IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOE WICKERSHAM and )
CARTER WICKERSHAM, ) No. 77651-7-I
Appellants, ) DIVISION ONE
v.
) UNPUBLISHED OPINION
STATE OF WASHINGTON, )
WENDY WILLETTE, )
)
Respondents, )
)
KING COUNTY and )
ROBERT NISHIMURA, )
)
Defendants. ) FILED: October 14, 2019
_________________________________________________________________________________ )
LEACH, J. — Joe and Carter Wickersham appeal the trial court’s summary
judgment dismissal of their lawsuit against Department of Fish and Wildlife officer
Wendy Willette and the State of Washington. Because the Wickershams do not
establish issues of material fact about any of their claims, we affirm.
FACTS
Viewing the record in the light most favorable to the Wickershams, it
establishes the following facts.1
1 The trial court did not make any findings of fact or conclusions of law.
No. 77651-7-I I 2
In August 2010, Joe Wickersham lived in his house on Lake Desire with
his 16-year-old son, Carter Wickersham. Joe is legally blind and has “just a very
limited peripheral vision [in his] left eye, which is quite blurry.”
On August 14, 2010, Wendy Willette, a detective with the Washington
Department of Fish and Wildlife (DFW), was on general patrol near Renton,
Washington, wearing her class B duty uniform. From the public access area of
Lake Desire, she saw a woman fishing from a dock across the lake. She wanted
to check on this person’s fishing license. So she drove around the lake to the
driveway she estimated would give her access to the dock. There were no cars
in the driveway, and Willette parked about halfway down to the lake.
At this time, Joe was home alone, sunning himself on an upstairs deck.
As he heard a car drive down his neighbor’s driveway, his phone rang. His friend
James E. Ranelli had called. They spoke for several minutes.
Willette got out of her parked car and walked until she could see the lake
and the dock. She did not see anyone on the dock. But she did see a fishing
pole. Willette did not talk to anyone in the house served by the driveway.
As Willette walked toward the dock, she saw a house that she associated
with the dock, the Wickersham house. She walked to the back of this house,
climbed stairs for two levels of the deck, and knocked on the back door. She
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then walked down a level and “yelled as loudly as [she] could at the top window,
‘Hello! Police! Pay Attention!”
Joe was still on the phone with Ranelli when he heard Willette “start
screaming . . . . Then [his] dog [Maggie] started barking, probably one second
later.” Willette screamed, “[G]et the fuck out here now!” Joe states that Maggie
“never growled during this whole time, and was just a normal barking dog.”
While Joe heard his dog barking, his impaired vision prevented him from
seeing any interaction between Willette and Maggie. Willette described it this
way:
Seconds later, a very large Doberman Pinscher [wearing a shock
collar] rounded the right corner of the house [from the front], at the
top level and came down the deck stairs and was running for
. . .
me. It was growling, and it was snarling. And I had time to yell
. . .
out, “You better secure your”—and I couldn’t get the last word out
before the dog was lunging at me to attack me.
According to Joe, during this time, Willette’s “[e]very other word was the F
word.” She yelled, “Get your F’ing ass—get the F out here; get your F’ing ass
out here. . . . if you don’t get your F’ing ass out here, I’m going to shoot your F’ing
dog.”
Willette had a Clock 45 semi-automatic pistol. When the dog was “2 feet
at the most” from her, she fired at it. Joe heard a “pop, pop, pop” sound.” He
told Ranelli, “[O]h, my God, she’s shot Maggie.” The dog ran “back up to the
front of the house, around the right-hand side.” Willette “walked up the side of
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the house on the right-hand side.” She held her pistol out but pointed down
because she “didn’t know if the dog was going to continue to attempt to attack.”
Joe walked downstairs, carrying a cordless phone. When he opened the
door, Willette had her gun pointed at him. She told Joe to “drop it.” He asked
her if she was law enforcement. She said yes, and he dropped the phone on his
foot. Willette said, “[G]et out here. Get out here. Sit down, sit down right there.”
Joe also heard a voice on Willette’s radio say, “[C]anine down and one in
custody.” Joe asked if he was in custody. Willette told the dispatcher he was
not. Joe sat down, and Willette put her gun away.
Willette screamed about a woman fishing on his dock. Joe replied that no
one had been fishing from the dock and that she could go in his house and look
for the person. She chose not to go in the house. During this time, the dog was
inside bleeding. Willette said, “[Y]ou need to take care of your dog. Your dog is
going to die.” Joe told her he was blind and he could not see where the dog was
shot. He also suggested calling for help and offered to go inside and get the
phone. Willette would not let him. She asked if he had been drinking, and he
said no.
Willette said she shot Maggie twice. Joe heard three shots. He claims
that “[s]he demanded if [he] didn’t agree that she shot twice . . . that she was
going to take [him] to jail for obstruction.” Joe refused to sign a statement.
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Willette also said she “wasn’t standing outside in over 90-degree heat to take
[Joe’s] shit, and if he was going to continue to hinder [her], then he was going to
go to jail for obstruction.” She admits that she used the words “shit” and “fuck” at
this point when speaking to Joe.
Joe heard Carter returning, followed by King County Sheriff Deputy Robert
Nishimura. Nishimura had responded to the dispatcher’s call for backup. A state
patrol trooper also arrived but did not go to the house. Instead, he made sure
“everybody was under control at that point.”
Carter “went into the house. . . got some towels. . . corralled Maggie and
started cleaning up some of the blood.” At the same time, Willette walked back
to her truck and drove it closer to Joe’s house. She took photographs of
Maggie’s injuries and the blood on the floor. As Willette took photographs,
Nishimura talked to Joe.
The incident ended with Nishimura giving Carter directions to a veterinary
hospital. Willette told Joe and Carter she would meet them there. Willette and
Nishimura drove to the hospital but did not see Joe or Carter. Carter took
Maggie to a different vet, who discharged the dog the same day after treating her
wounds.
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Procedure
In August 2013, the Wickershams sued Willette, the State of Washington,
Nishimura, and King County in King County Superior Court. They asserted
claims for trespass, conversion of chattels, assault, false arrest and
imprisonment, outrage, negligent infliction of emotional distress, negligence,
negligent training and supervision of Willett, and violation of their civil rights
under 42 U.S.C. § 1983. King County and Nishimura removed the case to
federal court.
The federal district court dismissed the claims of false imprisonment and
false arrest with prejudice as barred by the statute of limitations. The court also
dismissed the claims against Nishimura and King County.2 And it dismissed on
summary judgment the Wickershams’ federal claim under § 1983 because
qualified immunity shielded Willette. It declined to exercise supplemental
jurisdiction over the remaining claims and remanded them to state court. The
Ninth Circuit affirmed the district court’s ruling.
On remand, the superior court dismissed the Wickershams’ remaining
claims on summary judgment. The Wickershams appeal.
2Wickersham v. Washington, No. C13-01778-JCC (W.D. Wash. Jan. 15,
2015) (court order).
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No. 77651-7-I /7
STANDARD OF REVIEW
This court reviews an order on summary judgment de novo.3 We consider
all facts and reasonable inferences in the light most favorable to the nonmoving
party.4 But conclusory facts presented by the nonmoving party will not defeat
summary judgment.5 Summary judgment by the trial court is proper if the record
shows no genuine issue of material fact and the moving party is entitled
judgment as a matter of law.6
ANALYSIS
As a preliminary matter, the State claims,
The Ninth Circuit’s holding that the Wickershams “failed to show
that Officer Willette was acting outside the scope of her authority
under RCW 77.12.154 when she entered the property but did not
see a woman fishing” is the law of the case. It must be followed for
the remainder of the litigation.”
But the State cites no authority supporting its assertion that a federal
appellate court holding on an issue distinct from the issues before a state court
~ Sabey v. Howard Johnson & Co., 101 Wn. App. 575, 581-82, 5 P.3d 730
(2000).
~ Sabey, 101 Wn. App. at 582.
~ Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753
P.2d 517 (1988) (citing Am. Linen Supply Co. v. Nursing Home Bldg. Corp., 15
Wn. App. 757, 767, 551 P.2d 1038 (1976)), abrogated on other grounds by
Mikkelsen v. Pub. Util. District No. 1 of Kittitas County, 189 Wn.2d 516, 528, 532,
404 P.3d 464 (2017).
6 CR 56(c); Sabey, 101 Wn. App. at 581-82.
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No. 77651-7-I I 8
controls the state court issues.7 The Ninth Circuit did not decide whether, as a
matter of law, Willette did not trespass, convert chattels, act outrageously or
negligently, or negligently inflict emotional damages. So the Ninth Circuit’s
decision does not control these issues.
The Wickershams challenge the trial court’s dismissal of the remanded
state law claims against Willette and the State on summary judgment. They
claim to have shown issues of material fact about whether Willette trespassed or
committed outrage, negligence, negligent infliction of emotional distress, or
conversion. We disagree.
Trespass
The Wickershams assert that the record shows a genuine issue of
material fact about whether Willette committed trespass.
RCW 77.12.154 gives DEW officers the authority to “enter upon any
land . . . and remain there while performing their duties without liability for
trespass.”
~ Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d
549 (1992) (declining to consider arguments unsupported by citation to
authority). The case the State cites involves the law of the case doctrine as it
applies between Washington Courts of Appeals, not between federal and state
courts. Roberson v. Perez, 156 Wn.2d 33, 41, 44, 123 P.3d 844 (2005).
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No. 77651-7-I /9
The Wickershams assert that Willette did not have authority to enter upon
the Wickershams’ land. But Willette’s described activities fall within the duties of
a DFW officer.
While on patrol, Willette “check[s] access areas to make sure that
everyone has their vehicle-use permit; to make sure that if there’s someone
boating, they have all their required equipment; if someone is fishing, they have
the licenses they’re required to have.” Willette also checks catch to determine if
a person has caught too many fish or violated gear regulations.
After seeing a woman fishing from the dock, Willette attempted to contact
her to check her license and follow up on catch and gear limitations. So she
drove around to the other side of the lake. She had noted a Livingston-style boat
upside down on the shore near the dock. She saw the same boat when she
arrived at the dock.
Willette went up to the house she associated with the dock to continue
investigating after she saw a fishing pole on the dock but no person. She
knocked on windows and yelled in her attempt to contact someone to ask about
the woman on the dock. When Maggie ran around the corner and leaped at her,
Willette shot the dog, as she says she was trained to do when she perceived a
threat to her life. She also contacted dispatch because she had discharged her
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No. 77651-7-I /10
weapon. She kept her gun out because she was concerned Maggie might attack
her again.
The Wickershams provide no evidence that supports their claim that
Willette was not acting within the scope of her duties as a DFW officer. Instead,
they provide conclusory statements to the effect that “Agent Willette pretty much
went out on a wild goose chase” and assert facts unsupported by the record.8
But they cannot rely on conclusory statements to defeat a summary judgment
motion.
The Wickershams contend that RCW 77.15.080 defines the scope of a
DEW officer’s authority. RCW 77.15.080 authorizes DFW officers to stop a
person and conduct an inspection if they have “articulable facts that a person is
engaged in fishing.” When Willette reached the dock, she saw no one fishing.
So the Wickershams contend she could take no further action and had to leave.
Because she continued her investigation, they claim she acted outside her
authority as a WSF officer.
The Wickershams’ argument ignores the statute which defines the general
authority of a DEW officer, RCW 77.15.075(1): “Fish and wildlife officers shall
have and exercise, throughout the state, such police powers and duties as are
8 For example, “Agent Willette wrongly identified the property.”
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No. 77651-7-I /11
vested in sheriffs and peace officers generally. Fish and wildlife officers are
general authority Washington peace officers.”
Willette decided to investigate whether a person she saw fishing had the
required license. This certainly falls within the general duty of a Washington
peace officer. So RCW 77.12.154 authorized both her entry onto the
Wickersham property and her effort to contact someone at the Wickersham
house. The Wickershams did not create an issue of material fact about their
trespass claim.
Outrage
The Wickershams also claim that the record shows a genuine issue of
material fact about their outrage claim.
To establish the tort of outrage or intentional infliction of emotion distress,
a plaintiff must show (1) that the defendant’s conduct was extreme and
outrageous, (2) that she intentionally or recklessly inflicted emotional distress,
and (3) that the plaintiff actually experienced severe emotional distress.9 To be
extreme and outrageous, conduct must go ‘beyond all possible bounds of
decency, and fisi regarded as atrocious, and utterly intolerable in a civilized
community.”1° In ruling on a motion for summary judgment, the trial court must
~ Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987) (citing
RESTATEMENT (SECOND) OF TORTS § 46 (AM. LAW INST. 1965); Grimsby v. Samson,
85 Wn.2d 52, 57-58, 530 P.2d 291 (1975)).
10 Grimsby, 85 Wn.2d at 59 (quoting RESTATEMENT § 46 cmt. d).
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No. 77651-7-1/12
make a threshold determination on whether reasonable minds could differ on
whether the conduct was sufficiently extreme and outrageous to result in
liability.11
The Wickershams provided no evidence to support their assertion that
Willette’s conduct was outrageous under the circumstances or that she
intentionally or willfully provoked emotional distress in Joe.
Willette approached the rear of the Wickershams’ house, knocked on the
windows, and called out. Her conduct during her effort to contact someone at the
house may have been quite unprofessional, but it did not go “beyond all possible
bounds of decency,” nor could it be “regarded as atrocious, and utterly
intolerable in a civilized community.”12 Even if she was as profane and rude as
the Wickershams described and even if Joe did not utter a single profanity
throughout the interaction, the Wickershams cite no authority showing profanity
alone is sufficient to support a cause of action for outrage.13
The Wickershams also ask the court to consider the shooting of Maggie
and Willette pointing her gun at Joe as outrageous, but they provide no evidence
to counter Willette’s contention that she shot the dog because she feared she
was being attacked or her contention that she kept her gun out because she
11 Robel v. Roundup Corp., 148 Wn.2d 35, 51, 59 P.3d 611(2002).
12 Grimsby, 85 Wn.2d at 59 (quoting RESTATEMENT § 46 cmt. d).
Where no authority is cited, this court will assume the party has found
13
none. Cowiche Canyon Conservancy, 118 Wn.2d at 809.
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No. 77651-7-I /13
feared another attack. And the Wickershams provide no evidence to suggest
Willette continued to point her gun at Joe after she established he presented no
threat.
We conclude that the Wickershams do not establish an issue of material
fact on their outrage claim.
Negligence and Negligent Infliction of Emotional Distress
The Wickershams also claim that the record shows a genuine issue of
material fact about whether Willette was negligent or negligently inflicted
emotional distress on Joe.
The analysis of any negligence claim, including negligent infliction of
emotional distress, begins with the threshold determination of whether the
defendant owed the plaintiff a duty of care.14 In this case, this court must
examine the Wickershams’ claims in the context of the public duty doctrine,
which affects a public official’s liability for alleged negligent conduct.15 This
doctrine requires that a plaintiff establish the public official, acting in her capacity
as an officer, breached a duty owed to the plaintiff and not merely the public at
large.16 The doctrine has four exceptions that allow for liability, including the
‘special relationship” exception 17
14 Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988).
15 Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 458 (2006).
16 Donohoe v. State, 135 Wn. App. 824, 834, 142 P.3d 654 (2006).
17 Cummins, 156 Wn.2d at 852.
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The Wickershams claim that the special relationship” exception applies
here. A “special relationship” exists if
‘(1) there is direct contact or privity between the public official and
the injured plaintiff which sets the latter apart from the general
public, and (2) there are express assurances given by a public
official, which (3) give[] rise to justifiable reliance on the part of the
plaintiff.”[18]
Contact alone does not support a special relationship.19 Unless the facts support
all three prongs, the public duty doctrine applies and the alleged claim fails.2°
The Wickershams do not present evidence that Willette gave them
assurance or that they relied on any assurance from her. So the Wickershams
do not establish an exception to the public duty doctrine.
The Wickershams claim that Garnett v. City of Bellevue2’ supports their
claim. In that case, a police officer’s direct verbal abuse and threats fell under
the “special relationship exception.”22 But in a later case, Keates v. City of
Vancouver,23 the court distinguished its application of the “special relationship”
test from the analysis in Garnett and held explicitly that all three prongs of the
18 Donohoe, 135 Wn. App. at 835 (alteration in original) (quoting Beal v.
City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998)).
19 Keates v. City of Vancouver, 73 Wn. App. 257, 269-70, 869 P.2d 88
(1994).
20 Pettis v. State, 98 Wn. App. 553, 563-64, 990 P.2d 453 (1999); Keates,
73 Wn. App. at 270.
21 59 Wn. App. 281, 796 P.2d 782 (1990).
22 Garnett, 59 Wn. App. at 286-87.
23 73 Wn. App. 257, 270, 869 P.2d 88 (1994).
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No. 77651-7-I / 15
test must be met for the exception to the special duty doctrine to apply.24 This
result follows the Washington Supreme Court’s decisions holding that a plaintiff
must satisfy all three prongs of the test to show a “special relationship” exception
to the public duty doctrine exists.25
The Wickershams also assert Willette had a “duty to act reasonably and
carefully,” relying on Brutsche v. City of Kent26 and State v. Seagull.27 But these
cases address trespass, not negligence, and do not aid the Wickershams.
Because the Wickershams do not establish an exception to the public duty
doctrine, they do not show the existence of any issue of material fact about
whether Willette owed them a duty of care supporting their negligence or
negligent infliction of emotional distress claims.
24 Keates, 73 Wn. App. at 270. The Keates court first stated, in reference
to Garnett, “We need not decide whether the court correctly decided to abrogate
sovereign immunity without satisfaction of all three prongs of the test.” Keates,
73 Wn. App. at 270. It then held, “In the context of the public duty doctrine, a
‘special relationship’ does not give rise to a duty unless the plaintiff satisfies the
traditional 3-pronged ‘special relationship’ test.” Keates, 73 Wn. App. at 270.
The court also distinguished Garnett from Dever v. Fowler, 63 Wn. App. 35, 46,
816 P.2d 1237 (1991) on the same basis. Keates, 73 Wn. App. at 270.
25 See e.g., Cummins, 156 Wn.2d at 848 (refusing to find a “special
relationship” between a medical dispatcher and a 911 caller when the dispatcher
did not provide explicit assurance that she would send medical aid to the caller’s
address).
26 164Wn. 2d 664, 673, 193 P.3d 110 (2008).
27 95 Wn.2d 898, 902, 632 P.2d 44 (1981).
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Conversion of Chattels
The Wickershams assert that Willette committed conversion of chattels
when she shot Maggie.
To establish a claim for conversion, a plaintiff must prove that the
defendant willfully interfered with a chattel without lawful justification and
deprived the plaintiff of possession of the chattel.28
The Wickershams do not establish that any defendant deprived them of
possession of Maggie. They assert that she died as a result of the injuries
inflicted by Willette. The record does not support this assertion. The veterinarian
discharged Maggie the same day she treated Maggie’s wounds. The
veterinarian’s report states that “[rjecovery was uneventful.” Maggie died in
October. Between the shooting and her death, the Wickershams left town for
several weeks. They did not obtain a necropsy. So the record contains no
evidence of her cause of death.
The Wickershams did not show any issue of material fact about their
conversion claim.
CONCLUSION
We affirm. The record shows no genuine issue of material fact about the
Wickershams’ trespass or the tort of outrage claims. The “special relationship”
28 Olin v. Goehler, 39 Wn. App. 688, 693, 694 P.2d 1129 (1985) (citing
Judkins v. Sadler-MacNeil, 61 Wn.2d 1, 3, 376 P.2d 837 (1962)).
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No. 77651-7-I I 17
exception to the public service doctrine does not apply to Willette’s challenged
acts or omissions. So the Wickershams do not establish an issue of material fact
about any duty Willette owed them to support their negligence and negligent
infliction of emotional distress claims. Finally, they did not provide evidence
showing that Willette deprived them of possession of their dog. So they do not
raise an issue of material fact about their conversion claim. In sum, they do not
establish that the trial court erred when it dismissed their claims on summary
judgment.
p
WE CONCUR:
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