Filed
Washington State
Court of Appeals
Division Two
February 9, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NANCY MILLER as the Personal Representative No. 53344-8-II
of the Estate of HEATHER DURHAM,
Appellant,
v.
UNPUBLISHED OPINION
PIERCE COUNTY, and STATE OF
WASHINGTON DEPARTMENT OF
CORRECTIONS,
Respondents.
SUTTON, A.C.J. — Heather Durham was severely beaten by her estranged husband, Abel
Robinson, while he was ordered to be under electronic home monitoring (EHM), but not actually
being monitored by Pierce County. She filed a lawsuit against Pierce County and the Department
of Corrections (DOC), and the superior court granted the County’s CR 12(b)(6) motion dismissing
Durham’s “take-charge” duty claims against the County.1 Shortly thereafter, Durham passed
away.2
The Estate of Heather Durham argues that the superior court erred by granting the County’s
CR 12(b)(6) motion to dismiss because, presuming all facts alleged in the complaint are true, the
County had a special relationship with Robinson and a take-charge duty, and the complaint alleges
1
We granted discretionary review on the Estate’s claim against the County only and thus, we do
not address any claim the Estate may have against the DOC.
2
Durham’s passing was not related to the incident involving Robinson.
No. 53344-8-II
a conceivable set of facts to support their claims. We agree, and hold that the superior court erred
by granting the County’s CR 12(b)(6) motion. Therefore, we reverse and remand for further
proceedings.
FACTS
I. BACKGROUND
On July 22, 2016, the superior court sentenced Abel Robinson to an exceptional downward
sentence for two felony counts of unlawful solicitation to deliver and unlawful delivery of a
controlled substance—methamphetamine. The court sentenced him to 364 days of EHM to be
followed by 12 months of community custody under DOC’s supervision. The court considered
Robinson to be a low-risk offender because he is paralyzed from the waist down, suffers from
HIV,3 and has chronic skin and blood infections requiring frequent medical attention.
The judgment and sentence stated that Robinson could serve the sentence, if eligible and
approved, in home detention through EHM. The superior court issued a warrant of commitment
to the “Director of Adult Detention of Pierce County” and designated, via checkmark, the “County
Jail” as the associated institution, rather than DOC or other custodial entity. Clerk’s Papers (CP)
at 47 (bold capitalization omitted). The warrant of commitment directed that “YOU, THE
DIRECTOR, ARE COMMANDED to receive the defendant for classification, confinement, and
placement as ordered in the [j]udgment and [s]entence ([s]entence of confinement in Pierce County
Jail.” CP at 47. In a handwritten notation, the warrant of commitment provided that Robinson
“must be on EHM by 8-5-16 at 9 am or report to the [Pierce County] jail on 8-5-16 at 4 pm.” CP
3
Human Immunodeficiency Virus.
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No. 53344-8-II
at 47. Robinson was not in the County’s custody at the time his judgment and sentence was
entered. At the time of his sentencing, Robinson’s criminal history listed 18 counts of assault,
domestic violence, and harassment.
Robinson neither began EHM by August 5, 2016, at 9:00 am nor reported to the Pierce
County Jail by August 5, 2016 by 4:00 pm. Robinson remained unmonitored by Pierce County
and left his residence repeatedly, including to harass and attack his estranged wife, Durham. On
one occasion, he punched her in the face and slammed her head into a wall.
A DOC officer met Robinson at his home in December 2016 to check on his EHM status,
gave him his assigned community supervision number, and told him to call another DOC officer
on January 3, 2017. On January 3, 2017, the other DOC officer became aware that Robinson was
not on EHM as ordered and she emailed the Pierce County’s Prosecutor’s Office to check on
Robinson’s EHM status. Three days later, Robinson severely attacked Durham at her home.
II. PROCEDURAL HISTORY
On January 16, 2019, Durham filed a complaint in Pierce County Superior Court. She
alleged that the County and DOC breached a duty of care by failing to supervise, monitor, control,
and/or incarcerate Robinson for the violations of his conditions of confinement.
On February 14, the County filed a CR 12(b)(6) motion to dismiss Durham’s claims,
alleging that she failed to state a claim because the County did not owe any duty to Durham.
Durham filed a second amended complaint incorporating the amended allegations into her
supplemental briefing responding to the County’s motion.
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No. 53344-8-II
The superior court granted the County’s CR 12(b)(6) motion to dismiss. Durham filed a
motion for reconsideration or in the alternative, certification under CR 54(b). The court denied
the motion for reconsideration and denied certification to this court.
After Durham’s death, the Estate substituted as a party and filed a motion for discretionary
review which we granted.
ANALYSIS
I. STANDARD OF REVIEW
We review decisions to dismiss under CR 12(b)(6) de novo. FutureSelect Portfolio Mgmt.,
Inc. v. Tremont Group Holdings, Inc., 175 Wn. App. 840, 865, 309 P.3d 555 (2013), affirmed, 180
Wn.2d 954 (2014). “Dismissal under CR 12(b)(6) is proper only where ‘it appears beyond doubt
that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the
plaintiff to relief.’” FutureSelect, 175 Wn. App. at 865 (internal quotation marks omitted) (quoting
Lawson v. State, 107 Wn.2d 444, 448, 730 P.2d 1308 (1986)). All facts in the plaintiff’s complaint
are presumed to be true and even a hypothetical set of facts are sufficient to defeat a CR 12(b)(6)
motion. Bravo v. Dolsen Companies, 125 Wn.2d 745, 750, 888 P.2d 147 (1995).
II. CR 12(b)(6) MOTION TO DISMISS
The Estate alleges that the superior court erred by dismissing its claims because its
complaint alleged sufficient facts to establish that the County had a special relationship with
Robinson under the Restatement (Second) of Torts § 315 and a take-charge duty under the
Restatement (Second) of Torts § 319. The Estate argues that the superior court failed to presume
as true its alleged facts describing that the County failed to supervise, monitor, or control Robinson
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No. 53344-8-II
after he failed to report on August 5, 2016, for EHM by 9 am or report to the Pierce County jail by
4 pm. We agree and hold that the superior court erred by granting dismissal under CR 12(b)(6).
The first question “in any negligence action is a question of law; that is, whether a duty of
care is owed by the defendant to the plaintiff.” Alexander v. County of Walla Walla, 84 Wn. App.
687, 692-93, 929 P.2d 1182 (1997). In this case, the Estate relies on the Restatement (Second) of
Torts § 315 (Am. Law Inst. 1965) to argue that the County owed Durham a legal duty.
The Restatement (Second) of Torts § 315 addresses when a special relationship exists and
states:
There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
(a) a special relationship exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s conduct,
or
(b) a special relationship exists between the actor and the other which
gives to the other a right to protection.
The Restatement (Second) of Torts § 319 addresses when a take-charge duty exits and
states:
One who takes charge of a third person whom he knows or should know to
be likely to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent him from doing such harm.
Our Supreme Court has held that a governmental agency defendant owes a duty to a third
party victim when the government agency exercises control over a person who commits a violent
act against the victim. Taggert v. State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992) (parolees);
Joyce v. Dep’t of Corr., 155 Wn.2d 306, 316, 119 P.3d 825 (2005) (offender under community
supervision); Volk v. DeMeerleer, 187 Wn.2d 241, 257-62, 386 P.3d 254 (2016) (the court
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No. 53344-8-II
distinguished between a take-charge duty under § 319 and a mental health professional’s special
relationship duty as to a patient under § 315).
The scope of the take-charge duty is not limited to readily identifiable victims, but includes
anyone foreseeably endangered by the person’s dangerous propensities. Taggert, 118 Wn.2d at
219. In Joyce, the Supreme Court clarified that
once the State has taken charge of an offender, “the State has a duty to take
reasonable precautions to protect against reasonably foreseeable dangers posed by
the dangerous propensities of parolees.” The existence of the duty comes from the
special relationship between the offender and the State. Once that special
relationship is created, the State has a duty of reasonable care when . . . damages
result.
155 Wn.2d at 310 (emphasis omitted) (internal citation omitted) (quoting Taggart, 118 Wn.2d at
217).
RCW 9.94A.190(1)4 defines what constitutes confinement of not more than one year:
[A] sentence of not more than one year of confinement shall be served in a facility
operated, licensed, or utilized under contract, by the county, or if home detention
or work crew has been ordered by the court, in the residence of either the offender
or a member of the offender’s immediate family.
RCW 9.94A.190. RCW 9.94A.030(8)5 defines “confinement” as either total or partial
confinement. RCW 9.94A.030(35) defines “partial confinement” to include home detention.
Thus, by statute, EHM as ordered for Robinson is a form of confinement.
4
The legislature amended this statute in 2018. LAWS OF 2018, ch. 166 § 5. Because these
amendments are not relevant here, we cite to the current version of this statute.
5
The legislature amended this statute in 2020. LAWS OF 2020, ch. 296 § 2. Because these
amendments are not relevant here, we cite to the current version of this statute
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No. 53344-8-II
The issue here is whether there exists any conceivable set of facts as alleged in the Estate’s
complaint that the County had a special relationship between Robinson and Durham under § 315
or a “take-charge” relationship between the County and Robinson under § 319.
A. SPECIAL RELATIONSHIP BETWEEN THE COUNTY AND ROBINSON
In reviewing a CR 12(b)(6) motion, we are required to presume all facts alleged in the
complaint to be true. Bravo, 125 Wn.2d at 750.
Here, under the warrant of commitment, the superior court ordered the “Director of Adult
Detention of Pierce County . . . to receive [Robinson] for classification, confinement and
placement as ordered in the [j]udgment and [s]entence ([s]entence of confinement in Pierce County
Jail).” CP at 47 (bold capitalization omitted). The warrant of commitment also designated, via
check mark, the “County Jail” as the institution, rather than DOC or other custodial entity. CP at
47. The warrant of commitment ordered that Robinson “must be on EHM by 8-5-2016 at 9 am or
report to the [] jail on 8-5-16 at 4 pm.” CP at 47. Under Joyce and the Restatement (Second) of
Torts § 315, the judgment and sentence and warrant of commitment created a special relationship
between the County and Robinson. 155 Wn.2d at 318.
For purposes of a CR 12(b)(6) motion, we presume all of the facts alleged in the complaint
are true. The Estate’s complaint alleged that Robinson was under the County’s statutory authority
to confine him, through EHM or in jail, and the superior court’s order required the County to
ensure Robinson reported for EHM or reported to the jail on August 5, 2016. The complaint
alleged that “[o]nce Robinson did not get on EHM or report to Pierce County Jail, he was in
violation of a [c]ourt order, and should have been violated and arrested.” CP at 197. The complaint
alleged that “Pierce County is represented as the entity responsible for knowing the status of
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No. 53344-8-II
Robinson’s EHM status.” CP at 198. “Robinson would have been arrested well before the January
6, 2017 . . . attack on [Durham].” CP at 197.
The County argues that it owes no duty because the County had no superior court probation
program to monitor low-risk felony offenders at that time. Thus, it argues, it had no statutory
authority to supervise, monitor, or control Robinson. This argument ignores the County’s statutory
authority to confine Robinson and the court’s order requiring it do so. The County was present at
Robinson’s sentencing and did not mention that it would be unable to monitor him as required by
the court order. The County had a special relationship with Robinson. Joyce, 155 Wn.2d at 318;
Restatement (Second of Torts) § 315. Because the Estate alleged sufficient facts to defeat the
County’s CR 12(b)(6) motion, the superior court erred by granting the County’s CR 12(b)(6)
motion to dismiss on this basis.
B. TAKE-CHARGE DUTY
The Estate also argues that the County had a common law take-charge duty regarding
Robinson under Restatement (Second of Torts) § 319 because it had custody over Robinson. The
County argues, and the superior court agreed, that it did not take charge of Robinson because it
never had Robinson in its custody. We hold that the complaint alleged sufficient facts to establish
that the County had a take-charge duty here.
The County has a take-charge “duty to take reasonable precautions to protect against
reasonably foreseeable dangers posed by the dangerous propensities of [the person supervised].”
Taggert, 118 Wn.2d at 217; Restatement (Second of Torts) § 319. Accordingly, the County had
the authority to pick up Robinson for violating the court’s order that he report for EHM or to the
jail by August 5, 2016.
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No. 53344-8-II
Here, the court ordered that Robinson serve his sentence on EHM which is defined under
RCW 9.94.190(1) as a form on confinement, or report to the jail by August 5, 2016. The Estate’s
complaint alleged that under RCW 9.94A.731(2), an offender in a county jail ordered to serve less
than one year in home detention and who violates the rules may be transferred to the appropriate
county detention facility without further court order. The Estate argues that RCW 9.94A.731(2)
and RCW 9.94.190(1) provided the statutory authority for the County to take charge of Robinson
prior to January 6, 2017.
The County argues it owes no duty because Robinson was ordered to serve his sentence on
probation, which program did not exist in superior court at that time, and it never had Robinson in
its supervision, control, or custody. In other words, the County argues that because it had no ability
to supervise Robinson, and because it never attempted to supervise Robinson, it had no take-charge
duty. A take-charge duty exists because, as discussed above, the County had statutory authority
to confine Robinson and a court order requiring it do so existed. The Estate’s complaint alleged
that Robinson was in the County’s custody and control under a form of confinement. See Taggert,
118 Wn.2d at 218. This relationship arises when a government agency, here the County, “‘takes
charge of a third person whom he knows or should know to be likely to cause bodily harm to others
if not controlled’” and thus, it is “‘under a duty to exercise reasonable care to control the third
person to prevent him from doing . . . harm.’” Taggert, 118 Wn.2d at 219 (quoting Restatement
(Second of Torts) § 319).
At the time the court sentenced Robinson, his criminal history reflected that he had 18 prior
felonies for assault, domestic violence, and harassment. The Estate’s complaint alleged that while
serving his sentence unmonitored by the County, Robinson repeatedly harassed and threated
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No. 53344-8-II
Durham. The Estate’s complaint alleged sufficient facts to establish a take-charge duty under
§ 319. Accordingly, we hold that the superior court erred by dismissing the Estate’s claim on this
basis.
CONCLUSION
We hold that the superior court erred by granting the County’s CR 12(b)(6) motion and
dismissing the Estate’s claims against the County. Accordingly, we reverse and remand for further
proceedings.
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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, A.C.J.
We concur:
WORSWICK, J.
CRUSER, J.
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