In Re The Estate Of: Michael Kerns ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MICHAEL KERNS, as the Personal ) No. 79649-6-I
Representative of the ESTATE OF )
CHRISTOPHER KERNS, ) DIVISION ONE
Appellant/Cross-Respondent, ) UNPUBLISHED OPINION
v. )
WASHINGTON STATE PATROL and )
STATE OF WASHINGTON, )
Respondents/Cross-Appellants.
) FILED: May 13, 2019
ANDRUS, J. — The Estate of Christopher Kerns (the Estate) contends
Washington State Patrol (WSP) should be held liable for failing to arrest Joseph
Schaffer and allowing him to drive while impaired by drugs. Because the Estate
has no evidence that WSP Trooper Darrel Nash knew Schaffer was driving under
the influence, the Estate’s claims are barred by the public duty doctrine. We affirm
the dismissal of this lawsuit.
FACTS
On April 17, 2014, at 5:47 p.m., Trooper Nash responded to a vehicle
accident on Interstate 5 (1-5) near Joint Base Lewis-McChord (JBLM). Diane
Garvey called the police after Joseph Schaffer rear-ended her vehicle. By the time
Trooper Nash arrived, Garvey and Schaffer had pulled off the freeway and were
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parked outside the main gate of JBLM. Trooper Nash talked to both drivers, and
after Schaffer admitted he failed to stop and “tapped” Garvey’s vehicle’s rear
bumper, Trooper Nash cited him for following too closely and released both drivers.
Trooper Nash saw no evidence Schaffer was impaired by drugs or alcohol. Shaffer
did not have slurred speech, watery eyes, speech abnormalities, or difficulty
walking. Garvey testified that while she thought Schaffer acted oddly, he “did not
seem drunk,” and was not slurring or stumbling around.
At approximately 7:00 p.m. that evening, Schaffer ran a red light in Puyallup
and struck pedestrian Christopher Kerns, who died at the scene. A WSP
toxicology test showed Schaffer had very high levels of oxycodone, diazepam
(Valium), and nordiazepam, as well as therapeutic levels of clonazepam
(Clonopin), and alprazolam (Xanax), in his blood approximately three hours after
the accident. According to the Estate’s toxicology expert, Dr. Janci C. Lindsay,
Ph.D., the levels of opiate narcotics in his system were “toxic and lethal.”
Schaffer typically took both oxycodone and OxyContin three or four times a
day to deal with back pain and was prescribed clonazepam for anxiety, which he
took daily. On the day of the accident, Schaffer drove to Seattle to see a doctor.
He claimed he did not take his normal dosage of medications before he left home
because he knew he would be driving. He was, however, carrying some pills in a
vial in case his car broke down or he got stuck in Seattle, and needed his
medications. He testified that in the immediate aftermath of the accident, he was
afraid to get caught with narcotics out of the prescribed bottles, so he ingested the
contents of the vial, which contained two oxycodone pills, two clonazepam pills,
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and perhaps a Xanax or an Ativan. Schaffer denied taking any drugs before hitting
Kerns, with the possible exception of taking a morning dose of oxycodone.
The credibility of Schaffer’s testimony that he took no medications until after
killing Kerns is suspect. An eyewitness to the fatal accident, Mike Parks, saw
Schaffer strike Kerns, and then accelerate as he swerved and crashed into cars
parked at the Korum Ford dealership. Parks saw Schaffer crawl out of his car
within minutes of the crash, stumbling and struggling to walk. When Parks spoke
with Schaffer, he was unable to speak without slurring. Parks followed Schaffer
into a bathroom of the dealership where Parks had to help Schaffer call his wife
because Schaffer could not operate his phone or recall his wife’s number. Parks
was under the impression Schaffer was impaired by medications. Schaffer
testified that when police arrived, he “was higher than a kite.” He admitted telling
police officers immediately after the accident that he had taken OxyContin at some
point that day. Schaffer subsequently pleaded guilty to vehicular homicide and
was sentenced to 60 months in prison.1
The Estate filed suit against WSP, claiming Trooper Nash was negligent in
failing to recognize that Schaffer was under the influence of drugs and breached a
duty he owed to Kerns to enforce traffic laws, investigate vehicular accidents, and
restrain individuals driving under the influence of drugs.
1 Under ROW 46.61.520, a driver is guilty of vehicular homicide if the driver causes the death of
another while operating a motor vehicle (a) while under the influence of intoxicating liquor or any
drug, as defined by ROW 46.61.502; or (b) in a reckless manner; or (c) with disregard for the safety
of others. Because none of the criminal pleadings are in the record, we do not know the basis for
the conviction. We assume that, given the level of drugs found in his blood, Schaffer pleaded guilty
based on the act of causing Kerns’ death while driving under the influence of drugs.
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WSP moved for summary judgment, arguing the public duty doctrine barred
the Estate’s negligence claims. WSP relied on the testimony of Trooper Nash and
Garvey that they saw no signs that Schaffer was impaired and on Schaffer’s
testimony that he was not impaired when he spoke to Trooper Nash outside of
JBLM.
The Estate presented evidence primarily through its toxicology expert, Dr.
Lindsay, who testified that the high level of drugs and their metabolites in
Schaffer’s blood were inconsistent with Schaffer having ingested pills after the 7:00
p.m. accident and were more consistent with Schaffer having taken a double dose
of the medications on the morning of the accidents before Schaffer left for Seattle.
She also testified it was probable that Schaffer ingested more OxyContin or
oxycodone and alprazolam sometime after his doctor’s appointment in Seattle and
before striking Kerns. In her opinion, the toxic level of opiates and
benzodiazepines in Schaffer’s blood would have caused severe psychomotor
impairment, manifested as delayed perception and reaction time, slowed and
sluggish responses, incoordination, respiratory depression, and loss of
consciousness. Based on this evidence, the Estate argued it would have been
obvious to Trooper Nash that Schaffer was intoxicated and Nash should have
arrested him for violating RCW 46.61 .502.2 It contends that had such an arrest
occurred, Schaffer would have been unable to continue driving in an impaired state
and would not have killed Kerns.
2 ROW 46.61.502(1) makes it a crime to drive while under the influence of intoxicating liquor or any
drug. The crime is a gross misdemeanor unless the driver has a certain number or type of prior
DUI convictions, in which case the offense becomes a class B felony. ROW 46.61.502(6).
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The trial court granted WSP’s motion for summary judgment, and the Estate
appeals.
ANALYSIS
In any negligence action, the plaintiff must establish that the defendant
owed a duty of care and breached that duty. Atherton Condo. Apartment-Owners
Ass’n Bd. of Dir. v. Blume Dev. Co., 115 Wash. 2d 506, 528, 799 P.2d 250 (1990).
Determining an existence of a duty is a question of law. Id. The public duty
doctrine precludes liability for a public official’s negligent conduct if the duty was
owed to the general public. Id. at 529.
There are recognized exceptions to the public duty doctrine. Bailey v. Town
of Forks, 108 Wash. 2d 262, 268, 737 P.2d 1257 (1987). At issue here is the “failure
to enforce” exception. Under this exception, a duty owed to the general public
becomes a duty owed to a plaintiff when (1) government agents who are
responsible for enforcing statutory requirements actually know of a statutory
violation, (2) the government agents have a statutory duty to take corrective action
but fail to do so, and (3) the plaintiff is within the class the statute is intended to
protect. kI. The plaintiff has the burden to establish each element of the failure to
enforce exception, and the court must construe the exception narrowly. Atherton,
115 Wash. 2d at 531.
The Estate asserts the trial court erred in concluding on summary judgment
that the public duty doctrine bars its claims. This court reviews an order of
summary judgment de novo. Scrivener v. Clark CoIl., 181 Wash. 2d 439, 444, 334
P.3d 541 (2014). Summary judgment is appropriate if evidence shows there is no
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genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. CR 56(c).
The Estate argues it presented sufficient evidence to demonstrate that
Trooper Nash actually knew Schaffer was driving under the influence of drugs.
Whether a public official had actual knowledge of a statutory violation is a question
of fact. Weaver v. Spokane County, 168 Wash. App. 127, 133-34, 275 P.3d 1184
(2012). But this court may resolve issues of fact on summary judgment if
reasonable minds could reach only one conclusion from the evidence presented.
Id.
There is no direct evidence Trooper Nash actually knew Schaffer was
driving under the influence. Trooper Nash testified Schaffer did not “display any
signs of impairment.” Shaffer’s speech was not slurred, his eyes were not red or
watery, he walked normally, and he responded appropriately to all of Trooper
Nash’s questions. Trooper Nash observed no prescription bottles in Schaffer’s
vehicle and did not smell alcohol on Schaffer’s person or in his vehicle. Garvey’s
testimony largely corroborated that of Trooper Nash. Garvey testified Schaffer “did
not seem drunk to me. He wasn’t, like, slurring his words and stumbling around or
anything.”
Direct evidence of actual knowledge of a statutory violation is sometimes
difficult to obtain and, as a result, circumstantial evidence can support a finding of
actual knowledge. Waite v. Whatcom County, 54 Wash. App. 682, 686-87, 775 P.2d
967 (1989). The Estate points to three facts to argue a reasonable jury could reject
Trooper Nash’s testimony as not credible. First, the level of drugs and metabolites
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in Schaffer’s blood was so high that, according to Dr. Lindsay, Schaffer had to have
been seriously impaired when Trooper Nash saw him. Second, Garvey testified
she thought Schaffer was acting oddly by smiling inappropriately and standing too
close to her when they spoke. Third, Schaffer exhibited a lack of control over his
car by following Garvey too closely on 1-5 and then demonstrated confusion when
he got into Trooper Nash’s patrol car when instructed to return to his own vehicle.
We conclude these facts do not create a genuine issue of material fact of
actual knowledge. First, Dr. Lindsay’s opinions as to Schaffer’s level of intoxication
were based on toxicology results not known to Trooper Nash.3 Regardless of the
amount of drugs Schaffer actually ingested before his accident with Garvey, no
one saw him exhibiting the kind of symptoms Dr. Lindsay suggests he should have
displayed. No reasonable juror could conclude Trooper Nash actually knew
Schaffer had toxic levels of opiates in his bloodstream.
While Garvey thought Schaffer was acting odd, she never shared her
impressions of Schaffer with Trooper Nash. Again, even if she thought Schaffer
was behaving strangely, that was not information Trooper Nash knew.
Finally, neither the fact that Schaffer committed a traffic infraction nor the
fact that he misunderstood Trooper Nash’s instructions to return to his car makes
it more probable than not that Trooper Nash actually knew Schaffer was impaired
~ Under the Fourth Amendment of the United States Constitution and article I, section 7 of the
Washington Constitution, a warrantless arrest must be based on probable cause. State v. Bonds,
98 Wash. 2d 1, 8—9, 12, 653 P.2d 1024 (1982); State v. Gillenwater, 96 Wash. App. 667, 670, 980 P.2d
318 (1999). Probable cause exists where the facts and circumstances within the arresting officer’s
knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant
a person of reasonable caution to believe that an offense has been committed. State v. Terrovona,
105 Wash. 2d 632, 643, 716 P.2d 295 (1986). Probable cause to arrest must be judged on the facts
known to the arresting officer before or at the time of arrest. Gillenwater, 96 Wash. App. at 670.
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by drugs. The evidence might support a contention that Trooper Nash should have
known that something was amiss. But the “should have known” standard has been
explicitly rejected by our Supreme Court in the context of the failure to enforce
exception. ~ Atherton, 115 Wash. 2d at 532-33 (constructive knowledge of
violation is insufficient; requirement of actual knowledge does not encompass facts
which governmental agent should have known).
Our Supreme Court’s holding in Bailey v. Town of Forks does not require a
different result. In that case, the Court held that if a police officer has actual
knowledge that a person is intoxicated, that officer has a duty to prevent the person
from driving an automobile. 108 Wash. 2d at 269. The Bailey court reinstated an
injured motorist’s claim against the town of Forks because the town police officer
allegedly permitted a drunk bar patron to drive his truck home. ki. at 264. But that
case was decided on the pleadings, not on summary judgment. Id. And the
Supreme Court assumed “the truth of every fact well pleaded by Ms. Bailey.” kI.
Bailey specifically alleged that the police officer knew the bar patron was
“intoxicated to such an extent as to be physically and legally unfit to drive his pickup
truck and therefore, a hazard to other users of the highways,” and nevertheless
ordered him to leave the area and personally observed him get behind the wheel
and drive away. j.ç~ at 264-65. These factual allegations sufficed to survive the
town’s motion to dismiss on the pleadings.
On summary judgment, however, “the adverse party may not rest on mere
allegations in the pleadings but must set forth specific facts showing that there is
a genuine issue for trial.” LaPlante v. State, 85 Wash. 2d 154, 158, 531 P.2d 299
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(1975). The procedural posture of this case makes it distinguishable from Bailey.
Based on this record, there is insufficient evidence from which a jury could
conclude that Trooper Nash actually knew Schaffer was impaired by drugs in the
immediate aftermath of the fender bender with Garvey. Thus, the public duty
doctrine bars the Estate’s claims.4 Because we affirm the court’s dismissal of the
Estate’s claim, we will not address WSP’s conditional cross-appeal.
Affirmed.
WE CONCUR:
IL IA. a ___________________
~ The Estate also asks this court to abrogate or limit the public duty doctrine, asserting it is against
public policy. But this argument has been explicitly rejected by our courts. ~. Johnson v. State,
164 Wash. App. 740, 754, 265 P.3d 199 (2011) (“Until such time as our Supreme Court overrules
itself, we are bound by its holding that the public duty doctrine applies in the State of Washington.”);
Weaverv. Spokane County, 168Wn. App. 127, 143, 275 P.3d 1184 (2012) (same).
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