Hunsaker v. State

• Decision Date: 30 November 1993
• Docket Number: No. 910366,A-M,I-,D,910366
• Citation: 870 P.2d 893
• Parties: Jim HUNSAKER, individually and on behalf of the deceased Maurine F. Hunsaker, and Betty Sudweeks on behalf of Matt Hunsaker, Nicholas Hunsaker, and Dana Hunsaker, minor children of Jim and Maurine F. Hunsaker, Plaintiffs and Appellants, v. STATE of Utah, a body politic, Gary DeLand, as director of Utah State Department of Corrections, Utah State Department of Corrections, Utah State Board of Pardons and Parole, Myron March as director of Utah State Department of Adult Probation and Parole, Ray Wall, as regional supervisor, Region III of Utah State Department of Adult Probation and Parole, Kent Jones and Joe Smout, as supervisors of John Shepard of the Utah State Department of Adult Probation and Parole, John Shepard, in his capacity as parole officer, Utah State Department of Adult Probation and Parole, Gas-at Oil Corp. of Colorado, a Colorado corporation, and John Doesefendants and Appellees.
• Court: Utah Supreme Court

Page 893

870 P.2d 893

Jim HUNSAKER, individually and on behalf of the deceased Maurine F. Hunsaker, and Betty Sudweeks on behalf of Matt Hunsaker, Nicholas Hunsaker, and Dana Hunsaker, minor children of Jim and Maurine F. Hunsaker, Plaintiffs and Appellants, v. STATE of Utah, a body politic, Gary DeLand, as director of Utah State Department of Corrections, Utah State Department of Corrections, Utah State Board of Pardons and Parole Myron March as director of Utah State Department of Adult Probation and Parole, Ray Wall, as regional supervisor Region III of Utah State Department of Adult Probation and Parole, Kent Jones and Joe Smout, as supervisors of John Shepard of the Utah State Department of Adult Probation and Parole, John Shepard, in his capacity as parole officer Utah State Department of Adult Probation and Parole Gas-A-Mat Oil Corp. of Colorado, a Colorado corporation, and John Does I-V, Defendants and Appellees.

No. 910366.

Supreme Court of Utah.

Nov. 30, 1993.

P. Gary Ferrero, Salt Lake City, for plaintiffs R. Paul Van Dam, Atty. Gen., Debra J. Moore, Asst. Atty. Gen., for State defendants.

Gary L. Johnson, Salt Lake City, for Gas-A-Mat.

HALL, Chief Justice:

Plaintiffs appeal from a summary judgment entered in favor of defendant State of Utah on plaintiffs' wrongful death claim arising from the kidnapping and murder of Maurine Hunsaker by Ralph Leroy Menzies, a parolee from the Utah State Prison. Plaintiffs also appeal the district court's grant of defendant Gas-A-Mat Oil Corporation of Colorado's ("Gas-A-Mat") motion to dismiss plaintiffs' claims against it. We affirm.

Maurine Hunsaker was employed by Gas-A-Mat as a cashier. On February 23, 1986, she was on duty at a Gas-A-Mat service station located in Salt Lake County. On that same date, Menzies abducted her from Gas-A-Mat and later murdered her.

At the time of the murder, Menzies was on parole from the Utah State Prison. He had been serving two sentences of five years to life for aggravated robberies committed in 1976 and 1978 and one sentence of one to fifteen years for a 1978 escape. Menzies was paroled on October 9, 1984. From the time of his parole to the time of Hunsaker's abduction, Menzies regularly reported to his parole officer, John Shepard, as required by his parole agreement. During this time, Menzies held various jobs and had no substantial periods of unemployment. Shepard contacted Menzies frequently, usually finding everything in order.

Menzies' parole agreement provided, among other things, that he maintain mental health counseling and complete a halfway house program. In November 1984, the Board of Pardons eliminated the halfway house requirement. In April 1985, Menzies underwent a psychological evaluation, after which the treating psychologist reported that Menzies did not need further psychotherapy. While Shepard considered the mental health counseling requirement to be completed, Menzies' parole agreement was never modified to eliminate this requirement.

In December 1984, a woman contacted Shepard, claiming that Menzies had threatened her son with a gun. Shepard spoke with the alleged victim and detained Menzies at the Salt Lake County Jail. After a police investigation, the claim was retracted, and no further action was taken. The case was dismissed, and Menzies was released. No incident report of a parole violation was filed. ¹

In May 1985, Menzies turned in an automatic pistol to Shepard. Menzies' parole agreement specifically prohibited him from possessing a firearm. Menzies claimed to have taken the pistol from another parolee to prevent the parolee from committing a crime. Shepard investigated and determined that neither the gun nor Menzies was connected to any recent crimes. Shepard believed that Menzies had acted in good faith and took no further action. No incident report of a parole violation was filed.

In December 1985, Shepard discovered stolen truck tires and Christmas decorations at Menzies' home. Shepard had Menzies arrested and booked into the Salt Lake County Jail for theft of the tires. Shepard made arrangements to place Menzies in the Intensive Supervision Program to provide stricter supervision over him. ² On February 10, 1986, Menzies pleaded guilty to attempted theft, a class A misdemeanor, and was scheduled for sentencing on March 11, 1986. He was released pending sentencing. No incident report of a parole violation was filed. ³ Shepard stated that he planned to report Menzies' theft conviction to the Board of Pardons before the March 11 sentencing.

In the meantime, sometime in January 1986, a warrant to arrest Menzies for theft of the Christmas decorations was prepared and issued. No incident report of a parole violation was filed. Hunsaker was murdered on February 23, 1986. On February 24, 1986, Menzies was arrested pursuant to the earlier warrant issued against him for theft of the Christmas decorations.

On February 27, 1986, the Salt Lake County Sheriff's office informed Shepard that Menzies was suspected of murder. This was the first time Shepard learned of Hunsaker's murder. Menzies was detained without bail, charged with capital homicide, and later convicted by a jury.

In June 1987, Hunsaker's surviving husband and children filed a complaint against the State, ⁴ claiming that the negligent parole of Menzies and the subsequent failure to supervise his parole were the cause of Hunsaker's death. Specifically, plaintiffs claimed that the State was negligent in failing to report Menzies' parole violations before Hunsaker was kidnapped and murdered. In December 1990, after extensive discovery proceedings, the State moved for summary judgment. ⁵ In support of its motion, the State submitted the affidavit of Victoria Palacios, a member of the Board of Pardons. The affidavit provided, among other things, that in 1986 and 1987 the Board of Pardons had a policy of pursuing alternatives other than imprisonment for those who violated parole. As part of this policy, the Board of Pardons' general practice was to wait for the final disposition of pending criminal charges before it revoked the parole of a parolee accused of committing new crimes. In making its decisions, the Board of Pardons usually followed the recommendations of the supervising parole agent as to whether a parolee should be reincarcerated for a parole violation. The Palacios affidavit further provided that Menzies' theft of the tires and the Christmas decorations would not necessarily have been grounds for revoking Menzies' parole status and that great deference would have been given to the parole agent's recommendations to allow Menzies to remain at large while awaiting sentencing for the theft conviction. The district court concluded that the facts were not in dispute and that the State was entitled to judgment as a matter of law.

In addition to the State defendants, plaintiffs included Gas-A-Mat as a defendant. They claimed that Gas-A-Mat was acting in a "dual capacity," as both an employer and a provider of security. Plaintiffs claimed that as a provider of security, Gas-A-Mat breached its duty of due care and is therefore liable for Hunsaker's death. Gas-A-Mat responded by moving to dismiss plaintiffs' claims, asserting that the Utah Workers' Compensation Act provides the exclusive remedy for the death of an employee ⁶ and that under Utah law, the dual capacity doctrine does not provide an exception to the exclusive remedy provisions of the Workers' Compensation Act. The district court granted Gas-A-Mat's motion to dismiss.

Plaintiffs bring this appeal, challenging the district court's granting of the State's motion for summary judgment and Gas-A-Mat's motion to dismiss.

We turn first to plaintiffs' claim against the State. A grant of summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ⁷ Because summary judgment is granted as a matter of law, we review the trial court's legal conclusions for correctness, according them no deference. ⁸

Plaintiffs argue that the State was negligent in its supervision and control of Menzies and is therefore liable for Hunsaker's death. In support of their negligence claim against the State, plaintiffs contend that by virtue of the State's special relationship with Menzies, the State had a duty to the general public, which included Hunsaker. Specifically, plaintiffs assert that the State had a special relationship with Menzies stemming from its responsibility to oversee his parole, which included general supervision, unscheduled visits, and the requirement that he meet all the terms and conditions of his parole. Plaintiffs further assert that while Menzies was under the State's supervision, the State was aware of his "violent propensities" and that it was therefore foreseeable that Menzies might be dangerous. In addition, plaintiffs assert that Hunsaker as a "person serving the public" fell within a class of persons in foreseeable danger because Menzies had previously harmed a person serving the public.

Plaintiffs claim that the specific standard of care required of the State was to follow its own established procedures. Such procedures required those charged with supervising a parolee to report all violations or suspect incidents to the Board of Pardons. Based on the information in the report, the Board of Pardons could then revoke parole. Plaintiffs point to four specific incidents during Menzies' parole which were not reported and claim that failure to report these "violations" contravened established procedures, thus denying the Board of Pardons the opportunity to exercise its authority over Menzies. Consequently, the State failed to meet the requisite standard of care. In short, according to plaintiffs, the State had a duty to control Menzies and it breached that duty when it did not comply with its own established procedures.

Regarding the issue of causation, plaintiffs argue...