Bishop v. Miche, 37844-9-I

• Decision Date: 22 September 1997
• Docket Number: No. 37844-9-I,37844-9-I
• Citation: 88 Wn.App. 77,943 P.2d 706
• Court: Washington Court of Appeals
• Parties: Tom BISHOP and Peggy Bishop, individually, and Tom Bishop, as Personal Representative of the Estate of Alexander Bishop, Appellants, v. Steven MICHE, Defendant, King County, Respondent.

Page 77

88 Wn.App. 77

943 P.2d 706

Tom BISHOP and Peggy Bishop, individually, and Tom Bishop, as Personal Representative of the Estate of Alexander Bishop, Appellants, v. Steven MICHE, Defendant, King County, Respondent.

No. 37844-9-I.

Court of Appeals of Washington,

Division 1.

Sept. 22, 1997.

David Andrews Williams, Bellevue, for Appellants.

John William Cobb, King County Prosecuting Attorney Office, Civil Division, Seattle, for Respondent.

GROSSE, Judge.

Actions or inactions relating to a probation officer's awareness of an error in sentencing are protected by quasi-judicial immunity and shield the officer's employer from liability as well as the officer. However, a county may be held liable if a probation officer has failed in his or her duty to enforce a convicted criminal's sentencing conditions by reporting probation violations. Because material issues of fact remain as to whether the probation officer acted negligently in carrying out her duties, the trial court erred in dismissing the negligent supervision claim at issue here.

FACTS

When driving while intoxicated, Steven Miche was involved in an accident which killed five-year-old Alexander Bishop. This fatality was the culmination of Miche's long history of driving while intoxicated. At the time he killed Alexander Bishop, he was on probation for a suspended sentence for driving a vehicle while under the influence of intoxicating liquor (DUI). He received a one-year suspended sentence because the trial court failed to realize that Miche was using an alias under which no previous convictions were recorded. His real driving record revealed three DUI convictions in the previous four years, driving with a suspended license, a revocation of his driver's license, and outstanding warrants from municipal court.

Instead of ordering jail time, the trial court placed Miche under the supervision of a probation officer. Because the driving record under his alias noted that his driver's license had been canceled due to a "fraudulent application," Miche's probation officer quickly realized that Miche's full record had not been before the court. The next day, the officer sent an advisory report to the district court advising it 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." No action resulted from this notification.

The probation officer arranged to have Miche arrested at his first probation appointment in order for him to serve two months outstanding jail time from a previous DUI conviction. After his release from jail on July 31, 1992, Miche began his probation. At the end of August, Miche was arrested for driving with a suspended license. His probation counselor requested a review hearing. On November 6, the district court held a review hearing on the charge of driving while licensed suspended. Miche told the court that he was to begin alcohol treatment the following Monday. Based on the condition that he enroll in the treatment program and continue attending Alcoholics Anonymous (AA) meetings, the trial court did not revoke his probation. Two days later, while Miche was again driving intoxicated, his vehicle collided with the Bishops' vehicle, killing Alexander Bishop. He pleaded guilty to vehicular homicide.

The Bishops sued Miche for wrongful death and King County (County) for negligent supervision by a probation officer. After filing their complaint, they moved to amend the complaint to include a claim of negligent hiring. The court granted the County's motion for summary judgment.

ANALYSIS

The Bishops claim that the probation officer negligently failed to alert the court about the effect Miche's fraud had on his sentence. This claim is devoid of merit. A probation officer's responsibility is to carry out the orders of the court after a defendant has been sentenced; ¹ it is not to second guess a court's sentence. Moreover, absolute quasi-judicial immunity shields the County from liability on this issue. A government official, such as a probation officer, is entitled to an absolute quasi-judicial immunity for those functions he or she performs that are an integral part of judicial or quasi-judicial The Bishops also claim that had Miche's probation officer properly supervised Miche and had she reported his violations of probation, Miche would have been in jail and, therefore, their son would not have been killed. The County responds that it cannot be held liable on this basis because probation officers do not have a duty to prevent the tortious acts of probationers committed against third parties.

                proceedings. 2  Sentencing is, without question, an integral part of the judicial process.  Accordingly, because it is an action that absolute quasi-judicial immunity covers, a county may not be sued because of a mistake in sentencing. 3  This extends to any claim that a probation officer failed to adequately[943 P.2d 708]  advise the trial court of its mistake.  Moreover, the record reflects that the probation officer did all that she could do to notify the court of the sentencing error
                

Washington follows the rule that no duty exists to prevent a third person from causing physical injury to another. ⁴ An exception is if " '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[.]' " ⁵ As to whether a probation officer has a duty to control the conduct of the probationers he or she supervises, our Supreme Court has resolved this issue in the equally applicable context of parole officers. In Taggart, the Supreme Court held that since parole officers were responsible for controlling parolees, a special relationship arose such that a parole officer had a duty to prevent parolees from causing injuries by taking "reasonable precautions to protect against reasonably foreseeable The County attempts to distinguish district court probation officers from state parole officers on the basis that parole officers have the ability to arrest a parolee, while district court probation officers do not have the same power to exert full custodial control over probationers. This misses the point of Taggart, which did not rely on whether a parole officer had full custodial control (although it did cite the statute which gives parole officers this power). Rather, the court focused on aspects of the " 'definite, established and continuing relationship' " that parole officers have with their parolees that demonstrated that parole officers "take charge" of parolees: ⁷

dangers posed by the dangerous propensities of parolees[.]" ⁶

Parole officers have the statutory authority under RCW 72.04A.080 to supervise parolees. The State can regulate a parolee's movements within the state, require the parolee to report to a parole officer, impose special conditions such as refraining from using alcohol.... The parole officer is the person through whom the State ensures that the parolee obeys the terms of his or her parole. Additionally, parole officers are, or should be, aware of their parolees' criminal histories, and monitor, or should monitor, their parolees' progress during parole. Because of these factors, we hold that parole officers have "taken charge" of the parolees they supervise for purposes of § 319. ⁸

Probation officers exert similar control over probationers. Even though they cannot arrest probationers, they are the officers charged by the government to enforce probationers' compliance with the terms of their probation. If the probation officer is aware that the probationer is violating the terms of his or her probation, the officer A probation officer's duty to exercise reasonable care to control the probationer and to prevent him or her from doing reasonably foreseeable harm is triggered when a probationer's criminal history and progress during probation show that the probationer is likely to cause bodily harm to others if not controlled. ¹² Here, in order to determine whether the probation officer discharged her duty to supervise, the trier of fact must look at whether she enforced the terms of the probation and whether she complied with written policies and practices of the office.

                must alert the court. 9  A method that district court probation officers have to enforce compliance is to report violations to the court.  This is demonstrated by a recent case in which the Supreme Court affirmed a jury's determination that parole officers breached their duty, in part, because the officers failed to detect and report a parolee's use of drugs. 10  Thus, reporting violations is a method of controlling a parolee or a probationer and if a parole or probation officer fails to appropriately use this method, the [943 P.2d 709] officer may subject his or her employer to liability. 11
                

The court's sentencing order required Miche to "[h]ave no violations of law during this period." It also required that Miche

[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 for your conduct during this period.

The probation officer required Miche to meet with her twice a month, attend Alcoholics Anonymous (AA) meetings three times a week, not consume alcohol, and she suggested he seek inpatient...