Beltran-Serrano v. City of Tacoma

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SUPREME COURT, STATE OF WASHINGTON This opinion was
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usan L. Carison
Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CESAR BELTRAN-SERRANO, an
incapacitated person, individually, and
BIANCA BELTRAN as guardian ad litem of
the person and estate of CESAR BELTRAN-

SERRANO, NO. 95062-8
Petitioners,
v. EN BANC
CITY OF TACOMA, a political subdivision
of the State of Washington, Filed JUN 1 3 2019
Respondent.

STEPHENS, J.—Cesar Beltran-Serrano, a mentally ill homeless man, was
shot multiple times by Tacoma Police Officer Michel Volk, after a simple social
contact escalated to the use of deadly force. Beltran-Serrano survived the shooting
and, through a guardian ad litem, brought this action for negligence and assault and
battery against the city of Tacoma (City). The Pierce County Superior Court
dismissed the negligence claims on summary judgment, agreeing with the City that
the sole avenue for any recovery must be an intentional tort claim for assault and

battery.

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

We reverse. The fact that Officer Volk’s conduct may constitute assault and
battery does not preclude a negligence claim premised on her alleged failure to use
ordinary care to avoid unreasonably escalating the encounter to the use of deadly
force. Under well-established negligence principles, police officers owe a duty of
reasonable care in situations such as this. Beltran-Serrano has presented evidence
to allow a jury to find that the City failed to follow accepted practices in Officer
Volk’s interactions with him leading up to the shooting and that this negligence
resulted in his injuries.

FACTS AND PROCEDURAL HISTORY!

Beltran-Serrano suffers from mental illness and has limited English language
proficiency. On June 29, 2013, he was homeless when Officer Volk noticed him
standing on the corner of East 28th Street, an area of Tacoma where the police had
received multiple complaints about panhandlers. Officer Volk parked her patrol
vehicle near Beltran-Serrano and approached him with the goal of educating him
about the City’s panhandling laws. She did not have reasonable suspicion or

probable cause to believe he was committing a crime.

' Because we are reviewing an order granting summary judgment, we consider all
facts and reasonable inferences in the light most favorable to Beltran-Serrano, the
nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784, 30
P.3d 1261 (2001) (plurality opinion). Our review is de novo. Id.

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As Officer Volk approached Beltran-Serrano, he laid down on his stomach
and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked
up at her blankly and kept digging in the hole. Noticing that the hole contained
mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda
container, take a drink, and throw it back in the hole. When Officer Volk asked
Beltran-Serrano if he understood English, he shook his head no. Officer Volk then
radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish,
was within one and a half to five minutes away.

Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to
engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to
get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see
an ID card. Beltran-Serrano began to pat his pockets as if to look for identification,
but then he bent down and reached back into the hole. When Officer Volk moved
closer to Beltran-Serrano and continued to address him in English, he became scared
and started to run away. Officer Volk shot him in the back with a stun gun as he ran
across the street. Clerk’s Papers (CP) at 400-01. The stun gun did not have the
desired effect, and Beltran-Serrano continued to run away. Jd. Officer Volk then

pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

eround. CP at 401. The total time between when Officer Volk called for a Spanish-
speaking officer and the shooting was 37 seconds. CP at 396.”

In resisting summary judgment, Beltran-Serrano offered declaration
testimony from multiple witnesses who stated that they did not see Beltran-Serrano
assault Officer Volk or brandish any weapon and that there was no instance of
struggle or altercation on the street corner. Witnesses expressed concern as to why
Beltran-Serrano was shot because he did not appear to be acting aggressively or
making threatening motions. CP at 415-16, 432-33. A shooting scene
reconstruction led a ballistics expert to conclude that “[nJone of the fired bullet paths
to Beltran-Serrano support him ‘swinging’ or otherwise moving his arms at the time
of receiving the gunshots.” CP at 459.

Through a guardian ad litem, Beltran-Serrano brought this action against the
City. In addition to a claim for assault and battery, his complaint alleged that Officer

Volk improperly, unreasonably, and unnecessarily escalated the situation, and that

* The City offers a different view of the facts. According to Officer Volk’s
statement, after Beltran-Serrano reached back into the hole, he grabbed what appeared to
be a piece of construction pipe that was bent into an oval shape. CP at 365. Beltran-
Serrano swung the object at Officer Volk’s upper body, and she blocked the strike with her
left forearm before giving chase to Beltran-Serrano as he ran into the street. Jd. As Beltran-
Serrano was running away, Officer Volk discharged her stun gun, hitting Beltran-Serrano
in the back, at a distance of approximately seven yards. CP at 366. After the stun gun
appeared to have no effect, Officer Volk maintains that Beltran-Serrano turned toward her,
raised the object above his head as if to strike, and began to move in her direction. Jd.
Officer Volk then drew her firearm and fired until Beltran-Serrano “dropped the pipe and
fell to the ground.” Jd.

4.

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

the City failed to properly train and supervise officers to deal with the mentally ill
and to exercise appropriate force. CP at 77. The City filed a motion for partial
summary judgment, arguing it owed no duty of reasonable care to Beltran-Serrano.
Specifically, the City asserted that (1) a negligence claim could not be based on an
intentional tort, (2) the public duty doctrine barred any negligence claim, and (3) a
negligent training and supervision claim was unavailable because Officer Volk was
acting within the scope of her employment. CP at 240-54. The Pierce County
Superior Court granted the City’s motion to dismiss the negligence claims and
entered an order certifying for interlocutory review the issue of “whether a police
officer owes a duty of reasonable care to act reasonably when using deadly force.”
CP at 698-99, 757.3 Beltran-Serrano then filed a motion for direct discretionary

review in this court, which our commissioner granted pursuant to RAP 4.2(a)(4).4

3 The order on summary judgment dismisses “plaintiff’s negligence claims ... in
their entirety.” CP at 699. However, the separate certification order framing the issue for
review does not reference the negligence claims based on the City’s duty to train and
supervise employees. CP at 757. Beltran-Serrano’s motion for discretionary review is
similarly limited to this focus. See Mot. for Discr. Review at 1. Given the limited issue
identified in the certification order and the motion for discretionary review, we have not
separately addressed Beltran-Serrano’s negligence theory based on the City’s training and
supervision of its employees. We leave it to the superior court on remand to determine,
consistent with the reasoning in this opinion, whether that negligence theory remains for
trial.

* The City separately sought discretionary review in the Court of Appeals of an order
granting partial summary judgment to Beltran-Serrano concerning the reasonableness of
medical expenses. That matter has been stayed pending this review.

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

ANALYSIS

Claims of negligent law enforcement are not novel. Washington courts have
long recognized the potential for tort liability based on the negligent performance of
law enforcement activities. See, e.g., Washburn v. City of Federal Way, 178 Wn.2d
732, 310 P.3d 1275 (2013) (negligent service of a protective order); Chambers-
Castanes v. King County, 100 Wn.2d 275, 669 P.2d 451 (1983) (negligent failure to
respond with police assistance in a timely manner); Mason v. Bitton, 85 Wn.2d 321,
534 P.2d 1360 (1975) (negligent police vehicle chase); Garnett v. City of Bellevue,
59 Wn. App. 281, 796 P.2d 782 (1990) (negligent infliction of emotional distress for
officers’ harsh and offensive language in responding to a call that plaintiffs were
loitering). Indeed, the City readily acknowledges that such liability is consistent
with the broad waiver of sovereign immunity for municipalities under RCW
4.96.010. Br. of Resp’t at 10.

The question in this case is whether a claim of negligence can be based on
Officer Volk’s shooting of Beltran-Serrano when it is clear the shooting was
intentional, i.e., volitional. The City insists that “[t]here is no such thing as the
negligent commission of an intentional tort.” Jd. at 18. The City further argues that
the public duty doctrine precludes liability because the statutory duty “to enforce the

laws and keep the peace . . . is imposed solely on government and owed to the public

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

at large.” Id. at 36. We believe the City misunderstands both the nature of Beltran-
Serrano’s negligence claim and the nature of its law enforcement duty.

A. An Intentional Tort Claim Does Not Foreclose a Negligence Claim Premised
on the Failure To Use Reasonable Care To Avoid the Use of Force

In arguing that Beltran-Serrano seeks to allege negligence in the commission of
an intentional tort, the City fails to appreciate the nature of Beltran-Serrano’s claim.
The core of his negligence claim is that Officer Volk unreasonably failed to follow
police practices calculated to avoid the use of deadly force. CP at 77-78. Beltran-
Serrano focuses on Officer Volk’s negligence leading up to the shooting, including
her failure to respond appropriately to clear signs of mental illness or impairment,
her decision to continue to engage with Beltran-Serrano in English, and her decision
to prevent him from walking away. The negligence allegations also identify Officer
Volk’s lack of adequate training and her failure to recognize the ineffectiveness of

using a stun gun against a mentally ill individual.’ While these negligence claims

> Beltran-Serrano offered testimony from a police practices expert that Officer Volk
failed to recognize Beltran-Serrano was affected by mental illness and did not follow basic
police procedures. Br. of Appellants at 10-11; see CP at 473-81. In her deposition, Officer
Volk stated that she perceived no basis to determine whether Beltran-Serrano was mentally
ill. CP at 475. Beltran-Serrano’s expert reviewed Officer Volk’s training records and
found her last course completed on mental health was in February 2013. Jd. Officer Volk
was unable to recall any training that addressed how to approach someone suffering from
mental illness. CP at 476. Beltran-Serrano also presented the testimony of Volk’s fellow
officer Loretta Cool, who explained that upon approaching the same situation as Officer
Volk, she would have considered the person to have been under the influence of drugs or
mentally ill. CP at 494,

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relate to events that culminated in Officer Volk intentionally shooting Beltran-
Serrano, they do not assert a “negligent intentional shooting.” Instead, they require
consideration of the totality of the circumstances involved in the encounter between
Officer Volk and Beltran-Serrano, and identify potential negligence in the series of
actions leading up to the decision to shoot.

The District of Columbia Court of Appeals has considered cases similar to
this one and has explained the distinction between negligence and intentional tort
claims arising from police use of force. District of Columbia v. Chinn, 839 A.2d
701, 710 (D.C. 2003). The court observed, “‘[W]here there is sufficient evidence to
submit to a jury the question of assault and battery, there may be, on the facts of a
particular case, sufficient evidence to submit the question of negligence as well.’”
Id. (alteration in original) (quoting Holder v. District of Columbia, 700 A.2d 738,
742 (D.C. 1997)). Cases allowing for both claims present a set of common
characteristics:

Each involves the use of deadly force. Each invokes a police regulation
establishing a standard of care with respect thereto that is arguably distinct
from the excessive force standard. Each involves alternate scenarios in at
least one of which a distinct act of negligence, a misperception of fact, may
have played a part in the decision to fire. Each involves a negligent act that
precedes the application of the relevant force of resort to firearms, i.e., prior
to the pulling of the trigger.

Id. at 710-11. These characteristics underscore how ordinary negligence principles

apply in situations that involve both a claim of battery or unprivileged use of force

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and the duty to act reasonably in carrying out law enforcement functions. The series
of actions culminating in the use of deadly force may be analyzed in its constituent
parts or, alternatively, as involving either negligent or intentional conduct. Jd.; see
also Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal.
Rptr. 3d 684 (2013) (recognizing negligence claim may be asserted for police use of
deadly force “if the tactical conduct and decisions leading up to the use of deadly
force show, as part of the totality of circumstances, that the use of deadly force was
unreasonable”).°

To understand how negligent acts leading up to the ultimate use of force may
be delineated from the use of force itself, one need consider only a variation on the
facts of this case. A person in Beltran-Serrano’s situation might just as readily be
injured, not by an officer shooting, but perhaps by running into a car as he attempts

to flee from the officer in panic. The same acts of negligence remain under either

° The federal district court cases the City relies on miss this overlap between
negligence and battery. See Roufa v. Constantine, No. C15-1379JLR, 2017 WL 120601

(W.D. Wash. Jan. 11, 2017) (court order); Lawson v. City of Seattle, No. C12-1994-MAT, -

2014 WL 1593350 (W.D. Wash. Apr. 21, 2014) (court order); Willard v. City of Everett,
No. C12-14 TSZ, 2013 WL 4759064 (W.D. Wash. Sept. 4, 2013) (court order), aff'd, 637
F. App’x 441 (2016). These cases posit a negligence claim based on the unreasonable use
of force or an unlawful arrest. This does not accurately describe the negligence Beltran-
Serrano alleges. As noted, his negligence claim is premised on Officer Volk’s failure to
understand and apply accepted police procedures in dealing with a mentally ill individual
who has limited English language proficiency, and in avoiding the use of force. The
gravamen of the negligence claim is the mishandling of the encounter, not the use of
excessive force.

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

scenario, but we would not describe the latter scenario as involving an intentional
tort. By focusing on the alleged acts of negligence during the totality of Officer
Volk’s encounter with Beltran-Serrano, we avoid mischaracterizing this case as
involving “nothing but” an intentional tort.

Our analysis also accords with the practice in Washington of allowing claims
to be pursued under alternative, even inconsistent, theories of recovery. CR 8(e)(2)
(specifying that a party may plead “as many separate claims or defenses as the party
has regardless of consistency”). Here, the fact that Beltran-Serrano may have a valid
intentional tort claim for excessive force has no bearing on the viability of his
negligence claim for violation of the duty to act reasonably. A jury could find one
claim or the other (or neither claim) to be supported. The City certainly has not
conceded that Beltran-Serrano has an assault and battery claim as opposed to a
negligence claim. All claims remain for trial.

The City misreads Boyles v. City of Kennewick, 62 Wn. App. 174, 813 P.2d
178 (1991), as precluding overlapping claims of negligence and assault and battery
under Washington law. See Br. of Resp’t at 9, 22; Resp. to Mot. for Discr. Review
at 12. Boyles merely explains that a police officer may be an intentional tortfeasor
and “‘is liable as such for assault and battery if unnecessary violence or excessive
force is used in accomplishing the arrest.” Boyles, 62 Wn. App. at 176 (citing 6A

C.J.S. Assault & Battery § 27 (1975)). This statement alone, however, does not

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support the City’s argument because it does not foreclose a separate claim premised
on negligence. The authority cited in Boyles for the above statement is a Corpus
Juris Secundum entry describing claims for assault and battery. Not only does
Boyles fail to limit actions against law enforcement to intentional torts, it specifically
states that a claim for negligence against a police officer remains possible:

As Ms. Boyles points out, there are no Washington cases mandating a claim
of assault and battery for all injuries inflicted during or after an arrest. While
a claim for negligence against a police officer is possible, it is not raised by
the factual allegations of the complaint in this case and, therefore, does not
relate back to the original pleadings; additional facts would be necessary to
support it.

Id. at 178 (emphasis added). Here, Beltran-Serrano’s amended complaint asserted a
valid claim of negligence and alleged facts necessary to support it. CP at 73-79.
Consistent with Washington case law and CR 8(e)(2), Beltran-Serrano is allowed to
pursue both an intentional tort and a negligence action.

The City further argues that allowing a negligence action based on police use
of force would “circumvent both the defense of self-defense and the standard of
objective reasonableness applicable to an excessive force claim.” Br. of Resp’t at
23. We disagree. The statute the City relies on, RCW 9A.16.040, governs
“[jlustifiable homicide or use of deadly force by public officer, peace officer, [or]
person aiding.” (Boldface omitted.) This statute defines when police officers are

justified in using deadly force. See id. Regardless of whether Beltran-Serrano’s

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

claims sound in negligence or assault and battery, the statute allows Officer Volk to
argue to the jury that her actions were privileged under the good faith standard of
the statute that requires consideration of “all the facts, circumstances, and
information known to the officer at the time.” RCW 9A.16.040(4). This statutory
standard fully accords with Beltran-Serrano’s view that the facts of this case must
be evaluated under the totality of the circumstances, including Officer Volk’s
preshooting conduct. Br. of Appellants at 27-28.

We hold that Beltran-Serrano’s intentional tort and negligence claims may
coexist under the facts of this case. Considering the totality of the circumstances,
the allegations support a claim for negligence that does not amount to a “negligent
intentional shooting.” Moreover, all facts remain to be determined at trial, and
negligence and intentional tort claims may be pleaded in the alternative under CR
8(e)(2). The superior court erred in dismissing the negligence claims as a matter of
law.

A remaining question is whether Beltran-Serrano’s negligence claims should
nonetheless be dismissed in light of the public duty doctrine. Stated differently, we
must determine whether the duty owed by Officer Volk represents a tort duty owed
specifically to Beltran-Serrano rather than a nonactionable duty owed to the public

as a whole.

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

B. Officer Volk Owed a Duty in Tort to Beltran-Serrano Based on Her
Affirmative Conduct throughout Their Interaction

The public duty doctrine recognizes that governments, unlike private persons,
are tasked with duties that are not actionable duties within the meaning of tort law.
Washburn, 178 Wn.2d at 753. The central purpose behind the public duty doctrine
is to ensure that governments do not bear greater tort liability than private actors.
Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 886, 288 P.3d 328
(2012) (Chambers, J., concurring).

To establish a duty in tort against a governmental entity, a plaintiff must show
that the duty breached was owed to an individual and was not merely a general
obligation owed to the public. Babcock, 144 Wn.2d at 785. While there are four
exceptions to the public duty doctrine that provide for liability even in the face of
otherwise public duties, see Munich, 175 Wn.2d at 879, an enumerated exception is
not always necessary to find that a duty is owed to an individual and not to the public
at large.’ Instead, the public duty doctrine is simply a “focusing tool” to ensure that
the government is not held liable in tort for duties owed solely to the general public.

Id. at 878.

’ The four recognized exceptions to the public duty doctrine are (1) legislative intent,
(2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship. Munich, 175
Wn.2d at 879. “If any one of the exceptions applies, the government is held as a matter of
law to owe a duty to the plaintiff.” Zd.

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

Importantly, this court has recognized that the public duty doctrine comes into
play when special governmental obligations are imposed by statute or ordinance. Jd.
at 886 (Chambers, J., concurring). As to common law negligence, Justice Chambers
pointed out in his concurrence in Munich that “[t]his court has never held that a
government did not have a common law duty solely because of the public duty
doctrine.” Id. at 886-87 (emphasis added).® To apply the doctrine so broadly would
inappropriately lead to a partial restoration of immunity by carving out an exception
to ordinary tort liability for governmental entities. Jd. at 892 (Chambers, J.,
concurring). This would undermine the value of tort liability to protect victims, deter
dangerous conduct and provide a fair distribution of risk of loss. Eastwood v. Horse
Harbor Found., Inc., 170 Wn.2d 380, 407, 241 P.3d 1256 (2010) (Chambers, J.,
concurring).

At common law, every individual owes a duty of reasonable care to refrain
from causing foreseeable harm in interactions with others. Restatement (Second) of
Torts § 281 cmt. e (Am. Law Inst. 1965) explains that “the duty established by law

to refrain from the negligent conduct is established in order to protect the other from

the risk of having his interest invaded by harm resulting from one or more of this

8 Justice Chambers’s concurring opinion is precedential because it received five
votes from justices who also signed the majority opinion. See Shizuko Mita v. Guardsmark,
LLC, 182 Wn. App. 76, 83 n.2, 328 P.3d 962 (2014) (recognizing stare decisis effect of
Justice Chambers’s concurrence in Munich).

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

limited number of hazards.” This duty applies in the context of law enforcement and
encompasses the duty to refrain from directly causing harm to another through
affirmative acts of misfeasance. See Robb v. City of Seattle, 176 Wn.2d 427, 295
P.3d 212 (2013); see also Coffel v. Clallam County, 47 Wn. App. 397, 403, 735 P.2d
686 (1987) (recognizing that, “if the officers do act, they have a duty to act with
reasonable care”). In Washington, this principle dates to at least the 1926 case of
Jahns v. Clark, which specifically recognized an actionable duty on the part of law
enforcement officers exercising deadly force. 138 Wash. 288, 296-97, 244 P. 729
(1926) (holding sheriff and deputies liable on a bond for civil damages arising from
an “intentional or negligent shooting”).?

Garnett illustrates how recognizing tort liability for negligent law
enforcement activities is consistent with the public duty doctrine. 59 Wn. App. at

287. There, the Court of Appeals identified a law enforcement situation where, even

° Of course, tort liability for law enforcement activities may be limited by the
legislature. Statutes specifically mandate the use of a gross negligence standard for a
variety of law enforcement related activities. See, e.g, RCW 71.05.510 (detention of a
person suffering from mental illness for more than the allowable number of days); RCW
7.69A.040 (failure to provide notice of rights to a child witness or victim); RCW 9.95.204
(supervision of misdemeanant offenders); RCW 4.24.550 (release of information/
classification level of sex offender information to the public). No statute currently alters
the reasonable care standard for law enforcement in the use of deadly force. As noted
above, RCW 9A.16.040 imposes a “good faith” standard and provides that the use of
deadly force is justifiable when “necessarily used by a peace officer meeting the good faith
standard of this section to overcome actual resistance to the execution of the legal process,
mandate, or order of a court or officer, or in the discharge of a legal duty.” RCW
9A.16.040(1)(b).

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though no public duty doctrine exception directly applied, the city was liable for its
officers’ negligence. Id. Garnett concerned an interaction between police officers
and two women who were allegedly soliciting customers at a Bellevue hotel and
refused to leave. Jd. at 282. During the interaction, the police officers accused the
women of being prostitutes, saying things like “‘You know what you did and you
know what you are,’” and “‘I am going to pick you up and take you downtown
because we don’t want your kind here.’” Jd. at 284. In addressing the plaintiffs’
claims for negligent infliction of emotional distress, the Court of Appeals focused
on the fact that harm resulted from the officer’s direct contact with the plaintiffs, not
the performance of a general public duty of policing. Jd. at 286. Even though the
facts did not fit neatly into a previously identified exception, the Court of Appeals
correctly rejected the public duty doctrine as a basis to preclude liability. Id. at 286-
287.

The present case aligns with the analysis in Garnett. As noted, under the
common law, “if the officers do act, they have a duty to act with reasonable care.”
Coffel, 47 Wn. App. at 403. Beltran-Serrano’s negligence claims arise out of Officer
Volk’s direct interaction with him, not the breach of a generalized public duty. The
City therefore owed Beltran-Serrano a duty in tort to exercise reasonable care.
Recognizing such a duty does not open the door to potential tort liability for a city’s

statutorily imposed obligation to provide police services, enforce the law, and keep

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Beltran-Serrano, et al. v. City of Tacoma, 95062-8

the peace. These statutory duties have always been, and will continue to be,
nonactionable duties owed to the public at large. In this case, however, the specific
tort duty owed to Beltran-Serrano arises from Officer Volk’s affirmative interaction
with him. The public duty doctrine does not apply to prevent the City from being
found liable in tort.!°
CONCLUSION

The superior court wrongly dismissed Beltran-Serrano’s negligence claims,
which are not foreclosed by his intentional tort claim. Under Washington common
law, the City owes a duty to refrain from causing foreseeable harm in the course of
law enforcement interactions with individuals. Because the duty at issue in this case,
grounded in common law negligence, is owed specifically by Officer Volk to
Beltran-Serrano rather than to the public as a whole, the public duty doctrine does
not apply. Beltran-Serrano has properly pleaded a separate negligence cause of
action and identified genuine issues of material fact regarding Officer Volk’s breach

of the duty to act reasonably. We reverse the superior court order granting summary

'0 Even if we believed it necessary to identify an enumerated exception to the public
duty doctrine, Beltran-Serrano persuasively argues that the rescue doctrine exception
applies here. The rescue doctrine recognizes that a duty to exercise reasonable care arises
when a person undertakes “to render aid to or warn a person in danger.” Brown v.
MacPherson’s, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). Here, Officer Volk initiated
contact with Beltran-Serrano and sought to educate him about panhandling laws. In the
course of their interaction, Officer Volk’s unreasonable escalation of the encounter to the
use of deadly force significantly increased the risk of harm to Beltran-Serrano.

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judgment and remand to the trial court for further proceedings consistent with this

opinion.

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WE CONCUR:

Ta lwanad . 00.

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Cesar Beltran-Serrano, et al. v. City of Tacoma

No. 95062-8

MADSEN, J. (dissenting)—A Tacoma police officer stopped her patrol car and
approached a man at the northwest corner of East 28th Street and Portland Avenue, a
location for which police had received complaints about aggressive panhandlers. The
encounter quickly escalated until the officer drew her firearm and shot the man. The
majority holds that these facts support a claim of negligence, but there is no doubt that
the officer acted intentionally when she shot this man and that it was the officer’s action
of shooting the man that caused the injury for which he now seeks compensation. The
majority divorces the first portion of the encounter from the injury and says that the
escalation is the injury. But it is not. The man is seeking redress for being shot; he does
not identify any independent injury related to the escalating conduct. Rather, the events
leading up to the shooting are relevant to support the plaintiffs’ claim for assault and
battery. For these reasons, as expounded below, I dissent.

This case concerns claims against the city of Tacoma stemming from a police
shooting of Cesar Beltran-Serrano, a Spanish-speaking, mentally ill man, on a Tacoma
street following a community caretaking contact with Beltran-Serrano by Tacoma Police
Officer Michel Volk. The present review addresses the trial court’s dismissal on partial

summary judgment of a negligence claim against the city stemming from the noted
No. 95062-8
Madsen, J., dissenting

shooting; at issue is whether Beltran-Serrano’s negligence claim may be maintained in
light of Officer Volk’s intentional shooting of Beltran-Serrano.

As noted, the majority answers that question affirmatively by “focus[ing] on
Officer Volk’s negligence leading up to the shooting” (majority at 7) and reverses the
trial court’s grant of summary dismissal of the negligence claim. In the maj ority’s view,
“t]he gravamen of the negligence claim is the mishandling of the encounter, not the use
of excessive force.” Jd. at9n.6. I disagree. In my view, we cannot so easily parse and
ignore the required elements of a negligence claim. In the present circumstance, where
intentional injury is the basis of the complaint, a claim of negligence is not available as a
matter of law. I begin with the required elements of a negligence claim.

To sustain an actionable negligence claim, a plaintiff must establish four essential
elements: duty, breach, proximate cause, and resulting harm. Pedroza v. Bryant, 101
Wn.2d 226, 228, 677 P.2d 166 (1984); Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d
483 (1992); Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839, 856, 816 P.2d 75 (1991).
“If any of these elements cannot be met as a matter of law, summary judgment for the
defendant is proper.” Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552-53, 192
P.3d 886 (2008). “A defendant as moving party may prevail by showing that there is an
absence of evidence to support the plaintiffs case.” Kennedy, 62 Wn. App. at 856 (citing
Young v. Key Pharm., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989)).

Critically, the damage or harm must be the proximate result of the breach of duty;

merely following subsequently in time is not enough. “Negligence and causation are

No. 95062-8
Madsen, J., dissenting

independent legal requirements, and a finding of negligence does not automatically imply
causation.” 65 C.J.S. Negligence § 15 at 301 (2010). Further, “[d]amages constitute an
essential element of a negligence claim; without damages, a negligence claim fails. Proof
of damages, that is, actual injury to the plaintiff, is an essential element of a claim for
negligence.” Jd. § 54, at 351 (footnote omitted). “An allegedly negligent act must cause
an injury in order to be actionable. A plaintiff in a negligence action therefore is
required to adduce evidence showing there was a negligent act on the part of the
defendant and that such act was the cause of the plaintiff's injury.” Id. at 351-52
(emphasis added) (footnote omitted).

If the negligent act or omission has resulted in no injury or loss to

anyone, it is merely injuria sine damno even though it involved a violation

of a statute or ordinance. Even though injury may have resulted, there is no

liability unless such injury was proximately caused by the negligence

complained of; the real cause of action in a negligence case is not the

negligent act but the injury resulting therefrom, since to support the action

there must be not only the negligent act but a consequential injury, and the

injury is the gravamen of the charge.

Id. at 352 (emphasis added) (footnotes omitted).

Put another way, even if the conduct preceding the injury is substandard, such fact
cannot “fill in” for the absence of a proximately caused resulting injury. “An action in
negligence is not determined alone from the doing of an act resulting in injury to another.
Similarly, a defendant’s breach of a duty, standing alone, does not mean that a defendant
is negligent.” Id. § 20, at 305 (footnote omitted). “The essence of negligence is behavior

creating an unreasonable danger to others”—1t is “relative to the time, place,

circumstances, or persons involved”; accordingly, “[n]legligence in the abstract does not

No. 95062-8
Madsen, J., dissenting

support a cause of action.” Jd. § 4, at 280. “To maintain an action in negligence, the
plaintiff must assert in the complaint [the noted four elements]. When these elements are
present, they together constitute negligence, and the absence of any one of these elements
renders the complaint bad or the evidence insufficient.” Jd. § 20, at 305-06 (footnote
omitted),

A negligent or careless act is not necessarily actionable negligence.

To constitute actionable negligence, there must be not only a lack of care,

but such lack of care must involve a breach of some duty owed to a person

who is injured in consequence of such breach. Even though an act or

omission may involve a lack of care, it does not necessarily follow that any

cause of action arises therefrom since negligence which did not contribute

to the damage sustained is negligence, but not actionable negligence, and

negligence is not a tort unless it results in the commission of a wrong or in

harm to someone.

Id. § 11, at 292 (footnotes omitted).

Further, the injury must be cognizable in the negligence context. “The term
‘negligence’ is synonymous with disregard, heedlessness, inadvertence, inattention
oversight and thoughtlessness.” Id. § 15, at 299-300 (footnotes and most internal
quotation marks omitted). “The words ‘negligence’ and ‘intentional’ are contradictory;
negligence is not synonymous with intentional action.” Jd. § 17, at 302 (footnote
omitted); see also Tegman v. Accident & Med. Investigations, Inc., 150 Wn.2d 102, 109-
10, 75 P.3d 497 (2003) (‘‘fault” within the meaning of chapter 4.22 RCW, which

encompasses liability for negligence, does not include intentional acts or omissions);

State Farm Fire & Cas. Co. v. Justus, 199 Wn. App. 435, 455, 398 P.3d 1258, review

No. 95062-8
Madsen, J., dissenting

denied, 189 Wn.2d 1026 (2017) (distinguishing “intentional acts to harm” as “not merely
conduct which created an ‘unreasonable risk of harm’”’).
“Negligence,” by definition, is not an intentional tort: it includes

only such conduct as creates liability for the reason that it involves risk and

not certainty of invading the interest of another, and therefor excludes

conduct which creates liability because of the actor’s intention to invade a

legally protected interest of the person injured.

65 C.I.S. Negligence § 17, at 302 n.1.

[Nlegligence excludes the idea of intentional wrong; the absence of an

intent or purpose to inflict the injury of which complaint is made is

essential to the legal conception of negligence and is an element which

distinguishes it from other torts. Where an intention to inflict the injury

exists, whether that intention is actual or constructive only, the wrongful act

is not negligent but is one of violence or aggression.

Id. § 28, at 313 (emphasis added) (footnotes omitted). Accordingly, “[nJegligence claims
and assault and battery claims... are mutually exclusive.” Jd. § 15, at 300.

With these requirements in mind, turning to the current case, the majority’s focus
on Officer Volk’s alleged substandard conduct concerning her initial contact with
Beltran-Serrano does not cure the absence of a qualifying proximately caused injury.
That is, while Beltran-Serrano was indeed injured, there is no dispute that the shooting of
Beltran-Serrano by Officer Volk was an intentional act. The shooting is the only harm
alleged by Beltran-Serrano in his complaint and is pleaded as the basis for both his
assault and battery claim and his negligence claim. The amended complaint states,
“Defendant [city]... unreasonably, unnecessarily, and without provocation shot Cesar

Beltran ... thereby inflicting an assault and battery on Cesar Beltran.” Clerk’s Papers at

78. The amended complaint further states, “As a direct and proximate result of the

No. 95062-8
Madsen, J., dissenting

breaches, failures, and negligence of Defendant [city], .. . Plaintiff was shot . . . multiple
times causing serious injuries.” Jd. Only a single harm is alleged—the shooting. There
is no dispute that the shooting was intentional. Officer Volk deliberately drew her
service handgun and shot Beltran-Serrano multiple times.'! There is simply no
inadvertence that would support a negligence claim. See 65 C.J.S. Negligence § 14, at
298 (“A negligent act is an inadvertent act.”); see also Boyles v. City of Kennewick, 62
Wn. App. 174, 176, 813 P.2d 178 (1991) (“[A] police officer making an arrest is justified
in using sufficient force to subdue a prisoner, however [the officer] becomes a tortfeasor
and is liable as such for assault and battery if unnecessary violence or excessive force is
used in accomplishing the arrest.” (citing 6A C.J.S. Assault & Battery § 27 (1975))). A
complaint that refers only to intentional, deliberate conduct does not state a prima facie
claim of negligence. “To state a claim for negligence, the underlying complaint must
allege facts that support a conclusion that the conduct was negligent.” Grange Ins. Ass'n
v. Roberts, 179 Wn. App. 739, 769, 320 P.3d 77 (2013). “‘In order to state a cause of
action for negligence, it is necessary to allege facts which would warrant a finding that
the defendant has committed an unintentional breach of a legal duty, and that such breach
was a proximate cause of the harm.’” Jd. (quoting McLeod v. Grant County Sch. Dist.
No. 128, 42 Wn.2d 316, 319, 255 P.2d 360 (1953)).

The majority cites District of Columbia v. Chinn, 839 A.2d 701 (D.C. 2003), and

Hayes v. County of San Diego, 57 Cal. 4th 622, 305 P.3d 252, 160 Cal. Rptr. 3d 684

' Whether that shooting was justified will be determined at trial.

6

No. 95062-8
Madsen, J., dissenting

(2013), as support, but in my view, Chinn argues against the availability of a negligence
claim here and Hayes simply does not convince. In Chinn, “the plaintiff failed to make a
separate and distinct claim for negligence apart from the battery allegations.” 839 A.2d
at 711. Chinn’s allegations “neither establish[ed] a claim separate and distinct from the
alleged battery, nor demonstrate[d] the essential elements of a negligence claim. The
allegations [did] not reflect negligence, but rather an intentional tort with a conclusory
allegation of negligence.” Jd. The same is true here. The Chinn court explained,
The crux of Chinn’s claim is that the officers deliberately inflicted

excessive force upon him, and... assaulted him without provocation.

Chinn did not argue that the officers mistakenly or negligently thought

Chinn was armed; Chinn did not allege that the officers misperceived him

as a threat. The negligence claim... should not have gone to the jury as no

separate and distinct cause or theory of negligence was presented before the

court,
Id. Chinn does not support the notion that a negligence claim can be premised upon an
intentional tort as the majority advocates here.

In Hayes, the California Supreme Court, answering a certified question from the
Ninth Circuit Court of Appeals, noted that under California state law, the court had “long
recognized that peace officers have a duty to act reasonably when using deadly force.”
57 Cal. 4th at 629. The California court explained that in its prior decision in Grudt v.
City of Los Angeles, 2 Cal. 3d 575, 468 P.2d 825, 86 Cal. Rptr. 465 (1970), it had
determined that preshooting circumstances might show that an otherwise reasonable use

of deadly force by officers was, in fact, unreasonable. But the circumstances in Grudt

and Hayes are nothing like the case here. In Grudt, a police officer in plain clothes,

No. 95062-8
Madsen, J., dissenting

carrying a double-barreled shotgun, approached a car, possibly causing the driver to think
he was being robbed or attacked. The driver accelerated the car toward a second
plainclothes officer, and then both officers opened fire on the driver, killing him. See
Hayes, 57 Cal. 4th at 629 (discussing Grudt). In Hayes, police officers were called to a
house and advised that the man inside was potentially suicidal. When the officers entered
the house to investigate, the man approached them, holding a knife in his raised hand.
Both officers drew their firearms and fired two shots, killing the man. Jd. at 626.

In my view, Hayes does not offer any useful guidance here. It is based on foreign
jurisdiction law, and the circumstances in both Hayes and Grudt are simply too different
from the present case to be helpful.? More to the point, for the reasons discussed above, I
disagree with Hayes. While an officer’s use of deadly force must be appropriate,
“Tw]here an intention to inflict the injury exists, whether that intention is actual or
constructive only, the wrongful act is not negligent.” 65 C.J.S. Negligence § 28, at 313.
As discussed above, a plaintiff “may not base claims of negligence on alleged intentional
actions, such as excessive force or unlawful arrest.” Lawson v. City of Seattle, No. C12-
1994-MAT, 2014 WL 1593350, at *13 (W.D. Wash. Apr. 21, 2014) (court order); see
also St. Michelle v. Robinson, 52 Wn. App. 309, 315-16, 759 P.2d 467 (1988) (where
alleged sexual abuse was intentional, and the resulting emotional distress was also

intentionally inflicted as a matter of law, plaintiff cannot state a cause of action for

* In the present case, Officer Volk was not advised that the man she was approaching was
unstable; nor was there any question about Officer Volk’s identity since she was driving a
marked police cruiser and was in uniform when she approached Beltran-Serrano.

8

No. 95062-8
Madsen, J., dissenting

negligent infliction of emotional distress); Willard v. City of Everett, No. C12-14 TSZ,
2013 WL 4759064, at *2 (W.D. Wash. Sept. 4, 2013) (court order), aff'd, 637 F. App’x
441 (2016) (“A plaintiff may not base a claim of negligence on an intentional act, like the
use of excessive force.”); Keates v. City of Vancouver, 73 Wn. App. 257, 267, 869 P.2d
88 (1994) (“As a general rule, law enforcement activities are not reachable in
negligence.”).

Finally, I note that affirming the trial court’s dismissal of the negligence claim
does not leave Beltran-Serrano without a remedy concerning the shooting. As Boyles
noted, where a police officer is alleged to have used excessive force in accomplishing an
arrest, a claim for assault and battery may lie, and Beltran-Serrano has so alleged. See
Boyles, 62 Wn. App. at 176. However, for the reasons discussed, in my view, a
negligence claim based on the intentional shooting that occurred here is simply not
available. I would affirm the trial court’s dismissal of Beltran-Serrano’s negligence

claim. Accordingly, I dissent.
No. 95062-8
Madsen, J., dissenting

10

Beltran-Serrano v. City of Tacoma, No. 95062-8
Wiggins, J., concurring in dissent

No. 95062-8

WIGGINS, J. (concurring in dissent)—I concur in Justice Madsen’s dissent that
a negligence claim based on the intentional act of shooting a weapon is not available.
Dissent at 9. | write separately to emphasize the important distinction in mental states
between negligence and intentional tort claims.

As we have repeatedly held, a cause of action in negligence requires a plaintiff
to show that a defendant owed a duty of care to the plaintiff, there was a breach of
that duty, there was a resulting injury, and there was proximate cause between the
breach and the injury. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220,
802 P.2d 1360 (1991). An intentional tort requires, among other things, proof of intent.
For example, an “intentional tort’ is “[a] tort committed by someone acting with general
or specific intent.” BLACK’S LAW DICTIONARY 1717 (10th ed. 2014).

The mental states of intentional torts and negligence are vastly different and
exist on a sliding scale:

If the actor knows that the consequences are certain, or substantially certain,

to result from his [or her] act, and still goes ahead, [the actor] is treated by the

law as if he [or she] had in fact desired to produce the result. As the probability
that the consequences will follow decreases, and becomes less than
substantial certainty, the actor's conduct loses the character of intent, and
becomes mere recklessness, as defined in § 500. As the probability decreases

further, and amounts only to a risk that the result will follow, it becomes ordinary
negligence. .

RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (Am. LAW INST.1965) (RESTATEMENT).

Negligence conveys the idea of neglect or inadvertence, “as distinguished from
Beltran-Serrano v. City of Tacoma, No. 95062-8
Wiggins, J., concurring in dissent

premeditation or formed intention.” Adkisson v. City of Seattle, 42 Wn.2d 676, 682,
258 P.2d 461 (1953).

Thus, an actor cannot be of two minds. He or she may act either negligently,
lacking intent to cause harm, or intentionally, intending to cause or aware that harmful
consequences are substantially certain to result from an action. RESTATEMENT § 8A.
These mental states are mutually exclusive. /d. §§ 8A, 282 cmt. d; DAN B. DOBBS ET
AL., THE LAW OF TORTS § 31, at 77 (2d ed. 2011) (“Any given act may be intentional or
it may be negligent, but it cannot be both. Intent and negligence are regarded as
mutually exclusive grounds for liability.”).

Here, assuming that Cesar Beltran-Serrano could prove the first three elements
in negligence, he cannot prove that the proximate cause of his injuries resulted from
anegligent act. The sole cause of Beltran-Serrano’s injury was the shooting of Officer
Michel Volk’s weapon. The officer's decision to pull the trigger was intentional. This
fact cannot be used simultaneously as evidence of intention and negligence, as
liability under these theories requires distinct and mutually exclusive mental states.
E.g., RESTATEMENT § 8A.

The majority’s decision combines two mutually exclusive principles of tort law
and does not answer the inherent conflict it creates in so doing. A claim is one of
either negligence or intention—it cannot be both. If a principled path existed to
reconciling these conflicting principles, the majority would have offered such a path.
It has not, and this silence is telling.

Accordingly, | respectfully dissent.

Beltran-Serrano v. City of Tacoma, No. 95062-8
Wiggins, J., concurring in dissent

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