Bishop v. Miche

• Citation: 973 P.2d 465,137 Wn.2d 518
• Decision Date: 25 March 1999
• Docket Number: No. 66380-7,66380-7
• Parties: Tom BISHOP and Peggy Bishop, individually, and Tom Bishop, as personal representative of the Estate of Alexander Bishop, Respondents, v. Steven MICHE, Defendant, and King County, Petitioner.
• Court: United States State Supreme Court of Washington

Page 518

137 Wn.2d 518

973 P.2d 465

Tom BISHOP and Peggy Bishop, individually, and Tom Bishop as personal representative of the Estate of Alexander Bishop, Respondents, v. Steven MICHE, Defendant and King County, Petitioner.

No. 66380-7.

Supreme Court of Washington En Banc.

Argued Nov. 17, 1998.

Decided March 25, 1999.

Gary N. Bloom, Harbaugh & Bloom, Daniel E. Huntington, Richter-Wimberley PS, Debra L. Stephens, Spokane, Amicus Curiae on behalf of Washington State Trial Lawyers Assoc

Christine Gregoire, Attorney General, Glen Andrew Anderson, Asst. Attorney General, Olympia, Amicus Curiae for the State of Washington.

Norm Maleng, King County Prosecutor, John W. Cobb, Deputy Prosecuting Attorney, Seattle, for King County.

David A. Williams, Bellevue, for Respondents.

MADSEN, J.

This is a negligence action brought by the parents of a child killed in an automobile accident caused by a King County probationer who was intoxicated at the time of the accident. The parents brought a wrongful death action against the probationer and the County, alleging that the County negligently supervised the probationer. The trial court granted the County's motion for summary judgment.

At issue is whether the duty recognized in Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992), that a state parole officer has a duty to protect others from reasonably foreseeable danger resulting from the dangerous propensities of parolees, also applies in the context of a county probation officer and probationers. Also at issue is whether as a matter of law quasi-judicial immunity precludes liability under these facts.

FACTS

Steven Miche was on King County probation for a suspended sentence for driving while under the influence of alcohol when he was involved in the accident that caused Alexander Bishop's death. Miche was intoxicated at the time of the accident. His suspended sentence had been imposed because at his arraignment on May 1, 1992, Miche used an alias of Steven W. Williams. The sentencing court did not realize that Miche was using an alias or that his driving record under his real name showed three convictions Miche's probation officer, Susan Mendenhall, realized that the full record had not been before the court, discovered his true name and record, and sent an advisory report to district court, which had jurisdiction to administer probation, that "Steven W. Williams also appears to use an AKA of Steven W. Miche. DOL records are maintained under MICHE, STEVEN WALTER ... and driving privileges are revoked." CP at 562. Mendenhall did not request court action, and none resulted.

                for driving under the influence in the previous four years, driving while his license was suspended, revocation of his driver's license, and outstanding warrants from municipal court.  Miche was ordered to refrain from any new violations of the law for 24 months, and ordered to "[b]e placed on probation with the King County District Court Probation Department for 24 months and abide by all terms, conditions, rules and regulations of the Probation Department ... during this period."   Clerk's Papers (CP) at 558
                

Mendenhall had Miche arrested at their first meeting after she learned that there were outstanding arrest warrants in Renton municipal court, and he served two months outstanding jail time. Upon his release, she required, and he agreed, to attend Alcoholics Anonymous meetings twice a week, not consume alcohol, and submit to urinalysis tests. She also tried to enroll him in inpatient alcohol treatment. The probation department manual requires a probation officer to report violations of probation to the court, stating that where the court conditions parole on no alcohol or illicit drug use, such a report must be made within five days. CP at 111. However, where the probationer fails to comply with other conditions concerning alcohol and drug use, the probation officer is to try to get the probationer within compliance using his or her discretion, but must notify the court if after 60 days the probationer is not in compliance. Id.

On August 27, 1992, Miche was charged in Renton Municipal Court with driving while his license was suspended.

                As a result, Mendenhall requested a review hearing in Aukeen District Court, and a review hearing was scheduled for November 6.  In the meantime, on October 14, 1992, Miche was convicted of driving while his license was suspended.  At the review hearing, Mendenhall informed the court in writing that Miche was convicted on the Renton charge and was given 20 days in jail and a $500 fine.  She stated:  "Mr. Miche attends AA (somewhat sporadically) and is scheduled to begin intensive alcohol treatment at SECAC on 11/9/92.  He cooperates fully with supervision and seems to be intent on complying with the Court order."   CP at 114.  Mendenhall made [973 P.2d 468] no recommendations for disposition and deferred to the court's decision as to a proper disposition for Miche's violation of the court order.  The district court declined to revoke probation, allowing Miche to begin the scheduled treatment.
                

Two days later, November 8, 1992, Miche drove while intoxicated and caused the accident resulting in Alexander's death. Miche pleaded guilty to vehicular homicide.

The Bishops then brought suit against Miche and King County. The Bishops alleged that King County (County) negligently failed to supervise Miche. The superior court granted the County's motion for summary judgment. The Bishops appealed, and the Court of Appeals reversed. Bishop v. Miche, 88 Wash.App. 77, 943 P.2d 706 (1997), review granted, 134 Wash.2d 1024, 958 P.2d 313 (1998).

ANALYSIS

We are reviewing a grant of summary judgment and therefore make the same inquiry as the trial court, i.e., summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Taggart, 118 Wash.2d at 198-99, 822 P.2d 243. The facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Id. at 199, 822 P.2d 243. Questions of law are reviewed de novo. Sherman v. State, 128 Wash.2d 164, 183, 905 P.2d 355 (1995).

Plaintiffs maintain that Miche's county probation officer negligently supervised him and this negligence proximately caused their son's death. The County maintains that King County District Court's Probation Division is a part of the district court and its sole function is to provide probation services to the county's district courts. Accordingly, the County contends, acts of the probation division are a fundamental part of the judicial process to which quasi-judicial immunity attaches. The County further contends that the district court probation department does not have a special relation with a probationer giving rise to a duty to control a probationer.

The Court of Appeals held that the County owed a duty to control Miche. The court relied upon the decision in Taggart, 118 Wash.2d 195, 822 P.2d 243, where we held that the state may be liable for the negligence of a parole officer who fails to use reasonable care in supervising a parolee whose dangerous propensities pose a reasonably foreseeable danger to others. In Taggart, we acknowledged the rule that generally one has no duty to prevent a third party from causing harm to another. We also recognized, however, the exception stated in Restatement (Second) of Torts § 315 (1965) which provides that there may be such a duty where there is a special relation between the actor and the third person. Such a special relation exists when one takes charge of a third person whom he or she knows or should know is likely to cause bodily harm to another if not controlled, and the actor has a duty to control the third party to prevent him or her from doing such harm. Restatement (Second) of Torts § 319. This duty arises where there is a " 'definite, established and continuing relationship between the defendant and the third party.' " Taggart, 118 Wash.2d at 219, 822 P.2d 243 (quoting Honcoop v. State, 111 Wash.2d 182, 193, 759 P.2d 1188 (1988)). A custodial relationship is not required. Taggart, 118 Wash.2d at 222-23, 822 P.2d 243.

We said in Taggart that this duty arises only when it has been shown that the parole officer lacks absolute and qualified immunity for the actions claimed to be negligent. However, we later held that qualified personal immunity for parole officers recognized in Taggart does not extend to the State. Savage v. State, 127 Wash.2d 434, 899 P.2d 1270 (1995). Therefore, if the parole officer fails to take reasonable care to control the parolee, but nevertheless acts in furtherance of a statutory duty and in substantial compliance with the directives of superiors and relevant regulatory guidelines, the officer enjoys qualified personal immunity, but the immunity does not run to the State. Thus, following Savage, a finding of qualified personal immunity on the part of the individual officer does not end the inquiry. The employing agency may still be liable for failing to use reasonable care in fashioning guidelines and procedures for the supervision of parolees. In contrast, if absolute quasi-judicial immunity applies to the officer's actions, that immunity does extend to the employing agency.

The Court of Appeals reasoned that probation officers exert control over probationers similar to that exercised by parole officers over parolees, and accordingly the duty identified in Taggart also applies to county probation officers. We agree. The duty identified in Taggart may be found where a probation officer must monitor probationers for compliance with conditions of parole.

The County argues, however, that no duty arises in this case because quasi-judicial immunity applies to the county probation officer's actions. The County cites Plotkin v. State, 64 Wash.App. 373, 826 P.2d 221 (1992) where the court held that parole officers' actions in failing to report violations...