Fievez v. State

Decision Date06 March 2023
Docket Number84230-7-I
PartiesRICKEY FIEVEZ, individually, KYLE FIEVEZ, individually, and TYLER FIEVEZ, individually, Appellants, v. STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS, Respondent.
CourtWashington Court of Appeals



Appellants brought a negligence action against the Department of Corrections for injuries to Rickey Fievez caused by an individual who had previously been on community custody supervision. The trial court dismissed the claim on summary judgment, and Fievez appeals. Because Fievez fails to demonstrate a material issue of fact as to all four elements of negligence, we affirm.


On January 8, 2015, Timothy Day was sentenced under a Special Drug Offender Sentencing Alternative (DOSA) after entering a guilty plea to one count of felony harassment - domestic violence. Pursuant to the DOSA, Day was sentenced to 19 months in prison, immediately followed by 19 months on Department of Corrections (DOC) community custody supervision. The community custody portion of his sentence ran from March 2016 until October 2017 supervised by Community Corrections Officer (CCO) Natalie Carrigan. During the majority of his time on community custody, Day lived in a home owned by his employer, along with a couple, Becky and David Stinson. Prior to Day's release from prison, and throughout his time on community custody, DOC Crime Victim Liaison (CVL) Sherina James maintained contact with Marceline Daarud, Day's former wife and the victim of his crime of conviction. Day's active community custody supervision ended on September 30 2017, and was officially terminated on October 2, 2017.

On June 17, 2018, Day stole his fiancée's revolver, shot open an ammunition case in a Walmart store, and attempted to carjack Rickey Fievez. Day shot Fievez through the neck causing tragic injuries and was rendering him quadriplegic. Shortly thereafter, Day was shot and killed by a bystander. Fievez and his children (collectively, Fievez) sued DOC arguing that DOC staff James and Carrigan had been negligent, and that DOC's negligence proximately caused Fievez's injury. DOC moved for summary judgment dismissal, which was granted. DOC also moved to strike portions of several declarations submitted in support of Fievez's motion opposing summary judgment. The court granted the motion to strike in part. Fievez timely appealed and DOC cross-appealed.


Fievez and DOC each present several assignments of error. We review Fievez's challenge to the summary judgment ruling under a de novo standard. Keck v. Collins, 184 Wn.2d 358 370, 357 P.3d 1080 (2015). However, we first resolve the evidentiary issues raised by the parties so that we may consider the legal challenges based only on properly admitted evidence. See Id. ("Before we can consider the evidence in this case, however, we need to determine what evidence is before us.").

I. Admissibility of Evidence

We review the admissibility of evidence presented in connection with a summary judgment proceeding de novo. Am. Express Centurion Bank v. Stratman, 172 Wn.App. 667, 674-75, 292 P.3d 128 (2012). Affidavits submitted "shall be made on personal knowledge" and "shall show affirmatively that the affiant is competent to testify to the matters stated therein." CR 56(e). An expert witness's opinion must be based on "sufficient foundational facts;" if an expert's opinion is based only on theoretical speculation, it must be excluded. Simmons v. City of Othello, 199 Wn.App. 384, 393, 399 P.3d 546 (2017) (quoting Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 103-104, 882 P.2d 703, 891 P.2d 718 (1994)). "[T]here is no value in an opinion that is wholly lacking some factual basis." Queen City Farms, Inc., 126 Wn.2d at 102-03.

A. Declaration of Dan Hall

We first turn to the challenged statements in the declaration of Dan Hall, "an expert in the field of community corrections and offender supervision" with "three decades of experience" with the Washington State DOC. He reviewed materials related to this case and provided expert opinions on DOC's standard of care, breach, and causation. He opined that DOC failed to adequately prepare for Day's supervision, failed to adequately obtain information about his possession of firearms or search his residence, failed to relay information between different DOC employees, and improperly ended Day's supervision "while he was in active violation of the conditions of his supervision." He concluded that had DOC exercised slight care, Day would have been incarcerated on the day of Fievez's injury.

Fievez contends the court erred in striking paragraphs 8, 55, 59, 62 (in part), 79, 80, 82, 90, 91, 95, 98, 100-103, 106 (in part), and 113 from Hall's declaration. DOC cross-appeals, arguing the trial court should have additionally stricken paragraphs 62, 65, and 94.[1] In several of his opinions, Hall fails to provide a sufficient basis rooted in his experience or the facts of this case. As such, paragraphs 8, 59, 62 (in part), 79, 80, 90, 91, 95, 98, 100, 101, 103, 106 (in part),[2] and 113 are inadmissible as speculative and the court did not err in striking them. Paragraph 65 should have been stricken as speculative as well.

Additionally, we strike paragraph 102 in part; the last sentence of paragraph 102 is speculative and therefore inadmissible.

However, some of the paragraphs the court struck do have a sufficient basis and we consider them in our analysis: paragraphs 55 and 82. We additionally hold that paragraph 94 is not speculative and decline to strike it.

B. Second Declaration of Annalise Richmond

DOC asserts in its cross-appeal that the trial court erred in failing to strike paragraph four in the second declaration of Annalise Richmond. Richmond was Day's fiancée at the time of his death; they began dating in June 2017, and she testified that Day moved into her home in either August or September 2017.[3]Richmond stated that she "had been a gun owner for many years," and she had "several firearms" in her home when Day moved in, including "a large rifle propped up behind my jewelry box in plain-sight." She also testified that Day "owned firearms prior to moving in" to her home, including ones she saw "at his prior residence."

DOC contends Richmond's declaration lacked personal knowledge. In paragraph four, Richmond admitted that she never accompanied Day to transport firearms but stated he "never mentioned any other location where he stored personal items," and she was "not aware of any other location that he kept personal items prior to August 2017." However, Richmond does not claim personal knowledge that Day kept firearms in a specific location. She simply stated, "it is my belief that Tim's firearms and personal belongings were more probably than not transported from his prior residence," before again stressing that she "was not with Tim when he moved these items," but rather this opinion was her "best and most informed reasonable inference." Richmond openly admits that her opinion is an inference based on her related knowledge, rather than firsthand information or observation of the subject matter of her declaration (such as where Day kept firearms, or how or when he moved them). Richmond's stated beliefs and inferences go to the weight of her testimony, not its admissibility. We decline to strike it as we do not weigh evidence in reviewing a summary judgment dismissal.[4]

C. Declaration of David Stinson

Finally, DOC argues the court should have stricken portions of David Stinson's declaration that were later contradicted by his deposition testimony. David[5] and his wife Becky lived in the same home as Day from March 2016 until June 2017. Day and the Stinsons rented the home from their then-employer. David testified that he had little contact with Carrigan. He also stated that "about 2 to 3 months after moving into the house, [Day] came into the house with - what appeared to be - a gun case."

David initially stated that he spoke with Day's CCO, Carrigan, prior to Day moving in, however, in his later deposition he admitted that was untrue. In paragraph seven of his declaration, David testified that Day told David he was permitted to have a firearm since he inherited it. In his later deposition, David admitted that he could not recall that conversation ever taking place. In reply, Fievez does not contest that the statements are untrue; because David later testified that, to his knowledge, the events never occurred, we strike them.

With the admissible evidence clarified, we turn to the merits of the summary judgment dismissal of Fievez's negligence claim.[6]

II. Negligence Claim

This court reviews a summary judgment dismissal de novo, engaging in the same inquiry as the trial court. Davies v MultiCare Health Sys., 199 Wn. 2d 608, 616, 510 P.3d 346 (2022). "'[W]e consider all the facts and make all reasonable factual inferences in the light most favorable to the nonmoving party.'" Schwartz v. King County, 200 Wn.2d 231, 237, 516 P.3d 360 (2022) (quoting Lockner v. Pierce County, 190 Wn.2d 526, 530, 415 P.3d 246 (2018)). "Summary judgment is appropriate only when a trial would be useless; there must be no genuine issues of material fact and the moving party must be entitled to judgment as a matter of law." Schwartz, 200 Wn.2d at 237. In ruling on a summary judgment motion, "the trial court may not weigh the evidence, assess credibility, consider the likelihood that the evidence will prove true, or otherwise resolve issues of material fact" because "our constitution protects the right to have factual issues decided by a jury."[7] This court may "affirm a grant of summary judgment on any basis supported by the record." Eylander v. Prologis Targeted U.S....

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