Evangelical United Brethren Church of Adna v. State, 37236

CourtUnited States State Supreme Court of Washington
Citation407 P.2d 440,67 Wn.2d 246
PartiesEVANGELICAL UNITED BRETHREN CHURCH OF ADNA, Adna, Washington, and Oliver E. Davis and Louise Davis, husband and wife, Respondents, v. The STATE of Washington, Appellant.
Docket NumberNo. 37236,37236
Decision Date04 November 1965

Page 246

67 Wn.2d 246
407 P.2d 440
Washington, and Oliver E. Davis and Louise Davis,
husband and wife, Respondents,
The STATE of Washington, Appellant.
No. 37236.
Supreme Court of Washington, En Banc.
Nov. 4, 1965.
Rehearing Denied Jan. 18, 1966.

[407 P.2d 441] John J. O'Connell,

Page 247

Atty. Gen., Stephen C. Way, Asst. Atty. Gen., Olympia, for appellant.

Murray, Armstrong & Vander Stoep, Chehalis, for respondents.


At about 8:30 p.m., on April 2, 1962, a 14-year-old boy escaped from the custody of the state maintained juvenile correction facility designated as Green Hill School and located at Chehalis, Washington. The boy thereafter set fire to the Evangelical United Brethren Church and to a house owned by Oliver E. Davis and his wife. Both structures were destroyed in the blaze. The owners initiated this suit against the state of Washington seeking recoupment for their loss. They alleged that the

Page 248

state in operating the school was negligent in that it applied only minimal security measures to the boy when it knew or should have known that the boy had a 'propensity for incendiarism' and was a 'pyromaniac.'

After unsuccessfully seeking dismissal of the action, the state answered denying the material allegations of the complaint, and the cause was tried and submitted to a jury. It returned a verdict for the owners and against the state. The state appeals, assigning error to the denial of its various motions, the granting of a trial amendment, and the giving of an instruction.

Briefly, the salient facts are as follows: The boy involved had never known his real father, had been rejected by his mother at an early age, and had spent almost all of the first 12 years of his life in foster homes or with his grandparents. On October 8, 1959, at the age of 12, he was adjudged a juvenile delinquent upon the basis of an admission that he had set four fires, and engaged in other antisocial behavior. He was received at the State Diagnostic and Treatment Center on November 5, 1959, and, following a diagnostic period during the course of which he ran away from the center but returned of his own volition within a few hours, went before the center's review board on December 17, 1959. He was diagnosed as dangerously psychotic in an assaultive vein, and transferred to Northern State Hospital, a mental facility, on February 1, 1960. Some benefits flowed from hospitalization and, on March 29, 1960, he was transferred for further treatment to the juvenile mental treatment facilities of Western State Hospital with a provisional diagnosis of 'Inadequate personality, with psychotic reaction.' At Western State Hospital his condition improved and, on May 18, 1960, he was discharged and returned to the Diagnostic and Treatment Center with a diagnosis of 'Personality pattern disturbance, inadequate personality.' The boy again appeared before the center's review board. The board expressed its belief that he was still dangerously psychotic with assaultive tendercies toward smaller children and in addition constituted a security risk as a potential escapee. He was thereupon

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transferred to the Green Hill School arriving there about June 3, 1960.

Green Hill School is one of the several juvenile correctional and rehabilitative facilities falling under the jurisdiction of the Department of Institutions of the state. In keeping with the purposes and philosophy of the Juvenile Court Law (RCW 13.04 and RCW 72.05.210), the underlying objective of the school is to correct and rehabilitate youthful delinquents (RCW 72.05.010). [407 P.2d 442] The school is characterized by statute as a 'close security' institution, to which shall be sent male children between the ages of 8 and 18 with the most serious behavior problems (RCW 72.05.130 and 72.16.070), the phrase 'behavior problems' being synonymous with the terms 'delinquent' and 'delinquency' as used in the Juvenile Court Law (RCW 72.05.210).

At Green Hill School it was the established policy, within the framework of its basic rehabilitative purpose, its characterization as a 'close security' institution, and the varying age and behavioral patterns of its inmates, to seek to gear the security and control measures provided to an inmate to the ability of the boy to recognize and accept reformation and responsibility. These variable security measures were reflected in the arrangement of the living quarters, or 'cottages' as they were called, provided for the boys. At the times here in question there were ten cottages available, each bearing the name of a type of tree, and each providing a security program and resident supervision designed to reflect the needs, capacity, and progress of the boys assigned to them. For example, 'Cedar' cottage was a two-story concrete structure accommodating approximately 14 or 15 boys in single occupancy, locked, cubicles from whence the boys, in controllable groups, were released for in-cottage dining, sanitary, recreational, and educational purposes under strict supervision. Assignment to restricted work details and school classes outside the cottage was allowed only after a boy had amply demonstrated the requisite degree of responsibility. In short, 'Cedar' cottage provided maximum security and disciplinary

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isolation when required. It represented that which was referred to by the officials as the 'close program' within the institution. The remaining nine cottages represented that which was referred to as the 'open program.' These cottages consisted of one next to and similar in structure and physical design to Cedar, housing upwards of 32 boys in double occupancy cubicles, designated as 'Oak' cottage; two dormitory type facilities designated as 'Alder' and 'Pine'; and six tree named residential type cottages quartering 16 boys each. Although these cottages maintained similar in-cottage direction and supervision, each cottage became progressively less restrictive relative to assignment to work details, unescorted movement between details and school classes, recreational outlets, and inter-cottage association.

Assignment to work details and supervision thereof was also utilized in a manner consistent with evaluation of an inmate's progress in acceptance of responsibility. A high degree of supervisory security on a detail would be a ratio of one staff member or employee to one boy, and the least amount of supervision was represented by the farm or garden detail on which a considerable number of boys would be assigned to the direction and supervision of one staff member or employee.

When the boy with whom we are here concerned arrived at Green Hill School on or about June 3, 1960, he appeared before an 'Initial Review Board' composed of professionally trained staff members of the school. His case history was reviewed, supervision techniques recommended, and a tentative program, involving assignment to Oak Cottage, was adopted. His life and conduct thereafter at the school were relatively uneventful. He attended academic classes, worked on various details, including the garden detail, and was allowed to make occasional visits to the home of his grand-parents from whence he always promptly returned. He did not evidence any 'runaway' tendencies nor present any serious disciplinary problem. The only occurrence of any significance took place on New Year's Eve in 1961, when the inmates of Oak Cottage were allowed to

Page 251

stay up until midnight, at which time things got out of hand, windows were broken and some paper was set afire. He, along with nine other boys, was disciplined for participating in the fire incident.

In September, 1961, the boy was paroled from Green Hill School to reside with his [407 P.2d 443] maternal aunt and uncle. He entered school and was enrolled in a church-sponsored youth group. His adjustment on parole was unsatisfactory. Friction developed between him, his aunt, and his cousins. He was accused of striking another student at school, breaking the windows of the church which sponsored his youth group, and of partially burning a boat. On February 1, 1962, he ran away from the home of his aunt and uncle and returned to the home of his grandparents, where he was apprehended on February 3 and remanded to the Diagnostic and Treatment Center. On March 9, 1962, he was returned to Green Hill School with a report and recommendation that he be regarded as a security risk and be accorded close supervision. He again appeared before the review board of the school and was reassigned to Oak Cottage.

On April 2, 1962, in the course of the afternoon, he was assigned to the boiler room detail, a detail involving a one-to-one ratio of supervision; that is, one boy under the supervision of an employee of the school. With the exception of a short time when he attended another class, the boy remained upon this detail performing satisfactorily until approximately 8:30 p.m., at which time he disappeared at a moment when the attendant's back was turned in the performance of a routine task in connection with the work involved on the detail. Local law enforcement agencies were notified of the escape, and thereafter, during the late hours of the night, the boy set the fires which constituted the basis of this action.

Plaintiffs predicate their action against the state upon the provisions of Laws of 1961, ch. 136, § 1, p. 1680 (RCW 4.92.090), 1 the pertinent portion of which reads:

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The state of Washington, whether acting in its governmental or proprietary capacity, hereby consents to the maintaining of a suit or action against it for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. * * *

In support of their action, plaintiffs' allegations of fault fall into four categories which they assert constituted culpable negligence on the part of the state: (1) The maintenance of an 'open...

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