Benskin v. City of Fife
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 31523-8-II
Title of Case: Robin Benskin etal, Appellants v. City of Fife, Respondent
File Date: 10/18/2005
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 03-2-11971-2
Judgment or order under review
Date filed: 03/05/2004
Judge signing: Hon. Ronald E Culpepper
JUDGES
------
Authored by Christine Quinn-Brintnall
Concurring: Elaine Houghton
J Dean Morgan
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Thaddeus Phillip Iv Martin
Gordon Thomas Honeywell Et al
1201 Pacific Ave Ste 2100
Tacoma, WA 98402-4314
Kenneth Wendell Masters
Wiggins & Masters PLLC
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Counsel for Respondent(s)
Andrew George Cooley
Attorney at Law
800 5th Ave Ste 4141
Seattle, WA 98104-3189
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ROBIN and SUSAN BENSKIN, No. 31523-8-II
individually, and ROBIN
BENSKIN, as the Personal
Representative of the ESTATE OF
HEATHER BENSKIN; JOSH MIHOK;
TINA MARIE GOODFELLOW; and
ROBERTA EVANS,
Appellants and Cross-
Respondents,
v.
CITY OF FIFE, ORDER AMENDING OPINION AND
DENYING MOTIONS TO RECONSIDER
Respondent and Cross- AND PUBLISH OPINION
Appellant,
JONG KIM and 'JANE DOE' KIM and
the marital community composed
thereof,
Defendants.
This matter having come before this court on the respondent and cross-
appellant's motion for reconsideration and motion to publish opinion of the
unpublished ORDERED:
1. The motion for reconsideration is denied.
2. The motion to publish is denied.
3. The first paragraph of the opinion on page 9 is amended as
follows:
Under the Fife sentencing court's order, and relying on our Supreme
Court's Taggart decision as applied to a municipal probation department in
Hertog, and a county probation department in Bishop v. Miche, 137 Wn.2d
518, 973 P.2d 465 (1999), Fife's probation department had a duty to
supervise Kim. Under this duty, the probation department would owe a duty
to protect the public from foreseeable behavior associated with the
conditions of the order. These conditions were that Kim, a repeat DUI
offender, provide proof of treatment and, essentially, refrain from
driving. Because Washington law recognizes a duty to supervise parolees
and those on probation under suspended sentences such as Kim's, summary
judgment on the ground that no jury could find the City probation
department had a duty to control his behavior was improper. See also Joyce
v. State, Wn.2d , 119 P.3d 825, 2005 Wash. LEXIS 789, *15 (Wash.
2005) (citing Hertog and Bishop with approval).
IT IS SO ORDERED.
DATED this day of , 20 .
QUINN-BRINTNALL, C.J.
We concur:
HOUGHTON, J.
MORGAN, J.P.T.
======================================================================
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ROBIN and SUSAN BENSKIN, No. 31523-8-II
individually, and ROBIN
BENSKIN, as the Personal
Representative of the ESTATE OF
HEATHER BENSKIN; JOSH MIHOK;
TINA MARIE GOODFELLOW; and
ROBERTA EVANS,
Appellants and Cross-
Respondents,
v.
CITY OF FIFE, UNPUBLISHED OPINION
Respondent and Cross-
Appellant,
JONG KIM and 'JANE DOE' KIM and
the marital community composed
thereof,
Defendants.
QUINN-BRINTNALL, C.J. The Benskins1 appeal a summary judgment in
favor of the City of Fife on their negligent supervision claim. On March
9, 2003, probationer Jong Hoon Kim was involved in a hit-and-run accident
on State Route 16. The collision killed Heather Benskin and injured
several others. The Benskins sued the City alleging that it had breached
its duty to supervise Kim, who was on Fife Municipal Court probation for
convictions of driving while under the influence (DUI) and first degree
driving with a suspended license at the time of the collision.
On appeal, the Benskins contend that the trial court erred in finding (1)
the municipal court order imposing Kim's probation created no duty; and (2)
the probation department was judicially immune because it was acting as an
arm of the court.2
The City cross-appeals contending that the trial court erred in
refusing to strike various expert witness declarations and their
attachments filed in opposition to the City's summary judgment motion.
We reverse. Based on the existence of facts indicating a 'take-
charge' supervisory relationship, the trial court erred in finding that the
City's probation department owed no duty to the appellants. And the City's
probation department is not immune from suit based on judicial immunity at
common law or ARLJ 11.3
FACTS
Kim's Probation
On January 27, 2002, Kim was charged with four violations in the Fife
Municipal Court: the infractions of speeding and driving without proof of
liability insurance and the criminal offenses of driving under the
influence4 and first degree driving while license suspended.5 On July 30,
2002, Kim pleaded guilty to DUI as a third offense.6
Kim had a long history of alcohol-related driving violations and
alcohol abuse. For example, the 2002 Fife DUI was Kim's fifth since 1991.
And in 1999, the State Department of Licensing revoked Kim's license for
seven years as a 'habitual traffic offender' under RCW 46.65.070.
Judge Kevin Ringus sentenced Kim to 365 days in custody but suspended
155 days of the sentence.7 For the remaining 210 days, Kim was to serve
120 days under Electronic Home Monitoring8 and 90 days in jail or at
Progress House, a work release facility. Kim was also ordered to pay
$2,275 within 60 days. The court suspended Kim's license for three years.
The court also ordered that Kim (1) could not drive without a license and
insurance; (2) '{h}ave law abiding behavior' and 'no similar incidents;'
(3) not take mood altering substances without a prescription; (4) have no
'alcohol/drug related offenses or non-prescription drugs;' (5) have no
criminal traffic convictions; (6) not drive a motor vehicle if a blood or
breath test 'would result in a positive reading of alcohol or drugs
{within} 4 hours of driving; and (7) 'NOT refuse to submit' to a breath or
blood test for alcohol. 1 Clerk's Papers (CP) at 38. Kim was also
directed to file 'monthly status reports (treatment)' and ordered to file
with the court proof of an ignition interlock device after receipt of a
valid driver's license. 1 CP at 38. Finally, he was ordered to 'REPORT TO
THE FIFE MUNICIPAL COURT PROBATION WITHIN FIVE . . . WORKING DAYS TO
MONITOR COMPLIANCE.' 1 CP at 38. Under the order, the court had
jurisdiction over Kim for 60 months.
Kim entered Progress House on August 12, 2002, and was released on
October 21, 2002. The City's probation department had little contact with
Kim following his conviction. Rachel Brooks-Bailey, the City's only full-
time probation officer, spoke with Kim once on the phone. But on January
13, 2003, Brooks-Bailey requested that the court conduct a probation review
hearing because Kim had not complied with the conditions of his suspended
sentence: 'Kim has failed to provide proof of treatment and has not had
direct contact with the probation department and failed to appear for a
scheduled . . . appointment.' 1 CP at 22. The probation department's
request for court action noted:
Based on {Kim's} high risk to the community and lack of follow through
with court ordered probation the following is recommended:
1. {Kim} provide proof of treatment within 30 days or serve the remainder
of his sentence in jail.
2. {Kim} will provide proof of 5 sober support meetings per day {sic}
until actively in treatment.
3. {Kim} will remain on Formal probation until his case is closed and pay
any additional cost.
1 CP at 22.
A review hearing was set for February 12, 2003, but Kim did not
appear. Judge Pro Tem Sandra Allen decided to issue a failure to appear
bench warrant for Kim's arrest, but after reviewing his file, she
discovered that notice of the hearing had not been sent to Kim or his
counsel. The court rescheduled the review hearing for March 12, a month
later.
Fatal Collision
On March 9, 2003, three days before the rescheduled hearing, at
approximately 1:49 a.m., Kim was driving the wrong way on the State Route
16 on-ramp from Interstate 5 in his 2003 Chevrolet Silverado pickup truck
when he struck head-on a GMC Jimmy driven by Mihok. Twenty-four-year-old
Heather Benskin, a passenger in Mihok's vehicle, died of injuries sustained
in the crash.
Just before striking Mihok's vehicle, Kim had been involved in two
other collisions on the same roadway. A witness, Gordon Bechtel, saw Kim's
vehicle driving fast on westbound State Route 16. Bechtel heard a loud
noise and saw Kim's truck spin across the road toward the left side and
collide with a Chevrolet Lumina driven by Goodfellow. Kim's truck
eventually came to a stop facing eastbound in the westbound lanes of State
Route 16. Evans was also driving westbound on State Route 16 in a Jeep
Wrangler. After witnessing Kim's first collision, she pulled her vehicle
to the left shoulder. Kim's truck started forward and struck Evans's Jeep
so hard it deployed the airbag. After this second collision, Kim got out
of his truck and asked Evans if she was okay. Evans told Kim that she was
not, but Kim got back in his truck and drove away, still traveling
eastbound in the westbound lanes. Kim's truck then struck Mihok and
Heather Benskin's GMC. After the collision with the GMC, Kim got out of
the car and left the scene on foot. A witness who saw Kim get out of his
car and flee the scene opined that Kim was in a 'drunken stupor' at the
time. 10 CP at 1807. Kim left his cell phone in his truck.
Kim contacted police approximately 31 hours after the collision.
Lawsuit
On October 3, 2003, the Benskins sued Kim and the City. The Benskins
asserted that the City's probation department had breached its duty to
supervise Kim while he was on probation for his July 30, 2002 DUI
conviction.
The City moved for summary judgment on November 20, 2003, submitting
in support of its motion the declarations of Judge Ringus and Judge Allen.
Judge Ringus, Kim's sentencing judge, is also in charge of the City's
probation department. In Judge Ringus's deposition, he states that the
function of the City's probation department is to 'monitor compliance' with
court-imposed conditions of a defendant's suspended sentence.9 9 CP at
1682. Judge Ringus contrasted the City's probation department with the
State Department of Corrections, which engaged in 'probation supervision.'
9 CP at 1682. According to Judge Ringus, the probation department 'use{s}
the resources . . . available to the Fife Municipal Court to see if someone
is complying with conditions of a suspended sentence.' 9 CP at 1681-82.
Judge Ringus also stated in the deposition that he does not train the
City's probation officers and that the City's probation department does not
have any written policies or procedures.
The Benskins opposed the City's summary judgment motion and submitted
documents including the expert witness declarations and their attachments
of 'corrections expert' Brian Bemus, 'expert criminal profiler' Dr. Robert
Keppel, and 'corrections expert' William T. Stough. The City objected to
this evidence and moved to strike portions of the declarations and the
attached exhibits.
Following a March 5, 2004 motion hearing, the court denied the City's
motion to strike but granted summary judgment on three out of the four
independent grounds asserted at the oral argument:
First, with respect to Judge Allen being an intervening cause {in not
issuing a warrant for Kim's arrest}, I'm going to deny the summary judgment
on that ground. . . .
{Second,} I believe in this case the Fife probation office does act as
an arm of the court. {Benskin's counsel} says it's doing an executive
function, but he also says it's established under ARLJ 11, which is a court
rule directed to municipal courts. It's not an executive function in this
case. It's a court function.
{Third is} whether Judge Ringus is . . . negligent in his duty as a
judge, in not doing more or not having his probation clerks do more. . . .
{H}e's immune from suit. The probation department . . . is an arm of the
Fife Municipal Court . . . and is also cloaked in judicial immunity.
{Fourth,} the main reason I'm granting the motion for summary judgment
is that I do not feel a special relationship was established here.
Report of Proceedings at 54-55. The trial court entered its written orders
that same day.
The Benskins appeal the summary judgment and the City cross-appeals
the court's denial of its motion to strike.
ANALYSIS
Standard of Review
In reviewing a trial court's grant of summary judgment in a negligent
supervision claim, we make the same inquiries as the trial court, whether
there are genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Hertog ex rel. S.A.H. v. City of Seattle,
138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing CR 56(c) and Taggart v.
State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992)). In doing so, we consider
facts and reasonable inferences from the facts in the light most favorable
to the nonmoving party and review questions of law de novo. Hertog, 138
Wn.2d at 275.
Duty Based on Court Order (First Independent Basis for Summary Judgment)
The Benskins contend that the trial court erred in determining that
the City owed no duty to supervise because there was no special
relationship formed between the probation department and Kim. They assert
that the July 30, 2002 court order created such a relationship and imposed
such a duty.
Here, the question is whether a 'take-charge' or special relationship
existed between the City's probation department and Kim. In most cases,
two of the most important features of such relationship will be (1) the
court order that put the offender on the supervising officer's caseload;
and (2) the statutes that describe and circumscribe the officer's power to
act. Couch v. Dep't of Corr., 113 Wn. App. 556, 565, 54 P.3d 197 (2002),
review denied, 149 Wn.2d 1012 (2003). Neither party asserts that a statute
defines the relationship as in Taggart. But the Benskins argue that this
case is no different than Hertog, which also involved a municipal probation
department, and asserts the July 30, 2002 court order established a take-
charge relationship and, therefore, a duty on the City's part.
The following factors, taken in the light most favorable to the
Benskins, suggest the existence of a take-charge relationship here. The
Fife Municipal Court suspended Kim's driver's license for three years;
among other things it ordered that Kim not drive without a license and
insurance; that he file 'monthly status reports' regarding his treatment;
and that he 'REPORT TO THE FIFE MUNICIPAL COURT PROBATION WITHIN FIVE . . .
WORKING DAYS TO MONITOR COMPLIANCE.' 1 CP at 38. Probation officer Brooks-
Bailey was aware that Kim was not complying with the court order and sought
revocation of Kim's suspended sentence at the February 2003 hearing. The
probation department was acting to enforce the court order.10
Under the Fife sentencing court's order, and relying on our Supreme
Court's Taggart decision as applied to a municipal probation department in
Hertog, and a county probation department in Bishop v. Miche, 137 Wn.2d
518, 973 P.2d 465 (1999), a jury could find that a special relationship had
been formed. Under this special relationship, the probation department
would owe a duty to protect the public from foreseeable behavior associated
with the conditions of the order. These conditions were that Kim, a repeat
DUI offender, provide proof of treatment and, essentially, refrain from
driving. Because Washington law recognizes a duty to supervise parolees
and those on probation under suspended sentences such as Kim's, summary
judgment on the ground that no jury could find the City probation
department had a special relationship with Kim and a duty to control his
behavior was improper. See also Joyce v. State, Wn.2d , 119 P.3d
825, 2005 Wash. LEXIS 789, *15 (Wash. 2005) (citing Hertog and Bishop with
approval).
Quasi-Judicial Immunity For Probation Department as 'Arm of the Court'
(Second11 Independent Basis for Summary Judgment)
Next, the Benskins assert that the trial court erred in ruling that
the City's probation department enjoyed absolute immunity as an arm of the
court. We agree.
Quasi-judicial immunity attaches to persons or entities that perform
functions so comparable to those performed by judges that they ought to
share the judge's absolute immunity while carrying out those functions.
Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 99, 829 P.2d 746
(1992) (citing Butz v. Economou, 438 U.S. 478, 512-14, 98 S. Ct. 2894, 57
L. Ed. 2d 895 (1978)), cert. denied, 506 U.S. 1079 (1993). Quasi-judicial
immunity is absolute immunity. Lutheran, 119 Wn.2d at 99 (citing Babcock
v. State, 116 Wn.2d 596, 606-08, 809 P.2d 143 (1991)).
To be entitled to immunity, a government employee must establish three
things. First, the employee must show that he or she performs a function
which is analogous to that performed by persons entitled to absolute
immunity, such as judges or legislators. Second, the employee must show
how the policy reasons which justify absolute immunity for the judge or
legislator also justify absolute immunity for that official. And third,
the employee must show that sufficient safeguards exist to mitigate the
harshness to the claimant of an absolute immunity rule. See Lutheran, 119
Wn.2d at 106 (citing Butz, 438 U.S. at 512-13).
In Taggart, our Supreme Court held that when a parole officer performs
functions such as enforcing the conditions of parole or providing the
Indeterminate Sentence Review Board with a report to assist the Board in
determining whether to grant parole, the officer's actions are protected by
quasi-judicial immunity. Taggart, 118 Wn.2d at 207. But when the officer
takes purely supervisory or administrative actions, no such protection
exists. Taggart, 118 Wn.2d at 213. And in Hertog, the court stated,
'under Taggart, monitoring compliance with probation conditions is not
protected by quasi-judicial immunity.' 138 Wn.2d at 291. Compare Tyner v.
Dep't of Soc. & Health Servs., 141 Wn.2d 68, 86, 1 P.3d 1148 (2000); Estate
of Jones v. State, 107 Wn. App. 510, 520, 15 P.3d 180 (2000), review
denied, 145 Wn.2d 1025 (2002) (quasi-judicial immunity does not apply where
the defendant county fails to adequately monitor and report probation
violations or fails to provide all material information to the court).
Immunity is a matter of function, not form. The City points out that,
like judges, the City's probation department does not investigate or
monitor probationers.12 Therefore, it argues, the City's probation
department is judge-like and entitled to quasi-judicial immunity. But the
City's argument ignores the functional test for immunity, which is the
first inquiry under Lutheran13 monitoring probationers is not analogous to a
judicial decision to place the defendant on probation or revoke probation
and thus, it is not protected by quasi-judicial immunity. Hertog, 138
Wn.2d at 291; see also Taggart, 118 Wn.2d at 213 (no quasi-judicial
immunity for supervisory or administrative actions by parole officers).
We also reject the City's argument that, because Judge Ringus
administers the City's probation department, it is entitled to judicial
immunity. First, we note that when a judge acts as the head of a probation
department it does not mean that he does so in his judicial capacity.
Being a probation department head is an essentially administrative role,
and even where those duties are being performed by someone who also happens
to be a judge, that fact does not transform those duties to judicial duties
and the probation department does not enjoy judicial immunity for all its
activities as a result. Thus, the trial court erred when it found that the
probation department enjoyed quasi-judicial immunity for its actions in
supervising Kim's court-ordered probation.
Judicial Immunity Under ARLJ 11
The Benskins also contend that the trial court erred insofar as it
granted summary judgment based on the probation department's immunity under
ARLJ 11 because that rule does not create judicial immunity. Again, we
agree.
RCW 10.64.120 authorizes ARLJ 11. It states:
(1) Every judge of a court of limited jurisdiction shall have the
authority to levy upon a person a monthly assessment not to exceed one
hundred dollars for services provided whenever the person is referred by
the court to the misdemeanant probation department for evaluation or
supervision services. The assessment may also be made by a judge in
superior court when such misdemeanor or gross misdemeanor cases are heard
in the superior court.
(2) For the purposes of this section the office of the administrator
for the courts shall define a probation department and adopt rules for the
qualifications of probation officers based on occupational and educational
requirements developed by an oversight committee. . . . The oversight
committee shall consider qualifications that provide the training and
education necessary to (a) conduct presentencing and postsentencing
background investigations, including sentencing recommendations to the
court regarding jail terms, alternatives to incarceration, and conditions
of release; and (b) provide ongoing supervision and assessment of
offenders' needs and the risk they pose to the community.
(3) It shall be the responsibility of the probation services office to
implement local procedures approved by the court of limited jurisdiction to
ensure collection and payment of such fees into the general fund of the
city or county treasury.
(4) Revenues raised under this section shall be used to fund programs
for probation services and shall be in addition to those funds provided in
RCW 3.62.050.
The rules referred to in RCW 10.64.120 were adopted as ARLJ 11 in 2001.14
Under ARLJ 11.1:
A misdemeanant probation department, if a court elects to establish one, is
an entity that provides services designed to assist the court in the
management of criminal justice and thereby aid in the preservation of
public order and safety. This entity may consist of probation officers and
probation clerks. The method of providing these services shall be
established by the presiding judge of the local court to meet the specific
needs of the court.
ARLJ 11.2 lists the qualifications and services provided by probation
department personnel. ARLJ 11.3 directs that statutory probation service
fees are to be used for the provision of probation services.
But in his deposition, Judge Ringus states that the City's probation
department does not comply with ARLJ 11. Because the City's probation
department does not comply with the rule, the trial court erred in finding
as a matter of law that the City enjoyed judicial immunity under ARLJ 11.15
Causation in Fact
Although the Benskins argue on appeal that a jury could reasonably
find that the City's actions were a cause in fact of the injuries in this
case, the trial court did not reach the issue and we decline to address it.
Motion to Strike Evidence
We turn now to the City's cross-appeal. In its cross-appeal, the City
asserts that the trial court erred in failing to strike the declarations of
the Benskins' experts and the attached exhibits from its consideration at
summary judgment (except for deposition testimony and curriculum vitae).
Under CR 56(e), affidavits supporting or opposing a summary judgment
motion must (1) be made on personal knowledge; (2) set forth such facts as
would be admissible in evidence; and (3) show affirmatively that the
affiant is competent to testify to the matters stated therein. Grimwood v.
Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988).
The City argues that these experts' declarations should be stricken
under Grimwood, which sets forth a test for sufficiency of an affidavit in
a summary judgment context, i.e., whether such an affidavit sets forth
''material facts creating a genuine issue for trial': {first} does the
affidavit state material facts, and {second,} if so, would those facts be
admissible in evidence at trial.' 110 Wn.2d at 359.
In asserting that the 'facts alleged' would not be admissible, the
City questions the qualifications as experts of the individuals who
submitted declarations. Under ER 702, a witness may testify as an expert
if he or she possesses knowledge, skill, experience, training, or education
that will assist the trier of fact. Colwell v. Holy Family Hosp., 104 Wn.
App. 606, 611-12, 15 P.3d 210, review denied, 144 Wn.2d 1016 (2001).
Qualifications of expert witnesses are to be determined by the trial court
within its sound discretion, and rulings on such matters, including whether
to grant summary judgment based on opinions of such expert witnesses, will
not be disturbed except for a manifest abuse of discretion. Orion Corp. v.
State, 103 Wn.2d 441, 462, 693 P.2d 1369 (1985).16 We note that the focus
at summary judgment is on the facts averred within those declarations or
affidavits, and the court here properly reviewed the declarations in the
light most favorable to the non-moving party to determine whether such
evidence created a material issue of disputed fact.17 Accordingly, the
court did not abuse its discretion in refusing to strike the declarations
of the Benskins' expert witnesses or the police reports on which their
opinion was based in consideration of the City's motion for summary
judgment.
The City also contends that the trial court erred in failing to strike
as hearsay the bulk of the documents the Benskins submitted in opposition
to the City's summary judgment motion.18 Hearsay alone is not competent
evidence for summary judgment. CR 56(e); Meadows v. Grant's Auto Brokers,
Inc., 71 Wn.2d 874, 878, 431 P.2d 216 (1967). But ER 703 provides:
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert
at or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject,
the facts or data need not be admissible in evidence.
See also Thornton v. Annest, 19 Wn. App. 174, 181, 574 P.2d 1199 (1978)
(statements which formed the basis for an expert's opinion were admissible
and were not hearsay). Here, the declarations of the Benskins' expert
witnesses did no more than relate their training and specify the experts
and information on which they relied in reaching their expert opinion. The
reports were not offered for the truth of the matter asserted but only as
the basis for the expert opinion stated in the declaration. Group Health
Coop. v. Dep't of Revenue, 106 Wn.2d 391, 398-400, 722 P.2d 787 (1986);
State v. Martinez, 78 Wn. App. 870, 878-81, 899 P.2d 1302 (1995), review
denied, 128 Wn.2d 1017 (1996).
Next, the City argues that certain declarations and exhibits (such as
those opining that Kim was intoxicated at the time of the accident) should
be stricken because they are 'immaterial' to a determination of the scope
of judicial immunity, which was the issue on summary judgment. But the
City's summary judgment motion also sought judgment on additional issues
beyond judicial immunity: for example, it argued that no special
relationship existed between the City and Kim and that the appellants had
not shown cause in fact.
In sum, the City has not shown that the trial court abused its
discretion in refusing to strike generally unspecified information
including the experts in forming their declared opinions. Whether some of
the challenged documents the experts relied on in forming their opinion
would eventually be excluded from evidence at trial is a separate question
not yet ripe for our review. See Estate of Bordon v. Dep't of Corr., 122
Wn. App. 227, 246-47, 95 P.3d 764 (2004), review denied, 154 Wn.2d 1003
(2005) (in negligent supervision action, trial court did not abuse its
discretion by excluding expert testimony of former community corrections
officer; testimony that convict would have been in jail on day of accident
but for Department of Correction's negligence was beyond his expertise and
speculative).
We reverse the summary judgment and remand for a trial.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, C.J.
We concur:
MORGAN, J.
HOUGHTON, J.
1 For clarity we refer to the appellants, Robin and Susan Benskin,
individually, and Robin Benskin as the Personal Representative of the
Estate of Heather Benskin, Josh Mihok, Tina Marie Goodfellow, and Roberta
Evans, collectively as 'the Benskins.'
2 The Benskins also argue that a reasonable jury could find that the
probation department's negligence was a cause in fact of their injuries,
but the trial court did not reach that issue and we do not address it.
3 The Benskins also assert that a judge's refusal to issue an arrest
warrant at Kim's February 12, 2003 probation review hearing based on Kim's
failure to comply with probation conditions was not a superseding
intervening cause because the judge's refusal to act was caused by the
City's failure to notify Kim of the hearing. But the trial court actually
denied the City's summary judgment motion on that ground and the City does
not cross-appeal on that basis, so we do not address it.
4 RCW 46.61.502.
5 RCW 46.20.342(1)(a).
6 Former RCW 46.61.5055(3) (2003) (setting forth penalty schedule for
violations of RCW 46.61.502 for individuals with more than two prior
offenses in seven years).
7 'After a conviction, the court may impose sentence by suspending all or a
portion of the defendant's sentence . . . and may place the defendant on
probation for a period of no longer than two years and prescribe the
conditions thereof.' RCW 3.50.320. And under RCW 3.50.340:
Deferral of sentence and suspension of execution of sentence may be revoked
if the defendant violates or fails to carry out any of the conditions of
the deferral or suspension. Upon the revocation of the deferral or
suspension, the court shall impose the sentence previously suspended or any
unexecuted portion thereof. In no case shall the court impose a sentence
greater than the original sentence, with credit given for time served and
money paid on fine and costs.
8 Kim received credit for 32 days of home monitoring already served.
9 Judge Ringus noted that he did not personally monitor any probationers.
10 On the day of the hearing the court rescheduled the hearing after
learning that the probation department had failed to notify Kim of this
hearing.
11 This is actually the third independent basis provided by the court, but
we analyze the reasons in this order for the sake of clarity.
12 The Benskins also argue that it is improper for the City to assert that
the employees are essentially clerks who engage in mere administrative, not
supervisory, functions especially considering that applying the title
'probation officer' to these employees ensures that the City does not have
to send money to the State for probation services under RCW 3.50.100.
13 119 Wn.2d at 106 (citing Butz, 438 U.S. at 512-13).
14 When the new rule was first proposed, it was accompanied by the following
comment:
The 1996 Washington State Legislature mandated that the OAC adopt
rules relating to the operation of local misdemeanant probation
departments. . . .
. . . .
{Under RCW 10.64.120} the OAC established the Misdemeanant Probation
Oversight Committee in October 1996. . . . The statute requires the
oversight committee to define a misdemeanant probation department and
recommend a detailed list of qualifications for the position of probation
officer.
. . . .
The rule defines a misdemeanant probation department based on the type
of services offered. Misdemeanant probation departments vary tremendously
in the types of services offered and the method of delivering those
services. In recognition of this fact, the presiding judge of the local
court is granted authority under the rule to determine what services will
be offered and how they will be delivered. Nevertheless, a department is
still required to structure its services so that it will assist the court
in the management of criminal justice with the intent of aiding in the
preservation of public order and safety.
The oversight committee acknowledged that staff with higher levels of
training and education should perform certain types of services. To ensure
that appropriately qualified staff performs probation services, the
oversight committee has divided typical probation services into two
categories: (1) professional, and (2) clerical. Under the rule, staff may
only perform core services that they are qualified to perform. Although,
the rule does not require misdemeanant probation departments to employ
professional staff (i.e. a probation officer), probation departments
organized without a probation officer would be limited under the rule to
performing only clerical type services.
The Legislature specifically required the OAC to adopt rules, which
set the training and education qualifications for probation officers. Once
again, the detail in the rule is somewhat extensive; however, the detail is
mandated. . . .
. . . .
In summary, the rule defines what constitutes a misdemeanant probation
department under the statute. In addition, the rule establishes the types
of services that may only be performed by professional probation officers,
as opposed to clerical staff, and it establishes the education and training
requirements for both probation officers and probation clerks.
4B Karl B. Tegland, Washington Practice: Rules Practice, ARLJ 11.3 history
cmt. at 175-76 (6th ed. 2002).
15 The duty announced in Taggart only arises after it has been shown that
(1) the probation officer lacks absolute immunity, i.e., the officer's
actions were not part of any judicial or quasi-judicial process; and (2)
lacks qualified immunity, i.e., the officer failed to perform statutory
duties according to procedures dictated by statute and superiors. 118
Wn.2d at 224. We note that the City may not claim its employees are
entitled to qualified immunity here because it is undisputed that its
probation department had no established procedures and, moreover, Judge
Ringus stated that he did not train the probation officers.
16 The trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable reasons. Burnside v. Simpson Paper Co.,
123 Wn.2d 93, 107, 864 P.2d 937 (1994); Garcia v. Providence Med. Ctr., 60
Wn. App. 635, 642, 806 P.2d 766, review denied, 117 Wn.2d 1015 (1991).
17 Moreover, courts indulge in some leniency with respect to affidavits
presented by the nonmoving party on a summary judgment motion. Orion
Corp., 103 Wn.2d at 462 (citing Meadows v. Grant's Auto Brokers, Inc., 71
Wn.2d 874, 879, 431 P.2d 216 (1967)).
18 The City did not specifically identify the documents. Instead its motion
requested the court strike everything except the depositions and curriculum
vitae.