IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRED BINSCHUS, individually and as Personal Representative of the Estate No. 71752-9-1 of JULIE ANN BINSCHUS; TONYA FENTON; TRISHA WOODS; TAMMY DIVISION ONE MORRIS; JOANN GILLUM, as Personal Representative of the Estate of PUBLISHED OPINION GREGORY N. GILLUM; CARLA J. LANGE, individually and as Personal Representative of the Estate of LEROY B. LANG; NICHOLAS LEE LANGE, Individually and as Personal fT"l i ' ' ^._ Representative of the Estate of c~ i'Z'- ~~<
CHESTER M. ROSE; STACY ROSE, ::r:-.'•', ~' Individually; RICHARD TRESTON and :> ---] - , rttr» CI m.'.- • CAROL TRESTON, and the marital __-„* ~ f~ community thereof; BEN MERCADO; \£j '"""- O"/
and PAMELA RADCLIFFE, individually CD :~ ;~ -
and as Personal Representative of the Estate of DAVID RADCLIFFE,
Appellants,
v.
STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS; SKAGIT EMERGENCY COMMUNICATIONS CENTER d/b/a "Skagit 911," an interlocal government agency; SKAGIT COUNTY, a political subdivision of the State of Washington; OKANOGAN COUNTY, a political subdivision of the State of Washington, FILED: February 23, 2015 Respondents.
Trickey, J. — On September 2, 2008, Isaac Zamora killed six people and
injured several others. Shortly before the tragic incident, Zamora had been incarcerated in Skagit County and Okanogan County Jails for committing non- No. 71752-9-1/2
violent crimes. At the time of the shooting, Zamora was experiencing a psychotic
episode.
The estates of five people Zamora killed, together with four people he
injured (collectively Binschus), brought the present lawsuit against Okanagan and
Skagit Counties, Skagit Emergency Communications Center (Skagit 911), and
Washington State Department of Corrections (DOC), alleging negligence.
Binschus claimed, among other things, that, although the counties knew or should
have known of Zamora's deteriorating mental illness during his incarceration, they
failed to provide a thorough mental evaluation and appropriate treatment for his
schizophrenia. The trial court granted Okanogan and Skagit Counties' motions for
summary judgment, concluding that the counties owed no duty to the victims and,
even if they did, Binschus failed to prove proximate causation.
On appeal, Binschus contends that the trial court erred in granting the
counties' motions for summary judgment, arguing that the counties owed a legal
duty to protect the victims from Zamora's violentpropensities because the counties
(1) had a "take charge" relationship with Zamora under §§ 315 and 319 of the
Restatement (Second) of Torts (1965) or (2) committed misfeasance under § 302B
of the Restatement (Second) of Torts.1 Binschus additionally argues that the
counties' purported breach was the cause in fact of the victims' injuries.
We hold that, with regard to Skagit County, material issues of fact precludes
summary judgment on the question of whether §§ 315 and 319 imposed a legal duty upon the counties. We further hold that material issues of fact remain as to
11 Br. of Appellant at 1, 19,21. No. 71752-9-1/3
whether the alleged breach was the cause in fact of the victims' injuries. We hold,
however, that a duty is not established under § 302B. Accordingly, we reverse
and remand for additional proceedings.
FACTS
Zamora "had a long-standing psychiatric disorder that began to emerge
when Zamora was in his late-teens, more than a decade before the incident on
September 2, 2008."2 In May 2000, Zamora began experiencing symptoms of
insomnia, paranoia, and anger. In 2003, Zamora was involuntarily committed at
North Sound Evaluation and Treatment Center, where he endorsed hallucinations
and was prescribed an antipsychotic medication that is commonly used for
treatment of schizophrenia. According to Binschus's expert psychiatrist, Dr. Csaba
Hegyvary, Zamora was not given a proper diagnosis at that time.
Skagit County Jail
On April 4, 2008, Skagit County police officers responded to Zamora's
parents' residence to investigate a 911 hang-up call from the residence. The
officers soon discovered that Skagit County District Court had issued warrants for
Zamora's arrest. Zamora complained of a sore shoulder when arrested. As a
result, the officers transported Zamora to a local hospital to determine whether he
was fit for jail. The hospital subsequently released Zamora, who then was
transported to Skagit County Jail.
Zamora remained in the Skagit County Jail pending trial and his eventual
guilty pleas. On May 15, 2008, the Skagit County Superior Court sentenced him
Clerk's Papers (CP) at 2538 (Dr. Csaba Hegyvary's Deposition). No. 71752-9-1/4
to six months of confinement for malicious mischief in the second degree and
possession of a controlled substance. The six-month term was to be followed by
12 months of community supervision by DOC. Under the community supervision
provision of the judgment and sentence, the trial court ordered "mental health
eval/treatment" and "drug evaluation to comply with all treatment
recommendation."3 The trial court did not make any specific findings regarding
Zamora's mental health.
Zamora remained in custody and began serving his sentence at the Skagit
County Jail. The jail housed Zamora in a jail unit known as "C-Pod."4 The C-Pod
unit is more secure and isolated than other units in the jail. The Skagit County Jail
would place a particular class of inmates in the C-Pod unit: inmates who fought
with others; who threatened the general population of the jail; who were considered
"anti-social;" who had severe behavioral issues; who were in protective custody;
and who had mental health issues.5
During his time at the jail, Zamora's mother, Dennise Zamora,6 made several requests to the Skagit County Jail and the county prosecutor, asking that
Zamora receive mental health assistance. Dennise made such a request to the
jail on April 7, 2008. She informed the Skagit CountyJail that Zamora was bipolar,
aggressive, and had anger problems. Dennise added that Zamora refused to
obtain treatment and medication. She also reported that she and her husband
3 CP at 3499. 4 CP at 2581. 5CP at 2581, 2599. 6 We refer to Dennise Zamora by her first name for ease of reference. We intend no disrespect. No. 71752-9-1/5
were in fear of Zamora. In response, on April 11, 2008, Stephanie Inslee, a
licensed mental health care professional, visited Zamora at the jail. In a document
referred to as "Skagit County Jail Multi-Purpose Request Form," Inslee noted:
Persecutorial thoughts, easily moved into rageful thinking, . . . feels victimized by just about everyone in his world. Some grandiosity about his education / intelligence and his role in the world: to fix the crazy systems, make people treat him better. Very focused on the issue of chronic pain and poor.... Reports anxiety . . . sounds like panic attack. He needs something! Recommend beginning Lamictal: He is paranoid about poison and not messing w/ his brain. Can a person in medical please meet with him if meds are approved and address his fears?171
Three days later, a physician approved the Lamictal prescription. According
to Dr. Hegyvary, Lamictal is prescribed for seizure disorders and commonly used
as a mood stabilizer. Lamictal is not an antipsychotic medication.
On April 23, 2008, another mental health counselor, Cindy Maxwell, saw
Zamora after he submitted a mental health request. According to the "Skagit
County Multi-Purpose Request Form" memorializing that visit, Zamora was
refusing to take the Lamictal medication.8 Zamora told Maxwell, however, that he
was only taking the prescription because it helped him sleep. He said that he
preferred to refrain from taking any type of mental health medications. In addition,
Zamora expressed extreme anger toward his mother for calling the jail. Maxwell
noted that Zamora appeared upset, easily angered, and that his speech was
rambling. Maxwell recommended that the jail continue to offer Zamora "psych.
meds."9
7 CP at 3685. 8 CP at 3687. 9 CP at 3687. No. 71752-9-1/6
On May 10, 2008, Zamora submitted a request to see a mental health
counselor. He reported that he was seeing black dots and white flashes. The
request form does not indicate whether jail staff responded to his request.
The only evidence of any violent occurrence involving Zamora was a jail
record reporting that another inmate attacked Zamora and was charged with
assaulting Zamora. Otherwise, there were reports describing Zamora's insolent
demeanor toward jail staff. Most commonly, however, Zamora complained that he
was not receiving adequate medical care for his fractured clavicle and protested
his placement in the C-Pod unit.
Okanogan County Jail
On May 29, 2008, Skagit County Jail transferred Zamora to the Okanogan
County Jail. At the time of Zamora's transfer, Okanogan County Jail was a party
to a contract with Skagit County Jail for the housing of Skagit County Jail inmates.
During the term of the contract, when a Skagit County Jail inmate was transferred
to Okanogan County Jail, Skagit County Jail would prepare a "Skagit County Jail
Transport Form," which was usually sent to Okanogan County Jail in advance of
the inmate's arrival.10 The form identified the inmate, provided basic information
about the Skagit County charges for which the inmate was serving time, indicated whether the inmate presented a risk of escape or violence, and listed the inmate's
release date.
The contract required that Skagit County Jail send all of an inmate's medical
records when it transferred an inmate to Okanogan County Jail. However, during
10 CP at 3649. No. 71752-9-1/7
the term of the contract, Skagit County Jail developed a practice in which it only
transmitted records dealing with current problems that the jail deemed pertinent to
the inmate's management. When Skagit County Jail transferred Zamora to
Okanogan County Jail, it did not send the "Skagit County Multi-Purpose Request
Form[s]" that memorialized Zamora's three mental health requests and visits with
mental health professionals, as detailed above.11 One of those forms documented
the April 7, 2008 call made by Zamora's mother, requesting that Zamora receive
mental health assistance. Skagit County Jail did send a copy of Zamora's
medication log, however, which listed the Lamictal prescription. Otherwise, the
records that were transferred generally only reported Zamora's clavicle, shoulder
and back problems, and his request for pain medication.
When Zamora arrived at Okanogan County Jail, the booking corrections
officer asked him a series of questions. Those officers were trained to watch for
signs of mental illness or problems. They noted no behavioral issues exhibited by
Zamora during the booking process.
Based on Zamora's behavior and information transmitted by Skagit County
Jail, Okanogan County Jail classified Zamora as a minimum custody inmate and
housed him in "F module," a dormitory style unit for inmates without any special
needs or riskfactors.12 The Okanogan County Jail inspection records indicate that
Zamora did not display any unusual or inappropriate behavior while incarcerated
there.
11 CP at 3146-51. 12 CP at 3650. No. 71752-9-1/8
Inmates at Okanogan County Jail can request assistance or voice concern
through a "kite" system.13 Zamora never submitted a kite request asking to see a
mental health counselor or expressing any mental health issue or concern. No
other inmate submitted a kite request, or any other type of complaint regarding
Zamora.
According to the terms of its contract with Skagit County Jail, Okanogan
County Jail had the right to refuse an inmate. However, according to Noah
Stewart, the chief corrections deputy at the time of Zamora's incarceration, the jail
had only refused an inmate on one occasion due to a behavioral issue. Stewart
stated that Okanogan County Jail would not have accepted an inmate with a
serious psychiatric issue. But knowledge that an inmate saw a mental health
professional for a mental health concern would not keep the jail from accepting
that inmate. Stewart testified that had Skagit County Jail transferred the missing
mental records to Okanogan County Jail, Okanogan County Jail would still have
accepted Zamora. The jail would have monitored him and based its decision on
whether to continue housing him on his behavior at the jail. Zamora did not exhibit
any conduct, or make any statements suggesting that he presented a risk to
himself or others or that he had a significant mental health problem.
Zamora submitted two "kites" requesting treatment for his shoulder.14
Consequently, Kevin Mallory, a physician's assistant at the Okanogan County Jail,
performed a "med call" on Zamora on May 30, 2008.15 During that visit, Mallory
13 CP at 3650 14 CP at 3700. 15 CP at 3699, 3700. No. 71752-9-1/9
reviewed the medication log that Skagit County Jail had sent, along with other
Skagit County Jail records relating to Zamora's orthopedic issues. When Mallory
noticed on the medication log the prescription for Lamictal, he asked Zamora about
it. Zamora replied that he had not been taking it and did not wish to do so.
Zamora's response was consistent with the Skagit County Jail log, which
conveyed Zamora's refusal to take the medication. In fact, the only medication
Zamora was interested in taking was narcotic pain medication. During Mallory's
interaction with Zamora, Zamora did not display any behaviors indicative of a mood
disorder or any other mental health problems. Because Mallory believed Zamora
was engaged in drug seeking behavior, he only prescribed ibuprofen, and
discontinued Zamora's prescription for Lamictal.
Zamora subsequently submitted additional "kites" relating to shoulder pain,
nasal congestion, and digestive problems.16 He did not submit any request
regarding mental health care.
Zamora was released from Okanogan County Jail on August 2, 2008.
On August 5, 2008, three days after his release from Okanogan County Jail,
Dennise called 911, requesting that police remove Zamora from her residence
because he was disrupting the family. The responding officer arrested Zamora at
his parents' residence on an outstanding misdemeanor warrant forfailing to appear
in court. Before leaving the residence, Dennise advised the officer that Zamora
16 CP at 3701. No. 71752-9-1/10
was suffering from an undiagnosed and untreated mental illness and had been for
some time. The officer transported Zamora for booking at Skagit County Jail.
While waiting to be booked, Zamora was reportedly pounding on the walls
of the holding room. He was nevertheless "changed down with out [sic] incident"
and there is no evidence of additional behavioral problems.17
Zamora was released on his own recognizance on August 6, 2008.
Zamora never received a full evaluation by a psychologist or psychiatrist at
either jail.
Events Post-incarceration
That same day, on August 6, 2008, Zamora arrived by ambulance to a local
hospital emergency room, complaining of sudden onset of nausea, vomiting, and
diarrhea. Hospital staff noted that he appeared awake and cognizant of his
surroundings. Zamora was prescribed an anti-nausea medication and he was
released. Zamora did not manifest any symptoms of a mental health crisis.
On August 13, 2008, Skagit County police received a 911 hang-up
telephone call from Zamora's parents' home where Zamora was residing. A Skagit
County police officer responded to the residence and spoke with Zamora and his
mother, both of whom denied making the call. No further action was taken.
On August 18, 2008, a 911 caller reported that someone was riding a
motorcycle on state owned property in Alger, Washington. A Skagit County police
officer responded and contacted Zamora. The officer told Zamora that he was not
permitted to enter that area and that he was trespassing. Shortly after the
17 CP at 3563.
10 No. 71752-9-1/11
encounter, Zamora was involved in a motor vehicle accident on his parents'
property and was injured. As a result, Zamora was taken to a nearby hospital.
One of the doctors who examined him concluded that Zamora had adequate
decisional capacity to decline care and had no suicidal or homicidal ideations. The
doctor further noted that Zamora presented no imminent threat of harm to himself
or others. He concluded that there was no basis upon which to contact a
designated mental health professional for further evaluation of Zamora and that
Zamora did not meet the criteria for detaining for a psychiatric evaluation.
On September 2, 2008, Zamora committed the crimes that are issue.
Procedural History
Following this tragic incident, Zamora pleaded guilty to 18 charges.18 On
November 30, 2009, the trial court imposed a sentence of life without parole for
the murder charges and several hundred months for the other charges.
Binschus filed the present action in Snohomish County Superior Court on
September 6, 2011,19 He filed suit against DOC,20 Skagit 911, Skagit County, and
Okanogan County. Binschus alleged negligence on the part of the counties and
that the negligence was a proximate cause of the shooting and resulting deaths
and injuries to the victims.
Binschus argued the counties owed the victims a duty under two theories.
First, Binschus asserted that the counties had a special relationship with Zamora
18 Zamora was found not guilty by reason of insanity on two counts of aggravated murder. 19 The estate of one of the murdered victims and one of the injured victims are not parties to this lawsuit. 20 In July and August 2013, each of the plaintiffs entered into a settlement agreement with DOC. The trial court entered stipulated judgments with respect to each plaintiff.
11 No. 71752-9-1/12
that gave rise to a duty to protect the victims under the Restatement (Second) of
Torts §§ 315 and 319. Second, Binschus contended that the counties' actions
created a recognizable high degree of risk of harm that constituted misfeasance
under the Restatement (Second) of Torts § 302B.21
Skagit and Okanogan Counties moved for summary judgment on all claims
against them.22 Okanogan County moved for summary judgment on the theory
that it had no duty to third parties injured after Zamora's release based on its
alleged failure to identify, diagnose, and treat Zamora's mental illness. Skagit
County claimed that it had no duty to control Zamora after his release. Binschus
moved for partial summary judgment only on the issue of duty, contending that the
public duty doctrine did not apply to bar his claims. The trial court granted the
counties' summary judgment motions on the issues of duty and proximate cause.
Binschus appeals.
ANALYSIS Standard of Review
We review a trial court's summary judgment order de novo. Folsom v.
Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summary judgment is
proper when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Hertog, ex rel. S.A.H. v. City of Seattle.
21 Binschus also raised a claim of negligence against Skagit County for the actions of Deputy Terry Esskew, arguing that her actions constituted an affirmative act under the Restatement (Second) of Torts § 302B. The trial court found that no duty was imposed under this theory. It additionally ruled that even ifsuch duty had been imposed, it denied Skagit County's summary judgment motion on the issue of proximate cause. Binschus does not make a specific argument as to Deputy Esskew's alleged negligence on appeal and, thus, the court's decision as to Deputy Esskew is not pertinent to this appeal. 22 Skagit 911 also moved for summary judgment.
12 No. 71752-9-1/13
138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing Taggart v. State. 118 Wn.2d 195,
199, 822 P.2d 243 (1992); CR 56(c)).
The court must construe all facts and inferences in the light most favorable
to the nonmoving party. Hertog. 138 Wn.2d at 275 (citing Taggart. 118 Wn.2d at
199). "Questions of fact may be determined as a matter of law 'when reasonable
minds could reach but one conclusion.'" Owen v. Burlington N. & Santa Fe R.R.
Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005) (quoting Hartley v. State. 103
Wn.2d 768, 775, 698 P.2d 77 (1985)).
If the nonmoving party "'fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial,'" summary judgment is proper. Young v. Key
Pharms., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v.
Catrett. 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
To prevail on a claim of negligence, a party must prove the following
elements: (1) existence of a legal duty, (2) breach of that duty, (3) resulting injury,
and (4) proximate cause. Christensen v. Roval Sch. Dist. No. 160.156 Wn.2d 62,
66,124 P.3d 283 (2005). In the present case, only duty and causation are at issue.
13 No. 71752-9-1/14
Duty
It is well settled that the existence of a legal duty owed to the plaintiff is an
essential element in any negligence action. Petersen v. State. 100 Wn.2d 421,
425-26, 671 P.2d 230 (1983). Whether a given defendant owes a duty is generally
a question of law. Yong Tao v. Heng Bin Li. 140 Wn. App. 825, 833, 166 P.3d
1263, 1268 (2007). "But where duty depends on proof of certain facts, which may
be disputed, summary judgment is inappropriate." Sjogren v. Props, of the Pac.
N.W.. LLC. 118 Wn. App. 144, 148, 75 P.3d 592 (2003).
Binschus contends that pursuant to the Restatement (Second) of Torts §§
315 and 319, Skagit and Okanogan Counties had a "take charge" relationship with
Zamora that gave rise to a duty to guard against the foreseeable dangers posed
by Zamora's violent propensities. Specifically, Binschus asserts that the counties
had a duty to provide Zamora with a mental health evaluation and treatment
because they were aware of his dangerous propensities. For this claim, we hold
that Skagit County potentially owed a duty to the victims, and genuine issues of
material fact preclude summary judgment.
Generally, "our common law imposes no duty to prevent a third person from
causing physical injury to another." Sheikh v. Choe. 156 Wn.2d 441, 448, 128
P.3d 574 (2006). Section 315 of the Restatement (Second) of Torts carves out
one exception to this rule:23
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
23 This special relation exception also is an exception to the public duty doctrine. Hertog. 138 Wn.2d at 276 (quoting Taggart, 118 Wn.2d at 219 n.4).
14 No. 71752-9-1/15
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
The "take charge" relationship, as set forth in the Restatement (Second) of Torts
§ 319, is one subset of special relationships contemplated in § 315. Accordingly,
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.
Restatement (Second) of Torts § 319.
Once the "take charge" relationship is established, the actor "'has a duty to
take reasonable precautions to protect against reasonably foreseeable dangers
posed by the dangerous propensities of [the third party].'" Joyce v. State. Dep't of
Corr.. 155 Wn.2d 306, 310, 119 P.3d 825 (2005) (emphasis omitted) (quoting
Taggart. 118 Wn.2d at 217). Thus, the relevant threshold questions for purposes
of §§ 315 and 319 are whether the actor has taken charge of the third party24 and
whether the actor knows or should know of the danger posed by the third party.
Bishop v. Miche. 137 Wn.2d 518, 527, 973 P.2d 465 (1999).
At oral argument before this court, Skagit County conceded that while
Zamora was in custody at Skagit County Jail, the jail had a "take charge"
relationship with him. We accept this concession. Since Petersen first announced
that a special relationship exists between a state psychiatrist and his or her patient,
24 To determine whether an actor has taken charge of the third party, there must be a "'definite, established, and continuing relationship between the defendant and the third party.'" Taggart. 118 Wn.2d at 219 (quoting Honcoop v. State. 111 Wn.2d 182, 193,759 P.2d 1188 (1988)): see also Sheikh. 156 Wn.2d at 448-49: Hertog, 138 Wn.2d at 276.
15 No. 71752-9-1/16
100 Wn.2d at 428, Washington courts have broadened the scope of the "take
charge" relationship to exist between correction officers and offenders. See, e.g..
Taggart. 118 Wn.2d at 223-24; Hertog. 138 Wn.2d at 281; Bishop. 137 Wn.2d at
531. We consider the first relevant question satisfied as for Skagit and Okanogan
Counties.
The next question we examine, therefore, is whether the counties knew or
should have known of Zamora's violent propensities. We hold that material
questions of fact remain as to whether Skagit County knew or should have known
of Zamora's dangerous tendencies. The same, however, is not true for Okanogan
County. Evidence in the record indicates that Skagit County was likely aware that
Zamora had potentially dangerous and criminal inclinations.
Zamora had an extensive criminal history. By September 2008, he had
been arrested 21 times in Skagit County and incarcerated 11 times. Skagit County
Jail had a list of Zamora's criminal history at the time of his 2008 incarceration.
In addition, the record evinces that during the years preceding the
September 2008 tragedy, Zamora had several encounters with Skagit County
police whereby police officers became aware of Zamora's mental illness. On April
27, 2004, Skagit County police responded to Zamora's parents' residence, where
Zamora resided, after Zamora called DSHS indicating he was cutting himself.
Police officers responded and contacted Dennise, who informed them that Zamora
had previously cut himself. After the Skagit County officers were unable to locate
Zamora, Dennise contacted them, reporting that Zamora was at her residence,
was off his medications, but not harmed and not threatening suicide. The Skagit
16 No. 71752-9-1/17
County police incident report noted: "At this time we are aware that ISAAC
ZAMORA does have some mental problems and his mom will be monitoring him."25
Furthermore, in May 2007, Zamora called Skagit County police, concerned that
someone in his house "was out to get him."26 The police officer who spoke with
Zamora believed Zamora was intoxicated and that there was no threat to his well-
being.
Additionally, while at the Skagit County Jail, Zamora was incarcerated in the
C-Pod unit, known for inmates who had severe behavioral issues and mental
health issues, among other things. Dennise also informed the jail and the Skagit
County prosecutor that Zamora had severe and untreated mental health issues
and requested that he receive mental health treatment. She also made clear that
she and her husband were fearful of Zamora. Significantly, when mental health
professional Inslee visited Zamora at jail, she submitted a strongly worded
statement expressing concern regarding Zamora's mental health, noting his
"rageful thinking."27 Another mental health counselor, Maxwell, later made note of
Zamora's erratic and angry temperament and appearance, recommending that
Zamora continue taking "psych, meds."28
Finally, we note that on September 2, 2008, Zamora's name on the
computer screen at the 911 call center was tagged with a 220 alert code, which
indicated that Zamora had mental health issues and was unstable.
25 CP at 3551. 26 CP at 3552. 27 CP at 3685. 28 CP at 3687.
17 No. 71752-9-1/18
Given these numerous contacts between Zamora and Skagit County,
reasonable minds could conclude that Skagit County was aware of the risk posed
by Zamora's violent propensities. Summary judgment in Skagit County's favor was
inappropriate.
The record does not indicate that a material question of fact remained as to
whether Okanogan County was aware of Zamora's violent disposition. Nothing in
the record establishes Okanogan County knew or should have known of Zamora's
unstable mental health condition. Therefore, we affirm the trial court's decision to
summarily adjudicate the question of duty in favor of Okanogan County.
The counties contend that no duty can be imposed because any "take
charge" relationship terminated once the counties released Zamora from custody.
But this argument confuses the existence of a duty with the scope of the duty,
which is limited by the foreseeability of the danger to the victims. Christen v. Lee.
113 Wn.2d 479, 492, 780 P.2d 1307 (1989) ("The concept of foreseeability limits
the scope of the duty owed.").
"Once the theoretical duty exists, the question remains whether the injury
was reasonably foreseeable." Joyce. 155 Wn.2d at 315 (citing Taggart. 118Wn.2d
at 217). The plaintiff's harm must be reasonably perceived as within the general
field of danger that should have been anticipated. Christen. 113 Wn.2d at 492.
"'Foreseeability 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. 113 Wn.2d at 492). Here, it was within the jury's province to determine
whether the injuries to the victims were reasonably foreseeable.
18 No. 71752-9-1/19
Accordingly, viewing the facts in the light most favorable to Binschus, we
conclude that genuine issues of material fact preclude summary judgment on the
question of whether Skagit County owed a "take charge" duty to the victims.
Binschus next contends that the counties owed a duty to Zamora's victims
because their purportedly improper mental health evaluation and treatment of
Zamora "dramatically increased" the risk of harm to the victims.29 Binschus bases
this argument on the Restatement (Second) of Torts § 302B. We find that no such
duty is compelled by § 302B.
The Restatement (Second) of Torts § 302B provides: "An act or an omission
may be negligent if the actor realizes or should realize that it involves an
unreasonable risk of harm to another through the conduct of the other or a third
person which is intended to cause harm, even though such conduct is criminal."
The duty to protect victims against a third party's criminal act may be imposed
'"where the actor's own affirmative act has created or exposed the other to a
recognizable high degree of risk of harm through such misconduct.'" Robb v. City
of Seattle, 176 Wn.2d 427, 434, 295 P.3d 212 (2013) (emphasis omitted) (quoting
Restatement § 302B cmt. e).30
29 Appellant's Br. at 33. 30 Comment e provides, in pertinent part: There are, however, situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where . . . the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account. Restatement (Second) of Torts § 302B (emphasis added).
19 No. 71752-9-1/20
In Parilla v. King County, we held that § 302B can impose a duty of care
against a third party's criminal acts even where no special relationship existed.
138 Wn. App. 427, 439, 157 P.3d 879 (2007); see also § 302B cmt. e. In Parilla.
a county bus driver exited a bus on a public street while the engine was running
and when a passenger was still on board. Parilla. 138 Wn. App. at 431. When the
driver re-entered the bus, he observed the passenger "exhibiting bizarre behavior."
Parilla. 138 Wn. App. at 431. The driver again exited the bus with the engine still
running. Parilla. 138 Wn. App. at 431. The passenger moved into the driver's seat
and drove the bus until it collided with several vehicles. Parilla. 138 Wn. App. at
431. We held that under those circumstances, the driver's affirmative actions
created a high degree of risk that a reasonable person would have foreseen and,
thus, pursuant to § 302B comment e, the county owed a duty of care to protect the
victims of the collision. Parilla. 138 Wn. App. at 438-41.
In Robb. the Supreme Court reaffirmed that "Restatement § 302B may
create an independent duty to protect against the criminal acts of a third party
where the actor's own affirmative act creates or exposes another to the
recognizable high degree of risk of harm." 176 Wn.2d at 429-30. In that case, two
police officers initiated a Terry31 stop of Behre and his companion on suspicion of
burglary. Robb. 176 Wn.2d at 430. During the stop, the officers noticed several
shotgun shells on the ground but did not question the suspects or pick up the
shells. Robb. 176 Wn.2d at 430. The officers released Behre and the other
suspect. Robb. 176 Wn.2d at 430. After Behre walked away, he returned to the
31 Terry v. Ohio. 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
20 No. 71752-9-1/21
scene to grab the shells and then shot and killed Robb. Robb. 176 Wn.2d at 430.
The officers had encountered Behre prior to the shooting and were aware of his
strange behavior during the days leading up to the shooting. Robb, 176 Wn.2d at
431. Four days before the shooting, Behre had been transported to Harborview
Medical Center for an involuntary mental health assessment and then had been
released. Robb. 176 Wn.2d at 431.
Robb's widow sued the city, claiming that the officers owed a duty to Robb
under § 302B. Robb. 176 Wn.2d at 429. Our Supreme Court distinguished its
case from Parilla. finding that the officer's failure to pick up the shells was an
omission, not an affirmative act like that in Parilla. Robb. 176 Wn.2d at 436-38.
The court held that a duty may arise under § 302B only where the actor's conduct
constitutes misfeasance (an affirmative act), rather than nonfeasance (an
omission). Robb. 176 Wn.2d at 439-40. The court explained that an affirmative
act—or misfeasance—involves the creation of a new risk of harm to plaintiffs.
Robb. 176 Wn.2d at 437. On the other hand, an omission—or nonfeasance—
merely makes the risk of harm no worse. Robb. 176 Wn.2d at 437. The court held
that the officer's failure to pick up the shotgun shells was an omission, not an
affirmative act, which was insufficient to impose a duty under § 302B. Robb. 176
Wn.2d at 430, 437-39.
More recently, in Washburn v. City of Federal Way, the Supreme Court held
that a police officer created a new, affirmative risk to a murder victim's safety when
the officer improperly served an antiharassment order to the subject of the order
while the subject was home alone with the victim. 178 Wn.2d 732, 759-60, 310
21 No. 71752-9-1/22
P.3d 1275 (2013). The court found that the officer knew or should have known
that the subject would react violently when he received the order, and knew or
should have known that after he served the order, he left the subject home alone
with victim. Washburn. 178 Wn.2d at 759-60. Binschus contends that, unlike the
nonfeasance committed by the officers in Robb, and similar to the misfeasance in
Washburn, here, the counties engaged in misfeasance by increasing the risk of
harm when they failed to "properly evaluate and treat" Zamora.32 Binschus
supports this contention by pointing to evidence that two of Skagit County Jail's
mental health counselors saw Zamora in connection with his mental health
condition but did not offer an appropriate mental health evaluation. As for
Okanagan County, Binschus argues that although Mallory saw Zamora, he did not
properly evaluate his mental health condition even though he knew that Skagit
County Jail had prescribed Binschus with Lamictal. Binschus also points to
evidence demonstrating the counties' awareness of Zamora's deteriorating mental
health.33 Binschus references the opinion of Dr. Hegyvary, who testified that had
the counties evaluated Zamora, they would have identified his psychosis.
In an effort to bring his claims within the scope of § 302B, Binschus
characterizes the counties' conduct as an improper evaluation and treatment,
which, he contends, constitutes affirmative acts or misfeasance. But Binschus's
attempt to frame the issue in this way is unconvincing because here, there simply
32 Appellant's Br. at 39. 33 Binschus references the following in support of his argument: Zamora's lengthy criminal record, his past involuntary treatment, his mother's callsfortreatment, his status on Skagit County's 911 call center's computer, his housing in the C-Pod at Skagit County Jail, his judgment and sentence, and his behavior in both jails. Appellant's Br. at 37; Appellant's Reply Br. at 25.
22 No. 71752-9-1/23
were no affirmative acts. Rather, the counties' failure to evaluate Zamora and
provide mental health treatment was an omission.
Furthermore, as established in Robb, § 302B only applies if the entity's
affirmative act creates a new recognizable high degree of risk of harm to the
plaintiffs. Like the officers in Robb. the counties did not create a new risk. Although
it is possible that the jail medical staff could have mitigated the risk posed by
Zamora's deteriorating mental health, this is not sufficient to justify an imposition
of duty under § 302B. And Binschus cites to no evidence demonstrating that the
visits or the prescription of Lamictal created a new recognizable risk or
exacerbated the risk that already existed. At best, it purports to show that the
counties were aware of Zamora's mental health condition or would have been able
to identify his condition had they examined him properly. Nevertheless, the
evidence does not establish that the counties' failure to evaluate Zamora more
thoroughly or provide treatment constitutes an affirmative act or misfeasance.
Instead, the counties committed nonfeasance, which does not give rise to liability
under § 302B.
Proximate Cause
Binschus contends that summary adjudication of his claims against the
counties was improper because a jury could reasonably find that the counties
proximatelycaused the victims' injuries because of their failure to properly evaluate
and treat Zamora during his incarceration. We agree.
Proximate cause contains two separate elements: cause in fact and legal
causation. Hartley. 103 Wn.2d at 777. Cause in fact, is, in addition to legal
23 No. 71752-9-1/24
causation, an element of proximate cause. It "refers to 'the physical connection
between an act and an injury.'" M.H. v. Corp. of Catholic Archbishop of Seattle.
162 Wn. App. 183, 194, 252 P.3d 914 (2011) (internal quotation marks omitted)
(quoting Ang v. Martin. 154 Wn.2d 477, 482, 114 P.3d 637 (2005)). Cause in fact
is usually a question for the jury, but it may be decided as a matter of law if the
causal connection between the act and the injury is "'so speculative and indirect
that reasonable minds could not differ.'" Moore v. Hagge, 158 Wn. App. 137,148,
241 P.3d 787 (2010) (quoting Dohertv v. Mun. of Metro. Seattle. 83 Wn. App. 464,
469, 921 P.2d 1098 (1996)). Causation is speculative "'when, from a consideration
of all the facts, it is as likely that it happened from one cause as another.'" Moore.
158 Wn. App. at 148 (internal quotation marks omitted) (quoting Jankelson v.
Sisters of Charity of House of Providence in Territory of Wash.. 17 Wn.2d 631,
643, 136 P.2d 720 (1943)).
Binschus asserts that the counties' negligent failure to evaluate and treat
Zamora's mental illness was the cause in fact of Zamora's psychotic outburst on
September 2, 2008. To support this contention, Binschus relies heavily on expert
witness Dr. Hegyvary's declaration:
[H]ad Zamora been subjected to a mental health evaluation been [sic] during his time at either Skagit County Jail or Okanogan County Jail, the examiner would have discovered Mr. Zamora's psychosis and begun the process of formulating a diagnosis. At this point the standard of care required administration of one or more of the antipsychotic medications.1341
34 CP at 2540-41.
24 No. 71752-9-1/25
Dr. Hegyvary also opined that for patients suffering with schizophrenia,
"[m]ore often than not, skilled persuasion is all that is required."35 He also stated
that the jails could have provided long-acting treatment to Zamora that would have
been effective long after his release:
Mr. Zamora may have had difficulty complying with an oral regimen of antipsychotic medications requiring daily administration, but there are long-acting, injectable medications for use is [sic] these situations. Haloperidol Decanoate is one such antipsychotic commonly used in the treatment of schizophrenia and acute psychotic states. The medication is a long-acting injection given only once every four weeks. Because the medication is administered directly by the psychiatrist, only once per month, compliance can be documented and is virtually assured. The positive, therapeutic effects of the Haloperidol Decanoate last for longer than four weeks, thus, even if an injection was not given at the four-week mark the medication would continue to work to subdue or eliminate psychosis for up to six weeks. Another such medication is Risperdal Consta (risperidone), which is a depot injection administered once every two weeks. It is likely that either of these medications would have been effective in reducing or completely eliminating Mr. Zamora's psychosis, including his hallucinations and delusions.1361
Dr. Hegyvaryalso concluded that had either counties provided Zamora with
a proper mental health evaluation, a mental health providerwould have been able
to identify his psychosis and place him on a treatment plan that would include a
long-acting antipsychotic medication. Had the counties done so, Dr. Hegyvary
opined, Zamora would not have been in a psychoticstate on September 2, leading
to the victims' tragic deaths and injuries.
35 CP at 2544. 36 CP at 2544-45.
25 No. 71752-9-1/26
Based on this evidence, we conclude that Binschus has demonstrated that
material questions of fact exist that, but for the counties' alleged negligence,
Zamora would not have engaged in the violent rampage.37
We hold that summary judgment should not have been granted in this case.
We reverse the trial court's summary judgment order and remand for further
proceedings consistent with this opinion.
IvSoK^ "1
WE CONCUR:
**s / -^ o
37 Binschus additionally argues that a county official could have sought involuntary treatment for Zamora under the involuntary treatment act (ITA), ch. 71.05 RCW. Binschus did not argue to the trial court that Zamora could have or should have been detained beyond his release date ofAugust 2, 2008, under the ITA. Binschus waives this argument by raising it for the first time on appeal. State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995); see also RAP 2.5(a) ("The appellate court may refuse to review any claim of error which was not raised in the trial court."). Thus, we decline to reach its merits.