Sara L. Lacy, App/cross-resp v. Snohomish County, Resp/cross-app ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SARA L. LACY in her personal
capacity and as personal No. 79294-6-I
representative of the Estate of
CECIL D. LACY, JR., deceased, DIVISION ONE
Appellant/Cross Respondent, UNPUBLISHED OPINION
v.
SNOHOMISH COUNTY, a political
subdivision of the State of
Washington;
Respondent/Cross Appellant,
MICHAEL JOHNSEN, in his
personal capacity; TYLER
GROSS, in his personal capacity,
Defendants.
SMITH, J. — “[I’m] freaking out. . . . [I] can’t breathe,” Cecil Lacy Jr.1
exclaimed, as he lay face down with Snohomish County Sheriff Deputy Tyler
Pendergrass’s weight on his back. Deputy Pendergrass responded, “‘Cecil,
you’re breathing. You’re talking. You’re breathing. Just focus on deep
breaths[ ] . . . and calm down.’” All the while, Deputy Pendergrass maintained
pressure on Cecil’s back. Cecil, who was experiencing an episode of excited
1 For clarity, we use the first names of Cecil Lacy Jr. and his wife, Sara
Lacy.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79294-6-I/2
delirium, quickly became unconscious. Following attempts to provide aid, Cecil
was declared dead at the scene. The entire interaction—from when Deputy
Pendergrass first approached Cecil to when Cecil became unconscious—lasted
less than nine minutes.
Following Cecil’s death, his wife, Sara Lacy, sued Snohomish County
(County) alleging, among other claims, battery and negligence. After Sara rested
her case, the trial court granted the County’s motion for a directed verdict with
regard to all of Sara’s claims. Sara appealed.
We conclude that Sara presented insufficient evidence for a reasonable
juror to find that proximate cause existed for any of the negligence theories that
she asserted. Accordingly, the trial court did not err by entering a directed verdict
on those theories. However, because Sara’s police practices expert testified that
a reasonable officer would have recognized that Cecil was suffering from excited
delirium, avoided applying pressure to Cecil’s back while he was in a prone
position, and removed the pressure immediately after Cecil said he could not
breathe, the trial court erred when it entered a directed verdict with regard to
Sara’s battery claim. Therefore, we reverse in part and remand for trial on the
battery claim.
FACTS
The testimony and exhibits offered at trial provide the basis for this
statement of facts. And because our review is of a directed verdict, we present
the facts in the light most favorable to Sara.
Around 9:30 p.m. on September 18, 2015, 46-year-old Cecil, a Tulalip
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Tribal member, left his home in Tulalip, Washington, and began walking on State
Route 529, also known as Marine View Drive. At 9:47 p.m., dispatch for the
County received a call about a potential road hazard: a man walking on the side
of the road. Deputy Pendergrass and Tulalip Tribal Police Sergeant Michael
Johnsen and Officer Tyler Gross (collectively officers) responded to the call.
Deputy Pendergrass arrived on the scene at approximately 10:06 p.m. When
Deputy Pendergrass arrived, Officer Gross was parked on the shoulder of the
road but had been instructed by Sergeant Johnsen, his training officer, to wait to
approach Cecil. Sergeant Johnsen arrived shortly after Deputy Pendergrass.
At around 10:07 p.m., Deputy Pendergrass exited his vehicle. As he
approached Cecil, Cecil walked toward him, and Deputy Pendergrass later
testified that at the time, he was afraid Cecil was going to attack him. Deputy
Pendergrass radioed for backup and commanded Cecil to stop. Cecil complied.
When asked what he was doing, Cecil told Deputy Pendergrass that “he was out
for a nightly exercise walking down the roadway.” Officer Gross joined Deputy
Pendergrass and eventually so did Sergeant Johnsen.
In Sergeant Johnsen’s body camera footage later admitted at trial, Cecil
can be seen unable to stand still and speaking rapidly. Cecil explained to
Sergeant Johnsen that he suffered from mental health conditions that made it
difficult for him to stand still.2 At that point, Sergeant Johnsen said to Deputy
Pendergrass, “We can take him, if that’s cool with you.” Deputy Pendergrass
Each officer testified at trial that Cecil’s behavior led them to believe that
2
he was under the influence of methamphetamine.
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No. 79294-6-I/4
agreed. The officers then persuaded Cecil to receive a ride home from Sergeant
Johnsen. But as Sergeant Johnsen attempted to handcuff Cecil, Cecil panicked
and became agitated. Cecil repeatedly asked the officers to call his wife to come
pick him up. The officers explained to Cecil that they could either take him home
or to a hospital and that he was not under arrest. And Deputy Pendergrass
pointed his stun gun at Cecil and told him: “I want you to relax or you’re going to
get tased.” Eventually, Cecil calmed down and asked to be handcuffed in front of
his body because his “shoulders are really bad.” Sergeant Johnsen agreed,
handcuffed Cecil, and frisked him for weapons.
Upon finding no weapons, at around 10:12 p.m., the officers walked Cecil
to Officer Gross’s patrol vehicle. On the way to the vehicle, Cecil expressed
serious concern about going to the hospital because he had experienced abuse
on multiple occasions while being treated at mental health facilities. Cecil
ultimately got into the vehicle. He remained in the vehicle for a moment but then
quickly exited “the vehicle and pushed [Officer Gross] aside” in an “attempt[ ] to
get away from” the officers. In the video footage, one officer can be heard
repeatedly saying, “Now, we’re gonna take you to the hospital.” Cecil responds,
“Take me to the hospital” and pleads with the officers not to put him in the patrol
vehicle. Nonetheless, the officers calmed Cecil down, and Cecil got back into the
vehicle.
Cecil’s composure was short-lived. At around 10:13 p.m., a struggle
began when “Officer Gross and Sergeant Johnsen went to shut the vehicle’s
door” and Cecil “jumped out swinging his arms wildly . . . causing him to hit
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No. 79294-6-I/5
Sergeant Johns[e]n [and] knock[ ] his bodycam[era] off.” The officers attempted
to subdue Cecil and “to get him back into the patrol car,” but Cecil “essentially
drug [Sergeant Johnsen], Officer Gross and Deputy Pendergrass to the front of
the vehicle.” Unable to gain control of Cecil, Deputy Pendergrass deployed his
stun gun on Cecil’s upper right shoulder in drive stun mode.3 The stun gun was
ineffective, and Deputy Pendergrass lost his stun gun as the struggle continued.
Sergeant Johnsen performed a leg sweep, a maneuver by which Sergeant
Johnsen brought Cecil to the ground. Cecil ended up in a prone position in the
ditch beyond the shoulder of the road. Officer Gross attempted to restrain Cecil
by crossing Cecil’s feet and pressing them up to Cecil’s buttocks; Sergeant
Johnsen restrained Cecil’s handcuffed hands above Cecil’s head; and Deputy
Pendergrass applied pressure “somewhere between Mr. Lacy’s buttocks and his
shoulder blades,” “holding [Cecil] down.” At some point during the struggle,
Deputy Pendergrass radioed to “close the air,” which meant that an incident was
ongoing.
While the officers attempted to subdue Cecil, Cecil said that he was
“struggling to breathe,” was “freaking out,” and could not breathe. The officers
commanded Cecil to calm down and take a breath. Deputy Pendergrass
continued to put weight on Cecil’s back, and “[Cecil] continued to struggle” for
about 10 or 15 seconds. Cecil became unresponsive at approximately
10:14 p.m. Deputy Pendergrass testified that he attempted to rouse Cecil once
3 Drive stun mode is a function where an officer presses the stun gun
directly onto the individual’s skin and activates the stun gun.
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No. 79294-6-I/6
he became unresponsive and then moved his weight off of Cecil’s back.
Thereafter, the officers rolled Cecil over and once more, without success,
attempted to obtain a response from Cecil. At this point, Deputy Pendergrass
called for “‘one more unit.’”
At 10:17 p.m., Deputy Pendergrass called to expedite aid, and Sergeant
Johnsen started checking Cecil’s vitals. Sergeant Johnsen did not start
cardiopulmonary resuscitation (CPR) because he could not find Cecil’s pulse. At
the same time, Deputy Pendergrass returned to his vehicle to look for a CPR
mask. And at 10:18 p.m., the officers were “still working on [Cecil’s] breathing
status.” When Deputy Pendergrass returned to Cecil at around 10:19 p.m., he
“rechecked for vitals, confirmed that there was no pulse and no breathing,” and
started CPR.
At 10:22 p.m., Tulalip Bay Fire Department emergency medical
technicians (EMTs) arrived on the scene and began to administer aid. At 10:26
p.m., CPR was still in progress, and the officers made an additional request for
“aid to exp[e]dite.” At 10:29 p.m., 23 minutes after Deputy Pendergrass first
arrived on scene and 12 minutes after Deputy Pendergrass called for aid,
Marysville Fire Department paramedics arrived and immediately began providing
aid.
Cecil was pronounced dead at the scene. The County medical examiner’s
officer stated that Cecil died from “cardiac arrhythmia due to acute drug
intoxication due to methamphetamine [and that] other significant conditions
contributory to death were hypertension, dilated cardiomyopathy, schizophrenia,
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No. 79294-6-I/7
bipolar disorder, morbid obesity[,] and physical struggle with law enforcement.”
PROCEDURE
In September 2016, Sara, in her individual capacity and as personal
representative of Cecil’s estate, sued the County. In her second amended
complaint, Sara asserted five claims for relief: (1) negligence and gross
negligence, (2) false imprisonment, (3) battery, (4) negligent use of excessive
force, and (5) outrage. In one of Sara’s negligence theories, she argued that the
County failed to train or supervise Deputy Pendergrass. Sara also generally
alleged that the “County is[ ] and was . . . responsible for the actions or
inactions[ ] . . . of the Snohomish County Sheriff’s Office and its employees,
including” Deputy Pendergrass and that Deputy “Pendergrass w[as] acting within
the course and scope of [his] employment during the incident that gave rise to
[the] complaint.” In its answer to Sara’s complaint, the County admitted this
allegation.
During discovery, Sara’s police practices expert, Susan Peters, opined in
her expert report as to Deputy Pendergrass’s failure to stage aid, the County’s
negligent supervision and training, and Deputy Pendergrass’s failure to recognize
Cecil’s heightened risk factors when he restrained Cecil. According to Peters’
report, she relied on, among other things, the Snohomish County Sheriff’s Office
(SCSO) policies and the International Association of Chiefs of Police training
guidelines. In her deposition, Peters testified that she relied on law enforcement
training to inform the standards that she utilized in evaluating this case.
The County later moved for the summary judgment dismissal of all of
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No. 79294-6-I/8
Sara’s claims. With regard to Sara’s negligence claims, the County argued that
the public duty doctrine4 barred the claims. And in response to the County’s
motion, Sara voluntarily dismissed her negligent training and supervision claim.
The court granted the County’s motion as to Sara’s outrage claim. However, it
denied the motion with regard to Sara’s claims of false imprisonment, battery,
and the remaining negligence theories.
Prior to trial, the County and Sara each moved to exclude evidence,
including some testimony. Pursuant to the motions, the court excluded any
reference to the SCSO policies, reasoning that the SCSO policies were not
relevant to whether Deputy Pendergrass was negligent. It also excluded
references to Deputy Pendergrass’s expired CPR card.
Sara’s trial brief advanced three negligence theories: Deputy
“Pendergrass was negligent when he (1) failed to stage EMT while [Cecil] was in
his custody and exhibiting clear signs of excited delirium, (2) approached and
detained [Cecil] in a manner that caused a reasonably foreseeable use of
excessive force, and (3) failed to promptly initiate CPR.” With regard to her
battery claim, Sara argued that “the use of prone position holds on persons with
certain risk factors—all of which [Cecil] exhibited, e.g., overweight, drug
intoxication, excited delirium—constitutes the use of deadly force.” The County’s
trial brief argued that Sara’s trial brief presented negligence theories that she had
4The public duty doctrine limits liability in negligence for the government
when the duty owed to the individual complainant is a duty owed to the general
public. Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549, 442 P.3d 608(2019).
8
No. 79294-6-I/9
not pleaded in her second amended complaint. The trial court disagreed with the
State and agreed with Sara that she sufficiently pleaded the three negligence
theories.
Trial began on October 16, 2018, and all three officers recounted the
incident. Additionally, Dr. Jared Strote, Sara’s emergency medicine expert,
testified regarding the cause of Cecil’s death, proper CPR techniques, available
lifesaving aid, and excited delirium symptoms. Dr. Bennet Omalu testified as
Sara’s medical expert. He asserted that Cecil’s cause of death was positional
asphyxia resulting from Deputy Pendergrass’s prone positioning of Cecil and
placement of weight on his back, but that “[o]ther contributory factors to death
were [Cecil’s] obesity[,] . . . [h]is amphetamine intoxication[, and] hypertensive
cardiovascular disease.”
Peters also testified. But before she did, Sara moved to admit a
PowerPoint exhibit containing policy excerpts from national organizations and
other jurisdictions that addressed excited delirium. The court denied Sara’s
motion, finding that the exhibit did not conform to the best evidence rule. It also
ruled that the national policies were not relevant to whether Deputy Pendergrass
acted negligently and that the County had no notice of Peters’ potential reliance
on such policies.
After Sara rested her case, the County moved for a directed verdict on all
of Sara’s claims. The trial court granted the County’s motion, concluding that
Sara failed to present sufficient evidence of proximate cause with regard to her
negligence theories, failed to provide evidence that Deputy Pendergrass used
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No. 79294-6-I/10
excessive force, and provided no evidence to support her claim of false
imprisonment. Sara appeals the court’s decision with regard to her negligence
theories and battery claim.
ANALYSIS
Directed Verdict
We review a trial court’s order granting a CR 50 motion for a directed
verdict de novo.5 HBH v. State, 197 Wn. App. 77, 85, 387 P.3d 1093 (2016),
aff’d, 192 Wn.2d 154, 429 P.3d 484 (2018). Under CR 50(a)(1), “[i]f . . . a party
has been fully heard with respect to an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find . . . for that party with respect to
that issue,” then the court may grant a directed verdict against that party “on any
claim . . . that cannot under the controlling law be maintained without a favorable
finding on that issue.” In other words, to grant a motion for a directed verdict, the
court must conclude, “‘as a matter of law, that there is no substantial evidence or
reasonable inference to sustain a verdict for the nonmoving party.’” Paetsch v.
Spokane Dermatology Clinic, P.S., 182 Wn.2d 842, 848, 348 P.3d 389 (2015)
(quoting Indus. Idem. Co. of Nw. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d
520 (1990)).
In ruling on a CR 50 motion, “‘the evidence [must] be interpreted most
strongly against the moving party and in the light most favorable to the
5 We note that in 1993, CR 50 was amended to abandon the term directed
verdict for the more general term judgment as a matter of law. 14A DOUGLAS J.
ENDE, W ASHINGTON PRACTICE: CIVIL PROCEDURE § 24:2, at 72 (3d ed. 2018).
Because the parties refer to the motion as one for a directed verdict, we utilize
that term throughout.
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No. 79294-6-I/11
opponent.’” Lock v. Am. Family Ins. Co., 12 Wn. App. 2d 905, 925, 460 P.3d 683(2020) (quoting Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290(1995)). To this end, the moving party “‘admits the truth of the opponent’s
evidence and all inferences that can be reasonably drawn therefrom.’” Lock, 12
Wn. App. 2d at 925 (quoting Goodman, 128 Wn.2d at 371).
Here, Sara contends that the trial court erred in granting a directed verdict
on her negligence theories and battery claim. As further discussed below, we
conclude that the trial court did not err with regard to Sara’s negligence theories
because Sara did not present sufficient evidence of cause in fact. But with
regard to Sara’s battery claim, Sara presented sufficient evidence for a
reasonable juror to find—by the evidence or reasonable inferences therefrom—
that Deputy Pendergrass’s use of force was excessive or unnecessary.
Negligence
Sara contends that the trial court erred when it entered a directed verdict
on her negligence claims. Given the negligence theories Sara alleged and tried,
we disagree.
As an initial matter, “[a] party who does not plead a cause of action or
theory of recovery cannot finesse the issue by later inserting the theory into trial
briefs and contending it was in the case all along.” Dewey v. Tacoma Sch. Dist.
No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999).
While Sara’s original complaint pleaded a broad theory of negligence
involving a totality of the circumstances claim, her trial brief included three
distinct theories of negligence: (1) failure to immediately stage lifesaving aid,
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No. 79294-6-I/12
(2) negligent escalation of the situation in a manner leading to the use of
excessive force, and (3) failure to properly administer CPR. And when the
County asserted that Sara did not sufficiently plead these theories, Sara argued
to the contrary. When the trial proceeded, the parties tried these theories. For
this reason, the issues tried cannot be finessed into the broad negligence theory
now asserted on appeal. Accordingly, we analyze the propriety of the directed
verdict based on the three distinct negligence theories that Sara proffered in her
trial brief and presented at trial. See CR 15(b); see also Dewey, 95 Wn. App. at
22-23, 26 (holding that where the plaintiff sufficiently pleaded two wrongful
discharge theories but presented a third new theory in response to the
defendant’s motion for summary judgment, the third theory was not sufficiently
pleaded or, later, tried by implication).
“A negligence claim requires the plaintiff to establish (1) the existence of a
duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate
cause between the breach and the injury.” Behla v. R.J. Jung, LLC, 11 Wn. App.
2d 329, 334, 453 P.3d 729 (2019), review denied, 460 P.3d 180 (2020).
“Proximate cause consists of two elements: cause in fact and legal causation.”
Sluman v. State, 3 Wn. App. 2d 656, 701, 418 P.3d 125, review denied, 192
Wn.2d 1005 (2018). “Cause in fact concerns the ‘but for’ consequences of an
act: those events that the act produced in a direct, unbroken sequence, and that
would not have resulted had the act not occurred.” Sluman, 3 Wn. App. 2d at
701 (internal quotation marks omitted) (quoting Smith v. Dep’t of Corr., 189 Wn.
App. 839, 850, 359 P.3d 867 (2015)). “Legal causation rests on considerations
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No. 79294-6-I/13
of logic, common sense, policy, justice, and precedent as to how far the
defendant’s responsibility for the consequences of its actions should extend.”
Sluman, 3 Wn. App. 2d at 701.
For purposes of our analysis, we assume that Deputy Pendergrass owed
a duty to Cecil and that he breached that duty in the three ways Sara alleged in
her trial brief.6 And clearly, the resulting injuries were Cecil’s death and the
monetary and nonmonetary consequences thereof. We also assume that Sara
presented sufficient evidence to support a finding that each breach by Deputy
Pendergrass was the legal cause of Cecil’s death. But because Sara failed to
present evidence sufficient for a reasonable juror to find that any of the breaches
alleged in her trial brief were, in an unbroken sequence of events, the direct, but
for cause of Cecil’s death, we conclude that the trial court did not err in entering a
directed verdict on Sara’s negligence theories.
To prevail on the issue of cause in fact, Sara was required to “supply proof
for a reasonable person to, ‘without speculation,’ infer that the act of the other
party more probably than not caused the injury.” Behla, 11 Wn. App. 2d at 335
(emphasis added). “As a determination of what actually occurred, cause in fact
is generally left to the jury.” Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77(1985). But “[c]ause-in-fact may be determined as a matter of law if the causal
connection is so speculative and indirect that reasonable minds could not differ.”
6Sara claims that the trial court erred when it excluded evidence of
Deputy Pendergrass’s expired CPR certification. Because we assume that
Deputy Pendergrass breached the required standard of care and because Sara
proffered the CPR certification to prove that element, we do not address this
claimed error.
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Doherty v. Mun. of Metro. Seattle, 83 Wn. App. 464, 469, 921 P.2d 1098 (1996).
In her first negligence theory, Sara alleged that Deputy Pendergrass
breached the standard of care by failing to stage aid immediately upon
interacting with Cecil. Accordingly, Sara had to present sufficient evidence that
Deputy Pendergrass’s failure to call for aid was the cause in fact of Cecil’s death.
To this end, Peters testified that a reasonable officer would have recognized
Cecil’s signs and symptoms as consistent with excited delirium. A reasonable
officer, therefore, would have identified the situation as a medical emergency and
immediately staged medical aid. Additionally, Dr. Strote testified that Cecil
suffered from excited delirium and that for individuals experiencing excited
delirium, paramedics—but not EMTs who arrived on the scene first—can
administer chemical sedation and advanced cardiac life support that could help
revive the individual.
While it is unclear exactly when Cecil became unconscious, the officers
estimated that he stopped struggling at around 10:14 p.m. or about 30 seconds
after he was taken to the ground. According to the computer aided dispatch
(CAD) reports7 admitted at trial, the officers called for aid at 10:17 p.m., and the
Marysville Fire Department paramedics arrived 12 minutes later. Sara contends
that the CAD reports may be inaccurate and that had Deputy Pendergrass called
immediately upon seeing Cecil at 10:06 p.m., the paramedics could have arrived
as early as 10:19 p.m. But regardless of the reports’ potential inaccuracies, Sara
7A CAD report provides timestamps for events relayed from the officer or
medical aid to dispatch.
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No. 79294-6-I/15
presented no evidence that the paramedics could have successfully revived
Cecil. To the contrary, even assuming that the paramedics were able to
immediately administer aid, Dr. Strote only testified that the aid “give[s] the
person every chance they have” to survive. Thus, even if aid were there when
Cecil became unconscious, the paramedics could merely provide medical
attention that gave him the best chance of survival, not a probable chance.
Sara contends that “Dr. Strote opined that ‘had EMS [(emergency medical
services)] been called earl[ier] he would not have died more likely than not.’”
However, the entirety of Dr. Strote’s testimony asserts that a sequence of events,
including Cecil not having the encounter with the officers at all, the officers not
restraining Cecil, and EMS being called earlier, more likely than not caused
Cecil’s death. This chain is too speculative for a reasonable juror to find for Sara
on the issue of proximate cause.
In short, taking the evidence and all reasonable inferences most strongly
in Sara’s favor, there is not sufficient evidence from which a reasonable juror
could have inferred, without speculating, that had Deputy Pendergrass called for
aid when he first observed Cecil and witnessed his behavior, paramedics would
have been able to revive Cecil. Therefore, the trial court did not err when it
granted the County’s motion on Sara’s first negligence theory.
In her second negligence theory, Sara alleged that Deputy Pendergrass
breached the standard of care by negligently escalating or failing to properly de-
escalate the situation such that the use of excessive force was reasonably
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No. 79294-6-I/16
foreseeable.8 Accordingly, Sara had to present sufficient evidence that Deputy
Pendergrass’s escalation of or failure to de-escalate the situation was the cause
in fact of Cecil’s death. To this end, Sara presented evidence that Deputy
Pendergrass escalated the situation by threatening to deploy his stun gun if Cecil
did not calm down. And Peters testified that Deputy Pendergrass should have
identified the situation as a medical emergency, “[d]e-escalate[ed] the situation,”
avoided making “any threats towards” Cecil, and tried “to calm him.” Similarly,
Dr. Strote testified that numerous factors ultimately led to Cecil’s death, including
not doing everything possible to avoid restraining Cecil and to avoid increasing
Cecil’s agitation. But beyond speculation, there was no evidence that Cecil
would not have reacted the way he did—i.e., by panicking and exiting the
vehicle—had Deputy Pendergrass used appropriate de-escalation techniques.
Indeed, Peters testified only that had Deputy Pendergrass immediately called for
aid and then de-escalated the situation, “we wouldn’t have been where we are
maybe today.”
In short, the testimony presented at trial provides only that maybe de-
escalation could have prevented Cecil’s death. Sara presented no evidence from
which a reasonable juror could find, without speculating, that had Deputy
Pendergrass used proper de-escalation tactics and not escalated the situation,
Cecil more likely than not would have survived. Therefore, the trial court did not
8 Sara’s trial brief alleged that Deputy Pendergrass escalated the situation
by “for instance, drawing ‘[his] taser and advis[ing Mr. Lacy] that if he can’t calm
down, that he’s going to get tased’ and otherwise escalating . . . the situation with
a person he knew was mentally ill.”
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No. 79294-6-I/17
err by entering a directed verdict on Sara’s second negligence theory.
Sara disagrees and points to Dr. Omalu’s testimony that the pressure
applied to Cecil’s back by Deputy Pendergrass “compromised [Cecil’s]
respiration, . . . resulted in asphyxia injury to the brain, [and] resulted in [Cecil’s]
death.” In other words, Sara contends that Deputy Pendergrass’s use of force
caused Cecil’s death. But Sara specifically based her second negligence theory
on Deputy Pendergrass’s breach by failure to de-escalate, not by negligent use
of excessive force. And Dr. Omalu did not testify that Deputy Pendergrass’s
failure to de-escalate the situation caused the mechanical positional asphyxia.
Indeed, no expert testified that Deputy Pendergrass’s actions escalating the
situation more probably than not caused the struggle, the asphyxia, and,
ultimately, Cecil’s death. Thus, even taking as true that Cecil died from
mechanical positional asphyxia caused by Deputy Pendergrass, Sara failed to
provide evidence for a reasonable juror to find the requisite causal link between
escalation or failure to de-escalate and Cecil’s death.
In her third negligence theory, Sara alleged that Deputy Pendergrass
breached the standard of care by failing to properly administer CPR.9
Accordingly, Sara was required to show that Deputy Pendergrass’s failure to
immediately administer CPR was the cause in fact of Cecil’s death. To this end,
Dr. Strote testified that every minute after an individual goes into cardiac arrest
and CPR is not administered, there is a “large decrease in the chance that
9In her reply to the County’s motion for a directed verdict, Sara contended
that she had proposed a loss of chance theory. However, because neither her
complaint nor her trial brief puts forth such a theory, we do not review it.
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No. 79294-6-I/18
they’re ever going to be brought back with any kind of meaningful recovery.” But
he explained that “CPR is not done to bring someone back; that is relatively rare”
and that CPR is “basically a bridge to” allow paramedics to arrive and administer
“medicines or a defibrillator, so that the heart can be shocked in those
circumstances.” He testified that “[o]ccasionally doing CPR will bring people
back without any other intervention.”
Neither Dr. Strote nor Dr. Omalu testified that had chest compressions
begun as soon as Cecil became unresponsive, it was more probable than not
that Cecil would have survived. Specifically, even with the alleged six-minute
gap between when Deputy Pendergrass notified dispatch that an incident was
ongoing and when he began chest compressions, CPR only “[o]ccasionally”
saves someone’s life. As such, the evidence presented was too speculative for a
reasonable juror to find the requisite causal link between Deputy Pendergrass’s
alleged breach in failing to begin chest compressions and Cecil’s death.
Therefore, the trial court did not err by granting the County’s motion for a directed
verdict with regard to Sara’s third negligence theory.
In sum, the only negligence theories that Sara argued in her trial brief and
presented at trial were that Deputy Pendergrass breached the standard of care
by (1) failing to immediately call for aid, (2) failing to de-escalate the situation or
escalating the situation, and (3) failing to immediately begin chest compressions.
Even when viewed in the light most favorable to Sara, the evidence admitted at
trial was insufficient for a reasonable juror to conclude by inference or otherwise,
and without speculating, that any of these alleged breaches more probably than
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No. 79294-6-I/19
not directly caused Cecil’s death. Therefore, we conclude that as a matter of
law, Sara’s evidence was insufficient to support a finding on the issue of cause in
fact and that the trial court did not err by dismissing her negligence claims.
Sara disagrees and claims that she asserted below a broad theory of
negligence. Specifically, she contends that she asserted that “the unintentional
conduct preceding any use of force fell below the applicable standard of care,
and that such conduct caused the reasonably foreseeable use of excessive, and
ultimately deadly, force.” To this end, she relies on Beltran-Serrano v. City of
Tacoma, 193 Wn.2d 537, 442 P.3d 608 (2019), for the proposition that
“Washington law permits a negligent use of force claim under a totality of the
circumstances standard.”
In Beltran-Serrano, Cesar Beltran-Serrano—whom a city of Tacoma police
officer shot multiple times after a social contact escalated to the use of deadly
force—sued the city for negligence, and assault and battery. 193 Wn.2d at 540.
Beltran-Serrano premised his negligence claims on the theory that the officer
“failed to follow police practices calculated to avoid the use of deadly force.”
Beltran-Serrano, 193 Wn.2d at 544. The trial court granted the city’s motion for
summary judgment on Beltran-Serrano’s negligence claims and certified to our
Supreme Court the question of whether the officer owed “‘a duty of reasonable
care . . . when using deadly force.’’’ Beltran-Serrano, 193 Wn.2d at 542-43. The
court held that because Beltran-Serrano’s negligence claims arose out of the
officer’s direct and affirmative interactions with him, the officer owed him a duty in
tort to exercise reasonable care. Beltran-Serrano, 193 Wn.2d at 551-52.
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Sara’s reliance on Beltran-Serrano is misplaced for two reasons. First, in
Beltran-Serrano, the court did not address the merits of Beltran-Serrano’s claims
or review whether he presented evidence sufficient for a reasonable juror to find
for him on the elements of negligence. Second, the only theories that Sara
argued in her trial brief were the three discussed above. Indeed, Sara argued to
proceed to trial on the three separate theories, not the broad theory proffered in
her complaint. Our review is limited to those three distinct theories. See Cano-
Garcia v. King County, 168 Wn. App. 223, 248, 277 P.3d 34 (2012) (refusing to
address a new theory of negligence where the plaintiff raised the theory in his
complaint but failed to raise the theory in opposition to summary judgment
because “[i]ssues and contentions neither raised by the parties nor considered by
the trial court when ruling on a motion for summary judgment may not be
considered for the first time on appeal”). Thus, Beltran-Serrano is not
persuasive.
Finally, Sara contends that in granting the County’s motion for a directed
verdict, the trial court improperly weighed evidence, made credibility
determinations, and failed to take Sara’s presented evidence as true. In some
regards, we agree. For example, the trial court failed to take the evidence in the
light most favorable to Sara when it found that Cecil “died of heart arrhythmia and
methamphetamine toxicity at the scene.” To the contrary, Dr. Omalu testified
that Cecil died from mechanical positional asphyxia. Additionally, the trial court
erred when it found that Sara presented no evidence that Deputy Pendergrass
escalated the situation. In fact, Sara presented evidence that Deputy
20
No. 79294-6-I/21
Pendergrass escalated the situation when he yelled at Cecil, “I want you to relax
or you’re going to get tased.” See Goodman, 128 Wn.2d at 371 (The evidence
and all reasonable inferences therefrom must “be interpreted most strongly
against the moving party and in the light most favorable to the opponent.”).
Nonetheless, because our review is de novo and because we have viewed the
evidence in the light most favorable to Sara without making credibility
determinations or weighing the evidence, the trial court’s errors do not require
reversal.10
Battery
Sara asserts that the trial court erred when it entered a directed verdict on
her battery claim. We agree.
“A battery is a ‘[a] harmful or offensive contact with a person, resulting
from an act intended to cause the plaintiff . . . to suffer such a contact.’”
McKinney v. City of Tukwila, 103 Wn. App. 391, 408, 13 P.3d 631 (2000) (first
alteration in original) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON
THE LAW OF TORTS § 9, at 39 (5th ed. 1984)). Washington recognizes a cause of
10 Given that we affirm the trial court’s directed verdict on Sara’s
negligence theories, we need not discuss the County’s cross appeal, which
contends that Sara’s negligence claims were barred by the public duty doctrine
and thus should have been dismissed on summary judgment. See, e.g.,
Schreiner Farms, Inc. v. Am. Tower, Inc., 173 Wn. App. 154, 164, 293 P.3d 407(2013) (refraining from reaching the respondents’ cross appeal after dismissing
the appellant’s suit as time barred). We also do not address the County’s
supplemental authority citing our unpublished decision, Mancini v. City of
Tacoma, No. 77531-6-I (Wash. Ct. App. May 13, 2019) (unpublished),
http://www.courts.wa.gov/opinions/pdf/775316.pdf, review granted, 194 Wn.2d
1009 (2019). See GR 14.1(a), (c) (We have discretion whether to consider
citation to unpublished opinions.).
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No. 79294-6-I/22
action for battery by a police officer when “unnecessary violence or excessive
force is used in accomplishing [an] arrest.” Boyles v. City of Kennewick, 62 Wn.
App. 174, 176, 813 P.2d 178 (1991) (emphasis omitted); see also Staats v.
Brown, 139 Wn.2d 757, 780-81, 991 P.2d 615 (2000) (holding that state qualified
immunity does not bar state claims for assault and battery when excessive force
is used in effectuating an arrest). Whether or not a police officer can be held
liable for battery depends in part on whether the officer’s actions were
reasonable. See Staats, 139 Wn.2d at 778 (Under state law, an officer is entitled
to qualified immunity “‘when the officer (1) carries out a statutory duty,
(2) according to procedures dictated to [them] by statute and superiors, and
(3) acts reasonably.’” (emphasis added) (quoting Guffey v. State, 103 Wn.2d
144, 152, 690 P.2d 1163 (1984))). “Determining whether a police officer’s use of
force was reasonable or excessive requires careful attention to the facts and
circumstances of each particular case.” Sluman, 3 Wn. App. 2d at 674.
As to Deputy Pendergrass’s alleged battery against Cecil, Dr. Omalu
testified that “[a]ll you need to suffer asphyxia is ten pounds of pressure,” but
here, “significant amounts of pressure were applied on the trunk of [Cecil] . . . by
one police officer, which increases intrathoracic pressure, which compromised
[Cecil’s] respiration, which resulted in asphyxia injury to the brain, which resulted
in [Cecil’s] death.” Based on this testimony, a reasonable juror could find that
Deputy Pendergrass’s intentional act of pressure on Cecil’s back caused Cecil’s
death and that, therefore, Deputy Pendergrass committed battery against Cecil.
As to reasonableness, when viewed in the light most favorable to Sara,
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No. 79294-6-I/23
the evidence was sufficient for a reasonable juror to find that Deputy
Pendergrass acted unreasonably under the circumstances. Specifically, Officer
Gross testified that he did not believe Cecil was trying to harm him or the other
officers, only that Cecil was trying to escape. No officer testified that Cecil
threatened the officers or that he was under arrest, and the officers had no
reason to believe that Cecil was armed, as Sergeant Johnsen had frisked Cecil
and found no weapons.
Peters also provided testimony on the reasonableness of Deputy
Pendergrass’s actions. She testified that a reasonable officer would have
recognized that Cecil was suffering from excited delirium and would not have
escalated the situation or used the type of force Deputy Pendergrass employed
on Cecil. To this end, Peters testified that an officer should not put a human
being who has certain risk factors, or is experiencing excited delirium, in a
“[p]rone position with weight on [their] back” and should “avoid pressure on the
individual’s chest area.”11 Such an individual, Peters opined, is “at a risk for in-
custody death or death shortly after an event such as a struggle or a prolonged
struggle.” Here, the officers testified that Deputy Pendergrass placed weight on
Cecil’s back while Cecil was restrained in a prone position.
Peters also testified that an officer should be able to view the individual’s
face and, when the individual says that they cannot breathe, should “alleviate
that pressure immediately and roll the individual onto either their side or in a
In addition, Dr. Omalu testified that Cecil’s obesity and hypertensive
11
cardiovascular disease created a heightened risk of asphyxia.
23
No. 79294-6-I/24
seated position.” But the officers testified that even after Cecil said he could not
breathe, Deputy Pendergrass kept weight on Cecil’s back and that they did not
immediately move Cecil from the prone position.
In short, Sara presented evidence from which a reasonable juror could
have found or inferred that Deputy Pendergrass used unnecessary or excessive
force to restrain a human being in Cecil’s state of mind and circumstance. And
based on this testimony, we cannot conclude, as a matter of law, that Deputy
Pendergrass acted reasonably when he applied and maintained pressure on the
back of a handcuffed, unarmed, mentally ill, and agitated human being who was
in a prone position, exclaiming that he could not breathe. See, e.g., Drummond
ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1058-60 (9th Cir. 2003)
(holding that two officers maintaining pressure on a prone positioned, mentally ill,
handcuffed, and compliant individual “who was being taken into custody to
prevent injury to himself” was not reasonable).12 That determination should have
been left to the jury. See Sluman, 3 Wn. App. 2d at 674 (Assessing the
reasonableness of an officer’s actions “nearly always requires a jury to sift
through disputed factual contentions to draw inferences therefrom and to assess
[the] credibility of witnesses.”). Therefore, the trial court erred in granting the
12 The County contends that federal case law is irrelevant in the context of
Sara’s battery claim. However, we have looked to federal law to determine
whether an officer acted reasonably and therefore whether he could be held
liable for a state law battery claim. See, e.g., Gallegos v. Freeman, 172 Wn.
App. 616, 641-42, 291 P.3d 265 (2013) (holding that because an officer’s actions
were reasonable under Fourth Amendment standards for excessive force, the
actions also were reasonable under state law and dismissing the state law
battery claim).
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No. 79294-6-I/25
County’s motion for directed verdict with regard to Sara’s battery claim.
The County disagrees and asserts that Peters did not provide testimony
that Deputy Pendergrass’s use of force was unnecessary or “overly aggressive.”
But as discussed above, Peters testified that a reasonable officer would have
recognized that Cecil was experiencing excited delirium, that the use of prone
positioning on such a human being is improper, and that a reasonable officer
should immediately remove pressure when an individual is struggling to breathe.
Therefore, although Peters did not use the specific phrases “unnecessary” or
“overly aggressive,” a reasonable juror could nevertheless have inferred from
Peters’ and the officers’ testimony that Deputy Pendergrass acted unreasonably.
See Reyes v. Yakima Health Dist., 191 Wn.2d 79, 89, 419 P.3d 819 (2018) (An
expert is not required “to aver talismanic magic words.”).
Finally, the County points to the officers’ testimony that the use of force
was reasonable and to Deputy Pendergrass’s testimony that he was concerned
for his and Cecil’s safety because the altercation occurred next to a busy road
late at night. But Sara presented evidence from which a reasonable juror could
find or infer that Deputy Pendergrass’s actions were inappropriate in the
situation. And because we take all reasonable inferences and evidence in Sara’s
favor, we are not persuaded that a directed verdict was proper. See Schmidt v.
Coogan, 162 Wn.2d 488, 493, 173 P.3d 273 (2007) (“An order granting [a motion
for a directed verdict] should be limited to circumstances in which there is no
doubt as to the proper verdict.”).
For the foregoing reasons, we conclude that the trial court erred when it
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granted the County’s motion for a directed verdict on Sara’s battery claim.
Evidentiary Rulings
Because we remand Sara’s battery claim for trial, we review Sara’s
assertions that the trial court erred in excluding two categories of policy evidence.
We review the court’s decision to exclude evidence based on relevance for an
abuse of discretion. State v. Scherf, 192 Wn.2d 350, 387, 429 P.3d 776 (2018).
First, the trial court excluded evidence of the SCSO policies or lack
thereof. To that end, at the hearing on the parties’ motions in limine, Sara
argued that the following facts were relevant to her negligence and battery
claims: (1) the SCSO did not have a policy on excited delirium and (2) its policy
on dealing with mentally ill individuals did not address excited delirium. She
argued that they showed that “the [C]ounty didn’t . . . even tangentially educate
[Pendergrass] on what he needed to do in this certain situation” and that
“Snohomish County didn’t train him on” excited delirium. On appeal, Sara
similarly asserts that the policies are evidence of “Snohomish County’s
negligence.” In other words, Sara argued only that the SCSO policies were
relevant to the County’s negligence in failing to train Deputy Pendergrass.13 But
because Sara voluntarily dismissed her negligent training claim and did not argue
that the SCSO policies were relevant to her negligence theories pertaining to
Deputy Pendergrass individually, the trial court did not abuse its discretion when
13To the extent that Sara makes additional arguments on appeal to
support a finding of relevance, “‘[w]e will not review an issue, theory, argument,
or claim of error not presented at the trial court level.’” Ainsworth v. Progressive
Cas. Ins. Co., 180 Wn. App. 52, 81, 322 P.3d 6 (2014) (alteration in original)
(quoting Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001)).
26
No. 79294-6-I/27
it excluded this evidence.
Second, the trial court excluded national and model policies and policies
from other jurisdictions. To this end, Sara points to no authority—and we have
found none—that supports the proposition that national or other policies are
relevant to the standard of care or excessive force testimony. Cf. Amend v. Bell,
89 Wn.2d 124, 126, 130, 570 P.2d 138 (1977) (holding that direct evidence of the
defendant’s negligence was admissible when the defendant admitted to one
instance of negligence and alleged comparative fault); cf. Meyers v. Meyers, 81
Wn.2d 533, 536-37, 503 P.2d 59 (1972) (holding that a general standard of care
is not required where a Washington statute imposed a positive duty on notaries).
Therefore, the trial court did not act manifestly unreasonable when it found that
the evidence was irrelevant. See Scherf, 192 Wn.2d at 387 (“‘A trial court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons.’” (quoting In re Marriage of Littlefield,
133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). We conclude that the trial court
did not abuse its discretion in excluding the testimony of the other policies.
CONCLUSION
The trial court did not err when it entered a directed verdict on Sara’s
negligence theories because the theories, as alleged and tried, required
speculation on the part of the jury with regard to the element of cause in fact.
However, the trial court erred when it entered a directed verdict with regard to
Sara’s battery claim. Therefore, we reverse in part and remand for trial on Sara’s
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No. 79294-6-I/28
battery claim.
WE CONCUR:
28