Washburn ex rel. Estate of Roznowski v. City of Fed. Way, Mun. Corp.

Decision Date17 October 2013
Docket NumberNo. 87906–1.,87906–1.
Citation310 P.3d 1275,178 Wash.2d 732
CourtWashington Supreme Court
PartiesCarola WASHBURN and Janet Loh, individually, and on behalf of the Estate of Baerbel K. Roznowski, a deceased person, Respondents, v. CITY OF FEDERAL WAY, a Washington municipal corporation, Petitioner.

OPINION TEXT STARTS HERE

Mary H. Spillane, Daniel W. Ferm, Williams Kastner & Gibbs PLLC, Seattle, WA, for Petitioner.

Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, WA, Nathan Paul Roberts, John Robert Connelly Jr., Connelly Law Offices, Tacoma, WA, for Respondents.

Christopher Weldon Nicoll, Noah Jaffe, Nicoll Black & Feig PLLC, Michael Barr King, Carney Badley Spellman PS, Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Sandra S. Park, ACLU Women's Rights Project, Steven M. Watt, ACLU Human Rights Program, Lenora M. Lapidus, American Civil Liberties Union, New York, NY, Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Lisa Michelle Gouldy, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Aclu.

David J. Ward, Legal Voice, Seattle, WA, Amicus Curiae on behalf of Legal Voice.

Laura Kristine Clinton, Erica Franklin, Tia Aneja Sargent, K & L Gates LLP, Seattle, WA, Amicus Curiae on behalf of Northwest Justice Foundation.

Laura Kristine Clinton, Erica Franklin Tia Aneja Sargent, K & L Gates LLP, Seattle, WA, Amicus Curiae on behalf of Washington State COAlition Against Domestic Violence.

Laura Kristine Clinton, Erica Franklin, Tia Aneja Sargent, K & L Gates LLP, Seattle, WA, Amicus Curiae on behalf of Washington Women Lawyers.

FAIRHURST, J.

[178 Wash.2d 738]¶ 1 This case presents questions about the tort liability of a municipal corporation. Paul Chan Kim murdered his partner, Baerbel K. Roznowski, after officer Andrew Hensing of the Federal Way Police Department (Department) served Kim with an antiharassment order forbidding him to contact or remain near Roznowski. Roznowski's two daughters filed suit against the city of Federal Way (City), alleging that Hensing's negligent service of the order resulted in Roznowski's death at Kim's hands. The parties tried the case to a jury, which returned a verdict against the City.

¶ 2 The City claims the trial court erred in denying its CR 56(c) motion for summary judgment and its CR 50(a) motion for judgment as a matter of law because it owed Roznowski no duty under the public duty doctrine, foreclosing any tort liability. We disagree. The City had a duty to serve the antiharassment order on Kim, and because it had a duty to act, it had a duty to act with reasonable care in serving the order. We therefore affirm the trial court's denial of the City's motions, although we do so on different grounds than those relied on by the Court of Appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 3 Roznowski and Kim began a troubled relationship in the 1990s. In 2008, Roznowski decided to end the relationship and move to California to live near her adult daughters. To move, Roznowski needed to sell her house. Kim stood in the way of the sale because, although he owned his own home, he resided at Roznowski's house and her home was filled with his belongings. Readyingher property for sale therefore required ousting Kim and his possessions.

[178 Wash.2d 739]¶ 4 In late April 2008, Roznowski and Kim argued about her demands that he remove his belongings from her property. This fight escalated and Roznowski called 911 because she feared Kim might assault her.1 Officers from the Department responded to the call and met with both Kim and Roznowski. Neither Roznowski nor Kim appeared harmed, and the officers did not detect any evidence of physical violence. Nonetheless, the officers told Kim to “take a walk” and collect himself. Clerk's Papers at 842. With Kim out of the house, one of the officers discussed the situation with Roznowski and told her she could attempt to obtain a no-contact order against Kim.

¶ 5 Roznowski decided to seek court-ordered protection against Kim. She went to the King County Regional Justice Center, met with a domestic violence advocate, discussed her options, and then sought and obtained a “Temporary Protection Order and Notice of Hearing—AH” (hereinafter antiharassment order) from the King County Superior Court. Ex. 2, at 2. The antiharassment order prohibited Kim from surveilling Roznowski, contacting her, or entering or being within 500 feet of her residence. Id. at 3.

¶ 6 Roznowski asked the Department to serve the antiharassment order. The Department's service file included Roznowski's petition for the antiharassment order, the order, and a law enforcement information sheet (LEIS). The LEIS allows petitioners to provide law enforcement with information related to serving the court orders. Roznowski's LEIS informed the officers that Kim was her domestic partner, Kim did not know she had obtained an antiharassment order, Kim did not know the antiharassment order would force him out of Roznowski's home, and that Kim would likely react violently to service of the order. In the field marked “Hazard Information,” Roznowski noted that Kim had a history of assault. Ex. 2, at 1. The LEIS also asked that a Korean interpreter help serve the antiharassment order based on Kim's limited proficiency in English.

¶ 7 Officer Hensing served the antiharassment order two days later, early on a Saturday morning. Hensing offered contradictory testimony regarding his preparation for service, indicating that he either did not read the order or the LEIS, or, at best, gave them a cursory glance. Either way, he did not bring an interpreter.

¶ 8 When Hensing knocked on the door, Kim answered. Hensing saw Roznowski in the background inside the house while serving the antiharassment order, but he did not interact with her or inquire as to her safety. Hensing confirmed Kim's identity, handed him the antiharassment order, informed him he needed to appear in court, and left. Roznowski was left to explain to Kim what had happened—she had restrained him from contacting her and he needed to vacate the home. Another argument ensued, and Kim eventually left to run an errand.

¶ 9 Kim finished his errand, returned to the house, and attacked Roznowski with a knife before attempting to take his own life. Medical personnel arrived to find Roznowski bleeding to death, with Kim lying beside her.2 Medical intervention failed to save Roznowski, who died from blood loss from the multiple stab wounds Kim inflicted.

¶ 10 Roznowski's daughters, Carola Washburn and Janet Loh (hereinafter collectively Washburn), filed suit against the City for Roznowski's wrongful death. The suit alleged various theories of negligence and sought damages for the daughters in their individual capacities and on behalf of Roznowski's estate.

¶ 11 The City moved for summary judgment, claiming that it owed Roznowski no duty under the public duty doctrine. The trial court denied the motion, finding that the antiharassment order required Kim to remain more than 500 feet away from Roznowski and that Hensing had failed in his duty to enforce the antiharassment order by leaving Kim in the house with Roznowski after serving the antiharassment order. The City moved for reconsideration of this decision, which the trial court denied. The City then sought discretionary review of the denial of summary judgment at the Court of Appeals, Division One, but the court commissioner denied the motion, and a panel of the court denied a motion to modify the commissioner's order.

¶ 12 At trial, much of the testimony offered by Washburn concerned the importance of proper service of an antiharassment order. Expert testimony from Karil Klingbeil, a family violence counselor, informed the jury about the point of separation between the abuser and victim. Klingbeil testified that the point of separation is a “very volatile and dangerous period” because the abuser learns that he or she has lost control of the victim. Verbatim Excerpt of Proceedings (VEP) (Dec. 9, 2010 at 9:00 a.m.) at 9–10. Another expert, Dr. Anne Ganley, a psychologist focusing on domestic violence, testified that at the point of separation, the batterer can “explode.” VEP (Dec. 14, 2010 at 10:00 a.m.) at 41. Roznowski's LEIS informed Hensing that Kim did not know she had sought protection, meaning that the point of separation occurred when Hensing served the antiharassment order.

¶ 13 The former police chief of the city of Bellevue, Donald Van Blaricom, testified that Hensing's service of the antiharassment order did nothing to minimize the danger Kim posed to Roznowski as a result of service of the antiharassment order. Van Blaricom stressed that proper service required four things: (1) reading the petition, antiharassment order, and LEIS because the officer needed to know how the recipient would likely react to service to prepare for a violent outburst; (2) ensuring that the recipient understood the contents and effect of the antiharassmentorder, which might require the officer to bring a translator; (3) contacting the petitioner to verify his or her safety and health as part of effective service; and (4) enforcing the antiharassment order, which, in this case, required at a minimum that Hensing tell Kim that Kim needed to leave.

¶ 14 Norman Stamper, former chief of the Seattle Police Department, largely echoed Van Blaricom's analysis and ultimate conclusion. In particular, Stamper stated it was “astonishing” that Hensing had not read the LEIS because it provided information critical to “prevent murder.” VEP (Dec. 13, 2010 at 10:15 a.m.) at 25. Stamper found it “hugely significant” that Hensing did not contact Roznowski after seeing her in the background, but instead left after serving the...

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