Bender v. City of Seattle

• Citation: 99 Wn.2d 582,664 P.2d 492
• Decision Date: 26 May 1983
• Docket Number: No. 47439-7,47439-7
• Parties: , 9 Media L. Rep. 2101 Stanley BENDER, Respondent, v. The CITY OF SEATTLE, a municipal corporation, Petitioner.
• Court: Washington Supreme Court

Page 582

99 Wn.2d 582

664 P.2d 492, 9 Media L. Rep. 2101

Stanley BENDER, Respondent, v. The CITY OF SEATTLE, a municipal corporation, Petitioner.

No. 47439-7.

Supreme Court of Washington,

En Banc.

May 26, 1983.

Stafford, Frey & Mertel, A. Richard Dykstra, Thomas D. Frey, Seattle, for petitioner.

Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, Donald J. Horowitz, C. Steven Fury, Seattle, for respondent.

WILLIAM H. WILLIAMS, Chief Justice.

Respondent Stanley Bender, a Seattle jeweler, instituted this action for damages alleging he had been subjected to false arrest, false imprisonment, malicious prosecution, libel and slander by employees of the petitioner City of Seattle (City). This action arose after criminal charges against the respondent for two counts of grand larceny by possession were dismissed because the key prosecution witness refused to testify. The cause was submitted to the jury on all theories and it returned an unsegregated verdict of $80,000 against the City.

In an unpublished opinion, the Court of Appeals held that a verdict should have been directed in favor of the City on the false arrest or false imprisonment claim because respondent's arrest was pursuant to a facially valid warrant. The court ruled that the other causes of action were properly submitted to the jury. Since the false arrest or false imprisonment issue was considered by the jury and the effect on the unsegregated verdict could not be ascertained, the court remanded for retrial on the limited issue of damages for the remaining causes of action: malicious prosecution, libel, and slander. Both parties petitioned for review, and we granted both petitions. Bender v. Seattle, 95 Wash.2d 1001 (1981).

We reverse the Court of Appeals in part, affirm in part, and fully reinstate the jury's unsegregated verdict.

On July 18, 1975, the residence of Phyllis Brooks was burglarized and several items of jewelry were taken, including two lady's diamond rings. Daniel Gill Johnson was a suspect in the burglary, but remained at large until October of 1975 when he was arrested on a burglary charge unrelated to the Brooks incident. While in custody, Johnson told Detective Rudy Vanderlaan of the Seattle Police Department that he wanted to exchange information on numerous burglaries for a recommendation of a reduced sentence. The detective conveyed the proposal to the chief criminal deputy, who agreed that the prosecutor's office would not charge Johnson with new crimes and would reduce its recommendation on existing charges. Johnson then gave Detective Vanderlaan information about numerous burglaries and thefts in the Seattle area including his burglary of the Brooks residence. He also told the detective that two of the rings taken from the Brooks residence were sold to Stanley Bender on July 18, 1975, and that he had sold stolen property to Bender on prior occasions. Johnson further stated that he returned the next day and sold Bender additional items of jewelry that Bender knew to be stolen.

Detective James W. Moore and Detective Vanderlaan testified that on October 9, 1975, they went to Bender's jewelry store and located the stolen rings. The store's records indicated one purchase from Daniel Johnson on July 18, 1975, but the purchase price appeared to have been changed from $125 to $275. One of the detectives asked Bender who had made the entry in the book, but Bender said he did not know. Bender produced two cash receipts dated July 19, 1975, and explained that the cash register already had closed at the time of the purchase on July 18. He claimed that he did not recognize an employee's initials on the receipt. Bender explained to the detectives that he had been golfing in Olympia on July 18, 1975, and testified that he offered to produce witnesses and other proof to corroborate his story. Detective Vanderlaan testified that he declined the offer because he simply did not believe Bender. Bender stated that one of his employees made the July 18 purchase from Johnson, but that he had purchased a dinner ring from Johnson on July 19. He denied knowledge that the ring was stolen. Bender further offered to take a lie detector test as to the truthfulness of his statements.

On October 16, 1975, a polygraph test was administered to Johnson by Detective Donald Vert, a member of the Seattle Police Department Polygraph Unit, regarding the sale of jewelry to Bender. Detective Vert's report noted nondeceptive responses to three questions, but did note some deception as to one relevant question. Detective Vert noted in his report that Johnson appeared sure of one sale to Mr. Bender, but not to two sales. Johnson also stated he had "shot up with Heroin" about one hour prior to the sale to Bender and felt "spaced out" at the time of the sale. Despite Detective Vert's suggestion that Bender be given the opportunity to submit to a polygraph examination, no such test was administered.

Detective Vanderlaan took the above information to the King County Prosecuting Attorney's Office and consulted with a deputy prosecutor. A preliminary determination of probable cause to arrest and prosecute was made by the prosecutor without further investigation. On October 23, 1975, Detective Vanderlaan prepared and filed an affidavit requesting a search warrant for Bender's jewelry store. Also on the same day, an information was filed charging Bender with grand larceny by possession. A search warrant and an arrest warrant were issued that same day.

Pursuant to the warrants, Detective Vanderlaan went to Bender's store, placed him under arrest, and executed the search warrant. Bender was booked into the King County jail and remained in custody for a short time until released on bail. News of the arrest was made available to the news media, and stories appeared in three newspapers as well as on television and radio. In addition, Detective Vanderlaan held an informal press conference and gave information which Bender claimed was not entirely accurate. Shortly thereafter, Johnson refused to testify at Bender's criminal prosecution and the case was dismissed with prejudice.

Bender brought suit against the City based on allegations of false arrest and false imprisonment, malicious prosecution, and libel and slander. Bender's primary contention was that a full disclosure of all known information and a proper investigation by the police would have persuaded the prosecution not to file criminal charges because of a lack of probable cause. All theories of liability were submitted to the jury which returned a special verdict finding liability on each theory, but awarding damages in one total sum without specific apportionment.

The City assigns error to the trial court's failure to direct a verdict in its favor on each of the three theories of liability and to certain of the court's jury instructions. Conversely, Bender contends the instructions were not properly excepted to and that sufficient evidence exists to support the jury's verdict on each theory of liability.

A motion for a directed verdict may be granted only if it can be said, as a matter of law, that no evidence or reasonable inferences existed to sustain a verdict for the party opposing the motion. The evidence must be considered in the light most favorable to the nonmoving party. Bertsch v. Brewer, 97 Wash.2d 83, 90, 640 P.2d 711 (1982); Reiboldt v. Bedient, 17 Wash.App. 339, 344, 562 P.2d 991 (1977).

I. IMMUNITY

First, the City contends it is immune from tort liability in this case because the actions of its officers were high level discretionary acts.

By its enactment of Laws of 1961, ch. 136, § 1, p. 1680 (RCW 4.92.090), ¹ and Laws of 1967, ch. 164, § 1, p. 792 (RCW 4.96.010), ² the legislature effectively abolished the principle of sovereign immunity in Washington. Thereafter, we created the very narrow exception of discretionary governmental immunity in the case of Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). The purpose of our limited, court-created rule of immunity is to prevent the courts from passing judgment on basic policy decisions that have been committed to coordinate branches of government. Since the concept of discretionary governmental immunity is a court-created exception to the general rule of governmental tort liability, its applicability is necessarily limited only to those high level discretionary acts exercised at a truly executive level. In order to facilitate the distinction between the type of discretion exercised at a truly executive level, to which immunity is granted, from that discretion exercised at an operational level, to which liability may attach, we set out the following preliminary questions in Evangelical, at page 255, 407 P.2d 440:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

In King v. Seattle, 84 Wash.2d 239, 246, 525 P.2d 228 (1974), we set out an additional requirement for the availability of discretionary immunity:

Immunity for "discretionary" activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government. Accordingly, to be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an...