Christine Foe v. Keith Willson ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTINE FOE,
No. 78848-5-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
KEITH WILLSON,
Appellant. FILED: November 4, 2019
CHUN, J. — Christine Foe sued Keith Willson, claiming negligence,
negligent infliction of emotional distress, negligent entrustment, and unlawful
imprisonment. The trial court granted Willson’s motion for summary judgment
and dismissed Foe’s claims. Foe appeals. Because Foe does not provide a
basis to reverse the trial court’s decision, we affirm.
I. BACKGROUND
Foe suffers from schizoaffective disorder, bipolar type. In January 2017,
Foe experienced a manic episode that resulted in the City of Kirkland charging
her with criminal trespass in the second degree. Foe asked Willson, a friend, for
help posting bail and he did so.
In February 2017, in the same case, Foe and Wilison attended a hearing
in which the Kirkland Municipal Court released Foe on bail but ordered her to
return for a pretrial hearing on the morning of March 20. Willson then drove Foe
No. 78848-5-112
to Portland, Oregon (where Foe resided) and she repaid him the bail amount.
Foe then declined Willson’s offer to assist further with the Kirkland criminal case.1
On March 10, Foe experienced another manic episode while driving in
Oregon. She failed to stop for a pursuing police officer and “got into a serious
car accident.” A grand jury in Washington County2 indicted Foe for fleeing a
police officer, reckless driving, and reckless endangerment. During Foe’s time in
jail, she did not call or request any help from Willson. Nevertheless, Willson still
learned about Foe’s Oregon criminal case.
On March 19, Willson drove from his home in Mukilteo, Washington, to
Oregon with the intention of transporting Foe to the March 20 court appearance
in Kirkland. Willson assisted in obtaining Foe’s release from jail. Both Foe and
Willson signed a “Release Agreement” with the Washington County Circuit Court.
In pertinent part, Foe agreed to: (1) appear in the Washington County court for a
hearing on March 20 at 4:00 p.m., (2) obey all laws, and (3) “travel to the state of
Washington for court purposes.” In another section of the agreement, Willson
signed a statement that said:
I agree to be responsible for and supervise the within named
defendant [Foe] and to notify the Court immediately if the defendant
breaches any of the conditions of [their] release. I agree to be aware
of the conditions of this release, the defendant’s schedule of court
appearances and to aid the defendant in attending all of his/her court
appearances. I understand that my obligations under this agreement
continue in full force and effect until the case(s) is/are completed in
court, provided the defendant is on release status. I understand that
1 Foe, age 39 at the time, “wanted nothing to do with” 81-year-old Willson. Foe felt
uncomfortable around Wilison because Foe perceived some of Wilison’s actions as unwanted
romantic gestures.
2 Washington County is in the State of Oregon.
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No. 78848-5-1/3
to knowingly aid the defendant in a breach of his/her release
agreement or to knowingly fail to report the defendant’s breach is
punishable by CONTEMPT OF COURT with a penalty of 6 months
in jail or $500 fine or both.
Willson believed that they could drive to Mukilteo in the afternoon of
March 19, appear for the Kirkland court appearance the next morning, and drive
back to Oregon for Foe’s 4:00 p.m. court appearance.
After leaving the jail, they ate at a nearby fast-food restaurant and got into
Willson’s car to drive north to Mukilteo. Foe neither objected nor refused to get
into Willson’s car. Before reaching the freeway, however, Foe told Willson: “This
is my car. I don’t want you in it.” Foe then moved the steering wheel and Willson
stopped the car. Foe exited the car and Wilison “ordered” her to get back in the
car. Foe reentered the car because “[i]t was almost dark” and they “were in a
rural area.”
During the 200-mile journey north that evening, Foe acted bizarrely.
Among other things, she jumped back and forth from the front to the back seat of
the car, stuck parts of her body out the car window, played with the steering
wheel and dashboard controls, threw Willson’s mobile phone out of the car,
talked incoherently, and took off clothing.3
After arriving at Willson’s home, Foe slept in an upstairs room that night
without further incident.
On the morning of March 20, Willson attempted to get Foe to attend the
Kirkland Municipal Court pretrial hearing, but she refused. Wearing only
~ Both parties attribute Foe’s behavior in the car that evening to her having a manic
episode.
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No. 78848-5-1/4
sweatpants and a bra, Foe went into Willson’s backyard and rolled on the grass.
Willson then pulled Foe by the hands and “forced [her] to come with him to
court.” But Foe ran outside the house again, this time into the front yard, and
continued to act in a bizarre manner. Officers of the Mukilteo Police Department
responded to Willson’s house “for a report of a suspicious female” and for a
“welfare check.”
When Officer Jeremy Ballinger arrived on the scene, Foe “quickly brushed
past” Willson, went into his house, and ran into an upstairs room. The room
contained a number of antique pistols, including one stored “inside a wooden box
on a desk” and the others “in a closet in leather cases.”4 Wilison told Officer
Ballinger that Foe was “a family friend who was bi-polar and was having an, [sic]
‘episode.”
As Sergeant Steven Fanning stood in Willson’s front yard, Foe appeared
at an upstairs window. Sergeant Fanning saw Foe with a handgun. She then
pointed the gun at Sergeant Fanning and proceeded to drop various items out of
the second floor window.5 Officers called for additional assistance and led
Wilison away from the house.
Members of a SWAT6 team responded and relieved the officers. At some
point during the process, they shot Foe in the leg with a rubber bullet. The
~ Wilison told the police officers that “there were numerous firearms in the room” that Foe
occupied but “he did not think there was any ammunition in the room.”
~ Among the items Foe dropped were glass jars filled with coins, a metal folding chair,
papers, and a pistol.
6 Special Weapons and Tactic (SWAT).
4
No. 78848-5-1/5
SWAT team eventually took Foe into custody.
In September 2017, Foe pleaded guilty in Snohomish County Superior
Court to third degree assault for pointing a pistol at Sergeant Fanning.
In January 2018, Foe filed a Complaint in the Snohomish County Superior
Court against Willson, asserting claims for negligence, intentional infliction of
emotional distress, negligent infliction of emotional distress, negligent
entrustment, and unlawful imprisonment. Foe later filed an Amended Complaint
and, subsequently, withdrew the intentional infliction of emotional distress claim.
In June 2018, Willson moved for summary judgment dismissal of all of
Foe’s remaining claims. Willson argued that Foe could not establish all the
elements of the asserted claims. Foe responded to Willson’s motion and
supported that response with her declaration, along with a single exhibit.
In July 2018, at the summary judgment hearing, the trial court initially
struck portions of Foe’s declaration as hearsay. Then, after considering the
pleadings and hearing arguments from the parties, the trial court granted
Willson’s motion and dismissed all of Foe’s claims. Foe appeals.
II. DISCUSSION
Foe claims the trial court’s summary judgment order was improper for
various reasons.7 We disagree and affirm.
~ As an initial matter, we observe that portions of Foe’s briefing are incomprehensible, In
violation of the Rules of Appellate Procedure, in certain instances, Foe fails to provide coherent
legal argument supported by citations to authority or references to the record. RAP 1O.3(a)(6).
An appellate court will not search through the record for evidence relevant to a litigant’s
arguments. Mills v. Park, 67 Wash. 2d 717, 721, 409 P.2d 646 (1966). Moreover, we may decline
to consider issues unsupported by legal argument and citation to relevant authority. Saunders v.
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No. 78848-5-1/6
A. Standard of Review
We review an order granting summary judgment de novo. Lybbert v.
Grant County, 141 Wash. 2d 29, 34, 1 P.3d 1124 (2000). Summary judgment is
appropriate where, viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Bercjer v. Sonneland, 144 Wash. 2d 91,
102, 26 P.3d 257 (2001).
B. Preliminary Issue
Foe assigns error to the trial court’s failure to identify the portions of her
declaration that it struck as hearsay and refused to consider at summary
judgment. But because Foe does not support this claim of error with legal
authority or argument, we decline to address it.8 Island County v. Mackie, 36
Wash. App. 385, 395, 675 P.2d 607 (1984) (“It is well settled that assignments of
error unsupported by legal argument need not be considered on appeal.”); see
also RAP 10.3(a)(6).
C. False Imprisonment
Foe first argues that the trial court erred by summarily dismissing the
“false imprisonment”9 claim.
Lloyd’s of London, 113 Wash. 2d 330, 345, 779 P.2d 249 (1989). Thus, to the extent that we are
able to discern Foe’s arguments on appeal, we address them.
8 And in any event, the consideration of the apparent hearsay portions of the declaration
does not affect our analysis.
~ Foe uses the terms “false imprisonment” and “unlawful imprisonment” interchangeably.
6
No. 78848-5-1/7
“In an action for false imprisonment, the plaintiff must prove that the liberty
of his or her person was restrained.” Moore v. Pay’N Save Coni, 20 Wash. App.
482, 486, 581 P.2d 159 (1978) (citing W. PROSSER, LAW OF TORTS § 11(4th ed.
1971)). A person is restrained when “deprived of either liberty of movement or
freedom to remain in the place of [their] lawful choice.” Moore, 20 Wash. App. at
486. Such restraint “may be accomplished by physical force alone, or by threat
of force, or by conduct reasonably implying that force will be used.” Moore, 20
Wash. App. at 486. However, if “the undisputed facts indicate that the person
voluntarily accompanied” another individual to a location, “the person is not
restrained or imprisoned as a matter of law.” Moore, 20 Wash. App. at 486-87
(citing James v. MacDouqall & Southwick Co., 134 Wash. 314, 235 P. 812
(1925)).
Even when viewing the evidence most favorably to Foe, there are no facts
showing that Willson deprived Foe of liberty of movement. Rather, the evidence
indicates that Foe voluntarily entered an agreement with an Oregon court to
travel with Wilison “to the state of Washington for court purposes.”1° Upon
release from jail in Oregon, Foe did not object to getting into Wilison’s car. Even
after forcing Willson to stop the car by pulling on the steering wheel, Foe chose
to reenter Willson’s car on their journey north to Mukilteo.
Upon arriving in Mukilteo, Foe slept overnight at Willson’s home. There is
no evidence that Willson restricted Foe’s freedom of movement during that time.
10 Though Foe asserts that Willson used a “false identity” to remove Foe from jail, she
failed to provide any admissible evidence to support that assertion.
7
No. 78848-5-1/8
Nor is there any evidence that, on the following day, Willson limited Foe’s
freedom by forcing her to remain inside his home. On the morning of March 20,
Foe ran into Wilison’s back yard. After Willson pulled her hands, Foe “ran
outside” into the front yard. Once police officers arrived on the scene, Foe ran by
Willson and into an upstairs room. The evidence indicates that Willson was
unable to restrict Foe’s ability to move as she desired. Under these
circumstances, we conclude that WilIson’s actions did not confine Foe in a
manner that deprived her of freedom of movement. See RESTATEMENT (SECOND)
OF TORTS § 36 (1965).h1 The trial court did not err in dismissing Foe’s false
imprisonment claim.12
D. Negligence
Foe next argues that the trial court erred by dismissing the negligence
claim. Foe contends that, based on their special relationship and Willson’s
awareness of her bipolar diagnosis, he had a duty to secure her safety
(e.g., prevent Foe from engaging in criminal activity).
~ Section 36 states:
(1) To make the actor liable for false imprisonment, the other’s confinement
within the boundaries fixed by the actor must be complete.
(2) The confinement is complete although there is a reasonable means of
escape, unless the other knows of it.
(3) The actor does not become liable for false imprisonment by intentionally
preventing another from going in a particular direction in which he [or she) has
a right or privilege to go.
12 Given our disposition of this claim, we need not address Foe’s assertion that the trial
court interpreted the parties’ release agreement with the Oregon court as overriding Willson’s
duty not to engage in false imprisonment.
8
No. 78848-5-1/9
To establish negligence, a plaintiff must prove four basic elements: “(I)
the existence of a duty owed to the complaining party; (2) a breach of that duty;
(3) resulting injury; and (4) that the breach was the proximate cause of the
injury.” Folsom v. Burger King, 135 Wash. 2d 658, 671, 958 P.2d 301 (1998).
Because ‘a negligence action will not lie if a defendant owed a plaintiff no duty of
care, the primary question is whether a duty of care existed.” Folsom, 135
Wash. 2d at 671; Funkhouser v. Wilson, 89 Wash. App. 644, 653, 950 P.2d 501
(1998) (“Summary judgment dismissal of negligence claims is proper if the
defendant owed no duty to the plaintiff.”). “The existence of a duty is a question
of law.” Folsom, 135 Wash. 2d at 671.
Washington courts recognize a limited duty to control the actions of a third
person to prevent harm to others “in cases where: (1) a ‘special relationship’
exists between the defendant and either the victim or the tort-feasor; or (2) the
defendant acts or fails to act while knowing that doing so involves an
unreasonable risk of harm to the plaintiff via the conduct of the tort-feasor.”
Funkhouser, 89 Wash. App. at 653 (citing RESTATEMENT (SECOND) OF TORTS § 315;
§ 302B; see also Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash. 2d 217, 227-30,
802 P.2d 1360 (1991)); see also Webstad v. Stortini, 83 Wash. App. 857, 866, 924
P.2d 940 (1996) (“Furthermore, the law provides no general duty to protect
others from self-inflicted harm[.]”) (citing Donaldson v. Young Women’s Christian
Ass’n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995)).
9
No. 78848-5-1110
A duty of care is warranted by the existence of a “special relation”
between the parties. RESTATEMENT (SECOND) OF TORTS § 315 (1965). Section
315 provides:
There is no duty so to control the conduct of a third person as to
prevent him [or her] from causing physical harm to another unless
(a) 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, or
(b) a special relation exists between the actor and the other which
gives to the other a right to protection.
Our Supreme Court has instructed that a duty will be imposed under § 315
“only upon a showing of a ‘definite, established and continuing relationship
between the defendant and the third party.” Taqciart v. State, 118 Wash. 2d 195,
219, 822 P.2d 243 (1992) (quoting Honcoopv. State, 111 Wash. 2d 182, 193, 759
P.2d 1188 (1988)).
“One who takes charge of a third person whom he [or she] 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 [or
her] from doing such harm.” RESTATEMENT (SECOND) OF TORTS § 319 (1965).
The Taciciart case is instructive here.
In Taqc~art, our Supreme Court concluded that by virtue of their statutory
authority to supervise parolees, parole officers “take charge” of them:
Parole officers have the statutory authority under RCW 72.04A.080
to supervise parolees. The State can regulate a parolee’s
movements within the state, require the parolee to report to a parole
officer, impose special conditions such as refraining from using
alcohol or undergoing drug rehabilitation or psychiatric treatment,
and order the parolee not to possess firearms. The parole officer is
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No. 78848-5-I/li
the person through whom the State ensures that the parolee obeys
the terms of his or her parole. Additionally, parole officers are, or
should be, aware of their parolees’ criminal histories, and monitor, or
should monitor, their parolees’ progress during parole. Because of
these factors, we hold that parole officers have “taken charge” of the
parolees they supervise for purposes of § 319. 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.
Tacicjart, 118 Wash. 2d at 219-20.
The Taqqart court then held “that a parole officer may ‘take charge’ of a
parolee, thereby assuming the duty to protect against reasonably foreseeable
dangers, despite the absence of a custodial relationship and without exercising
the ‘continuing hourly or daily dominance and dominion’ over that parolee.”
TaQclart, 118 Wash. 2d at 223-24 (quoting Fox v. Custis, 235 Va. 69, 372 S.E.2d
373 (1988)).
Here, WilIson agreed with an Oregon court to supervise Foe in traveling to
Washington State for court purposes and to be responsible for returning Foe to
Oregon for another court appearance. The critical question, then, is whether
Willson “took charge” of Foe by virtue of that agreement. The record before us
indicates that Willson had none of the responsibilities or functions identified by
the Taggart court as indicia of control.
First, unlike a parole officer who enforces the terms of parole, Willson’s
responsibilities included only being aware of Foe’s “schedule of court
appearances” and aiding Foe “in attending all” court appearances. It cannot be
11
No. 78848-5-1/12
said that Wilison was charged with supervising or enforcing any other aspects of
Foe’s conduct.
Second, if Foe failed to perform in accordance with the agreement,
Willson’s only recourse would have been only to report that she was not in
compliance. Nothing in the record indicates that Willson would have been
required to compel Foe’s performance. In fact, the evidence on record
establishes that Willson was unable to influence Foe’s behavior. There is no
evidence to show that Foe’s failure to perform would have triggered other duties
for Willson. In short, the facts of this case do not indicate that Willson “took
charge” of Foe.
Foe also argues that, by removing her from the Oregon jail and
transporting her to Washington, Willson undertook a duty to “secure the safety” of
Foe pursuant to RESTATEMENT (SECOND) OF TORTS § 324 (1965). Foe’s reliance
on § 324 here is misplaced.
In the course of discussing “the importance of ‘special relationships’ in
relation to tort law,” our Supreme Court observed the following about tort actions
arising out of a duty imposed by § 324:
Some torts, for example, those involving the failure to rescue or warn
after a gratuitous promise to do so, require some type of
representation, either express or implied, by the promisor to the
promisee or a third party, to create a special relationship . .The.
failure to do what is gratuitously promised, followed by injury
stemming from the failure, is the very essence of these types of torts.
See RESTATEMENT (SECOND) OF TORTS § 324 (1965). In this context,
the assurances made by the promisor both create the relationship as
well as define the duty, that is, if the promisor fails to do what [they]
promised to the detriment of the promisee, the duty has necessarily
12
No. 78848-5-1113
been breached. Importantly, the duty is limited to what is promised.
The promise both creates and limits the duty.
Cummins v. Lewis County, 156 Wash. 2d 844, 867-68, 133 P.3d 458 (2006)
(internal citations omitted).
Here, there is no evidence in the record that Wilison made any gratuitous
promises to Foe. Nor is there any evidence that Wilison failed to fulfill any
promise to Foe that resulted in Foe being injured.
Absent evidence that Willson took charge of, or gratuitously made and
broke a promise to, Foe, no special relationship can be said to exist between
them. Furthermore, absent a special relationship, Willson had no duty, as a
matter of law, to control Foe in an effort to prevent Foe from engaging in criminal
activities.
In failing to establish a duty, Foe cannot sustain a negligence claim
against Willson. The trial court did not err in summarily dismissing it.13
E. Negligent Entrustment
Foe also argues that the trial court erred by dismissing the negligent
entrustment claim because Willson knew that she could not be entrusted with
firearms.
A party in control of an instrumentality, such as a firearm, may be held
liable for damages resulting from the use of that instrumentality when it is
supplied or entrusted to someone who is incompetent. Bernethy v. Walt Failor’s,
Inc~ 97 Wash. 2d 929, 933-34, 653 P.2d 280 (1982); RESTATEMENT (SECOND) OF
13 Because all four elements of a negligence claim must be met, and Foe fails to prove
the first element, we need not address Foe’s arguments regarding the remaining elements.
13
No. 78848-5-1/14
TORTS § 390 (1965).14 But the plain meaning of the word “entrustment” requires
some manner of agreement or consent, either express or implied, to relinquish
control of the instrumentality in question.15
The facts here, even when viewed in Foe’s favor, do not show that Willson
entrusted Foe with firearms. The evidence establishes that, when police officers
arrived, Foe ran inside Willson’s home and into a second-floor room. There is no
evidence that Wilison instructed Foe to run anywhere, much less that particular
room. Once in that room, Foe found several of Willson’s firearms. But there is
no evidence that Willson affirmatively agreed to relinquish control of the firearms
to Foe. Nor is there any evidence that Willson’s firearms were loaded at the
time. Consequently, Foe’s negligent entrustment claim fails. The trial court
correctly dismissed it.
F. Negligent Infliction of Emotional Distress
Foe argues that the trial court erred by summarily dismissing the negligent
infliction of emotional distress claim because the court failed to consider
evidence of Foe’s symptomology.
14 Section 390 provides:
One who supplies directly or through a third person a chattel for the use of
another whom the supplier knows or has reason to know to be likely because
of [their] youth, inexperience, or otherwise, to use it in a manner involving
unreasonable risk of physical harm to [themselves] and others whom the
supplier should expect to share in or be endangered by its use, is subject to
liability for physical harm resulting to them.
15 See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 759 (2002) (defining “entrust” as
“to confer a trust upon; commit or surrender to another with a certain confidence regarding [their]
care, use, or disposal of.”); BLAcK’s LAW DICTIONARY 674 (11th ed. 2019) (“Entrust” means “To
give (a person) the responsibility for something, usu[ally] after establishing a confidential
relationship.”).
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No. 78848-5-1115
In addition to establishing the elements of negligence, a plaintiff asserting
a negligent infliction of emotional distress claim must establish that the emotional
distress is “manifested by objective symptomatology.” Hunsley v. Giard,
87 Wash. 2d 424, 436, 553 P.2d 1096 (1976). “[T]here must be objective evidence
regarding the severity of the distress and the causal link” between the
defendant’s actions and “the subsequent emotional reaction” of the plaintiff.
Haubrvv. Snow, 106 Wn.App. 666,679,31 P.3d 1186 (2001).
Here, Foe submitted only one exhibit—a Social Security Administration
Notice dated June 20, 2018—in an attempt to support this claim. While the
Social Security Notice concluded that Foe met conditions for disability payments
as of April 2017, it did not correlate any of Foe’s symptoms to a diagnosable
emotional disorder that was proximately caused by the March 19-20 incidents
giving rise to Foe’s claims against Willson. Thus, Foe failed to satisfy the burden
required. The trial court properly dismissed Foe’s negligent infliction of emotional
distress claim.
G. Other Evidence and Willson’s Motion to Strike
Lastly, Foe also claims other documentation exist that satisfies the
objective symptomology requirement, which Foe appends to the opening brief.
Foe failed to present this documentation to the trial court in response to
Wilison’s summary judgment motion. “On review of an order granting or deny a
motion for summary judgment the appellate court will consider only evidence and
issued called to the attention of the trial court.” RAP 9.12; see also Herron v.
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No. 78848-5-1/16
Tribune PubI’c~ Co., 108 Wash. 2d 162, 173 n. 4, 736 P.2d 249 (1987) (“On appeal
of a summary judgment order we cannot consider evidence not before the trial
court.”). Thus, because Foe failed to bring this documentation to the trial court’s
attention, we will not now consider it on appeal.16
We affirm.
WE CONCUR:
/
16 Foe asks us to consider the additional documentation and seeks to “supplement the
record with further document should it be deemed helpful.” Willson moves to strike the
documentation appended to Foe’s brief because Foe failed to present it to the trial court below.
We grant Willson’s motion to strike.
16