Estate Of Heather Durham v. Pierce County And Dept. Of Corrections

• Court: Court of Appeals of Washington
• Decided: February 9, 2021
• Docket: 53344-8
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

February 9, 2021

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II NANCY MILLER as the Personal Representative No. 53344-8-II of the Estate of HEATHER DURHAM,

Appellant,

v. UNPUBLISHED OPINION PIERCE COUNTY, and STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS,

Respondents.

SUTTON, A.C.J. — Heather Durham was severely beaten by her estranged husband, Abel

Robinson, while he was ordered to be under electronic home monitoring (EHM), but not actually

being monitored by Pierce County. She filed a lawsuit against Pierce County and the Department

of Corrections (DOC), and the superior court granted the County’s CR 12(b)(6) motion dismissing

Durham’s “take-charge” duty claims against the County.1 Shortly thereafter, Durham passed

away.2

The Estate of Heather Durham argues that the superior court erred by granting the County’s

CR 12(b)(6) motion to dismiss because, presuming all facts alleged in the complaint are true, the

County had a special relationship with Robinson and a take-charge duty, and the complaint alleges

1 We granted discretionary review on the Estate’s claim against the County only and thus, we do not address any claim the Estate may have against the DOC. 2 Durham’s passing was not related to the incident involving Robinson. No. 53344-8-II

a conceivable set of facts to support their claims. We agree, and hold that the superior court erred

by granting the County’s CR 12(b)(6) motion. Therefore, we reverse and remand for further

proceedings.

FACTS

I. BACKGROUND

On July 22, 2016, the superior court sentenced Abel Robinson to an exceptional downward

sentence for two felony counts of unlawful solicitation to deliver and unlawful delivery of a

controlled substance—methamphetamine. The court sentenced him to 364 days of EHM to be

followed by 12 months of community custody under DOC’s supervision. The court considered

Robinson to be a low-risk offender because he is paralyzed from the waist down, suffers from

HIV,3 and has chronic skin and blood infections requiring frequent medical attention.

The judgment and sentence stated that Robinson could serve the sentence, if eligible and

approved, in home detention through EHM. The superior court issued a warrant of commitment

to the “Director of Adult Detention of Pierce County” and designated, via checkmark, the “County

Jail” as the associated institution, rather than DOC or other custodial entity. Clerk’s Papers (CP)

at 47 (bold capitalization omitted). The warrant of commitment directed that “YOU, THE

DIRECTOR, ARE COMMANDED to receive the defendant for classification, confinement, and

placement as ordered in the [j]udgment and [s]entence ([s]entence of confinement in Pierce County

Jail.” CP at 47. In a handwritten notation, the warrant of commitment provided that Robinson

“must be on EHM by 8-5-16 at 9 am or report to the [Pierce County] jail on 8-5-16 at 4 pm.” CP

3 Human Immunodeficiency Virus.

2 No. 53344-8-II

at 47. Robinson was not in the County’s custody at the time his judgment and sentence was

entered. At the time of his sentencing, Robinson’s criminal history listed 18 counts of assault,

domestic violence, and harassment.

Robinson neither began EHM by August 5, 2016, at 9:00 am nor reported to the Pierce

County Jail by August 5, 2016 by 4:00 pm. Robinson remained unmonitored by Pierce County

and left his residence repeatedly, including to harass and attack his estranged wife, Durham. On

one occasion, he punched her in the face and slammed her head into a wall.

A DOC officer met Robinson at his home in December 2016 to check on his EHM status,

gave him his assigned community supervision number, and told him to call another DOC officer

on January 3, 2017. On January 3, 2017, the other DOC officer became aware that Robinson was

not on EHM as ordered and she emailed the Pierce County’s Prosecutor’s Office to check on

Robinson’s EHM status. Three days later, Robinson severely attacked Durham at her home.

II. PROCEDURAL HISTORY

On January 16, 2019, Durham filed a complaint in Pierce County Superior Court. She

alleged that the County and DOC breached a duty of care by failing to supervise, monitor, control,

and/or incarcerate Robinson for the violations of his conditions of confinement.

On February 14, the County filed a CR 12(b)(6) motion to dismiss Durham’s claims,

alleging that she failed to state a claim because the County did not owe any duty to Durham.

Durham filed a second amended complaint incorporating the amended allegations into her

supplemental briefing responding to the County’s motion.

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The superior court granted the County’s CR 12(b)(6) motion to dismiss. Durham filed a

motion for reconsideration or in the alternative, certification under CR 54(b). The court denied

the motion for reconsideration and denied certification to this court.

After Durham’s death, the Estate substituted as a party and filed a motion for discretionary

review which we granted.

ANALYSIS

I. STANDARD OF REVIEW

We review decisions to dismiss under CR 12(b)(6) de novo. FutureSelect Portfolio Mgmt.,

Inc. v. Tremont Group Holdings, Inc., 175 Wn. App. 840, 865, 309 P.3d 555 (2013), affirmed, 180

Wn.2d 954 (2014). “Dismissal under CR 12(b)(6) is proper only where ‘it appears beyond doubt

that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the

plaintiff to relief.’” FutureSelect, 175 Wn. App. at 865 (internal quotation marks omitted) (quoting

Lawson v. State, 107 Wn.2d 444, 448, 730 P.2d 1308 (1986)). All facts in the plaintiff’s complaint

are presumed to be true and even a hypothetical set of facts are sufficient to defeat a CR 12(b)(6)

motion. Bravo v. Dolsen Companies, 125 Wn.2d 745, 750, 888 P.2d 147 (1995).

II. CR 12(b)(6) MOTION TO DISMISS

The Estate alleges that the superior court erred by dismissing its claims because its

complaint alleged sufficient facts to establish that the County had a special relationship with

Robinson under the Restatement (Second) of Torts § 315 and a take-charge duty under the

Restatement (Second) of Torts § 319. The Estate argues that the superior court failed to presume

as true its alleged facts describing that the County failed to supervise, monitor, or control Robinson

4 No. 53344-8-II

after he failed to report on August 5, 2016, for EHM by 9 am or report to the Pierce County jail by

4 pm. We agree and hold that the superior court erred by granting dismissal under CR 12(b)(6).

The first question “in any negligence action is a question of law; that is, whether a duty of

care is owed by the defendant to the plaintiff.” Alexander v. County of Walla Walla, 84 Wn. App.

687, 692-93, 929 P.2d 1182 (1997). In this case, the Estate relies on the Restatement (Second) of

Torts § 315 (Am. Law Inst. 1965) to argue that the County owed Durham a legal duty.

The Restatement (Second) of Torts § 315 addresses when a special relationship exists and

states:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relationship exists between the actor and the other which gives to the other a right to protection.

The Restatement (Second) of Torts § 319 addresses when a take-charge duty exits and

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Our Supreme Court has held that a governmental agency defendant owes a duty to a third

party victim when the government agency exercises control over a person who commits a violent

act against the victim. Taggert v. State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992) (parolees);

Joyce v. Dep’t of Corr., 155 Wn.2d 306, 316, 119 P.3d 825 (2005) (offender under community

supervision); Volk v. DeMeerleer, 187 Wn.2d 241, 257-62, 386 P.3d 254 (2016) (the court

5 No. 53344-8-II

distinguished between a take-charge duty under § 319 and a mental health professional’s special

relationship duty as to a patient under § 315).

The scope of the take-charge duty is not limited to readily identifiable victims, but includes

anyone foreseeably endangered by the person’s dangerous propensities. Taggert, 118 Wn.2d at

219. In Joyce, the Supreme Court clarified that

once the State has taken charge of an offender, “the State has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees.” The existence of the duty comes from the special relationship between the offender and the State. Once that special relationship is created, the State has a duty of reasonable care when . . . damages result.

155 Wn.2d at 310 (emphasis omitted) (internal citation omitted) (quoting Taggart, 118 Wn.2d at

217).

RCW 9.94A.190(1)4 defines what constitutes confinement of not more than one year:

[A] sentence of not more than one year of confinement shall be served in a facility operated, licensed, or utilized under contract, by the county, or if home detention or work crew has been ordered by the court, in the residence of either the offender or a member of the offender’s immediate family.

RCW 9.94A.190. RCW 9.94A.030(8)5 defines “confinement” as either total or partial

confinement. RCW 9.94A.030(35) defines “partial confinement” to include home detention.

Thus, by statute, EHM as ordered for Robinson is a form of confinement.

4 The legislature amended this statute in 2018. LAWS OF 2018, ch. 166 § 5. Because these amendments are not relevant here, we cite to the current version of this statute. 5 The legislature amended this statute in 2020. LAWS OF 2020, ch. 296 § 2. Because these amendments are not relevant here, we cite to the current version of this statute

6 No. 53344-8-II

The issue here is whether there exists any conceivable set of facts as alleged in the Estate’s

complaint that the County had a special relationship between Robinson and Durham under § 315

or a “take-charge” relationship between the County and Robinson under § 319.

A. SPECIAL RELATIONSHIP BETWEEN THE COUNTY AND ROBINSON

In reviewing a CR 12(b)(6) motion, we are required to presume all facts alleged in the

complaint to be true. Bravo, 125 Wn.2d at 750.

Here, under the warrant of commitment, the superior court ordered the “Director of Adult

Detention of Pierce County . . . to receive [Robinson] for classification, confinement and

placement as ordered in the [j]udgment and [s]entence ([s]entence of confinement in Pierce County

Jail).” CP at 47 (bold capitalization omitted). The warrant of commitment also designated, via

check mark, the “County Jail” as the institution, rather than DOC or other custodial entity. CP at

47. The warrant of commitment ordered that Robinson “must be on EHM by 8-5-2016 at 9 am or

report to the [] jail on 8-5-16 at 4 pm.” CP at 47. Under Joyce and the Restatement (Second) of

Torts § 315, the judgment and sentence and warrant of commitment created a special relationship

between the County and Robinson. 155 Wn.2d at 318.

For purposes of a CR 12(b)(6) motion, we presume all of the facts alleged in the complaint

are true. The Estate’s complaint alleged that Robinson was under the County’s statutory authority

to confine him, through EHM or in jail, and the superior court’s order required the County to

ensure Robinson reported for EHM or reported to the jail on August 5, 2016. The complaint

alleged that “[o]nce Robinson did not get on EHM or report to Pierce County Jail, he was in

violation of a [c]ourt order, and should have been violated and arrested.” CP at 197. The complaint

alleged that “Pierce County is represented as the entity responsible for knowing the status of

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Robinson’s EHM status.” CP at 198. “Robinson would have been arrested well before the January

6, 2017 . . . attack on [Durham].” CP at 197.

The County argues that it owes no duty because the County had no superior court probation

program to monitor low-risk felony offenders at that time. Thus, it argues, it had no statutory

authority to supervise, monitor, or control Robinson. This argument ignores the County’s statutory

authority to confine Robinson and the court’s order requiring it do so. The County was present at

Robinson’s sentencing and did not mention that it would be unable to monitor him as required by

the court order. The County had a special relationship with Robinson. Joyce, 155 Wn.2d at 318;

Restatement (Second of Torts) § 315. Because the Estate alleged sufficient facts to defeat the

County’s CR 12(b)(6) motion, the superior court erred by granting the County’s CR 12(b)(6)

motion to dismiss on this basis.

B. TAKE-CHARGE DUTY

The Estate also argues that the County had a common law take-charge duty regarding

Robinson under Restatement (Second of Torts) § 319 because it had custody over Robinson. The

County argues, and the superior court agreed, that it did not take charge of Robinson because it

never had Robinson in its custody. We hold that the complaint alleged sufficient facts to establish

that the County had a take-charge duty here.

The County has a take-charge “duty to take reasonable precautions to protect against

reasonably foreseeable dangers posed by the dangerous propensities of [the person supervised].”

Taggert, 118 Wn.2d at 217; Restatement (Second of Torts) § 319. Accordingly, the County had

the authority to pick up Robinson for violating the court’s order that he report for EHM or to the

jail by August 5, 2016.

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Here, the court ordered that Robinson serve his sentence on EHM which is defined under

RCW 9.94.190(1) as a form on confinement, or report to the jail by August 5, 2016. The Estate’s

complaint alleged that under RCW 9.94A.731(2), an offender in a county jail ordered to serve less

than one year in home detention and who violates the rules may be transferred to the appropriate

county detention facility without further court order. The Estate argues that RCW 9.94A.731(2)

and RCW 9.94.190(1) provided the statutory authority for the County to take charge of Robinson

prior to January 6, 2017.

The County argues it owes no duty because Robinson was ordered to serve his sentence on

probation, which program did not exist in superior court at that time, and it never had Robinson in

its supervision, control, or custody. In other words, the County argues that because it had no ability

to supervise Robinson, and because it never attempted to supervise Robinson, it had no take-charge

duty. A take-charge duty exists because, as discussed above, the County had statutory authority

to confine Robinson and a court order requiring it do so existed. The Estate’s complaint alleged

that Robinson was in the County’s custody and control under a form of confinement. See Taggert,

118 Wn.2d at 218. This relationship arises when a government agency, here the County, “‘takes

charge of a third person whom he knows or should know to be likely to cause bodily harm to others

if not controlled’” and thus, it is “‘under a duty to exercise reasonable care to control the third

person to prevent him from doing . . . harm.’” Taggert, 118 Wn.2d at 219 (quoting Restatement

(Second of Torts) § 319).

At the time the court sentenced Robinson, his criminal history reflected that he had 18 prior

felonies for assault, domestic violence, and harassment. The Estate’s complaint alleged that while

serving his sentence unmonitored by the County, Robinson repeatedly harassed and threated

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Durham. The Estate’s complaint alleged sufficient facts to establish a take-charge duty under

§ 319. Accordingly, we hold that the superior court erred by dismissing the Estate’s claim on this

basis.

CONCLUSION

We hold that the superior court erred by granting the County’s CR 12(b)(6) motion and

dismissing the Estate’s claims against the County. Accordingly, we reverse and remand for further

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

SUTTON, A.C.J. We concur:

WORSWICK, J.

CRUSER, J.