Noel v. King County

• Decision Date: 15 June 1987
• Docket Number: No. 16811-8-I,16811-8-I
• Citation: 48 Wn.App. 227,738 P.2d 692
• Court: Washington Court of Appeals
• Parties: Charles Joseph NOEL, and Katherine Noel, Appellants, v. KING COUNTY, Respondent.

Page 227

48 Wn.App. 227

738 P.2d 692

Charles Joseph NOEL, and Katherine Noel, Appellants, v. KING COUNTY, Respondent.

No. 16811-8-I.

Court of Appeals of Washington Division 1.

June 15, 1987.

As Changed June 26, 1987.

Rehearing Denied July 15, 1987.

[738 P.2d 693] Phil Mahoney, Seattle, for Charles J. Noel and Katherine Noel.

Philip A. Talmadge, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for King County.

PEKELIS, Judge.

Charles Joseph Noel appeals from a judgment dismissing his suit against King County for false arrest, false imprisonment, and medical negligence. He contends that the trial court erred in granting the County's motion for partial summary judgment on the issue of medical negligence and in denying his own motions for summary judgment and a directed verdict on the issues of false arrest and false imprisonment. He also contends that the trial court erred in instructing the jury as to the law of false arrest. In its cross appeal, the County assigns error to the trial court's refusal to admit evidence of marijuana cultivation in Noel's home.

FACTS

In the spring of 1981, the King County Police, along with the Seattle Police, the Redmond Police, and the FBI, were investigating a series of armed robberies. By late May, the investigation had focused on one Tommy Fox, who was believed to be the leader of the gang who had committed the robberies. Fox was known to be a prison escapee and was believed to be extremely dangerous. During one of the robberies he had shot two people for no apparent reason.

In the early morning hours of May 28, Fox arrived at the home of Charles and Katherine Noel along with Bill Denny, Colleen Quinn, and two children. Denny, an old friend of Mr. Noel, had called earlier and had been given permission by Mrs. Noel to spend the night. Fox, Denny, and Quinn brought with them several boxes and suitcases which they took into the Noel home.

Later the same day, Noel went with Fox to start the latter's van, which had stalled nearby. They then went to a storage area and rented a locker for the van. Noel signed the rental agreement "Charles N. Petersen" and used a fictitious address. After unloading the van and placing it in storage, Noel and Fox went to Frank's Market, where Fox expected to be picked up by his brother-in-law.

However, Fox's brother-in-law, a Mr. Anguelo, was at that time in the custody of the King County Police. Anguelo told the police that Fox and another individual would be at Frank's Market, and that Fox was extremely "paranoid," associating only with people whom he trusted completely. Acting on this information, agents of the King County, Redmond, and Seattle Police, as well as the FBI, proceeded to Frank's Market, where they apprehended Fox and Noel. Noel was ordered to lay face down on the ground and was frisked while a gun was pointed at his head. Then he was handcuffed and taken by FBI agents to the King County Police Station.

At the police station, Noel was questioned by Detective William J. DiMonda of the King County Police. Although Noel made several requests for an attorney, DiMonda continued the questioning. Noel told DiMonda that Fox had come to his home the night before, alone and without a car, and had left some boxes there. Noel signed a form giving the King County Police permission to conduct a complete search of his home. ¹ The police also obtained a search warrant based on earlier statements made by Noel to the FBI. Noel was then told that he was not under arrest. Since his car had been impounded, he accepted a ride to his home with DiMonda.

DiMonda and Noel arrived at Noel's home to find Denny and Quinn being detained in the driveway by officers who had gone there to await the arrival of the search warrant. In the garage was Denny's car, which matched the description of the car used in one of the robberies. Noel's car was in the driveway with a canvas bank bag visible in the open trunk. DiMonda told Noel that he had lied, and that he was placing him under arrest again. Subsequent searches of the home, the cars, and the storage locker revealed large quantities of stolen cash, jewelry, and other items.

Noel was charged with possession of stolen property in the first degree and was confined in the King County Jail from May 28 until July 2, when he was released on bail. On July 17, the charge against him was dismissed on the prosecutor's motion. In the action involving Denny and Quinn, counsel for the State stipulated that Noel's arrest at Frank's Market was made without probable cause and that the statement Noel gave to DiMonda during questioning was obtained in violation of his constitutional rights.

Noel brought suit against King County seeking damages for false arrest, false imprisonment, and medical negligence. ² The trial court granted the County's motion for partial summary judgment, dismissing Noel's claim of medical negligence. Noel's motion for summary judgment, based on a collateral estoppel theory, was denied. After the court denied Noel's motion for a directed verdict, the jury returned a verdict for the County and the court entered judgment accordingly. Noel appeals from this judgment, while the County brings a cross appeal in which it assigns error to the trial court's refusal to admit evidence of marijuana cultivation in Noel's home.

MEDICAL NEGLIGENCE

Noel alleged in his complaint that during his confinement in the King County Jail he was deprived of necessary medical treatment for a back condition, "causing much suffering and anguish." The County moved for a partial summary judgment on the strength of the affidavit of Dr. Michael G. Robinson, a physician employed by the Seattle King County Department of Public Health. Dr. Robinson stated that his review of Noel's medical records indicated that County employees had complied with all applicable standards of care in the treatment of Noel's lower back pain. Noel responded with the affidavit of Dr. Jonathan Zend, who had treated him for low back pain prior to his arrest. Dr. Zend stated (1) that failure to promptly contact a patient's attending physician when requested to do so falls below the applicable standard of care, and (2) that treatment with aspirin alone is insufficient if the patient does not respond to the treatment. Noel stated in his own affidavit that he was treated only with aspirin, although he requested other pain medication.

After the trial court denied the County's motion, the County brought a second motion based on the deposition testimony of Dr. Zend. In his deposition, Dr. Zend stated (1) that he had not reviewed Noel's medical records and had no first-hand knowledge of the treatment Noel received in jail or of the symptoms he had displayed, and (2) that Noel's condition was not worsened by his incarceration. The trial court granted the second motion, finding that the County's alleged negligence was not the proximate cause of any injury to Noel.

On an appeal from an order of summary judgment, the reviewing court engages in the same inquiry as the trial court. See Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). Where a properly supported motion for summary judgment is made, the party opposing the motion must set forth specific facts showing that there is a genuine issue for trial. CR 56(e). In the case of a claim for medical negligence, such facts must be shown by expert medical testimony. Swanson v. Brigham, 18 Wash.App. 647, 651-52, 571 P.2d 217 (1977); Shoberg v. Kelly, 1 Wash.App. 673, 677, 463 P.2d 280 (1969) ireview denied, 78 Wash.2d 992 (1970); Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052, 1054 (1975); see also Harris v. Groth, 99 Wash.2d 438, 449, 663 P.2d 113 (1983).

Although the trial court found that the County's alleged negligence was not the proximate cause of any injury to Noel, we can sustain the judgment on other grounds established by the pleadings and supported by the record. See Bremmeyer Excavating, v. McKenna, 44 Wash.App. 267, 268, 721 P.2d 567 (1986). We find that summary judgment is appropriate because Noel has failed to show by expert medical testimony that there is any issue of material fact as to the breach of any applicable standard of care. While Dr. Zend states that failure to contact a patient's attending physician when requested to do so would be such a breach, there are no facts in the record on the motion for summary judgment to show that Noel made such a request. ³ Dr. Zend also states that treatment of low back pain with aspirin alone is insufficient if the patient does not respond, but there is no expert testimony to show that Noel did not respond to such treatment. We conclude that Noel's failure to present expert medical testimony rebutting that of Dr. Robinson was sufficient justification for the trial court's order of summary judgment. Swanson, 18 Wash.App. at 651-52, 571 P.2d 217; Shoberg, 1 Wash.App. at 677, 463 P.2d 280; Harris, 99 Wash.2d at 449, 663 P.2d 113.

COLLATERAL ESTOPPEL

Noel next assigns error to the trial court's denial of his motion for summary judgment on the issues of false arrest and false imprisonment. He contends that the County is collaterally estopped from "relitigating" these issues because of (1) the State's dismissal of the criminal charge against him and (2) the State's stipulation, in its prosecution of Denny and Quinn, that Noel's arrest at Frank's Market was without probable cause.

As a preliminary matter, we consider whether an arrest without probable cause is in fact a false arrest. Noel assumes that it is, while the County suggests that a lower standard of "reasonableness" is applicable in a cause of action for false...