Osborn v. Mason County

• Decision Date: 10 August 2004
• Docket Number: No. 30120-2-II.,30120-2-II.
• Citation: 95 P.3d 1257,122 Wn. App. 823,122 Wash. App. 823
• Court: Washington Court of Appeals
• Parties: John OSBORN, individually, and as personal representative of the Estate of Jennie Mae Osborn, Deceased; and Kandi Osborn, individually, Respondents, v. MASON COUNTY, a municipality, Appellant, State of Washington, Department of Corrections; Joseph Rosenow and "Jane Doe" Rosenow, husband and wife, Defendants.

95 P.3d 1257

122 Wn. App. 823

122 Wash. App. 823

John OSBORN, individually, and as personal representative of the Estate of Jennie Mae Osborn, Deceased; and Kandi Osborn, individually, Respondents, v. MASON COUNTY, a municipality, Appellant, State of Washington, Department of Corrections; Joseph Rosenow and "Jane Doe" Rosenow, husband and wife, Defendants.

No. 30120-2-II.

Court of Appeals of Washington, Division 2.

August 10, 2004.

Reconsideration Denied September 10, 2004.

John Louis Messina, Messina/Bulzomi, Tacoma, WA, Kenneth Wendell Masters, Attorney at Law, Bainbridge Island, WA, Stephen Louis Bulzomi, Messina/Bulzomi, University Place, WA, for Respondents.

Michael Alexander Patterson, Lee Smart Cook et al, Seattle, WA, for Appellant.

QUINN-BRINTNALL, C.J.

The parents of Jennie Mae Osborn, a 15-year-old high school student who was raped and murdered by level III sex offender Joseph Rosenow, sued Mason County for failing to properly notify the community of the danger that Rosenow presented. The County appeals the trial court's denial of its summary judgment motion, contending that the sex offender notification statute then in effect authorized, but did not require, notification,¹ and that in any case, it is immune from suit under the notification statute or shielded from liability by the public duty doctrine. Although the trial court did not explicitly mention the rescue doctrine in denying summary judgment, we affirm the trial court's denial on that basis and remand for trial.

FACTS

On February 24, 2001, level III sex offender Rosenow raped and murdered Jennie Mae Osborn. Between June 2000, when Rosenow was released from prison, and December 2000, when he moved to Shelton, Rosenow had lived in Jennie's neighborhood in Hoodsport, Mason County, less than a mile away from the Osborn residence. Jennie was a friend of Rosenow's daughter, who attended Shelton High School with Jennie.

Rosenow pleaded guilty to third degree rape in 1993 and to second degree assault in 1999. In the 1993 incident, he raped a woman at knifepoint. In the 1999 incident, he choked a young woman with whom he had previously had consensual sex until she was unconscious and displayed a knife to her. When Rosenow was released from prison in June 2000, he was required to register as a sex offender and in July, the County reclassified him from a level II to a level III offender — the category of sex offender at the highest risk to re-offend.²

Beginning in the summer of 2000, Detective Jason Dracobly handled sex offender registration and community notification for the Mason County Sheriff's Department. He spent only about 10 percent of his work time on those activities. Dracobly posted a sex offender notice regarding Rosenow on the County's website but did not provide any other notification to the community. For another level III sex offender who was released in late 2000, for example, Dracobly had posted flyers, stuffed mailboxes, and notified the schools in the Shorecrest area of unincorporated Mason County.

Before Rosenow's release, Hoodsport, Mason County resident Shannyn Wiseman, who was concerned about Rosenow,³ called the Sheriff's Department and spoke with Dracobly. Dracobly informed Wiseman that he intended to post fliers and notify the community about Rosenow. About a month after Rosenow's release, Wiseman learned from her neighbor that Rosenow had followed the neighbor's 13-year-old daughter and another 12-year-old in his car while they rode their bikes. Wiseman reported this incident to Dracobly, who told her not to worry because that was "not Rosenow's M. O." Clerk's Papers (CP) at 196.

Wiseman then asked Dracobly if he still intended to distribute fliers in the neighborhood, but he said he was too busy. Wiseman asked him if she and her friends could notify neighbors door-to-door, but Dracobly advised her not to because "it would be like a `vigilante' group." CP at 196.

In December 2000, Wiseman learned that Rosenow had moved to within one block of Hood Canal Grade School in Shelton, and she again called the Sheriff's Department. But Dracobly was away, so she talked to someone else. The Sheriff's Department posted the change of address on its website on January 9, 2001. But the Department did not provide any other notification.

Shelton High School vice principal Rick Wells's declaration establishes that the high school had not received a sex offender notification regarding Rosenow and that Rosenow had even taken his car in for repairs at the high school's auto shop. The high school posts sex offender notifications it receives from the Sheriff's Department on a bulletin board.

In October 2001, eight months after Jennie's death, the Osborns sued Rosenow, the State Department of Corrections, and the County. On February 3, 2003, the County moved for summary judgment, arguing that former RCW 4.24.550(5) and (6) (1998)⁴ and the public duty doctrine barred liability. The Osborns submitted various materials in opposition to the motion, including Wiseman's declaration.

In a March 18, 2003 letter ruling, the trial court denied the County's summary judgment motion, stating:

despite the directive of the statutes regarding immunity of liability in this case if followed pursuant to Mason County's argument would render the entire warning mechanism meaningless. It is obvious that there is an issue regarding the actions and/or inactions of Mason County.... It then becomes a question of fact as to whether the actions of Mason [C]ounty were appropriate under the circumstances. Thus, under the allegations by the plaintiffs in this case it is this court's position that this matter be resolved at trial.

CP at 316-17.

A commissioner of this court granted the County's motion for discretionary review, and we now affirm the trial court's denial of Mason County's summary judgment motion on other grounds.

ANALYSIS

STANDARD OF REVIEW

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). Like the trial court, we must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. Summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

"IMMUNITY" UNDER THE COMMUNITY PROTECTION ACT

The County contends that it is immune from suit under former RCW 4.24.550 of the Community Protection Act⁵ and, in particular, former RCW 4.24.550(6).⁶

Former RCW 4.24.550(6) states, "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."⁷ (Emphasis added.) Finally, under former RCW 4.24.550, local law enforcement agencies are permitted to disclose some or all of the offender's registration information "when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender." In re Personal Restraint of Meyer, 142 Wash.2d 608, 613, 16 P.3d 563 (2001).

Statutory interpretation is a question of law subject to de novo review. State v. Beaver, 148 Wash.2d 338, 344, 60 P.3d 586 (2002); Berger v. Sonneland, 144 Wash.2d 91, 104-05, 26 P.3d 257 (2001). We interpret the statute "to best advance the legislative purpose," State v. C.J., 148 Wash.2d 672, 685, 63 P.3d 765 (2003), and we begin our analysis with the plain meaning interpretation of the relevant statutory language in light of the underlying legislative purposes. Washington Pub. Ports Ass'n v. Dep't of Revenue, 148 Wash.2d 637, 645, 62 P.3d 462 (2003); Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11, 43 P.3d 4 (2002). We interpret the statute in its entirety, reviewing all provisions of the statute in relation to each other. In re Detention of Williams, 147 Wash.2d 476, 490, 55 P.3d 597 (2002); see also Wagg v. Estate of Dunham, 146 Wash.2d 63, 73, 42 P.3d 968 (2002)

. We narrowly construe provisos in and exceptions to general statutes. State v. Wanrow, 88 Wash.2d 221, 232, 559 P.2d 548 (1977); State v. Wright, 84 Wash.2d 645, 652, 529 P.2d 453 (1974). But where the statute is not ambiguous, we do not construe it. City of Seattle v. Ballsmider, 71 Wash.App. 159, 163 n. 3, 856 P.2d 1113 (1993).

Here, former RCW 4.24.550(6) uses the phrase, "Except as may otherwise be provided by law."⁸ The County argues that this phrase grants it immunity, citing only a Connecticut case analyzing a similar phrase, Sanzone v. Board of Police Commissioners of City of Bridgeport, 219 Conn. 179, 592 A.2d 912 (1991), in support of its argument.

Sanzone states in part:

The plaintiffs argue that ... the words "[e]xcept as otherwise provided by law" were intended to preserve without modification all existing law, common and statutory, including such actions for positive nuisance.

We decline to read the savings clause as broadly as the plaintiffs request; to do so would render the statute a nullity. The legislature could not have intended the general language of the introductory clause to swallow up and nullify the section's other provisions.... While we strictly construe statutes purporting to limit the common law ... the principle that the legislature does not enact a meaningless statute must be controlling.

Sanzone, 219 Conn. at 191-92, 592 A.2d 912 (citations omitted).

We decline the County's invitation to apply this Connecticut decision to the case before us. The plain language of former RCW 4.24.550(6),...