Couch v. WA. DEP'T OF CORRECTIONS

• Decision Date: 20 September 2002
• Docket Number: No. 26784-5-II.,26784-5-II.
• Parties: Richard Lee COUCH, et al., Respondents, v. WA. DEP'T OF CORRECTIONS, Appellant.
• Court: Washington Court of Appeals

54 P.3d 197

113 Wash.App. 556

Richard Lee COUCH, et al., Respondents, v. WA. DEP'T OF CORRECTIONS, Appellant.

No. 26784-5-II.

Court of Appeals of Washington, Division 2.

September 20, 2002.

As Amended November 8, 2002.

Michael Patrick Lynch, Glen Andrew Anderson, Steven Ray Meeks, Assistant Attorneys General, Michael E. Tardif, Asst. Atty. Gen. - Dl&i, Olympia, WA, for Appellant.

John Robert Connelly, Darrell L. Cochran, Gordon Thomas Honeywell, Tacoma, WA, for Respondents.

MORGAN, J.

The main question in this case is whether the Department of Corrections (DOC) owes a duty of care to prevent future crimes while supervising an offender only for the purpose of collecting money. Answering no, we reverse with directions to dismiss.

On January 6, 1990, Cecil Davis assaulted a Tacoma couple. On March 12, 1990, in Pierce County cause number XX-X-XXXXX-X, he was convicted of assault in the second degree with a deadly weapon and criminal trespass in the first degree. On April 9, 1990, the court sentenced him to 26 months in prison, followed by a year of community placement. The court ordered him to pay $1,416.30¹ in fines, costs, and restitution (hereafter called "legal financial obligations" or "LFOs"), at a rate of at least $20 per month.

On July 24, 1991, Davis was released from prison and began his year of community placement. On July 24, 1992, he finished his year of community placement. He did not pay his LFOs while on community placement, so he remained on LFO supervision after July 24, 1992.

In August 1992, Davis stole property that belonged to another. On December 21, 1992, in Pierce County cause number XX-X-XXXXX-X, Davis pled guilty to theft in the third degree, a gross misdemeanor. The court sentenced him to "not more than 1 year" in jail, suspended on the condition that he successfully complete two years of probation and pay $2,562 in restitution and court costs at a rate of at least $25 per month.

In September 1992 and August 1993, Davis appeared in court to explain why he was not making monthly payments on his LFOs. The court did not penalize him on either occasion, presumably because he lacked money with which to pay.

In November 1993, a woman, G.A., was murdered. In late December of the same year, the police became "pretty interested in Mr. Davis and his possible involvement[.]"² Davis was never arrested or charged because, according to the investigating officer, "[w]e were not able to ever establish a direct link between him and the [G.A.] murder that would have given us probable cause to make an arrest."³

On December 26, 1993, a woman, T.H., was assaulted and raped. Davis was arrested within a few hours and charged with first-degree assault and first-degree rape. For the next thirteen months, he was held in jail awaiting trial. On February 6, 1995, he was released "when as a result of DNA testing charges against him were dismissed."⁴

On February 8, 1995, DOC reported to the court that Davis had failed to make payments on his LFOs in the 1992 misdemeanor case. Davis failed to appear for a scheduled hearing, so on May 12, 1995, the court issued an arrest warrant in that case.

On May 17, 1995, DOC reported to the court that Davis had failed to make payments on his LFOs in the 1990 felony case. DOC did not seek a warrant in the felony case because a warrant was already outstanding in the misdemeanor case. DOC did "recommend that upon apprehension[ ] Mr. Davis be held in custody pending a Non-Compliance Hearing" in the felony case.⁵

On June 4, 1995, Davis was arrested for domestic violence assault. He was later found not guilty.

Also on June 4, 1995, Davis was arrested on the misdemeanor bench warrant from May 12, 1995. On June 5, 1995, the court held a hearing in the misdemeanor case, with Davis present. The court found that his "nonpayment of monetary obligations was not wilful" and "extend[ed] probation supervision until 6-5-96 for legal financial monitoring only[.]"⁶ The court also ordered that Davis' payment of his LFOs be reviewed on December 8, 1995.

On September 4, 1995, a woman, J.W., was the subject of an attempted rape. The police suspected Davis, but they lacked enough evidence to arrest or charge him.

On December 8, 1995, Davis failed to appear for the misdemeanor LFO review hearing. Accordingly, the court issued a bench warrant for his arrest.⁷

On February 13, 1996, the prosecutor moved for an arrest warrant in the felony case. He alleged only that "[d]efendant has failed to make payments toward his/her legal financial obligations[.]"⁸ On February 16, 1996, the court issued the warrant.

On April 20, 1996, Davis was arrested on one or both of the outstanding warrants, and on April 26, 1996, a hearing was held. Davis stipulated that he had willfully failed to pay his LFOs. The court accepted his stipulation and found that he had willfully failed to pay in both cases. In the misdemeanor case, the court "terminated supervision" (which since June 5, 1995 had been "for legal financial monitoring only"⁹); revoked its earlier suspension of Davis' sentence; and incarcerated Davis for the remainder of his statutory maximum term¹⁰ (317 days with credit from April 20, 1996). In the felony case, the court ordered that Davis serve 60 days in jail,¹¹ concurrently with the 317 days on the misdemeanor; that Davis continue on felony LFO supervision only; and that Davis contact DOC "for reporting/payment instructions" when released from jail.¹²

Meanwhile, back on February 1, 1996, the officer investigating the J.W. attempted rape had asked the prosecutor to charge and obtain an arrest warrant for Davis. By early November 1996, despite "periodic conversations with the prosecutor[,]"¹³ the officer still did not have a response from the prosecutor, and he wanted to know when Davis would be released from jail. Rather than inquiring of the jail itself, he called DOC, asked to speak with the person in charge of Davis' file, and was told—by "someone" whom he could not identify at trial¹⁴—that Davis "wouldn't be released until after the first of the year."¹⁵ He then "recontacted the prosecutor ... to urge them to expedite issuing the warrant, so [that he] could serve it while [Davis] was still incarcerated."¹⁶

On November 19, 1996, Davis was released from jail. He did not pay his LFOs or contact DOC.

On January 25, 1997, Davis murdered Yoshiko Couch. He was later charged, convicted, and sentenced to death for that crime.

Three days after Couch's murder, Davis was served with an arrest warrant in the J.W. attempted rape. The prosecutor had requested the warrant on December 16, 1996, the court had issued it on December 19, 1996, and the investigating officer had learned of it "[s]ometime after the first of the year."¹⁷

Also after Couch's murder, Davis became a suspect in at least two more murders. One was the 1978 murder of S.M., and the other was the 1996 murder of L.H. Davis was not arrested or charged with either crime.

On October 8, 1999, Couch's estate¹⁸ sued DOC. Before trial, DOC moved for summary judgment. It argued that its only duty at the time of Couch's death was "to collect the money owed the court by Davis."¹⁹ It also argued that the estate could not prove proximate cause. The court denied the motion.

Also before trial, DOC moved to exclude evidence of the 1978 murder of S.M., the 1993 murder of G.A., the 1993 rape of T.H., the 1995 attempted rape of J.W., and the 1996 murder of L.H. DOC argued that such evidence would be irrelevant and unfairly prejudicial. The trial court denied the motion and later, during trial, admitted extensive evidence about those crimes over DOC's repeated objections.

On November 3, 2000, the jury returned a verdict in favor of Couch's estate. DOC moved unsuccessfully for judgment as a matter of law, new trial, or remittitur. The trial court entered judgment on the verdict, and DOC filed this appeal.

The elements of a negligence cause of action are duty, breach, causation, and damages.²⁰ We address duty before turning briefly to breach and causation.

I.

The first issue is whether DOC owed Couch a duty of care.²¹ We address (A) the applicable general principles; (B) whether DOC owed such a duty due to its supervision in the felony case; and (C) whether DOC owed such a duty due to its supervision in the misdemeanor case.

A.

In general, an actor "has no duty to prevent a third person from causing physical injury to another."²² An exception exists, however, when "a special relationship" between the actor and the third person "imposes a duty upon the actor to control the third person's conduct[.]"²³ Such a relationship must be "definite, established and continuing,"²⁴ but it need not be custodial.²⁵

Although "various" relationships may "give rise to a duty to control a third person[,]"²⁶ the one needed here involves one person (a supervising officer) "tak[ing] charge" of another person (an offender).²⁷ Thus, the Restatement provides that "[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."²⁸

To determine whether a supervising officer has "taken charge" of an offender within the meaning of Taggart v. State²⁹ and Restatement §§ 315 and 319, a court must examine "the nature of the relationship" between the officer and that person,³⁰ including all of that relationship's "[v]arious features[.]"³¹ In most cases, two of the most important features, though not necessarily the only ones, will be the court order that put the offender on the supervising officer's caseload and the statutes that describe and circumscribe the officer's power to act.³² A community corrections officer must have a court order before he or she can "take charge" of an offender; and even when he or she has such an order, he or she can only enforce it according to its terms and applicable statu...