Parrilla v. King County

• Citation: 138 Wn. App. 427,157 P.3d 879
• Decision Date: 07 May 2007
• Docket Number: No. 57495-7-I.,57495-7-I.
• Court: Court of Appeals of Washington
• Parties: Elea D. PARRILLA, a single person, and Roy R.T. Parrilla, a single person, Appellants, v. KING COUNTY, a political subdivision of the State of Washington; and King County Metro, a division of King County government, Respondents, and Ernest R. Wilson, King County Metro employee; and Courvoisier L. Carpenter, Defendants.

157 P.3d 879

138 Wn. App. 427

Elea D. PARRILLA, a single person, and Roy R.T. Parrilla, a single person, Appellants, v. KING COUNTY, a political subdivision of the State of Washington; and King County Metro, a division of King County government, Respondents, and Ernest R. Wilson, King County Metro employee; and Courvoisier L. Carpenter, Defendants.

No. 57495-7-I.

Court of Appeals of Washington, Division 1.

May 7, 2007.

Philip Albert Talmadge, Emmelyn Hart-Biberfeld, Talmadge Law Group PLLC, Tukwila, WA, Diego P. Gavilanes, Everett, WA, for Appellants.

Kristofer John Bundy, Jill Higgins Hendrix, Seattle, for Respondents.

Courvoisier L. Carpenter, Appearing Pro Se.

DWYER, J.

¶ 1 An actor owes another a duty to guard against the foreseeable criminal conduct of a third party where the actor's affirmative act has exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable person would have taken into account.¹ In this case, Elea and Roy Parrilla allege that a King County bus driver parked the bus he was driving on the side of Martin Luther King, Jr. Way (MLK) in Seattle and exited the bus, leaving the engine running and a visibly erratic passenger alone on board. The passenger drove the bus down MLK and collided with several vehicles, including that of the Parrillas. Under these circumstances, King County owed a duty of care to the Parrillas because the bus driver's affirmative act exposed the Parrillas to a recognizable high degree of risk of harm through the passenger's criminal conduct, which a reasonable person would have foreseen. Thus, the trial court erred by ruling that, as a matter of law, King County did not owe a duty of care to the Parrillas, and by dismissing the Parrillas' action on that basis. Accordingly, we reverse and remand this case to the trial court for further proceedings.

FACTS

¶ 2 The facts alleged by the Parrillas in their complaint against King County are as follows.

¶ 3 On August 28, 2002, an altercation erupted between two passengers on a King County Metro bus as it was traveling on MLK in Seattle. In an attempt to quell the altercation, the driver of the bus pulled over to the curb and ordered all of the passengers to disembark. All but three of the passengers, Courvoisier Carpenter and the two individuals involved in the altercation, complied with the driver's order. The driver then exited the bus, leaving the engine running with Carpenter and the two other passengers on board.

¶ 4 The two individuals involved in the altercation eventually left the bus. The driver then re-entered the bus, approached Carpenter, and again ordered him to disembark. Carpenter began exhibiting bizarre behavior, including acting as if he were talking to somebody outside of the vehicle although nobody was there, yelling unintelligibly, and striking the windows of the bus with his fists. After observing Carpenter's behavior for several minutes, the driver exited the bus a second time, again leaving the engine running with Carpenter on board.

¶ 5 Carpenter then moved into the driver's seat of the idling 14-ton bus and drove it down MLK before crashing into several vehicles, including that of the Parrillas. The Parrillas suffered injuries as the result of this collision. During these events, Carpenter was heavily under the influence of phencyclidine (PCP) and carboxy-THC, illegal recreational drugs.

¶ 6 The Parrillas sued King County in negligence for damages sustained as a result of the collision. The trial court dismissed the Parrilla's action on King County's CR 12(c) motion, concluding, as a matter of law, that King County did not owe a duty of care to the Parrillas.

¶ 7 This appeal followed.

DISCUSSION

¶ 8 We review a CR 12(c) dismissal ruling de novo, examining the pleadings to determine whether the claimant can prove any set of facts, consistent with the complaint, that would entitle the claimant to relief. N. Coast Enters., Inc. v. Factoria P'ship, 94 Wash.App. 855, 858-59, 974 P.2d 1257 (1999). The factual allegations contained in the complaint are accepted as true. N. Coast, 94 Wash.App. at 859, 974 P.2d 1257.²

¶ 9 To establish an actionable negligence claim, a plaintiff must establish the existence of (1) a duty, owed by the defendant to the plaintiff, to conform to a certain standard of conduct; (2) a breach of that duty; (3) a resulting injury; and (4) proximate cause between the breach and the injury. Reynolds v. Hicks, 134 Wash.2d 491, 495, 951 P.2d 761 (1998). Accordingly, the existence of a duty owed by the defendant to the plaintiff is an essential element of an actionable negligence claim. Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 194-95, 15 P.3d 1283 (2001). The existence of a duty is a question of law for the court, Folsom v. Burger King, 135 Wash.2d 658, 671, 958 P.2d 301 (1998), to be determined by reference to considerations of public policy. Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 933, 653 P.2d 280 (1982). Questions of law are reviewed de novo. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wash.2d 692, 698, 952 P.2d 590 (1998).

¶ 10 Here, the Parrillas advance three arguments in support of their contention that King County owed them a duty of care. First, the Parillas assert that King County owed a duty to them because its driver's actions exposed them to a recognizable high degree of risk of harm from Carpenter's conduct, which a reasonable person would have taken into account. Second, the Parrillas contend that King County's driver negligently entrusted the bus to Carpenter, thereby giving rise to a duty to guard against Carpenter's conduct. Third, the Parrillas contend that King County's "common carrier" status gave rise to a duty to control Carpenter's conduct in relation to the Parrillas.

¶ 11 We agree that, pursuant to the facts alleged by the Parrillas, King County owed them a duty to guard against Carpenter's criminal conduct because the driver's actions exposed the Parrillas to a recognizable high degree of risk of harm through that misconduct, which a reasonable person would have taken into account.

I. Affirmative Act Exposing the Parrillas to a Recognizable High Degree of Risk of Harm

¶ 12 The Parrillas first contend that King County owed them a duty of care because the bus driver should have known that his affirmative act of exiting the bus while the engine was running, leaving the visibly erratic Carpenter alone on board, exposed the Parrillas to a recognizable high degree of risk of harm from misconduct by Carpenter, which a reasonable person would have taken into account. Assuming the truth of the facts alleged by the Parrillas in their complaint, we agree.

¶ 13 Our determination that a duty of care exists under the circumstances here alleged is compelled by RESTATEMENT (SECOND) OF TORTS § 302 B (1965), and our Supreme Court's interpretation thereof. See Kim, 143 Wash.2d at 196-98, 15 P.3d 1283. Section 302 B provides:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

An official comment to that section elaborates:

There are ... situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.

Section 302 B cmt. e (emphasis added).

¶ 14 The illustrations provided in section 302 B comment e offer additional guidance. Pursuant to two of these illustrations, a duty of care may arise "[w]here the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct,"³ or "[w]here property of which the actor has possession or control affords a peculiar temptation or opportunity for intentional interference likely to cause harm."⁴ Each of these statements has obvious applicability to the case at hand.

¶ 15 Furthermore, an additional official comment to section 302 B explains that the existence or nonexistence of a duty pursuant to that section must be determined by reference to the particular circumstances at issue:

It is not possible to state definite rules as to when the actor is required to take precautions against intentional or criminal misconduct. As in other cases of negligence ..., it is a matter of balancing the magnitude of the risk against the utility of the actor's conduct. Factors to be considered are the known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take.

Section 302 B cmt. f (emphasis added).

¶ 16 Our Supreme Court discussed section 302 B in Kim, 143 Wash.2d at 196-98, 15 P.3d 1283. While Kim held that the provision did not support the imposition of a duty of care under the particular circumstances of that case, the Court acknowledged that the duty of care may exist under other circumstances:

As comment e to the section explains, a duty to guard against third party conduct may exist where there is a special relationship to the one suffering the harm, or "where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of...