K.N.Z. v. Fred J. Beeman ( 2015 )

FILED
NOVEMBER 3, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
K.N.Z.; R.L.M., a minor; STEVE )
ZABRISKIE AND BETH ANNE ) No. 33001-0-111
LOBEY; DEAN MANNING AND )
SHERRY FAWVER, )
)
Appellants, )
) UNPUBLISHED OPINION
v. )
)
FRED J. BEEMAN, an individual; )
DEBBY DILLING AND JERRY )
DILLING, wife and husband and the )
marital community· composed thereof; and )
CHRIS BEEMAN, an individual, )
)
Respondents. )
SIDDOWAY, C.J. - The parents ofK.N.Z. and R.L.M.,l individually and on behalf
of their minor daughters, filed this negligence action against Fred Beeman and his
siblings, Debbie Dilling and Chris Beeman. 2 It is undisputed that Fred sexually molested
K.N.Z. and R.L.M. when they were young girls. The sole issue on appeal is whether the
trial court erred in granting summary judgment in favor of Fred's siblings because it
1A pseudonym is used for the children's names, consistent with the General Court
Order dealing with the use of children's names in opinions, orders, and rulings.
2 Fred Beeman and his brother, Chris, share the same last name. To avoid
confusion, this opinion refers to them by their first names. No disrespect is intended.
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concluded, as a matter of law, that they owed no duty to the plaintiffs. Because the trial
court correctly determined that no duty existed, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Fred had been good friends with K.N.Z.'s father, Steve Zabriskie, since high
school. Mr. Zabriskie met Ms. Dilling and Chris through their brother, although Fred's
siblings claim they were never anything more than acquaintances of Mr. Zabriskie. Ms.
Dilling does not recall ever meeting his daughter. The complaint alleges that Fred
molested K.N.Z. in 2000. Clerk's Papers (CP) at 2,251. The record indicates that Fred
was residing in the Vancouver area during this time, while Chris was living with his
parents in Grayland and Ms. Dilling was living in Federal Way. CP at 33, 60. Ms.
Dilling claims she never stayed with her brother while she was living in Federal Way,
and saw him only at family gatherings.
In 2001, Fred was charged with sexually molesting another child and ultimately
pleaded guilty to communicating with a minor for immoral purposes. CP at 223. As part
of his plea bargain, Fred was required to attend court-mandated counseling. The record
shows that Fred stayed with Mr. Zabriskie after the charges. CP at 3, 33-34. According
to Ms. Dilling, Mr. Zabriskie was Fred's "main support" during this time. CP at 34.
While Mr. Zabriskie stated in a declaration that he knew Fred spent a weekend in jail in
2001, he "did not know until much later that it was because he had molested a child." CP
at 79.
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In early 2003, Ms. Dilling and her husband moved to Oregon. Unable to find
work there, Ms. Dilling got a part-time job in a hospital in Vancouver and began working
there eight days a month. She stayed with Fred at his apartment in Vancouver during the
days she worked at the hospital. Later that year, Fred moved into his mother's house in
Vancouver. But because Fred was working two jobs and Ms. Dilling worked night shifts,
she claims they spent very little time together while she stayed with him in Vancouver.
R.L.M.'s father, Mr. Manning, lived down the street from the Beeman home in
Vancouver. According to Mr. Manning, he became good friends with Chris, and was
also "friendly" with Fred and Ms. Dilling. He claims Ms. Dilling and Chris both
socialized with the plaintiffs over the years. The complaint alleges that the misconduct
involving R.L.M. took place in 2004. CP at 2. In his declaration, Chris states that he
moved in with Fred during the spring of 2004, and lived with his brother until early 2005.
CP at 60. He claims he met Mr. Manning and Mr. Manning's daughter around this time.
Id. But Chris asserts he rarely stayed at the Vancouver house because he met his
significant other shortly after moving in with Fred.
Ms. Dilling states that she met Mr. Manning and R.L.M. at the Vancouver house
in "late 2005 or early 2006." CP at 34. She claims she had very little interaction with the
Mannings and that every time she saw their daughter, R.L.M. was accompanied by one of
her parents.
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In 2011, Fred was charged with two counts of first degree child molestation and
one count of first degree rape of a child for his sexual contact with K.N.Z and RL.M. CP
at 248~49. He ultimately pleaded guilty to two counts of indecent liberties and one count
of possession of depictions of a minor engaged in sexually explicit conduct. CP at 251.
Fred was sentenced to 75 months of confinement, and is currently serving that sentence.
The plaintiffs filed this civil lawsuit in 2012. In addition to the various claims
against Fred arising from his criminal conduct, the complaint alleged a negligence cause
of action against Ms. Dilling and Chris. CP at 6. Specifically, the plaintiffs alleged that
Ms. Dilling and Chris failed to exercise ordinary and reasonable care in (1) supervising
Fred, (2) warning the plaintiffs of Fred's sexual proclivities toward minor children, and
(3) preventing Fred's actions against K.N.Z. and RL.M. Id.
Both siblings moved to dismiss under CR 12(b)(6), or, in the alternative, for
summary judgment. CP at 56, 77. They argued that dismissal of the plaintiffs' claims
against them was required on the grounds that they owed no legal duty. After hearing
oral arguments from the parties, the trial court granted Ms. Dilling's and Chris's motions
for summary judgment. 3 The plaintiffs appeal.
3 The plaintiffs' claims against Fred remain pending .. CP at 316.
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ANALYSIS
The plaintiffs contend that the trial court erred in granting summary judgment in
favor of Ms. Dilling and Chris based on its determination that they owed no duty to the
plaintiffs. When reviewing an order for summary judgment, this court engages in the
same inquiry as the trial court. Folsom v. Burger King, 135 Wn.2d 658,663,958 P.2d
301 (1998). Summary judgment is properly granted when there is "no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law."
CR 56(c).
The party moving for summary judgment "bears the initial burden of showing the
absence of an issue of material fact." Young v. Key Pharm., Inc., 112 Wn.2d 216, 225,
770 P .2d 182 (1989). "Once the moving party has met its burden, the burden shifts to the
nonmoving party to set forth specific facts showing that there is a genuine issue for trial."
Rathvon v. Columbia Pac. Airlines, 30 Wn. App. 193,201,633 P.2d 122 (1981); CR
56(e). The party opposing summary judgment "may not rely on speculation,
argumentative assertions that unresolved factual issues remain, or in having its affidavits
considered at face value." Seven Gables Corp. v. MGMIUA Entm 't Co., lO6 Wn.2d 1,
13,721 P.2d 1 (1986); CR 56(e).
To prevail in a negligence action, a plaintiff must establish "(1) the existence of a
duty owed to the complaining party; (2) a breach of that duty; (3) injury; and (4) that the
claimed breach was a proximate cause of the resulting injury." Lauritzen v. Lauritzen, 74
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Wn. App. 432,438, 874 P.2d 861 (1994). '" [A]n indispensable factor to liability
founded upon negligence is the existence of a duty of care owed by the alleged
wrongdoer to the person injured.'" Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190,
194-95,15 P.3d 1283 (2001) (quoting Routh v. Quinn, 20 Cal. 2d 488, 491,127 P.2d 1(1942)). "Absent a duty of care, a defendant is not subject to liability for negligent
conduct." Lauritzen, 74 Wn. App. at 438.
Whether the defendant owed a duty of care is a question of law to be determined
by the court. Hertog v. City ofSeattle, 138 Wn.2d 265,275,979 P.2d 400 (1999). The
existence of a legal duty'" depends on mixed considerations of logic, common sense,
justice, policy, and precedent. '" Snyder v. Med. Servo Corp., 145 Wn.2d 233,243,35
P.3d 1158 (2001) (internal quotation marks omitted) (quoting Lords v. No. Auto. Corp.,
75 Wn. App. 589, 596, 881 P.2d 256 (1994). "Once this initial determination oflegal
duty is made, the jury's function is to decide the foreseeable range of danger thus limiting
the scope of that duty." Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929,933,653 P.2d
280 (1982).
Our Supreme Court has adopted the Restatement (Second) of Torts § 314 (1965),
which states, "The fact that the actor realizes or should realize that action on his part is
necessary for another's aid or protection does not of itself impose upon him a duty to take
such action." Under § 314, therefore, "[t]he legal duty to act for the protection of others
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requires more than knowledge ofa risk of harm." CJ.C v. Corp. o/Catholic Bishop 0/
Yakima, 138 Wn.2d 699, 738, 985 P.2d 262 (1999).
It is also well settled that, in general, '" a private person does not have a duty to
protect others from the criminal acts of third parties.'" Kim, 143 Wn.2d at 195 (quoting
Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 199,943 P.2d 286 (1997)). The
rationale for this rule is that "a person is normally allowed to proceed on the basis that
others will obey the law." Tortes v. King County, 119 Wn. App. 1,7,84 P.3d 252(2003); CJ.C, 138 Wn.2d at 738. In other words, "criminal conduct is usually not
reasonably foreseeable." Parrilla v. King County, 138 Wn. App. 427, 436, 157 P.3d 879(2007).
Washington courts have recognized exceptions to this general rule in two
situations. First, under Restatement § 315, a defendant may have a duty to guard against
the criminal conduct of a third party "where a special relationship exists between the
defendant and either the third party or the foreseeable victim of the third party's
conduct." Petersen v. State, 100 Wn.2d 421,426,671 P.2d 230 (1983). Additionally, in
limited circumstances, § 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 o/Seattle, 176
Wn.2d 427,429-30,433,295 P.3d 212 (2013). As our Supreme Court recently explained
in Robb, a defendant may have a duty
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to take action for the aid or protection of the plaintiff in cases involving
misfeasance (or affirmative acts) where the actor's prior conduct, whether
tortious or innocent, may have created a situation of peril to the other.
Liability for nonfeasance (or omissions), on the other hand, is largely
confined to situations where a special relationship exists.
Robb, 176 Wn.2d at 436; see also RESTATEMENT § 302 cmt. a ("The duties of one who
merely omits to act are more restricted, and in general are confined to situations where
there is a special relation between the actor and the other which gives rise to the duty").
The plaintiffs here contend that Ms. Dilling and Chris owed a duty under both
theories-the existence of a special relationship and the undertaking of an affirmative act.
We address these arguments in turn.
1. No Affirmative Act
The plaintiffs first argue that Chris's and Ms. Dilling's failure to warn them about
Fred's proclivities or to take reasonable steps to protect the minor girls from their brother
amounts to malfeasance. While the law generally recognizes no liability where the
plaintiffs injury results from the defendant's failure to act, Restatement § 302B provides
that "[a]n act or an omission may be negligent if the actor realizes or should realize that it
involves an unreasonable risk of harm to another through the conduct of the other or a
third person which is intended to cause harm, even though such conduct is criminal."
Our Supreme Court has held that a duty to protect against the criminal acts of third
parties may arise under this provision '" where the actor's own affirmative act has created
or exposed the other to a recognizably high degree of risk of harm through such
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misconduct.'" Washburnv. City ofFed. Way, 178 Wn.2d 732,757-58,310 P.3d 1275(2013) (quoting Robb, 176 Wn.2d at 434).
For example, § 302B recognizes a duty in cases where '" the defendant's property
affords a special (or peculiar) temptation or opportunity for crime' or if the defendant's
affirmative actions bring about a special 'temptation or opportunity' for criminal
conduct." Lauritzen, 74 Wn. App. at 443 (quoting Hutchins v. 1001 Fourth Ave. Assocs.,
116 Wn.2d 217, 230-32,802 P.2d 1360 (1991)). Or the defendant "may have committed
himself to the performance of an undertaking, gratuitously or under contract, and so may
have assumed a duty of reasonable care for the protection of the other, or even of a third
person." Robb, 176 Wn.2d at 434-35 (quoting RESTATEMENT § 302B cmt. e). Generally,
however, such a duty is "an express or an implied term of the agreement."
RESTATEMENT § 302B cmt. e.
The plaintiffs contend that "[t]his is not a case of mere inaction" because Ms.
Dilling and Chris undertook the responsibility of monitoring Fred to prevent the type of
harm that occurred in this case. Br. of Appellants at 6. For support, they point to the
following statement in Mr. Manning's declaration in which he described a conversation
he allegedly had with Chris after first learning that Fred had abused his daughter:
I then spoke again with Chris Beeman. He said that "we," which I took to
mean he and his sister, had been sent by their mother to Vancouver to keep
watch over Fred. Chris Beeman volunteered that they had failed in that
regard, and he apologized tearfully for that failure and for what had
happened to my daughter.
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CP at 82. The siblings dispute that they were sent to Vancouver to watch over their
brother, and also challenge the admissibility of Mr. Manning's statement on the grounds
that it is hearsay and is based solely on speculation and conjecture. Although Ms. Dilling
raised this objection below, the trial court never directly ruled on her motion to strike this
portion of Mr. Manning's declaration.
"A court cannot consider inadmissible evidence when ruling on a motion for
summary judgment." Dunlap v. Wayne, 105 Wn.2d529, 535, 716 P.2d 842 (1986). CR
56(e) explicitly requires that affidavits supporting or opposing a motion for summary
judgment (1) be made on personal knowledge, (2) set forth such facts as would be
admissible in evidence, and (3) affirmatively show "that the affiant is competent to testify
to the matters stated therein." See also Grimwood v. Univ. ofPuget Sound, Inc., 110
Wn.2d 355,359,753 P.2d 517 (1988).
Ms. Dilling first contends that Mr. Manning's statement is inadmissible hearsay.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). It is
inadmissible unless it falls under one of the recognized exceptions to the hearsay rule.
ER 802; State v. Chapin, 118 Wn.2d 681, 685, 826 P .2d 194 (1992). The statement Chris
allegedly made to Mr. Manning was made out of court, and was offered to prove that Ms.
Dilling and Chris had knowledge and control over their brother's conduct. Although the
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statement qualifies as an admission by a party opponent under ER 80 I (d)(2)4 and may
therefore be used against Chris, it is inadmissible hearsay as used against Ms. Dilling.
Ms. Dilling also asserts that Mr. Manning's statement is inadmissible because he
speculates that when Chris said "we," he was also referring to Ms. Dilling. Under ER
602, "[a] witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter." It is also well
settled that "speculation, argumentative assertions, opinions and conclusory statements
will not defeat [a summary judgment] motion." Suarez v. Newquist, 70 Wn. App. 827,
832,855 P.2d 1200 (1993).
But even if the court considered Mr. Manning's statement, the plaintiffs cannot
overcome summary judgment. That Ms. Dilling and Chris had been sent to watch over
Fred and to prevent him from molesting young children-even if true-shows only that
they had knowledge of his sexual proclivities. But as noted above, knowledge alone is
insufficient to create a duty. RESTATEMENT § 314. This evidence does not establish that
the siblings undertook an affirmative act which "created or exposed" the plaintiffs to the
risk of harm. Id. § 302B cmt. e; see also id. § 302 cmt. a (one who does an affirmative
4 ER 80 I (d)(2) provides that "[a] statement is not hearsay if [it is] offered against a
party and is ... the party's own statement, in either an individual or a representative
capacity."
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act may have a duty to protect others "against an unreasonable risk of harm to them
arising out o/the act") (emphasis added).
Absent evidence that K.N.Z.'s and R.L.M.'s parents were aware the siblings had
been tasked with watching over their brother, there is no reason to presume they would
have conducted themselves differently or limited their daughters' interactions with Fred.
The plaintiffs' own declarations show that they had no knowledge of any such
undertaking, or even that Fred posed any kind of threat to their daughters. CP at 79-83.
Accordingly, this is not a situation in which the actor's affirmative act was "intended or
likely to defeat a protection" the plaintiffs would otherwise have had in place,
Restatement § 302B cmt. e, nor which induced their reliance. See, e.g., Webstad v.
Stortini, 83 Wn. App. 857, 876,924 P.2d 940 (1996) (defendant had no duty to prevent
woman from committing suicide at his house where he "did not create or increase the risk
of harm to [the deceased], or induce her reliance, or prevent her from seeking assistance
from others").
Both parties cite Pamela L. v. Farmer, 112 Cal. App. 3d 206, 169 Cal. Rptr. 282(1980). In that case, the California Court of Appeals held that a wife owed a duty to three
minor girls who were sexually molested by her husband, whom she allegedly knew had
molested children in the past. Id. at 207-10. But unlike here, the wife's own affirmative
acts in that case increased the risk of harm. Id. at 210. For example, the wife invited the
children to play in her swimming pool, prepared refreshments to entice them, and
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encouraged the girls' parents to permit their daughters to come to her house by assuring
them that it would be "perfectly safe" for the girls to swim at their place because her
husband would be there. ld. The court held that, "[b]y encouraging and inviting the
children to be alone with [her husband] under circumstances where he would have
peculiar opportunity and temptation to commit such misconduct," a jury could find that
she unreasonably exposed the children to harm. ld. In contrast, the plaintiffs here
presented no evidence that Ms. Dilling and Chris ever encouraged or invited the girls to
come to the Beeman home, nor made any assurances to their parents that they would be
safe spending time alone with Fred.
The plaintiffs also argue this case involves an affirmative act because the siblings
"increased the risk of harm by facilitating [Fred's] interaction with R.L.M." Br. of
Appellants at 8. They assert that the siblings "socialized with plaintiffs, giving [Fred]
additional opportunities to engage in criminally improper acts." ld. at 7. The only
evidence they provide to support this assertion is Mr. Manning's statement that he was
"good friend [s]" with Chris, and was also "friendly" with Ms. Dilling. CP at 81. He
notes, for example, that Ms. Dilling attended his daughter's birthday party in 2009. CP at
81-82.
Even considering this evidence, however, the plaintiffs' evidence is insufficient to
defeat summary judgment. It is true that a duty may arise "where defendant affirmatively
brings about' an especial temptation and opportunity for criminal misconduct.' "
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Hutchins, 116 Wn.2d at 230 (quoting W. PAGE KEETON, ET AL., PROSSER AND KEETON
ON THE LAW OF TORTS § 33, at 201 (5th ed.1984)). But as the court in Hutchins
explained, "[I]t is not enough to say with the benefit of hindsight that a high degree of
risk of crime was created because these defendants' property in fact provided a place of
concealment for muggers." Hutchins, 116 Wn.2d at 232; see also Webstad, 83 Wn. App.
at 873 ("Negligence cannot be inferred from the mere fact that an injury occurred.").
Likewise, a duty did not arise simply because Ms. Dilling and Chris lived at the Beeman
home around the time that R.L.M. was abused and occasionally socialized with the
plaintiffs.
Notably, there is no evidence that the abuse occurred while Ms. Dilling or Chris
were socializing with any of the plaintiffs, and both siblings submitted declarations
indicating that they spent very little time at the Vancouver house even while they were
living there. Moreover, Ms. Dilling stated that every time she saw R.L.M., the girl was
accompanied by one of her parents. Finally, there is no evidence that either Ms. Dilling
or Chris ever witnessed any inappropriate behavior. Aside from Fred's 2001 conviction,
Ms. Dilling asserts she had "no indication" based on her interactions with Fred "that he
would do the things that were alleged in 2001 and 2011 [, and] certainly didn't believe
that after the 2001 case and court-mandated treatment that he would be charged with
another sexual offense." CP at 35.
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The plaintiffs presented no evidence that Ms. Dilling or Chris facilitated Fred's
interactions with their daughters so as to provide a special or peculiar opportunity to
engage in any criminal conduct. Accordingly, they have not met their burden of showing
an affirmative act by the siblings which "created or exposed" them to "a recognizable
high degree of risk of harm through such misconduct, which a reasonable person would
have taken into account." Parrilla, 138 Wn. App. at 439.
II. No Special Relationship
We next consider whether Ms. Dilling or Chris had a special relationship with
either Fred or the plaintiffs which created a duty to protect the plaintiffs or control their
brother's conduct. Restatement § 315 provides that while an actor generally has no duty
"to control the conduct of a third person as to prevent him from causing physical harm to
another," such a duty may arise where either
(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
REST ATEMENT § 315. These two types of relationships are alternative grounds from
which a duty can arise. N.K. v. Corp. ofPresiding Bishop ofChurch ofJesus Christ of
Latter-Day Saints, 175 Wn. App. 517, 528,307 P.3d 730 (2013), review denied, 179
Wn2d 1005 (2013).
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With respect to the first category, Restatement §§ 3l4A and 320 address the
relationships between a defendant and a victim which may give rise to a duty to control
the conduct of third persons for the protection of another. Under § 3l4A, a duty to
protect another from the intentional or criminal actions of a third party arises "where one
party is 'entrusted with the well being of another.'" NK., 175 Wn. App. at 532 (quoting
Niece v. Elmview Grp. Home, 131 Wn.2d 39, 50, 929 P.2d 420 (1997)); Webstad, 83 Wn.
App. at 869 (noting that this "element of 'entrustment'" has been found in all cases
imposing this type of protective duty) (quoting Lauritzen, 74 Wn. App. at 440).
No evidence was presented in this case that Ms. Dilling or Chris was ever
entrusted with the care ofK.N.Z. or R.L.M. Neither of the siblings were living with Fred
in 2001, when the complaint alleges K.N.Z. was abused; to the contrary, the record shows
that Chris was living with his parents in Grayland and that Ms. Dilling was living in
Federal Way during this time. CP at 33, 60. The plaintiffs also presented no evidence
contradicting Ms. Dilling's assertion that R.L.M. was never at the Vancouver house
without her parents, who were presumably entrusted with her care and custody. Ms.
Dilling stated in her declaration that she "never babysat, had any sort of supervision,
authority, or control over R.L.M.," and that apart from "seeing [the Mannings]
occasionally at the Vancouver house, there were only a couple of other times [she]
remember[s] being around them." CP at 34. Even when viewed in the light most
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favorable to the plaintiffs, the evidence does not support the existence of a special
protective relationship.
The plaintiffs' primary argument on appeal seems to be that a special relationship
existed between Ms. Dilling, Chris, and Fred that gave rise to a duty to control his
conduct. It is true that "[e]ven when no 'special relationship' originally existed, a duty
may arise when a defendant interjects himself or herself into a situation and creates a
special relationship of control." Webstad, 83 Wn. App. at 870 (citing PROSSER AND
KEETON ON THE LAW OF TORTS § 56, at 375-77 (5th ed. 1984)). The relations between a
defendant and a third party which may give rise to a duty to control are set forth in
Restatement §§ 316-319. See RESTATEMENT § 315 cmt. c.
Most relevant to the present case is § 319, which states that "[0 ]ne 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." But a duty will only be imposed
under this section where there is a '" definite, established and continuing relationship
between the defendant and the third party.'" Taggart v. State, 118 Wn.2d 195,219, 822
P.2d243 (1992) (quotingHoncoopv. State, 111 Wn.2d 182,193,759 P.2d 1188 (1988)).
More importantly, this duty arises only where an "ability to control" is present.
CJ.C, 138 Wn.2d at 737; Taggart, 118 Wn.2d at 223-24. For example, our Supreme
Court held in CJ. C v. Corporation ofCatholic Bishop ofYakima that churches have a
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duty of reasonable care in selecting and supervising their workers because~ "[a]s in other
agency relationships, a church chooses its officials, directs their activities, and may
restrict and control their conduct." 138 Wn.2d at 722. It explained that while a duty to
control does not require an agency relationship~ it arises "where [the] ability to control is
present." Id. at 724 n.12 (emphasis added); see also Osborn, 157 Wn.2d 18,24-35, 134
P3d 197 (2006) (county had no duty to warn others of a sex offender's presence because
it did not "take charge" of the sex offender, as it had no authority to control him).
Nothing in the record suggests that either Ms. Dilling or Chris had control over
Fred, his actions, his activities, or the people with whom he spent his time. Aside from
their claim that the siblings were sent to Vancouver to "watch over" their brother, the
plaintiffs do not allege that either Ms. Dilling or Chris had the authority or actual ability
to control his actions, or that they ever exercised such control. By its terms, the duty
created under Restatement § 319 applies only to "[0]ne who takes charge of a third
person." (emphasis added); see also Cox v. Malcolm, 60 Wn. App. 894, 899, 808 P.2d
758 (1991) ("[T]he duty to supervise is limited to supervision of the activity over which
the third person assumed responsibility"). The plaintiffs rely solely on the fact that the
siblings stayed with Fred at the Vancouver house, and that based on his 2001 conviction,
they should have known of his sexual proclivities. Even when viewed most favorably to
the plaintiffs, this is insufficient to establish a special relationship giving rise to a duty to
prevent his unlawful conduct.
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Because the plaintiffs failed to establish the existence of a legal duty, the trial
court properly granted summary judgment in favor of Ms. Dilling and Chris. We affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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