(dissenting) — In this case a jury was asked to assign responsibility for the tragic death of Paula Joyce, a much beloved wife and mother, who was killed when Vernon Valdez Stewart, an offender on community supervision, drove a stolen car through a stoplight and collided with Joyce’s car. The jury found the Department of Corrections (DOC) responsible for failing to adequately supervise Stewart and awarded Joyce’s family $22,453,645 for their terrible loss. The majority would affirm the verdict *604and the damage award. Because the court improperly instructed the jury that DOC had a duty to ensure that Stewart maintained law-abiding behavior, because the only evidence that DOC’s supervision caused Joyce’s death came from inadmissible speculative testimony, and because the trial judge misinstructed the jury on the law concerning DOC’s authority to control Stewart, I must respectfully dissent.
The law has not established a cause of action for negligent supervision of persons on community supervision under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Compare Bell v. State, 147 Wn.2d 166, 52 P.3d 503 (2002); Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992); and. Couch v. Dep’t of Corr., 113 Wn. App. 556, 571, 54 P.3d 197 (2002). Additionally, unless the sentencing court utilizes the “first-time offender” waiver provisions of the SRA, an offender cannot be required to maintain law-abiding behavior as a condition of community supervision.18 See State v. Barclay, 51 Wn. App. 404, 753 P.2d 1015, review denied, 111 Wn.2d 1010 (1988).
Therefore, DOC lacks authority to monitor or enforce a “maintain law-abiding behavior” condition in the absence of a first-time offender waiver. Couch, 113 Wn. App. at 565 (explaining that a community corrections officer (CCO) 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 enforce it only according to its terms and applicable statutes” (emphasis added)).
Even if a negligent supervision claim exists in the first-time offender/community supervision context, no instruction informed the jury in this case of the appropriate legal cause standard clarified in Bell: “[a] plaintiff in a negligent parole supervision action must show not only inadequate supervision, but must also carry the burden to demonstrate the damage sustained by the plaintiff would have been *605avoided but for the inadequate supervision.” 147 Wn.2d at 179 (emphasis added). See Taggart, 118 Wn.2d at 227 (explaining that “when the connection between a defendant’s conduct and the plaintiff’s injury is too speculative and indirect, the cause in fact requirement is not met”); see also Petersen v. State, 100 Wn.2d 421, 435, 671 P.2d 230 (1983) (negligent supervision of a patient in a state hospital case, explaining that the claim of breach of duty must be a proximate cause of the resulting injury). Here, the plaintiff’s causation evidence, if admissible, was insufficient to prove that the collision would have been avoided but for the inadequate supervision.
The trial court also misinstructed the jury on a CCO’s authority when supervising an offender on community supervision. Specifically, instruction 16 improperly informed the jury that a CCO must take action within 30 days of learning of an intentional violation, implying that failure to do so is a violation of the law rather than of a department directive. See Melville v. State, 115 Wn.2d 34, 38, 793 P.2d 952 (1990). See also former RCW 5.40.050 (1986).19 And instruction 20 improperly informed the jury that “[a] community corrections officer may arrest or cause the arrest of an offender, without a warrant. . . when the offender presents a danger to the community” because a CCO has no such arrest power. 11 Clerk’s Papers (CP) at 2048. See Couch, 113 Wn. App. at 565 (explaining that a CCO must have a court order before he or she can “take charge” of an offender).
The bases for my conclusions are set forth more fully below.
*606DOC’S Duty To Supervise an Offender on Community Supervision
The majority holds that
the existence of a duty is not at issue. Our Supreme Court has held that “[DOC] has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of [offenders], and that if injury to [the plaintiff] was a reasonably foreseeable consequence of paroling [the offender], then this duty extend[s] to [the plaintiffs].” Taggart v. State, 118 Wn.2d 195, 217, 822 P.2d 243 (1992); see also Bell v. State, 147 Wn.2d 166, 52 P.3d 503 (2002).
Majority at 587 (footnote omitted). I respectfully disagree with the majority’s reliance on Taggart and Bell. In those cases, each offender had a documented history of dangerous predatory sexual behavior. Neither offender was a first-time offender or on community supervision under the SRA. More importantly, both Taggart and Bell addressed the monitoring of sexual predators on parole who sexually assaulted Taggart and Bell.
A convicted offender paroled by the parole board or indeterminate sentencing review board is granted the privilege of (1) suspension of a portion of the previously imposed term of confinement and (2) release on conditions. If a parolee’s parole is revoked by the indeterminate sentencing review board (formerly the parole board), he is returned to prison to serve the remaining balance of his term of confinement.20 In contrast, the term of confinement of an individual on community supervision under the SRA has already been served.
In Bishop v. Miche, 137 Wn.2d 518, 973 P.2d 465 (1999), our Supreme Court equated parole and district court probation:
The Court of Appeals reasoned that probation officers exert control over probationers similar to that exercised by parole *607officers over parolees, and accordingly the duty identified in Taggart also applies to county probation officers. We agree. The duty identified in Taggart may be found where a probation officer must monitor probationers for compliance with conditions of parole.
Bishop, 137 Wn.2d at 525 (emphasis added).
Bishop explained that a parole officer must exercise reasonable care in supervising a parolee due to the special relationship between a parole officer and a parolee:
in Taggart... we held that the state may be liable for the negligence of a parole officer who fails to use reasonable care in supervising a parolee whose dangerous propensities pose a reasonably foreseeable danger to others. In Taggart, we acknowledged the rule that generally one has no duty to prevent a third party from causing harm to another. We also recognized, however, the exception stated in Restatement (Second) of Torts § 315 (1965) which provides that there may be such a duty where there is a special relation between the actor and the third person. Such a special relation exists when one takes charge of a third person whom he or she knows or should know is likely to cause bodily harm to another if not controlled, and the actor has a duty to control the third party to prevent him or her from doing such harm.
Bishop, 137 Wn.2d at 524.
A special “take charge” relationship of the sort that gives rise to the duty to supervise and control future criminal conduct may well exist in a parole (Taggart) or suspended sentence probation (Bishop) situation where, but for the offender’s release, the convicted person would be incarcerated, serving the remainder of his sentence. But, as a general rule, a person sentenced under the SRA to community supervision has served his term and is entitled to be free from incarceration pending a judicial officer’s finding of a violation and entry of a separate order of confinement made following an adversarial hearing.21 Moreover, even *608with a violation finding, incarceration is not the only available penalty.22
Here, the majority holds that the plaintiffs proved that “Stewart would continue to exercise poor or no judgment, continue to break the law, drive without a valid license, and potentially endanger the lives of others.” Majority at 588. While I agree that Stewart’s abysmal compliance with the terms of his community supervision supports such a statement, the SRA and its underlying policy do not give DOC “take charge” authority over Stewart.23
A CCO may effect or cause the arrest of an offender without a warrant when an offender violates any condition *609or requirement of a sentence pending a determination by the court. See RCW 9.94A.631.24 This authority alone, however, does not create a duty to control all behavior of the person so supervised. See, e.g., Couch, 113 Wn. App. at 565 (holding that a CCO 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 enforce it only according to its terms and applicable statutes (emphasis added)). Couch held that an obligation to monitor for legal financial obligations only does not create a duty to monitor for all purposes:
One effect of [the modification of Davis’ misdemeanor sentence] was to restrict DOC’s authority over Davis. Whereas DOC previously had authority to supervise him for all purposes, including the prevention of crime, it would henceforth have authority to monitor legal financial obligations only.
Couch, 113 Wn. App. at 571.
In contrast to the former parole and probation statutes, one of the express purposes of the SRA was to hold offenders accountable for their criminal acts by fully prosecuting criminal conduct, rather than addressing subsequent crimes as violations of probationary supervision:
*610Judges, in granting probation, have traditionally been free to impose any conditions that bear a reasonable relation to the purposes of sentencing. This power has been exercised expansively and a wide variety of affirmative conditions have commonly been required as a condition of probation by sentencing judges. With the exception of “first-time offenders” and “sex offenders,” no comparable power exists under the Sentencing Reform Act. The only conditions of “community supervision” authorized are “crime-related prohibitions” and “other sentence conditions” imposed pursuant to the Act.
The most significant aspect of this limiting definition is the absence of any requirement of obeying the law as a condition of community supervision. Under the former system this requirement was a near-universal condition of probation and parole. Its rejection was intentional.
David Boerner, Sentencing in Washington § 4.4, at 4-4 (1985) (footnotes omitted).
If an offender violates the conditions of community supervision set forth in the judgment and sentence, he may, but need not, be arrested, and his CCO must file a violation report. See RCW 9.94A.631;25 DOC Division of Community Corrections Division Directive (DCC) 200.700 (Feb. 28, 1995). But only a court has the authority to impose additional terms of confinement on an offender for violating conditions of his community supervision. See RCW 9.94A-.634(1)26 (providing that when an offender violates any condition or requirement of his sentence, the court may modify the judgment and sentence and impose further punishment for the violation). And a court may do so only after conducting an adversarial hearing and finding by a preponderance of the evidence that the offender willfully violated the conditions of community supervision. See, e.g., State v. Gropper, 76 Wn. App. 882, 885-86, 888 P.2d 1211 (1995). DOC lacked the lawful authority to require Stewart *611to obey all laws. Thus, DOC did not have the duty to assure that Stewart obeyed all laws.
DOC’s Supervision as a Cause in Fact
To sustain their claim for negligent supervision, the plaintiffs must demonstrate not only that the CCOs had a duty and the authority to reasonably monitor, investigate, and report Stewart’s alleged violations to the King and Kittitas County courts and that they were negligent in performing that duty, but also that had DOC properly monitored, investigated, and reported his violations, Stewart would have been controlled and incarcerated on August 8,1997. Put differently, plaintiffs had the burden to prove that DOC’s failure to monitor and report Stewart’s conduct was the cause in fact of Joyce’s death. Taggart, 118 Wn.2d at 227 (explaining “that when the connection between a defendant’s conduct and the plaintiff’s injury is too speculative and indirect, the cause in fact requirement is not met”).
The majority contends that the plaintiff’s expert, William Stough, satisfied this burden when he testified that, had Stewart’s CCO timely obtained a warrant and arrested Stewart, he would have been in jail on August 8, 1997.
But Stough’s testimony was inadmissible. To be admissible Stough had to have either personal knowledge or expert knowledge about what would have happened if DOC had filed a violation report sooner. State v. Kunze, 97 Wn. App. 832, 988 P.2d 977 (1999). A person can never have personal knowledge of the outcome of a matter occurring in the future. Neither Stough nor anyone else could have had personal knowledge of the outcome of a future hearing. And there is no recognized field of experts qualified to give an opinion predicting what a judge will do at the end of a particular adversarial hearing.
Thus, Stough’s testimony was purely speculative. It is just as likely that, had the CCO reported Stewart’s February 26 driving violation within 30 days of its occurrence and had the trial court imposed the maximum 60-day penalty *612for the violation, Stewart would have been released prior to August 8,1997. Such testimony was purely speculative and inadmissible. Thus, it was insufficient to prove that DOC’s conduct was a cause in fact of Joyce’s death. See State v. Warness, 77 Wn. App. 636, 643, 893 P.2d 665 (1995) (explaining that expert testimony that is merely speculative is not admissible); see also Bell, 147 Wn.2d at 179-80 (expert testimony on legal burden of proof inadmissible).
Unlike a specific term of confinement that is suspended in a misdemeanor or pre-SRA probationary sentence or remaining in the case of parole, the penalty for a violation of community supervision is unknown. The judge in the King County domestic violence case would not necessarily have incarcerated Stewart had his CCO filed a violation for driving with a suspended license. Unlike a pre-SRA probationer, a person on community supervision has been finally sentenced for his original crime. No additional penalties may be imposed for the original crime charged. See Boerner, supra, § 4.4, at 4-5.
Moreover, the court that sentences an offender to community supervision under the first-time offender provision of the SRA has presumptively determined that the offender has not demonstrated a dangerous propensity that poses a reasonably foreseeable danger to others. See RCW 9.94A.650(1).27 Assuming that Stewart was sentenced un*613der the “first-time offender” waiver,28 the King County sentencing court had the authority to require Stewart to maintain law-abiding behavior and to require DOC to monitor him for compliance with that condition.29 But that court also necessarily found that Stewart had not demonstrated a dangerous propensity that posed a reasonably foreseeable danger to others.30
Ten days before the collision that took Joyce’s life, Stewart’s CCO filed two violation notices requesting that the King and Kittitas trial courts set hearings to review Stewart’s alleged violations. In Kittitas County (possessing stolen property), the CCO alleged that Stewart had failed to report since May 2, failed to notify him before changing his address,31 and failed to pay his legal financial obligations. In King County (domestic violence assault), the CCO alleged the same violations, as well as the further violation that Stewart was driving with a suspended driver’s license on or about February 26.32 In my view, even if the jury *614had been properly instructed on the plaintiff’s burden, the record contains no evidence, just speculation, and is insufficient as a matter of law to satisfy the plaintiff’s burden of proving that, but for the CCO’s decision to request a hearing rather than a warrant for Stewart’s arrest, Joyce would not have died. See Bell, 147 Wn.2d at 179.
Instruction 16
In addition, the trial court misinstructed the jury that a CCO was required to report all violations of community supervision within 30 days of learning of them:
The Department of Corrections, through its community corrections officers, is legally responsible for reporting violations of any conditions of community supervision to the Superior Court which sentenced the felon and must take action within 30 days of learning of a violation.
11 CP at 2044.
The instruction is based upon DOC DCC 200.700. But operational policies, directives, and procedures are internal processes, which can be used as management tools, they are not law. Melville v. State, 115 Wn.2d 34, 38, 793 P.2d 952 (1990) (holding that “ ‘statutory policy statements as a general rule do not give rise to enforceable rights and duties’ ” (quoting Aripa v. Dep’t of Soc. & Health Servs., 91 Wn.2d 135, 139, 588 P.2d 185 (1978))); Fischer-McReynolds v. Quasim, 101 Wn. App. 801, 812, 6 P.3d 30 (2000) (holding that the governor “cannot creáte obligations, responsibilities, conditions, or processes having the force and effect of law merely by issuing an executive order”). The policy was admissible as evidence on the issue of the CCO’s knowledge and negligent conduct only. Former RCW 5.40.050 (1986). But because a policy does not have the force of law, it was error for the trial court to instruct the jury that, in effect, a CCO who did not report a violation of any condition of community supervision to the court within 30 days of *615learning of the violation had violated the law and was, therefore, negligent. Former RCW 5.40.050.
Instruction 20
Instruction 20, likewise, misinformed the jury on the extent of the CCO’s authority to control Stewart. It stated in relevant part that a CCO has the authority to arrest an offender when “the offender presents a danger to the community.” 11 CP at 2048. A CCO may arrest or cause the arrest of an offender only when the offender violates “any of the requirements or conditions of a sentence” or commits a crime in the CCO’s presence. The trial court’s instruction 20 misstated the law to the jury by stating that the CCO had the authority to arrest Stewart if he believed Stewart presented a danger to the community. This is not an accurate statement of the statute. See RCW 9.94A.634(3) (formerly RCW 9.94A.200). Moreover, it violates Washington’s state constitution. Wash. Const, art. I, § 7.
The State objected to the giving of instruction 20.33 The instruction clearly misinformed the jury regarding the CCO’s authority to arrest Stewart on the CCO’s mere belief that Stewart appeared to present a danger to the community.34 Thus, the court’s instruction 20 misinformed the jury *616about the law and deprived the State and its taxpayers of a fair trial.
The trial court erroneously instructed the jury regarding the duties and authority of a CCO monitoring an offender on community supervision and allowed inadmissible testimonial evidence to be presented to the jury. Thus the jury reached its verdict guided by an improper statement of the law, without notice of the controlling “but for” causation standard it was required to apply, and asked to base its decision on speculative and inadmissible testimony.35 Therefore, I would reverse and remand for a new trial before a jury that is properly instructed on the law and its application to competent evidence.
Reconsideration denied May 22, 2003.
Review granted at 150 Wn.2d 1032 (2004).
DOC concedes that King County sentenced Stewart as a “first-time” offender. Stewart was eligible to be sentenced as a first-time offender, but the judgment and sentence does not reflect that the court exercised this waiver.
That statute provided:
A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.
Former RCW 5.40.050 (2000) (Laws op 2001, ch. 194, § 5 inserted “sterilization of needles and instruments used in tattooing or electrology as required under RCW 70.54.350.”).
See Couch, 113 Wn. App. at 566 n.35, citing ROW 9.95.120, implying that parole may be revoked -without hearing if parolee is convicted of committing a new offense. In contrast an adversarial hearing must be held before further punishment may be imposed on a person under community supervision.
See, e.g., Couch, 113 Wn. App. at 569 (DOC not authorized to intervene in offender’s activities not mentioned in sentencing documents); State v. Raines, 83 Wn. App. 312, 316, 922 P.2d 100 (1996) (court exceeded authority by imposing a *608requirement to obey all laws as a condition of offender’s community placement and could not sanction offender for alcohol consumption not prohibited in initial order).
RCW 9.94A.634(3) (formerly 9.94A.200; see Laws of 2001, ch. 10, § 6) states:
If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply:
(a)(i) Following the violation, if the offender and the department make a stipulated agreement, the department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, jail time, or other sanctions available in the community.
(c) The state has the burden of showing noncompliance by a preponderance of the evidence. If the court finds that the violation has occurred, it may order the offender to be confined for a period not to exceed sixty days for each violation, and may... (iv) order one or more of the penalties authorized in (a)(i) of this subsection.
The majority also rejects DOC’s argument that Taggart requires a factual nexus between the offender’s underlying crime and the new harm that he or she caused the plaintiff. Setting aside the issue of whether Taggart and Bell require such a nexus, the SRA does have such a requirement. Unless the sentencing court invokes the “first-time offender” waiver, it may only require or prohibit the offender from engaging in activities that are related to the crime of which he has been convicted. See former RCW 9.94A.120(5) (1996) (specifically providing that when sentencing a first-time offender the court may waive the standard sentence range and require the offender to refrain from committing new offenses); former RCW 9.94A.030(7) (1996) (reiterating that for first-time offenders, community supervision may include conditions imposed under former RCW 9.94A.120(5)). (The first-time offender waiver was recodified as RCW 9.94A.650 in 2000. See Laws op 2000, ch. 28, § 18. The definition of “community supervision” no longer mentions the conditions imposed under the first-time offender waiver statute. See RCW 9.94A.030(9)). Thus, the nexus requirement inheres in the limitation on lawful conditions the Kittitas County court could impose under the SRA.
That statute reads as follows:
If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, an offender may be required to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property. A community corrections officer may also arrest an offender for any crime committed in his or her presence. The facts and circumstances of the conduct of the offender shall be reported by the community corrections officer, with recommendations, to the court.
If a community corrections officer arrests or causes the arrest of an offender under this section, the offender shall be confined and detained in the county jail of the county in which the offender was taken into custody, and the sheriff of that county shall receive and keep in the county jail, where room is available, all prisoners delivered to the jail by the community corrections officer, and such offenders shall not be released from custody on bail or personal recognizance, except upon approval of the court, pursuant to a written order.
RCW 9.94A.631 (formerly RCW 9.94A.195 (2000); see Laws of 2001, ch. 10, § 6).
See former RCW 9.94A.195 (1984), recodified as RCW 9.94A.631 (Laws of 2001, ch. 10, § 6).
See former RCW 9.94A.200 (1998), recodified as RCW 9.94A.634 (Laws of 2001, ch. 10, § 6).
That section explains that the first-time offender waiver applies to offenders who have never been previously convicted of a felony in this state, federal court, or another state, and who have never participated in a program of deferred prosecution for a felony, and who are convicted of a felony that is not:
(a) Classified as a violent offense or a sex offense under this chapter;
(b) Manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or flunitrazepam classified in Schedule IV;
(c) Manufacture, delivery, or possession with intent to deliver a methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2); or
(d) The selling for profit of any controlled substance or counterfeit substance classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana.
RCW 9.94A.650(1).
*613At the time Stewart was sentenced, the first-time offender waiver was codified at former ROW 9.94A.030(23) (1999). It was recodified as ROW 9.94A.650 in 2000. See Laws of 2001, ch. 10, § 6.
See majority at 597 n.12.
Although the Kittitas County judgment and sentence contained the maintain law-abiding behavior clause, it was unenforceable. Stewart was not eligible for a first-time offender waiver when he was sentenced in Kittitas County. Thus, that court was precluded from requiring Stewart to maintain law-abiding behavior as a condition of his community supervision, and DOC had no lawful authority to allege that any subsequent violations of the law were also violations of his community supervision in that cause. See State v. Barclay, 51 Wn. App. 404, 405-06, 753 P.2d 1015, review denied, 111 Wn.2d 1010 (1988).
DOC acknowledges that Stewart’s supervision might have produced liability for DOC under Taggart if he had assaulted his girl friend again and the CCO had not reported violations of no contact, no weapons, or counseling conditions, which would have led to reincarceration.
The report reflects that as of March 1997, DOC believed Stewart was homeless, but that because the notice of violation had not been returned when mailed to his father’s home, it now believed he was no longer homeless.
Presumably the CCO did not report Stewart’s driving offense to the Kittitas court because Stewart was not a first-time offender when he was sentenced in Kittitas County, and the condition to maintain law-abiding behavior in that court’s sentence was invalid. See, e.g., State v. Shove, 113 Wn.2d 83, 776 P.2d 132 (1989); State v. Raines, 83 Wn. App. 312, 922 P.2d 100 (1996); Barclay, 51 Wn. App. *614at 407 (only a first-time offender may be ordered to refrain from committing new offenses).
The majority asserts that the State’s exception to instruction 20 — “that it fails to take into consideration other factors, such as the [offender’s] statutory and constitutional protections ....” (10 Report of Proceedings at 1493) — was inadequate to preserve a challenge to instruction 20 for our review. I disagree. The instruction is patently false and obviously violates the right to be free from unconstitutional seizure and arrest. Moreover, plaintiffs miseited the authority supporting the instruction to the court and opposing counsel. The citations to the plaintiff’s proposed instruction 18 (which is identical with the court’s instruction 20) indicate without qualification that the language used in the proposed instruction has been taken directly from former RCW 9.94A.195 and DOC DCC 200.710. The instruction’s proposed language — the offender presents a danger to the community — is not found in the statute. Moreover, the DOC DCC cited addresses mandatory savings accounts for prison/prerelease/work release inmates, and is thus inapplicable.
I note also that Stewart voluntarily sought mental health treatment and such treatment was not a condition of his community supervision. See Raines, 83 Wn. App. at 316. Moreover, had it been a condition of his community supervision, the law requires that “the civil detention and commitment procedures of chapter 71.05 RCW shall be considered in preference to incarceration in a local or state *616correctional facility.” RCW 9.94A.634(3)(e). Stewart was evaluated by mental health professionals the day before the collision. They determined that he did not meet the threshold for commitment under chapter 71.05 RCW The trial court erred when it refused to allow the State to defend against the Joyce family’s claim that DOC’s oversight of Stewart’s mental health was a “gross dereliction of duty” (3 CP at 482), because under the terms of Stewart’s SRA sentence, DOC had no lawful authority or duty to oversee his mental health treatment. See RCW 9.94A.634(3)(e).
See instruction 10.