Keates v. City of Vancouver

• Citation: 73 Wn.App. 257,869 P.2d 88
• Decision Date: 08 March 1994
• Docket Number: No. 14742-4-II,14742-4-II
• Parties: John KEATES, Appellant, v. CITY OF VANCOUVER and Danne Johnson, Respondent.
• Court: Court of Appeals of Washington

Page 257

73 Wn.App. 257

869 P.2d 88

John KEATES, Appellant, v. CITY OF VANCOUVER and Danne Johnson, Respondent.

No. 14742-4-II.

Court of Appeals of Washington,

Division 2.

March 8, 1994.

Theodore Henry Gathe, City of Vancouver, Alison Jayne Chinn, Asst. City Atty., Jerry Franklin King, Vancouver City Atty., Vancouver, for respondent.

Paul Lloyd Henderson, Baumgartner and Henderson, Vancouver, for appellant.

PETRICH, Judge Pro Tem. ¹

John Keates sued the City of Vancouver and police officer Danne Johnson for the torts of outrage and negligent infliction of emotional distress committed against him when police interrogated him about his wife's murder. The trial court dismissed these claims on summary judgment.

In the early evening of January 13, 1986, John Keates returned home from work to find Karen, his wife, lying on their bed in a pool of blood. She had been raped, strangled, and shot with a shotgun. He called 911. The Vancouver Police Department sent Sergeant Danne Johnson to investigate, who took a statement from Keates.

Between January 14 and January 24, various department officials contacted Keates. They questioned him about his activities near or about the time of his wife's murder and was also asked to submit hair, saliva, and blood samples for testing.

By January 24, the investigation had identified two suspects: Keates and James Dykgraaf. Dykgraaf was Keates's neighbor. The investigation revealed that Dykgraaf had a juvenile record for assaulting and attempting to rape a young girl in August, 1976. The police also received an anonymous call from a male who told them that the "one" they "should be going after is Jim Dykgraaf." The caller also told them, and they later confirmed, that Dykgraaf owned a sawed-off shotgun. The police questioned Dykgraaf prior to January 24 and obtained samples of his blood, saliva, and hair samples, but did not expect the test results for several weeks.

Police suspected Keates because the crime scene showed no sign of forced entry, suggesting Karen knew her assailant. Also, a neighbor had reported seeing Keates run out of the house yelling, "What have I done! What have I done! My father, my mother, and now Karen." The police also discovered that Keates owned several weapons, including a shotgun and Keates was unable to account for its location. Moreover, upon interviewing the Keateses' acquaintances, friends, and family, they learned that the Keateses had a strained marriage and learned that Keates had once choked Karen and had given her black eyes, which she tried to hide with makeup.

Dykgraaf told the police that he had seen Keates's truck drive by the house at about the time of the murder. Although Keates had given them the name of a man who could account for his whereabouts on the afternoon of the murder, the police did not contact him.

Moreover, there were inconsistencies between the statement Keates gave on the day of the murder and the evidence at the scene. On January 24, Johnson asked Keates to come down to the police station to clear up these inconsistencies. Keates, accompanied by his uncle, a retired police officer from California, went voluntarily, arriving at about 4 o'clock in the afternoon.

When Keates arrived, he agreed to take a polygraph. The police read Keates his Miranda ² rights, which he waived in writing. The polygraph examiner arrived at about 4:45 p.m. and began to examine Keates at about 5:15 or 5:30 p.m. Keates cannot remember how long the exam lasted. He does remember the examiner interviewed him in the polygraph room for at least an hour after the exam.

Because the results of the polygraph and the post exam interview were inconclusive, Keates agreed to allow Sergeants Johnson and Darryl Odegard to further interview him. The sergeants conducted a "good-guy, bad-guy" type interview, with Johnson playing the "bad guy" and asking most of the questions. During this interview, Johnson asked Keates about a report that someone had seen him in the neighborhood on the afternoon of his wife's murder. Although Keates had given them an alibi, they had not followed up on it. Johnson also questioned him about the garment he said he had seen on his wife's body, which police had been unable to locate, and questioned him about his shotgun, which had been missing since the murder. Johnson also told Keates he had interviewed a woman who feared that Keates had killed his wife and would now come after her. Johnson suggested to Keates that he murdered his wife and simply could not remember doing so. He also suggested the jury could be more lenient if he confessed. Johnson concluded the interrogation by putting his face up to Keates's and yelling, "I think you premeditatedly murdered your wife you f[* * * * * *] a[* * * * * *]." The interview ended when Keates asked to leave at about 11 or 12 that evening.

The police eventually developed probable cause to arrest Dykgraaf, who was eventually tried and convicted of the murder.

About 6 months after the murder, Keates developed chronic anxiety and depression, and began to have nightmares, dizziness, headaches, and chest pains. A psychiatrist and a clinical psychologist diagnosed him as suffering from delayed post traumatic stress disorder, which they linked in part to the interrogation. Keates sued the City of Vancouver and Sergeant Johnson, claiming the defendants failed to properly investigate his wife's murder and that this failure resulted in premature and overly aggressive interrogation, which caused his post traumatic stress disorder.

The defendants moved for summary judgment. Keates opposed the motion with the affidavit of Donald Van Blaricom, former Chief of Police for the City of Bellevue, Washington. Van Blaricom's opinion was that Dykgraaf was the only viable suspect. He also stated that Keates had no opportunity, and little motive or ability to murder his wife. In Van Blaricom's opinion, the police officers acted with reckless indifference to the facts and were unconscionable in aggressively accusing John Keates of murdering his wife. Van Blaricom stated, the "defendants' investigation of the murder of [Karen Keates] and their official treatment of [John Keates] were so lacking in the expected professional standard of care as to be callously outrageous."

The trial court granted the defendants's motion. It also denied Keates's motion for reconsideration. Keates appeals. We affirm.

Standard of Review

When reviewing a trial court's ruling on a motion for summary judgment, we review the record de novo. Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., 119 Wash.2d 334, 341, 831 P.2d 724 (1992). We will uphold the trial court's judgment if "the pleadings, affidavits, depositions and admissions on file demonstrate that there is no genuine issue as to any material fact and the party bringing the motion is entitled to judgment as a matter of law." Duvon v. Rockwell Int'l, 116 Wash.2d 749, 753, 807 P.2d 876 (1991) (quoting Christen v. Lee, 113 Wash.2d 479, 488, 780 P.2d 1307 (1989)). "[T]here is no genuine issue of material fact or if reasonable minds could reach only one conclusion on that issue based upon the evidence construed in the light most favorable to the nonmoving party." Weatherbee v. Gustafson, 64 Wash.App. 128, 131, 822 P.2d 1257 (1992).

Outrage

To recover for emotional distress inflicted by intentional or reckless conduct, Washington plaintiffs must plead and prove the elements of the tort of outrage.

The basic elements of the tort of outrage are: "(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress." Rice v. Janovich, 109 Wash.2d 48, 61, 742 P.2d 1230 (1987); Restatement (Second) of Torts § 46 (1965). The conduct in question must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291 (1975).

Dicomes v. State, 113 Wash.2d 612, 630, 782 P.2d 1002 (1989). Whether conduct is sufficiently outrageous is ordinarily a question for the jury, but initially it is the responsibility of the court to determine if reasonable minds could differ on whether the conduct was so extreme as to result in liability. Dicomes, at 630, 782 P.2d 1002; Jackson v. Peoples Fed. Credit Union, 25 Wash.App. 81, 84, 604 P.2d 1025 (1979) (trial court must make an initial determination as to whether the conduct may reasonably be regarded as extreme and outrageous, thus warranting a factual determination by the jury).

In determining whether a case should go to jury, a court considers:

(a) the position occupied by the defendants; (b) whether plaintiff was peculiarly susceptible to emotional distress, and if defendant knew this fact; (c) whether defendant's conduct may have been privileged under the circumstances; (d) the degree of emotional distress caused by a party must be severe as opposed to constituting mere annoyance, inconvenience or the embarrassment which normally occur in a confrontation of the parties; and, (e) the actor must be aware that there is a high probability that his conduct will cause severe emotional distress and he must proceed in a conscious disregard of it.

Phillips v. Hardwick, 29 Wash.App. 382, 388, 628 P.2d 506 (1981) (paraphrasing Jackson, 25 Wash.App. at 86-87, 604 P.2d 1025).

Accepting Keates's factual allegations as true, and drawing all reasonable inferences therefrom in his favor, we find the trial court was correct in dismissing Keates's claim of outrage on summary judgment.

Here, Johnson, acting on the behalf of the defendant City of Vancouver, was lawfully engaged in the investigation of a serious crime. Keates clearly was a possible suspect. There was no showing that Johnson was aware or should have been aware that Keates was particularly susceptible to...