The Estate Of: Zina Linnik, App. v. State, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
THE ESTATE OF ZINA LINNIK, and ) No. 67475-7-1
MIKHAIL and VALENTINA LINNIK, a ) (""')
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married couple, and STANSISLAV M. ) = too
DIVISION ONE
LINNIK, and NINA LINNIK, and )
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MIKHAIL LINNIK, as parent and ) -o r
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guardian for PAVEL LINNIK, ) I -->~~
SVETLANA LINNIK, OKSANA LINNIK, )
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VADIM LINNIK, SAMUEL LINNIK, his ) ~ ~:r> 1_:
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minor children, ) m G") (,;')
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Appellants, ) UNPUBLISHED
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v. ) FILED: April 1. 2013
)
STATE OF WASHINGTON, by and )
through its various agencies and )
subdivisions, including DEPARTMENT )
OF CORRECTIONS and CHILD )
PROTECTIVE SERVICES, PIERCE )
COUNTY, a municipal corporation, and )
CITY OF TACOMA, )
)
Respondents. )
)
Cox, J.- This wrongful death action arises from the tragedy of Terapon
Adhahn's kidnapping, rape, and murder of Zina Linnik, a twelve year-old child, on
July 4, 2007. Her estate and parents (collectively "the Estate") together with
other members of her family commenced this negligence action against the state
Department of Corrections (DOC), the Department of Social and Health Services
No. 67475-7-1/2
(DSHS), Pierce County, and the City of Tacoma. These defendants moved for
summary judgment dismissal, which the trial court granted. Because the Estate
fails in its burden to establish that any defendant owed a duty, there are no
genuine issues of material fact. We affirm. 1
The material facts are not in dispute. Adhahn, a lawful permanent
resident originally from Thailand, kidnapped, raped, and murdered this twelve-
year old child in Tacoma. Seventeen years before these heinous crimes, Adhahn
pleaded guilty to first degree incest after raping his half sister. Adhahn received
a special sex offender sentence alternative (SSOSA), subject to an exceptional
sentence of sixty months of community supervision.
In 1991, Adhahn's community corrections officer (CCO) submitted a
Notice of Violation to the court, reporting that Ad hahn had failed to enter into
sexual deviancy treatment as required by his judgment and sentence. The court
entered an agreed order modifying Adhahn's sentence, requiring him to enter
into treatment. Adhahn actually began attending group therapy sessions a
month before the court entered this order, and he continued to do so.
In September 1992, Adhahn was charged in Tacoma Municipal Court for
intimidation with a weapon. The municipal court sentenced him to five days in jail
for this misdemeanor.
In 1997, the sex offender treatment provider notified the court that
"Ad hahn has completed all aspects of the sex offender treatment program with
1
Pierce County moved to strike portions of Brief of Appellant and Reply Brief of
Appellant Re: Pierce County. We grant the motion, in part. We do not consider the
portions of the Reply Brief that first argue on the basis of RCW 10. 70.140. See
Engstrom v. Goodman, 166 Wn. App. 905,911,271 P.3d 959 (2012).
2
No. 67475-7-1/3
this agency." On July 8, the superior court held a hearing to determine whether
Ad hahn had complied with the terms of his alternative sentence at which the
prosecutor and Ad hahn were present. At the conclusion of this hearing, the court
terminated DOC supervision of Adhahn.
Adhahn was classified as a Ieveii sex offender. This is the lowest risk
level classification for sex offenders. Adhahn lived in several different locations
in Pierce County, but he did not update his sex offender registration when he
moved. In 2002, Adhahn was stopped for a traffic infraction and at that point
updated his registration. He moved several times between 2002 and the date he
raped and murdered the Unnik child.
In January 2004, the Department of Child Protective Services (CPS)
received an anonymous report that an unnamed man was living with a young girl
whom he had purchased or traded for furniture. Though not clear from this initial
call, the authorities later determined that Ad hahn was the subject of this report.
The CPS worker who screened the initial call referred it to Pierce County law
enforcement. When the Pierce County Sheriff's Office received the CPS referral,
they sent an officer to investigate. The officer did not find a girl at the address
listed in the referral.
About two weeks after the first report, CPS received another call from the
anonymous caller. At that point, she provided Ad hahn's name to the CPS intake
worker. Typically, CPS forwards this updated information to the relevant law
enforcement agency. But here, Pierce County claims it never received this
second referral with Adhahn's name.
3
No. 67475-7-1/4
In 2007, three years after the report to CPS, Ad hahn approached the
Linnik child in an alley behind her home, forced her into his grey van, and
kidnapped her. The Linnik family called 911 approximately five minutes later,
upon realizing that the child was gone. Tacoma law enforcement responded to
the scene at 10:00 p.m.
At the outset, Tacoma police targeted an Asian neighbor of the Linniks.
The Linnik family reported seeing a vehicle that matched the one owned by their
neighbor driven by an Asian man pull away from the alley. Because the police
were in pursuit of this suspect, the lead detective decided not to request an
AMBER Alert the night of the Linnik child's abduction. The AMBER Alert is a
public warning system that broadcasts child abduction information on the radio,
television, and highway signs.
The police located and questioned the Linnik's neighbor sometime after
midnight and eliminated him as a suspect. At around 4:00a.m., the lead
detective called the Tacoma police's public information officer and requested an
AMBER Alert. Tacoma police protocol then required that the public information
officer initiate the issuance of an AMBER Alert. After receiving the AMBER Alert
request, the Tacoma public information officer fell back asleep. Consequently,
he did not initiate the AMBER Alert until later that morning at around 8:00a.m.,
some four hours after the request.
Four days after the Linnik child's abduction, Tacoma police detained
Adhahn and questioned him regarding the child's disappearance. Adhahn
eventually confessed to kidnapping, murdering, and raping the Linnik child.
4
No. 67475-7-1/5
In 2010, the Estate and other family members commenced this action for
wrongful death against DOC, DSHS, Pierce County, and the City of Tacoma.
The trial court dismissed the claims brought by the Linnik child's siblings and that
dismissal is not before us, as counsel properly conceded at oral argument.
The Estate appeals.
DUTY
The Estate argues that the defendant governmental entities were
negligent and liable for the Linnik child's death. We hold that the Estate has
failed in its burden to show that any of these entities owed an actionable duty.
In a motion for summary judgment by a defendant, the initial burden is on
the moving party "to prove by uncontroverted facts that there is no genuine issue
of material fact." 2 "A material fact is one upon which the outcome of the litigation
depends .... "3 Bare assertions of ultimate facts and conclusions of fact are
insufficient. 4 "Likewise, conclusory statements of fact will not suffice." 5
If the moving party meets this initial burden of showing an absence of
6
material fact, then the inquiry shifts to the party with the burden of proof at trial.
This party must then '"make a showing sufficient to establish the existence of an
2
Young v. Key Pharma. Inc .. 112 Wash. 2d 216, 235, 770 P.2d 182 (1989).
3
Barrie v. Hosts of Am., Inc., 94 Wash. 2d 640, 642, 618 P.2d 96 (1980).
4
Grimwood v. Univ. of Puget Sound, Inc., 110 Wash. 2d 355, 359-60, 753 P.2d 517
(1988).
5lfl
6
Young, 112 Wash. 2d at 225.
5
No. 67475-7-1/6
element essential to that party's case, and on which that party will bear the
burden of proof at trial."' 7
An appellate court reviews the trial court's order granting summary
judgment de novo, reviewing the facts in the light most favorable to the
nonmoving party. 8
To prove an action for negligence, a plaintiff must demonstrate that the
defendant owed a duty to him, breached this duty, and that this breach
proximately caused the plaintiff's injury. 9 "A cause of action for negligence will
not lie unless the defendant owes a duty of care to plaintiff." 10 "Existence of a
duty is a question of law. Breach and proximate cause are generally fact
questions for the trier of fact. "11
Where the liability of a governmental entity is at issue, Washington courts
"have employed the 'public duty doctrine' to determine whether the duty is one
owed to a nebulous public or whether that duty is owed to a particular
individual." 12 Because the Washington legislature has made public entities liable
7
!fLat 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)).
8
Ruvalcaba v. Kwang Ho Baek, 175 Wash. 2d 1, 6, 282 P.3d 1083 (2012).
9
Hertog v. City of Seattle, 138 Wash. 2d 265, 275, 979 P.2d 400 (1999).
1
°Chambers-Castanes v. King County, 100 Wash. 2d 275, 284, 669 P.2d 451
(1983).
11
Hertog, 138 Wash. 2d at 275.
12
Hencoop v. State, 111 Wash. 2d 182, 188, 759 P.2d 1188 (1988).
6
No. 67475-7-1/7
"to the same extent as" private persons, 13 "the public duty doctrine does not-
cannot-provide immunity from liability." 14 Instead, it is:
a focusing tool [used] to determine whether a public entity owed a
duty to a 'nebulous public' or a particular individual. The public duty
doctrine simply reminds us that a public entity-like any other
defendant-is liable for negligence only if it has a statutory or
common law duty of care. And its 'exceptions' indicate when a
statutory or common law duty exists.l 151
Thus, a plaintiff bringing a case against a public entity must show that the
entity owed a duty to him, specifically. 16 What differentiates a public entity
defendant from other defendants is that the examination of whether it owed a
specific duty to the plaintiff is particularly stringent. 17 This is because public
entities owe general duties to the public at large-they must, for instance,
respond to 911 calls and police the streets. But public entities are not negligent
for a breach of these general duties. 18
State
The Estate argues that DOC and DSHS both owed a duty to the Linnik
child under several different theories of negligent liability. Because the Estate
cannot demonstrate that either state agency owed the Linnik child a duty, we
disagree.
13
RCW 4.92.090.
14
Osborn v. Mason County, 157 Wash. 2d 18, 27, 134 P.3d 197 (2006).
15
~at 27-28 (quoting Taylor v. Stevens County, 111 Wash. 2d 159, 166, 759 P.2d
447 (1988)).
~at 27.
16
17
~at 27-28.
18~
7
No. 67475-7-1/8
Implied Statutory Duty Under RCW 26.44.050 and .030
The Estate argues that the state DSHS was negligent because it did not
fulfill its implied duties under RCW 26.44.050 and .030, causing the Linnik child's
death. We hold that there was no duty to the Linnik child under the
circumstances of this case.
RCW 26.44.050 states:
Upon the receipt of a report concerning the possible occurrence of
abuse or neglect, the law enforcement agency or the department of
social and health services must investigate and provide the
protective services section with a report in accordance with chapter
74.13 RCW, and where necessary to refer such report to the court.
The supreme court has recognized that under this statute the "State has a
statutorily mandated duty to investigate child abuse allegations brought to its
attention." 19 This duty had been recognized to flow not only to the child victim of
abuse but also to parents whose parental rights are interfered with due to abuse
allegations? 0 Thus, in Tyner v. Department of Social and Health Services, the
supreme court held that DSHS owed a duty to Tyner, a father who was
separated from his children during a child abuse investigation. 21 There, the court
implied a cause of action in favor of a parent of a child who was the subject of an
investigation under RCW 26.44.050:
In [Bennett v. Hardy], we outlined when a cause of action will
be implied from a statute. The following questions must be asked:
"[F]irst, whether the plaintiff is within the class for whose 'especial'
19
Tyner v. Dep't of Social and Health Servs., 141 Wash. 2d 68, 77, 1 P.3d 1148
(2000).
20
19..:. at 82.
21 19..:.
8
No. 67475-7-1/9
benefit the statute was enacted; second, whether legislative intent,
explicitly or implicitly supports creating or denying a remedy; and
third, whether implying a remedy is consistent with the underlying
purpose of the legislation."1221
The Tyner court held that RCW 26.44.050's legislative history made "it
clear that a parent's interests were contemplated by the Legislature."23 It also
concluded that the Legislature's emphasis on the close relationship between a
child and a parent's interests demonstrated that it intended "a remedy for both
the parent and the child if that interest is invaded."24 And, as the court noted,
"RCW 26.44.050 has two purposes: to protect children and preserve the integrity
of the family," and thus protection of a parent's rights were explicitly part of the
statute's goals. 25
After Tyner, this state's courts have rejected attempts to broaden the duty
implied by RCW 26.44.050. Thus, in Ducote v. Department of Social and Health
Services, the supreme court rejected claims from stepparents that DSHS owes
them a duty under RCW 26.44.050 for negligent investigation of child abuse. 26
RCW 26.44.010 does not designate the bond between a child and
his or her stepparent or other family member as one entitled to this
same protection. Because the legislature did not designate
stepparents as members of the class protected by RCW 26.44.050,
22
kL_ at 77-78 (quoting Bennett v. Hardy, 113 Wash. 2d 912, 920-21, 784 P.2d 1258
(1990)).
23
kL, at 78.
24
kL, at 80.
25 kL.
26
167 Wash. 2d 697, 704, 222 P.3d 785 (2009).
9
No. 67475-7-1/10
Ducote does not have standing to bring a negligent investigation
claim. 1271
And, this court in Blackwell v. Department of Social and Health Services held that
the implied duty created by RCW 26.44.050 was not owed to foster parents? 8 As
in Ducote, this court looked to the language of RCW 26.44.01 0, which
emphasizes the parent-child relationship and does "not include caretakers within
that classification." 29
Similarly, the supreme court has rejected claims of negligent investigation
30
where the plaintiff was not actually investigated for abusing her own child, and
where a DSHS investigation, not DSHS placement, led to a child's physical and
emotional injuries. 31
The supreme court has also implied a duty owed by those required to
report child abuse under RCW 26.44.030. Under RCW 26.44.030:
When any ... employee of [DSHS] . . . has reasonable
cause to believe that a child has suffered abuse or neglect, he or
she shall report such incident, or cause a report to be made, to the
proper law enforcement agency or to the department as provided in
RCW 26.44.040.
27
!fL. at 704.
28
131 Wash. App. 372, 378, 127 P.3d 752 (2006).
29
!fL. at 377.
30
Roberson v. Perez, 156 Wash. 2d 33, 45-46, 123 P.3d 844 (2005).
31
M.W. v. Dep't of Social and Health Servs., 149 Wash. 2d 589, 591, 70 P.3d 954
(2003).
10
No. 67475-7-1/11
In Beggs v. Department of Social and Health Services, the court applied
the Bennett "implied cause of action test" to RCW 26.44.030. 32 The court
concluded that "victims of child abuse are certainly within the class for whose
['especial'] benefit the legislature enacted the reporting statute, as this court has
acknowledged. "33
Here, the Estate attempts to broaden the limited duty the courts have
implied from RCW 26.44.050 and .030, arguing that DSHS owed a duty to the
Linnik child. Such an argument is unsupported by the case law and by the
statute itself. While CPS received a report that a "young girl" had been sold to
Adhahn and was living with him, the Linnik child was not the subject of the report.
All the cases that have addressed both RCW 26.44.050 and .030 have limited
the class of persons who are owed a duty to those children who are allegedly
abused and their parents. 34
The first anonymous report to CPS stated that a "young girl" was living
and having sex with a 42-year-old man. The DSHS worker who received this call
determined that it was a "third party report'' and referred it to Pierce County. This
was consistent with the requirements of the statute.
The Estate argues that because the girl was reported to be under 16,
DSHS's failure to "screen in" the report and investigate it was a violation of
DSHS's duty. Even if this were so, DSHS's duty would have been to the child
32
171 Wn.2d 69,77-78,247 P.3d 421 (2011).
33
ld. at 77 (emphasis added).
34
Blackwell, 131 Wash. App. at 378.
11
No. 67475-7-1/12
who was the subject of the referral, not the Linnik child. DSHS owes a duty
under RCW 26.44.050 and .030 to a child who is abused and about whom they
receive a report. Under this duty, DSHS must non-negligently investigate the
report and properly inform law enforcement about it. 35 DSHS never received a
report concerning the Linnik child in connection with Adhahn, the alleged abuser.
Thus, she was not one to whom DSHS owed a duty under either RCW 26.44.030
or .050.
In arguing that DSHS owed a duty to this child, the Estate relies on Lewis
v. Whatcom Countv. 36 That reliance is misplaced.
There, this court held that upon receipt of a report concerning possible
abuse or neglect, Whatcom County owed a duty to Lewis, who was being abused
by her uncle. 37 The County argued that "it owed no duty to Lewis because her
abuser was her uncle rather than her parent."38 But the Lewis court rejected this
argument. 39 "Nothing in the plain language of this statute, which imposed a duty
to investigate on law enforcement, limits that duty to children who have been
abused by their parents or guardians. Indeed, it is a broad mandate covering
any report of possible abuse or neglect."40 But, nowhere in the Lewis opinion did
35
Tyner, 141 Wash. 2d at 77.
36
136 Wash. App. 450, 149 P.3d 686 (2006).
37
k!.. at 453-54.
38
k!.. at 453.
39 k!..
40
ld. at 454.
12
No. 67475-7-1/13
this court imply that a public entity owes a duty to those children who are not the
subject of a DSHS report or referral but who are later harmed by a child abuser's
actions.
The Estate argues that Lewis held "that both the statutory language and
prior Washington case law provided that 'children who may be abused or
neglected' were the class protected by the statute." But the Estate does not fully
quote the Lewis opinion, distorting the duty it implied. The court stated:
[t]he trial court granted summary judgment, adopting the County's
argument that it owed [] no duty to investigate because the abuse
allegations were not against [Lewis's] parent or guardian. But RCW
26.44.050 creates a duty to all children who may be abused or
neglected, regardless of the relationship between the child and his
or her alleged abuser.[41 l
It thus emphasized that RCW 26.44.050 creates a duty to children who may be
abused or neglected about whom a public entity receives a report and then
negligently investigates. Lewis does not stand for the proposition that DSHS
owes a duty to any child harmed as a result of a report of child abuse or neglect.
Nor that DSHS owes a duty to all children abused by someone about whom a
report has been submitted. Such a reading would obviate the requirement that
for a public entity to be negligent, it must have a duty to a particular person, not
to every citizen or every child.
The Estate also argues that "[r]ather than being arbitrarily limited to the
child named in the abuse referral, this duty should instead be limited by''
foreseeability. But such an analysis ignores the duty requirement of a negligence
41
Lewis, 136 Wash. App. at 452.
13
No. 67475-7-1/14
claim and would conflict with the longstanding jurisprudence of this state that we
discussed earlier in this opinion.
Because the Estate fails in its burden to show any duty, we need not
address whether proximate cause exists.
"Take Charge" Duty
The Estate argues that the state DOC was negligent because it owed a
"take charge" duty to non-negligently supervise and classify Adhahn and its
failure to do so proximately caused the Linnik child's death. We hold there is no
such duty here.
A public entity may owe a duty to an individual for a third person's criminal
42
act, though this is usually not the case. This duty exists if the entity had a
special relationship with the third person and this relationship created a duty to
take reasonable precautions to protect anyone who might foreseeably be
endangered. 43
The supreme court first enunciated this "take charge" duty in Petersen v.
45
State. 44 There, the court looked to the Restatement (Second) of Torts § 315.
This section echoes the general principle that there is no duty to control the
conduct of a third person to prevent him from physically harming another, unless:
42
Robb v. Citv of Seattle, 159 Wash. App. 133, 142-43, 245 P.3d 242 (2010),
review granted, 171 Wash. 2d 1024 (2011 ).
43
Taggart v. State, 118 Wash. 2d 195, 218, 822 P.2d 243 (1992).
44
100 Wash. 2d 421, 671 P .2d 230 (1983).
45
lit. at 426-27.
14
No. 67475-7-1/15
(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.
In Petersen, Larry Knox struck and killed the plaintiff five days after being
released from Western State Hospital. 46 The doctor supervising Knox had
previously obtained a court order allowing his detention for an additional fourteen
days. 47 The evening before Knox's discharge, Knox was "apprehended by
hospital security personnel while driving his car on the hospital grounds in a
reckless fashion .... "48 Nevertheless, the doctor ordered Knox's discharge. 49
Five days later, he injured Peterson in a car collision. 50
In the lawsuit that followed, the court held that the Knox's psychiatrist had
a "take charge" duty, as enunciated in the Restatement (Second) of Torts § 315,
to protect Knox's foreseeable victims because he should have determined that
Knox presented a serious danger to others. 5 1 In doing so, the court relied on a
California supreme court decision, Tarasoff v. Regents of University of
California. 52 There, Prosenjit Poddar told his psychologist that he planned to kill
46
lQ.. at 423.
47
lQ.. at 424.
48 1.9.:.
51
.!.9.:. at 428-29.
52
17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).
15
No. 67475-7-1/16
Tatiana Tarasoff. 53 Though the campus police briefly detained Poddar, he was
released without further action. 54 Two months later, Poddar killed Tarasoff. 55
Following Tarasoff and Petersen, Washington courts have applied the
"take charge" duty to DOC supervision of parolees. In Taggart v. State, the
supreme court held that "parole officers have a duty to protect others from
reasonably foreseeable dangers engendered by parolees' dangerous
propensities."56 The Taggert court specifically noted 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."' 57 It went on to conclude
that RCW 72.04A.080, the statute governing parolees' supervision, established a
'definite, established and continuing relationship' between parole officers and
their parolees. 58 Under RCW 72.04A.080, parolees:
shall be subject to the supervision of the department of corrections,
and the probation and parole officers of the department shall be
charged with the preparation of progress reports of parolees and to
give guidance and supervision to such parolees within the
conditions of a parolee's release from custody.
The court also noted that sections 316 through 320 of the Restatement
(Second) of Torts were helpful in identifying where ''take charge" duties occur, "in
53
!Q.. at 430.
56
118 Wash. 2d 195, 224, 822 P.2d 243 (1992).
57
!Q.. at 219 (quoting Honcoop, 111 Wash. 2d at 193) (emphasis added).
16
No. 67475-7-1/17
accordance with the general principle stated in § 315 ...."59 The court
concluded that § 319 was the most relevant in the context of parolees. 60 Section
319 states, "One 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."61
In Hertog v. Citv of Seattle, the supreme court extended this "take charge"
duty as expressed under§ 319 to probation counselors and pretrial release
counselors. 62 It held that probation counselors owed such a duty because they
are "clearly in charge of monitoring the probationer to ensure that conditions of
probation are being followed, and [have] a duty to report violations to the court."63
Pretrial release counselors, too, the Hertog court held, have a "take charge" duty
because they are charged with reporting the violations of those they monitor.54
While the Taggart court recognized that DOC may owe a "take charge"
duty to one injured by a parolee, the supreme court has also limited the extent of
this duty. In Osborn v. Mason County, the plaintiff claimed that the county had a
duty under the "take charge" doctrine to warn others of a sex offender's
59 1ft.
60
1ft. at 219-20.
61
RESTATEMENT (SECOND) OF TORTS,§ 319 (1965).
62
138 Wash. 2d 265, 281, 292, 979 P .2d 400 (1999).
63
1ft. at 279.
64
1ft. at 287-88.
17
No. 67475-7-1/18
65
presence. The court rejected this claim, holding "Mason County did not 'take
charge' of [the sex offender] because it had no authority to control him."66
Similarly, in Couch v. Department of Corrections67 and Hungerford v.
Department of Corrections, 58 both of which involved the same felon, Anthony
Davis, Division Two of this court held that DOC did not have a "take charge"
relationship with Davis. 69 At the time that Davis murdered Couch and
Hungerford, DOC:
had authority to monitor Davis for legal financial obligations only, it
lacked authority to monitor Davis for future criminal behavior; and if
DOC lacked the ability to monitor Davis for future criminal behavior,
it was not participating in a "take-char~e" relationship of the kind
that Taggart and its progeny requireF I
Here, as in Couch, Hungerford, and Osborn, DOC had no "take charge"
duty to Ad hahn's victims at the time that the Linnik child was murdered. The last
time that it had such control over Adhahn and an accompanying duty was in July
1997, ten years prior to the Linnik child's murder. That was when DOC
supervised Adhahn as part of his SSOSA sentence for his 1990 incest
conviction. This supervision ended at that time when the court entered its Order
Terminating Treatment and Supervision. Under Taggart and its progeny, DOC
65
157 Wash. 2d 18, 23-24, 134 P.3d 197 (2006).
66
12:. at 25.
67
113 Wash. App. 556, 54 P .3d 197 (2002), review denied, 149 Wash. 2d 1012
(2003).
68
135 Wash. App. 240, 139 P.3d 1131 (2006), review denied, 160 Wash. 2d 1013
(2007).
69
12:. at 246, Couch, 113 Wash. App. at 571.
7
°Couch, 113 Wash. App. at 571 (emphasis added).
18
No. 67475-7-1/19
no longer had any ability to control Ad hahn's actions after termination of
supervision, or any special relationship with him. Thus, it owed no duty to the
Linnik child thereafter.
The Estate argues that "[i]t is not the law ... that a take-charge duty
terminates when the take-charge relationship does." It then points to what it
argues was DOC's negligent supervision of Adhahn from 1990 to 1997, arguing
that these actions breached DOC's duty which it owed to the Linnik child, a
foreseeable victim. It cites Petersen to support its contention that a public entity
that breaches its duty during the "take charge" period may be liable for injuries
after the period has ended.
But, as the Taggart court noted, in Petersen, "the patient who caused the
plaintiff's injuries was released from the hospital, where the psychiatrist had a
high degree of control over him .... "71 Taggart and its progeny have noted
that, in the context of duties owed by DOC, the degree of control and supervision
it has over an individual is critical for ascertaining whether there is a ''take
charge" duty. 72
Here, after July 1997, DOC had no control over Ad hahn, and thus no duty
to his future victims. Further, in Petersen, only five days separated the patient's
71
Taggart, 118 Wash. 2d at 222.
72
1d., Aba Sheikh v. Choe, 156 Wash. 2d 441, 453, 128 P.3d 574 (2006) (''The mere
existence of some ability to control a third party is not the dispositive factor in
determining whether a take charge duty exists; rather, the purpose and extent of such
control defines the relationship for purposes of tort liability.").
19
·-~No. 67475-7-1/20
release from Western State Hospital and his causing Petersen's injuries. 73 In
Tarasoff, two months separated the specific threat from the negligent act. 74 No
case cited by the Estate or that we could find applies the duty to any substantially
longer period of time. Here, ten years separated the court's termination of DOC's
supervision and the Linnik child's murder. Thus, Petersen is distinguishable.
In addition to Petersen, the Estate relies on several out-of-state cases to
support its contention that a "take charge" duty does not terminate when a "take
charge" relationship does. None of these cases are helpful, even if we chose to
ignore the clear lines of authority that our state cases provide?5
As with Petersen, two of these cases deal with the "take charge" duty in
the mental health context. 76 In the third case, Smith v. Hope Village. Inc., the
court applied the principles of duty that have developed in the District of
Columbia, which are broader than those that Washington courts have
expressed.n Thus, Smith is not helpful.
The Estate argues that DOC negligently supervised Adhahn when it did
have a "take charge" relationship with him. But, even if DOC did negligently
supervise Ad hahn during that period, this supervision ended ten years prior to
73
Petersen, 100 Wash. 2d at 423.
74
Tarasoff, 17 Cal. 3d at 430.
75
See Am. Best Food. Inc. v. Alea London Ltd., 168 Wash. 2d 398, 408, 229 P.3d
693 (201 0) (noting that "persuasive out-of-state precedent should not trump binding in-
state law'').
76
Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St. 3d 284, 673
N.E.2d 1311, 1332 (OH 1997); Littleton v. Good Samaritan Hasp. & Health Ctr., 39 Ohio
St. 3d 86, 529 N.E.2d 449, 455 (OH 1988).
n 481 F. Supp. 2d 172, 186-87 (D.C. Dist. 2007).
20
No. 67475-7-1/21
Adhahn's murder of the Linnik child. Thus, any negligent supervision from 1990
to 1997 has no impact on our analysis.
Finally, the Estate argues that holding that DOC's "take charge" duty ends
when it terminates supervision is contrary to public policy. Public policy, as
expressed in the controlling decisions that we discussed earlier in this opinion
refutes this claim, which is unsupported by any citation to authority.
Because there was no duty of DOC to take charge of Adhahn after the
court terminated its supervision, we need not reach the question of proximate
cause.
Pierce County
The Estate next argues that Pierce County owed a duty to the Linnik child
under several different theories, and that its breach of this duty proximately
caused her death. We disagree.
"Take Charge" Duty
First, the Estate claims that the County had a "take charge" duty to
monitor Ad hahn's sex offender registration and that its failure to do so
proximately caused Linnik's death. We reject this argument.
As noted above, public entities have a "take charge" duty when there is a
'"definite, established and continuing relationship between the defendant and the
third party."' 78 Thus, in Taggart, the supreme court held that DOC had a "take
79
charge" duty with respect to parolees. In doing so, it looked to the language of
78
Taggart, 118 Wash. 2d at 219 (quoting Honcoop, 111 Wash. 2d at 193) (quotation
marks omitted).
79
kL, at 223-24.
21
No. 67475-7-1/22
RCW 72.04A.080, which states that parolees "shall be subject to the
supervision of the department of corrections .... "80 Similarly, in Hertog, the
court held that, though a probation counselor lacks the ability to take full custodial
control of the parolee that is not the key question. 81 "The relevant inquiry is the
relationship of the officer with the parolee. A probation counselor is clearly in
charge of monitoring the probationer to ensure that conditions of probation are
being followed, and has a duty to report violations to the court."82
Here, the Estate argues that RCW 9A.44.135 imposes a "take charge"
duty on counties to monitor sex offenders residing within their borders. The plain
language of this statute belies this claim. Under RCW 9A.44.135(2}:
The chief law enforcement officer of the jurisdiction where
the offender has registered to live shall make reasonable attempts
to locate any sex offender who fails to return the verification form
or who cannot be located at the registered address.
If the offender fails to return the verification form or the
offender is not at the last registered address, the chief law
enforcement officer of the jurisdiction where the offender has
registered to live shall promptly forward this information to the
county sheriff and to the Washin~ton state patrol for inclusion in the
central registry of sex offenders. 1 31
The statute requires the chief law enforcement officer to make reasonable
attempts to locate a sex offender. If an offender fails to return a verification form,
the law enforcement officer must then forward the offender's information to the
80
ld. at 219 (emphasis added).
81
Hertoq, 138 Wash. 2d at 276-77.
82
.!!t. at 279.
83
(Emphasis added.)
22
No. 67475-7-1/23
county sheriff and the Washington state patrol. There is no language in this
statute that states or implies that the chief law enforcement officer in Pierce
County has a duty to take charge of anyone under this statute.
Indeed, the supreme court has already decided that there is no such duty
under this statute. In Osborn, the court rejected the plaintiff's claim that the
county had a "take charge" duty to warn others of a sex offender's presence,
holding "Mason County did not 'take charge' of Rosenow because it had no
84
authority to control him."
The Estate argues that, because of Adhahn's history, it was foreseeable
that he would reoffend and thus the county owed a "take charge" duty to all other
inhabitants to control Adhahn. But, as discussed above, the county had no
statutory right to control him, nor any duty to do so. Without a duty, we need not
address the question of foreseeability. 85
Additionally, the Estate contends that Pierce County owed a separate
"take charge" duty to the Linnik child to report Adhahn's presence to immigration
officials when Adhahn was in the County's custodial control. In 1992, Adhahn
served five days in the Pierce County jail. But, Pierce County had no reason to
know that Adhahn, more than any other inmate in its jails, was a danger to a third
person. Thus, this argument fails.
84
Osborn, 157 Wash. 2d at 25.
85
See Halleran v. Nu West. Inc., 123 Wash. App. 701, 717, 98 P.3d 52 (2004)
(noting that foreseeability limits the scope of the duty, but does not independently create
a duty).
23
No. 67475-7-1/24
The Estate also argues that the report the County received from DSHS
regarding Adhahn "strengthened" its "take charge" duty. But this argument fails
as there was no duty to "strengthen."
Because the Estate cannot demonstrate duty, we need not reach
proximate cause.
Implied Duty Under RCW 26.44. 050 and .030
The Estate also argues that the County owed a duty under RCW
26.44.050 and .030. We disagree.
As discussed previously in this opinion, the supreme court has recognized
an implied duty owed to abused and neglected children and to parents under
RCW 26.44.050 and .030. 86 Since recognizing this duty, the court has
continuously limited to whom this duty is owed. 87 Here, because the Linnik child
was not a subject of such a referral, the County owed no duty to her to
investigate any reports it received regarding Adhahn.
Because Pierce County owed no duty to the Linnik child under these
statutes, we need not address proximate cause.
Failure to Enforce Exception - RCW 9A.44. 135
The Estate also claims that the County owed it a duty to enforce the
requirements of RCW 9A.44.135. We reject this claim.
86
Tyner, 141 Wash. 2d at 77-78.
87
Ducote, 167 Wash. 2d at 704; Blackwell, 131 Wash. App. at 378.
24
No. 67475-7-1/25
The "failure to enforce exception" is another of the focusing tools that our
courts have enunciated with respect to public entity liability. 88 It applies "where
governmental agents responsible for enforcing statutory requirements possess
actual knowledge of a statutory violation, fail to take corrective action despite a
statutory duty to do so, and the plaintiff is within the class the statute intended to
protect."89 This duty applies "only where there is a mandatory duty to take a
specific action to correct a known statutory violation." 90 Thus, "[s]uch a duty
does not exist if the government agent has broad discretion about whether and
how to act. "91
In Bailey v. Town of Forks, the supreme court held that Forks owed Bailey
a duty under the failure to enforce exception. 92 There, Bailey was injured after an
intoxicated motorcyclist collided with her truck. 93 Prior to the accident, a Forks
police officer had contact with the motorcyclist and knew or should have known
that the motorcyclist was intoxicated. 94 The court held that under RCW
46.61 .515 and 70.96A.120(2), "a police officer has a statutory duty to take into
88
Bailey v. Town of Forks, 108 Wash. 2d 262, 268, 737 P.2d 1257 (1987).
89
.!9.:. at 268.
90
Donohoe v. State, 135 Wash. App. 824, 849, 142 P.3d 654 (2006) (emphasis
added).
91
Halleran, 123 Wash. App. at 714.
92
108 Wash. 2d 262,269, 737 P.2d 1257 (1987).
93
.!9.:. at 263.
94
.!9.:. at 264-65.
25
No. 67475-7-1/26
custody a publicly incapacitated individual." 95 The court also noted that the
police officer "took no corrective action and possessed actual knowledge of [the
motorcyclist's] statutory violations. "96
Here, the Estate argues that the County breached a duty by failing to
enforce RCW 9A.44.135. But, in contrast to Bailey, RCW 9A.44.135 does not
create a mandatory duty for the County to act. As previously discussed, the plain
words of the statute state that the chief law enforcement officer of a jurisdiction
"shall make reasonable attempts to locate any sex offender who fails to return
the verification ... :m Nowhere does this statute require law enforcement to act
in a specific way once the express requirements of the stature are met.
Because RCW 9A.44.135 does not mandate law enforcement take a
specific action to verify sex offenders' addresses, it does not create a mandatory
duty. Thus, we reject the Estate's argument.
Tacoma
The Estate also argues that Tacoma owed a duty to the Linnik child under
the rescue doctrine and RCW 26.55.050. We disagree.
Rescue Doctrine
First, the Estate argues that because Tacoma issued an AMBER Alert
more than 10 hours after Linnik was reported missing, it assumed a duty to warn
95
!.9.:. at 269.
96 !it
97
RCW 9A.44.135(2) (emphasis added).
26
No. 67475-7-1/27
or come to Linnik's aid and did so negligently, proximately causing her death.
We disagree.
As enunciated in Bailey, a public entity may owe a duty to an individual
plaintiff, and thus may be liable for negligence, ''when governmental agents fail to
exercise reasonable care after assuming a duty to warn or come to the aid of a
particular plaintiff (rescue doctrine)."98 Under this doctrine, a person "may be
liable for attempting a voluntary rescue and making the plaintiff's situation
worse if that person (1) increases the danger; (2) misleads the plaintiff into
believing the danger has been removed; or (3) deprives the plaintiff of possible
help from others."99 As the supreme court noted, "reliance is the linchpin of the
rescue doctrine." 100
In Osborn, the supreme court held that Mason County did not owe the
plaintiff a duty under the rescue doctrine because "the Osborns did not rely on
Mason County's assurances." 101 There, a Mason County detective told one
county resident that he would post fliers notifying the community that a registered
sex offender had moved into the area. 102 He never spoke with Osborn. 103 The
detective failed to post any fliers, and the sex offender raped and murdered
98
Bailey, 108 Wash. 2d at 268.
99
Ganno v. Lanoga Corp., 119 Wash. App. 310, 316, 80 P.3d 180 (2003).
100
Osborn, 157 Wash. 2d at 25; see also Chambers-Castanes, 100 Wash. 2d at 285
n.3 (noting that under the rescue doctrine a governmental entity may be liable where
''the offer to render aid is relied upon by either the person to whom the aid is to be
rendered or by another .... ").
101
k!:. at 25.
102
k!:. at 21.
103 k!:.
27
No. 674 75-7-1/28
Osborn. 104 The court held that Mason County did not owe Osborn a duty and
thus was not negligently liable for her death. 105
[T]he Osborns do not claim Mason County promised to warn them
of [the sex offenders] presence .
. . . [T]he Osborns relied on neither Mason County nor [the
police officer] to warn them of [the sex offenders] presence.
Accordingly, Mason County had no duty to warn the Osborns under
the rescue doctrine.r1061
The court noted that, "[u]nder the rescue doctrine, both public and private,
entities have a duty to warn those who reasonably rely on a promise to warn.
But no duty to warn exists under the rescue doctrine without reasonable reliance
on such a promise." 107
Here, the Estate could not reasonably rely on a promise made by Tacoma
to issue the AMBER Alert within a specific time. Nowhere in the record does the
Estate claim that Tacoma assured the Linniks that it would issue an AMBER
Alert. Thus, the Estate cannot demonstrate that it detrimentally relied on Tacoma
with specific regard to the AMBER Alert. Because detrimental reliance is an
essential element of the rescue doctrine, the Estate cannot demonstrate that
Tacoma owed it a duty under this theory.
104llt
105
llt at 23-26.
106
ld. at 26-27.
1o7llt at 28.
28
No. 67475-7-1/29
The Estate argues that "[i]ssuance of an Amber Alert is a rescue attempt,"
because its goal, as defined by the U.S. Department of Justice, is to "instantly
galvanize the entire community to assist in the search for and safe recovery of
the child." 108 But, this is essentially a claim for negtigent investigation.
"A claim for negligent investigation is not cognizable under Washington
109
law." This is because "[a] mandatory duty to investigate ... would be
completely open ended as to priority, duration, and intensity. . . . Law
enforcement must be vested with broad discretion to allocate limited resources
among the competing demands." 110
As Tacoma notes, an AMBER Alert galvanizes the entire community to
assist in the "police investigatiori' in the search and safe recovery of an
abducted child. Thus, to argue that an AMBER Alert was issued negligently is to
argue that a police investigation was negligent. This is not a cognizable claim. 111
The Estate also relies on Brown v. MacPherson's lnc. 112 and Folsom v.
113
Burger King, arguing that these cases support its position that Tacoma owed it
a duty. They do not.
108
Brief of Appellants at 40-41.
109
Fondren v. Klickitat Countv, 79 Wash. App. 850, 862, 905 P.2d 928 (1995).
110
Donaldson v. City of Seattle, 65 Wn. App. 661,671-72,831 P.2d 1098 (1992).
111
.!.Q.. at 671; Fondren, 79 Wash. App. at 862.
112
86Wn.2d 293,545 P.2d 13 (1975).
113
135 Wash. 2d 658, 958 P.2d 301 (1998).
29
No. 67475-7-1/30
In Brown, two plaintiffs sued the State of Washington for injuries to life and
property sustained after an avalanche. The State ''was specifically warned of the
extreme hazard of avalanche danger'' on the plaintiffs' property but failed to
communicate this warning to any of the known owners and occupants of the
property. 114 The supreme court held that the trial court incorrectly dismissed the
suit against the State. 115 In so holding, the court relied on the fact that the
State's failure to inform the property owners of the avalanche danger may have
prevented the property owners from other aid or assistance. 116 Thus, the State's
actions may have "increase[d] the risk of harm to those" it was trying to assist. 117
Here, in contrast to Brown, the issuance of an AMBER Alert, tardy as it
was, did not cause others to refrain from acting, nor did it increase the risk of
harm to the Linnik child. In the absence of Tacoma's issuance of the AMBER
Alert, the Linnik child would not have received further aid from others. Thus,
whether it was issued four hours after Tacoma police initially requested did not
increase the risk of the harm to the Linnik child.
Nor does Folsom alter our analysis. There, the court outlined the
principles of the rescue doctrine, holding that the respondents in the case owed
no duty to Folsom. The court stated that "[a] person who undertakes, albeit
gratuitously, to render aid to or warn a person in danger is required by
114
Brown, 86 Wash. 2d at 295-96.
115
!!l at 299.
116 !!l
117 !!l
30
No. 67475-7-1/31
Washington law to exercise reasonable care in his or her efforts." 118 But, the
court continued, noting that only if "a rescuer fails to exercise such care and
consequently increases the risk of harm to those he or she is trying to
assist' is there a duty under this doctrine. 119 Here, Tacoma did not increase the
risk of harm to the Linnik child, as noted above. Thus, Folsom is not helpful.
Restatement (Second) of Torts Section 3028
Finally, the Estate argues that the State, Pierce County, and Tacoma all
owed it a duty because they all acted affirmatively and exposed the Linnik child
to an unreasonable risk of harm from a third party. They rely on Restatement
(Second) of Torts§ 3028. We hold that the Estate cannot demonstrate that any
of the respondents owed it or the Linnik child a duty under § 3028.
In Parrilla v. King County, the supreme court recognized that a duty of
120
care could be compelled by § 3028. This section provides: "An action or
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." 121 The comments to the section go on to note that:
[t]here are ... situations in which the actor, as a reasonable man, is
required to anticipate and guard against the intentional, or even
criminal, misconduct of others. In general, these situations arise
where the actor is under a special responsibility toward the one
who suffers the harm, which includes the duty to protect him
118
Folsom, 135 Wash. 2d at 676.
1191!t.
120
138 Wn. App. 427,439, 157 P.3d 879 (2007).
121
RESTATEMENT (SECOND) OF TORTS, § 3028 (1965).
31
No. 67475-7-1/32
against such intentional misconduct; or where the actor's own
affirmative act has created or exposed the other to a
recognizable high degree of risk of harm through such
misconduct, which a reasonable man would take into
account. !1221
Two cases have found a duty owed by a public entity under § 3028:
Parrilla and Robb v. City of Seattle. 123 In Parrilla, a bus driver affirmatively acted
by leaving a passenger on a running bus. 124 The passenger was "exhibiting
bizarre behavior, including acting as if he were talking to somebody outside of
the vehicle although nobody was there, yelling unintelligibly, and striking the
windows of the bus with his fists." 125 The driver left the bus, and the passenger
126
then moved into the driver's seat and drove the bus into several vehicles. The
court held that:
the bus driver left the bus with the engine running next to the curb
of a public street, with [a disturbed passenger] on board.
Significantly, the bus driver was fully aware that [the passenger]
was acting in a highly volatile manner .... Furthermore, ... the 14-
ton bus here was a vehicle uniquely capable of inflicting severe
damage. The risk of harm arising from the criminal operation of
such a vehicle was recognizably high. Moreover, the bus was
stolen by [the passenger] mere moments after it was left
unattended, not at a remote future time by an unknown individual ..
[127]
122
.!Q, (emphasis added).
123
159 Wash. App. 133, 245 P.3d 242 (2010), vacated, _Wn.2d _ , 295 P.3d
212 (2013).
124
Parrilla, 128 Wash. App. at 431.
125 .!Q,
126
.!Q, at 430.
127
.!Q, at 440.
32
No. 67475-7-1/33
Similarly, in Robb this court held that the evidence in that case would
support a duty instruction based on § 3028. 128 There, Samson Berhe shot and
killed Michael Robb. 129 Before murdering Robb, Berhe had twice been taken to
Harborview Hospital for a mental evaluation at the request of his family, who
were afraid for their safety. 130 And, during the week in which he shot Robb,
police learned that Behre "was again engaging in bizarre and aggressive
131
behavior and that he possessed a shotgun." Finally, the day of Robb's
murder, Berhe was detained by two Seattle police officers. 132 During the
detention, the officers "noticed yellow shotgun shells on the curb next to where
Berhe was standing." 133 They then released Berhe. 134 The officers took control
of the situation and then departed from it, "leaving shotgun shells lying around
within easy reach of a young man known to be mentally disturbed and in
possession of a shotgun." 135 This court held that, given the Seattle Police
Department's knowledge of Berhe's erratic and violent behavior, a jury could find
128
Robb, 159Wn. App. at 135.
129 .!.Q..
130
.!.Q.. at 136.
131 .!.Q..
132 .!.Q..
133
.!.Q.. at 137.
1341d.
135
.!.Q.. at 147.
33
No. 67475-7-1/34
that the officers' affirmative acts created a recognizable and extremely high risk
of injury to a third person. 136
In contrast to Parrilla and Robb, in Tae Kim v. Budget Rent A Car
Systems. Inc., the supreme court held that Budget owed no duty under§ 302B to
137
Peter Kim. There, Kim was injured by a Budget vehicle after Demicus Young
stole the car and ran a red light, severely injuring the plaintiff. 138 The car had
been left in the Budget lot with the keys in the ignition, and Kim argued that
Budget should have foreseen the theft of this car and possible injury of others. 139
The court rejected this argument. Section 302B, the court noted, "does not mean
that any risk of harm gives rise to a duty. Instead, an unusual risk of harm, a
'high degree of risk of harm,' is required." 140
Here, the Estate fails to identify any specific affirmative acts of any of the
defendants that could have foreseeably resulted in Linnik's death. That is
because, as in Kim, there were none.
Because none of the respondents undertook any identifiable affirmative
acts that would imply a duty under § 302B, the Estate cannot demonstrate that
they were negligent.
136 kL.
137
143 Wash. 2d 190, 194, 15 P.3d 1283 (2001).
138
kL. at 194.
139
kL. at 195.
140
kL. at 196 (emphasis added).
34
No. 67475-7-1/35
General Negligence
In addition to arguing that each governmental entity breached the specific
duties we have already discussed in this opinion, the Estate also argues that
these entities were more generally negligent. It also argues that "neither duties
nor causation may be parsed out act by act-instead, the defendants' negligence
must be considered as a whole." We reject these assertions.
The Estate relies on Osborn and Robb to argue a more general duty of
negligence. Neither case supports its argument.
The supreme court's holding in Osborn, emphasized the need for a
particularized duty. 141 As we have previously noted, there, a Mason County
police officer failed to distribute fliers notifying the community of a level three
registered sex offender's presence in the community. 142 The court held that
Mason County owed no particularized duty to the Osborns because the police
officer never promised them it would distribute these fliers. 143 Thus, the duty that
Mason County owed to the Osborns was no different from the duty it owed to the
public at large. 144
Nor does this court's opinion in Robb alter this duty analysis. There, this
court held that summary judgment was inappropriate where Seattle could have
141
Osborn, 157 Wash. 2d at 27-28.
142
lQ.. at 21.
143
ld. at 23-26, 28.
144
lQ.. at 28.
35
No. 67475-7-1/36
145
breached a particularized duty it owed to Robb. This duty resulted from law
enforcement's specific affirmative act that they should have reasonably known
146
would create a risk of injury. The court stated "[i]f a risk is foreseeable, an
individual generally has a duty to exercise reasonable care to prevent it." 147
But, foreseeabilty does not obviate the need to first establish a duty owed
to the plaintiff by the defendant. As the supreme court recently stated, "[w]hen a
duty is found to exist from the defendant to the plaintiff then concepts of
foreseeability serve to define the scope of the duty owed." 148 Thus, "(i]t is not ...
the unusualness of the act that resulted in injury to plaintiff that is the test of
foreseeability, but whether the result of the act is within the ambit of the hazards
covered by the duty imposed upon [the] defendant." 149
The Estate argues that "the existing exceptions" to the public duty doctrine
that our courts have outlined "do not exhaust the universe of liability for public
entity defendants." This is true. But the Estate must still demonstrate that each
public entity it charges with negligence had a specific duty to it, rather than a
general duty to the public as a whole. It has failed to do so.
145
Robb, 159 Wash. App. at 147.
146
lih at 142.
147&
148
Michaels v. CH2M Hill. Inc., 171 Wash. 2d 587, 608, 257 P.3d 532 (2011)
(quoting Schooley v. Pinch's Deli Market. Inc., 134 Wash. 2d 468, 475, 951 P.2d 749
(1998)) (alteration in original).
149
Rikstad v. Holmberg, 76 Wash. 2d 265, 269, 456 P.2d 355 (1969) (emphasis
added).
36
No. 67475-7-1/37
ESTATE'S MOTION TO RECONSIDER OR AMEND
The Estate argues that the trial court abused its discretion when it denied
its Motion to Reconsider Striking Briefing on RCW 26.44.050, or in the
AUernative, Plaintiffs' Motion to Amend Complaint. We disagree.
CR 15(a) provides that "[a] party may amend the party's pleading only by
leave of court or by written consent of the adverse party; and leave shall be freely
given when justice so requires." An appellate court reviews a trial court's denial
of a motion to amend for an abuse of discretion. 150 A court should freely grant
leave to amend, unless doing so would result in prejudice to the nonmoving
151
party. "In determining whether prejudice would result, a court can consider
potential delay, unfair surprise, or the introduction of remote issues" as well as
the futility of the amendment. 152
Here, the court denied the Estate's supplemental briefing on the duty
Tacoma owed the Estate under RCW 26.44.050, as well as its motion to
reconsider this decision or, in the alternative, to allow it to amend its complaint.
This was not an abuse of discretion. As Tacoma correctly argued below and on
appeal, the Estate's argument under RCW 26.44.050 was futile. As discussed
15
°Karlbera v. Otten, 167 Wash. App. 522, 529,280 P.3d 1123 (2012).
151
Caruso v. Local Union No. 690 of lnt'l Bhd. of Teamsters, 100 Wash. 2d 343,
350, 670 P.2d 240 (1983).
152
Kirkham v. Smith, 106 Wash. App. 177, 181, 23 P.3d 10 (2001); Haselwood v.
Bremerton Ice Arena. Inc., 137 Wash. App. 872, 889, 155 P.3d 952 (2007); see Doyle v.
Planned Parenthood of Seattle-King Countv. Inc., 31 Wash. App. 126, 131,639 P.2d 240
(1982) ("In addition to timeliness, the court may consider the probable merit or futility of
the amendments requested."); see also lno lno. Inc. v. Citv of Bellevue, 132 Wash. 2d 103,
142, 937 P.2d 154 (1997) (holding that denial of motion to amend was not abuse of
discretion because it was both untimely and ''would have been futile").
37
No. 67475-7-1/38
above, RCW 26.55.040 has been interpreted by the courts to imply a duty owed
to children and their parents who are abused or neglected, about whom law
enforcement has received reports. 153 Because Linnik is not within the group of
people to whom this duty is owed, Tacoma owed no duty to her under this
statute, and any argument that it did is futile. Thus, the lower court's denial of the
Estate's motion was not an abuse of discretion.
The Estate argues that because Washington is a notice pleading state,
and because its complaint against Tacoma set forth a general theory of recovery,
it was an abuse of discretion for the court not to allow amendment. But, this
argument does not address the fact that any argument that Tacoma had a duty to
Linnik under RCW 26.44.050 was futile. Thus, it is not helpful.
We affirm the summary judgment orders dismissing the claims.
WE CONCUR:
153
Tyner, 141 Wash. 2d at 77-78.
38