Joyce v. State, Department of Corrections, 116 Wash.App. 569, 75 P.3d 548, 64 P.3d 1266 (Wash.App.Div.2 03/11/2003)

[1] Washington Court of Appeals


[2] No. 26499-4-II


[3] 116 Wash.App. 569, 75 P.3d 548, 64 P.3d 1266, 2003.WA


[4] March 11, 2003


[5] STEPHEN JOYCE, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF PAULA JOYCE, AND AS GUARDIAN FOR THE ESTATE OF PAULA JOYCE, AND AS GUARDIAN FOR THE ESTATES OF MARIE THERESA JOYCE, A MINOR, THOMAS JOYCE, A MINOR, KATHERINE JOYCE, A MINOR, AND JOSEPH JOYCE, A MINOR, RESPONDENT,
v.
STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS, APPELLANT. AND VERNON VALDEZ STEWART, A SINGLE MAN, DEFENDANT.


[6] Appeal from Superior Court of Pierce County Docket No: 99-2-10179-6 Judgment or order under review Date filed: 09/29/2000


[7] Counsel for Appellant(s) Glen Andrew Anderson Attorney at Law PO Box 40126 Olympia, WA 98504-0126; Gary Edmund Andrews Dept of Corrections Oas 410 W 5th Ave PO Box 41103 Olympia, WA 98504-1103; Michael Patrick Lynch Attorney at Law Ofc of Atty Gen PO Box 40126 Olympia, WA 98504-0126; Michael E. Tardif Attorney at Law PO Box 40126 Olympia, WA 98504-0126


[8] Counsel for Respondent(s) Darrell L. Cochran Gordon Thomas Honeywell ET AL 1201 Pacific Ave Ste 2200 PO Box 1157 Tacoma, WA 98401-1157; John Robert Jr Connelly Attorney at Law PO Box 1157 Tacoma, WA 98401-1157


[9] The opinion of the court was delivered by: Houghton, J.


[10] Concurring: David H Armstrong


[11] Dissenting: Christine Jan Quinn-Brintnall


[12] PUBLISHED OPINION


[13] While under community supervision by the Washington State Department of Corrections (DOC), Vernon Valdez Stewart caused an automobile accident that killed Paula Joyce. Paula Joyce's family and her estate (the Joyce family) sued DOC and a jury awarded damages. On appeal, DOC argues that the facts do not support finding that DOC's duty to control Stewart extended to Paula Joyce or that its supervision of Stewart was the proximate cause of Paula Joyce's death. DOC also argues that the trial court made errors in submitting several jury instructions and in admitting certain evidence and that the jury award was excessive. We affirm.


[14] FACTS


[15] On August 8, 1997, Stewart stole a vehicle and sped through a red light at an intersection in Tacoma. He collided with another vehicle, killing its driver, Paula Joyce.


[16] At the time of the accident, Stewart was under community supervision as part of his sentence for a third degree assault/domestic violence conviction. In 1995, he pleaded guilty to third degree assaultf*fn1 after beating his girlfriend and allegedly threatening her with a gun. Then, on December 5, 1996, he was sentenced to additional community supervision for possession of stolen property after being pulled over for speeding in a stolen vehicle.


[17] The complex facts require a lengthy recitation of DOC's community supervision notes, Stewart's mental health treatment history, and his criminal history while under community supervision.


[18] Stewart's Community Supervision and Mental Health History


[19] 1995


[20] On September 8, 1995, the court sentenced Stewart to 90 days in jail for assault, most of which he had already served. The remaining 9 days were converted to 72 hours of community service. Stewart was also sentenced to 24 months of community supervision and ordered to make restitution payments.


[21] The conditions of Stewart's community supervision included completing his community service, not contacting his girlfriend for five years, not purchasing or possessing deadly weapons, completing domestic violence counseling, obeying all laws, and making his legal financial obligation payments.


[22] The King County presentence report for the assault conviction included information from police reports and the probable cause determination of Stewart's arrest. It detailed the abusive nature of his relationship with his girlfriend and included various accounts of his assault against her.


[23] Stewart had no prior juvenile or adult felony convictions. His misdemeanor convictions included two juvenile convictions for driving without a valid license and convictions of third degree possession of stolen property and obstructing a public servant.


[24] On October 17, Stewart met with Cathy Lo, his community corrections officer (CCO), to review the conditions of his community supervision. Stewart told Lo that he lived with his mother and sister. Lo told him that she was required to visit him at home twice a month and would have to walk through his home on the first visit.


[25] On October 19, Lo attempted to visit Stewart at home, but no one answered the door. She left a card telling Stewart to call her. On November 2, she attempted another home visit but again, no one answered the door.


[26] On November 15, Stewart met with Lo at her office. He was one hour late for the appointment. Stewart had not completed any of his community service requirements, entered domestic violence counseling or found a job. On November 16, Lo visited Stewart's home again. This time Stewart's mother answered the door and Stewart gave Lo a tour of the house.


[27] On December 20, Stewart appeared for an appointment with Lo but left without seeing her. The next day, Lo went to Stewart's home, but again, no one answered the door. She left a card instructing Stewart to report on January 3, 1996. Stewart reported on that day and told Lo about his inability to begin his community service hours at a local food bank.


[28] 1996


[29] On January 4, 1996, Lo went to Stewart's home and again, no one answered the door. Lo returned to Stewart's home on January 25, but a woman at the door said that Stewart was not home.


[30] On February 7, Stewart did not show up for an appointment. The next day Lo went to Stewart's home but no one answered the door and she left a card telling him to call.


[31] On February 13, Lo sent Stewart a letter advising him of his failure to report on February 7, to pay his legal financial obligations since December 1995, to undergo domestic violence counseling, and to do any community service. She told him that she was writing a violation report to submit to the court and to report on February 21.


[32] Stewart appeared for his February 21 appointment with Lo. She reviewed his community supervision violations and they discussed his community service hours and finding a job. Lo said she had trouble reaching him at home and asked if he had another residence; Stewart said that he did not.


[33] Lo explained that she had delayed sending a violation report because she was hoping for some improvements in his conforming to the community supervision conditions. She told Stewart that she would file the violation report but that she would remove the failure to report violation because he appeared for their current meeting. Lo advised Stewart that if he used the two to three months before the hearing to fulfill some of his conditions, she would recommend leniency to the court.


[34] The next day, on February 22, Lo attempted to visit Stewart at home, but was told that he was not home.


[35] On February 25, Lo issued a notice of violation of Stewart's community supervision conditions. The notice stated that Stewart failed to enter domestic violence counseling, failed to perform his community service, and failed to make the five dollar monthly restitution payments. Lo recommended that the court schedule a hearing, convert any remaining community service time to jail time, and sanction Stewart with ten additional days of jail time. A hearing was noted for this motion for April 18.


[36] On March 6, a Washington State Patrol Trooper stopped Stewart on I-90 in Kittitas County for driving 86 mph. The trooper discovered that Stewart was driving a stolen car and arrested him. The State charged Stewart with first degree possession of stolen property, third degree driving with a suspended license, and failure to sign a notice of infraction.


[37] Presumably, because of his arrest, Stewart failed to report to a March 6 meeting with Lo and she mailed Stewart a letter advising him to contact her immediately. Apparently, Lo did not learn about Stewart's possession of stolen property charge resulting from his traffic stop until April 18.


[38] On March 11, Stewart called Lo. He claimed not to have received the March 6 letter because he did not retrieve his mail at his mother's house. Lo told him it was his responsibility to check his mail at his mother's house because that was the address she had on record for him. Stewart then told Lo that he had been spending a considerable amount of time at his father's house and gave Lo that address. Lo told him that he had missed his mandatory reporting for the month, but that she would give him one more chance. Lo rescheduled Stewart to report in on March 21.


[39] Stewart reported to Lo on March 21, as required. They again discussed Stewart's failure to begin domestic violence counseling or complete community service. Stewart told Lo that he had not started the counseling or community service because he got nervous around groups of people.


[40] On April 11, Stewart went to the Providence Medical Center emergency room complaining of auditory and visual hallucinations and paranoia. He was voluntarily admitted to the Psychiatric Intensive Care Unit. He was diagnosed with bipolar affective disorder with psychosis.


[41] On April 16, Lo attempted to visit Stewart at his mother's house. Stewart's mother told Lo that Stewart had been in the Providence Hospital psychiatric ward since the previous week.


[42] After Lo returned to her office, she received a message that Stewart had called and left the telephone number for his father's home. Lo called the Providence psychiatric ward and verified that Stewart had been admitted but, lacking a signed release, Lo could obtain no more information. Lo then called Stewart's father who also confirmed that Stewart was in the hospital. Because of Stewart's hospitalization, his April violation hearing was continued until May 21.


[43] Providence Hospital released Stewart on April 25. On May 2, Lo visited Stewart at his mother's house. Lo asked Stewart about the rescheduled hearing. He claimed not to know what she was talking about and said that he had not received a hearing notice. Lo advised him to take responsibility for receiving his mail and to call her for a reporting appointment.


[44] On about May 7, Stewart underwent a mental health assessment at Harborview Medical Center. At this assessment, Stewart again complained about 'hearing and seeing things.' Exhibit 54, at 12.


[45] On May 9, Stewart showed up at Lo's office without an appointment, but Lo could not see him. Lo mailed him a letter telling him to report again on May 16. He showed up for that appointment.


[46] At the appointment, Stewart claimed not to know about the upcoming hearing or why he would need a lawyer. Lo suspected that Stewart was manipulating her because 'he showed a sly smile on his face.' IV Clerk's Papers (CP) at 653. Lo again reviewed each of Stewart's violations with him, wrote down the hearing time and place for him, and advised him to get a lawyer. On May 21, Stewart failed to appear for his rescheduled violation hearing, and the court issued a bench warrant.


[47] On June 5, Stewart called Lo. At her supervisor's direction, Lo reminded Stewart to get a lawyer and cautioned him that if he came to the office, he would be arrested on the bench warrant. He claimed not to know that he had a hearing and that he had not been told of his violations. Lo explained the violations again and repeatedly told him to get a lawyer.


[48] On July 5, a public defender called the community supervision office to report that Stewart had a hearing scheduled for July 17 to quash the bench warrant. But Stewart did not appear for that hearing.


[49] Stewart occasionally went to appointments at Harborview Medical Center in the spring and summer of 1996. In August, the police took Stewart into custody on the outstanding bench warrant issued May 21. Lo later learned that he was arrested on August 22 by the Seattle Police Department for failure to comply with the bench warrant. On September 5, Stewart underwent a mental health evaluation at the King County Jail. The evaluator recommended that Stewart be referred for further evaluation. Stewart reported that he suffered memory lapses and that he ingested Risperdal, Valproxin, and lithium.


[50] On October 2, in response to Lo's February 25 notice of violation, a King County superior court judge modified Stewart's sentence for failing to make legal financial obligations, failing to fulfill community service hours' requirements, and failing to enter and complete domestic violence treatment. The court imposed a total of 39 days jail time and ordered Stewart to sign a release of his mental health records to Lo. Lo's chronological report on Stewart indicates that he remained in custody in early October, but was released on October 8. Then, when Stewart failed to appear at a hearing in Kittitas County, that court issued a bench warrant for him. Stewart was apprehended on October 17 and held in the Kittitas County jail. He was still there on November 14.


[51] On December 5, Stewart was found guilty of second degree possession of stolen property in Kittitas County. The court sentenced him to 75 days jail time, 12 months community supervision,*fn2 and ordered to pay restitution.


[52] On December 10, Stewart left a telephone message for Lo, leaving his mother's telephone number. The next day Lo sent Stewart a letter to his mother's address telling him to report on December 17. Stewart did not appear for that appointment.


[53] In mid-December, Stewart underwent another mental health assessment at Harborview Medical Center. Again, he complained of paranoia and visual hallucinations. He had received medication while previously incarcerated (valproic acid, Risperdal, lithium, and Vistaril) but was out of medication on the date of the evaluation.


[54] Stewart called Lo on December 18 to say he just found the December 10 letter, and he rescheduled the appointment for December 19. Stewart did not appear at that appointment either. Later on December 19, Lo went to Stewart's mother's house. His mother said he was not there. Lo left a message for Stewart to call her to reschedule the appointment.


[55] On December 23, the Kittitas County court imposed additional community supervision conditions, which included remaining within King County, notifying his community corrections officer before changing or leaving his residence or employment, and reporting regularly to his community corrections officer.


[56] Stewart appeared on time for his appointment on December 23. Lo told him to seek domestic violence counseling at Harborview Medical Center because he was receiving outpatient mental health treatment there anyway. Lo also asked Stewart to sign the release for his mental health records, as was ordered at the October 2 court hearing. Stewart told Lo that his lawyer advised him not to sign anything until his doctor approved it. Lo gave Stewart copies of his judgment and sentence and the order modifying his sentence to show his doctor and explained that he would have to go back to court if he did not sign the release.


[57] Lo also reviewed the Kittitas County judgment and sentence with Stewart at the December 23 meeting. They discussed the employment condition, Stewart's diagnosis of bi-polar disorder, and whether a vocational training program would meet the employment requirement. As they discussed the other conditions, Stewart told Lo that he would soon be homeless because his mother wanted him to move out of her home. Lo told Stewart that he needed her permission to change residences and that he needed to call her immediately if he moved.


[58] Progress notes from Harborview Medical Center indicate that Stewart was evaluated on a follow-up basis on December 27, 1996 and January 7, 1997, at which time he indicated he was responding to medication.


[59] 1997


[60] On January 6, 1997, Lo attempted to visit Stewart at his mother's house, but no one answered the door so she left a card. Stewart called Lo the next day and said he was in the process of moving out of his mother's house, but that he did not have a stable address because he was staying with various friends. Lo told Stewart to report in by telephone to her once a week on Tuesdays.


[61] On January 14, Harborview Medical Center unsuccessfully attempted to contact Stewart and canceled his treatment on February 7, when he failed to appear.


[62] Lo received messages that Stewart called to report in on January 17 and 27. On January 29, Stewart called and Lo asked why he had not reported on Tuesdays as she directed. Stewart told Lo that he forgot to call in and he was staying with friends 'here & there.' IV CP at 657. Again, Stewart did not give Lo an address. Lo told Stewart to call the next day for an appointment, but he failed to do so.


[63] Stewart called on February 5, and Lo told him to come in later that day. Stewart appeared and told her that he was participating in a general education equivalency program. Stewart told Lo that he still had not talked to his doctor about signing a release of information about his mental health treatment. Lo thought that Stewart appeared not to remember that he was required to obtain the release as a condition of his sentence modification. Lo attached her card to a copy of the judgment and sentence and highlighted the release condition for Stewart to give to the doctor.


[64] Stewart also told Lo that he was now homeless and that he did not have an address. He said that he occasionally received money from his sister, but did not remember her address or telephone number. Lo told Stewart to report in person every first and third Wednesday of the month.


[65] Stewart did not report as directed, but called on February 20. Lo told him to report in person that day. There is no indication in the record that Stewart appeared for this appointment.


[66] On February 26, Stewart received a ticket for third degree driving without a license. He pleaded guilty in Seattle Municipal Court.


[67] Stewart called Lo but left no message on March 5. Stewart called again on March 11, and Lo told him to report in person that day. Stewart appeared for the appointment and they discussed his homelessness. Lo referred Stewart to shelters.


[68] On March 12, Stewart again contacted Harborview Medical Center, complaining about suffering headaches when he was around crowds of people. Stewart's Harborview Medical Center progress reports indicate that he met with treatment providers there again on March 26, missed two appointments in April, but appeared for an appointment on April 23. He also appeared for appointments on May 21 and 27, but missed appointments on June 5, 11, and 19.


[69] Stewart next reported to Lo's office on April 2, but Lo was on leave. On May 9, Lo left her position as a community corrections officer. Stewart next called Lo's office on May 7. Lo's replacement, Odell Mosteller, reported that Stewart called without leaving an address. The next entry in the offender report is from Mosteller, indicating that the family who now lived in Stewart's mother's former residence did not want any more messages on their door. Mosteller then attempted to visit Stewart at an address listed on his returned mail. When no one responded, Mosteller left a note telling Stewart to report on July 2.


[70] On July 10, Stewart went to an appointment at Harborview Medical Center after missing a previous appointment. Stewart and his treatment provider discussed Stewart's bipolar disorder. On July 21, Mosteller had still not heard from Stewart. He called Stewart's father and left a message. That evening, mental health officials responded to a call at Stewart's mother's home. Apparently, Stewart was acting violently, smashing doors, cutting holes in walls with a knife, and setting toys on fire. He did not sleep and, instead, paced and spit all night. He was taken to the King County Jail and released on July 24.


[71] On July 28, Mosteller issued two notices of violation of Stewart's community supervision conditions. In the first notice (Kittitas County sentence), Mosteller reported that Stewart had failed to report since May 2, Stewart failed to notify Mosteller before changing his address, and Stewart failed to pay his legal financial obligations. In the second notice, pertaining to the King County sentence, Mosteller reported violations identical to the first notice but included a statement that Stewart had been arrested in King County for failing to appear in court on a charge of driving with a suspended license on or about February 26. Mosteller recommended that the court schedule a hearing and sanction Stewart to 20 days in the Kittitas County Jail and 20 days in the King County Jail.


[72] On August 7, Stewart's mother appeared at Harborview Medical Center in person to discuss Stewart's condition. She reported that Stewart had been in jail, but that he was presently out. He had been turning off the power to the home she and Stewart shared. Stewart's mother was afraid of him. On August 8, Mosteller received a call from a newspaper reporter, who told him of the automobile accident that killed Paula Joyce.


[73] Stewart's conviction summary as of August 8 includes, among other convictions, four driving with a suspended license convictions, two possession of stolen property convictions, and one theft conviction. His driving record as of August 8 lists approximately 28 violations for offenses including driving without a license, seat belt law violations, driving without liability insurance, speeding, failing to properly signal, a defective muffler, and defective equipment.


[74] Stewart never complied with the court order to sign a release allowing his community supervision officers to see his mental health treatment records. Procedural History


[75] Following the automobile accident that took Paula Joyce's life, the Joyce family filed a lawsuit against DOC. They amended their complaint on February 1, 2000, alleging negligent community supervision, outrage, willful and wanton misconduct, negligent infliction of emotional distress, and negligent supervision of employees.


[76] DOC moved for summary judgment. In its motion, DOC argued that the Joyce family could not present admissible facts to show that an act or omission by DOC was the proximate cause of the fatal accident. DOC also argued that it did not owe Paula Joyce a duty.


[77] The Joyce family filed a cross motion for partial summary judgment, arguing that DOC could not allocate fault to Stewart's mental health providers. The Joyce family argued that DOC had no evidence to support medical malpractice claims against Stewart's doctors or the hospitals that cared for him.


[78] The trial court denied DOC's motion based on the existence of material facts for the jury. It granted the Joyce family's motion. The matter was tried to a jury. At the close of trial, the court denied DOC's CR 50 motion to dismiss based on a lack of evidence to support a finding of duty or proximate cause.


[79] The jury awarded the Joyce family $22,453,645.*fn3 The trial court denied DOC's motion for judgment as a matter of law and for remittitur or a new trial. DOC appeals.


[80] ANALYSIS


[81] Denial of Motion to Dismiss as a Matter of Law


[82] Standard of Review


[83] DOC first contends that the trial court erred in denying its motion to dismiss as a matter of law. When reviewing a trial court's decision on a motion for judgment as a matter of law, we apply the same standard as the trial court. Esparza v. Skyreach Equip., Inc., 103 Wn. App. 916, 926, 15 P.3d 188 (2000), review denied, 144 Wn.2d 1004 (2001).


[84] Judgment as a matter of law may be granted at the close of a plaintiff's case if the plaintiff has been 'fully heard' and 'there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party{.}' CR 50(a)(1). The court must view all conflicting evidence in the light most favorable to the nonmoving party and determine whether the proffered result is the only reasonable conclusion. Esparza, 103 Wn. App. at 927 (citing Hollmann v. Corcoran, 89 Wn. App. 323, 331, 949 P.2d 386 (1997)).


[85] Scope of Duty


[86] Proof of negligence requires that the defendant owe a duty to the plaintiff, that the defendant breach that duty, and that the breach is the proximate cause of injuries to the plaintiff. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). The existence of a duty is the threshold question in negligence analysis. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). Here, the existence of a duty is not at issue. Our Supreme Court has held that '{DOC} has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of {offenders}, and that if injury to {the plaintiff} was a reasonably foreseeable consequence of paroling {the offender}, then this duty extend{s} to {the plaintiffs}.'*fn4 Taggart v. State, 118 Wn.2d 195, 217, 822 P.2d 243 (1992); see also Bell v. State, 147 Wn.2d 166, 52 P.3d 503 (2002).*fn5


[87] DOC argues, however, that even if it owed a duty of care, the facts do not support a finding that the duty reached to Paula Joyce. Our Supreme Court has held that 'the scope of this duty is not limited to readily identifiable victims.' Taggart, 118 Wn.2d at 219. Instead, the class of potential plaintiffs broadly 'includes anyone foreseeably endangered' by the parolee. Taggart, 118 Wn.2d at 219 (citing Petersen v. State, 100 Wn.2d 421, 429, 671 P.2d 230 (1983)). This '{f}oreseeability is normally an issue for the jury, but it will be decided as a matter of law where reasonable minds cannot differ.' Taggart, 118 Wn.2d at 224 (quoting Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989)).*fn6


[88] Thus, to survive judgment as a matter of law on whether the scope of the duty extended to Paula Joyce, the Joyce family had to produce evidence that would allow a jury to find that Paula Joyce was foreseeably endangered. CR 50; Taggart, 118 Wn.2d at 224. The Joyce family met this burden. While under supervision, Stewart's reporting record was continually unreliable. He completely failed to fulfill his court ordered supervision requirements.


[89] He violated the court's order to release his medical records to Lo. His mental health problems caused his behavior to be erratic and violent, his perception of reality to shift, and his judgment to be nonexistent to poor. Finally, while under community supervision, he was convicted of possession of stolen property after being pulled over for speeding in a stolen vehicle.


[90] This is sufficient evidence for a jury to find it foreseeable that Stewart would continue to exercise poor or no judgment, continue to break the law, drive without a valid license, and potentially endanger the lives of others. Thus, any other person on the road with Stewart, including Paula Joyce, was 'foreseeably endangered.'


[91] Nevertheless, DOC asks us to articulate another legal requirement for the Taggart duty to extend to the plaintiff. DOC maintains that it is only possible for a jury to find foreseeability if the trial court first determines that there is a sufficiently close factual nexus between the offender's underlying crime and the new harm that he or she caused the plaintiff. DOC contends that this nexus is missing here. Therefore, DOC argues, its duty to supervise Stewart did not extend to Paula Joyce, as a matter of law. We disagree.


[92] The law does not require a factual nexus between the crime for which the offender was sentenced and the harm he caused the plaintiff before sending the question to the jury. Although it is true that Taggart and its progeny usually involve a relatively close factual nexus between the offender's prior criminal history and the crime that injured the plaintiffs, they do not require one. See Taggart, 118 Wn.2d at 224-25 (two offenders were on parole for assault while under the influence of drugs or alcohol when they assaulted their victims while under the influence of drugs or alcohol); see also Bell, 147 Wn.2d at 170 (paroled sex offender committed kidnap and rape); Hertog, 138 Wn.2d 265 (previous sex offender committed rape); Bishop v. Miche, 137 Wn.2d 518, 973 P.2d 465 (1999) (offender on probation for driving under the influence of alcohol when he drove while intoxicated and caused the accident which killed the plaintiffs' child); Savage v. State, 127 Wn.2d 434, 899 P.2d 1270 (1995) (previous sex offender committed a rape). But see Couch v. Dep't of Corrections, 113 Wn. App. 556, 568-69, 54 P.3d 197, P.3d (2002) (legal financial obligation collection scheme does not impose on DOC a duty to prevent a defendant's future crimes).*fn7


[93] To support its argument, DOC asserts that Taggart focuses on the defendant's propensities that related to the crime and parole conditions. DOC cites cases decided before Taggart for the proposition that a duty based on an offender's propensity requires a close relationship between the prior conduct that caused the supervision and the incident creating liability.


[94] In Baumgart v. Grant County, 50 Wn. App. 671, 676, 750 P.2d 271, review denied, 110 Wn.2d 1033 (1988), the holding relied on finding no special relationship between the government and a released offender. Taggart, a later case from a higher court, directly contradicts this. Taggart, 118 Wn.2d at 223-24 ({DOC} has a special relationship with offenders on parole (or under community supervision) as a matter of law because they 'take charge'*fn8 of an offender, even in the absence of a custodial relationship or continual hourly control). Thus, Taggart overrules Baumgart.


[95] DOC also relies on Noonan v. State, 53 Wn. App. 558, 769 P.2d 313, review denied, 112 Wn.2d 1027 (1989). Noonan declined to extend the duty found in the relationship between a psychiatrist and his patient in Petersen to situations in which an alcohol rehabilitation center had taken charge of a parolee. Noonan, 53 Wn. App. at 566 (citing Petersen, 100 Wn.2d 421). But Taggart, which, as described above, specifically adopted the Petersen analysis to establish a duty between DOC and a parolee, has overruled this reasoning.


[96] DOC also relies on Johnson v. State, 68 Wn. App. 294, 841 P.2d 1254 (1992), review denied, 121 Wn.2d 1018 (1993). Johnson involved a parolee mistakenly released by the county, who, instead of being transferred to a drug rehabilitation center, drove while intoxicated and killed Timothy Johnson. Johnson, 68 Wn. App. at 295-96. Johnson was decided after Taggart and attempts to distinguish Taggart by stating that in the case before it 'there is no evidence beyond the fact of incarceration which would support an inference that the type of definite and continuing relationship contemplated in Petersen existed' between the county and the parolee. Johnson, 68 Wn. App. at 298.


[97] Johnson appears to misconstrue Taggart.*fn9 Taggart held that, regardless of the specific facts of the case, 'the relationship between a parole officer and the parolees he or she supervises creates a similar duty' for DOC to that found in Petersen. Taggart, 118 Wn.2d at 219. Taggart established that a parole officer takes charge of the parolees he or she supervises as a matter of law. Taggart, 118 Wn.2d at 223, 224. As explained above, the fact dependent section of the Taggart analysis is the scope of the duty, which is based on foreseeability and is a jury question. Taggart, 118 Wn.2d at 224. DOC's reliance on Johnson here is thus misplaced.


[98] DOC also cites McKenna v. Edwards, 65 Wn. App. 905, 830 P.2d 385, review denied, 120 Wn.2d 1003 (1992), as an example of a case in which a court found the government did not have a duty to control an offender's conduct. But McKenna does not apply here. The McKenna court held that there was no special relationship because the offender had not been convicted and was thus entitled to the presumption of innocence and release under the least restrictive of conditions. McKenna, 65 Wn. App. at 916. But in Taggart, as in the present case, the offenders were convicted criminals under state supervision without the presumption of innocence or the right to be free. Taggart, 118 Wn.2d at 199, 200, 201; United States v. Salerno, 481 U.S. 739, 750, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).


[99] Thus, DOC cites no authority requiring a trial court to find a close factual nexus before submitting the matter of foreseeability to a jury. It is true that foreseeability will be decided as a matter of law in a case in which reasonable minds cannot differ. Taggart, 118 Wn.2d at 224. But this is not such a case. Because reasonable minds could differ on whether DOC should have foreseen Stewart injuring someone such as Paula Joyce, the question properly went to the jury. Bell, 147 Wn.2d at 179 (foreseeability of harm from inadequate supervision is fact question for jury).


[100] Proximate Cause


[101] DOC further argues that the Joyce family did not present evidence proving that DOC's failure to supervise Stewart was the proximate cause of the accident that killed Paula Joyce. Proximate cause has two requirements: cause in fact and legal causation. Taggart, 118 Wn.2d at 225-26 (citing Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)).


[102] Legal Causation


[103] DOC argues that the connection between Stewart's violations of his supervision and the accident that killed Paula Joyce is too attenuated to support legal causation. Legal causation 'rests on considerations of policy and common sense as to how far the defendant's responsibility for the consequences of its action should extend.' Taggart, 118 Wn.2d at 226 (citing Hartley, 103 Wn.2d at 779). Sometimes legal causation is so intertwined with duty that the former can be answered by deciding the latter. Taggart, 118 Wn.2d at 226.


[104] Finding a duty does not automatically satisfy the legal causation requirement. Hertog, 138 Wn.2d at 284. But '{w}here a special relation exists based upon taking charge of the third party, the ability and duty to control the third party indicate that defendant's actions in failing to meet that duty are not too remote to impose liability.' Hertog, 138 Wn.2d at 284. Such is the case here.


[105] Furthermore, our Supreme Court found a clear public policy for imposing liability on DOC for lax supervision of offenders. Taggart, 118 Wn.2d at 224 (protecting others from reasonably foreseeable dangers is a policy behind supervision of offenders). Thus, we need go no further to determine that legal causation exists here.


[106] Cause in fact


[107] Cause in fact is met when the harm suffered would not have occurred but for an act or omission of the defendant. There must be a direct, unbroken sequence of events that link the actions of the defendant and the injury to the plaintiff. Taggart, 118 Wn.2d at 226. Cause in fact is usually a question for the jury, but, if the causal connection is so speculative and indirect that reasonable minds could not differ, it may be determined as a matter of law. See Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985); Whitchurch v. McBride, 63 Wn. App. 272, 277, 818 P.2d 622 (1991), review denied, 118 Wn.2d 1029 (1992).


[108] DOC asserts that, as a matter of law, the jury could not find cause in fact because to do so requires speculation about whether Stewart would have been incarcerated on the date of the accident. DOC cites Petersen, 100 Wn.2d at 442, and argues that it requires the testimony of the sentencing judge on what he or she would have sentenced the absconder. Because the Joyce family did not produce testimony of Stewart's sentencing judge, DOC argues that the evidence is insufficient to support a finding of cause in fact under Petersen, 100 Wn.2d 421. We disagree.


[109] DOC construes Petersen too narrowly. Rather than requiring testimony of the sentencing judge as to whether he or she would have sentenced the absconder, the Petersen court held that '{a} trial court does not abuse its discretion by allowing a party to propose a hypothetical question based solely on that party's theory of the case or to include disputed facts.' Petersen, 100 Wn.2d at 442. In Petersen, the court held that the trial court did not abuse its discretion in allowing expert testimony, rather than testimony of the trial judge. Thus, Petersen does not require testimony from a trial judge. Therefore, Petersen does not support DOC's argument.


[110] Also, we note that William Stough, the Joyce family's expert and a former CCO, did not speculate as to what a trial court would have done. Rather, he testified as to what a reasonable CCO would have done 'based on material facts established by the record.' Petersen, 110 Wn.2d at 442. He testified that, on a more probable than not basis, a reasonable CCO would have noted Stewart's violations before the accident that killed Paula Joyce. He testified only as to 'what would have occurred had the CCOs properly done their jobs.' VIII CP at 1340.


[111] Finally, Our Supreme Court upheld cause in fact in Taggart on a fact pattern similar to the present case. Taggart, 118 Wn.2d at 227. The court held that a reasonable jury might conclude that if the Washington officials had issued the parole warrant the day they received the teletype from the Montana authorities informing them that Montana police were standing by to arrest {the offender}, {the victim} never would have been raped.


[112] Similarly, the jury might conclude that if the Washington officials had responded to that teletype by telling the Montana police that no parole warrant would be issued, then the Montana police would have arrested {the offender} immediately on the outstanding {Montana} misdemeanor violation, in which case, again, {the victim's} injury would have been avoided. Taggart, 118 Wn.2d at 227.


[113] Although cause in fact requires a direct, unbroken sequence of events to link the acts or omission of DOC to Paula Joyce's death, the standard of review requires us only to ascertain evidence that would allow a jury to make that finding. Daugert, 104 Wn.2d at 257. Here, there was sufficient evidence at trial for a jury to find cause in fact. It is undisputed that Stewart committed numerous violations of his supervision that were not reported. And a court had previously sentenced Stewart to 39 days of jail time for violations. Stough testified that if DOC had obtained a bench warrant for Stewart prior to the accident, he 'would have been in jail, either awaiting a hearing or doing time on the violations' without bail on August 8, 1997. V Report of Proceedings (RP) at 792. This testimony was based on facts established in the record. Therefore, the trial court did not err in denying DOC's motion to dismiss as a matter of law.


[114] Allocation of Fault


[115] DOC argues that it should have been allowed to attribute fault for Paula Joyce's death to Stewart's mental health providers based on the 1986 Tort Reform Act.*fn10 It maintains that the trial court erred when it granted the Joyce family's pretrial motion to exclude this argument.


[116] The trial court properly dismissed DOC's claim of allocation to Stewart's mental healthcare providers. A party fails to claim its right to allocate fault by not producing evidence of fault of the other party. Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 25, 864 P.2d 921 (1993). And a judge cannot submit the issue of allocation to a jury without evidence of another party's fault. Adcox, 123 Wn.2d at 25.


[117] In a medical negligence action, expert testimony is required to establish the standard of care and most aspects of causation. Seybold v. Neu, 105 Wn. App. 666, 676-77, 19 P.3d 1068 (2001). To prevail on summary judgment, DOC would have had to 'produce competent medical expert testimony establishing that the injury was proximately caused by a failure to comply with the applicable standard of care.' Seybold, 105 Wn. App. at 676 (citing RCW 7.70.040 and McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706-07, 782 P.2d 1045 (1989)).


[118] Here, DOC did not submit any such evidence. The trial court properly granted the Joyce family's motion on this matter.*fn11


[119] Jury Instructions


[120] DOC contends that the trial court erred in instructing the jury. It assigns error to five instructions.


[121] Jury instructions are sufficient if they (1) permit the party to argue his or her theory of the case; (2) are not misleading; and (3) when read as a whole, correctly inform the jury of the applicable law. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). The trial court has considerable discretion regarding the wording of instructions and how many instructions are necessary to present each litigant's theories fairly, and we review these matters for an abuse of discretion. State v. Reay, 61 Wn. App. 141, 146-47, 810 P.2d 512, review denied, 117 Wn.2d 1012 (1991). But we review claimed errors of law in jury instructions de novo. Hue, 127 Wn.2d at 92.


[122] Instruction 16


[123] DOC asserts that instruction 16 did not correctly set forth the duty that CCOs owe to report violations and that it was an improper comment on the evidence.


[124] Instruction 16 reads: 'The Department of Corrections, through its community corrections officers, is legally responsible for reporting violations of any conditions of community supervision to the Superior Court which sentenced the felon and must take action within 30 days of learning of a violation.' XI CP at 2044.


[125] This instruction was based on a DOC directive, which reads, in relevant part, CCOs are legally responsible for reporting violations to the court. CCOs are to take action when they learn an offender{} has violated conditions of supervision.


[126] . . . Action must be taken within the following time frames, which begin when the violation becomes known to the officer: . . . within thirty (30) calendar days for non CI cases. DOC Division of Community Corrections Division Directive (DCC) 200.700 (February 28, 1995).


[127] Although our legislature abrogated negligence per se under the Tort Reform Act of 1986, disregard of an administrative rule may be considered by a jury as evidence of negligence. Laws of 1986, ch. 305, sec.sec. 100- 912. See RCW 5.40.050 ('A breach of a duty imposed by statute, ordinance, or administrative rule . . . may be considered by the trier of fact as evidence of negligence.'); Melville v. State, 115 Wn.2d 34, 39, 793 P.2d 952 (1990); see also, e.g., Nat'l Union Ins. Co. v. Puget Sound Power & Light, 94 Wn. App. 163, 179, 972 P.2d 481, review denied, 138 Wn.2d 1010 (1999). The question here is whether a directive functions as the equivalent of an administrative rule.


[128] In Kelley, we discussed the scope and purpose of DOC directives. Kelley v. State, 104 Wn. App. 328, 334-35, 17 P.3d 1189 (2000), review granted and later dismissed, 144 Wn.2d 1021 (2001). DOC's written directives set procedures and requirements to be followed by CCOs in supervising offenders. These directives require CCOs to 'enforce all conditions and requirements imposed by the court . . . or Department of Corrections,' and to report an offender to the court if he or she fails to comply with any conditions or requirements of supervision. Kelley, 104 Wn. App. at 334. CCOs are to investigate and report whenever an offender fails to keep a scheduled appointment or is determined to be absent from an approved location. Thus, breach of a directive may be considered as evidence of negligence and instruction 16 accurately states the law.


[129] DOC also asserts that instruction 16 implies that DOC has no discretion to determine whether to arrest an offender, which misstates the law. We disagree. As held in Bishop, 137 Wn.2d at 526, probation officers have a legal obligation to report violations.*fn12 Therefore, DOC's arguments as to instruction 16 fail.


[130] Instruction 20


[131] DOC next argues that instruction 20 is an incorrect statement of the law. DOC further asserts that including the phrase 'presenting a danger to the community' creates an arbitrary standard and violates Stewart's constitutional rights under Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).*fn13


[132] In excepting to instruction 20, DOC argued '{instruction 20} fails to take into consideration other factors, such as the authority to {sic}*fn14 statutory and constitutional protections, as well as, once again, focusing on the -- making a comment on the evidence that's already in place.' X RP at 1493.


[133] We assume DOC was referring to its earlier exception to instruction 18, where it argued, '{I}t's similar to 16, 19, 20. It's the same thing that . . . I believe it ends up being a comment on the evidence. It improperly focuses on specific issues. Even if it is a correct statement of the law, that doesn't mean that it should be given. We have, the evidence is in as to these items, and I believe it would be misleading.' X RP at 1491. DOC's argument that these instructions are incorrect comments on the evidence appears to be based on its assertion that DOC directives are not 'law' and therefore cannot be the basis for a jury instruction. See, e.g., X RP at 1490, 1491. As previously discussed, we disagree. See majority, at 25.


[134] The relevant part of instruction 20 states: 'A community corrections officer may arrest or cause the arrest of an offender, without a warrant, when an offender violates any condition or requirement of a sentence or when the offender presents a danger to the community.' CP at 2048. A review of the record discloses that DOC was not specific when taking exception to instruction 20. Under CR 51(f), '{t}he objector shall state distinctly the matter to which he objects, and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection was made.' See also Trueaux v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 878 P.2d 1208 (1994) (an objection to jury instructions must reasonably identify the statute or the constitutional provision that underlies the basis for the challenge).


[135] DOC noted that it was objecting to instruction 20 and referred to the fact that the instruction failed to take into consideration other factors such as the 'statutory and constitutional protections.' X RP at 1493. But this statement did not reference the specific part of the instruction it objected to and did not identify the precise constitutional or statutory protections that would invalidate the instruction. Because this objection was not properly raised below, we do not address it here. Instructions 5 and 13


[136] DOC next argues that instructions 5 and 13 erroneously instructed the jury on negligent training, supervision, and hiring of an employee. DOC asserts that this is reversible error because the jury was already instructed that DOC was responsible for the acts and omission of its employees in instruction 14. We disagree. At the most, asserting claims of both vicarious liability and negligent supervision is redundant.*fn15 Gilliam v. Dep't of Soc. & Health Servs., 89 Wn. App. 569, 585, 950 P.2d 20, review denied, 135 Wn.2d 1015 (1998). Therefore, any error in giving these instructions is harmless.


[137] Instruction 7


[138] DOC finally argues that instruction 7 was given in error because it misstated the law. That instruction tells the jury:


[139] The plaintiffs, the Joyce family, have the burden of proving each of the following propositions:


[140] First, that the defendant acted, or failed to act, in one of the ways claimed by the plaintiffs and that in so acting, or failing to act, the defendant was negligent;


[141] Second, that the plaintiffs were injured;


[142] Third, that the negligence of the defendant was the proximate cause of the injury to the Plaintiffs.


[143] If you find from your consideration of all the evidence one or more of these propositions has been proved against the defendant, your verdict should be for the plaintiffs and against that defendant. On the other hand, if any of these propositions has not been proven against the defendant, your verdict should be for the defendant. XI CP at 2035 (emphasis added).


[144] DOC asserts that, because this instruction allows the jury to find for the plaintiff if one or more propositions instead of each proposition have been proved, this is reversible error. For support, DOC cites Donner v. Donner, 46 Wn.2d 130, 278 P.2d 780 (1955). That case holds that it is reversible error 'to give an instruction which purports to contain all of the elements necessary for a verdict for either party,' but is contradictory. Donner, 46 Wn.2d at 134.


[145] The Joyce family acknowledges the 'one or more' language as a clerical error.*fn16 Nevertheless, DOC did not object to this instruction.


[146] A party waives objections to errors in a jury instruction if he or she fails to voice such objections to the trial court. Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 96, 549 P.2d 483 (1976). The failure to object, before the jury is instructed in order to enable the trial court to avoid error, violates CR 51(f). Peterson v. Littlejohn, 56 Wn. App. 1, 11, 781 P.2d 1329 (1989). Therefore, we do not address this issue here. See Ryder v. Kelly-Springfield Tire Co., 91 Wn.2d 111, 114, 587 P.2d 160 (1978) (where exception is not taken, the alleged error will not be considered on appeal); see also Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 244- 45, 728 P.2d 585 (1986).


[147] Evidentiary Rulings


[148] DOC also assigns error to the trial court's evidentiary rulings. A trial court has broad discretion in admitting evidence. State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990). We will not overturn that decision absent an abuse of discretion. A court abuses its discretion if a decision is manifestly unreasonable or is based on untenable grounds. Havens v. C&D;Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).


[149] Admitting Evidence of Stewart's 1993 Accident


[150] DOC argues that the trial court erred in admitting the police report of a 1993 accident in which Stewart was involved. DOC asserts that this was irrelevant to the present case because it did not result in a conviction and the duty in Taggart does not extend to controlling conduct for which the offender is not specifically under community supervision. This is merely a reiteration of DOC's argument above, that a close factual nexus is required. We previously addressed this argument. See section Scope of Duty, page 14. Not Admitting Evidence on Reasonable Departure from Departmental Directives


[151] DOC argues that the trial court erred when it precluded DOC from raising the issue of reasonable departures from departmental directives. But DOC mischaracterizes the trial court's ruling. The trial court did not bar DOC from explaining why departure from departmental directives is sometimes reasonable; it merely required DOC to request permission to do so. This argument fails.


[152] Admitting Testimony on CCO's Knowledge of Stewart's Mental Health Condition


[153] DOC contends that the trial court erred in allowing Stough, a former corrections officer, to testify regarding Stewart's mental health records because Stough was not a mental health professional. Our review of the record discloses that Stough only testified within the area of his expertise: the duties and performance of corrections officers. He testified that he had had some training as a CCO in mental health issues and that knowledge of Stewart's mental problems would be important for a CCO to have.*fn17 He also testified as to how a CCO should interpret Stewart's mental health records. The trial court did not abuse its broad discretion in allowing the testimony.


[154] Admitting Testimony on Violation Reports


[155] DOC contends that Stough was not qualified to testify about how courts treat violation reports. In so arguing, DOC misconstrues Stough's opinion. Here, the trial court limited Stough's testimony to 'what would have occurred had the CCOs properly done their jobs' rather than how a court would treat Stewart's violations. VIII CP at 1340. The trial court was satisfied that Stough's experience as a DOC correctional officer and supervisor qualified him to so testify. The trial court did not abuse its discretion in allowing this limited testimony.


[156] Improper Argument and Verdict Amount


[157] DOC further contends that statements made by counsel for the Joyce family during closing argument were improper. But DOC made no objections during the family's closing argument. Therefore, any error was not preserved for appeal. See Kain v. Logan, 79 Wn.2d 524, 528, 487 P.2d 1292 (1971) (remarks during closing arguments believed to be prejudicial must be brought to the trial court's attention).


[158] DOC finally argues that the amount of the verdict was excessive. A verdict will be overturned only if it is 'flagrantly outrageous and extravagant' and 'shocks the conscience of the court.' Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 268-69, 840 P.2d 860 (1992) (citing Bingaman v. Grays Harbor Community Hosp., 103 Wn.2d 831, 699 P.2d 1230 (1985)).


[159] DOC makes comparisons with other jury verdicts. It is well settled that it is inappropriate to compare verdicts. Adcox, 123 Wn.2d at 33 (citing Washburn, 120 Wn.2d at 268 (improper to assess the amount of a verdict based upon comparisons with other verdicts)). This argument fails.


[160] Finally, DOC does not raise any credible argument that the jury's award requires us to use this rarely exercised power to overturn a jury's determination of non-economic damages.


[161] Affirmed.


[162] Houghton, J.


[163] I concur:


[164] Armstrong, J.


[165] QUINN-BRINTNALL, A.C.J. (dissenting)


[166] In this case a jury was asked to assign responsibility for the tragic death of Paula Joyce, a much beloved wife and mother, who was killed when Vernon Valdez Stewart, an offender on community supervision, drove a stolen car through a stop light and collided with Joyce's car. The jury found the Department of Corrections (DOC) responsible for failing to adequately supervise Stewart and awarded Joyce's family $22,453,645 for their terrible loss. The majority would affirm the verdict and the damage award. Because the court improperly instructed the jury that DOC had a duty to insure that Stewart maintained law-abiding behavior, because the only evidence that DOC's supervision caused Joyce's death came from inadmissible speculative testimony, and because the trial judge misinstructed the jury on the law concerning DOC's authority to control Stewart, I must respectfully dissent.


[167] The law has not established a cause of action for negligent supervision of persons on community supervision under the Sentencing Reform Act (SRA). Compare Bell v. State, 147 Wn.2d 166, 52 P.3d 503 (2002); Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992); and Couch v. Dep't of Corrections, 113 Wn. App. 556, 571, 54 P.3d 197 (2002). Additionally, unless the sentencing court utilizes the 'first-time offender' waiver provisions of the SRA, an offender cannot be required to maintain law-abiding behavior as a condition of community supervision.*fn18 See State v. Barclay, 51 Wn. App. 404, 753 P.2d 1015, review denied, 111 Wn.2d 1010 (1988).


[168] Therefore, DOC lacks authority to monitor or enforce a 'maintain law abiding behavior' condition in the absence of a first-time offender waiver. Couch, 113 Wn. App. at 565 (explaining that a Community Corrections Officer (CCO) must have a court order before he or she can 'take charge' of an offender, 'and even when he or she has such an order, he or she can only enforce it according to its terms and applicable statutes') (emphasis added).


[169] Even if a negligent supervision claim exists in the first-time offender/community supervision context, no instruction informed the jury in this case of the appropriate legal cause standard clarified in Bell: '{a} plaintiff in a negligent parole supervision action must show not only inadequate supervision, but must also carry the burden to demonstrate the damage sustained by the plaintiff would have been avoided but for the inadequate supervision.' 147 Wn.2d at 179 (emphasis added). Taggart, 118 Wn.2d at 227 (explaining that when the connection between a defendant's conduct and the plaintiff's injury is too speculative and indirect, the cause in fact requirement is not met); see also Petersen v. State, 100 Wn.2d 421, 435, 671 P.2d 230 (1983) (negligent supervision of a patient in a state hospital case, explaining that the claim of breach of duty must be a proximate cause of the resulting injury). Here, the plaintiff's causation evidence, if admissible, was insufficient to prove that the collision would have been avoided but for the inadequate supervision.


[170] The trial court also misinstructed the jury on a CCO's authority when supervising an offender on community supervision. Specifically, Instruction No. 16 improperly informed the jury that a CCO must take action within 30 days of learning of an intentional violation, implying that failure to do so is a violation of the law rather than of a department directive. See Melville v. State, 115 Wn.2d 34, 38, 793 P.2d 952 (1990). See also former RCW 5.40.050 (1986).*fn19 And Instruction No. 20 improperly informed the jury that '{a} community corrections officer may arrest or cause the arrest of an offender, without a warrant . . . when the offender presents a danger to the community' because a CCO has no such arrest power. XI Clerk's Papers (CP) at 2048. See Couch, 113 Wn. App. at 565 (explaining that a CCO must have a court order before he or she can 'take charge' of an offender).


[171] The bases for my conclusions are set forth more fully below. DOC's Duty To Supervise An Offender On Community Supervision


[172] The majority holds that the existence of a duty is not at issue. Our Supreme Court has held that '{DOC} has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees, and that if injury to {the plaintiff} was a reasonably foreseeable consequence of paroling {the offender}, then this duty extend{s} to {the plaintiffs}.' Taggart v. State, 118 Wn.2d 195, 217, 822 P.2d 243 (1992); see also Bell v. State, 147 Wn.2d 166, 52 P.3d 503 (2002). Majority at 15 (footnotes omitted).


[173] I respectfully disagree with the majority's reliance on Taggart and Bell. In those cases, each offender had a documented history of dangerous predatory sexual behavior. Neither offender was a first-time offender or on community supervision under the SRA. More importantly, both Taggart and Bell addressed the monitoring of sexual predators on parole who sexually assaulted Taggart and Bell. A convicted offender paroled by the parole board or indeterminate sentencing review board is granted the privilege of (1) suspension of a portion of the previously imposed term of confinement and (2) release on conditions. If a parolee's parole is revoked by the indeterminate sentencing review board (formerly the parole board), he is returned to prison to serve the remaining balance of his term of confinement.*fn20 In contrast, the term of confinement of an individual on community supervision under the SRA has already been served. In Bishop v. Miche, 137 Wn.2d 518, 973 P.2d 465 (1999), our Supreme Court equated parole and district court probation:


[174] The Court of Appeals reasoned that probation officers exert control over probationers similar to that exercised by parole officers over parolees, and accordingly the duty identified in Taggart also applies to county probation officers. We agree. The duty identified in Taggart may be found where a probation officer must monitor probationers for compliance with conditions of parole. Bishop, 137 Wn.2d at 525 (emphasis added).


[175] Bishop explained that a parole officer must exercise reasonable care in supervising a parolee due to the special relationship between a parole officer and a parolee:


[176] in Taggart . . . we held that the state may be liable for the negligence of a parole officer who fails to use reasonable care in supervising a parolee whose dangerous propensities pose a reasonably foreseeable danger to others. In Taggart, we acknowledged the rule that generally one has no duty to prevent a third party from causing harm to another. We also recognized, however, the exception stated in Restatement (Second) of Torts sec. 315 (1965) which provides that there may be such a duty where there is a special relation between the actor and the third person. Such a special relation exists when one takes charge of a third person whom he or she knows or should know is likely to cause bodily harm to another if not controlled, and the actor has a duty to control the third party to prevent him or her from doing such harm. Bishop, 137 Wn.2d at 524.


[177] A special 'take charge' relationship of the sort that gives rise to the duty to supervise and control future criminal conduct may well exist in a parole (Taggart) or suspended sentence probation (Bishop) situation where, but for the offender's release, the convicted person would be incarcerated, serving the remainder of his sentence. But, as a general rule, a person sentenced under the SRA to community supervision has served his term and is entitled to be free from incarceration pending a judicial officer's finding of a violation and entry of a separate order of confinement made following an adversarial hearing.*fn21 Moreover, even with a violation finding, incarceration is not the only available penalty.*fn22


[178] Here, the majority holds that the plaintiffs proved that 'Stewart would continue to exercise poor or no judgment, continue to break the law, drive without a valid license, and potentially endanger the lives of others.' Majority at 16. While I agree that Stewart's abysmal compliance with the terms of his community supervision supports such a statement, the SRA and its underlying policy do not give DOC 'take charge' authority over Stewart.*fn23


[179] A CCO may effect or cause the arrest of an offender without a warrant when an offender violates any condition or requirement of a sentence pending a determination by the court. See RCW 9.94A.631.*fn24 This authority alone, however, does not create a duty to control all behavior of the person so supervised. See, e.g., Couch v. Dep't of Corrections, 113 Wn. App. 556, 565, 54 P.3d 197 (2002) (holding that a CCO must have a court order before he or she can 'take charge' of an offender; and even when he or she has such an order, he or she can only enforce it according to its terms and applicable statutes (emphasis added)). Couch held that an obligation to monitor for legal financial obligations only does not create a duty to monitor for all purposes:


[180] One effect of {the modification of Davis' misdemeanor sentence} was to restrict DOC's authority over Davis. Whereas DOC previously had authority to supervise him for all purposes, including the prevention of crime, it would henceforth have authority to monitor legal financial obligations only. Couch, 113 Wn. App. at 571.


[181] In contrast to the former parole and probation statutes, one of the express purposes of the SRA was to hold offenders accountable for their criminal acts by fully prosecuting criminal conduct, rather than addressing subsequent crimes as violations of probationary supervision:


[182] Judges, in granting probation, have traditionally been free to impose any conditions that bear a reasonable relation to the purposes of sentencing. This power has been exercised expansively and a wide variety of affirmative conditions have commonly been required as a condition of probation by sentencing judges. With the exception of 'first-time offenders' and 'sex offenders,' no comparable power exists under the Sentencing Reform Act. The only conditions of 'community supervision' authorized are 'crime- related prohibitions' and 'other sentence conditions' imposed pursuant to the Act.


[183] The most significant aspect of this limiting definition is the absence of any requirement of obeying the law as a condition of community supervision. Under the former system this requirement was a near-universal condition of probation and parole. Its rejection was intentional.


[184] David Boerner, Sentencing in Washington sec. 4.4 (1985) (footnotes omitted).


[185] If an offender violates the conditions of community supervision set forth in the judgment and sentence, he may, but need not, be arrested, and his CCO must file a violation report. See RCW 9.94A.631;*fn25 DOC Division of Community Corrections Division Directive (DCC) 200.700 (February 28, 1995). But only a court has the authority to impose additional terms of confinement on an offender for violating conditions of his community supervision. See RCW 9.94A.634(1)*fn26 (providing that when an offender violates any condition or requirement of his sentence, the court may modify the judgment and sentence and impose further punishment for the violation). And a court may only do so after conducting an adversarial hearing and finding by a preponderance of the evidence that the offender willfully violated the conditions of community supervision. See, e.g., State v. Gropper, 76 Wn. App. 882, 885-86, 888 P.2d 1211 (1995). DOC lacked the lawful authority to require Stewart to obey all laws. Thus, DOC did not have the duty to assure that Stewart obeyed all laws.


[186] DOC's Supervision as a Cause in Fact


[187] To sustain their claim for negligent supervision, the plaintiffs must demonstrate not only that the CCOs had a duty and authority to reasonably monitor, investigate, and report Stewart's alleged violations to the King and Kittitas County courts and that they were negligent in performing that duty, but also that had DOC properly monitored, investigated, and reported his violations, Stewart would have been controlled and incarcerated on August 8, 1997. Put differently, plaintiffs had the burden to prove that DOC's failure to monitor and report Stewart's conduct was the cause in fact of Joyce's death. Taggart v. State, 118 Wn.2d 195, 227, 822 P.2d 243 (1992) (explaining that when the connection between a defendant's conduct and the plaintiff's injury is too speculative and indirect, the cause in fact requirement is not met).


[188] The majority contends that the plaintiff's expert, William Stough, satisfied this burden when he testified that, had Stewart's CCO timely obtained a warrant and arrested Stewart, he would have been in jail on August 8, 1997.


[189] But Stough's testimony was inadmissible. To be admissible Stough had to have either personal knowledge or expert knowledge about what would have happened if DOC had filed a violation report sooner. State v. Kunze, 97 Wn. App. 832, 988 P.2d 977 (1999). A person can never have personal knowledge of the outcome of a matter occurring in the future. Neither Stough nor anyone else could have had personal knowledge of the outcome of a future hearing. And there is no recognized field of experts qualified to give an opinion predicting what a judge will do at the end of a particular adversarial hearing.


[190] Thus, Stough's testimony was purely speculative. It is just as likely that, had the CCO reported Stewart's February 26 driving violation within 30 days of its occurrence and had the trial court imposed the maximum 60- day penalty for the violation, Stewart would have been released prior to August 8, 1997. Such testimony was purely speculative and inadmissible. Thus, it was insufficient to prove that DOC's conduct was a cause in fact of Joyce's death. See State v. Warness, 77 Wn. App. 636, 643, 893 P.2d 665 (1995) (explaining that expert testimony that is merely speculative is not admissible); see also Bell v. State, 147 Wn.2d 166, 179-80, 52 P.3d 503 (2002) (expert testimony on legal burden of proof inadmissible).


[191] Unlike a specific term of confinement that is suspended in a misdemeanor or pre-SRA probationary sentence or remaining in the case of parole, the penalty for a violation of community supervision is unknown. The judge in the King County domestic violence case would not necessarily have incarcerated Stewart had his CCO filed a violation for driving with a suspended license. Unlike a pre-SRA probationer, a person on community supervision has been finally sentenced for his original crime. No additional penalties may be imposed for the original crime charged. See David Boerner, Sentencing in Washington sec. 4.4 (1985).


[192] Moreover, the court that sentences an offender to community supervision under the first-time offender provision of the SRA has presumptively determined that the offender has not demonstrated a dangerous propensity that poses a reasonably foreseeable danger to others. See RCW 9.94A.650*fn27(1).*fn28 Assuming that Stewart was sentenced under the 'first-time off ender' waiver,*fn29 the King County sentencing court had the authority to require Stewart to maintain law-abiding behavior and to require DOC to monitor him for compliance with that condition.*fn30 But that court also necessarily found that Stewart had not demonstrated a dangerous propensity that posed a reasonably foreseeable danger to others.*fn31


[193] Ten days before the collision that took Joyce's life, Stewart's CCO filed two violation notices requesting that the King and Kittitas trial courts set hearings to review Stewart's alleged violations. In Kittitas County (possessing stolen property), the CCO alleged that Stewart had failed to report since May 2, failed to notify him before changing his address,*fn32 and failed to pay his legal financial obligations. In King County (domestic violence assault), the CCO alleged the same violations, as well as the further violation that Stewart was driving with a suspended driver's license on or about February 26th.*fn33 In my view, even if the jury had been properly instructed on the plaintiff's burden, the record contains no evidence, just speculation, and is insufficient as a matter of law to satisfy the plaintiff's burden of proving that, but for the CCO's decision to request a hearing rather than a warrant for Stewart's arrest, Joyce would not have died. See Bell, 147 Wn.2d at 179.


[194] Instruction No. 16


[195] In addition, the trial court misinstructed the jury that a CCO was required to report all violations of community supervision within 30 days of learning of them:


[196] The Department of Corrections, through its community corrections officers, is legally responsible for reporting violations of any conditions of community supervision to the Superior Court which sentenced the felon and must take action within 30 days of learning of a violation. XI CP at 2044.


[197] The instruction is based upon DOC DCC 200.700. But operational policies, directives, and procedures are internal processes, which can be used as management tools, but they are not law. Melville v. State, 115 Wn.2d 34, 38, 793 P.2d 952 (1990) (holding that statutory policy statements as a general rule do not give rise to enforceable rights and duties); Fischer-McReynolds v. Quasim, 101 Wn. App. 801, 812, 6 P.3d 30 (2000) (holding that the governor cannot create obligations, responsibilities, conditions, or processes having the force and effect of law merely by issuing an executive order). The policy was admissible as evidence on the issue of the CCO's knowledge and negligent conduct only. Former RCW 5.40.050. But because a policy does not have the force of law, it was error for the trial court to instruct the jury that, in effect, a CCO who did not report a violation of any condition of community supervision to the court within 30 days of learning of the violation had violated the law and was, therefore, negligent. Former RCW 5.40.050.


[198] Instruction No. 20


[199] Instruction No. 20, likewise, misinformed the jury on the extent of the CCO's authority to control Stewart. It stated in relevant part that a CCO has the authority to arrest an offender when 'the offender presents a danger to the community.' XI CP at 2048. A CCO may arrest or cause the arrest of an offender only when the offender violates 'any of the requirements or conditions of a sentence' or commits a crime in the CCO's presence. The trial court's Instruction No. 20 misstated the law to the jury by stating that the CCO had the authority to arrest Stewart if he believed Stewart presented a danger to the community. This is not an accurate statement of the statute. See RCW 9.94A.634(3) (formerly RCW 9.94A.200). Moreover, it violates Washington's State constitution. Wash. Const. art. 1, sec. 7.


[200] The State objected to the giving of Instruction No. 20.*fn34 The instruction clearly misinformed the jury regarding the CCO's authority to arrest Stewart on the CCO's mere belief that Stewart appeared to present a danger to the community.*fn35 Thus, the court's Instruction No. 20 misinformed the jury about the law and deprived the State and its taxpayers of a fair trial.


[201] The trial court erroneously instructed the jury regarding the duties and authority of a CCO monitoring an offender on community supervision and allowed inadmissible testimonial evidence to be presented to the jury.


[202] Thus the jury reached its verdict guided by an improper statement of the law, without notice of the controlling 'but for' causation standard it was required to apply, and asked to base its decision on speculative and inadmissible testimony.*fn36 Therefore, I would reverse and remand for a new trial before a jury that is properly instructed on the law and its application to competent evidence.


[203] QUINN-BRINTNALL, A.C.J.



--------------------------------------------------------------------------------

Opinion Footnotes

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[204] *fn1 Under former RCW 9A.36.031 and .041 (1995), Stewart was initially charged with second degree assault and fourth degree assault.


[205] *fn2 The conditions of Stewart's community supervision required him to: maintain law abiding behavior; not associate with other offenders; not move without first obtaining permission from his CCO; maintain full time employment or actively seek full time employment.


[206] *fn3 The jury awarded economic damages of $793,390 as the present value of Paula Joyce's lifetime earnings; $437,500 as the present value of loss of her family services; and $222,755 as the present value of Stephen Joyce's income lost in caring for his minor children. The jury further awarded non-economic damages of $3,000,000 to Stephen Joyce and $18,000,000 to the four Joyce children.


[207] *fn4 Bishop v. Miche, 137 Wn.2d 518, 525, 973 P.2d 465 (1999) (control exerted by county probation officer over offender under community supervision similar to control parole officer exerts over probationer); State v. Parramore, 53 Wn. App. 527, 529, 768 P.2d 530 (1989) ('community supervision is the functional equivalent of probation'). See also footnote 12.


[208] *fn5 In Bell, our Supreme Court held: 'A plaintiff in a negligent supervision action must show not only inadequate supervision, but must also carry the burden to demonstrate the damage sustained by the plaintiff would have been avoided but for the inadequate supervision. This is a fact question properly presented to the jury.' Bell, 147 Wn.2d at 179.


[209] *fn6 In Taggart, our Supreme Court defined its intended class of plaintiffs for claims of negligent supervision of offenders by the broad criterion of what a jury determines is foreseeable. Taggart, 118 Wn.2d at 224. This differs from the traditional negligence analysis. See, e.g., Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 195, 15 P.3d 1283 (2001) ('The existence of duty is a question of law.'); Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 475 n.3, 951 P.2d 749 (1998) ('Only after the court defines the protected class will the jury then determine whether the injury to the plaintiff was foreseeable.').


[210] *fn7 Couch is distinguished from this case. In Couch, the defendant, Davis, murdered Couch while under community supervision for payment of a legal financial obligation, imposed for a prior criminal conviction. There, the dispositive issue was whether, under those conditions of community supervision, DOC owed Couch a duty of care to monitor Davis's criminal behavior. We reversed because RCW 9.94A760 (formerly RCW 9.94A.145, recodified by Laws of 2001, ch. 10. sec. 6) expressly narrows DOC's scope of community supervision to monitoring Couch's compliance with the legal financial obligation and nothing more. Couch, 113 Wn. App. 556.


[211] *fn8 The Taggart court held that parole officers 'take charge' of a parolee because they regulate a parolee's movements within the state, require the parolee to report to a parole officer, impose special conditions such as refraining from using alcohol or undergoing drug rehabilitation or psychiatric treatment, and order the parolee not to possess firearms. The parole officer is the person through whom {DOC} ensures that the parolee obeys the terms of his or her parole. Additionally, parole officers are, or should be, aware of their parolees' criminal histories, and monitor, or should monitor, their parolees' progress during parole. Taggart, 118 Wn.2d at 220.


[212] *fn9 Moreover, Johnson is a Division One case. Thus, it is merely persuasive authority and not binding on us.


[213] *fn10 RCW 4.22.070.


[214] *fn11 DOC cites Petersen to support its argument. But Petersen precedes Adcox, which held that allocation of fault requires that either the plaintiff or the defendant present evidence of another entity's fault to invoke allocation. Adcox, 123 Wn.2d at 25. 'Without a claim that more than one party is at fault, and sufficient evidence to support that claim, the trial judge cannot submit the issue of allocation to the jury.' Adcox, 123 Wn.2d at 25.


[215] *fn12 The dissent asserts that an offender on community supervision is not comparable to a pre-Sentencing Reform Act probationer, implying that Taggart and Bell do not apply here. We disagree. It is proper to compare a probation officer with a community corrections officer. RCW 9.92.060(1) ('the superior court may . . . {order} that the sentenced person be placed under the charge of a community corrections officer employed by the department of corrections, or if the county elects to assume responsibility for the supervision of all superior court misdemeanant probationers a probation officer employed or contracted for by the county, upon such terms as the superior court may determine'). See also footnote 4.


[216] *fn13 The dissent also asserts that this instruction violates Washington's constitution, Article I, Section 7. We disagree. Contrary to DOC's argument, the protections under Morrisey are present in former RCW 9.94A.207. Under Morrissey, the court held that an informal hearing, held after arrest, to confirm the propriety of arrest of a parolee does not violate constitutional protections, and the dissent cites no authority for the proposition that Article I, Section 7 of the Washington Constitution provides greater protection than the United States Constitution in this context.


[217] *fn14 We quote the transcript as written, but there appears to be a word or two missing.


[218] *fn15 Our use of the term 'redundant' is comparable to its use in Gilliam, where the court held that claims of negligent investigation and negligent supervision were redundant because the State conceded that the defendant was acting within the scope of her employment and that the State would therefore be vicariously liable for her conduct. The court held that 'Under these circumstances a cause of action for negligent supervision is redundant.' Gilliam, 89 Wn. App. at 585.


[219] *fn16 According to the Joyce family, the phrase 'one or more' should have modified 'defendants.' Instead, it was misplaced and modified 'of these propositions.' Respondent's Brief at 46 n.19.


[220] *fn17 Of significance, there were two instances where Stewart's CCO's were notified that they should monitor Stewart's mental health. First, when a mental health officer noted that Stewart needed further evaluation. And second, when a King County judge ordered Stewart to release his mental health records to his CCO.


[221] *fn18 DOC concedes that King County sentenced Stewart as a 'first-time' offender. Stewart was eligible to be sentenced as a first-time offender, but the judgment and sentence does not reflect that the court exercised this waiver.


[222] *fn19 That statute provides: A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se. Former RCW 5.40.050 (Laws of 2001, ch. 194, sec. 5, inserted 'sterilization of needles and instruments used in tattooing or electrology as required under RCW 70.54.350').


[223] *fn20 See Couch, 113 Wn. App. at 566 n.35, citing RCW 9.95.120, implying that parole may be revoked without hearing if parolee is convicted of committing new offense. In contrast an adversarial hearing must be held before further punishment may be imposed on a person under community supervision.


[224] *fn21 See, e.g., Couch, 113 Wn. App. at 569 (DOC not authorized to intervene in offender's activities not mentioned in sentencing documents); State v. Raines, 83 Wn. App. 312, 316, 922 P.2d 100 (1996) (court exceeded authority by imposing a requirement to obey all laws as a condition of offender's community placement and could not sanction offender for alcohol consumption not prohibited in initial order.)


[225] *fn22 RCW 9.94A.634(3) (formerly 9.94A.200; see Laws of 2001, ch. 10, sec. 6) states: If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply: (a)(i) Following the violation, if the offender and the department make a stipulated agreement, the department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, jail time, or other sanctions available in the community. (c) The state has the burden of showing noncompliance by a preponderance of the evidence. If the court finds that the violation has occurred, it may order the offender to be confined for a period not to exceed sixty days for each violation, and may . . . (iv) order one or more of the penalties authorized in (a)(i) of this subsection.


[226] *fn23 The majority also rejects DOC's argument that Taggart requires a factual nexus between the offender's underlying crime and the new harm that he or she caused the plaintiff. Setting aside the issue of whether Taggart and Bell require such a nexus, the SRA does have such a requirement. Unless the sentencing court invokes the 'first-time offender' waiver, it may only require or prohibit the offender from engaging in activities that are related to the crime of which he has been convicted. See former RCW 9.94A.120(5) (1996) 23(specifically providing that when sentencing a first- time offender the court may waive the standard sentence range and require the offender to refrain from committing new offenses); former RCW 9.94A.030(7) (1996) (reiterating that for first-time offenders, community supervision may include conditions imposed under former RCW 9.94A.120(5)). (The first-time offender waiver was recodified as RCW 9.94A.650 in 2000. See Laws of 2000, ch. 28, sec. 18. The definition of 'community supervision' no longer mentions the conditions imposed under the first-time offender waiver statute. See RCW 9.94A.030(9).) Thus, the nexus requirement inheres in the limitation on lawful conditions the Kittitas County court could impose under the SRA.


[227] *fn24 That statute reads as follows: If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, an offender may be required to submit to a search and seizure of the offender's person, residence, automobile, or other personal property. A community corrections officer may also arrest an offender for any crime committed in his or her presence. The facts and circumstances of the conduct of the offender shall be reported by the community corrections officer, with recommendations, to the court. If a community corrections officer arrests or causes the arrest of an offender under this section, the offender shall be confined and detained in the county jail of the county in which the offender was taken into custody, and the sheriff of that county shall receive and keep in the county jail, where room is available, all prisoners delivered to the jail by the community corrections officer, and such offenders shall not be released from custody on bail or personal recognizance, except upon approval of the court, pursuant to a written order. RCW 9.94A.631 (formerly 9.94A.195; see Laws of 2001, ch. 10, sec. 6).


[228] *fn25 See former RCW 9.94A.195 (1984), recodified as RCW 9.94A.631 in 2001. See Laws of 2001, ch. 10, sec. 6.


[229] *fn26 See former RCW 9.94A.200 (1998), recodified as RCW 9.94A.634 in 2001. See Laws of 2001, ch. 10, sec. 6.


[230] *fn27 That section explains that the first-time offender waiver applies to offenders who have never been previously convicted of a felony in this state, federal court, or another state, and who have never participated in a program of deferred prosecution for a felony, and who are convicted of a felony that is not: (a) Classified as a violent offense or a sex offense under this chapter; (b) Manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or flunitrazepam classified in Schedule IV; (c) Manufacture, delivery, or possession with intent to deliver a methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2); or (d) The selling for profit of any controlled substance or counterfeit substance classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana. RCW 9.94A.650(1).


[231] *fn28 At the time Stewart was sentenced, the first-time offender waiver was codified at former RCW 9.94A.030(23) (1999). It was recodified as RCW 9.94A.650 in 2000. See Laws of 2001, ch. 10, sec. 6.


[232] *fn29 See note 12.


[233] *fn30 Although the Kittitas County judgment and sentence contained the maintain law abiding behavior clause, it was unenforceable. Stewart was not eligible for a first-time offender waiver when he was sentenced in Kittitas County. Thus, that court was precluded from requiring Stewart to maintain law-abiding behavior as a condition of his community supervision, and DOC had no lawful authority to allege that any subsequent violations of the law were also violations of his community supervision in that cause. See State v. Barclay, 51 Wn. App. 404, 405, 753 P.2d 1015, review denied, 111 Wn.2d 1010 (1988).


[234] *fn31 DOC acknowledges that Stewart's supervision might have produced liability for DOC under Taggart if he had assaulted his girlfriend again and the CCO had not reported violations of no contact, no weapons, or counseling conditions, which would have led to re-incarceration.


[235] *fn32 The report reflects that as of March 1997, DOC believed Stewart was homeless, but that because the notice of violation had not been returned when mailed to his father's home, it now believed he was no longer homeless.


[236] *fn33 Presumably the CCO did not report Stewart's driving offense to the Kittitas court because Stewart was not a first-time offender when he was sentenced in Kittitas County, and the condition to maintain law-abiding behavior in that court's sentence was invalid. See, e.g., State v. Shove, 113 Wn.2d 83, 776 P.2d 132 (1989); State v. Raines, 83 Wn. App. 312, 922 P.2d 100 (1996); Barclay, 51 Wn. App. at 407 (only a first-time offender may be ordered to refrain from committing new offenses).


[237] *fn34 The majority asserts that the State's exception to Instruction No. 20 'that it fails to take into consideration other factors, such as the {offender's} statutory and constitutional protections . . . .' (X Report of Proceedings (RP) at 1493) was inadequate to preserve a challenge to Instruction No. 20 for our review. I disagree. The instruction is patently false and obviously violates the right to be free from unconstitutional seizure and arrest. Moreover, plaintiffs miscited the authority supporting the instruction to the court and opposing counsel. The citations to the plaintiff's proposed Instruction No. 18 (which is identical with the court's Instruction No. 20) indicate without qualification that the language used in the proposed instruction has been taken directly from RCW 9.94A.195 and DOC DCC 200.710. The instruction's proposed language the offender presents a danger to the community is not found in the statute. Moreover, the DOC DCC cited addresses mandatory savings accounts for prison/pre-release/work release inmates, and is thus inapplicable.


[238] *fn35 I note also that Stewart voluntarily sought mental health treatment and such treatment was not a condition of his community supervision. See Raines, 83 Wn. App. at 316. Moreover, had it been a condition of his community supervision, the law requires that 'the civil detention and commitment procedures of chapter 71.05 RCW shall be considered in preference to incarceration in a local or state correctional facility.' RCW 9.94A.634(3)(e). Stewart was evaluated by mental health professionals the day before the collision. They determined that he did not meet the threshold for commitment under chapter 71.05 RCW. The trial court erred when it refused to allow the State to defend against the Joyce family's claim that DOC's oversight of Stewart's mental health was a 'gross dereliction of duty' (III CP at 482), because under the terms of Stewart's SRA sentence, DOC had no lawful authority or duty to oversee his mental health treatment. See RCW 9.94A.634(3)(e).


[239] *fn36 See Instruction No. 10.

Couch v. Wa. Dep't of Corrections, 113 Wash.App. 556, 54 P.3d 197 (Wash.App.Div.2 09/20/2002)

[1] Washington Court of Appeals


[2] No. 26784-5-II


[3] 113 Wash.App. 556, 54 P.3d 197, 2002.WA


[4] September 20, 2002


[5] As modified November 11, 2002.


[6] RICHARD LEE COUCH, ET AL, RESPONDENTS,
v.
WA. DEP'T OF CORRECTIONS, APPELLANT.


[7] SOURCE OF APPEAL Appeal from Superior Court of Pierce County Docket No: 99-2-11902-4 Judgment or order under review Date filed: 11/17/2000 Judge signing: Hon. Frederick B. Hayes


[8] Counsel of Record


[9] Counsel for Appellant(s) Steven R. Meeks Assistant Attorney General 629 Woodland Sq Lp SE PO Box 40126 Olympia, WA 98504-0126


[10] Glen A. Anderson Assistant Attorney General PO Box 40126 Olympia, WA 98504-0126


[11] Michael P. Lynch Assistant Attorney General Ofc of Atty Gen PO Box 40126 Olympia, WA 98504-0126


[12] Michael E. Tardif Asst Atty Gen - Dl&i; PO Box 40126 Olympia, WA 98504-0126


[13] Counsel for Respondent(s) John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[14] Darrell L. Cochran Gordon Thomas Honeywell Malanca Peterson & Daheim PO Box 1157 Tacoma, WA 98401-1157


[15] John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[16] Darrell L. Cochran Gordon Thomas Honeywell Malanca Peterson & Daheim PO Box 1157 Tacoma, WA 98401-1157


[17] John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[18] Darrell L. Cochran Gordon Thomas Honeywell Malanca Peterson & Daheim PO Box 1157 Tacoma, WA 98401-1157


[19] John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[20] Darrell L. Cochran Gordon Thomas Honeywell Malanca Peterson & Daheim PO Box 1157 Tacoma, WA 98401-1157


[21] John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[22] Darrell L. Cochran Gordon Thomas Honeywell Malanca Peterson & Daheim PO Box 1157 Tacoma, WA 98401-1157


[23] John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[24] Darrell L. Cochran Gordon Thomas Honeywell Malanca Peterson & Daheim PO Box 1157 Tacoma, WA 98401-1157


[25] The opinion of the court was delivered by: Morgan, J.


[26] JUDGES Concurring: David H. Armstrong, J. Robin Hunt


[27] PUBLISHED OPINION


[28] The main question in this case is whether the Department of Corrections (DOC) owes a duty of care to prevent future crimes while supervising an offender only for the purpose of collecting money. Answering no, we reverse with directions to dismiss.


[29] On January 6, 1990, Cecil Davis assaulted a Tacoma couple. On March 12, 1990, in Pierce County cause number 90-1-00112-3, he was convicted of assault in the second degree with a deadly weapon and criminal trespass in the first degree. On April 9, 1990, the court sentenced him to 26 months in prison, followed by a year of community placement. The court ordered him to pay $1,416.30*fn1 in fines, costs, and restitution (hereafter called 'legal financial obligations' or 'LFOs'), at a rate of at least $20 per month.


[30] On July 24, 1991, Davis was released from prison and began his year of community placement. On July 24, 1992, he finished his year of community placement. He did not pay his LFOs while on community placement, so he remained on LFO supervision after July 24, 1992.


[31] In August 1992, Davis stole property that belonged to another. On December 21, 1992, in Pierce County cause number 92-1-03513-0, Davis pled guilty to theft in the third degree, a gross misdemeanor. The court sentenced him to 'not more than 1 year' in jail, suspended on the condition that he successfully complete two years of probation and pay $2,562 in restitution and court costs at a rate of at least $25 per month.


[32] In September 1992 and August 1993, Davis appeared in court to explain why he was not making monthly payments on his LFOs. The court did not penalize him on either occasion, presumably because he lacked money with which to pay.


[33] In November 1993, a woman, G.A., was murdered. In late December of the same year, the police became 'pretty interested in Mr. Davis and his possible involvement{.}'*fn2 Davis was never arrested or charged because, according to the investigating officer, '{w}e were not able to ever establish a direct link between him and the {G.A.} murder that would have given us probable cause to make an arrest.'*fn3


[34] On December 26, 1993, a woman, T.H., was assaulted and raped. Davis was arrested within a few hours and charged with first-degree assault and first-degree rape. For the next thirteen months, he was held in jail awaiting trial. On February 6, 1995, he was released 'when as a result of DNA testing charges against him were dismissed.'*fn4


[35] On February 8, 1995, DOC reported to the court that Davis had failed to make payments on his LFOs in the 1992 misdemeanor case. Davis failed to appear for a scheduled hearing, so on May 12, 1995, the court issued an arrest warrant in that case.


[36] On May 17, 1995, DOC reported to the court that Davis had failed to make payments on his LFOs in the 1990 felony case. DOC did not seek a warrant in the felony case because a warrant was already outstanding in the misdemeanor case. DOC did 'recommend that upon apprehension{} Mr. Davis be held in custody pending a Non-Compliance Hearing' in the felony case.*fn5


[37] On June 4, 1995, Davis was arrested for domestic violence assault. He was later found not guilty.


[38] Also on June 4, 1995, Davis was arrested on the misdemeanor bench warrant from May 12, 1995. On June 5, 1995, the court held a hearing in the misdemeanor case, with Davis present. The court found that his 'nonpayment of monetary obligations was not wilful' and 'extend{ed} probation supervision until 6-5-96 for legal financial monitoring only{.}'*fn6 The court also ordered that Davis' payment of his LFOs be reviewed on December 8, 1995.


[39] On September 4, 1995, a woman, J.W., was the subject of an attempted rape. The police suspected Davis, but they lacked enough evidence to arrest or charge him.


[40] On December 8, 1995, Davis failed to appear for the misdemeanor LFO review hearing. Accordingly, the court issued a bench warrant for his arrest.*fn7 On February 13, 1996, the prosecutor moved for an arrest warrant in the felony case. He alleged only that '{d}efendant has failed to make payments toward his/her legal financial obligations{.}'*fn8 On February 16, 1996, the court issued the warrant.


[41] On April 20, 1996, Davis was arrested on one or both of the outstanding warrants, and on April 26, 1996, a hearing was held. Davis stipulated that he had willfully failed to pay his LFOs. The court accepted his stipulation and found that he had willfully failed to pay in both cases. In the misdemeanor case, the court 'terminated supervision' (which since June 5, 1995 had been 'for legal financial monitoring only'*fn9); revoked its earlier suspension of Davis' sentence; and incarcerated Davis for the remainder of his statutory maximum term*fn10 (317 days with credit from April 20, 1996). In the felony case, the court ordered that Davis serve 60 days in jail,*fn11 concurrently with the 317 days on the misdemeanor; that Davis continue on felony LFO supervision only; and that Davis contact DOC 'for reporting/payment instructions' when released from jail.*fn12


[42] Meanwhile, back on February 1, 1996, the officer investigating the J.W. attempted rape had asked the prosecutor to charge and obtain an arrest warrant for Davis. By early November 1996, despite 'periodic conversations with the prosecutor{,}'*fn13 the officer still did not have a response from the prosecutor, and he wanted to know when Davis would be released from jail.


[43] Rather than inquiring of the jail itself, he called DOC, asked to speak with the person in charge of Davis' file, and was told by 'someone' whom he could not identify at trial*fn14 that Davis 'wouldn't be released until after the first of the year.'*fn15 He then 'recontacted the prosecutor . . . to urge them to expedite issuing the warrant, so {that he} could serve it while {Davis} was still incarcerated.'*fn16


[44] On November 19, 1996, Davis was released from jail. He did not pay his LFOs or contact DOC.


[45] On January 25, 1997, Davis murdered Yoshiko Couch. He was later charged, convicted, and sentenced to death for that crime.


[46] Three days after Couch's murder, Davis was served with an arrest warrant in the J.W. attempted rape. The prosecutor had requested the warrant on December 16, 1996, the court had issued it on December 19, 1996, and the investigating officer had learned of it '{s}ometime after the first of the year.'*fn17


[47] Also after Couch's murder, Davis became a suspect in at least two more murders. One was the 1978 murder of S.M., and the other was the 1996 murder of L.H. Davis was not arrested or charged with either crime. On October 8, 1999, Couch's estate*fn18 sued DOC. Before trial, DOC moved for summary judgment. It argued that its only duty at the time of Couch's death was 'to collect the money owed the court by Davis.'*fn19 It also argued that the estate could not prove proximate cause. The court denied the motion.


[48] Also before trial, DOC moved to exclude evidence of the 1978 murder of S.M., the 1993 murder of G.A., the 1993 rape of T.H., the 1995 attempted rape of J.W., and the 1996 murder of L.H. DOC argued that such evidence would be irrelevant and unfairly prejudicial. The trial court denied the motion and later, during trial, admitted extensive evidence about those crimes over DOC's repeated objections.


[49] On November 3, 2000, the jury returned a verdict in favor of Couch's estate. DOC moved unsuccessfully for judgment as a matter of law, new trial, or remittitur. The trial court entered judgment on the verdict, and DOC filed this appeal.


[50] The elements of a negligence cause of action are duty, breach, causation, and damages.*fn20 We address duty before turning briefly to breach and causation.


[51] I.


[52] The first issue is whether DOC owed Couch a duty of care.*fn21 We address (A) the applicable general principles; (B) whether DOC owed such a duty due to its supervision in the felony case; and (C) whether DOC owed such a duty due to its supervision in the misdemeanor case.


[53] A.


[54] In general, an actor 'has no duty to prevent a third person from causing physical injury to another.'*fn22 An exception exists, however, when 'a special relationship' between the actor and the third person 'imposes a duty upon the actor to control the third person's conduct{.}'*fn23 Such a relationship must be 'definite, established and continuing,'*fn24 but it need not be custodial.*fn25


[55] Although 'various' relationships may 'give rise to a duty to control a third person{,}'*fn26 the one needed here involves one person (a supervising officer) 'tak{ing} charge' of another person (an offender).*fn27 Thus, the Restatement provides that '{o}ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.'*fn28


[56] To determine whether a supervising officer has 'taken charge' of an offender within the meaning of Taggart v. State*fn29 and Restatement sec.sec. 315 and 319, a court must examine 'the nature of the relationship' between the officer and that person,*fn30 including all of that relationship's '{v}arious features{.}'*fn31 In most cases, two of the most important features, though not necessarily the only ones, will be the court order that put the offender on the supervising officer's caseload and the statutes that describe and circumscribe the officer's power to act.*fn32 A community corrections officer must have a court order before he or she can 'take charge' of an offender; and even when he or she has such an order, he or she can only enforce it according to its terms and applicable statutes.


[57] Three cases illustrate. In Taggart,*fn33 the trial court sentenced a man named Brock under the indeterminate sentencing scheme that applies to felonies committed before July 1, 1984. A parole officer later investigated whether Brock should be released on parole. The officer recommended that any release be 'subject to special conditions, including that Brock complete a substance abuse program and submit to urinalysis testing to ensure that he was not using drugs or alcohol during parole.'*fn34 The parole board granted parole, apparently on those and other conditions.*fn35 RCW 72.04A.080*fn36 mandated that the parole officer supervise 'within the conditions of a parolee's release from custody.' Stating that '{t}his statute is sufficient to establish . . . a 'definite, established and continuing relationship' between parole officer and parolee,*fn37 the Supreme Court held that the parole officer had a duty to control the parolee's general conduct.*fn38


[58] In Bishop,*fn39 a court of limited jurisdiction sentenced Miche for DUI. It put him on probation and directed that he 'abide by all terms, conditions, rules and regulations of the probation department.'*fn40 Based on this order, and also with his agreement, his probation officer required that he attend inpatient treatment, Alcoholics Anonymous, not consume alcohol, and submit to urine testing. Holding that these facts were enough to demonstrate the required 'take-charge' relationship, the Supreme Court decided that the probation officer had a duty to control Miche's conduct.


[59] In McKenna v. Edwards,*fn41 by way of contrast, 'there {was} no order to supervise, no statute which would mandate supervision and no agreement to supervise.'*fn42 The facts did not show the required 'take charge' relationship, so Division Three declined to find that a pretrial release officer had a duty to control Edwards' general conduct.


[60] B.


[61] The first problem here is whether DOC had a 'take-charge' relationship with Davis because it had Davis on LFO supervision in the felony case from July 25, 1992 to January 25, 1997.*fn43 Washington's felony LFO collection scheme dates from 1989,*fn44 though parts of it were in existence before then.*fn45 Its purposes are (1) to 'assist{} the courts regarding the offender's {LFOs}'; (2) to 'hold{} offenders accountable . . . for the assessed costs associated with their crimes;' and (3) to provide remedies by means of which an individual or other entity can 'recoup or at least defray' such costs.*fn46 To implement these purposes, a court may include an order to pay LFOs as a part of any felony sentence.*fn47 Such order may be collected by DOC,*fn48 or 'enforced in the same manner as a judgment in a civil action by the party or entity to whom the legal financial obligation is owed.'*fn49 Such an order 'constitutes a condition and term of community supervision,'*fn50 and DOC shall supervise the offender's compliance with it for up to ten years.*fn51


[62] During the period of supervision,


[63] the offender may be required at the request of the department to report to the department for the purposes of reviewing the appropriateness of the collection schedule for the legal financial obligation. During this reporting, the offender is required under oath to truthfully and honestly respond to all questions concerning earning capabilities and the location and nature of all property or financial assets. Also, the offender is required to bring any and all documents as requested by the department in order to prepare the collection schedule.*fn52


[64] If an offender fails to pay and the failure is willful, the court can sentence him or her to not more than 60 days in jail per violation; but if the offender fails to pay and the failure is not willful, the court may only modify its order regarding payment.*fn53 Neither DOC nor any of its employees is to be 'liable under any circumstances for the payment of these {LFOs}.'*fn54


[65] This LFO collection scheme authorizes the court to assess LFOs; DOC to enforce and collect LFOs; and a victim or other person to enforce and collect those LFOs reflecting his or her loss. Whether or not DOC properly enforces and collects LFOs, it shall not 'under any circumstances' be liable for them.*fn55


[66] This LFO collection scheme does not impose on DOC a duty to prevent future crimes, as opposed to a duty to collect LFOs.*fn56 The scheme's purposes all relate to the collection of LFOs. DOC can require the offender to report, but only to facilitate the collection of LFOs. DOC can question the offender, but only on economic matters like earning capability and assets. So long as the offender pays the LFOs on schedule, DOC is not authorized to intervene in his or her other activities, even if it believes those activities to be criminal and if DOC is not authorized to intervene, it cannot have a duty to do so. Accordingly, we conclude that the LFO collection scheme does not empower DOC to supervise the general run of an offender's activities;*fn57 that the LFO collection scheme does not create the kind of 'take-charge' relationship that Taggart and its progeny require; and that DOC did not owe Couch a duty of care because it had Davis on LFO supervision in the felony case.


[67] C.


[68] The second problem here is whether DOC had a 'take-charge' relationship with Davis by virtue of its supervision in the misdemeanor case. This problem subdivides into (1) the period from December 21, 1992 to June 5, 1995; (2) the period from June 5, 1995 to April 26, 1996; and (3) the period from April 26, 1996 to January 25, 1997. After briefly considering the first and third periods, we focus on the second.


[69] The first period (December 21, 1992 to June 5, 1995) is immaterial for present purposes. DOC had Davis on general misdemeanor probation during that time. This resulted, according to Hertog and Bishop, in a 'take-charge' relationship and a general duty of care. But any breach that might have occurred during this period was clearly not a proximate cause of Couch's death on January 25, 1997.


[70] The third period (April 26, 1996 to January 25, 1997) is also immaterial for present purposes. A superior court has discretion to terminate misdemeanor probation at any time.*fn58 The court in this case exercised that discretion by completely terminating Davis' misdemeanor probation on April 26, 1996. In doing so, it relieved DOC of all responsibility in the misdemeanor case and ended any duty that DOC might otherwise have had. The second period is material for present purposes. Accordingly, we inquire whether the court had authority to modify Davis' probation at the hearing on June 5, 1995; whether one effect was to restrict DOC's authority to supervise; and whether a second effect was to eliminate any 'take-charge' relationship that DOC and Davis might otherwise have had.


[71] Assuming without holding that Davis' misdemeanor probation had not ended by operation of law prior to June 5, 1995,*fn59 the court clearly had authority to modify Davis' probation. Washington's superior court misdemeanor probation statutes allow the judge to order supervision on such terms and conditions as the judge sees fit; to modify such terms and conditions during supervision; and to terminate supervision at any time.*fn60 In open court on June 5, the prosecutor, DOC and Davis all agreed that Davis' supervision should henceforth be 'for legal financial monitoring only.'*fn61 The judge had authority to agree also, and he properly modified Davis' probation by eliminating all probation conditions except those relating to LFOs.*fn62


[72] One effect of this modification was to restrict DOC's authority over Davis. Whereas DOC previously had authority to supervise him for all purposes, including the prevention of crime, it would henceforth have authority to monitor legal financial obligations only.


[73] A second effect of this modification was to eliminate any 'take-charge' relationship, and thus any general duty of care, that DOC and Davis might previously have had in the misdemeanor case. If 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-charge' relationship of the kind that Taggart and its progeny require. Concluding this discussion of duty, we hold that DOC did not owe Couch a duty of care in the felony case at any time after July 25, 1992, and that DOC did not owe Couch a duty of care in the misdemeanor case at any time after June 5, 1995.


[74] II.


[75] Having analyzed duty, we turn briefly to breach and proximate cause. The estate alleges that DOC breached its duties in both the felony and misdemeanor cases in essentially four ways: (1) by not fully informing the judge at the April 26, 1996 hearing about Davis' alleged crimes and violations; (2) by misinforming the officer who, in October or November 1996, spoke on the phone to an unidentified person about when Davis would be released from jail; (3) by failing to violate Davis for not reporting after his release from jail on November 19, 1996; and (4) by not doing enough to monitor Davis' behavior after his release from jail on November 19, 1996.*fn63


[76] Taking the evidence in the light most favorable to the estate,*fn64 we first inquire whether any these four allegations is sufficient to show that DOC breached a duty of care in either the felony or the misdemeanor case. Axiomatically, a legal duty must be breached while it is in effect; it cannot be breached before it has commenced or after it has ended. As shown above, DOC's duty of care in the felony case, if any, ended no later than July 25, 1992. DOC's duty of care in the misdemeanor case, if any, ended no later than June 5, 1995. The earliest of the estate's alleged breaches occurred on April 26, 1996. Accordingly, none of the estate's allegations is sufficient to show that DOC breached a duty of care in either the felony or the misdemeanor case.*fn65


[77] We do not overlook the estate's argument that a breach of duty is sometimes actionable even though the plaintiff's injury occurred after the duty ended.*fn66 That is true and also immaterial. The question here is whether the breach occurred while the duty was in effect, not whether the injury occurred while the duty was in effect.


[78] Finally, even if the estate's first allegation is assumed to be true (i.e., even if DOC did not fully inform the judge at the April 26, 1996 hearing), and even if that allegation could somehow have been a breach of a then-existing duty, the allegation could not possibly have been a cause in fact of the harm to Couch. The judge sentenced Davis to the maximum allowed by law, so even if he had known more, he could not have done more;*fn67 and if he could not have done more, the alleged failure to inform him bears no causal relation whatever to the harm later suffered by Couch.*fn68


[79] The foregoing discussion is enough to dispose of this appeal. Accordingly, we do not extend this opinion by discussing errors in the trial court's rulings on evidence and jury instructions. Concluding that DOC did not owe Couch an actionable duty of care at any material time, we reverse and remand with instructions to dismiss the complaint against DOC.


[80] Morgan, J.


[81] We concur:


[82] Armstrong, J.


[83] Hunt, C.J.



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Opinion Footnotes

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[84] *fn1 The court assessed part of this amount at sentencing and the rest later.


[85] *fn2 Report of Proceedings (RP) at 557.


[86] *fn3 RP at 558. At the time of trial in this case, G.A.'s murder was still 'classified as an unsolved homicide{.}' RP at 572.


[87] *fn4 Clerk's Papers (CP) at 59.


[88] *fn5 Ex. 163, page 2.


[89] *fn6 Ex. 248.


[90] *fn7 The warrant is not in the record, but the fact of its issuance appears in Ex. 186.


[91] *fn8 CP at 57.


[92] *fn9 Ex. 248.


[93] *fn10 See RCW 9A.20.021(2); RCW 9A.56.050; RCW 9.92.020.


[94] *fn11 See former RCW 9.94A.200, currently codified as RCW 9.94A.634.


[95] *fn12 CP at 67.


[96] *fn13 RP at 581-582.


[97] *fn14 RP at 570-71.


[98] *fn15 RP at 570; see also RP at 588-89.


[99] *fn16 RP at 571.


[100] *fn17 RP at 584.


[101] *fn18 We will refer to all plaintiffs collectively as 'Couch's estate.'


[102] *fn19 CP at 74.


[103] *fn20 Mucsi v. Graoch Assocs. Ltd. P'ship, 144 Wn.2d 847, 854, 31 P.3d 684 (2001); Mathis v. Ammons, 88 Wn. App. 411, 415-16, 928 P.2d 431, review denied 132 Wn.2d 1008 (1997).


[104] *fn21 We have no occasion to consider whether this duty is one of reasonable care that can be breached by ordinary negligence, or one of slight care that can be breached only by gross negligence. See RCW 72.09.320, enacted in 1988, and RCW 9.95.204(7), enacted in 1996.


[105] *fn22 Taggart v. State, 118 Wn.2d 195, 218, 822 P.2d 243 (1992); see also Bishop v. Miche, 137 Wn.2d 518, 524, 973 P.2d 465 (1999); Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983); Restatement (Second) of Torts sec. 315 (1965).


[106] *fn23 Taggart, 118 Wn.2d at 218 (quoting Restatement (Second) of Torts sec. 315); see also Bishop, 137 Wn.2d at 524.


[107] *fn24 Hertog v. City of Seattle, 138 Wn.2d 265, 276, 288, 979 P.2d 400 (1999); Bishop, 137 Wn.2d at 524; Taggart, 118 Wn.2d at 219; Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988).


[108] *fn25 Hertog, 138 Wn.2d at 277; Bishop, 137 Wn.2d at 524, 528; Taggart, 118 Wn.2d at 223.


[109] *fn26 Taggart, 118 Wn.2d at 219.


[110] *fn27 Hertog, 138 Wn.2d at 277; Bishop, 137 Wn.2d at 524; Taggart, 118 Wn.2d at 219.


[111] *fn28 Taggart, 118 Wn.2d at 219 (quoting Restatement (Second) of Torts sec. 319 (1965)).


[112] *fn29 118 Wn.2d 195, 822 P.2d 243 (1992).


[113] *fn30 Bishop, 137 Wn.2d at 527 (whether supervising department 'had a duty to control turned on the nature of the relationship' between department and offender); Hertog, 138 Wn.2d at 279 ('relevant inquiry is the relationship of the officer with' the offender); Bishop, 137 Wn.2d at 528 ('relevant inquiry is the relationship of the officer with' the offender).


[114] *fn31 Taggart, 118 Wn.2d at 219.


[115] *fn32 See Hertog, 138 Wn.2d at 277 n.3 (relationship in Taggart was 'defined' by statute; relationship in Semler v. Psychiatric Inst., 538 F.2d 121 (4th Cir. 1976), was 'defined' by court order).


[116] *fn33 118 Wn.2d 195.


[117] *fn34 Taggart, 118 Wn.2d at 200.


[118] *fn35 Unfortunately, the court's opinion does not show the conditions that the Board made part of Brock's parole. Under the sentencing scheme then in effect, it would have been normal for the Board to include the special conditions in the pre-parole plan, as well as a general condition requiring that Brock 'obey all laws.' See RCW 9.95.120 (implying that parole may be revoked without hearing if parolee is convicted of committing new criminal offense).


[119] *fn36 RCW 72.04A.080 is not applicable to a felony committed on or after July 1, 1984. RCW 72.04A.900.


[120] *fn37 Taggart, 118 Wn.2d at 219.


[121] *fn38 For purposes of the indeterminate sentencing scheme that applies to felonies committed before July 1, 1984, Taggart held that the duty was one of ordinary care that could be violated by ordinary negligence. In 1988, at least for purposes of 'community placement' under the SRA, the legislature provided that the duty is one of slight care that can be violated only by gross negligence. RCW 72.09.320. In 1996, the legislature provided similarly for misdemeanors. RCW 9.95.204(7).


[122] *fn39 137 Wn.2d 518.


[123] *fn40 Bishop, 137 Wn.2d at 528.


[124] *fn41 65 Wn. App. 905, 830 P.2d 385, review denied, 120 Wn.2d 1003 (1992).


[125] *fn42 65 Wn. App. at 918.


[126] *fn43 The estate does not contend, nor could it contend successfully, that DOC's 'community placement' relationship with Davis, which existed from July 25, 1991 to July 24, 1992, can be causally related to the murder of Couch on January 25, 1997.


[127] *fn44 Laws of 1989, ch. 252.


[128] *fn45 E.g., Laws of 1982, chapter 192, sec. 5. Both parties assume that all parts of the current LFO scheme apply to Davis' 1990 felony case. Although we assume likewise, we note in passing that Davis committed his offense on January 6, 1990, and that some parts of the LFO system did not take effect until July 1, 1990. Laws of 1989, chapter 252, sec. 30(1).


[129] *fn46 Laws of 1989, ch. 252, sec. 1.


[130] *fn47 Laws of 1989, ch. 252, sec. 3(1), currently codified as RCW 9.94A.760(1).


[131] *fn48 Laws of 1989, ch. 252, sec. 3(6), currently codified as RCW 9.94A.760(8).


[132] *fn49 Laws of 1989, ch. 252, sec. 3(2), currently codified as RCW 9.94A.760(4).


[133] *fn50 Laws of 1989, ch. 252, sec. 3(8), currently codified as RCW 9.94A.760(10).


[134] *fn51 Laws of 1989, ch. 252, sec. 4(10), re-enacting a portion of Laws of 1982, ch. 192, sec. 5(1), currently codified as 9.94A.760(4); see also Laws of 1989, ch. 252, sec. 4(12), re-enacting a portion of Laws of 1984, ch. 209, sec. 6(11). As to the ten year duration of supervision, see Laws of 1989, ch. 252, sec. 3(2), currently codified as RCW 9.94A.760(4).


[135] *fn52 Laws of 1989, ch. 252, sec. 3(5) (emphasis added), currently codified as RCW 9.94A.760(7).


[136] *fn53 Laws of 1989, ch. 252, sec. 3(8), 7(2)(b), (2)(c), currently codified as RCW 9.94A.634(3)(c), (d); State v. Curry, 118 Wn.2d 911, 918, 829 P.2d 166 (1992) ('no defendant will be incarcerated for his or her inability to pay the penalty assessment unless the violation is willful'); State v. Gropper, 76 Wn. App 882, 887, 888 P.2d 1211 (1995); State v. Bower, 64 Wn. App. 227, 230, 823 P.2d 1171 (1992); cf. Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).


[137] *fn54 Laws of 1989, ch. 252, sec. 4(10), currently codified as RCW 9.94A.760(13).


[138] *fn55 Laws of 1989, ch. 252, sec. 4(10), currently codified as RCW 9.94A.760(13).


[139] *fn56 We do not hold that DOC has a duty to collect LFOs, as opposed to authority to collect LFOs. Even if we did so hold, however, DOC would owe that duty to the LFO payees, not to the public as a whole. In this case then, it could not have owed such a duty to Couch.


[140] *fn57 Cf. State v. Barclay, 51 Wn. App. 404, 405, 407, 753 P.2d 1015 (1988) (under SRA, court cannot condition community placement on repeat offender not 'violat{ing} any local, state or federal criminal statute, law or ordinance'); David Boerner, Sentencing in Washington at sec. 4, 4-5 to 4-6 (1985) (CCO's power 'is restricted by the nature of the conditions or requirements of sentences permitted under the {SRA}').


[141] *fn58 RCW 9.95.230; RCW 9.92.064.


[142] *fn59 DOC argues that Davis' misdemeanor probation terminated by operation of law on December 21, 1994. It reasons, based on City of Spokane v. Del Marquette, 103 Wn. App. 792, 14 P.3d 832 (2000), rev'd, 146 Wn.2d 124, 43 P.3d 502 (2002) and Gillespie v. State, 17 Wn. App. 363, 563 P.2d 1272, review denied, 89 Wn.2d 1008 (1977) that '{a}lthough probation is tolled when an offender has absconded and is incarcerated in another jurisdiction, probation is not tolled when an offender has not left the jurisdiction and is amenable to process.' Br. of Appellant at 43 n.15; see RCW 9.95.210(1); RCW 9.92.064. We need not reach this argument to dispose of this case.


[143] *fn60 E.g., RCW 9.95.200(1) (court may summarily grant or deny probation and may determine the conditions of such probation); RCW 9.95.210(1), (2) (court may suspend sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate); RCW 9.95.230 (prior to order terminating probation, court has the authority to revoke, modify, or change its order of suspension of imposition or execution of sentence; court has the authority to terminate the period of probation); see also RCW 9.92.060(1), (2) (superior court may suspend sentence and may direct that the sentenced person be placed under the charge of a community corrections officer); RCW 9.92.064 (court shall establish a definite termination date for the suspended sentence).


[144] *fn61 Ex. 248; Ex. 250.


[145] *fn62 RCW 9.92.064; RCW 9.95.230.


[146] *fn63 The estate makes this last claim in two forms. First, it says that DOC classified Davis as a 'Level 5B' offender, with the result that it did not do enough to monitor his behavior following his release from jail. Br. of Resp't at 35. Second, the estate says that regardless of whether Davis was properly classified, DOC did not do enough to monitor his behavior following his release from jail. Br. of Resp't at 37-38. The claim is the same, regardless of which form is used.


[147] *fn64 Stiley v. Block, 130 Wn.2d 486, 504-505, 925 P.2d 194 (1996); Westby v. Gorsuch, 112 Wn. App. 558, 562, 50 P.3d 284 (2002); Maxwell v. Piper, 92 Wn. App. 471, 476, 963 P.2d 941 (1998).


[148] *fn65 We do not overlook the estate's attempt to support its second allegation (that DOC breached its duty because some unidentified person at DOC told an inquiring police officer over the phone that Davis would not be released until after the first of the year) with an alternative argument. Citing Restatement (Second) of Torts sec. 324A (1965) and the common law's rescue doctrine, the estate contends that 'even if DOC had no independent duty to provide information to the police, once DOC undertook to provide information it had a common law duty to make sure the information was accurate.' Br. of Resp't at 33. In our view, however, this alternative argument adds nothing that requires separate discussion in the main text. Assuming (without holding) that DOC somehow acquired a duty to the police when the unidentified person spoke on the phone to the officer, DOC did not thereby acquire a duty to Couch. In October and November 1996, DOC owed a duty of care to Couch only if its conduct fell within an exception to the public duty doctrine. See e.g., Babcock v. Mason County Fire Dist., 144 Wn.2d 774, 30 P.3d 1261 (2001); Bailey v. Town of Forks, 108 Wn.2d 262, 737 P.2d 1257 (1987); Phillips v. King County, 87 Wn. App. 468, 943 P.2d 306 (1997). The only exceptions that might apply are the rescue exception (see the third exception listed in Bailey, 108 Wn.2d at 268) and the 'special relationship' exception (see the fourth exception listed in Bailey, 108 Wn.2d at 268). DOC never undertook to rescue Couch or any other specific person, so that exception (including Restatement of Torts sec. 324A) does not apply. The 'special relationship' exception lies at the core of Taggart and its progeny, and whether it applies here is discussed at length in Section I.


[149] *fn66 See Br. of Resp't at 25.


[150] *fn67 The estate's reliance on State v. McDougal, 120 Wn.2d 334, 351-52, 841 P.2d 1232 (1992), is misplaced. See Br. of Resp't at 47. That a judge can impose time in excess of the standard range, as in McDougal, has no bearing on whether a judge can impose time in excess of the statutory maximum sentence.


[151] *fn68 The estate may also be suggesting that if the judge had been better informed, he might have ordered that the 317 days on the misdemeanor run consecutively with 60 days on the felony. Even if one assumes that is so, however, Davis would still not have been in jail on January 25, 1997. We also note that the law or the prosecutor, not DOC, controlled the number of failure-to-pay violations that the court considered on April 26, 1996. See CP at 57-58.