Spencer v. King County

• Decision Date: 17 December 1984
• Docket Number: No. 12023-9-I,12023-9-I
• Citation: 39 Wn.App. 201,692 P.2d 874
• Parties: Donald E. SPENCER and Rubie Spencer, his wife, Appellants, v. KING COUNTY, Helmuth "Bud" Fichtler and Jane Doe Fichtler, his wife, Michael Connolly and Jane Doe Connolly, his wife, Respondents.
• Court: Washington Court of Appeals

Page 201

39 Wn.App. 201

692 P.2d 874

Donald E. SPENCER and Rubie Spencer, his wife, Appellants, v. KING COUNTY, Helmuth "Bud" Fichtler and Jane Doe Fichtler his wife, Michael Connolly and Jane Doe Connolly his wife, Respondents.

No. 12023-9-I.

Court of Appeals of Washington Division 1.

Dec. 17, 1984.

Richard B. Sanders, Seattle, Arthur D. Swanson, Todd Gardner, Renton, for appellants.

Norman K. Maleng, King County Prosecuting Atty. Charles S. Hamilton III, Deputy Pros. Atty., Seattle, for respondents.

DURHAM, Chief Judge.

Donald E. Spencer appeals from an order granting partial summary judgment and voluntary dismissal of remaining causes entered in this action against King County, Helmuth Fichtler and Michael Connolly. Spencer contends that there are genuine issues of material fact which made summary judgment improper.

On October 4, 1979, respondent Helmuth Fichtler, a King County mental health professional, went to the home of Donald Spencer to observe and interview him to determine if he was in need of mental health treatment. Fichtler's decision to contact Spencer was based upon an affidavit obtained from Spencer's daughter, Elayne, on October 3. In her affidavit, Elayne Spencer indicated that Spencer had become severely distraught over the tragic murder of another daughter. She stated that Spencer had exhibited emotional problems in the past, by threatening an Internal Revenue Service agent with a club and boasting of his ability to set others on fire by igniting cans of carbon dioxide. She indicated that Spencer had become obsessed with gaining revenge against the boy that murdered his daughter, the boy's father, Marvin Halland, and a local past school counselor. Elayne further stated that Spencer had spoken with her only a few days earlier about killing generally and the circumstances surrounding violent death. She said that Spencer threatened to hold Halland accountable for his daughter's death, and that he had threatened to get "rid of" the school counselor. Elayne stated that she believed that Spencer intended to commit acts of violence against these individuals.

Fichtler was accompanied to the Spencer residence by respondent Michael Connolly, a sergeant with the King County Department of Public Safety, and Officer Craig Sarver. Fichtler requested Connolly's assistance because of the nature of Spencer's alleged mental problems and because he had received information that weapons were on the premises. Upon their arrival, Spencer appeared "thin, unshaven, with sunken eyes and a nervous facial tic." Fichtler read Spencer his Miranda rights, and attempted to explain the purpose of his visit. Spencer became highly agitated, and placed his hands over his ears and his head between his knees. Spencer refused to listen to Fichtler, and started toward the door screaming that Fichtler was part of a murder plot. Fichtler told Connolly and Officer Sarver to detain Spencer, who had to be carried out the door because he refused to walk. Spencer continued to scream, claiming that Fichtler and Connolly were kidnappers and part of a conspiracy. While outside, the police scuffled with Spencer's son, Terry, who was attempting to interfere with Spencer's detention. Spencer became increasingly aggressive, kicking Fichtler and siccing his dog on him. Spencer was handcuffed during this process. Spencer's wife, Rubie, arrived at the scene after Spencer had been handcuffed, but no scuffle occurred in her presence. Spencer was taken by ambulance to Harborview Hospital for 3 days of psychiatric evaluation, and was released at the end of that period.

On November 24, 1980, the Spencers brought this action against King County, Fichtler and Connolly. The complaint alleged numerous state law causes of action, including trespass, assault, battery, false arrest, false imprisonment, outrage, negligence in employee selection, and interference with a family relationship. The complaint also included a cause of action for damages under 42 U.S.C. § 1983, based upon the respondents' alleged deprivation of Spencer's right to due process and equal protection. Finally, the complaint generally alleged the unconstitutionality of the Washington involuntary commitment laws.

On July 15, 1982, the trial court granted respondents' motion for summary judgment as to all causes of action except the trespass, assault and battery claims, ¹ and denied appellants' motion for reconsideration. This appeal followed.

STATE LAW CLAIMS

The principal issue on appeal is if King County and the individual defendants are immune from tort liability under RCW 71.05.120, which states:

Exemptions from liability. No officer of a public or private agency, nor the superintendent, professional person in charge, his professional designee, or attending staff of any such agency, nor any public official performing functions necessary to the administration of this chapter, nor peace officer responsible for detaining a person pursuant to this chapter nor any county designated mental health professional shall be civilly or criminally liable for performing his duties pursuant to this chapter with regard to the decision of whether to admit, release, or detain a person for evaluation and treatment: Provided, That such duties were performed in good faith and without gross negligence.

Spencer first argues that under the proviso appearing at the end of the statute, immunity is negated by a showing that the individual defendants acted either with gross negligence or in bad faith. We agree. The statute sets forth a general rule of immunity, conditioned on the mental health professional performing his duties "in good faith and without gross negligence." (Emphasis added.) RCW 71.05.120. Since the immunity depends upon the absence of both gross negligence and bad faith, the immunity is lost upon a showing that either exists. ²

Spencer next contends that summary judgment was improper because a genuine issue of fact exists as to Fichtler's alleged gross negligence or bad faith.

The exception to the immunity statute under which Spencer seeks to impose liability applies when there has been gross negligence or bad faith "with regard to the decision of whether to admit, release, or detain a person for evaluation and treatment". RCW 71.05.120. Therefore, Fichtler's conduct must be judged in light of his duties under the involuntary commitment laws, RCW 71.05 et seq.

RCW 71.05.150(1) and (2) describe two procedures under which a mentally ill person may be involuntarily committed. Subsection 1 is inapplicable here. ³ Under subsection 2, the provision invoked by Fichtler, an individual may be taken into emergency custody without a summons if the mental health professional receives information alleging that the individual "presents an imminent likelihood of serious harm to himself or others". (Emphasis added.) RCW 71.05.150(2). The term "likelihood of serious harm" is defined to mean:

a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm ...

RCW 71.05.020(3)(b). ⁴ Moreover, commitment is permissible only "after investigation and evaluation of the specific facts alleged and of the reliability and credibility of the person or persons providing the information". RCW 71.05.150(2).

Spencer argues that Fichtler was grossly negligent in the discharge of these statutory duties, principally by failing to investigate the credibility of Elayne Spencer and the facts alleged in her affidavit. Spencer also asserts that Fichtler was grossly negligent in detaining him absent any indication that he presented an "imminent" likelihood of causing serious physical harm to himself or others. We disagree.

Our Supreme Court has defined gross negligence as:

gross or great negligence, that is, negligence substantially and appreciably greater than ordinary negligence. Its correlative, failure to exercise slight care, means not the total absence of care but care substantially or appreciably less than the quantum of care inherent in ordinary negligence.

(Emphasis added.) Nist v. Tudor, 67 Wash.2d 322, 331, 407 P.2d 798 (1965). Accord, O'Connell v. Scott Paper Co., 77 Wash.2d 186, 189, 460 P.2d 282 (1969); Jones v. Widing, 7 Wash.App. 390, 393, 499 P.2d 209 (1972). Under this standard, Fichtler's actions cannot be characterized as grossly negligent.

With respect to the adequacy of Fichtler's investigation, Spencer provides a virtual laundry list of steps that Fichtler allegedly should have taken before commitment. In particular, Spencer asserts that Fichtler should have contacted other relatives and the objects of his alleged threats. Even if conducting such an inquiry would have been appropriate, Fichtler's failure to do so hardly rises to the level of gross negligence. It is undisputed that Fichtler attempted to corroborate Elayne's account in a telephone conversation with Spencer's other daughter, Karen. In addition, Fichtler's observation of Spencer at his home must also be counted as part of the "investigation ... of the specific facts alleged". RCW 71.05.150(2). Indeed, because Spencer's threats were communicated only to Elayne, it is difficult to see what any further investigation would have produced by way of corroboration.

We also reject the contention that Fichtler was grossly negligent in detaining Spencer absent any evidence that there was an "imminent" likelihood that Spencer would seriously harm himself or others. Spencer does not dispute that he threatened to harm several people, or that he was severely distraught over the tragic death of his daughter. One of the threatening conversations Elayne related in her affidavit took place only 3 days earlier. Moreover, even if it were true that the likelihood that Spencer would cause such harm was not imminent, we cannot say that Fichtler was grossly negligent in...