Savage v. State

899 P.2d 1270, 127 Wash. 2d 434

Opinions

Utter, J.

Footnotes

•

*

This court granted review of a Court of Appeals decision reversing a trial court ruling barring the State from asserting the qualified immunity of its parole officer in a suit alleging negligent supervision of a parolee. The State cross-petitions the Court of Appeals’ conclusion the State was not entitled to instruct the jury that it could consider the State’s financial resources in deciding the reasonableness of the State’s actions.

We reverse the Court of Appeals’ holding that the qualified personal immunity of parole officers extends to the State; we affirm its conclusion that the trial court did not err in refusing to instruct the jury on the State’s available resources and its resource allocation policy.

The issues arise from the State’s allegedly negligent parole supervision of Marvin Schandel, a felon with a history of sexual assaults and violence. Schandel had been in and out of prison since 1967, having been convicted on separate occasions of carnal knowledge; raping and assaulting a 13-year-old; and of assaulting 11- and 12-year-old girls. Plaintiffs Ex. 2. He also had a conviction for assault with a deadly weapon. Plaintiffs Ex. 12.

Schandel returned to prison several times for parole violations. Clerk’s Papers at 229; Plaintiffs Ex. 9. In 1985, he was again paroled under conditions that he not consume liquor or illegal drugs, and that he enter and complete mental health counseling as soon as possible upon release. Plaintiffs Exs. 15, 16. He was scheduled to be released to the supervision of parole officer William Allen. Report of Proceedings (Feb. 13, 1992) at 88. Before Schandel could be released, Allen took a leave of absence and his caseload was turned over to parole officer Tawndra Schwamberg. Allen returned to supervise Schandel shortly before he raped Savage.¹ Parole officers Schwamberg and Allen testified that during the time they were responsible for supervising Schandel, their case load was very heavy; each was responsible for monitoring over 100 parolees. Report of Proceedings, vol. II (Feb. 13, 1992) at 97.

Savage sued the State of Washington for improper supervision of Martin Schandel. Neither of the two parole officers involved in the supervision of Schandel was sued individually.

The case was tried to a jury and resulted in a verdict in the Plaintiffs favor. Prior to trial, the State moved for summary judgment based on its asserted immunity from suit, which was denied. Clerk’s Papers at 337. At trial, the court granted Plaintiffs motion in limine, precluding the State from presenting evidence or arguing that it shared the qualified immunity of its parole officers. Report of Proceedings (Feb. 11, 1992) at 34-36. The trial court refused the State’s proposed jury instruction regarding the State’s funding limitations. Clerk’s Papers at 641. A verdict in Plaintiff’s favor was entered on April 8, 1992.

The Court of Appeals reversed on the ground the qualified personal immunity of the parole officers shielded the State from liability. Petitioner seeks review of that decision. The Court of Appeals also decided that "[wjhile the availability of funding may be relevant to the reasonableness of the officers’ actions,” the State was not entitled to a jury instruction on this issue. Savage v. State, 72 Wn. App. 483, 495, 864 P.2d 1009 (1994). The appellate court refused to consider the State’s constitutional argument because it was not raised below. Savage, 72 Wn. App. at 495. Respondent cross-petitions from the Court of Appeals’ holding that the trial court did not err in refusing to provide the jury an instruction that it could consider the funding limitations of the State.

I

Qualified Personal Immunity

In Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992), we held that parole officers have qualified immunity for allegedly negligent supervision of parolees who harm third parties. An officer is entitled to such immunity if his or her actions are in furtherance of a statutory duty, are in substantial compliance with the directives of superiors, and respect relevant regulatory guidelines. Taggart, 118 Wn.2d at 216. That case did not address the question presented here, whether that personal qualified immunity may be asserted by the State when suit is brought against it for negligence under a respondeat superior theory of liability.²

A

The Court of Appeals’ Opinion

The Court of Appeals, considering this issue, held that the qualified personal immunity granted to parole officers in Taggart extended to the State, making it immune from suit brought under a respondeat superior theory of liability. Petitioner maintains the Court of Appeals’ decision conflicts with basic principles of agency law as interpreted by this court, ignores the policy analysis this court has established in recent cases to govern whether the immunity of a state agent extends to the State, and contravenes the clear legislative mandate abrogating sovereign immunity.

1. Agency Law

The Court of Appeals based its holding in part on its misapprehension that under agency law, "the State, like any other employer, is entitled to claim the protection of an employee’s immunity where its liability is based on a respondeat superior theory.” Savage, 72 Wn. App. at 490. We adhere to the contrary view, as we recently explained in Babcock v. State, 116 Wn.2d 596, 620, 809 P.2d 143 (1991):³

An agent’s immunity from civil liability generally does not establish a defense for the principal. Restatement (Second) of Agency § 217 (1958). Accordingly, the immunities of governmental officials do not shield the governments which employ them from tort liability, even when liability is predicated upon respondeat superior.

(Citation omitted. Italics ours.) The Restatement section upon which Babcock relies sets forth the general rule as follows:

§ 217. Where Principal or Agent has Immunity or Privilege

In an action against a principal based on the conduct of a servant in the course of employment:

(a) The principal has a defense if:

(i) he had an immunity from liability to the person harmed, or

(ii) he had a delegable privilege so to act, or

(iii) the agent had a privilege which he properly exercised on his principal’s behalf, or

(iv) the agent did not fall below the duty of care owed by the principal to the third person.

(b) The principal has no defense because of the fact that:

(i) he had a non-delegable privilege to do the act, or

(ii) the agent had an immunity from civil liability as to the act.

(Italics ours.) Restatement (Second) op Agency § 217 (1958). The commentary explains:

Immunities, unlike privileges, are not delegable and are available as a defense only to persons who have them. . . . On the other hand, where the principal directs an agent to act, or the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal. Thus, where a servant in the scope of employment negligently runs over his wife, an action against the master by the injured wife is not barred. This result is in accordance with the rule stated in this Section and is the rule adopted in most of the states.

(Italics ours.) Restatement (Second) of Agency § 217 cmt. b (1958). See also Restatement (Second) op Torts § 895D cmt. j (1979) (explaining that the immunity of a public officer is not necessarily coterminous with that of the government).

2. Precedent

The Court of Appeals also relied for its holding on a series of cases in which the immunity of government employees was extended to the government. Savage v. State, 72 Wn. App. 483, 488-89, 491, 864 P.2d 1009, review granted, 124 Wn.2d 1017 (1994) (citing Creelman v. Svenning, 67 Wn.2d 882, 410 P.2d 606 (1966)); Plotkin v. Department of Corrections, 64 Wn. App. 373, 826 P.2d 221, review denied, 119 Wn.2d 1022 (1992); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 829 P.2d 746 (1992), cert. denied, 113 S. Ct. 1044 (1993); Frost v. City of Walla Walla, 106 Wn.2d 669, 724 P.2d 1017 (1986); Guffey v. State, 103 Wn.2d 144, 690 P.2d 1163 (1984).

The appellate court’s analysis in this case resembles that recently rejected by this court in Lutheran. There, we admonished against conclusory holdings which rely on ostensibly controlling cases while eschewing the "detailed policy-oriented factual inquiry which ... is necessary to decide the immunity question.” Lutheran, 119 Wn.2d at 100.

Two of the cases upon which the Court of Appeals relied are inapposite because they concern quasi-judicial immunity, not the personal qualified immunity at issue here. See Creelman v. Svenning, 67 Wn.2d 882 (County and State are immune from liability for malicious prosecution) and Plotkin v. Department of Corrections, 64 Wn. App. 373 (parole board’s quasi-judicial immunity for release decisions extends to the State).

Quasi-judicial immunity and personal qualified immunity are designed to serve different functions. The former "attaches to persons or entities who perform functions that are so comparable to those performed by judges that it is felt they should share the judge’s absolute immunity while carrying out those functions.” Lutheran, 119 Wn.2d at 99.

Quasi-judicial immunity is designed to protect the government, not the individual employee, from suit.

The doctrine of exemption of judicial and quasi-judicial officers (the prosecuting attorney comes within the second classification) is founded upon a sound public policy, not for the protection of the officers, but for the protection of the public, and to insure active and independent action of the officers charged with the prosecution of crime, for the protection of life and property.

Anderson v. Manley, 181 Wash. 327, 331, 43 P.2d 39 (1935); see also Taggart v. State, 118 Wn.2d 195, 203, 822 P.2d 243 (1992) (the purpose of judicial immunity is not to protect judges as individuals but to safeguard the independence of the judiciary) (citing Adkins v. Clark County, 105 Wn.2d 675, 677, 717 P.2d 275 (1986)).

By contrast, personal qualified immunity, such as is granted to parole officers and caseworkers, is intended to protect the individual from the unduly inhibiting effect the fear of personal liability would have on the perfor manee of his or her professional obligations. See Babcock v. State, 116 Wn.2d 596, 616-19, 809 P.2d 143 (1991); Taggart, 118 Wn.2d at 216.

It follows from the distinct purposes the two immunities serve that the extension of quasi-judicial immunity from the agent to the .State does not compel such an extension where qualified personal immunity is at issue.

The Court of Appeals’ reliance on Lutheran is misplaced for precisely this reason. There, we admonished against even the extension of quasi-judicial immunity from one context to another without an analysis of the policies implicated in each context. If it is improper to extend quasi-judicial immunity in this manner, it follows with even greater force that two different types of immunity should not be treated as identical without regard to the circumstances in which they operate.

Two of the other cases upon which the Court of Appeals relied, Frost v. City of Walla Walla, 106 Wn.2d 669 and Guffey v. State, 103 Wn.2d 144, are not sound authority for the extension of qualified immunity from the agent to the State because they arrive at their holdings in a manner which fails to engage the policy analysis the Lutheran court requires for deciding the question properly.

Thus, in Frost the court extended the immunity of police officers to their employing jurisdiction. That decision imported the policy underlying quasi-judicial immunity to the interpretation of a statute granting only a qualified immunity to certain law enforcement officers for actions which are neither judicial nor quasi-judicial, the seizing and impounding of vehicles under the statute. See Frost, 106 Wn.2d at 673.⁴

Similarly, in Guffey this court held that the qualified immunity of police officers extends to the State when based on respondeat superior. Guffey is not controlling for several reasons. First, it is based on a misapprehension about a general agency principle which was overruled by a more recent case.⁵ Babcock, 116 Wn.2d at 620. Second, Guffey relied on an inapposite case, Nyman v. MacRae Bros. Constr. Co., 69 Wn.2d 285, 287, 418 P.2d 253 (1966), for its holding the State enjoys the same immunity as a police officer. Nyman involved private parties, not government entities. The opinion moreover, relies on Restatement of Torts § 883 cmt. b, illus. 4 (1939) and Restatement (Second) of Agency § 217B(2) (1958), which do not support the result it reaches. Guffey, 103 Wn.2d at 153. Finally, Guffey does not address, let alone discuss, how its holding can be reconciled with the abolition of sovereign immunity in RCW 4.92.090.

The Court of Appeals recognized that Babcock v. State, 116 Wn.2d 596, supports a different result from the one it reached on the question of whether the State may assert the qualified immunity of its officers. The court declined to follow Babcock, however, because the cases just cited reached a different result, and because Babcock relied on case law from other jurisdictions. See Savage v. State, 72 Wn. App. at 490 n.6.

We cannot agree with the court’s basis for distinguishing Babcock from this case. Babcock granted Department of Social and Health Services (DSHS) caseworkers qualified immunity but declined to extend this immunity to the State on the ground to do so would "deprive those wronged by DSHS’s actions of a remedy which the Legislature contemplated they would have.” Babcock, 116 Wn.2d at 620.

The Court of Appeals distinguished Babcock on the ground the result in that case was compelled by a provision in the statute at issue, RCW 26.44.060(3), which provides that nothing in the chapter shall be construed to abridge or supersede the remedies provided by the legislative abrogation of sovereign immunity. Savage, 72 Wn. App. at 490 n.6 (citing Babcock, 116 Wn.2d at 620). As no such provision exists in this case, the Court of Appeals concluded the Legislature must not have intended RCW 4.92.090 to apply.

What the court appears to have overlooked is that in Babcock the provision reaffirming the abolition of sovereign immunity was included because another provision in the same statute, RCW 26.44.056(3), immunized caseworkers from liability for the good faith placement of children into protective custody. As Petitioner correctly points out, such a provision is unnecessary in this case because the Legislature has granted no immunity to parole officers in the first instance.

In addition, the Court of Appeals’ holding on the immunity issue is based on a premise we cannot sustain: that the immunity of a government agent will be extended to the State unless expressly prohibited by the Legislature.⁶ Savage, 72 Wn. App. at 490. That conclusion simply cannot be reconciled with the legislative abrogation of sovereign immunity. That abrogation would be pointless if the Legislature were required, in order to give it effect, to reiterate it at every occasion in which it might apply. There is no basis for treating RCW 4.92.090 as a nullity, particularly as it is one of the broadest waivers of sovereign immunity in the country. See Comment, Aboli tion of Sovereign Immunity in Washington, 36 Wash. L. Rev. 312, 313 (1961).

B

The Extension of Qualified Personal Immunity to the State

The proper starting point for a discussion of whether the State is immune for the qualifiedly immune acts of its officers must begin with the legislative abrogation of sovereign immunity.

Article II, § 26 of the Washington State Constitution provides: "[t]he legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” In 1961, the Legislature waived the State’s sovereign immunity from civil liability. Laws of 1961, ch. 136, § 1 (codified as RCW 4.92.090). As subsequently amended, that section provides:

The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

This provision operates to make the State presumptively liable in all instances in which the Legislature has not indicated otherwise.

Quite apart from the legislative mandate abrogating sovereign immunity, the different functions personal and governmental immunity are designed to serve support maintaining state liability in this context, even where the agent enjoys qualified personal immunity. One court has explained the difference as follows:

[T]he fundamental reasons for the two immunities differ; for the officer it is to encourage unrestrained execution of responsibility, while for the sovereign it is to prevent judicial scrutiny of basic policies formulated by coordinate branches of government. To insulate the Government from liability for the inevitable mishaps which will occur when its employees perform their functions without fear of liability not only is unjust, but also serves no purpose for which sovereign immunity need exist.

Downs v. United States, 382 F. Supp. 713, 750 (M.D. Term. 1974) (in a Federal Tort Claims Act case it was unnecessary to decide whether government agents were immune, because the government would not be immune even if they were), rev’d on other grounds, 522 F.2d 990 (6th Cir. 1975) ; see also Lutheran Day Care v. Snohomish County, 119 Wn.2d at 108. The Restatement (Second) of Torts recognizes this notion:

With respect to some government functions, the threat of individual liability would have a devasting [sic] effect, while the threat of governmental liability would not significantly impair performance.

Restatement (Second) of Torts § 895D cmt. j, at 420 (1979).

A fact and policy specific inquiry also suggests the rationale underlying the grant of qualified personal immunity to parole officers does not apply with equal force to the State. Parole officers supervising parolees are called upon to make difficult decisions under difficult circumstances. Taggart v. State, 118 Wn.2d 195, 215, 822 P.2d 243 (1992). Given these conditions, the prospect of personal liability may reasonably be expected to have an unduly inhibiting effect on the performance of their professional duties.

As was the case in Babcock v. State, 116 Wn.2d 596, 616-19, 809 P.2d 143 (1991), the same cannot be said about state liability. On the contrary, maintaining the potential of state liability, as established in ROW 4.92, can be expected to have the salutary effect of providing the State an incentive to ensure that reasonable care is used in fashioning guidelines and procedures for the supervision of parolees.

This concern is particularly acute given our recognition that "the State has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees.” Taggart, 118 Wn.2d at 217. We have also stated that "because of the dangers violent parolees present, adequate supervision must be provided.” Taggart, 118 Wn.2d at 215. In this regard, Amicus Washington Defense Trial Lawyers has submitted empirical data establishing that parolees are dangerous and pose a high risk of recidivism. See Br. of Amicus Curiae Washington Defense Trial Lawyers, app. A (Washington State Department of Corrections Recidivism Briefing Paper No. 5 (Feb. 1994)); Criminal Justice Inst., Inc., The Corrections Yearbook (1993), at 14-15.

In sum, given the legislative mandate abrogating sovereign immunity, the different purposes personal and government immunity are designed to serve, and the policy concerns just discussed, extending the qualified personal immunity of parole officers to the State would be not only judicially unwarranted but normatively unwise. Government liability, combined with qualified personal immunity for officers, is better suited to accommodate the concerns with which tort law is ultimately concerned. The benefits of maintaining this dichotomy in the liability structure have been identified by one commentator:

exclusive governmental liability may have advantages from a deterrence point of view. By encouraging higher standards of care in the selection, training, equipment, and supervision of personnel, such a system can have at least as positive an effect on governmental performance as one based upon liability of the individual official. It would also protect the official from any paralyzing threat of direct personal liability, thus presumably improving morale and effectiveness.

(Footnote omitted.) George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L. Rev. 1175 (1977).

For the reasons just stated, the Court of Appeals’ holding that the personal qualified immunity of parole officers runs to the State is reversed.

II

The State’s Financial Resource Instruction

The State cross-petitions from the Court of Appeals’ holding that the trial court did not err in refusing to instruct the jury that it could consider the State’s financial resources.⁷

The State proposed the jury be instructed that in determining whether the State had acted reasonably the jury could consider the State’s financial resources. Instruction 13 read:

In determining whether the defendant’s acts or failure to act were reasonable you may take into account the defendant’s available resources and its resource allocation policy.

Clerk’s Papers at 641.

The trial court denied the instruction, and the Court of Appeals affirmed, on the ground RCW 4.92.090 specifies the State shall be liable in the same manner as a private person and corporation, and on the ground the State cited no authority for the proposition a private person or corporation is entitled to have the jury consider its financial circumstance in evaluating the reasonableness of its acts. Savage, 72 Wn. App. at 495.

We sustain the result the Court of Appeals reached in this case because the State did not present evidence about its "available resources” or its "resource allocation policy.” The only evidence relating to this issue was the testimony of parole officer Tawndra Schwamberg that the State did not have the funds to randomly test parolees on a routine basis for drug and alcohol use. Report of Proceedings (Feb. 14, 1992) at 89. A trial court is required to submit instructions to a jury on a theory of the case only where there is substantial evidence to support the theory. Cooper’s Mobile Homes, Inc. v. Simmons, 94 Wn.2d 321, 327, 617 P.2d 415 (1980). The supporting facts for a theory and instruction must consist of more than speculation and conjecture. Board of Regents of UW v. Frederick & Nelson, 90 Wn.2d 82, 86, 579 P.2d 346 (1978).

The Court of Appeals’ holding that the qualified personal immunity of parole officers extends to the State is reversed; its holding that the trial court did not err in refusing to instruct the jury on the State’s available resources and its resource allocation policy is affirmed.

Dolliver, Smith, Johnson, Alexander, and Talmadge, JJ., concur.

Judge Robert F. Utter is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a) (amend. 38).

1

Judgment and Sentence (rape in the second degree); Plaintiffs Ex. 21.

2

The State was sued under a respondeat superior theory and for its own negligence. That the State may be sued for its own independent acts of negligence is not here challenged, nor is it in question. See RCW 4.92.090; Babcock v. State, 116 Wn.2d 596, 621, 809 P.2d 143 (1991). The jury verdict in this case does not indicate to what extent the State was found liable for its own acts.

3

Impliedly overruling a contrary statement in Guffey v. State, 103 Wn.2d 144, 690 P.2d 1163 (1984).

4

The tendency to confuse various forms of immunity is manifest also in the context of discretionary immunity. See Taggart, 118 Wn.2d at 209 n.3 (citing Marie Aglion, Comment, Washington’s Discretionary Immunity Doctrine and Negligent Early Release Decisions: Parole and Work Release, 65 Wash. L. Rev. 619 (1990) (critically discussing Noonan v. State, 53 Wn. App. 558, 769 P.2d 313, review denied, 112 Wn.2d 1027 (1989)); David P. Marcus, Comment, Governmental Immunity and the Release of Dangerous Inmates from State Institutions: Can the State Get Away with Murder?, 33 Buff. L. Rev. 491 (1984) (arguing that quasi-judicial immunity, not discretionary immunity, provides the proper basis for immunity)).

5

Compare Guffey, 103 Wn.2d at 153 ("there can be no liability as a master unless the servant is liable”) with Babcock, 116 Wn.2d at 620 ("An agent’s immunity from civil liability generally does not establish a defense for the principal”).

6

"Thus, where the Legislature has not spoken, our courts have held that the State, like any other employer, is entitled to claim the protection of an employee’s immunity where its liability is based on a respondeat superior theory.” Savage, 72 Wn. App. at 490.

7

The State argues that the denial of the instruction implicates the separation of powers doctrine. As did the Court of Appeals, we decline to reach the argument because it was made for the first time on appeal. See Harris v. Department of Labor & Indus., 120 Wn.2d 461, 481, 843 P.2d 1056 (1993); Savage, 72 Wn. App. at 495 n.9.