Whitehall v. King County

167 P.3d 1184, 140 Wash. App. 761
CourtCourt of Appeals of Washington
DecidedJuly 23, 2007
DocketNo. 58854-1-I
StatusPublished
Cited by5 cases

This text of 167 P.3d 1184 (Whitehall v. King County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitehall v. King County, 167 P.3d 1184, 140 Wash. App. 761 (Wash. Ct. App. 2007).

Opinion

[763]*763¶1

Baker, J.

Serena Whitehall sued King County (County), asserting that it negligently failed to properly supervise a misdemeanant who caused her serious injuries while on probation. Whitehall appeals the trial court’s grant of summary judgment to the County. We affirm.

I

¶2 Kelly Vomenici participated in the staged robbery of a convenience store, which netted less than $250. A friend of Vomenici’s had flashed an unloaded gun so that it would appear on the store’s security cameras that the clerk, who participated in the scheme, had been forced to hand over the money.

¶3 Vomenici pleaded guilty to third degree theft. The prosecutor’s understanding of Vomenici’s criminal history showed that Vomenici had one adult misdemeanor for DUI (driving under the influence) and two juvenile misdemeanors: one for fourth degree assault and one for possession of alcohol. On October 27, 2000, the court sentenced Vomenici to 12 months’ probation and ordered him to perform 120 hours of community service. The court also ordered him to have no contact with his accomplices, commit no criminal offenses, and pay offense-related costs.

¶4 Vomenici reported to the Department of Corrections (DOC) the day he was sentenced. He signed the department’s standardized form containing general instructions for probationers. Approximately two weeks after Vomenici was sentenced, a copy of his judgment and sentence was received by King County District Court Probation Services Division. By the terms of a contract between the DOC and the County, supervision of Vomenici passed to the County upon receipt of the judgment and sentence.

[764]*764¶5 During the next year while Vomenici was under the County’s probation supervision, he regularly reported to his probation officers and made progress on his community service obligation. He had no reported new arrests or convictions, but because he made no progress in paying his financial obligations, he agreed to a seven month extension of his probation.

¶6 The level of supervision followed by the County’s probation department for a misdemeanant probationer such as Vomenici did not include home visitations or field investigations, and none were performed. Vomenici’s probation officers observed no behavior that raised any concern that Vomenici was likely to cause harm or to commit acts of violence against others.

¶7 In October 2001, Vomenici’s girl friend, Jessica Gravis, told him that she had been beaten up by one Nick Has-kins. Vomenici was determined to exact revenge on Has-kins. His first thought was to beat up Haskins in return. When he failed to find Haskins, Vomenici settled on a plan to blow up Haskins’ car with an illegal firework he had purchased. The firework he intended to use was approximately four to five inches in length and a bit less in diameter than a toilet paper roll.

¶8 On October 13, Vomenici drove past the trailer where Haskins lived with Serena Whitehall. There was no car in the driveway, but Vomenici was determined to do something to express his displeasure with Haskins. Seeing that the lights in the trailer were off and the blinds were down, he decided nobody was home. He lit the fuse on the explosive and placed it on the doorknob, intending to blow the door off its hinges. He got back into his car and drove away before the device exploded.

¶9 Vomenici was mistaken in his assumption that the trailer was unoccupied. Serena Whitehall and her young daughter, Amber, were inside the trailer. Whitehall saw Vomenici walking up the driveway. As she watched, Vomenici came to the door, then ran off, stopping once to look back.

[765]*765¶10 Whitehall opened the door, and the explosive Vomenici had placed on the doorknob fell to the floor of the porch. She picked it up, intending to throw it away from the trailer, when it went off in her hand. Whitehall lost the majority of her right hand and sustained numerous shrapnel injuries on her chest, stomach, and legs.

¶11 Vomenici was arrested later that same day. Police searched his trailer at the Auburn address several days later and found the remains of a marijuana grow operation and a number of guns, as well as nearly 1,000 rounds of ammunition. At least three people, including Vomenici’s younger brother, lived at the Auburn address. The police were unable to determine who actually possessed the items discovered inside the trailer and concluded there was insufficient evidence to charge anyone with a crime.

¶12 Vomenici pleaded guilty to second degree assault and was sentenced to five years in prison.

¶13 Whitehall filed suit against King County, alleging that the County failed to control Vomenici during his probation. On cross-motions for summary judgment, the court granted the County’s motion. Whitehall now appeals.

II

¶14 We review summary judgment de novo.1 Summary judgment is proper if the court, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, finds no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.2

¶15 Probation officers have a duty to protect third parties from reasonably foreseeable dangers that exist [766]*766because of an offender’s dangerous propensities.3 The duty arises from the special relationship between the government and the offender.4 The State’s authority to supervise arises from the conditions of release contained in a judgment and sentence for a crime.5 The failure to adequately monitor and report violations by the probationer may result in liability.6 In Taggart v. State,7 the court held that for purposes of the indeterminate sentencing scheme that applied to felonies committed before July 1, 1984, the duty to supervise was one of ordinary care that could be violated by ordinary negligence.8 In 1988, at least for purposes of community placement under the Sentencing Reform Act of 1981,9 the legislature provided that the duty is one of slight care that can be violated only by gross negligence.10 In 1996, the legislature provided similarly for misdemeanors.11

¶16 Thus, the County is liable only for conduct that amounts to gross negligence in supervising misdemeanants.12

¶17 RCW 9.95.204(7) provides that

[t]he state of Washington, the department of corrections and its employees, community corrections officers, any county under [767]*767contract with the department of corrections pursuant to this section and its employees, [and] probation officers . . . are not liable for civil damages resulting from any act or omission in the rendering of superior court misdemeanant probation activities unless the act or omission constitutes gross negligence.

f 18 RCW 9.95.204 was enacted in 1996. The act authorized counties to contract with the DOC for the supervision of misdemeanant probationers.

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Cite This Page — Counsel Stack

Bluebook (online)
167 P.3d 1184, 140 Wash. App. 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitehall-v-king-county-washctapp-2007.