(concurring/dissenting) — The majority concludes that the City of Seattle and its probation counselors “have a duty to control municipal court probationers” in order “to protect others from reasonably foreseeable harm resulting from the probationers’ dangerous propensities.” Majority op. at 281. With that determination I agree.
I part company with the majority, however, insofar as it holds that King County and its pretrial release counselor, Tyrone Lake, had a similar duty to control Barry Lee Krantz so as to protect others from reasonably foreseeable harm. In my view, the ability of King County pretrial release counselors, like Lake, to control persons under their *295supervision is so lacking that policy considerations dictate a conclusion that they have no duty to protect third persons from being harmed by persons whom they are monitoring for the court.
While the majority properly relied upon Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992), as support for finding a duty on the part of municipal court probation officers, it is not authority that lends itself to an analysis of pretrial release programs. I reach that conclusion because a pretrial release program, such as the one operated by King County, is substantially different from the probation program operated by the City of Seattle or the parole supervision program that we examined in Taggart. One notable difference is that the pretrial release program deals only with persons who have been charged with a crime. Such persons are presumed innocent, and in most cases have a right to be released from custody pending trial under the “least restrictive . . . conditions.” CrRLJ 3.2. Are we, as Judge Agid observed in her concurring opinion at the Court of Appeals, to ignore this “basic tenet of our criminal justice system” and hold that the government owes a duty to protect others from persons who are merely charged with a crime? Hertog v. City of Seattle, 88 Wn. App. 41, 63, 943 P.2d 1153 (1997) (Agid, J., concurring), review granted, 134 Wn.2d 1024, 958 P.2d 313 (1998). In my view, we should not. The majority sweeps this concern aside and concludes that the presumption of innocence, by itself, does not bear on whether a duty is owed to third parties by pretrial release counselors. It instead focuses on “the relationship between the actor and the person posing foreseeable harm.” Majority op. at 288. This ignores the fact that the presumption of innocence is fundamental in determining the relationship between a defendant and a pretrial release counselor. The right to be free pending trial, subject to limited control by the court, is fundamental, and it makes little sense for this court to hold that a pretrial release counselor owes a duty to persons that a defendant may injure during the time he or she is awaiting trial.
The most significant difference between the pretrial *296release program of Kang County and probation or parole supervision is that the pretrial release counselors, unlike probation officers, have very little control over defendants. Their ability to control persons on their caseload is so slight it cannot be said that their role is supervisory in the sense that we found significant in Taggart. These counselors, unlike probation or parole officers, are not authorized to arrest the people on their caseload nor can they impose conditions of release. In short, they simply do not, in the words of the Restatement of Torts, “take[] charge” of persons on their caseload to the degree that liability should be imposed on them if the person they are monitoring harms someone. Restatement (Second) of Torts § 319 (1965).
The majority, while acknowledging that King County’s pretrial release counselor had no authority to arrest or impose conditions on Krantz, notes that the counselor was responsible for monitoring Krantz to assure compliance with the conditions of release that had been established by the judge. Monitoring a pretrial releasee is not the same as exercising supervisory control over that person. The individual who monitors a pretrial releasee can only report violations of the conditions of release to the judge who ordered the release of the defendant. The decision about what should be done in the event of violations of the conditions of release lies with the judge and is not within the direct control of the pretrial release officer. It does not seem appropriate, therefore, to hold that mere monitoring of compliance with court-ordered conditions, when the defendant essentially has a right to be free pending trial, is a relationship that creates a duty to protect third parties from harm that may result from the dangerous propensities of a releasee. In this respect, I find the sound reasoning of the Court of Appeals in Metlow v. Spokane Alcoholic Rehabilitation Center, Inc., 55 Wn. App. 845, 781 P.2d 498 (1989) , review denied, 114 Wn.2d 1007, 788 P.2d 1079 (1990) , instructive. There, the court affirmed a summary judgment in favor of a treatment center that had been treating an accused drunk driver who was undergoing treatment as a condition of deferred prosecution. The court *297reasoned that because the treatment center did not have “custodial control of [the driver]” nor could it restrict the driver’s activities in any way, it owed no duty to a plaintiff who suffered injury at the hands of the accused. Metlow, 55 Wn. App. at 850.
Finally, it would be my view that the pretrial release officer and his employer, King County, are entitled to quasi-judicial immunity from liability. That was the conclusion the Court of Appeals reached in a similar case, McKenna v. Edwards, 65 Wn. App. 905, 912, 830 P.2d 385, review denied, 120 Wn.2d 1003, 838 P.2d 1143 (1992). There a corrections officer recommended to the Spokane County Superior Court that a defendant be released pending trial on certain conditions. After his release, the defendant, Edwards, committed a murder and a rape. The victims of those crimes then sued Spokane County for negligent supervision of Edwards. The Court of Appeals affirmed a summary judgment in favor of the County’s pretrial release programs, concluding that because the officer was acting only as an “arm of the court” when he made his investigation and recommendation to the court, he was performing functions traditionally performed by the court, and, therefore, should be clothed with judicial immunity. Mc-Kenna, 65 Wn. App. at 912. With that conclusion I agree.
Because the majority does not differentiate between pretrial release and postconviction probation, and extends our holding in Taggart to include pretrial supervision, I dissent.
Guy, C.J., and Durham, J., concur with Alexander, J.