Estate of Borden v. STATE, DOC

• Decision Date: 06 July 2004
• Docket Number: No. 51579-9-I.,51579-9-I.
• Citation: 122 Wash.App. 227,95 P.3d 764
• Court: Washington Court of Appeals
• Parties: The ESTATE OF Cynthia BORDON, by its Personal Representative Arline M. ANDERSON, Respondent/Cross-Appellant, Daniel Bordon, a single adult, and Meadow Bordon, a single adult, Plaintiffs, v. The STATE of Washington, DEPARTMENT OF CORRECTIONS, Appellant/Cross-Respondent, Richard Alan Jones and Jane Doe Jones, husband and wife; William Max Buno and Jane Doe Buno, husband and wife; and unknown, unnamed individuals and entities one through ten, Defendants.

95 P.3d 764

122 Wash.App. 227

The ESTATE OF Cynthia BORDON, by its Personal Representative Arline M. ANDERSON, Respondent/Cross-Appellant, Daniel Bordon, a single adult, and Meadow Bordon, a single adult, Plaintiffs, v. The STATE of Washington, DEPARTMENT OF CORRECTIONS, Appellant/Cross-Respondent, Richard Alan Jones and Jane Doe Jones, husband and wife; William Max Buno and Jane Doe Buno, husband and wife; and unknown, unnamed individuals and entities one through ten, Defendants.

No. 51579-9-I.

Court of Appeals of Washington, Division 1.

July 6, 2004.

Glen Anderson, AAG, Olympia, WA, for Appellant.

Kevin Winters, Shoreline, WA, for Respondent.

AGID, J.

The Estate of Cynthia Bordon sued the Washington State Department of Corrections (DOC) for Bordon's wrongful death, alleging that DOC negligently supervised Richard Alan Jones and its negligence proximately caused Bordon's death. A jury found in favor of Bordon and apportioned 24 percent of fault to DOC. The State appeals, asserting the trial court erred by denying its Civil Rule 50 motion for judgment as a matter of law based on lack of duty and factual and legal causation. We reverse, concluding the trial court erred by submitting the issue to the jury when there was insufficient evidence establishing cause in fact. We also conclude the trial court did not abuse its discretion when it excluded expert testimony Bordon claims would have established causation because the testimony was outside the witness' expertise and therefore speculative.

FACTS

On April 11, 1998, Richard Jones and Max Buno drove to a construction site, and Buno loaned Jones his car to pick up sandwiches for lunch. Jones never returned. Approximately five hours later, Jones was driving Buno's car eastbound on State Road 2. He was intoxicated and crossed the center line, colliding with Cynthia Bordon's car. Bordon died as a result of her injuries.

At the time of the accident, DOC was supervising Jones for several crimes. Jones had been convicted of two counts of forgery and two counts of possession of stolen property in the second degree for attempting to use a stolen credit card. On February 23, 1996, Jones was sentenced to three months' confinement¹ and 12 months' community supervision for these crimes.² He was also ordered to pay $953.92 in court costs and restitution. Upon release from jail, Jones failed twice to report to his DOC supervisor.

Within the next several months, Jones was convicted of two more crimes. On October 10, 1996, he was found guilty of second degree burglary for attempting to steal a box of merchandise from the S.S. Bargain Mart in Everett. While out on bond for the burglary charge, he was arrested for eluding police. Jones was convicted of both the burglary and eluding charges, and the court sentenced him for both crimes on the same day. The court sentenced Jones to 20 months' confinement and ordered him to pay $1,548.19 in court costs and restitution for the burglary. He was sentenced to four months' confinement on the eluding charge to run concurrently with the burglary sentence. The court also ordered 12 months' community supervision with a condition that Jones was not to drive unless he was licensed and insured to do so.³ BECAUSE DOC NEVER receiveD A copy of the judgment and sentence for the eluding conviction, it was not supervising Jones on that crime.⁴

Jones finished his prison time on November 14, 1997.⁵ As directed by his order of release, Jones reported to his Community Corrections Officer (CCO), Judith Bronson, at the Marysville Community Corrections Office.⁶ He was scheduled to return for intake on November 21, 1997, but failed to appear on that day and again on November 25, 1997. His CCO called his home and told his aunt that Jones must appear the following day or she would request a bench warrant. Jones did not report the following day. Bronson drafted a violation report, but she never filed it with the court. Instead, she decided to transfer the case to the Everett Offender Minimum Management Unit (OMMU) because she believed Jones' only obligation on the burglary conviction and his prior theft conviction was to pay his legal financial obligations (LFOs)⁷ and she was unaware of the eluding conviction and its accompanying driving condition.⁸

On January 2, 1998, Community Corrections Assistant (CCA) Shelby Jeffries received her check sheet at the OMMU. It showed that Jones' LFO payment was overdue. Jeffries reviewed Jones' file and decided to try to persuade Jones to report for intake before she filed a violation report.⁹ To that end, Jeffries sent a letter to Jones on January 29, 1998, erroneously ordering him to report for intake on January 9, 1998. Not surprisingly, he failed to report. She sent a second letter on February 10, 1998, ordering him to report for intake on February 23, 1998, but he again failed to report. On March 3, 1998, the OMMU filed violation reports for Jones' failure to report for intake. On March 19, 1998, the court issued two bench warrants based on the violation reports, and Jones was arrested on March 29, 1998. At the violation hearing, DOC informed the court that Jones violated his burglary and theft supervision requirements by failing to report for intake on four separate occasions, failing to pay his financial obligations, and failing to provide the OMMU with a valid address. DOC did not tell the court that while he was under OMMU supervision and failing to report for intake, Jones was arrested for driving without a license, which violated a condition of supervision for the eluding conviction.¹⁰ The court found that Jones' failure to pay LFOs and report for intake was willful and ordered Jones to serve 15 days in jail. Jones was released on April 7, 1998, four days before the car accident with Bordon.

The Estate of Cynthia Bordon (Bordon) filed an action against Jones and Buno. Bordon settled with them and entered into a "Stipulation for Partial Payment of Damages and Covenant not to Execute" to preserve joint and several liability between the two defendants and any other defendant they added to the lawsuit. Bordon added DOC by amended complaint on April 3, 2001. DOC filed a motion to dismiss Buno and Jones from the lawsuit on the ground that Bordon had already released them, and the trial court granted the motion. DOC also moved for summary judgment, arguing that, as a matter of law, it did not owe Bordon a duty and even if it did, a breach of that duty did not cause Bordon's death. The trial court denied the motion, and the case went to trial. At the conclusion of the plaintiff's case, DOC moved to dismiss based on lack of duty and/or evidence supporting causation. Specifically, it argued that Bordon presented no competent evidence that Jones would have been in jail when the accident occurred even if DOC had reported the driving violation to the court. It also argued there was no evidence that Jones would have refrained from driving on the day of the accident if DOC had acted differently. The trial court denied the motions.¹¹ As a result of the motion, however, Bordon abandoned her theory that Jones would not have been driving on the day of the accident if DOC supervised him more closely, relying only on the argument that Jones would have been in jail when the accident occurred.

The jury found in favor of Bordon. It apportioned 24 percent of the fault to DOC and the remaining 76 percent to Jones. Judgment in the amount of $169,051.68 was entered against DOC for its share of fault. It appeals.

ANALYSIS

The elements of a negligence cause of action are the existence of a duty to the plaintiff, breach of the duty, and injury to the plaintiff proximately caused by the breach.¹² Whether a duty exists is a question of law that we review de novo, while breach and proximate cause are generally questions for the trier of fact.¹³

I. Did DOC owe Bordon a duty?

The State argues that the trial court erred by failing to rule as a matter of law at the conclusion of the plaintiff's case that DOC did not owe Bordon a duty. "In general, an actor `has no duty to prevent a third person from causing physical injury to another.'"<sup>14</sup> However, a special relationship between the actor and the third party may give rise to a duty if the relationship is "`definite, established and continuing.' "¹⁵ In Taggart v. State,¹⁶ the Washington Supreme Court concluded that there may be a special relationship between third parties and the parolees a community corrections officer supervises. "[W]hen a parolee's criminal history and progress during parole show that the parolee is likely to cause bodily harm to others if not controlled, the parole officer is under a duty to exercise reasonable care to control the parolee and to prevent him or her from doing such harm."¹⁷

The parties in this case are arguing two different theories on appeal. The State's argument assumes that because it did not know about the eluding charge, the "take charge" relationship described in Taggart did not exist and it had no duty to supervise Jones on the conditions imposed on that conviction. And because the other two charges imposed only LFOs as conditions of supervision, DOC asserts it had no authority, much less a duty, to control Jones' behavior based on those convictions.¹⁸ In contrast, Bordon argues that former RCW 9.94A.120(13) (1996), stating that offenders under supervision will be supervised by DOC, and the sentencing court's order putting Jones on community supervision for three felony convictions impose a duty on DOC. The fact that DOC never received the judgment and sentence on the eluding charge, she argues, does not affect its duty to control the offender's behavior. Because we agree with Bordon that DOC had a duty under Taggart arising from the eluding charge, we need not reach the question whether the State also had a duty based on the theft and burglary convictions.¹⁹

First, the record supports the conclusion that DOC should have known about the...