continued, does not mean "the total absence ofcare
but care substantially or appreciably less than the quantum of care inhering in
ordinary negligence." Id.
In our description of gross negligence, we set ordinary, or simple, negligence
as the baseline for comparison. Id. A person acts with simple negligence when he
or she exercises less than "that degree of care which the reasonably prudent person
would exercise in the same or similar circumstances." Id. Thus, a person acts with
gross negligence when he or she exercises ''substantially or appreciably less than
that degree of care which the reasonably prudent person would exercise in the same
or similar circumstances. Id.(emphasis added); see Swank v. Valley Christian Sck,
188 Wash. 2d 663, 687, 398 P.3d 1108 (2017)(explaining that the evidence could
suggest that defendant "'substantially' failed to meet the standards of a reasonable
and prudent person under the circumstances"(citing Nist, 67 Wash. 2d at 328)).
In Nist, we explained how a court should analyze claims of gross negligence
on a motion for summary judgment. First, the court should specifically identify the
relevant failure alleged by the plaintiff. See Nist, 67 Wash. 2d at 331. The relevant
failure is the action that the plaintiff claims that the defendant should have taken but
did not, allegedly causing the plaintiffs injury. Then the court must determine
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Harper (Cathy) v. Dep't ofCorr., No. 95511-5
whether the plaintiff presented substantial evidence that the defendant failed to
exercise slight care under the circumstances presented, considering both the relevant
failure and, if applicable, any relevant actions that the defendant did take. Id. at 332.
A. In Nist, we instructed courts to specifically identify the relevantfailure
alleged by the plaintiff
In Nist, two neighbors. Crystal Tudor and Margaret Nist, traveled by car to go
bean picking. Id. at 323. As Tudor, the driver, prepared to turn left, she slowed
down, turned on her blinker, and allowed a following car to pass. Id. at 323-24.
Moments later, she "abruptly" turned into oncoming traffic and collided with a truck.
Id. at 324. The collision seriously injured Nist, who then sued Tudor, alleging gross
negligence. Id. Nist lost at the trial level after the court literally interpreted "the
failure to exercise slight care ... to mean that, if the defendant driver exercised any
care at all for the safety of her guest passenger, the passenger could not recover."
Id. Because Tudor had "slowed her car to a near stop," "waited for a following car
to pass," and "gave a left-turn signal," the trial court held that she exercised
"sufficient care to negate a finding of gross negligence." Id.
Our court reversed. Id. at 332-33. We explained that courts, when determining
the degree of negligence (i.e., gross or simple) in a particular case, must focus their
analysis on "the hazards of the situation confronting the actor." See id. at 331. In
Nist, for example, we noted that the trial court should have focused its analysis on
the hazard that caused Nist's injuries—^the oncoming truck—^rather than on the
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Harper (Cathy) v. Dep 't ofCorr.,No. 95511-5
dangers presented by following cars. Id. at 331-32. By slowing down, using a turn
signal, and waiting to be passed, Tudor may have responded to the following car as
a reasonably prudent person would have. Id. at 331. But her response had "little or
no relationship to the hazards generated by the approaching truck." Id. Since the
approaching truck was the relevant hazard, we held that ajury could find that Tudor
exercised substantially and appreciably less than that degree of care that the
reasonably prudent person would have exercised in the same or similar
circumstances. Id. at 332.
Following guidance from Nist, in ruling on a motion for summary Judgment,
trial courts must specifically identify the relevant failure alleged by the plaintiff. If
the evidence shows that the defendant may have failed to exercise slight care in the
specific area that is relevant to the case (e.g., turning into oncoming traffic), then the
trial court should not grant summary judgment—even if a defendant exercised great
care in other respects (e.g., allowing a car to pass).
We therefore focus on the relevant failure alleged by Harper: DOC failed to
prevent Miller from contacting her daughter—despite the 2012 no-contact order and
the probation conditions to commit no criminal offenses. If reasonable minds could
differ about whether DOC exercised or failed to exercise slight care in supervising
the no-contact order and other relevant conditions, then the court should not grant
summaryjudgment for DOC—even ifDOC exercised great care in supervising other
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Harper (Cathy) v. Dep't ofCorr., No. 95511-5
unrelated conditions, such as testing Miller for drugs and alcohol. Conversely, if
reasonable minds could not differ about the fact that DOC did exercise slight care in
supervising the no-contact order and other relevant conditions, then the court should
grant summary judgment for DOC.
In sum, we focus on what DOC did (or failed to do)to make sure that Miller
did not contact Patricelli.
B. Where, as here, the defendant is relieved of liability unless grossly
negligent, a plaintiff must provide substantial evidence of gross
negligence to survive summaryjudgment
The Court of Appeals correctly observed that in a case like this, a plaintiff
must provide '"substantial evidence of seriously negligent acts or omissions on the
part of" the defendant to survive summary judgment. Harper,2 Wash. App. 2d at 90
(quoting Nist, 61 Wash. 2d at 332). But it then suggested that a plaintiff can survive
summary judgment in a gross negligence case by providing any evidence of
negligence—^notjust "substantial evidence of seriously negligent acts":
[T]he sufficiency of evidence of gross negligence is not merely a
function of the quantity of evidence presented, it is also a function of
the significance the jury could give to that evidence in light of the
foreseeable danger. It is in this latter respect that the distinction
between ordinary negligence and gross negligence will often be
manifest. But the drawing of such distinction will almost always
require the fact-finding judgment of a jury, as opposed to the legal
analysis ofa court.
Id. at 91-92(emphasis added).
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Harper (Cathy) v. Dep't ofCorr., No. 95511-5
We disagree. To survive summary judgment in a gross negligence case, a
plaintiff must provide substantial evidence of serious negligence. In determining
whether the plaintiff has provided substantial evidence, the court must look at all the
evidence before it, evidence that includes both what the defendant failed to do and
what the defendant did. If a review of all the evidence suggests that reasonable
minds could differ on whether the defendant may have failed to exercise slight care,
then the court must deny the motion for summary judgment. But if a review of all
the evidence reveals that the defendant exercised slight care, and reasonable minds
could not differ on this point, then the court must grant the motion.
We did not alter this analysis in Swank. We just recognized that the standards
for simple negligence, gross negligence, and recklessness all involve a "fine-grained
factual analysis" that is '"generally not susceptible to summary judgment.'"
Swank, 188 Wash. 2d at 685 (quoting Owen v. Burlington N. Santa Fe R.R. Co., 153
Wash. 2d 780, 788, 108 P.3d 1220(2005)(quoting Ruffv. County ofKing, 125 Wn.2d
697,703,887 P,2d 886(1995))). But we did not say that the decision about whether
a negligent act rises to the degree of gross negligence or recklessness should almost
always go to the jury. We merely recited a generalized, shorthand statement about
the factual nature of negligence and proximate cause, a statement that can be traced
back to at least LaPlante v. State, a 1975 decision from this court. 85 Wash. 2d 154,
531 P.2d 299(1975). In LaPlante, we provided more context:
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
While issues of negligence and proximate cause are not generally
susceptible to summary adjudication, courts are not precluded from
rendering such judgments. The issues of negligence and proximate
cause must be accorded the same treatment as any other following a
motion for summary judgment, i.e., if the court determines there is no
genuine issue of material fact then it must determine whether the
moving party is entitled to a judgment as a matter of law. Further,
where the facts are undisputed and do not admit of reasonable
differences of opinion, the question of proximate cause is one of law
subject to review by this court.
Id. at 159-60 (emphasis added)(citations omitted).
In fact, prior to Harper, the Court of Appeals dismissed similar cases as a
matter of law. See Whitehall v. King County, 140 Wash. App. 761, 167 P.3d 1184
{imiy,Kelleyv. Dep'tofCorr., 104 Wash. App. 328, 17 P.3d 1189(2000). InKelley,
a woman sued DOC for gross negligence after she was assaulted by an offender who
was on community custody. 104 Wash. App. at 329. The woman alleged that DOC
was grossly negligent, in part because it had failed to discover the offender's two
prior curfew violations. Id. at 335-36. The appellate court held that although DOC
may have been negligent, it was not grossly negligent. /J. at 338. In doing so, the
court properly considered both what DOC did and what it failed to do with regard to
the relevant alleged failure. Id. at 336 ("If[DOC] had made no attempt to learn the
circumstances of the crime, a jury could find gross negligence. Here,[DOC] did
investigate the circumstances but failed to verify the actual time of the arrest.");
accord Whitehall, 140 Wash. App. at 768-70.
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Harper (Cathy) v. Dep't ofCorr., No. 95511-5
Here, the Court of Appeals held that a jury could find that DOC was grossly
negligent with regard to the alleged failure, i.e., the failure to supervise the no-
contact order. Harper, 2 Wash. App. 2d at 93. That court noted that although DOC
knew about Miller's history of violating no-contact orders barring him from
contacting Patricelli, Freeland still (1) failed to call both of Patricelli's phone
numbers, (2) failed to ask Miller's mother to verbally confirm that he had been
residing with her, and (3) failed to assume that Miller was lying when he reported
that he was living with his mother. Id. at 92-93d
But the Court of Appeals focused entirely on what DOC failed to do in
supervising the no-contact order. It did not consider what DOC did to prevent Miller
from contacting Patricelli. As discussed above, prior to Miller's release, a DOC
victim services liaison contacted Patricelli about his impending release and helped
her move. DOC supervisor Freeland then called Coker, the DOC liaison, who
verified that she was in contact with Patricelli, that Patricelli had relocated to a new
address unknown to Miller, that Patricelli had not seen Miller, and that Patricelli
intended to call the police if she saw him. Freeland also required Miller to submit a
weekly shelter log showing where he stayed each night and required another person
^ Although the Court of Appeals properly considered DOC's supervision ofthe no-
contact order, it also considered DOC's alleged shortcomings in verifying Miller's living
arrangements. Harper, 2 Wash. App. 2d at 92-93. It considered the alleged shortcomings
because had Freeland done more to verify the living arrangements, she may have
discovered that Miller was in contact with Patricelli. Id.
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
to verify each entry with a signature. Miller's mother acknowledges that she signed
the entries stating that Miller was staying with her each night. Freeland even called
Miller's mother to verify the living arrangements (although Freeland did not
specifically confirm that Miller had been staying with his mother since his release).
Freeland then checked with Coker, who said she had no known concerns about the
address of Miller's mother.
As it turns out, Miller, his mother, and Patricelli herself lied to DOC
throughout the 15 days that Miller was out on probation. Harper argues that the
DOC should have done more to uncover these lies, such as visiting Miller at home
or monitoring Miller via GPS. And, as mentioned above,the Court of Appeals notes
three areas in which DOC could have done more. Harper,2 Wash. App. 2d at 92-93.
But the legislature requires us to apply a gross negligence standard. Under
this standard. Harper failed to provide substantial evidence demonstrating that DOC
exercised substantially or appreciably less than that degree of care that a reasonably
prudent department would have exercised in the same or similar circumstances.
Looking at the whole picture—what DOC failed to do and what DOC did with
regard to the relevant alleged failure—we agree with the trial court that reasonable
minds could not differ about the fact that DOC exercised slight care and was
therefore not grossly negligent.
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
Conclusion
We reverse the Court of Appeals and affirm the trial court's order granting
summary judgment for DOC. Harper failed to produce sufficient evidence to raise
a genuine issue of material fact on the question of gross negligence.
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Harper (Cathy) v. Dep 't ofCorr., No. 95511-5
J
WE CONCUR:
cfW
*2,
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