(dissenting) — The majority recognizes that the Domestic Violence Prevention Act (DVPA) imposes a duty on the City to protect victims of domestic violence. A statute which by its terms creates a governmental duty to protect particular individuals can be the basis for a negligence action where the statute is violated and the injured party was one of the persons designed to be protected by the statute. Baerlein v. State, 92 Wn.2d 229,232,595 P.2d 930 (1979). The majority holds, however, that the provisions of the act do not impose a mandatory duty to conduct a follow-up search for an abuser who flees the scene. The majority, therefore, concludes that the statute was not violated. Majority, at 671. However, by declaring that it is unnecessary under the facts of this case to define the precise scope of the mandatory arrest duty, the majority leaves us with two possible interpretations — one being that the act imposes no follow-up duty whatsoever in case of the absent violator and the other that under these specific facts, further follow-up activity was not required. Inasmuch as I am in disagreement with both approaches, I respectfully dissent.28
*677The majority supports its interpretation of the statute by asserting that a mandatory duty to search for an absent abuser would be without clearly defined limits and therefore unworkable. This concern is addressed by the 4-hour time limitation contained in RCW 10.31.100(2)(b) which, instead of supporting the majority's analysis, refutes it. That subsection provides that if more than 4 hours have elapsed since the incident occurred, there is no mandatory duty to arrest. Rather than recognizing this limitation as a safeguard to prevent an inefficient use of police resources, the majority views the 4-hour limit as evidence that the act only pertains to situations in which the abuser is present when the police arrive at the scene.
This simply does not follow. It is more logical to conclude that the 4-hour provision was intended to impose outer limits on the mandatory duty to act. Thus, if the abuser can be located through a reasonable police search within 4 hours following the incident, an arrest must be made. If more than 4 hours have elapsed, the provisions of the statute relating to mandatory arrests no longer apply.
As to the other concerns raised by the majority relating to the scope and intensity of the investigation these must, by necessity, be resolved on a case-by-case basis as in any other action in tort alleging breach of duty. Depending upon the facts, some issues may be decided as a matter of law while others may require submission to a jury. This case is unique only in that the Legislature has imposed certain duties which have not heretofore existed. I do not dispute that these mandatory requirements may create enforcement problems. However, any rectification of those concerns is within the province of the Legislature, not the judiciary.
Inasmuch as the majority relies upon certain facts to justify part of its analysis, I will address whether this court can, under those facts, determine as a matter of law that the officers did all that was required under the provisions of the DVPA. Because Leola declined the officers' invitation to take her to a place of safety, the majority holds that the special relationship created by the statute terminated. I *678disagree. The act focuses on the importance of arresting violators in order to promote the safety of victims. Indeed, the majority acknowledges that the overriding purpose of the statute is to protect domestic violence victims from further violence. When the offender is present, arrest and removal serves that function.
However, the majority concludes that taking the victim to a place of safety serves the same function of protecting domestic violence victims when the violator is not present. That latter conclusion is not supportable and, in itself, is insufficient to satisfy the officers' duties under the act. Further, it overlooks the effect that an arrest may have. In the first place, while the suspect is in custody the victim is safe. If the suspect is to be released, conditions of release may be imposed, including supervision. Moreover, an arrest emphasizes to the arrestee the gravity of the situation and may, in and of itself, serve a deterrent function. Simply taking the victim to a safe place does not effectively accomplish the purposes intended by the DVPA. As noted in RCW 10.99.010,
[t]he purpose of this chapter is to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide. ... It is the intent of the legislature that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated. . . .
(Italics mine.) In those cases where it is reasonably possible to locate the suspect and effectuate an arrest, taking a victim to a place of safety — while commendable and to be encouraged — does not assure the victim of domestic violence the maximum protection from abuse which the law can provide. Likewise, offering a safe haven for the victim is not enough in itself to demonstrate an official response to domestic violence aimed at enforcing the laws to protect the victim.
As an additional justification for excusing the officers from any further duty to search for Barnes, the majority relies on testimony that Leola told the officers that Barnes would not *679go to his mother's home.29 It is important to note that there was a serious attempt to impeach this testimony.30 In the officers' original incident report following Leola's call to the *680police, there was no reference to this information. The statement that he would not go to his mother's home appeared for the first time in reports prepared following the homicide. The plaintiff's expert witness, in opining that the officers had a duty to check that address in an effort to locate Barnes, testified that he attached little weight to Leola's alleged statement because it did not appear in the first report.31 This may have prompted the jury to attach significance to this discrepancy in determining whether Leola made the statement. The jury's determination of what information the officers had concerning Barnes's whereabouts could have influenced their determination of the case.
It is of greater significance to me, however, that Officer Burrows himself attached little, if any, importance to Leola's statement when he assessed his follow-up responsibilities.32 The clear inference from Burrows' testimony is that he would have gone to this address (the only address he had for Barnes) if he had felt that Barnes's actions triggered the mandatory arrest provisions of the act. Officer Burrows consistently testified that, based upon the facts known to him, he did not believe he had a mandatory duly to arrest. This, indeed, was the City's theory at trial and before this court — a theory that was properly rejected by the majority, which held "that if Barnes had been found on the scene, the officers . .. would in fact have [had] a duty to arrest[.]" Majority, at 671. However, the officers' actions were not motivated by their belief that they had no duty to *681investigate because the abuser was not present. Their actions were motivated based upon their belief that this was not a mandatory arrest situation; hence, in their view there was no mandatory duly to locate Barnes as quickly as possible in order to arrest him.
While I appreciate the majority's desire to determine limits in a difficult area, neither the facts nor the law supports the conclusion reached here. In short, I would affirm the judgment entered by the Superior Court.
Review dismissed at 120 Wn.2d 1031 (1993).
With the exceptions noted in this dissent, I am otherwise in accord with the majority's disposition of the issues. I would further note that if we had been able to conclude that the mandatory arrest provisions of the act were not invoked by Leola's complaint, then the majority's resolution would be proper. However, having resolved that issue against the City, I cannot agree with the majority's duty analysis.
Although not specifically stated in the majority opinion, it is undisputed that Barnes, following the incident with Leola, did in fact return to his mother's house where he was living at the time.
Officer Burrows testified as follows:
"Q: I'm going to hand you what has been marked Exhibit 34 and ask you whether that was the incident report that was made up by you?
"A: Are you referring to the first two pages?
"Q: Yes, the first two pages?
"A: Yes, that is a copy of the incident report I wrote concerning that incident.
"Q: Was that made up on the 14th after contact with Leola?
"A: Yes. After Leola, yes, it was.
"Q: Under the name of Steven Allen Barnes where it says 'relationship to the victim, ex-boyfriend,' what address is listed there?
"A: 8631-39th Avenue South.
"Q: And at that time was that the address that Leola Washington provided to you for Barnes?
"A: We used that for there was no other address to use. She said that was a mailing address for him, but not where he actually lived.
"Q: She said that she was over there earlier to pick up Christmas presents at his mother's house and she drove over there where he was with the Christmas presents?
"A: She said she drove over to his mother's house where he was.
"Q: Where he was. And you’re saying that she told you that he did not stay over there? It was only a mailing address?
"A: That's correct.
"Q: You do not in that first statement on the 14th of December say that anywhere in a narrative that you wrote; is that correct?
"A: It's not in the page, or report. It's in my officer's statement.
"Q: But the officer's statement came December 15th after she was killed; did it not?
"A: That's correct.
"Q: I'm talking about before she was killed when things were being justified — I'm asking for before on the 14th. Is there any indication in your report that she said that he lives in Edmonds and his mother's address was only a mailing address?
"A: I don't believe it is in the major report anywhere.
"Q: At that time she told you — what else did she tell you about that address?
"A: Which address?
"Q: His mother's address?
"A: That's basically all. She told me it was a mailing address for Mr. Barnes. He did not live there. He lived in Edmonds.
"Q: She told you he would not be going there?
"A: That's what she told me."
I may be of the view that this omission is insignificant and does not bear upon the witnesses' credibility, but I am not the trier of fact.
0fficer Burrows testified as follows:
"Q: Let me ask you something. If you have an address of a [suspect] of domestic violence and so forth, apart from this, in the ordinary course of events if you have a specific address, do you normally check it out?
"A: It depends if it's a mandatory arrest under the domestic violence law or not. "Q: So if it's a mandatory arrest, then you would go to the address?
"A: Yes.
"Q: If it's not a mandatory arrest, then you wouldn't go?
"A: Well, it depends on the circumstances."