Washington Dept. of Corrections Not Liable for Death of Domestic Violence Victim

The Department of Corrections (DOC) has a duty to supervise offenders who are released on supervised probation.  The DOC is generally not liable for Washington personal injuries caused by a probationer, unless it acts with gross negligence in supervising him or her.  To show gross negligence, a plaintiff must show that the DOC substantially breached its duties and acted without even slight care.

The Washington Supreme Court recently considered whether the DOC was liable for the murder of a woman by a man on probation.

According to the Court’s opinion, the probationer received a suspended sentence in 2010 for misdemeanor violation of a court order that prohibited him from contacting the victim, on the condition he serve 180 days in jail and 24 months’ probation. He physically assaulted and threatened to kill the victim in 2011, resulting in a guilty plea to misdemeanor assault and felony harassment.  This sentence also included 24 months of probation.  The court ordered a number of conditions, including prohibiting contact with the victim.

Both probation periods tolled during confinement, so the DOC was actively supervising him on the 2010 misdemeanor probation and the 2012 misdemeanor probation following his release from prison after serving the felony sentence.  According to the opinion, a DOC victim services liaison contacted the victim four times to let her know the offender was about to be released.  The victim informed the liaison that she did not plan to resume a relationship with the probationer and intended to move to a new address.  The liaison did not request the new address.

The day after his release, the probationer contacted his DOC supervisor. He was not living at the location to which he had been released, so the supervisor told him to keep a weekly log of where he was staying, signed by someone at each location.  She did not discipline him for changing addresses without approval.

The supervisor tried to call the victim, but did not try the second number on file when she did not receive an answer.  She verified the probationer had begun the process to start domestic violence treatment.  She also contacted the victim liaison and was told the victim had moved and would call the police if the probationer contacted her.

The probationer reported for his second check-in on October 23.  He told the supervisor what he had done to enroll in domestic violence treatment and provided a log showing he had been staying with his mother.

The supervisor called the probationer’s mother on October 29.  His mother stated he “could live” with her, but did not confirm he had been staying there.  The supervisor checked with the victim liaison, who said she was not aware of any concerns with the mother’s address.

According to the opinion, the probationer killed the victim the next morning.  He had posted cryptic Facebook messages the day before suggesting he may go back to prison.  He was convicted of first degree murder and sentenced to 48 years.

The opinion stated the probationer, his mother, and the victim had all lied to DOC about the probationer’s living arrangements.   They actively hid the relationship from the DOC and the victim also hid the relationship from her mother and her best friend.

The victim’s mother sued the DOC, alleging it was grossly negligent in supervising the probationer.  She argued it should have more carefully monitored the probationer’s whereabouts due to his history of domestic violence, violating no-contact orders, and threatening to kill the victim.

The trial court granted summary judgment in favor of the DOC, finding its actions did not constitute gross negligence.  The appeals court reversed, finding sufficient evidence to move forward. The Washington Supreme Court granted review.

The DOC is generally not responsible for keeping criminal defendants from hurting others, unless there is a special relationship.  A special relationship can exist if the DOC “takes charge” of an individual it knows or should know is likely to injure others if not controlled.  Where simple negligence applies, the take charge duty requires the use of reasonable precautions to prevent reasonably foreseeable dangers arising from the individual’s dangerous propensities.  The DOC should consider the “criminal history and progress” during release and if the offender is likely to cause bodily harm, then it has a duty to use reasonable care to control him to prevent such harm.  The Court found the DOC had a take charge duty to supervise the probationer on both probations.

The Court then had to consider whether a reasonable jury could find the DOC’s acts or omissions constituted gross negligence.  The Court noted a person acts with gross negligence by exercising “substantially or appreciably” less care than a reasonably prudent person would use in similar circumstances.

On a summary judgment motion involving claims of gross negligence, the court should first identify the failure alleged by the plaintiff, then decide if there is substantial proof the defendant failed to exercise slight care as to that specific failure.  Here, the plaintiff alleged the DOC failed to prevent the probationer from contacting the victim.  Summary judgment is not appropriate if reasonable minds could differ on whether the DOC failed to exercise slight care in supervising the probationer with regard to the no-contact order and the condition that he not commit any criminal offenses.  The court must consider all of the evidence, including both what the defendant did and did not do.  The appeals court found a reasonable jury could find the DOC was grossly negligent in failing to supervise the no contact order.  The DOC knew about the probationer’s history of violating no-contact orders, but the supervisor did not try to call both numbers to reach the victim, did not ask the probationer’s mother to confirm he was living with her, and failed to assume the defendant lied when he reported living with his mother.

The Supreme Court noted, however, that the appeals court did not consider the actions the DOC had taken to prevent contact.   A victim liaison contacted the victim about the probationer’s release.  The DOC supervisor contacted the liaison, who advised the victim had moved and planned to call the police if she saw the probationer.  The supervisor required the probationer to submit a log showing where he stayed each night, with a signature from a person at each location and the defendant’s mother signed the log.  The supervisor also confirmed the liaison did not have any concerns about the probationer staying at his mother’s address.

The plaintiff argued the DOC should have done more to discover the truth about the probationer’s whereabouts.  The Court found, however, that the plaintiff failed to present substantial evidence showing the DOC was grossly negligent.  In considering both what the DOC did and did not do as it related to the no-contact order, the Court found reasonable minds could not differ in finding the DOC exercised slight care.  The Court reversed the appeals court and affirmed the trial court’s order granting summary judgment in favor of DOC.

If you have been injured by someone else’s negligence, a skilled Washington personal injury attorney can help you seek compensation from the responsible parties.  Call Blair & Kim, PLLC at (206) 622-6562 to set up a consultation.

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