Osborn v. Mason County

• Decision Date: 18 May 2006
• Docket Number: No. 76101-9.,76101-9.
• Citation: 157 Wn.2d 18,134 P.3d 197
• Court: Washington Supreme Court
• Parties: John OSBORN, individually, and as the Personal Representative of Jennie Mae Osborn, Deceased, and Kandi Osborn, individually, Respondent, v. MASON COUNTY, a municipality, and State of Washington, Department of Corrections; Joseph Rosenow and "Jane Doe Rosenow," husband and wife, Petitioner.

134 P.3d 197

157 Wn.2d 18

John OSBORN, individually, and as the Personal Representative of Jennie Mae Osborn, Deceased, and Kandi Osborn, individually, Respondent, v. MASON COUNTY, a municipality, and State of Washington, Department of Corrections; Joseph Rosenow and "Jane Doe Rosenow," husband and wife, Petitioner.

No. 76101-9.

Supreme Court of Washington, En Banc.

Argued September 13, 2005.

Decided May 18, 2006.

Charles Philip Edward Leitch, Michael Alexander Patterson, Lee Smart Cook et al, Seattle, for Petitioner.

Stephen Louis Bulzomi, John Louis Messina, Messina/Bulzomi, Tacoma, Kenneth Wendell Masters, Wiggins & Masters PLLC, Bainbridge Island, for Respondent.

Daniel Brian Heid, City of Auburn, Auburn, for Amicus Curiae Ass'n of Wash. Cities and Wash. State Ass'n of Municipal Attorneys.

Sara Lyle Ainsworth, Northwest Women's Law Center, Brian D. Buckley, Anthony Todaro, DLA Piper Rudnick Gray Cary US LLP, Seattle, for Amicus Curiae Northwest Women's Law Center.

Dennis Hunter, Vancouver, Bertha Baranko Fitzer, Pierce County Prosecutors Office, Tacoma, for Amicus Curiae Wash. Ass'n of Prosecuting Attorneys, Wash. Ass'n of Sheriff & Police Chiefs and Wash. State Ass'n of Counties.

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae Wash. State Trial Lawyers Ass'n.

SANDERS, J.

¶ 1 On February 24, 2001, registered sex offender Joseph Rosenow raped and murdered Jennie Mae Osborn. Osborn's parents sued Mason County for failing to warn them of Rosenow's presence. The superior court denied Mason County's motion for summary judgment. The Court of Appeals, Division Two, affirmed the superior court, holding Mason County had a duty to warn the Osborns of Rosenow's presence under the rescue doctrine. We hold that Mason County had no duty to warn the Osborns because they did not rely on a promise to warn and Jennie Mae Osborn was not a foreseeable victim. Accordingly, we reverse the Court of Appeals and grant Mason County's motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2 Neither party disputes the tragic facts of this case. Rosenow was a registered sex offender. In 1993, he pleaded guilty to third degree rape of a woman at knifepoint, and in 1999 he pleaded guilty to second degree assault for choking unconscious a former sexual partner. When Rosenow was released from prison in June 2000 he moved to Hoodsport, Mason County. The prison preliminarily classified Rosenow a level II sex offender, but Mason County reclassified him a level III sex offender.¹

¶ 3 Detective Jason Dracobly handled sex offender registration and community notification for the Mason County Sheriff's Department.² Before Rosenow's release Shannyn Wiseman, a resident of Mason County, contacted Dracobly who said he would post fliers and otherwise notify the community of Rosenow's presence. Dracobly registered Rosenow and posted a notice identifying him as a sex offender on Mason County's website, but did not distribute fliers. Wiseman contacted Dracobly again, informing him that Rosenow had followed two minor children, reporting Rosenow's change of address, and asking whether Dracobly still intended to distribute fliers. Dracobly told her he was too busy to distribute fliers and discouraged her from doing so herself. Id. In December 2000 Rosenow moved from Hoodsport to Shelton. But on February 24, 2001, he returned to Hoodsport where he raped and murdered Osborn.

¶ 4 Osborn's parents sued Mason County for failing to warn them of Rosenow's presence. Mason County moved for summary judgment, arguing that the sex offender statute then in effect, former RCW 4.24.550 (1998), imposed no duty to warn and conferred immunity from liability for failure to warn and moreover no duty to warn existed under the public duty doctrine.³ The trial court denied Mason County's motion for summary judgment, finding former RCW 4.24.550 imposed an implied duty to warn. The Court of Appeals granted Mason County's motion for discretionary review and affirmed the trial court's ruling on different grounds. It found no duty to warn under former RCW 4.24.550, but held Mason County might have had a duty to warn under the rescue doctrine. Osborn v. Mason County, 122 Wash.App. 823, 95 P.3d 1257 (2004). We granted Mason County's petition for review. We hold Mason County had no statutory or common law duty to warn the Osborns of Rosenow's presence and remand to the trial court with directions to grant Mason County's cross-motion for summary judgment.

STANDARD OF REVIEW

¶ 5 A motion for summary judgment presents a question of law reviewed de novo. See Denaxas v. Sandstone Court of Bellevue, L.L.C., 148 Wash.2d 654, 662, 63 P.3d 125 (2003). We construe the evidence in the light most favorable to the nonmoving party, Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998), and grant summary judgment if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." CR 56(c).

ANALYSIS

¶ 6 This case presents a question of law: did Mason County have a duty to warn the Osborns of Rosenow's presence? Puzzlingly, the Court of Appeals denied summary judgment because "the Osborns have asserted facts from which a trier of fact could find that Mason County's actions affirmatively created a separate duty under the rescue doctrine." Osborn, 122 Wash.App. at 837, 95 P.3d 1257. But, of course, the "existence of duty is a question of law," not a question of fact. Tae Kim v. Budget Rent A Car Sys. Inc., 143 Wash.2d 190, 195, 15 P.3d 1283 (2001). And neither party disputes any fact relevant to the existence of a duty. Rather, as the Court of Appeals recognizes, these parties dispute only whether Mason County's actions "negligently increased the risk of harm to Rosenow's potential victims." Osborn, 122 Wash.App. at 835, 95 P.3d 1257. So, presumably, the Court of Appeals meant the Osborns have asserted facts sufficient for a jury to find Mason County breached a duty to warn under the rescue doctrine.

I. Mason County Had No Duty to Warn the Osborns of Rosenow's Presence

¶ 7 But the Osborns do not assert facts sufficient to show Mason County had a duty to warn them of Rosenow's presence because they do not claim they relied on Mason County's assurances. A duty exists under the rescue doctrine only if an injured party reasonably relies on the assurances of a negligent rescuer. The Court of Appeals held Mason County had a duty to warn the Osborns under the rescue doctrine because Dracobly assured Wiseman he would post fliers, failed to post fliers, and discouraged Wiseman from posting fliers. Id. In other words, it held Mason County had a duty to warn the Osborns because Wiseman relied on its assurances. But that cannot support a duty under the rescue doctrine unless the Osborns reasonably relied on Wiseman. And the Osborns fail to show such reliance. Because Mason County had no duty to warn the Osborns—under the rescue doctrine or any other theory of liability—it is entitled to summary judgment.

A. Mason County Had No Statutory Duty to Warn the Osborns

¶ 8 The Court of Appeals correctly rejected the superior court's conclusion former RCW 4.24.550 created an implied duty to warn of the presence of a sex offender. Clerk's Papers at 316-17. Its conclusion follows inexorably from the plain language of the statute: "Except as may otherwise be provided by law, nothing in this section shall impose any liability upon a public official, public employee, or public agency for failing to release information authorized under this section." Former RCW 4.24.550(6). Thus, former RCW 4.24.550 neither imposed a duty to warn nor conferred immunity from liability for failure to warn.

B. Mason County Had No "Take Charge" Duty to Warn the Osborns

¶ 9 Under the "special relationship" doctrine, a public entity has a duty to control persons it has authority to control and a duty to protect foreseeable victims of dangerous persons leaving its custody. See, e.g., Joyce v. Dep't of Corrs., 155 Wash.2d 306, 119 P.3d 825, 830-31 (2005). In other words, a public entity "has a duty to take reasonable precautions to protect against reasonably foreseeable dangers." Taggart v. State, 118 Wash.2d 195, 217, 822 P.2d 243 (1992).

¶ 10 Accordingly, a public entity has a "take charge" duty to control parolees, id., mental patients, Petersen v. State, 100 Wash.2d 421, 428-29, 671 P.2d 230 (1983), and others it has authority to control, to the extent it has authority to control them. See, e.g., Couch v. Dep't of Corrs., 113 Wash.App. 556, 571, 54 P.3d 197 (2002) (holding authority to control limits duty to control). And a public entity has a duty to protect foreseeable victims of criminals, mental patients, and others leaving its custody. See Petersen, 100 Wash.2d at 428-29, 671 P.2d 230. See also Doyle v. United States, 530 F.Supp. 1278, 1288 (C.D.Cal.1982) (holding "a duty to warn arises only when the potential victim is known and foreseeable"); Hoff v. Vacaville Unified Sch. Dist., 19 Cal.4th 925, 937, 80 Cal.Rptr.2d 811, 968 P.2d 522 (1998) (holding "public entities have no affirmative duty to warn of the release of an inmate with a violent history unless the inmate makes a specific threat against a specific, identifiable victim or group of victims"); Thompson v. County of Alameda, 27 Cal.3d 741, 754, 167 Cal.Rptr. 70, 614 P.2d 728 (1980) (finding "no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm directed at nonspecific victims" (emphasis omitted)). But Mason County did not "take charge" of Rosenow because it had no authority to control him. And it had no "special relationship" duty to warn the Osborns because Jennie Mae Osborn was not a foreseeable victim of Rosenow.

C. Mason County Had No Duty to Warn the Osborns under the Rescue Doctrine

¶ 11 Nor does the rescue doctrine apply because the Osborns did not rely on Mason County's assurances....