Gregoire v. City of Oak Harbor, No. 81253-5.

• Court: United States State Supreme Court of Washington
• Writing for the Court: SANDERS
• Citation: 244 P.3d 924,170 Wash.2d 628
• Decision Date: 02 December 2010
• Docket Number: No. 81253-5.
• Parties: Tanya GREGOIRE, guardian for the person and estate of Brianna Alexandra Gregoire, a minor, and as personal representative for Edward Albert Gregoire, deceased, Petitioner, v. CITY OF OAK HARBOR, a municipal corporation, Respondent, Richard Wallace, and his marital community; Benjamin Slaman, and his marital community; John Dyer and his marital community; Raymond Payeur and his marital community; Steven Nordstrand and his marital community; William Wilkie, and his marital community, Defendants.

244 P.3d 924
170 Wash.2d 628

Tanya GREGOIRE, guardian for the person and estate of Brianna Alexandra Gregoire, a minor, and as personal representative for Edward Albert Gregoire, deceased, Petitioner,
v.
CITY OF OAK HARBOR, a municipal corporation, Respondent,
Richard Wallace, and his marital community; Benjamin Slaman, and his marital community; John Dyer and his marital community; Raymond Payeur and his marital community; Steven Nordstrand and his marital community; William Wilkie, and his marital community, Defendants.

No. 81253-5.

Supreme Court of Washington,
En Banc.

Argued May 26, 2009.
Decided Dec. 2, 2010.

244 P.3d 925

James Wilson Kytle, Mary Ruth Mann, Mann & Kytle, P.L.L.C., Seattle, WA, for Petitioner.

Robert L. Christie, Jason Marc Rosen, Christie Law Group, P.L.L.C., Seattle, WA, for Respondent.

Bryan Patrick Harnetiaux, Spokane, WA, George M. Ahrend, Ahrend Law Firm, P.L.L.C., Moses Lake, amicus counsel for Washington State Association for Justice Foundation.

SANDERS, J.

170 Wash.2d 630

¶ 1 Shortly after police arrested Edward Gregoire (Gregoire), he displayed a range of unstable behavior,

170 Wash.2d 631

including thrashing violently, tussling with officers, crying, making irrational statements, and asking officers to shoot him. Roughly half an hour after transporting Gregoire to the Oak Harbor jail, officers found Gregoire hanging by his neck from a ventilation grate. Gregoire died soon thereafter. Tanya Gregoire (Ms. Gregoire), personal representative of Gregoire's estate, sued Oak Harbor for negligence in his death.

¶ 2 During a jury trial, the court read instructions on assumption of risk and contributory negligence, over plaintiff's objections. The jury found Oak Harbor negligent, but that its negligence was not the proximate cause of Gregoire's death. On appeal the Court of Appeals affirmed the trial court, holding the jury instructions did not prejudice Ms. Gregoire's case. We now reverse the Court of Appeals. Because jailors owe a special duty of care to their inmates, jury instructions regarding assumption of risk and contributory negligence are inappropriate in cases of inmate suicide.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 In December 1995 Washington State Trooper Harry Nelson arrested Gregoire on outstanding misdemeanor warrants. After handcuffing Gregoire, Nelson placed him in a patrol car for transport to the Oak Harbor jail. During transport Gregoire kicked and

244 P.3d 926

kneed the protective shield between the front and rear seats of the patrol car. Between violent bouts, Gregoire descended into despondency, at one point condemning his friends because, "I take one step forward and my friends take me two steps back." Concerned that Gregoire might return to violence at the jail, Nelson called dispatch to have another officer meet the patrol car there. State Trooper Scott Wernecke waited outside.

¶ 4 When the patrol car arrived at the jail, Nelson unbuckled Gregoire's seat belt, allowing Gregoire to step out of the patrol car. As Nelson bent down to retrieve Gregoire's hat from the car's passenger compartment, Gregoire broke

170 Wash.2d 632

free and ran from the troopers. Nelson grabbed Gregoire's shirt, tearing it, and Gregoire fell to the ground. Nelson and Wernecke forcibly restrained him. Gregoire reportedly screamed, "Why don't you just shoot me, please just shoot me," as the troopers carried a writhing Gregoire into the jail. Clerk's Papers (CP) at 628. Oak Harbor Police Officer William Wilkie aided the troopers by fetching plastic flex cuffs to restrain Gregoire's legs. Wernecke struck Gregoire on the thigh with his collapsible baton to halt Gregoire's kicking. Inside the jail, officers strapped Gregoire into a restraint chair in a holding cell. Over the next few minutes, Gregoire reportedly calmed down enough for officers to unstrap him from the restraint chair and remove the flex cuffs. They transported Gregoire to a regular cell.

¶ 5 Jail officials did not administer any mental or physical health screening before leaving Gregoire alone in the cell. Minutes later a jail official observed Gregoire crying. Approximately 10 minutes after the official saw Gregoire crying, an officer found him hanging from a bed sheet strung through the cell's ventilation grate. The officer called for help using the jail intercom and panic alarm. The officer ran to his desk to get a key to Gregoire's cell and a pair of scissors to cut him down. Several Oak Harbor police officers responded to the alarm. One called for an ambulance on his radio. Two responding officers checked Gregoire's pulse and breathing, but observed neither. None of the officers administered CPR (cardiopulmonary resuscitation), even though it had been 5 to 10 minutes since Gregoire was last seen alive in the cell. When paramedics arrived, they detected warmth in Gregoire's body, and began CPR. After 15 or 20 minutes, the paramedics noticed a faint carotid pulse. CPR continued for approximately 25 minutes as paramedics transported Gregoire to the hospital. At the emergency room, doctors designated Gregoire's condition a "premorbid state." Doctors pronounced Gregoire dead shortly thereafter.

¶ 6 In 1998 Ms. Gregoire, acting as guardian ad litem for Gregoire's minor child, Brianna Gregoire, and as personal

170 Wash.2d 633

representative of Gregoire's estate, brought suit in the United States District Court for the Western District of Washington. Ms. Gregoire asserted three civil rights claims, under 42 U.S.C. § 1983, and state law claims of negligence and wrongful death against the city of Oak Harbor and the various individual officers and jailors who interacted with Gregoire. On October 5, 2001 Judge Lasnik dismissed Ms. Gregoire's section 1983 and punitive damages claims, as well as the negligence claims against Nelson and Wernecke. Judge Lasnik declined to dismiss the remaining state law claims, ruling the parties had not substantively addressed the issue of supplemental jurisdiction. On May 6, 2002 Judge Lasnik declined to exercise supplemental jurisdiction and dismissed without prejudice the remaining negligence claims.

¶ 7 On May 30, 2002, Ms. Gregoire filed suit in Island County Superior Court, alleging wrongful death, state constitutional violations, civil rights claims, and negligence. Judge Alan R. Hancock dismissed the federal claims based on res judicata and dismissed the state constitutional claims for lack of a private cause of action. On June 12, 2003 Judge Hancock issued a letter decision denying Oak Harbor's motion for summary judgment on the remaining negligence claims.

¶ 8 In May 2006, a jury trial commenced before Judge Hancock on the wrongful death claim. Ms. Gregoire contended Oak Harbor negligently failed to satisfy its duty to protect Gregoire. Over Ms. Gregoire's objection, the trial court allowed Oak Harbor to assert affirmative defenses of assumption of

244 P.3d 927

risk and contributory negligence¹ and instructed the jury on those theories. Oak Harbor also defended

170 Wash.2d 634

on two different proximate-cause theories, one of which rested on the affirmative defenses.

¶ 9 On May 31, 2006, the jury returned a verdict for Oak Harbor, finding that the city acted negligently, but its negligence was not a proximate cause of Gregoire's death. Ms. Gregoire appealed the verdict to the Court of Appeals, Division One, which affirmed. Ms. Gregoire argued that where a special relationship creates a special affirmative duty of care, assumption of risk does not apply. The Court of Appeals agreed the custodial relationship between jailor and inmate constitutes a special relationship but rejected the claim because Ms. Gregoire had not cited authority for the proposition that assumption of risk does not apply. Gregoire v. City of Oak Harbor, noted at 141 Wash.App. 1016, 2007 WL 3138044, at *4 (citing State v. Young, 89 Wash.2d 613, 625, 574 P.2d 1171 (1978)).

¶ 10 Ms. Gregoire filed a motion for reconsideration, which the Court of Appeals denied. She then petitioned this court for review, which we granted to determine whether the trial court erred by instructing the jury on assumption of risk and contributory negligence defenses in a case alleging negligent failure to prevent an inmate's suicide while in jail custody. Gregoire v. City of Oak Harbor, 164 Wash.2d 1007, 195 P.3d 86 (2008). We answer in the affirmative. When a special relationship forms between jailor and inmate, sparking a duty for the jailor to protect the inmate from self-inflicted harm, the defenses of assumption of risk and contributory negligence are inappropriate. In a claim of negligence stemming from inmate suicide, giving these instructions necessarily results in prejudicial error. We reverse the Court of Appeals and remand for a new trial consistent with this opinion.

170 Wash.2d 635

STANDARD OF REVIEW

¶ 11 We review jury instructions de novo, and an instruction containing an erroneous statement of the law is reversible error where it prejudices a party. Cox v. Spangler, 141 Wash.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000). Jury instructions are sufficient if "they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995). The court reviews a challenged jury instruction de novo, within the context of the jury instructions as a whole. State v. Jackman, 156 Wash.2d 736, 743, 132 P.3d 136 (2006).

ANALYSIS

I. Jailors owe inmates an affirmative duty, which cannot be nullified by an inmate assuming the risk of death by suicide

¶ 12 Washington courts have long recognized a jailor's special relationship with inmates, particularly the duty to ensure health, welfare, and safety. In Kusah v. McCorkle, 100 Wash. 318, 325, 170 P. 1023 (1918), this court acknowledged that a sheriff running a county jail "owes the direct duty to a prisoner in his custody to keep him in health and free from harm, and for...