(dissenting in part and concurring in part) — Tragic facts alone are not an appropriate basis for establishing a new rule of law. The Department of Correction’s (DOC) duty to supervise Vernon Valdez Stewart for assault and possession of stolen property did not extend to preventing the automobile accident that killed Paula Joyce. I respectfully dissent from the majority’s conclusion on duty.
¶54 “In a negligence action the threshold question is whether the defendant owes a duty of care to the injured plaintiff.”6 Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998).
¶55 The majority, like the Court of Appeals, essentially concludes that community supervision inherently gives rise to a take-charge relationship and, without examining the contours or extent of that take-charge relationship, holds that there is a general duty. See Joyce v. Dep’t of Corr., 116 Wn. App. 569, 587, 75 P.3d 548 (2003); Majority at 315. The majority reasons that it makes sense to find a duty in this context because like other situations where offenders are supervised, community corrections officers (CCOs) have: (1) “assumed the duty of supervising an offender’s conduct,” (2) “the ability to take steps to ensure . . . that the offender complies with the conditions of release,” and (3) “the duty of reasonable care in executing its duties.” Majority at 316. Therefore, the majority reasons, whether DOC owed Joyce *328a duty is a question of scope of the duty, not existence of the duty, and was properly put before the jury. Majority at 314-15.
¶56 Whether DOC owed a duty to Joyce requires a more robust analysis of whether and to what extent DOC had a take-charge special relationship with Stewart than the Court of Appeals or the majority puts forth. DOC’s take-charge relationship with offenders, and in turn its duty to supervise them, must be related to its supervision authority which, in the community supervision context, is limited to enforcement of crime-related supervision conditions.
¶57 Taggart and Bishop held that the take-charge relationship, which creates the duty, was defined by the supervisor’s statutory authority and by the conditions of release. See Bishop v. Miche, 137 Wn.2d 518, 527, 973 P.2d 465 (1999); Taggart v. State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992). The Court of Appeals has clarified that a “community corrections officer must have a court order before he or she can ‘take charge’ of an offender; and even when he or she has such an order, he or she can only enforce it according to its terms and applicable statutes.” Couch v. Dep’t of Corr., 113 Wn. App. 556, 565, 54 P.3d 197 (2002), review denied, 149 Wn.2d 1012, 69 P.3d 874 (2003).
¶58 But the majority reasons that although the State’s authority to supervise, which creates the take-charge relationship and, in turn, the duty, is based on the supervision conditions, once the take-charge relationship and the corresponding duty is established, it is limited only by foreseeability of injury, not by the supervision conditions and the corresponding authority. Majority at 318. That conclusion logically does not make sense. How can specific conditions of release and the authority created therein give rise to a take-charge relationship and a corresponding duty, but the duty created be in no way limited by the supervision conditions and authority through which the duty was enabled? The majority essentially holds that as long as DOC has supervision authority over offenders, a take-charge relationship and, in turn, a duty, is created that *329extends to all areas, limited only by foreseeability of injury. But that is not what the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, intended. The need for a relationship between authority to supervise and duty is especially evident in the community supervision context.
¶59 “ ‘Community supervision’ ” is defined as “a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions.” RCW 9.94A.030(9). ACCO’s take-charge ability and his authority to control supervisees is significantly more narrow and limited than that of the parole officers analyzed in Taggart. “ ‘[Community supervision’ is significantly different from traditional concepts of probation or parole. . . . The only conditions of ‘community supervision’ authorized are ‘crime-related prohibitions’ and ‘other sentence conditions’ imposed pursuant to the Act.” David Boerner, Sentencing in Washington § 4.4, at 4-4 (1985). Moreover, CCOs “have a significantly different role than probation or parole officers had under the former system.” Id. § 4.4, at 4-5. While CCOs do “have search and arrest powers, these powers are limited to violations of ‘a condition or requirement of a sentence.’ Thus, their power is restricted by the nature of the conditions or requirements of sentences permitted under the Sentencing Reform Act.” Id. § 4.4, at 4-5, 4-6 (emphasis added) (footnotes omitted). The authority of CCOs and, in turn, of DOC, is limited to enforcement of specific crime-related prohibitions and other sentence conditions.
¶60 DOC’s duty, therefore, is more limited in the community supervision context under the SRA than it was in the parole context discussed in Taggart. In Taggart, we held that the State had “a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities” of the parolee-. Taggart, 118 Wn.2d at 217. In the context of community supervision under the SRA, however, that duty translates differently. In community supervision, DOC’s duty is to enforce the crime-related supervision conditions and prevent foreseeable crimes caused by violations thereof — that is all DOC has the authority to do.
*330¶61 Here, DOC did not have a sufficient take-charge relationship over Stewart to create a duty to prevent the accident. At the time of the accident, Stewart was on community supervision for two separate felonies: second degree assault and second degree possession of stolen property. Stewart was required to regularly report to his CCO, pay legal financial obligations (LFOs), and report changes in his address. The conditions of supervision relating to Stewart’s assault conviction were (1) prohibition against contacting his former girl friend, (2) prohibition on possessing deadly weapons, (3) requirement to attend domestic violence counseling, and (4) requirement to obey all laws. He was also required to perform 72 hours of community service as part of his converted sentence. The conditions for his stolen property conviction were (1) prohibition against association with other offenders, (2) requirement to enroll in school or obtain employment, and (3) requirement to obey all laws. None of those conditions involved Stewart’s driving or mental health, the issues that respondent argues DOC should have monitored to prevent the accident.7 Indeed, DOC had no specific authority to intervene in Stewart’s driving-related behaviors or mental health issues. Furthermore, we cannot conceive that a generic condition requiring a first time offender to obey all laws was intended to impose on DOC a duty to prevent any potential new crime.8
¶62 It is nonsensical to hold that DOC has a duty to control that which it does not have the authority to control. One who lacks the authority or power to do something *331cannot be held liable for failing to do that thing. See Brown v. MacPherson’s Inc., 85 Wn.2d 17, 19, 530 P.2d 277, reh’g granted, 86 Wn.2d 293, 545 P.2d 13 (1975); Couch, 113 Wn. App. at 569 (“[I]f DOC is not authorized to intervene, it cannot have a duty to do so.”).
¶63 This principle was applied recently to the community supervision context by the Court of Appeals in Couch. There, the estate of a murder victim sued DOC for failing to prevent the victim’s murder. Couch, 113 Wn. App. 556. At the time of the murder, however, the offender was only on community supervision for payment of LFOs. Id. at 559. Although DOC did have some control over the offender— DOC could require him to report or question him — that control related only to the offender’s payment of his LFOs. DOC could not intervene in his other activities. Id. at 569. The Court of Appeals held that if DOC did not have authority to intervene in the offender’s other activities, it did not have a take-charge relationship over those activities and could not have a duty to intervene.9 Id.
¶64 Following the reasoning of Taggart, Bishop, and Couch, DOC did not have a take-charge relationship regarding Stewart’s driving or mental health. Therefore, DOC had no duty to prevent driving-related behavior, including the accident at issue here. This conclusion is consistent with our holding in Taggart. The majority’s decision finding a duty here actually expands Taggart by creating a duty broader than the scope of authority granted by the supervision conditions. See Estate of Bordon v. Dep’t of Corr., 122 *332Wn. App. 227, 236 n.19, 95 P.3d 764 (2004) (reasoning that the Court of Appeals decision in Joyce appeared to find a duty “in the absence of any court-imposed condition authorizing” DOC to take the desired action. “Joyce seems to expand the holding in Taggart by ruling that DOC’s duty does not depend on there being a nexus between the offender’s crimes and conditions of supervision and the behavior that caused the plaintiff’s injury.”), review denied, 154 Wn.2d 1003 (2005)10
165 The majority implies that because DOC could have requested that Stewart be incarcerated for violating one of the supervision conditions over which it had authority, it should have done so to prevent the accident. But the mere ability to prevent harm does not create a duty to do so. Although DOC could have sought a bench warrant to arrest Stewart for his LFO and reporting violations, it did not have to seek arrest. Instead, the CCO monitoring Stewart at the time leading up to the accident filed a violation report and requested a hearing. The CCO claims that he chose that course of action because Stewart had not violated his crime-related conditions, contacted his victim, or committed any violent crimes. Such prioritizing is part of DOC’s discretion and is necessary to the efficient operation of the community supervision program. The majority’s imposition of a duty here will force DOC to seek arrest for any minor violation to prevent future liability.
166 Imposing a duty here also encourages DOC to use general supervision authority and enforcement of generic conditions as a pretext for controlling supervisee behavior *333unrelated to their supervision conditions. The legislature did not intend that result — the SRA gives DOC the authority to control only crime-related behavior. Furthermore, such pretext has been held improper. For example, Division Three of the Court of Appeals held that polygraph testing ordered as part of release conditions could be used “to monitor only [the offender’s] compliance with the community placement order and not as a fishing expedition to discover evidence of other crimes, past or present.” State v. Combs, 102 Wn. App. 949, 953, 10 P.3d 1101 (2000) (emphasis added).
¶67 Based on the conditions of release, DOC had only limited authority to monitor Stewart, which did not include authority to monitor or control behavior related to his driving or mental health. Therefore, DOC did not have a duty to prevent the car accident that killed Joyce.
¶68 Even if a general duty attached due to the supervision condition requiring Stewart to obey all laws, the accident that killed Joyce was unforeseeable to DOC as a matter of law, and DOC therefore did not have a duty to prevent it. The Joyces had the burden to prove the scope of the duty extended to Paula Joyce by showing that she was “foreseeably endangered.” Taggart, 118 Wn.2d at 224. “ ‘Foreseeability is normally an issue for the jury, but it will be decided as a matter of law where reasonable minds cannot differ.’ ” Id. (quoting Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989)).
¶69 In the community supervision context, the scope of DOC’s duty extends to foreseeable behavior associated with the supervision conditions. Bordon, 122 Wn. App. at 237 (reasoning that the offender’s danger to the driving public would have been foreseeable if DOC had known about the offender’s conviction for eluding police and the corresponding driving-related condition). DOC cannot be expected to foresee behavior unrelated to the substantive or crime-related conditions under which they are monitoring supervisees. This is especially true if we are willing to extend to DOC a duty to prevent supervisees from commit*334ting future crimes based solely on a supervision condition requiring them to maintain law-abiding behavior. If we did not limit DOC’s foreseeability to behavior associated with crime-related supervision conditions, we would make DOC an insurer for any new crime committed by a supervisee that was similar to a behavior or lack of judgment that person demonstrated in the past but which the courts did not see fit to include in the supervision conditions.11 The majority asks too much of DOC — it cannot be an insurer of all crimes.
CONCLUSION
¶70 Because DOC did not have authority to intervene in Stewart’s driving or mental health, it also did not have a duty to prevent the car accident that killed Paula Joyce. But even if some general duty attached based on the “obey all laws” supervision conditions, the accident that killed Joyce was unforeseeable to DOC as a matter of law because Stewart’s behavior that caused the accident was unrelated to the conditions for which DOC was supervising him. I therefore dissent from the majority’s willingness to impose upon DOC a duty to prevent behaviors in which it has no authority to intervene and for which trial courts did not see it necessary to have DOC monitor.
Sanders and Bridge, JJ., concur with Fairhurst, J.
Reconsideration denied December 6, 2005.
Only once a duty is established does foreseeability of injury establish the scope of that duty; the scope is irrelevant if no duty exists. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P.2d 749 (1998).
The majority tries to make much of the fact that Stewart’s CCO did seek and receive an order allowing her to access Stewart’s mental health records. However, contrary to the majority’s assertion, it is not clear that the judge ordered the release so that the CCO could monitor Stewart’s psychiatric issues. See majority at 312-13. No new supervision condition was entered requiring or authorizing the CCO to monitor Stewart’s mental health.
Rather than imposing upon DOC a duty to prevent all future crime, the obey all laws requirement is associated with the first time offender waiver, where courts waive standard range sentences for certain first time offenders, hut require that they maintain law-abiding behavior and fulfill other conditions specific to the waiver. See RCW 9.94A.650(2); see also Pi’s. Ex. 6, part 4.4, where the sentencing judge utilized the first time offender waiver.
The majority states that “[u]nder some circumstances, the specifics of [the conditions of release contained in a judgment and sentence] may limit the State’s duty.” Majority at 315 (citing Couch, 113 Wn. App. 556). The majority concludes that because Stewart’s conditions of release were not limited to LFOs, the conditions of release do not limit DOC’s duty. But this court has never held that LFOs are the only context in which the supervision conditions determine the duty of CCOs — we have not before considered this issue. The Court of Appeals opinion in Couch does not appear to limit the relationship between duty and the supervision conditions to conditions regarding LFOs. Instead, the court reasoned that if the supervision conditions did not give DOC the authority to do something, it could not have a duty to do so. That same principle applies here — because DOC did not have the authority (through supervision conditions) to monitor Stewart’s driving or mental health, it cannot have had the duty to do so.
Bordon involved facts that (unlike those present here) did support a duty for DOC to prevent a car accident. There, an offender on community supervision, who was being supervised for driving-related behavior, borrowed a car and crossed the center lane of a road while intoxicated, killing a woman. Bordon, 122 Wn. App. at 231. The victim’s family sued DOC for negligent supervision of the offender. Id. at 234. The Court of Appeals held that a supervision condition mandating that the offender only drive with a valid license, where the Department of Licensing had revoked his driving privilege for 365 days, was “sufficient to give rise to a duty under Taggart to protect the public from foreseeable behavior associated with that condition.” Id. at 237 (emphasis added). A similar driving condition is noticeably absent here. Without a driving-related condition, DOC cannot have a similar duty to protect the public from Stewart’s driving.
Furthermore, the majority exaggerates the similarities between Stewart’s past crimes and the accident that killed Joyce. The opinion asserts that Stewart’s past crimes were so similar to the crime causing Joyce’s death that they “foretold” the crimes resulting in Joyce’s death, and that he “succumbed to old temptations” by committing the current crimes. Majority at 311, 314. The opinion points to Stewart’s juvenile convictions for driving without a license and possession of stolen property, his conviction for possession of stolen property (the conviction for which he was being supervised), and his conviction for obstructing a public servant. Majority at 311. Even though Stewart may have had a propensity for making bad decisions including stealing cars, it was not the theft of the automobile or possession of stolen property that killed Joyce, it was Stewart’s negligent driving and running of a red light. Neither the majority nor respondent points to evidence of Stewart’s criminal history including past convictions for reckless driving or driving under the influence which, unlike possession of stolen property, perhaps come closer to “foretelling” the actions that killed Joyce.