FILED
FEBRUARY 14, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
AHMET HOPOVAC, ) No. 33992-1-111
)
Appellant, )
)
v. )
)
STATE OF WASHINGTON, ) PUBLISHED OPINION
DEPARTMENT OF CORRECTIONS, )
and KIMBERLEY ALLEN, )
)
Respondents. )
LA WRENCE-BERREY, J. - We answer the question of whether the Department of
Corrections (Department) owes a duty of care to protect felons under its supervision from
the intentional torts of third parties. For such a duty to exist, Restatement (Second) of
Torts§ 314A(4) (Am. Law Inst. 1965) would require felons to be in the custody of the
Department under circumstances such as to deprive them of their normal opportunities for
protection. We determine that standard community custody conditions, such as those
here, do not deprive felons of their normal opportunities for protection. We, therefore,
answer the question in the negative and affirm the summary dismissal ofMr. Hopovac's
claim.
No. 33992-1-III
Hopovac v. Dep 't of Corr.
FACTS
Because the trial court dismissed this case on summary judgment, the facts and all
reasonable inferences are presented in the light most favorable to Mr. Hopovac, the
nonmoving party. Winston v. Dep 't of Corr., 130 Wn. App. 61, 63, 121 P.3d 1201
(2005).
In January 2011, Mr. Hopovac was released from the Grant County jail after
completing a sentence for residential burglary, theft, and forgery. He reported to
Community Corrections Officer Patrick Markovics to begin his community supervision.
Mr. Hopovac's conditions of community supervision prohibited him from, among other
things, leaving Grant County and possessing a firearm. 1
When Mr. Hopovac first reported for community supervision, he asked Mr.
Markovics to transfer his supervision to Idaho so he could live with his family. Mr.
Hopovac requested the transfer because he did not have any money or a place to stay in
Grant County. At that time, he did not fear for his safety. Mr. Markovics told Mr.
Hopovac they would discuss it more the following day.
1
Mr. Hopovac was also required to notify the Department before moving or
changing jobs, report to and abide by written and oral instructions from Mr. Markovics,
work at a Department-approved service, not possess or consume controlled substances or
alcohol, not enter any establishments that sell alcohol, pay supervision fees, and perform
other affirmative acts necessary to monitor compliance.
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Hopovac v. Dep 't of Corr.
The following day, Mr. Hopovac did not report for his supervision appointment.
The Department issued a warrant for his arrest. Mr. Hopovac was arrested almost two
months later. The next time he reported for supervision, he told Mr. Markovics he had
used methadone, methamphetamine, and marijuana. He entered into a stipulated
agreement regarding his drug use.
Mr. Markovics submitted a request to transfer Mr. Hopovac's supervision to Idaho.
In the transfer request, Mr. Markovics explained that Mr. Hopovac was homeless in
Washington, Mr. Hopovac's father in Idaho was willing to help him, and Mr. Hopovac
believed he had a job lined up in Idaho. Idaho denied the transfer request partly because
it did not include a presentence investigation or police report. Idaho stated it could not
investigate the request without one of these documents. Idaho also denied the request
partly because Mr. Hopovac had violated the terms of his supervision within the last 30
days by using drugs and failing to report. After receiving Idaho's response, Mr.
Markovics resubmitted the transfer request with a police report.
In mid-April, an incident occurred that made Mr. Hopovac begin to fear for his
safety. Mr. Hopovac and his friend Christopher Jones were at Mr. Jones's house. While
they were there, a Pocos Locos gang member arrived at the house. The gang member told
them he had just shot someone and then showed them the handgun he used. The gang
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
member said he did not want the police to catch him with the handgun, so he asked Mr.
Jones to hide it for him. Mr. Jones hid the handgun, and the gang member left. The gang
member returned several hours later, retrieved the handgun, and gave Mr. Jones
methamphetamine in exchange for hiding it.
Mr. Jones later went to the police and reported what he knew about the shooting.
The case attracted media attention, including coverage on the radio and a story in the
local newspaper. As a result, gang members began threatening Mr. Jones and his family.
Because Mr. Hopovac was present at the house when the gang member came over, the
gang suspected that Mr. Hopovac also played a role in reporting information to the police.
The gang members never directly threatened Mr. Hopovac, but began following him. Mr.
Hopovac believed he was in danger. Mr. Hopovac had an upcoming check-in at the
Department supervision office and decided he would ask the Department for help during
this visit.
When Mr. Hopovac arrived for his scheduled check-in, Mr. Markovics was out of
the office, so Community Corrections Supervisor Kimberly Allen met with him. Mr.
Hopovac told Ms. Allen he was in danger because of what he witnessed at Mr. Jones's
house and told her he needed to get out of Washington. Ms. Allen told Mr. Hopovac that
she needed a police report in order to request an expedited transfer request to Idaho and
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
instructed Mr. Hopovac to go to the police. Mr. Hopovac told Ms. Allen he could not go
to the police because gang members were following him. Ms. Allen told Mr. Hopovac
there was nothing she could do for him. She asked Mr. Hopovac ifhe had any family or
resources in the area, and Mr. Hopovac said he did not.
Several days later, Mr. Hopovac failed to report for supervision, and the
Department issued a warrant for his arrest. The Department then withdrew its
resubmitted request to transfer Mr. Hopovac's supervision to Idaho.
On May 24, Mr. Hopovac began walking to a gas station to get a pack of
cigarettes. As he was walking, a car pulled up near him. Two men jumped out of the
backseat and told him to get in the car. Mr. Hopovac complied and the men drove him to
a house. The men took him inside. Once inside, a larger group of men began beating Mr.
Hopovac. They asked Mr. Hopovac who reported the shooting to the police and asked if
Mr. Hopovac was involved in reporting the shooting to the police. They then pulled off
two of Mr. Hopovac's toenails with a pair of pliers. A man then told Mr. Hopovac to
hold out his hand. Mr. Hopovac did so, and the man brought an axe down on Mr.
Hopovac' s hand, partially severing several fingers.
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
Mr. Hopovac later went to the hospital where doctors reattached his fingers.
Several days later, Mr. Hopovac was arrested on the outstanding Department warrant. He
never recovered full function of his hand or arm.
Mr. Hopovac sued the Department and Ms. Allen for "tortious conduct." Clerk's
Papers at 10. The Department moved for summary judgment, arguing it did not owe Mr.
Hopovac a legal duty to protect him from assault while he was under community
supervision. The trial court agreed and granted summary judgment for the Department.
Mr. Hopovac appeals.
ANALYSIS
Mr. Hopovac argues the Department owed a duty of care to protect him from
assault by the gang members. He contends the Department owed him a duty because the
terms of his supervision-specifically, the conditions prohibiting him from leaving Grant
County and possessing a firearm-limited his ability to protect himself.
An essential element in any negligence claim is the existence of a legal duty that
the defendant owes the plaintiff. Kaltreider v. Lake Chelan Cmty. Hosp., 153 Wn. App.
762, 765, 224 P.3d 808 (2009). Whether a duty exists is a legal question this court
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
decides de novo. 2 N.K. v. Corp. of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints, 175 Wn. App. 517,525,307 P.3d 730 (2013).
In general, there is no affirmative duty to protect others from the criminal acts of
third parties. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192,199,943 P.2d 286 (1997).
The fact that a person knows that another person needs aid or protection does not in itself
impose a duty to act. Restatement§ 314. However, an exception exists where the
defendant is in a special relationship with either the third party or the foreseeable victim
of the third party's conduct. NL. v. Bethel Sch. Dist., 186 Wn.2d 422,430,378 P.3d 162
(2016).
Several examples of special relationships establishing an affirmative duty to
protect another person from the torts of third parties are set forth in Restatement§ 314A.
This court has adopted subsection (4), which provides:
One who is required by law to take or who voluntarily takes the custody of
another under circumstances such as to deprive the other of his normal
opportunities for protection is under a ... duty [to take reasonable action to
protect the other person from unreasonable risk of physical harm].
Restatement§ 314A(4); accord Shea v. City of Spokane, 17 Wn. App. 236, 242, 562 P.2d
264 (1977) (adopting Restatement§ 314A(4)), aff'd, 90 Wn.2d 43, 578 P.2d 42 (1978).
2
Mr. Hopovac argues that select portions of the trial court's oral ruling were
incorrect. Because this court's review is de novo, this court need not individually analyze
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
This duty to protect extends to risks arising from the intentional or criminal acts of third
parties. Restatement § 3 l 4A( 4) cmt. d.
It is undisputed the Department owes a duty to ensure the health, welfare, and
safety of incarcerated individuals. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 635,
244 P.3d 924 (2010); Kusah v. McCorkle, 100 Wash. 318,325, 170 P. 1023 (1918). For
example, in Shea, Michael Shea was in jail and became nauseous. Shea, 17 Wn. App. at
238. He asked a guard for a tranquilizer or a doctor. Id. The guard denied both requests.
Id. Mr. Shea collapsed and suffered a spinal injury. Id. at 240. He then sued the jail for
negligence. Id.
The Shea court adopted Restatement § 314 A( 4) and held that the jail had a
nondelegable duty to provide competent medical care to Mr. Shea. Shea, 17 Wn. App. at
242. The court reasoned that the duty to prisoners arises because when individuals are
arrested and imprisoned for the protection of the public, they are deprived of their liberty
as well as their ability to care for themselves. Id. at 241-42. Thus, the corresponding
duty "is a positive duty arising out of the special relationship that results when a custodian
has complete control over a prisoner deprived of liberty." Id. at 242. In reasoning that
the jail's duty arose from having complete control over Mr. Shea, the court noted that
the portions of the trial court's oral ruling that Mr. Hopovac contests.
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
"[t]he extent of this control is well illustrated in this case by the jailer's denial of
plaintiffs request to telephone a doctor." Id.
The central question in this case is whether Restatement § 3 l 4A( 4) imposes a duty
on the Department to protect felons under its supervision. There does not appear to be
any authority addressing this question.
Mr. Hopovac and the Department each argue that the plain language of
Restatement § 3 l 4A(4) supports their respective positions. The first portion of
Restatement§ 314A(4) provides that only one who "voluntarily takes the custody of
another" owes a duty to protect that person from third parties. (Emphasis added.) The
Department argues this language limits Restatement§ 314A(4)'s application to physical
custody only. But this is a very narrow interpretation of the word "custody." "Custodians
include those who actually exercise control over their charges or who have legal authority
to control them." DAN B. DOBBS, THE LAW OF TORTS § 326, at 884 (2000); see also
Jacobs v. Ramirez, 400 F .3d 105, 105-06 (2d Cir. 2005) (parolees are still in "custody"
for purposes of 42 U.S.C. § 1983 analysis). While the Department did not physically
control Mr. Hopovac, his conditions of community supervision demonstrate the
Department had legal authority to control him.
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No. 33992-1-III
Hopovac v. Dep't of Corr.
But this conclusion is not dispositive of the central question presented. The latter
portion of Restatement § 314A( 4) imposes liability only where the conditions of custody
"deprive [the plaintiff] of his normal opportunities for protection." Mr. Hopovac argues
he was restricted from possessing a firearm as a condition of his community supervision.
But Mr. Hopovac, similar to nearly all persons supervised by the Department, was a
convicted felon. All felons are prohibited from possessing firearms by virtue of their
felony convictions. See RCW 9.41.040(1)-(2). Because his right to possess a firearm was
lost by virtue of his felony conviction, this condition of community custody did not
deprive Mr. Hopovac of any right.
The only community custody condition that affected Mr. Hopovac's ability to
protect himself was the condition that he remain in Grant County. Although this
condition affected Mr. Hopovac's ability to protect himself, that is not the standard for
imposing liability. Rather, Mr. Hopovac must establish the condition "deprive[d] [him]
of his normal opportunities for protection." Restatement § 3 l 4A(4) (emphasis added). It
is in this respect where we diverge from our dissenting colleague.
The test is not whether a trier of fact could find that Mr. Hopovac was deprived of
one normal opportunity for protection. If that was the test, every condition that somehow
impacted self-protection would create an issue of fact. The test is whether a trier of fact
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No. 33992-1-III
Hopovac v. Dep 't of Corr.
could find that Mr. Hopovac was deprived of his normal opportunities for protection. We
thus must view what panoply of opportunities Mr. Hopovac still had for protection.
Among other opportunities to protect himself, Mr. Hopovac still could carry a weapon
(other than a gun), he still could move anywhere within Grant County, and he still could
report the threats to law enforcement and law enforcement could take appropriate actions.
We conclude that no reasonable trier of fact could find that the opportunities Mr.
Hopovac had for protection constituted a deprivation of that right. Moreover, to hold
otherwise would put the Department in an untenable position every time a felon under
community custody claimed his or her safety was at risk and asked to move outside of the
supervising county.
For these reasons, we conclude that Mr. Hopovac did not have a special
relationship with the Department under Restatement§ 314A(4), and the Department did
not owe him, or any felon subject to standard community custody conditions, a duty of
care. 3 The trial court did not err when it summarily dismissed Mr. Hopovac's tort claim.
3
The Department also argues it owed no duty to Mr. Hopovac because he
absconded from supervision. See Hustedv. State, 187 Wn. App. 579,586,590,348 P.3d
776, review denied, 184 Wn.2d 1011, 360 P.3d 817 (2015) (holding the Department has
no duty to control an offender who absconds from supervision because it no longer
"take[ s] charge" of the offender under Restatement § 319). Because our above analysis is
dispositive, we decline to address this argument. State v. McCord, 125 Wn. App. 888,
895, 106 P.3d 832 (2005).
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No. 33992-1-111
Hopovac v. Dep 't of Corr.
Affirmed.
Lawrence-Berrey, J.
j
I CONCUR:
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No. 33992-1-III
FEARING, C.J. (concurring in part and dissenting in part) -The majority justifies
its ruling on four propositions. First, Washington earlier adopted Restatement (Second)
of Torts§ 314A (Am. Law Inst. 1965). Second, the Department of Corrections' duty to
protect others from criminal acts of third parties extends to felons in community custody,
not only those in prison. Third, the Department of Corrections, as a matter of law, is not
liable for denying Ahmet Hopovac the opportunity to use a gun to protect himself since
Hopovac's status as a felon already precluded his possession of a gun. Fourth, the
Department of Corrections, as a matter oflaw, is not liable for precluding Hopovac's
flight from Grant County because the opportunity to flee town, the county, or the state
does not qualify as "normal opportunities for protection."
I agree with the majority's first three rulings. I disagree with the fourth ruling.
Admittedly an exhaustive search finds no decision wherein a court held that a question of
fact existed as to the liability of a government entity because parole conditions precluded
travel outside a county or that the ability to travel beyond one's county constitutes a
"normal opportunity for protection." Nevertheless, the majority cites no authority to
support its position to the contrary. The majority also fails to analyze what constitutes a
No. 33992-1-III
Hopovac v. Dep 't of Corr. (concurring in part and dissenting in part)
normal opportunity for protection and omits any explanation for stating that disappearing
from one's community does not constitute a normal opportunity for protection.
Subsection 4 of Restatement (Second) of Torts § 314A provides:
(4) One who is required by law to take or who voluntarily takes the
custody of another under circumstances such as to deprive the other of his
normal opportunities for protection is under a similar duty to the other.
(Emphasis added.) The words "normal" and "opportunity" are key to our analysis. The
terms may need no defining, but the Cambridge English Dictionary defines "normal" as
ordinary or usual; as would be expected.
CAMBRIDGE ENGLISH DICTIONARY ONLINE,
http://dictionary.cambridge.org/us/dictionary/english/normal (last visited Feb. 1, 2017). The
same dictionary defines "opportunity" as
an occasion or situation which makes it possible to do something that
you want to do or have to do, or the possibility of doing something.
CAMBRIDGE ENGLISH DICTIONARY ONLINE,
http://dictionary.cambridge.org/us/dictionary/english/opportunity (last visited Feb. 1, 2017).
Under the Restatement, fleeing one's town to avoid violence need not be an ordinary step
actually taken by those in danger. Running need not be a typical measure exercised.
Instead, skedaddling need only be an ordinary possibility.
Because of a sheltered, privileged life and because of a large, formerly athletic
frame, I have never needed or sought protection from a mob, a gang, an angry spouse, or
anyone wishing to physically harm me. Nevertheless, from my decades of reading
newspapers, I know that Mafia snitches must often escape their respective communities
2
No. 33992-1-III
Hopovac v. Dep 't of Corr. (concurring in part and dissenting in part)
and assume another identity. From my experience as a lawyer, I comprehend that wives
of abusive husbands must flee or would benefit by fleeing to another county or state.
Thus, a parole condition eliminating one's liberty to escape to another county or beyond
may interfere with a normal opportunity for protection. At least, a trier of fact should
determine whether flight constitutes an ordinary possibility for protection.
The criminal justice system depends extensively on the cooperation of informants.
Although Ahmet Hopovac may not have been an informant, a criminal gang considered
him an informant. Public policy should encourage state protection of informants or
purported informants facing the wrath of a mob, about whom the informant tattled.
The majority additionally concludes that Ahmet Hopovac fails to present a
question of fact as to the application of Restatement (Second) of Torts § 314A because
the Restatement section refers to "normal opportunities for protection." The majority
emphasizes the plural nature of the word "opportunities." From this emphasis, the
majority concludes that any plaintiff relying on the Restatement language must present
evidence that his custodian thwarted more than one opportunity for protection. Ahmet
Hopovac only posited one legitimate opportunity.
The majority fails to recognize the universal view that use of the singular includes
the plural, and the plural the singular. RCW 70.74.010; Yousoufian v. Office of King
County Exec., 152 Wn.2d 421,434, 98 P.3d 463 (2004); State v. Nugent, 20 Wash. 522,
523, 56 P. 25 (1899); State v. Veazie, 123 Wn. App. 392, 396, 98 P.3d 100 (2004); State
v. Wiggins, 114 Wn. App. 478, 483, 57 P.3d 1199 (2002); Hinton v. Johnson, 87 Wn.
3
No. 33992-1-III
Hopovac v. Dep 't of Corr. (concurring in part and dissenting in part)
App. 670,675,942 P.2d 1061 (1997); State v. Welty, 44 Wn. App. 281,283, 726 P.2d
472 (1986). Since courts apply the Restatement verbatim, Restatement sections function
as statutes. RCW 1.12. 050, concerning construction of statutes, declares:
Words importing the singular number may also be applied to the
plural of persons and things; words importing the plural may be applied to
the singular ....
The majority's reading the plural to exclude the singular would lead to silly
consequences. A motel might post a placard that declares: "Please no pets." John
Steinbeck could sleep with Charley as long as he traveled with only Charley. Steinbeck
would have brought only one pet, not pets. A tavern may post a sign that reads: "No
minors allowed." According to the majority, Holden Caulfield could enter the tavern if
he is the only underage patron.
To illustrate further the error of the majority, assume that the Restatement reads as
follows:
(4) One who is required by law to take or who voluntarily takes the
custody of another under circumstances such as to deprive the other of a
normal opportunity for protection is under a similar duty to the other.
Under the majority's reading of the rule, if the custodian deprived the one in custody of
two opportunities to protect himself, the custodian would avoid liability because the rule
only mentions the singular. If the majority holds that plural cannot mean singular, the
logical extension of the holding is that singular cannot mean plural. So the custodian
would avoid liability the more the custodian deprives the ward of means of protection.
4
No. 33992-1-III
Hopovac v. Dep 't of Corr. (concurring in part and dissenting in part)
I would deny the State's summary judgment motion to the extent the State argues
it had no obligation to protect Ahmet Hopovac because of the community custody
condition prohibiting travel outside Grant County. I would address, with the majority,
the State's alternative argument that Ahmet Hopovac, as a matter of law, forewent
Department of Corrections' liability under Restatement (Second) of Torts § 314A because
of his behavior in violating community custody conditions, particularly his socializing'
with others engaged in criminal activity and his failing to contact the police. Otherwise, I
would leave to a jury the questions of whether the Department of Corrections breached a
duty and whether the breach caused Hopovac injury.
I concur in part and dissent in part.
5