Wa State Department Of Corrections, V. Anthony And Julie Smith

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANTHONY SMITH and JULIE SMITH,
a marital community; and ANTHONY No. 81246-7-I
SMITH as personal representative of
the ESTATE OF MEAGAN SMITH, DIVISION ONE

Appellants, UNPUBLISHED OPINION

v.

WASHINGTON STATE
DEPARTMENT OF CORRECTIONS;
and AMERICAN BEHAVIORAL
HEALTH SYSTEMS, INC., a
Washington corporation,

Respondents.

APPELWICK, J. — The Smiths appeal from two orders granting summary

judgment for American Behavioral Health Systems and the Department of

Corrections. They argue material issues of fact existed as to whether ABHS and

the DOC breached a duty of care owed to their daughter, Meagan. We affirm.

FACTS

On September 8, 2014, Zachary Craven attacked his grandmother,

Angelika Hayden. He demanded she drive him to the hospital to obtain pain

medication, threatening to “‘slit her throat’” and twice jerked the steering while she

drove. At that time, Craven was under Washington State Department of

Corrections (DOC) supervision for previous crimes against Hayden and others.

The new offense did not violate the conditions of his DOC supervision. By
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September 30, 2014, the DOC reported that Craven had been released from

custody. On December 26, 2014, the DOC closed Craven’s supervision on the

prior offenses.

Craven was arrested and pleaded guilty to felony harassment – domestic

violence and theft in the first degree – domestic violence. The court ordered a

presentence examination to determine his eligibility for a residential drug offender

sentencing alternative (DOSA). The DOSA statute provides that a court may

sentence an eligible offender into community custody in lieu of serving their

sentence in prison. RCW 9.94A.660(3). The DOC supervises offenders

sentenced to community custody. RCW 9.94A.030(21); .501(1), (4)(f). The DOC

contracts with American Behavioral Health Systems, Inc. (ABHS) to provide

residential services for DOSA offenders.

On June 26, 2015, the court sentenced Craven to a residential treatment

program under DOSA. The record indicates Craven was not in custody prior to his

sentencing hearing. The DOSA sentence provided that Craven would serve 24

months in community custody under the supervision of the DOC, on the condition

that he enter and remain in residential chemical dependency treatment for 3-6

months. It further provided that pending DOC placement in a residential treatment

program, Craven was to report to a DOC day reporting center within 24 hours of

release. The trial court was unaware that the DOC shut down all day reporting

centers around 2008.1

1 The DOC advocated to revise the law so that offenders can be detained
between their sentencing date and their treatment dates. These efforts were
ultimately successful, but the statutory revisions granting such authority to the

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Craven’s ABHS admittance date was scheduled for July 1, 2015. ABHS

scheduled transportation for Craven to its treatment center for July 1, 2015. He

did not show up on July 1, 2015 for transport to ABHS. ABHS reported to the DOC

on July 2 that Craven failed to report for transport to treatment.

In King County, the DOC had a practice of picking up hard copies of

judgments and sentences from the courts on Tuesdays and Thursdays. 2 After

Craven’s sentencing, his judgment and sentence was retrieved by the DOC on

either the following Tuesday, June 30, 2015, or the following Thursday, July 2,

2015. Office Support Supervisor Della Callaghan reviewed it on Thursday, July 2,

2015. Court and state offices were closed on Friday, July 3, 2015 ahead of

Independence Day. Callaghan sent Craven’s judgment and sentence to the Kent

field office on Monday, July 6, 2015 via campus mail. It was received by

Community Corrections Officer (CCO) Wayne Derouin on Wednesday, July 8,

2015. Derouin was assigned to Craven that day.

sentencing court were not effective until January 1, 2021. LAWS OF 2020, ch. 252,
§§ 3, 5 (revising RCW 9.94A.664).
2 In her declaration DOC Officer Support Supervisor Della Callaghan, stated

that King County Superior Court required DOC staff to physically retrieve judgment
and sentences on only Tuesdays and Thursdays. There were typically 100 to 150
judgment and sentences each week. A manager in the King County Superior
Court Clerk’s office, David Smith, said that the judgment and sentence in this case
was publically available when it was uploaded electronically on June 29, 2015. He
stated that he was unaware of any requirement for retrieval of physical copies of
judgment and sentences by the DOC on any particular day of the week. The copy
of the judgment and sentence in the record has a handwritten note stating
“scanned 7/8.” It is unclear who wrote this note.

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That same day, Craven was arrested on suspicion of murder. Between his

sentencing hearing and July 8, 2015, Craven had not reported for supervision at

any DOC facility.

On July 1, 2015, instead of reporting to supervision, Craven assaulted his

grandfather, Bob Luxton. Luxton reported the assault the next day. On July 5,

2015, Craven violated a no-contact order by going to Hayden’s home. Hayden

reported the incident the next day.

On July 7, 2015, Luxton discovered Hayden deceased in her home. That

same day, Theresa Cunningham and her family returned from a trip to find their

house sitter, Meagan Smith, murdered in their kitchen. Cunningham was Craven’s

ex-girlfriend. She had broken up with Craven in June 2015 after his behavior

became controlling and violent, but the record does not indicate that she reported

the abuse to police. Craven contacted Cunningham while she was being

interviewed by police. He asked her to pick him up at a nearby Walgreens store,

where he was subsequently arrested by police.

On July 3, 2018, Meagan Smith’s parents, Anthony and Julie Smith (the

Smiths), brought suit against the DOC and ABHS. Their amended complaint

sought judgments against the defendants for wrongful death. Both defendants

moved for summary judgment, which the trial court granted.

The Smiths appeal.

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DISCUSSION

The Smiths allege material issues of fact existed as to whether ABHS and

the DOC breached a duty of care owed to their daughter, Meagan.3 First, they

argue ABHS and the DOC had a duty to supervise Craven at the time of Meagan’s

death. Next, they argue material issues of fact exist as to whether that duty was

breached. Finally, they argue material issues of fact exist as to whether the DOC’s

alleged negligence proximately caused their daughter’s death.

We review a trial court’s grant of summary judgment de novo. Camicia v.

Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014).

Summary judgment is proper only when there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. CR

56(c). The court considers all facts and makes all reasonable factual inferences

in the light most favorable to the nonmoving party. Young v. Key Pharms., Inc.,

112 Wn.2d 216, 226, 770 P.2d 182 (1989).

To make a prima facie case for negligence, a plaintiff has the burden to

demonstrate a duty was owed, a breach of that duty, and injury to the plaintiff

proximately caused by the breach. Harper v. State, 192 Wn.2d 328, 340, 429 P.3d

1071 (2018).

I. Duty of Care

The Smiths argue that the DOC and ABHS had a take charge relationship

with Craven pursuant to the Restatement (Second) of Torts § 319 (Am. Law Inst.

1965) that commenced upon the signing of the judgment and sentence. They

3 We use Meagan’s first name for clarity. No disrespect is intended.

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argue a duty arose under either § 315 or § 302B of the Restatement, as adopted

by Washington courts.

Existence of a duty is a question of law. Schooley v. Pinch’s Deli Market,

Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Questions of law are reviewed de

novo. Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995).

A. The DOC

Generally, the DOC is not responsible for preventing criminal defendants

from harming others absent a special relationship. Harper, 192 Wn.2d at 341. Our

Supreme Court has found that a special relationship can arise where the DOC

“‘takes charge of a third person whom [it] knows or should know to be likely to

cause bodily harm to others if not controlled.’” Taggart v. State, 118 Wn.2d 195,

219, 822 P.2d 243 (1992) (quoting RESTATEMENT § 319). Under § 319, the take

charge relationship creates a duty to protect others from reasonably foreseeable

dangers engendered by supervised offenders’ dangerous conduct. Id. at 224. In

Joyce, the court held that CCOs assume a duty to take reasonable care in

supervising an offender’s conduct by taking steps to ensure that the offender

complies with all conditions of release. Joyce v. State, 155 Wn.2d 306, 316, 119

P.3d 825 (2005).

The Smiths argue the DOC breached its duty with the assumption that

because Craven was supposed to come into its care, such a duty had in fact

attached. They argue the duty attached when the judgment and sentence was

issued. But, as a threshold matter, they must demonstrate the defendant had a

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definite, established, and continuing relationship with the offender it failed to

supervise. Binschus v. State, 186 Wn.2d 573, 579, 380 P.3d 468 (2016).

The Smiths rely on Bordon, where the court held the duty to control the

offender’s behavior was not affected by the fact that it never received the judgment

and sentence. Estate of Bordon ex rel. Anderson v. State, 122 Wn. App. 227, 236,

95 P.3d 764 (2004). But, unlike Craven, the offender in Bordon was already under

active supervision. Id. at 231. There was evidence within the DOC’s active file on

the offender showing the supervising CCO should have known the offender had

recently been convicted of an eluding charge, and supervised him accordingly. Id.

at 237. Here, at the time of the incident, there was no active CCO file on Craven.

And, no supervising CCO had been assigned to review such a file.

Other leading Washington cases involving take charge relationships under

Restatement § 319 all involved supervision where a CCO or parole officer had

been assigned and had engaged in contact and supervision of the offender. See

Taggart, 118 Wn.2d at 198; Joyce, 155 Wn.2d at 316-17; Estate of Davis v. State,

127 Wn. App. 833, 842, 113 P.3d 487 (2005). None of those cases addressed the

question of the existence of a take charge relationship prior to the assignment of

a supervisor.

For example, in Taggart, the plaintiffs raised claims against the State and

its agents for negligent parole supervision after being injured by parolees in

separate assaults. 118 Wn.2d at 198. The court recognized the existence of a

take charge relationship between parole officers and the parolees they supervise.

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No. 81246-7-I/8

Id. at 220. In both instances, the parolee had already been assigned a parole

officer. Id. at 200-01,

In Joyce, the court concluded a jury could find that a Restatement § 319

duty had been breached by the State’s failure to report egregious violations of the

conditions of release to the court. 155 Wn.2d at 316-17. At the time of the alleged

negligent supervision, supervisee Stewart had already been assigned a CCO. Id.

at 310. Whether the duty existed prior to this assignment was not before the court.

Davis likewise involved an offender who had already been assigned a CCO.

127 Wn. App. at 842. The court held a CCO “cannot take charge without a court

order, and he can enforce the order only according to its terms and controlling

statutes.” Id. There is no suggestion in Davis or any other case provided by the

Smiths that the DOC has a duty or relationship or is expected to enforce an order

before it has actual notice of the content of the order.

And, the DOC carries out its supervisory duties through its CCOs. See

RCW 9.94A.704(3)(a). Until a CCO is appointed, there is no one to establish a

relationship with the offender. Here, Craven was not under supervision when he

killed Meagan. The DOC received a copy of the order on June 30 or July 2. A

CCO was appointed on July 8. Meagan was found dead on July 7, before the CCO

was appointed. On these facts, a definite supervisory relationship between a CCO

and Craven did not exist at that point in time.4

4The Smiths do not argue that the controlling statutes support the assertion
that a duty attaches when the judgment and sentence is issued. The statute
assigning supervision of DOSA offenders to the DOC does not provide when DOC
supervision begins or when such a duty attaches. See RCW 9.94A.501(5), (7).
The Smiths have not directly challenged the DOSA statute.

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The authority relied on by the Smiths does not support their assertion that

a take charge duty and relationship is necessarily created as of the issuance of a

judgment and sentence. The Smiths have not established as a matter of law the

existence of a take charge relationship between the DOC and Craven.

Next, the Smiths assert two alternate theories under which a duty existed.

First, they argue the DOC had a special relationship with Craven under

Restatement § 315, as adopted by Washington courts. Similar to Restatement §

319, a duty will be imposed under § 315 only where there is a “‘definite, established

and continuing relationship between the defendant and the third party.’” Hertog,

ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 276, 979 P.2d 400 (1999) (quoting

Taggart, 118 Wn.2d at 219). The Smiths argue the DOC’s previous supervision of

Craven gave it unique insight into his dangerous propensities, giving rise to a duty.

But, the DOC owes a duty to those who are injured during an offender’s active

supervision, not after it ends. Hungerford v. State, 135 Wn. App. 240, 258, 139

P.3d 1131 (2006). The DOC is not liable for future crimes of previously supervised

offenders.

The Smiths still must establish a continuing relationship with Craven, which

they have failed to do here. They rely primarily on Volk v. DeMeerleer, which

Further, DOC policy provided that a CCO must be assigned to supervise an
offender within 5 working days of receipt of the offender’s judgment and sentence.
Under DOC Policy 310.100, the CCO then has 30 days to conduct an intake. DOC
Policy 380.200 requires CCOs to verify the offender’s address within 10 days of
the assignment. The Smiths do not allege that CCO Derouin failed to follow DOC
policies. As such, there would need to be evidence that the DOC policy was failing
to supervise offenders at an institutional level by allowing the assignment and
supervision to begin within 5 days of receipt. But, the Smiths also declined to
challenge the DOC standards as negligent.

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involved the victim of a man in outpatient treatment with a mental health provider.

187 Wn.2d 241, 386 P.3d 254 (2016). But, the patient and psychiatrist in Volk had

a nine year relationship which was uncontested as “special” by both parties. Id. at

274. As discussed above, Craven’s relationship with the DOC was not ongoing.

The previous supervision had ended. The recently ordered supervision had not

commenced when the crime was committed.

Next, the Smiths argue the DOC created a risk of harm to Meagan, owing

her a duty under Restatement § 302B.

Section 302B imposes a duty where an “actor’s own affirmative act has

created . . . a recognizable high degree of risk of harm” to a third party. Robb v.

City of Seattle, 176 Wn.2d 427, 434, 295 P.3d 212 (2013) (emphasis omitted)

(quoting Restatement § 302B, comment e). Foreseeability alone is insufficient. Id.

at 435. A failure to eliminate a danger is also insufficient. See id. at 436-38. An

affirmative act that increases a danger is required. See id. at 429-30.

The Smiths again argue the DOC was aware of the dangers posed by

Craven. They point to several actions, such as the alleged delay in appointing a

CCO by the DOC. The DOC’s actions described by the Smiths constitute acts of

omission rather than commission.

The Smiths failed to identify issues of material fact as to whether a duty

arose under any of these three theories. As a matter of law, they failed to establish

a duty owed by the DOC to their daughter.

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No. 81246-7-I/11

B. ABHS

The Smiths make the same arguments regarding the existence of a duty

between Craven and ABHS. These arguments are even more tenuous in relation

to ABHS, which had no prior relationship to Craven and never treated him.

First, they argue ABHS had a take charge duty under Restatement § 319.

Because ABHS was under contract with the DOC to monitor offenders and restrict

their movements, the Smiths argue it undertook the duty assumed by the DOC.

They point to Hertog, where the court held that even if the entity lacks authority to

arrest, a duty will arise once it has the responsibility of monitoring for compliance

with the conditions of release. 138 Wn.2d at 276. Craven never reported to ABHS

for transport to treatment. The record indicates Craven was not in custody prior to

his sentencing hearing. The Smiths have not provided authority to demonstrate

that ABHS had the responsibility to monitor Craven prior to him reporting to it or

starting treatment. As ABHS notes, it lacks authority not just to arrest, but to even

prevent a patient from leaving the facility once they are in treatment. The Smiths

cite no case in which a facility such as ABHS has been found to have assumed a

duty to a patient they have not yet had in person contact with, let alone treated.

ABHS did not have a definite, established, and continuing relationship with Craven

as contemplated by Restatement § 319. Binschus, 186 Wn.2d at 579.

Next, the Smiths argue ABHS had a special relationship with Craven under

Restatement § 315. But, again, Craven never entered treatment at ABHS. No

definite relationship was established and no duty commenced.

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And, liability under Restatement § 302B must be based on affirmative

actions. Robb, 176 Wn.2d at 434. The Smiths assert a breach of duty occurred

when ABHS failed to adequately alert the DOC when Craven didn’t report for

transport, purchasing him a Greyhound bus ticket so he could report later that day.

ABHS reported to DOC on July 2 that Craven failed to report for transport to

treatment. The Smiths do not allege the only affirmative act taken by ABHS—

purchasing the ticket to transport Craven to treatment—increased the danger of

him harming others. They have not established any affirmative acts by ABHS

necessary to create a duty to their daughter under this section or acts that could

have been a breach of such duty.

The Smiths have failed to establish a material question of fact under any of

their three theories that ABHS had assumed any duty to supervise Craven at the

time of Meagan’s death. As a matter of law, they failed to establish a duty owed

by ABHS to their daughter.

II. Proximate Causation

Even if a duty to supervise had existed between Craven and either the DOC

or ABHS,5 the Smiths have failed to provide evidence of proximate causation.

Proximate cause is composed of two distinct elements: (1) cause in fact and

(2) legal causation. Fabrique v. Choice Hotels Int’l, Inc., 144 Wn. App. 675, 683,

183 P.3d 1118 (2008). Cause in fact refers to the “but for” consequences of an

5 The Smiths argue whether Meagan would be alive today “but for” the
DOC’s failure to supervise Craven is a question of fact for the jury. They do not
offer the same argument for ABHS. As such, we address the argument as briefed,
regarding only the DOC.

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act, or the physical connection between an act and the resulting injury. Id. The

plaintiff must establish that the harm suffered would not have occurred but for an

act or omission of the defendant. Joyce, 155 Wn.2d at 322. Legal causation rests

on policy considerations as to how far the consequences of a defendant’s acts

should extend and involves a determination of whether liability should attach as a

matter of law given the existence of cause in fact. Fabrique, 144 Wn. App. at 683.

Both elements must be satisfied. Id.

Proximate cause may be determined as a matter of law only when

reasonable minds could reach but one conclusion. See Kim v. Budget Rent A Car

Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001).

The Smiths argue whether Meagan would have been killed “but for” the

DOC’s negligence is a question properly reserved for the jury. They assert the

DOC received an e-mail that Craven did not report for treatment on July 2, and

had the DOC attempted to locate Craven, they could have done so with ease.

They point to the DOC’s concession that it could have detained him even absent

a bench warrant.6

The DOC counters the Smiths cannot prove proximate cause because they

cannot demonstrate that but for its alleged gross negligence, the damages

sustained by the plaintiff would have been avoided. The Smiths were required to

6 In its motion for summary judgment, the DOC noted,
CCO Derouin could also have sought to locate Craven and
arrested [sic] him on a detainer, pending the DOSA Court’s violation
process, but there were no community reports that this was
necessary, and there was no indication that Craven was actually
staying with Mr. Luxton, the address provided on his [judgment and
sentence], after Craven assaulted Mr. Luxton on July 1, 2015.

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show that the offender would have been incarcerated on the date of the murder.

Hungerford, 135 Wn. App. at 253 (affirming summary judgment when plaintiff

presented “no evidence that [the offender] would have been in jail on the day of

Hungerford-Trapp’s murder had DOC acted differently”).

The first notice that Craven was not complying with his judgment and

sentence was received by the DOC on July 2, 2015. ABHS sent an e-mail to

someone at the DOC indicating Craven had failed to report the day before. That

same day, Luxton reported to police that he had been assaulted by Craven. Had

the DOC begun investigating Craven’s whereabouts, it had contact information and

addresses for Luxton, with whom Craven was to be staying, and for Hayden, with

whom he was to have no contact. It also had Cunningham’s phone number which

Craven had listed as a contact on his April 15, 2013 screening form.7 The record

provides information on what these people knew at the relevant times.

Craven assaulted Luxton on July 1. Luxton was not sure if Craven left that

night. In the morning, Luxton left to stay at Hayden’s. When he left, his Ford truck

was parked in his driveway. Luxton contacted a neighbor, who he says told him

the truck was gone and had been driven away by an unnamed male. Luxton asked

police to report the truck missing, stating Craven did not have permission to drive

7 The Smiths indicated below that CCO Derouin had been told on at least
one occasion that Craven had been “aggressive toward the Cunningham family”
during his supervision of Craven from 2013 to 2014. This citation appears to be to
a DOC report indicating on October 7, 2014, while at Harborview Medical Center,
Craven had “talked about his girlfriend’s mom and his issues with her. . . . [H]e did
not threaten her, but expressed anger towards her.” The record does not indicate
that the DOC had knowledge of the current relationship status of or abuse
allegations between Cunningham and Craven. Cunningham had not reported any
abuse by Craven to police.

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it. On July 3, 2015, a Kent police officer reported that he had driven by the house

and the truck was still gone. Police called Luxton on July 3, 2015 to get more

information on the suspect. Luxton did not answer and had not called the officer

back by Tuesday, July 7, 2015.

On July 7, 2015, Luxton was interviewed by police at the scene of Hayden’s

murder. He told police he had not seen Craven for about a week since the assault.

Luxton had last spoken to Hayden on July 7, 2015, at 11:30 a.m. In the reports of

their interview with Luxton, police do not make note of him mentioning any sighting

of Craven by Hayden.

On July 6, 2015, Hayden reported to police that Craven had shown up at

her house the previous day in violation of his no-contact order. He stayed for five

minutes to pick up some personal items. She told police in a signed statement

that she did not know where Craven was staying.

A suspicious vehicle had been spotted in the area by Hayden’s neighbor on

July 6, 2015. Her neighbor saw a man walk down the alley towards her house,

returning with trash bags filled with something. He photographed the license plate

number. The driver of the truck was located after Hayden was found murdered.

The driver admitted to driving Craven as a favor to a mutual friend, Mike Garcia.

Garcia told police that Craven had stayed with him for a week or so, but that he

had kicked him out within the past couple of days for bringing a pistol into the

home. Had the DOC spoken with him, the neighbor would have had nothing to

report to the DOC prior to July 6. There is nothing in the record to suggest the

DOC knew of Garcia or that Craven was staying with him. And, there is nothing to

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suggest that an investigation into his whereabouts would have produced this

information before July 7, the day Meagan was found murdered.

Had the DOC called Cunningham, they would either not have reached her

at all or would have learned that she was out of town on vacation. When

interviewed later she told police she had not seen Craven since June 24, 2015.

She did not have a current phone number for Craven. He had destroyed his

subscriber identity module (SIM) card around June 3, 2015 and did not have a

working phone. Hayden left a voicemail message for Cunningham on July 1, 2015

asking if she had heard from Craven who was supposed to turn himself in that day

and warning her “‘if he comes around, do[ not] see him.’” Nothing in the record

indicates whether Cunningham heard this message before returning from

vacation, and as a result would have been able to relay the information to the DOC

or to Meagan.

The evidence gathered in the murder investigation included the contacts

and sources that were available in the DOC file. None of the information they had,

or could have had based on the investigation, provided a location for Craven.

Because nothing in the investigation supports a conclusion that action by the DOC

would have resulted in Craven’s incarceration before July 7, the jury would be left

to speculate on causation in fact.

The DOC had no reason to know that Meagan would be housesitting for

Cunningham or that Craven would visit the home while she was there. Assuming

there was a duty of care to foreseeable victims, the Smiths have not demonstrated

that Meagan was a foreseeable victim of Craven within the scope of that duty. On

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this record, the connection between the DOC’s alleged gross negligence and

Meagan’s death is considerably attenuated.

Speculation and argumentative assertions are not sufficient to create a

genuine issue of material fact. See Bordon, 122 Wn. App. at 246-47. Absent

further evidence, the Smiths’ theories of proximate causation call for a jury to

engage in speculation.

The evidence is insufficient to create an issue of material fact that the gross

negligence by the DOC proximately caused Meagan’s death.

We affirm.

WE CONCUR:

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