Savage v. State
| Decision Date | 17 August 1995 |
| Docket Number | No. 61686-8,61686-8 |
| Citation | 899 P.2d 1270,127 Wn.2d 434 |
| Court | Washington Supreme Court |
| Parties | Margaret SAVAGE, Petitioner, v. The STATE of Washington, Respondent, and Martin Schandel, a single person & John Does 1-10, Defendants. |
Christine Gregoire, Atty. Gen., Jon Ferguson, Asst. Atty. Gen., Seattle, and Michael Lynch, Asst. Atty. Gen., Olympia, for respondent.
Stewart Estes, Seattle, amicus curiae on behalf of Washington Defense Trial Lawyers.
Bryan Harnetiaux, and Gary N. Bloom, Spokane, amicus curiae on behalf of Washington State Trial Lawyers Ass'n.
*
This court granted review of a Court of Appeals decision reversing a trial court ruling barring the State from asserting the qualified immunity of its parole officer in a suit alleging negligent supervision of a parolee. The State cross-petitions the Court of Appeals' conclusion the State was not entitled to instruct the jury that it could consider the State's financial resources in deciding the reasonableness of the State's actions.
We reverse the Court of Appeals' holding that the qualified personal immunity of parole officers extends to the State; we affirm its conclusion that the trial court did not err in refusing to instruct the jury on the State's available resources and its resource allocation policy.
The issues arise from the State's allegedly negligent parole supervision of Marvin Schandel, a felon with a history of sexual assaults and violence. Schandel had been in and out of prison since 1967, having been convicted on separate occasions of carnal knowledge; raping and assaulting a 13-year-old, and of assaulting 11- and 12-year-old girls. Plaintiff's Ex. 2. He also had a conviction for assault with a deadly weapon. Plaintiff's Ex. 12.
Schandel returned to prison several times for parole violations. Clerk's Papers, at 229; Plaintiff's Ex. 9. In 1985, he was again paroled under conditions that he not consume liquor or illegal drugs, and that he enter and Savage sued the State of Washington for improper supervision of Martin Schandel. Neither of the two parole officers involved in the supervision of Schandel was sued individually.
complete mental health counseling as soon as possible upon release. Plaintiff's Exs. 15, 16. He was scheduled to be released to the supervision of parole officer William Allen. Report of Proceedings (Feb. 13, 1992), at 88. Before Schandel could be released, Allen took a leave of absence and his caseload was turned over to parole officer Tawndra Schwamberg. Allen returned to supervise [899 P.2d 1272] Schandel shortly before he raped Savage. 1 Parole officers Schwamberg and Allen testified that during the time they were responsible for supervising Schandel, their case load was very heavy; each was responsible for monitoring over 100 parolees. Report of Proceedings, vol. II (Feb. 13, 1992), at 97.
The case was tried to a jury and resulted in a verdict in the Plaintiff's favor. Prior to trial, the State moved for summary judgment based on its asserted immunity from suit, which was denied. Clerk's Papers, at 337. At trial, the court granted Plaintiff's motion in limine, precluding the State from presenting evidence or arguing that it shared the qualified immunity of its parole officers. Report of Proceedings (Feb. 11, 1992), at 34-36. The trial court refused the State's proposed jury instruction regarding the State's funding limitations. Clerk's Papers, at 641. A verdict in Plaintiff's favor was entered on April 8, 1992.
In Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992), we held that parole officers have qualified immunity for allegedly negligent supervision of parolees who harm third parties. An officer is entitled to such immunity if his or her actions are in furtherance of a statutory duty, are in substantial compliance with the directives of superiors, and respect relevant regulatory guidelines. Taggart, 118 Wash.2d at 216, 822 P.2d 243. That case did not address the question presented here, whether that personal qualified immunity may be asserted by the State when suit is brought against it for negligence under a respondeat superior theory of liability. 2
The Court of Appeals, considering this issue, held that the qualified personal immunity granted to parole officers in Taggart extended to the State, making it immune from suit brought under a respondeat superior theory of liability. Petitioner maintains the Court of Appeals' decision conflicts with basic principles of agency law as interpreted by this court, ignores the policy analysis this court has established in recent cases to govern whether the immunity of a state agent extends to the State, and contravenes the clear legislative mandate abrogating sovereign immunity.
The Court of Appeals based its holding in part on its misapprehension that under agency law, "the State, like any other employer, is entitled to claim the protection of an employee's immunity where its liability is based on a respondeat superior theory." Savage, 72 Wash.App. at 490, 864 P.2d 1009. We adhere to the contrary view, as we recently explained in Babcock v. State, 116 Wash.2d 596, 620, 809 P.2d 143 (1991): 3
An agent's immunity from civil liability generally does not establish a defense for the principal. Restatement (Second) of Agency § 217 (1958). Accordingly, the immunities of governmental officials do not shield the governments which employ them from tort liability, even when liability is predicated upon respondeat superior.
The Restatement section upon which Babcock relies sets forth the general rule as follows:
§ 217. Where Principal or Agent has Immunity or Privilege
In an action against a principal based on the conduct of a servant in the course of employment:
(a) The principal has a defense if:
(i) he had an immunity from liability to the person harmed, or
(ii) he had a delegable privilege so to act, or
(iii) the agent had a privilege which he properly exercised on his principal's behalf, or
(iv) the agent did not fall below the duty of care owed by the principal to the third person.
(b) The principal has no defense because of the fact that:
(i) he had a non-delegable privilege to do the act, or
(ii) the agent had an immunity from civil liability as to the act.
(Italics ours.) Restatement (Second) of Agency § 217 (1958). The commentary explains:
Immunities, unlike privileges, are not delegable and are available as a defense only to persons who have them.... On the other hand, where the principal directs an agent to act, or the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal. Thus, where a servant in the scope of employment negligently runs over his wife, an action against the master by the injured wife is not barred. This result is in accordance with the rule stated in this Section and is the rule adopted in most of the states.
(Italics ours.) Restatement (Second) of Agency § 217 cmt. b (1958). See also Restatement (Second) of Torts § 895D cmt. j (1979) ( that the immunity of a public officer is not necessarily coterminous with that of the government).
The Court of Appeals also relied for its holding on a series of cases in which the immunity of government employees was extended to the government. Savage v. State, 72 Wash.App. 483, 488-89, 491, 864 P.2d 1009, review granted, 124 Wash.2d 1017, 881 P.2d 253 (1994) (citing Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606 (1966)); Plotkin v. Department of Corrections, 64 Wash.App. 373, 826 P.2d 221, review denied, 119 Wash.2d 1022, 838 P.2d 691 (1992); Lutheran Day Care v. Snohomish Cy., 119 Wash.2d 91, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079, 113 S.Ct. 1044, 122 L.Ed.2d 353; Frost v. Walla Walla, 106 Wash.2d 669, 724 P.2d 1017 (1986); Guffey v. State, 103 Wash.2d 144, 690 P.2d 1163 (1984).
The appellate court's analysis in this case resembles that recently rejected by this court in Lutheran. There, we admonished against conclusory holdings which rely on ostensibly controlling cases while eschewing the "detailed policy-oriented factual inquiry which ... is necessary to decide the immunity question." Lutheran, 119 Wash.2d at 100, 829 P.2d 746.
Two of the cases upon which the Court of Appeals relied are inapposite because they concern quasi-judicial immunity, not the personal qualified immunity at issue here. See Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606 (1966) () and Plotkin v. State Dept. of Corrections, 64 Wash.App. 373, 826 P.2d 221, review denied, 119 Wash.2d 1022, 838 P.2d 691 (1992) ().
Quasi-judicial immunity and personal qualified immunity are designed to serve different functions. The former "attaches to persons or entities who perform functions that are...
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