Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400 (Wash. 06/24/1999)

[1] Washington Supreme Court


[2] No. 66136-7


[3] 138 Wash.2d 265, 979 P.2d 400


[4] June 24, 1999


[5] JOHN HERTOG, GUARDIAN AD LITEM AND ON BEHALF OF S.A.H., A MINOR, RESPONDENT,
v.
CITY OF SEATTLE AND KING COUNTY, PETITIONERS.


[6] Source of Appeal: Appeal from Superior Court, King County; 94-2-33347-0 Honorable Nancy A. Holman, Judge.


[7] Counsel: Counsel for Petitioner(s) Charles C. Parker King Co Pros Aty-Civil Dv 700 5th Ave Ste 3900 Seattle, WA 98104 Marcia M. Nelson Seattle City Attorney's Office Assistant City Attorney 600 4th Ave Fl 10 Seattle, WA 98104 Counsel for Respondent(s) Janet L. Rice Schroeter Goldmark & Bender 500 Central Bldg. 810 3rd Ave Seattle, WA 98104 Amicus Curiae on behalf of Washington State Trial Lawyers Assoc Gary N. Bloom Harbaugh & Bloom P.o. Box 1461 Spokane, WA 99210 Daniel E. Huntington Richter-Wimberley PS 1300 Seafirst Fin Ctr W 601 Riverside Spokane, WA 99201 Debra L. Stephens 6210 E Lincoln Ln Spokane, WA 99207-9220 Amicus Curiae on behalf of Northwest Women's Law Center Christine Lamson 7119 Beach Dr SW Seattle, WA 98136 Todd Maybrown Allen Hansen & Maybrown PS 600 Univ. St Ste 3020 Seattle, WA 98154 Amicus Curiae on behalf of Family and Friends of Violent Crime John R. Connelly Jr. Gordon Thomas Honeywell PO Box 1157 Tacoma, WA 98401-1157


[8] The opinion of the court was delivered by: Madsen, J.


[9] Oral Argument Date: 11/17/1998


[10] Judges: Authored by Barbara A. Madsen Concurring: Charles Z. Smith Charles W. Johnson Richard B. Sanders Visiting Judge Philip A. Talmadge Dissenting: Gerry L. Alexander Barbara Durham Richard P. Guy


[11] EN BANC


[12] In Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992), we held that a state parole officer has a duty to protect others from reasonably foreseeable danger resulting from the dangerous propensities of parolees. At issue in this case is whether a similar duty exists on the part of a city probation counselor and a county pretrial release counselor. We conclude that a duty exists in each situation, and that material issues of fact preclude summary Judgement. Further, materials sought by plaintiff concerning treatment for sexual deviancy and substance abuse are discoverable under the facts here. The Court of Appeals is affirmed.


[13] FACTS


[14] On October 6, 1990, Barry Lee Krantz raped six-year-old S.A.H. in her home. At the time, Krantz was on Seattle Municipal Court probation for a 1989 lewd conduct conviction. He was also on pretrial release while awaiting King County charges on a 1990 sexually motivated burglary. In this negligence action brought against both the City of Seattle (City) and King County (County), John Hertog,*fn1 as guardian ad litem for S.A.H., contends that the city probation counselor and the county pretrial release counselor negligently supervised Krantz, and this negligence proximately caused the rape. The individual counselors are not being sued.


[15] Both the City and the County moved for summary Judgement arguing they had no duty to protect others from foreseeable danger posed by Krantz. Their motions were denied. The Court of Appeals granted interlocutory discretionary review and affirmed the rulings denying summary Judgement. That court also agreed with plaintiff's claim that the trial court incorrectly denied plaintiff's motion to compel the City to provide discovery of Krantz's treatment records for substance abuse and sexual deviancy. The following are facts relating to the asserted liability of the City and the County, respectively.


[16] Plaintiff alleged in the complaint that the City and its employee, probation counselor Mr. Hoover, negligently supervised Krantz while he was on probation and this negligence led to the rape.*fn2


[17] Krantz has a history of substance abuse and offenses involving sexual deviancy. Krantz was convicted of lewd conduct in 1980, 1987, and twice in 1989. Hoover was his probation counselor for the 1987 offense and one of the 1989 offenses. Krantz's offenses occurred while he was under the influence of drugs and alcohol. Following the 1987 conviction his 90-day sentence was suspended on condition that he attend and complete a drug-alcohol program. During an evaluation for the program, Krantz told the evaluator he had exposed himself to approximately 400 women. The evaluator described Krantz's deviancy as predatory, premeditated and compulsive, noting he showed little remorse or empathy with his victims. The evaluator described him as a "poly drug abuser" and said that Krantz's drug use was a "disinhibitor" which "impair{ed} Judgement and weaken{ed} controls." Clerk's Papers (CP) at 445. Treatment and testing procedures were recommended. Krantz violated probation conditions many times, including failing to participate in treatment, substance abuse, and exposing himself on several occasions in May 1988. The treatment facility informed Hoover of the violations, and recommended court review. Following a court hearing, additional probation conditions were imposed, including drug treatment. Krantz again violated conditions of probation, and his probation was revoked and he was sentenced to 20 days in jail.


[18] While on probation for the 1987 conviction, Krantz committed another lewd conduct offense for which the Bellevue District Court sentenced him in February 1989 to a year in jail, suspended on condition he attend and complete an in-patient sexual deviancy program, attend Alcoholics Anonymous (AA) meetings, and consume no drugs. Krantz failed to meet with his Bellevue probation counselor, and a bench warrant was issued. Also, he committed another lewd conduct offense, involving following a woman to her apartment building, and exposing himself and masturbating after she had shut the glass entrance door to the building behind her and turned to look at him. Krantz pleaded guilty to this lewd conduct in July 1989, and received a 180-day sentence, with 176 days suspended. Hoover was Krantz's probation counselor for this offense as well as the 1987 lewd conduct conviction.


[19] When Krantz failed to appear for a meeting with Hoover, another bench warrant was issued. Krantz was arrested and the court required that he participate in sexual deviancy evaluation and treatment. He was arrested on the Bellevue bench warrant in November 1989 and jailed until January 1990. After his release from jail, he met with Hoover, who determined that Krantz required a high level of supervision. Krantz met with Hoover monthly as required, but failed for some time to make any progress in arranging for sexual deviancy treatment. Krantz did attend narcotics anonymous meetings sporadically. In May 1990, Krantz began sexual deviancy treatment with Timothy Smith, a sexual deviancy counselor. In June, Smith characterized Krantz as a "high risk offender" and recommended that he be "locked up for as long as possible" should he reoffend. CP at 41-42.


[20] On June 20, 1990, Krantz admitted to Hoover that he had broken into the home of a nearby neighbor when she was not at home, masturbated, and had taken some of her underclothing. Hoover advised Krantz to turn himself in to the police, and relayed the information to the city attorney's office and the police. (These events led to the 1990 King County charges of sexually motivated burglary for which Krantz was on pretrial release at the time of the rape.)


[21] Hoover recommended that Krantz's probation on the 1989 lewd conduct conviction be revoked. A hearing on the petition to revoke was held on July 30, 1990. At the hearing, Hoover informed the court that Krantz had used illegal drugs and that he had exposed himself several times while under supervision. Hoover also told the court about the burglary and that charges were being prepared. In addition, Hoover presented the court with Smith's July report, which explained that Krantz was being terminated from the sexual deviancy program because of the burglary and his probation violations involving use of drugs and alcohol and engaging in deviant behavior.


[22] Krantz submitted reports from Dr. Kenneth Von Cleve, a sexual deviancy psychologist, and Megan Kelley, who provides treatment for substance abuse, which stated that treatment could be provided to Krantz, although not if he was incarcerated. Von Cleve noted in his report that "{t}he most disturbing aspect of this case is the lack of monitoring that has been done." CP at 47. Based on the reports and recommendations for treatment, the court denied the petition to revoke probation and ordered Krantz to submit to alcohol treatment and sexual deviancy treatment with Von Cleve.


[23] Krantz signed a release allowing Dr. Von Cleve to disclose information to Seattle Municipal Probation Services: "I hereby consent to a mutual exchange of information between Kenneth Von Cleve, Sid Hoover, Seattle Municipal Probation. The purposes of the disclosures are to provide referral information and to inform Seattle Municipal Probation of diagnosis, attendance and nonattendance, treatment issues, progress, prognosis and completion." CP at 76.


[24] During the period of July 30, 1990, the date of the revocation hearing, and October 6, 1990, when Krantz raped S.A.H., Hoover scheduled only one face-to-face meeting with Krantz, and during the meeting told Krantz he would not see him again for six months. This decision was made according to the City's risk assessment plan. Hoover believed that Krantz was still at as great a risk to reoffend as he was when first placed on probation, however. Although Hoover said in a declaration that he received a call from Von Cleve in early August and Von Cleve told him Krantz was in sexual deviancy treatment and chemical dependency treatment, CP at 38, he also said in a deposition that he did not recall whether Von Cleve told him that any urinalysis tests had been done, CP at 498. Hoover also said in his declaration that in mid-September, when he did not receive a written report, he called Von Cleve, who verified that Krantz was in compliance with his probation conditions. CP at 38. Krantz said, however, that he saw Dr. Von Cleve only once between July 30 and October 6, and considered another man to have been his treatment provider. He did not recall having undergone any urinalysis testing. Krantz was using drugs and alcohol at least two weeks before the rape, and had consumed alcohol and cocaine on the night of the rape.


[25] When the City moved for summary Judgement, plaintiff submitted the affidavit of William T. Stough, an experienced state probation officer, who stated that in his opinion Hoover should have scheduled more face-to-face meetings after probation revocation was denied, and should have verified Krantz's participation in treatment and compliance with probation conditions. Stough said that Hoover should have scheduled a meeting earlier than the September 11, 1990, meeting which occurred, and opined that the delay communicated a lack of attention and lack of control to Krantz.


[26] Turning to plaintiff's claim against the county, the King County Prosecuting Attorney filed charges against Krantz of burglary with a sexual motivation as a result of Krantz's entry into his neighbor's home. Krantz voluntarily appeared to answer the charges, pleaded not guilty, and was granted pretrial release under certain conditions, including evaluation for substance abuse, and refraining from use or possession of any nonprescribed controlled substances.


[27] Krantz signed a supervised release agreement with King County pretrial release counselor Tyrone Lake. This contract contained provisions concerning court appearances, obedience to all laws, reporting to the Court Services Section at least three times weekly, notifying his counselor of any assignments or changes in court dates, securing of lawful employment approved by the counselor during the period of time he was "under supervision{,}" securing and maintaining a suitable residence, and supporting dependents and fulfilling financial obligations. CP at 453. The contract also required that Krantz would "actively cooperate and participate in any program established for me by the Court Services Section . . . {and} to participate in testing at the Unit and evaluations by clinical staff of the Unit or other agencies." Id. The contract required that Krantz not leave King County without written permission, that he possess no firearms, that he abstain from use of alcohol and nonprescribed drugs, and that he agree to submit to urinalysis and alcohol testing on the request of the counselor. Id. In addition, the contract provided Krantz would obtain alcohol/drug evaluation and follow all treatment recommendations.


[28] During the time that Lake was Krantz's pretrial release counselor, Krantz checked in with him nearly daily by phone and they met face-to-face seven times. Krantz was employed. Lake did not actually know of any violations of conditions of Krantz's pretrial release, but he did not determine whether any testing for substance abuse occurred nor did he direct any such testing. As noted, there is evidence that Krantz was using drugs and alcohol at least two weeks before the rape. Also, plaintiff seeks discovery of treatment records which may disclose additional violations, if any, of pretrial release.


[29] Stough's statement, offered in opposition to the County's motion for summary Judgement as well as the City's, includes his opinion that Lake failed to adequately supervise Krantz because he did not verify participation in a drug and alcohol treatment program nor did he verify that Krantz followed treatment recommendations. Stough opined that Lake should have determined whether Krantz had submitted to regular and random urinalysis tests, and that only such tests could show whether Krantz was abstaining from drug and alcohol abuse as required.


[30] As indicated, the trial court denied both the City's and the County's motions for summary Judgement, and the Court of Appeals affirmed. Hertog v. City of Seattle, 88 Wn. App. 41, 943 P.2d 1153 (1997), review granted, 134 Wn.2d 1024 (1998). The trial court also denied plaintiff's motion to compel discovery of Von Cleve's and Megan's treatment records. The Court of Appeals reversed this ruling. Both the City and the County sought discretionary review, which this court granted.


[31] ANALYSIS


[32] As this matter is here for review of the trial court's denial of summary Judgement, this court makes the same inquiry as the trial court, i.e., summary Judgement is proper where there are no genuine issues of material fact and the moving party is entitled to Judgement as a matter of law. Taggart, 118 Wn.2d at 199; CR 56(c). The facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Taggart, 118 Wn.2d at 199. Questions of law are reviewed de novo. Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995).


[33] Plaintiff alleges negligence on the part of the City and the County. The elements of a negligence cause of action are the existence of a duty to the plaintiff, breach of the duty, and injury to plaintiff proximately caused by the breach. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). Existence of a duty is a question of law. Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Breach and proximate cause are generally fact questions for the trier of fact. However, if reasonable minds could not differ, these factual questions may be determined as a matter of law. Sherman, 128 Wn.2d at 183.


[34] Existence of Duty Owed by City Probation Counselors


[35] The City maintains that it had no duty to protect Sarah from Krantz's dangerous propensities. In Taggart, 118 Wn.2d 195, 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. This holding followed the decision in Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983). There, we determined that whether a person has a duty to control the conduct of third persons to prevent harm to others is assessed by standards set forth in the Restatement (Second) of Torts:


[36] "There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless"


[37] "(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or"


[38] "(b) a special relation exists between the actor and the other which gives to the other a right to protection." Petersen, 100 Wn.2d at 426 (quoting Restatement (Second) of Torts sec. 315 (1965)). Section 315 states an exception to the common law rule that one has no duty to prevent a third party from causing harm to another. Taggart, 118 Wn.2d at 218. This special relation exception is also an exception to the public duty doctrine. Noting that the public duty doctrine was not addressed in Petersen, the court in Taggart stated that Petersen's imposition of liability on the state in that case presupposed that the doctrine was inapplicable, "in other words," Petersen "effectively created another exception to the doctrine, and it has been so regarded in later cases." Taggart, 118 Wn.2d at 219 n.4 (citations to later cases omitted).


[39] A duty will be imposed under sec. 315 only where there is a "'definite, established and continuing relationship between the defendant and the third party.'" Taggart, 118 Wn.2d at 219 (quoting Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). This relationship exists between a parole officer and his or her parolees as a result of RCW 72.04A.080, which provides that parolees are subject to supervision by the Department of Corrections and that parole officers are charged with preparing progress reports and guiding and supervising parolees "within the conditions of a parolee's release from custody." Taggart, 118 Wn.2d at 219.*fn3 Of several special relationships described in the Restatement (Second) of Torts, that described in sec. 319 is most relevant to parole officers and parolees:


[40] "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." Restatement (Second) of Torts sec. 319 (1965). A parole officer takes charge of the parolee because {t}he State can regulate a parolee's movements within the state, require the parolee to report to a parole officer, impose special conditions such as refraining from using alcohol or undergoing drug rehabilitation or psychiatric treatment, and order the parolee not to possess firearms. The parole officer is the person through whom the State ensures that the parolee obeys the terms of his or her parole. Additionally, parole officers are, or should be, aware of their parolees' criminal histories, and monitor, or should monitor, their parolees' progress during parole. Taggart, 118 Wn.2d at 220. In Taggart we specifically rejected the approach of some cases from other jurisdictions where courts had declined to find a duty on the part of parole officers because they do not have a custodial relationship with parolees. Id. at 222-23. Instead, we held "that a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship." Id. at 223.


[41] While parole officers must perform "extremely difficult supervisory tasks," we said in Taggart that the duty announced there only arises after it has been shown the parole officer lacks absolute immunity, i.e., the officer's actions were not part of any judicial or quasi-judicial process, and lacks qualified immunity, i.e., the officer failed to perform statutory duties according to procedures dictated by statute and superiors. Id. at 224.


[42] Following Taggart, we held in Savage v. State, 127 Wn.2d 434, 899 P.2d 1270 (1995), that the qualified personal immunity for parole officers recognized in Taggart does not extend to the State. Thus, if the individual parole officer fails to take reasonable care to control his or her parolee, but nevertheless does so while acting in furtherance of a statutory duty and in substantial compliance with the directives of superiors and relevant regulatory guidelines, the parole officer enjoys qualified immunity, but that immunity does not run to the State. "{M}aintaining the potential of state liability, as established in RCW 4.92 {abrogation of sovereign immunity}, can be expected to have the salutary effect of providing the State an incentive to ensure that reasonable care is used in fashioning guidelines and procedures for the supervision of parolees." Id. at 446. Accordingly, following Savage, a determination that the individual officer has qualified personal immunity does not resolve the question of duty on the part of the employing governmental agency.


[43] The City maintains that Taggart and Savage were wrongly decided and should be overruled because parole officers do not have any real control over the day to day lives and actions of parolees. However, this same argument was carefully considered and rejected in Taggart. Further, our decision in Taggart expressly stated that the Legislature could limit or eliminate the duty recognized there by passing legislation granting further immunity. Taggart, 118 Wn.2d at 224. The Legislature has not enacted such legislation.


[44] Taggart is well-grounded in tort principles which apply equally to private and to governmental entities, in the absence of sovereign immunity. See RCW 4.92. Its foundations are the common law principles set forth in Petersen and the Restatement (Second) of Torts sec.sec. 315, 319 (1965). Defendants have offered no persuasive argument for abandoning our analysis in Taggart. We decline to overrule Taggart or Savage.


[45] In the alternative, the City argues that whatever justification there may be for the decisions in Taggart and Petersen, the same justification does not apply in this context. In Taggart, the City urges, the parole officers had the power to obtain full custodial control by arresting the parolee -- authority which a probation counselor lacks over a misdemeanant probationer. Here, the City argued, Hoover's authority only permits that he asks a municipal court Judge to revoke probation.


[46] We decline to make the distinction for which the City argues. First, Taggart does not state that the authority to arrest is a necessary requirement to the duty it announced. While the power to arrest enables a parole officer to take full custodial control, custodial control is not required. The relevant inquiry is the relationship of the officer with the parolee. A probation counselor is clearly in charge of monitoring the probationer to ensure that conditions of probation are being followed, and has a duty to report violations to the court.


[47] Second, the fact that a probation counselor must seek revocation through a court does not preclude existence of duty, as Petersen illustrates. Petersen involved a negligence claim brought by a plaintiff who had been injured in an automobile accident where the other driver was a recently released state hospital psychiatric patient who was under the influence of drugs. The court held that a special relation exists between a state psychiatrist and his or her patient such that when the psychiatrist determines or should determine that the "patient presents a reasonably foreseeable risk of serious harm to others, the psychiatrist has 'a duty to take reasonable precautions to protect anyone who might foreseeably be endangered.'" Taggart, 118 Wn.2d at 218-19 (quoting Petersen, 100 Wn.2d at 428). The psychiatrist in Petersen knew that the patient was a potentially dangerous person whose behavior was unpredictable and who was likely to have delusions and hallucinations from taking the illegal drug angel dust, particularly if he stopped taking his prescribed medication. Petersen, 100 Wn.2d at 428. The psychiatrist also thought it likely that the patient would revert to using angel dust and was aware of the patient's reluctance to take the prescribed medication. Id. We concluded that the psychiatrist breached the duty owed, by failing to petition the court for a 90-day commitment or to take other reasonable precautions to protect those who might be foreseeably endangered by the patient's drug-related mental problems. Id. at 428-29.


[48] The psychiatrist in Petersen had no authority to confine the patient without seeking a court order. Similar to the circumstances in Petersen, the fact that a probation counselor cannot act on his or her own to arrest a probationer or to revoke probation is not dispositive on the issue of duty.


[49] The City suggests, though, that misdemeanants on probation cannot be said to pose the same risk of harm to the public as felons on parole. The issue is not whether misdemeanants as a class might pose an equal or lesser risk of harm than convicted felons. Instead, under sec. 319 the issue is whether a particular individual poses such a risk of harm.


[50] Finally, the City maintains that plaintiff failed to identify any standard of conduct applicable to Hoover. However, Taggart identifies the standard of care as that set forth in sec. 319 of the Restatement (Second) of Torts.*fn4


[51] We conclude that Taggart controls this case, and that the City and its probation counselors have a duty to control municipal court probationers to protect others from reasonably foreseeable harm resulting from the probationers' dangerous propensities.


[52] Breach of Duty and Proximate Causation


[53] The City maintains that under Petersen, Taggart, and Savage a parole officer or a probation counselor violates a duty only when they fail to seek to have the dangerous individual incarcerated. Here, the City maintains, Hoover sought to have Krantz's probation revoked and therefore met the standard of reasonable care as a matter of law. The City maintains there was nothing more that Hoover could have done.


[54] Plaintiff contends that after the court declined to revoke Krantz's probation on July 30, 1990, the City completely abdicated its responsibility to continue to supervise Krantz. Hoover saw Krantz only once between the revocation hearing and the time Krantz committed the rape. Hoover stated this decision was made according to the City's risk assessment plan to put probationers on less strict probation status, but also said that Krantz was still at as great a risk of reoffending as when first put on probation. Further, at the single meeting, Hoover told Krantz he would not see him again for six months, which was, according to plaintiff, consistent with the City's internal rules which required that Krantz meet with his probation officer only once in the six months following the revocation hearing. Hoover did not contact the King County pretrial release counselor to see if Krantz's use of drugs or alcohol had been checked by the County, nor, viewing the facts and inferences in a light most favorable to plaintiffs, did he determine whether Krantz was subjected to urinalysis or other drug or alcohol tests by the treatment providers. Krantz's prior offenses were linked to use of drugs and alcohol. Stough's affidavit supports plaintiff's claim that Hoover's supervision of Krantz was inadequate (as the Court of Appeals noted, there is nothing in the record showing that the City challenged Stough's affidavit).


[55] Viewing the facts and reasonable inferences therefrom in the light most favorable to plaintiff, there remains a genuine issue of material fact as to whether Hoover or the City or both breached a duty to control Krantz so as to protect others from the risk of harm he posed. In this regard, as indicated, the trial court commented that Hoover enjoyed personal immunity. This Conclusion is correct, insofar as Hoover acted in furtherance of a statutory duty and in substantial compliance with the directives of superiors and relevant regulatory guidelines. See Taggart, 118 Wn.2d at 216. However, if Hoover's actions do not meet this standard, then liability can be premised on his negligent failure to carry out his supervisory responsibilities. Even if Hoover is entitled to qualified personal immunity, however, under Savage the City may still be liable for failing to use reasonable care in fashioning guidelines and procedures for the supervision of probationers.


[56] The next question is whether there is a fact issue as to proximate cause, which consists of cause in fact and legal causation. Taggart, 118 Wn.2d at 225-26; Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Cause in fact concerns "but for" causation, events the act produced in a direct unbroken sequence which would not have resulted had the act not occurred. Taggart, 118 Wn.2d at 226; Hartley, 103 Wn.2d at 778. The City argues that based on the knowledge that he had, Hoover could have done nothing to prevent the rape. The City premises this argument on the fact that the record thus far shows that Krantz used drugs and alcohol for two weeks prior to the rape, and that had Hoover known of that substance abuse, there was inadequate time for a petition for revocation of probation to be effected. It should be added that the information that Krantz consumed drugs and alcohol during that period is shown by a presentence report prepared after the rape which Hoover could not have known about.


[57] The Court of Appeals reasoned, however, that if Hoover had attempted to learn earlier whether monitoring by random urinalysis was being done and learned it was not, he could have sought revocation earlier. That court noted that treatment records of Dr. Von Cleve and Megan Kelley will clarify whether earlier violations occurred. Hertog, 88 Wn. App. at 57. Thus, the court declined to hold that no issue of fact remains as to cause in fact. This Conclusion is correct. As discussed below, we agree that the treatment records are discoverable. The records may show whether Krantz was in compliance with his probation conditions. Simply because Hoover sought revocation once does not mean that the duty to use reasonable care in supervision is forever satisfied. Further, the fact he did not actually know of probation violations does not answer the question whether he should have known of any such violations. Under Krantz's release agreement with Dr. Von Cleve, treatment and other information could be exchanged with Hoover, yet there is a material fact question as to whether Hoover sufficiently inquired about urinalysis or other testing.


[58] Legal causation "rests on considerations of policy and common sense as to how far the defendant's responsibility for the consequences of its actions should extend." Taggart, 118 Wn.2d at 226; Hartley, 103 Wn.2d at 779. Legal causation is intertwined with the question of duty. Taggart, 118 Wn.2d at 226; Hartley, 103 Wn.2d at 779-80 (quoting William L. Prosser, Handbook of the Law of Torts 244-45 (4th ed. 1971)). While the same policy considerations may be relevant to both elements, existence of a duty does not automatically satisfy the requirement of legal causation, however. Schooley, 134 Wn.2d at 479.


[59] Here, the City maintains that cases in which legal causation was found lacking are irreconcilable with the duty announced in Taggart. However, in none of the cases was the third party released to the supervision of a probation or parole officer, and in none was a special relationship found by the court. Johnson v. State, 68 Wn. App. 294, 841 P.2d 1254 (1992); Baumgart v. Grant County, 50 Wn. App. 671, 750 P.2d 271 (1988); Hartley, 103 Wn.2d 768. Keeping in mind that establishment of a duty does not resolve the proximate cause issue, there is nevertheless a distinction between circumstances where a special relationship is found and where none is found. Policy considerations involved in imposing the duty, such as the parole officer's taking charge of the parolee with the ability and responsibility to supervise the parolee, and the knowledge of the one taking charge of dangerous propensities posing a harm to others, also suggest that where such a relationship is not found, proximate causation may not be so readily found either. Where a special relation exists based upon taking charge of the third party, the ability and duty to control the third party indicate that defendant's actions in failing to meet that duty are not too remote to impose liability. See generally McCoy v. American Suzuki Motor Corp., 136 Wn.2d 350, 360, 961 P.2d 952 (1998). Accordingly, we do not find the cases irreconcilable.


[60] Lastly, on this question, we perceive that the City's argument on legal causation essentially again asks for reversal of Taggart, which we decline to do.


[61] Discovery of Treatment Records


[62] The City contends that the Court of Appeals erred in holding that the treatment records of Dr. Von Cleve and Megan Kelley are discoverable, arguing that they are protected by the psychologist-client privilege. The City relies upon State v. Sullivan, 60 Wn.2d 214, 373 P.2d 474 (1962) for the proposition that treatment records are privileged even where a court orders a mental health evaluation with the expectation that the psychiatrist would also treat the defendant. The City also argues that in signing the release with Dr. Von Cleve Krantz waived the privilege only for the limited purpose of allowing mental health professionals to report to his probation counselor.


[63] CR 26(b)(1) provides that "{p}arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." (Emphasis added.) RCW 18.83.110 provides that "{c}onfidential communications between a client and a psychologist shall be privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between attorney and client . . . ."


[64] The Court of Appeals held that in light of the release signed by Krantz with Dr. Von Cleve, Krantz had no reasonable expectation that his communications with Von Cleve would remain confidential. The court said that "Krantz knew or reasonably should have known that his communications with Dr. Von Cleve and the records maintained by the psychologist would be used to monitor performance for probation purposes." Hertog, 88 Wn. App. at 49. We agree.


[65] "The psychologist-client privilege is not applicable when it is clear that the communications between the psychologist and the client are not intended to be confidential. J.N. v. Bellingham School Dist. No. 501, 74 Wn. App. 49, 871 P.2d 1106 (1994)." 4 Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice, 4 (4th ed. Supp. 1997). While the issue of whether information is privileged is a "harder case where the purpose of the communication is treatment," there is no expectation of confidentiality where the client is informed that there will be disclosure to a third party. State v. Warner, 125 Wn.2d 876, 892 n.8, 889 P.2d 479 (1995).


[66] Thus, regardless of whether treatment is at issue, the key is that the communications between Von Cleve and Krantz were not confidential because Krantz had signed a release agreeing to their disclosure to a third party -- Hoover and the City's probation department. Sullivan, relied upon by the City, did not involve the same situation. Moreover, because the privilege did not attach in the first place, in that the communications were not confidential, there is no issue of waiver of the privilege. Therefore, we do not reach the City's argument that a limited waiver occurred.


[67] The Court of Appeals reasoned that in light of the release, Krantz had no expectation of confidentiality as to Kelley's records, either. Because evaluation and treatment were imposed by the court as conditions of probation, and in light of Krantz's knowledge that treatment issues with Dr. Von Cleve would be disclosed, we agree that Krantz could not reasonably expect the communications with Kelley to remain confidential insofar as the statutory psychologist-client privilege is concerned. Moreover, as the Court of Appeals also correctly noted, the record does not establish that Kelley is a mental health professional within the meaning of the statutory privilege. The City has not responded to this observation.


[68] RCW 70.96A.150 is also at issue. That statute pertains to records of alcoholics and intoxicated persons and states in relevant part that "{t}he registration and other records of treatment programs shall remain confidential. Records may be disclosed . . . (b) if authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause . . . ." RCW 70.96A.150(1). The Court of Appeals reasoned that "good cause" should be defined as for discovery purposes:


[69] "'Good cause' for discovery is present if information sought is material to moving party's trial preparation. Such requirement for discovery and production of documents is ordinarily satisfied by a factual allegation showing that requested documents are necessary to establishment of the movant's claim or that denial of production would cause moving party hardship or inJustice." Hertog, 88 Wn. App at 51 (quoting Black's Law Dictionary 692 (6th ed. 1990) (citations omitted)).


[70] Where records of court-ordered treatment are sought under RCW 70.96A.150(1)(b) to establish civil liability for negligent supervision of probationers, we agree that "good cause" for discovery purposes satisfies the "good cause" requirement of the statute. In this case it may be crucial for plaintiff to show that Krantz did not comply with treatment conditions, because, if Krantz violated his probation, and if Hoover failed to adequately monitor compliance, then plaintiff may be able to show that Hoover failed to seek revocation at a time when revocation might have prevented the rape. Thus, the information in Kelley's records may well be necessary in establishing proximate cause.*fn5 We conclude good cause is established here.


[71] Finally, we note that under CR 26(c) the trial court can, on motion of a party or the person from whom discovery is sought, for good cause shown, make any protective order which Justice requires. This provision may have particular importance where alcohol treatment records are concerned.


[72] Existence of Duty Owed By County Pretrial Release Counselor


[73] The County maintains that it had no duty to control Krantz so as to protect others from reasonably foreseeable harm resulting from his dangerous propensities. The County urges that unlike the situations in Taggart and Savage, which concern post-conviction felony parole releases, its alleged liability concerns a defendant on pretrial release with no prior felony conviction who is presumed innocent of the charges against him.


[74] The County urges the Court to follow McKenna v. Edwards, 65 Wn. App. 905, 830 P.2d 385 (1992). There the Court of Appeals observed that since Edwards had not been convicted, he was presumed innocent and had the right to be free pending arraignment under the least restrictive conditions possible. The court said the same was not true in Taggart, where the criminals were on supervised parole. McKenna, 65 Wn. App. at 916.


[75] While true, the presumption of innocence does not determine whether a duty is owed. As Taggart demonstrates, the inquiry under sec.sec. 315 and 319 of the Restatement (Second) of Torts does not depend upon conviction, but rather on the relationship between the actor and the person posing foreseeable harm. Absent a "definite, established and continuing" relationship between a pretrial release counselor and the releasee, no duty arises. Taggart, 118 Wn.2d at 219. The duty under sec. 319 does not arise, either, unless the actor knows or should know of the danger to others posed by the individual. Whether an individual has been found guilty of a particular crime may be a relevant consideration, but not necessarily a dispositive one, particularly where there is a history of prior conduct showing dangerous propensities. Further, with the abolishment of sovereign immunity, the County's liability exposure is the same as a private entity, and cases like Petersen demonstrate that liability for third party conduct does not turn on a criminal conviction. Thus, the presumption of innocence does not control the question of the County's duty.


[76] The next question is whether quasi-judicial immunity shields the County. In Taggart, the court held that parole officers are entitled to absolute quasi-judicial immunity only for those functions they perform that are an integral part of a judicial or quasi-judicial proceeding. Thus when a parole officer performs functions such as enforcing the conditions of parole or providing the {parole} Board with a report to assist the Board in determining whether to grant parole, the officer's actions are protected by quasi-judicial immunity. But when the officer takes purely supervisory or administrative actions, no such protection arises. Taggart, 118 Wn.2d at 213.


[77] The County contends that quasi-judicial immunity applies where a court-ordered pretrial release is concerned. To the extent that the County assisted with the decision to order pretrial release, this argument is clearly correct under Taggart. Thus, if the County or its employees made reports to assist the court in deciding to release Krantz, that conduct is protected by quasi-judicial immunity. The County maintains, though, that as Krantz's pretrial release counselor Lake merely acted as an arm of the court, and that he had authority only to monitor compliance with conditions and report any violations to the prosecuting attorney who could then seek revocation of pretrial release. The County relies heavily upon McKenna in support of its claim that Lake did not supervise Krantz.


[78] In McKenna, Daniel Edwards was released on his own recognizance following his arrest on rape charges. His release was subject to conditions, including weekly contact with the corrections department, travel limitations, no possession of firearms or dangerous weapons, no contact with the victim, no consumption of alcohol, reporting to a treatment center for bi-weekly drug and alcohol monitoring, a 10 p.m. curfew, no consumption of nonprescribed drugs, no further criminal violations and residing with his parents. While on pretrial release, Edwards attended a "kegger" party, following which he shot one person and raped another.


[79] In a negligence action filed by the rape victim and survivors of the shooting victim, the court addressed the issue whether Spokane County Corrections was shielded by judicial immunity for its investigation and recommendation to release Edwards, which the court answered in the affirmative. The court also addressed whether the treatment facility or Corrections had a relationship with Edwards such that either had a duty under sec.sec. 315 and 319 of the Restatement (Second) of Torts to anticipate and control Edwards' conduct, and whether any duty was breached.


[80] The court in McKenna reasoned that there was order to supervise, no statute mandating supervision, and no agreement to supervise. In addition, there was no special knowledge of dangerous propensities that would warrant imposition of a duty on Corrections or the treatment facility. McKenna, 65 Wn. App. at 916, 918. As to Corrections, the court said that its duty was limited to ensuring that Edwards report weekly to the department and reporting any violations of pretrial release to the prosecutor. Id. at 916-17. The court also concluded that Corrections had no knowledge that would warrant imposing a duty to control Edwards because nothing in his history suggested he would murder and rape. Id. at 917.


[81] Unlike the situation in McKenna, here Krantz and Lake signed a supervised release contract which contained numerous conditions of release. Also, there is ample evidence that Lake knew or should have known that Krantz had a history of drug and alcohol abuse and sexual deviancy while abusing substances, that he was on probation for lewd conduct convictions in Seattle and Bellevue, and that the burglary for which he was on pretrial release was alleged to be sexually motivated.


[82] Lake also had received a copy of Dr. Von Cleve's report where Von Cleve expressed his opinion that Krantz required close monitoring. Thus, while Lake had no authority to arrest or impose conditions, he had, like the City's probation officer, the responsibility of monitoring Krantz for compliance with the conditions of his release. Accordingly, the County's reliance on McKenna is misplaced.*fn6


[83] Further, Taggart relied on cases which found no quasi-judicial immunity where probation officers failed to monitor compliance with conditions of probation or allowed the probationer to violate such conditions. Taggart, 118 Wn.2d at 211-12 (discussing A.L. v. Commonwealth, 402 Mass. 234, 521 N.E.2d 1017 (1988) and Acevedo v. Pima County Adult Probation Dep't, 142 Ariz. 319, 690 P.2d 38, 44 A.L.R.4th 631 (1984)). Thus, under Taggart, monitoring compliance with probation conditions is not protected by quasi-judicial immunity.


[84] The County also maintains that if it has a duty to control Krantz, the effect will likely be that local governments would cease monitoring compliance with court imposed conditions of pretrial release, or would disclaim any supervisory control. The County additionally claims that in any case it is purely speculative whether any breach of conditions of pretrial release would result in court ordered incarceration thus preventing further criminal conduct. We will not speculate as to the local governments' and the legal and political systems' responses to imposition of a duty, nor will we deny potential liability on the basis that plaintiffs may have difficulty in proving their cases. Such concerns must be addressed to the Legislature which has the authority to limit government liability.


[85] We find no reason why the analysis in Taggart should not apply where a pretrial release counselor acts in a supervisory capacity. Plaintiff has alleged sufficient facts that Lake acted in a supervisory capacity.


[86] The remaining question is whether there is a genuine issue of material fact as to whether any duty was breached. As the County points out, Krantz checked in nearly daily by phone, and during the 29 days that Lake monitored Krantz they had 7 face-to-face meetings. Lake was not aware of any violations of Krantz's conditional release, and he referred the matter to the prosecutor's office when he learned of the rape. On the other hand, as plaintiff urges, the County administered no urinalysis tests nor confirmed that Krantz's treatment providers administered any test. Given Lake's knowledge of Krantz's history of substance abuse and sexual deviancy, and the conditions of supervised release that Krantz abstain from use of alcohol and nonprescribed drugs, as well as obtain alcohol and drug evaluation and follow treatment recommendations, there is an issue of fact as to whether Lake breached a duty to control Krantz.


[87] Similar to the situation with the City and its probation counselor, Lake may be protected by qualified personal immunity for some or all of his actions, depending upon whether he acted in furtherance of any statutory obligations and in substantial compliance with directives of supervisors and relevant regulations. Any such immunity does not run to the County, however, which may be liable for failure to use reasonable care in its directives and regulations.


[88] We hold that the County and pretrial release counselor Lake had a duty to control Krantz to protect others from reasonably foreseeable harm resulting from Krantz's dangerous propensities.


[89] Conclusion


[90] We hold that municipal probation counselors, county pretrial release counselors who have supervisory authority, and their employing agencies have a duty to protect others from reasonably foreseeable danger resulting from the dangerous propensities of probationers and pretrial releasees under their supervision. The Court of Appeals is affirmed.


[91] TALMADGE, J. (concurring) -- I concur because we are bound by our precedents, Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992), and Savage v. State, 127 Wn.2d 434, 899 P.2d 1270 (1995).*fn7 While I am compelled to agree with the majority's Disposition of the issues in this case, I feel compelled to comment on the policy rationale for the majority's decision. I agree completely with the Concurring opinion of Judge Agid in the Court of Appeals. Judge Agid wrote of Petersen and Taggart :


[92] "I continue to believe those decisions ignore the reality of what officials exercising the cursory supervision permitted by state and local law can do to "control" the behavior of dangerous or, as here, potentially dangerous criminals. The huge caseloads and limited resources available to supervising city, county and state officials simply do not permit them to keep track of, much less control, every potentially dangerous defendant." Hertog v. City of Seattle, 88 Wn. App. 41, 63, 943 P.2d 1153 (1997) (Agid, J., Concurring). These tragic cases result in what may well approximate strict liability for cities, counties, and the State. Even if every prescribed supervisory step is followed, if a released person harms someone there may always be a claim for ineffective supervision. Such claims will rarely be susceptible to summary Judgement because of the fact-intensive inquiry the claim requires. Nor in the case of pretrial supervision do the authorities even have the option of confining potentially dangerous persons. As Judge Agid noted, local officials cannot ignore the basic tenet of our criminal Justice system that a defendant is presumed innocent. Id.


[93] Our decisions in this area, such as Taggart and Savage, however well intentioned, are based on the exercise of 20/20 hindsight. We have imposed liability in retrospect when a release decision about a pretrial detainee, probationer, or parolee resulted in terrible consequences to a third person. But release decisions simply cannot be made with great precision. To the extent our case law may create what amounts to strict liability for ultimately unfortunate release decisions, the natural consequence will be that local governments will choose to end misdemeanor probation and/or any pretrial detention conditions rather than run the risk of extraordinary damage awards should they fail to foretell an individual will cause harm.


[94] Although Judge Agid asked us to reconsider our precedents, I believe the proper arena for reform is the Legislature. This situation cries out for legislative attention. Only the Legislature can properly balance legitimate concerns about public safety, the existence of liability should a released person cause harm to others, and the operation of pretrial release programs, probation services, and post-conviction community supervision programs operated by State and local government. A policy balance must be struck and it should be struck in the legislative process rather than here.


[95] The majority correctly applies the law, but the Legislature should take this opportunity to examine issues of pretrial release, probation, and post-conviction community supervision to strike the appropriate balance among public safety, liability, and the public policy behind such programs if it wishes those programs to continue at all.


[96] ALEXANDER, J. (concurring/Dissenting) -- The majority concludes that the City of Seattle and its probation counselors "have a duty to control municipal court probationers" in order "to protect others from reasonably foreseeable harm resulting from the probationers' dangerous propensities." Majority op. at 17. With that determination I agree.


[97] I part company with the majority, however, insofar as it holds that King County and its pretrial release counselor, Tyrone Lake, had a similar duty to control Barry Lee Krantz so as to protect others from reasonably foreseeable harm. In my view, the ability of King County pretrial release counselors, like Lake, to control persons under their supervision is so lacking that policy considerations dictate a Conclusion that they have no duty to protect third persons from being harmed by persons whom they are monitoring for the court.


[98] While the majority properly relied upon Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992), as support for finding a duty on the part of municipal court probation officers, it is not authority that lends itself to an analysis of pretrial release programs. I reach that Conclusion because a pretrial release program, such as the one operated by King County, is substantially different from the probation program operated by the City of Seattle or the parole supervision program that we examined in Taggart. One notable difference is that the pretrial release program deals only with persons who have been charged with a crime. Such persons are presumed innocent, and in most cases have a right to be released from custody pending trial under the "least restrictive . . . conditions." CrRLJ 3.2. Are we, as Judge Agid observed in her Concurring opinion at the Court of Appeals, to ignore this "basic tenet of our criminal Justice system" and hold that the government owes a duty to protect others from persons who are merely charged with a crime? Hertog v. City of Seattle, 88 Wn. App. 41, 63, 943 P.2d 1153 (1997) (Agid, J., Concurring), review granted, 134 Wn.2d1024, 958 P.2d 313 (1998). In my view, we should not. The majority sweeps this concern aside and concludes that the presumption of innocence, by itself, does not bear on whether a duty is owed to third parties by pretrial release counselors. It instead focuses on "the relationship between the actor and the person posing foreseeable harm." Majority op. at 27. This ignores the fact that the presumption of innocence is fundamental in determining the relationship between a defendant and a pretrial release counselor. The right to be free pending trial, subject to limited control by the court, is fundamental, and it makes little sense for this court to hold that a pretrial release counselor owes a duty to persons that a defendant may injure during the time he or she is awaiting trial.


[99] The most significant difference between the pretrial release program of King County and probation or parole supervision is that the pretrial release counselors, unlike probation officers, have very little control over defendants. Their ability to control persons on their caseload is so slight it cannot be said that their role is supervisory in the sense that we found significant in Taggart. These counselors, unlike probation or parole officers, are not authorized to arrest the people on their caseload nor can they impose conditions of release. In short, they simply do not, in the words of the Restatement of Torts, "take{} charge" of persons on their caseload to the degree that liability should be imposed on them if the person they are monitoring harms someone. Restatement (Second) of Torts sec. 319 (1965).


[100] The majority, while acknowledging that King County's pretrial release counselor had no authority to arrest or impose conditions on Krantz, notes that the counselor was responsible for monitoring Krantz to assure compliance with the conditions of release that had been established by the Judge. Monitoring a pretrial releasee is not the same as exercising supervisory control over that person. The individual who monitors a pretrial releasee can only report violations of the conditions of release to the Judge who ordered the release of the defendant. The decision about what should be done in the event of violations of the conditions of release lies with the Judge and is not within the direct control of the pretrial release officer. It does not seem appropriate, therefore, to hold that mere monitoring of compliance with court ordered conditions, when the defendant essentially has a right to be free pending trial, is a relationship that creates a duty to protect third parties from harm that may result from the dangerous propensities of a releasee. In this respect, I find the sound reasoning of the Court of Appeals in Metlow v. Spokane Alcoholic Rehabilitation Ctr., Inc., 55 Wn. App. 845, 781 P.2d 498 (1989), review denied, 114 Wn.2d 1007, 788 P.2d 1079 (1990), instructive. There, the court affirmed a summary Judgement in favor of a treatment center that had been treating an accused drunk driver who was undergoing treatment as a condition of deferred prosecution. The court reasoned that because the treatment center did not have "custodial control of {the driver}" nor could it restrict the driver's activities in any way, it owed no duty to a plaintiff who suffered injury at the hands of the accused. Metlow, 55 Wn. App. at 850.


[101] Finally, it would be my view that the pretrial release officer and his employer, King County, are entitled to quasi-judicial immunity from liability. That was the Conclusion the Court of Appeals reached in a similar case, McKenna v. Edwards, 65 Wn. App. 905, 912, 830 P.2d 385, review denied, 120 Wn.2d 1003, 838 P.2d 1143 (1992). There a corrections officer recommended to the Spokane County Superior Court that a defendant be released pending trial on certain conditions. After his release, the defendant, Edwards, committed a murder and a rape. The victims of those crimes then sued Spokane County for negligent supervision of Edwards. The Court of Appeals affirmed a summary Judgement in favor of the County's pretrial release programs, concluding that because the officer was acting only as an "arm of the court" when he made his investigation and recommendation to the court, he was performing functions traditionally performed by the court, and, therefore, should be clothed with judicial immunity. McKenna, 65 Wn. App. at 912. With that Conclusion I agree. Because the majority does not differentiate between pretrial release and post-conviction probation, and extends our holding in Taggart to include pretrial supervision, I Dissent.



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Opinion Footnotes

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[102] *fn1 Hertog was substituted as guardian ad litem after the complaint was filed.


[103] *fn2 The City contends that the complaint alleges that the City is liable only under a theory of respondeat superior, and that accordingly any immunity which Hoover enjoys also applies to bar City liability. Contrary to the City's contention, however, the complaint sufficiently alleges negligent supervision by the City as well as a respondeat superior theory.


[104] *fn3 The duty does not derive from the statute. Rather, the statute describes the relationship, and "'is sufficient to establish that parole officers have a 'definite, established and continuing relationship' with their parolees." Taggart v. State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992) (quoting Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). Although a statute defined the parole officer-parolee relationship in Taggart, the court did not hold that a special relationship must be defined by statute. For example, the court noted that in Semler v. Psychiatric Inst., 538 F.2d 121 (4th Cir. 1976), a special relationship arose between the defendants, a probation officer and a psychiatric institution, and the probationer as a result of a court order requiring that the probationer be confined and supervised as a day-care patient. Taggart, 118 Wn.2d at 220-21. The Restatement (Second) of Torts sections describing a duty where a special relationship exists do not require that a statute create the special relationship.


[105] *fn4 The City also maintains that the trial court found that Hoover was not negligent at the ministerial level, but erroneously refused to recognize the City was protected by discretionary immunity for setting policy. The City is mistaken in two respects. The trial court did not say that Hoover was not negligent at the ministerial level, but instead said that Hoover had personal immunity. A determination that Hoover has qualified personal immunity for at least some of his actions would mean that as to those actions he acted in accord with applicable regulations and directives. However, the actions could still fail to conform to the standard of reasonable care set forth in section 319 of the Restatement (Second) of Torts if applicable directives and regulations are deficient. If so, Hoover would enjoy qualified personal immunity but the City would not. Thus, saying that Hoover had personal immunity, which is what the trial court said, is not the same as saying that reasonable care was exercised in supervising Krantz. The second mistake the City makes is that Savage is not concerned with discretionary policy making, insofar as the exception to waiver of sovereign immunity is concerned. Instead, Savage is concerned with "fashioning guidelines and procedures for the supervision of parolees" and this kind of agency level decisionmaking does not enjoy discretionary immunity. Savage v. State, 127 Wn.2d 434, 446, 899 P.2d 1270 (1995). Nor, as noted, is the City entitled to the benefit of any qualified personal immunity enjoyed by the probation counselor. In context, it is clear this is the point the trial court was making.


[106] *fn5 The Court of Appeals held that because the records sought are relevant to the subject matter of the litigation and reasonably calculated to lead to the discovery of admissible evidence, good cause has been shown. Although the result is correct, we do not adopt this reasoning because this standard appears to be essentially the same as the standard for any discovery under CR 26(b)(1). This standard is, in any event, inconsistent with the definition of "good cause" the Court of Appeals adopted.


[107] *fn6 The County additionally relies upon Metlow v. Spokane Alcoholic Rehabilitation Ctr., Inc., 55 Wn. App. 845, 781 P.2d 498 (1989), where the court held that a private alcohol rehabilitation center which contracted to provide nonresidential treatment to DWI defendants in the state's deferred prosecution program had no duty to protect third persons from a program participant's driving while intoxicated. Metlow is clearly distinguishable, however. The court there held that no special relation existed because the rehabilitation center did not have custodial control over the participant. Id. at 850 (distinguishing Petersen). Metlow was decided before Taggart, and did not consider the holding there that a custodial relationship is not a requirement of a duty under sec.sec. 315 and 319 of the Restatement (Second) of Torts.


[108] *fn7 The majority suggests the holding in Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), also controls. However, the Legislature statutorily abrogated our holding in Petersen in Laws of 1987, ch. 212, sec. 301(1) (codified at RCW 71.05.120(1)), with respect to the liability of the State.

Hertog v. City of Seattle, 943 P.2d 1153, 88 Wash.App. 41 (Wash.App.Div.1 09/22/1997)

1068668 [1] Washington Court of Appeals


[2] No. 37291-2-I


[3] 943 P.2d 1153, 88 Wash.App. 41, 1997


[4] September 22, 1997


[5] JOHN HERTOG, GUARDIAN AD LITEM AND ON BEHALF OF [S.A.H.], A MINOR, PETITIONER,
v.
CITY OF SEATTLE; AND KING COUNTY, RESPONDENTS.


[6] Appeal from Superior Court of King County. Docket No: 94-2-33347-0. Date filed: 08/29/95. Judge signing: Hon. Nancy A. Holman.


[7] For Appellant: Janet L. Rice, Schroeter Goldmark & Bender, 500 Central Bldg., 810 3rd Ave, Seattle, WA 98104. Michelle Gonzalez, 500 Central Bldg, 810 3rd Ave, Seattle, WA 98104.


[8] For Respondents: Thomas S. Sheehan, Assistant City Attorney, Municipal Bldg, 10th Fl, 600 4th Ave, Ste 1000, Seattle, WA 98104. Charles C. Parker, King Co Pros Aty-Civil Dv, 700 5th Ave, Ste 3900, Seattle, WA 98104. Marcia M. Nelson, Seattle City Attorney's Office, Assistant City Attorney, 600 4th Ave, Fl 10, Seattle, WA 98104.


[9] Authored by Ronald E. Cox. Concurring: Walter E. Webster, Susan R. Agid.


[10] The opinion of the court was delivered by: Cox


[11] COX, J. -- At issue in this case is the propriety of a discovery order that denies access to treatment records and prohibits deposition testimony of treatment providers for Barry Krantz, a convicted sex offender. In the interest of judicial economy, we also address the propriety of the denial of summary judgment to the two municipalities that simultaneously exercised supervision over Krantz at the time he raped a six-year-old girl. *fn1


[12] Barry Krantz raped six-year-old S.H. Krantz was on probation with the City of Seattle following convictions for lewd offenses when he committed the rape. Sid Hoover was Krantz' probation officer. Krantz was also being supervised by King County Court Services while awaiting trial in King County Superior Court on a burglary charge with a sexual motivation allegation. Tyrone Lake was his pretrial counselor. Following Krantz' conviction for raping S.H., her guardian brought this action against the City of Seattle and King County for negligent supervision of Krantz. The


[13] City and County both moved for summary judgment. In response, S.H.'s guardian ad litem, John Hertog, sought a continuance of the hearing of the motion, discovery of treatment records for Krantz, and the deposition testimony of two of his treatment providers. *fn2 The Judge before whom the summary judgment motion was pending granted the request for continuance of the hearing. Another Judge denied the requested discovery. The trial court ultimately denied both motions for summary judgment. A commissioner of this court granted discretionary review of the discovery order as well as the denial of the summary judgment motions by the City and County. We affirm in part and reverse in part.


[14] I


[15] Privilege


[16] Hertog sought discovery of the records and testimony of Dr. Von Cleve, a psychologist with Correctional Specialties, and Megan C. Kelley of Professional Alcohol & Drug Services. Dr. Von Cleve was treating Krantz for sexual deviancy. Kelley evaluated Krantz with respect to his alcohol and drug abuse. It is not clear from the record whether Kelley provided treatment to Krantz. For purposes of our analysis, we assume she was providing treatment.


[17] Hertog first argues that Krantz had no reasonable expectation that either the records or the communications would be kept confidential. He next argues that Krantz waived the privilege by signing a release allowing Dr. Von Cleve to disclose information to Sid Hoover of Seattle Municipal Probation. Finally, he argues that Krantz did not assert his privilege and the City does not have standing to assert Krantz' privilege.


[18] The City opposed discovery on the basis of its assertion that the records and communications are privileged because they were made for the purpose of Krantz' treatment, not for the purpose of making recommendations to the court. It next argues that the release Krantz signed was limited in scope and does not establish that Krantz intentionally and voluntarily relinquished his privilege.


[19] We hold that Krantz had no reasonable expectation that his communications with either Dr. Von Cleve or Megan Kelley would remain confidential. Thus, there was no privilege, and discovery of the records and deposition testimony is not barred.


[20] We review an order denying a motion to compel discovery for abuse of discretion. *fn3 Abuse is "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." *fn4


[21] The scope of discovery is broad and is subject to narrow exceptions, one of which is privileged material. *fn5 The psychologist-patient privilege is defined by statute:


[22] Confidential communications between a client and a psychologist shall be privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between attorney and client . . . . *fn6


[23] This privilege does not apply where the person with the privilege has no reasonable expectation that the communications would be confidential. *fn7 A person may not claim a privilege "as to communications that do not originate in the confidence that they will not be disclosed." *fn8 We must therefore determine the nature of Krantz' reasonable expectations in light of the circumstances surrounding his communications with Dr. Von Cleve. *fn9


[24] Where communications are made for the purpose of reporting to an agency or court, they are not privileged. *fn10 In J.N. v. Bellingham School District, the court held that an assessment by a school psychologist made for the purpose of determining a student's need for special education services was not privileged. *fn11 Likewise, in Post, the court held that the defendant's interview with a psychologist was not privileged where the purpose of the interview was to make a recommendation to Department of Corrections personnel. *fn12


[25] The courts have also held that where a patient is warned that the communications would not be confidential, the privilege does not apply. *fn13


[26] In King, this court held that where substantial evidence supported the trial court's finding that King was warned that his disclosures in therapy might be released to the court, there was no privilege. *fn14 Similarly, in Post, the psychologist informed the defendant that his communications were not confidential. *fn15


[27] Here, the municipal court ordered Krantz to participate in treatment as a condition of his continued probation. He signed a consent form for the release of information by Dr. Von Cleve to Sid Hoover, the probation officer. The form stated, in relevant part, that:


[28] I hereby consent to a mutual exchange of information between Kenneth Von Cleve and Sid Hoover, Seattle Municipal Probation.


[29] The purposes of the disclosures are to provide referral information and to inform Seattle Municipal Probation of diagnosis, attendance and non-attendance, treatment issues, progress, prognosis and completion. *fn16


[30] Given the scope of the information, including treatment issues, that Krantz authorized to be disclosed to the probation officer, Krantz could not have reasonably expected that his communications with Dr. Von Cleve would be privileged. Krantz knew or reasonably should have known that his communications with Dr. Von Cleve and the records maintained by the psychologist would be used to monitor performance for probation purposes.


[31] The City argues that State v. Sullivan *fn17 controls this case. It contends that under Sullivan, communications made during treatment, as opposed to forensic examinations, are privileged. But as to the psychologist-patient privilege, our Supreme Court recently stated that even where communications take place for the purpose of treatment, a patient who has been informed that there is no confidentiality cannot assert the privilege. *fn18


[32] The trial court abused its discretion by denying the motion to compel discovery of Dr. Cleve's information regarding Krantz. Accordingly, we reverse that portion of the trial court's discovery order.


[33] Because there was no privilege as to Dr. Von Cleve or his records in this case, we need not address the other arguments that Hertog makes to obtain discovery.


[34] Hertog also argues that Megan Kelley's records of Krantz' drug and alcohol treatment are subject to discovery because he signed the release in favor of Sid Hoover and Seattle Municipal Probation. We agree that such records are subject to discovery, but on a different ground than that argued by Hertog.


[35] The City relies primarily on the psychologist-patient privilege for its argument regarding Kelley. But the record before us fails to show that Kelley is a psychologist or other person to which this statutory privilege applies. Rather, Kelley's records and testimony fall within the privilege set forth in RCW 70.96A.150(1). That statute, in relevant part, provides that the registration and other records of treatment programs shall remain confidential. Records may be disclosed (a) in accordance with the prior written consent of the patient with respect to whom such record is maintained, (b) if authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause . . . . *fn19


[36] The purpose of Kelley's work with Krantz was to provide information to assist in monitoring Krantz. Given this circumstance, Krantz had no more reasonable expectation of confidentiality of his communications with Kelley than he did with Dr. Von Cleve. Thus, he cannot rely on the protection of the above statute to deny discovery to Hertog.


[37] There is an additional basis for our Conclusion that Kelley's testimony and records are discoverable. Subsection (b) of RCW 70.96A.150(1) clearly contemplates release of such records by a court order after a showing of "good cause." Good cause does not have a precise definition. Black's Law Dictionary includes several definitions, the following being the one most applicable here:


[38] "Good cause" for discovery is present if information sought is material to moving party's trial preparation. Such requirement for discovery and production of documents is ordinarily satisfied by a factual allegation showing that requested documents are necessary to establishment of the movant's claim or that denial of production would cause moving party hardship or inJustice. *fn20


[39] Here, the records sought are relevant to the subject matter of this litigation and reasonably calculated to lead to the discovery of admissible evidence. *fn21 Thus, there was good cause for the court to have issued an order permitting discovery. *fn22


[40] The court abused its discretion by denying the motion to compel discovery of Megan Kelley's records and deposition testimony regarding Krantz. Accordingly, we reverse that portion of the court's discovery order.


[41] II


[42] Liability of City


[43] The City contends that Hertog has not established the existence of any genuine issues of material fact with respect to the alleged negligence of Hoover and the City. We disagree.


[44] When we review a summary judgment order, we undertake the same inquiry as the trial court. *fn23 We determine whether any genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. *fn24 We consider all facts and reasonable inferences from facts in the light most favorable to the nonmoving party. *fn25 We review questions of law de novo. *fn26


[45] The elements of negligence are: (1) the existence of a duty owed to the complaining party; (2) a breach of that duty; and (3) an injury proximately caused by the breach. *fn27 The existence of a duty is a question of law. *fn28 Once a duty is established, issues of fact regarding breach of the duty and whether the breach was a proximate cause of the plaintiff's injuries are usually left for the finder of fact. *fn29 Only when reasonable minds could reach but one Conclusion are such factual issues determined as a matter of law. *fn30


[46] The City first argues that it had no duty to S.H. The City contends that the declaration of William Stough, a former state probation officer who testified that Hoover's actions were not reasonable, does not create a genuine issue of material fact. Citing Ruff v. County of King, the City argues that Stough's declaration fails to identify any local or national standard governing Hoover's conduct as a probation officer and that absent such a standard Hertog can show no duty.


[47] In Ruff, the plaintiff was injured in an auto accident. He argued that the County had a duty to place guardrails along a road because the American Association of State Highway and Transportation Officials (AASHTO)standards required them. The court noted that the County had not adopted AASHTO standards. Therefore, the plaintiff could not establish a duty by citing to them. But the court went on to state that the question of whether the County was negligent depended on whether the roadway was inherently dangerous or deceptive to a prudent driver. As such, the question there was whether the County's acts were reasonable. *fn31


[48] Nothwithstanding Ruff, because this case involves the actions of a probation officer, it is controlled by Taggart v. State. *fn32 There, our Supreme Court stated the test for when a person has a duty to control the conduct of a third person to prevent harm to others. The court relied on the Restatement (Second) of Torts test:


[49] There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. *fn33


[50] Restatement (Second) of Torts sec. 319 describes one instance in which the requisite level of control exists:


[51] One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. *fn34


[52] In Taggart, the Supreme Court concluded that state parole officers "take charge" of parolees under RCW 72.04A.080. Factors that the court cited as evidence of taking charge included:


[53] The State can regulate a parolee's movements within the state, require the parolee to report to a parole officer, impose special conditions such as refraining from using alcohol or undergoing drug rehabilitation or psychiatric treatment, and order the parolee not to possess firearms. The parole officer is the person through whom the State ensures that the parolee obeys the terms of his or her parole. Additionally, parole officers are, or should be, aware of their parolees' criminal histories, and monitor, or should monitor, their parolees' progress during parole. Because of these factors, we hold that parole officers have "taken charge" of the parolees they supervise for purposes of sec. 319. When a parolee's criminal history and progress during parole show that the parolee is likely to cause bodily harm to others if not controlled, the parole officer is under a duty to exercise reasonable care to control the parolee and to prevent him or her from doing such harm. *fn35


[54] The Taggart court explicitly stated that a custodial or continuous relationship is not required for a duty to exist. *fn36 In addition, it is not necessary that the person controlling the third party be able to take direct enforcement measures. For example, the court had already held in Petersen v. State *fn37 that the psychiatrist treating a state hospital patient had a duty to take reasonable precautions to protect those who were foreseeably endangered by the patient. This was so, notwithstanding the fact that the psychiatrist had to petition the court for commitment and failed to do so. *fn38


[55] Here, it is undisputed that Sid Hoover took charge of Krantz in the sense that he was the probation officer assigned to monitor the parole conditions that the court imposed to Krantz' release. It is not relevant that Hoover had to seek the court's intervention to revoke probation. *fn39


[56] It is equally clear that Hoover knew that Krantz was a person likely to cause bodily harm to others within the meaning of sec. 319. Tim Smith, Krantz' former therapist, stated that he believed Krantz was dangerous.


[57] Krantz repeatedly offended despite treatment opportunities. Krantz' behavior escalated from exposure to a sexually motivated burglary, a matter for which Hoover knew Krantz had been charged prior to the rape of S.H.


[58] The record shows that Hoover knew or should have known of these propensities and therefore had a duty to take reasonable steps to control Krantz. There is no question that as a matter of law, Hoover, as a probation officer for Krantz, had a duty to control him so as to prevent Krantz from harming others in any reasonably foreseeable manner. *fn40


[59] We must next consider whether genuine issues of material fact exist with respect to Hoover's breach of duty. The City strenuously argues that Hoover did everything he could have done to ensure that Krantz complied with the terms of his probation.


[60] Hertog claims that Hoover failed to monitor Krantz' compliance with the terms of probation after the municipal court's July 30, 1990 denial of Hoover's request to revoke Krantz' probation. We conclude that reasonable minds could differ on this question, and thus a genuine issue of material fact exists.


[61] Hertog offers as evidence the declaration of William Stough, an experienced state probation officer. Stough indicates his opinion that Hoover should have scheduled more face-to-face meetings with Krantz following the court's denial of the request for revocation and should have made a greater effort to verify Krantz' participation in treatment and abstinence from drugs and alcohol.


[62] The record shows that Krantz' prior offenses were linked to his abuse of alcohol and other drugs. The record also shows that Dr. Von Cleve was very concerned about the lack of monitoring of Krantz by treatment professionals. Yet the record also shows that Hoover did not verify on a timely basis that Krantz was being monitoring by way of random urinalysis or other methods. We believe that a jury could find that had Hoover checked earlier to verify whether Krantz was being monitored, he could have earlier requested another revocation hearing. The fact that he had recently requested such a hearing and that the July 30, 1990 hearing did not result in incarceration does not necessarily relieve him of the duty to continue to monitor Krantz closely.


[63] The City claims Stough's declaration is irrelevant because Stough does not have experience with the municipal probation system. The record before us does not show whether the City sought below to have the affidavit stricken on this or any other basis. We assume the court considered it.


[64] In any event, the City has failed to produce any evidence regarding the differences, if any, between the state and municipal systems, except that municipal probation officers may enforce the terms of probation only through the court. As we have already noted, that distinction is irrelevant under Petersen. There is a genuine issue of fact respecting the breach of a duty by Hoover and the City.


[65] The final prong of the negligence analysis requires us to determine whether a genuine issue of material fact exists with respect to whether Hoover's actions were a proximate cause of the rape. We hold such an issue does exist.


[66] Proximate cause consists of two elements: cause in fact and legal cause. *fn41 The cause in fact determination is appropriately resolved on summary judgment only where the finder of fact can reach but one reasonable Conclusion. *fn42


[67] The City argues that based on the knowledge he had, Hoover could not have done anything to prevent Krantz from committing the rape. We disagree.


[68] If Hoover had earlier attempted to determine whether monitoring by random urinalysis was being done and learned that it was not, he could have again sought revocation of probation. Examination of the records of Dr. Von Cleve and Kelley, as well as their deposition testimony, will clarify whether earlier violations occurred. We cannot say that there is no cause in fact.


[69] "Legal causation rests on considerations of policy and common sense as to how far the defendant's responsibility for the consequences of its actions should extend." *fn43 The question of legal causation "is so intertwined with the question of duty that the former can be answered by addressing the latter." *fn44 As we have concluded that Hoover had a duty to take reasonable steps to prevent Krantz from committing reasonably foreseeable injurious acts, we conclude that legal cause existed. Summary judgment on the issue of proximate cause would thus have been improper.


[70] The City cites several cases to support its claim that there is no proximate cause. These cases are distinguishable. In Hartley v. State, *fn45 the Supreme Court stated that in earlier cases it has "attributed legal causation on the basis of the relationship between the defendant and the third party." In the cases the City cites, the courts found no special relationship between the defendant and the perpetrator of the plaintiffs' injuries. Here, there is a special relationship.


[71] In Johnson v. State, *fn46 the wife of a victim of a vehicular homicide sued King County for negligently releasing from prison John McMahon, the man who killed her husband. The court held that the County had no duty to the plaintiff. McMahon, whose blood alcohol level was .24 percent at the time of the accident, had been imprisoned for violation of parole from a charge unrelated to substance abuse. Because there was no evidence that King County was aware of McMahon's substance abuse problems, the court concluded that the County had no duty to protect against McMahon's actions resulting from those problems.


[72] In Baumgart, *fn47 Grant County released Kenneth Iverson from custody after he was charged with burglary and theft. Iverson subsequently injured Baumgart in an auto accident while under the influence of drugs and alcohol. The court held that the County had no special relationship to Iverson. While it noted that Iverson had a history of alcohol-related offenses, it relied on the fact that Iverson was not in custody for treatment, but as punishment. *fn48 It distinguished Hosea v. City of Seattle *fn49 because in that case the court stated it could not as a matter of law conclude that the City was not liable for the drunken driving of a jail trustee serving a sentence for drunken driving.


[73] Finally, in Hartley, *fn50 the plaintiff claimed that the State negligently failed to initiate proceedings to revoke a driver's license under the Washington Habitual Traffic Offenders Act (HTOA) *fn51 against a person who had been arrested numerous times for drunk driving. The Supreme Court held that there was no special relationship between the drunk driver and the State because nothing set him apart from other traffic offenders subject to the HTOA.


[74] In contrast, the record before us, interpreted in the light most favorable to Hertog, shows the existence of a special relationship between the City and Krantz. Krantz was under the supervision of a City probation officer after being convicted of a number of lewd offenses. Hoover was aware of Krantz' substance abuse problems and his record of sex-related crimes. Therefore, Hoover and the City had a special relationship to Krantz for the purpose of preventing him from committing reasonably foreseeable sex-related crimes. We cannot conclude as a matter of law on this record that there was no proximate cause.


[75] The trial court properly denied the City's motion for summary judgment.


[76] Because we hold upon our de novo review that denial of summary judgment was proper, we need not address the City's argument on appeal that the trial court denied summary judgment on an erroneous basis. For the same reason, we need not address the City's argument regarding discretionary immunity. Finally, we need not address Hertog's argument that the City waived this defense below.


[77] The City observes that Hertog admitted below that there is no evidence that the City negligently hired Hoover. Hertog does not state otherwise on appeal. Accordingly, we affirm that portion of the trial court's summary judgment order that dismisses Hertog's negligent hiring claim.


[78] III


[79] Liability of County


[80] King County argues that Tyrone Lake, Krantz' pretrial counselor, and the County have judicial immunity from Hertog's claim under McKenna v. Edwards. *fn52 In McKenna, a Division III case, the court concluded that a Spokane County corrections officer was acting as "an arm of the court" and performing functions traditionally performed by the court when investigating the conduct of a defendant in pretrial release. *fn53 McKenna does not control the result in this case, where Lake's supervision of Krantz is at issue.


[81] The purpose of judicial immunity is to "ensure that Judges can administer Justice without fear of personal consequences." *fn54 It extends to court personnel acting as arms of the court. *fn55 It has been applied to those making recommendations to the court where the court retains final decisionmaking power *fn56 and to witnesses and other participants in judicial proceedings. *fn57


[82] In Taggart, the court distinguished between instances in which parole officers have quasi-judicial rather than qualified immunity. It stated that when acting outside any judicial or quasi-judicial process, parole officers have only qualified immunity:


[83] We hold that parole officers are entitled to quasi-judicial immunity only for those functions they perform that are an integral part of a judicial or quasi-judicial proceeding. . . .


[84] But when the officer takes purely supervisory or administrative actions, no such protection arises. *fn58


[85] Here, the issue is whether Lake was negligent in supervising Krantz during his pretrial release. Thus, Lake is protected only by qualified immunity.


[86] Lake's protection does not extend to the County. *fn59


[87] The County relies almost exclusively on McKenna to establish that Lake owed no duty to S.H. The County is incorrect.


[88] First, the court noted in McKenna that the court's pretrial release order did not require supervision by an officer of the court. *fn60 Here, Lake testified in his deposition that pretrial supervisors "provide supervision pending trial or pending felony Disposition to ensure that [defendants] appear for future court appearances." Lake signed the conditions of supervised release on a line marked "Accepted for Supervision" and signed a supervised release contract.


[89] Further, in McKenna the court stated that neither the Department of Corrections nor the drug monitoring program to which Edwards was to report had any knowledge "which would warrant imposition of a duty to control the conduct of Edwards." *fn61 The evidence showed that Edwards was a drug and alcohol abuser. Nothing in the record indicated that Edwards was likely to commit murder and rape. *fn62


[90] In contrast, Lake was aware that Krantz had a history of both drug and alcohol abuse and sexual deviancy. Lake was aware that Krantz was on probation in both Seattle and Bellevue for incidences of lewd conduct. He was also aware of the sexual motivation allegation associated with the charge for which Krantz was to be tried in superior court. Lake received from Krantz' attorney letters from Megan Kelley and Dr. Von Cleve describing Krantz' substance abuse problems and history of sexual deviancy. In particular, Dr. Von Cleve's letter expresses his concern about the lack of monitoring of Krantz to date and the need for close monitoring to increase the likelihood of a favorable prognosis. For these reasons, McKenna does not control here.


[91] In its reply brief, the County cites Metlow v. Spokane Alcoholic Rehabilitation Center. *fn63 In that case, the court held that an alcohol treatment program and its employee did not have a duty to protect potential victims of a patient required to attend the program under a deferred prosecution. The County argues that Metlow is similar to this case because the defendant merely supervised the patient and did not have custodial control over him. We disagree.


[92] First, we note that our Supreme Court in Taggart held that full custodial control is not required to establish the existence of a parole officer's duty to control a parolee. *fn64 In addition, the record in the case before us indicates that Lake signed a document accepting supervision of Krantz. This document also states that Krantz was released "to the custody of the King County Services Section." In contrast, in Metlow the treatment program was required to report failures to comply with the terms of the deferred prosecution, but there is no indication that its employees had the same level of responsibility that Lake assumed with respect to Krantz. Metlow therefore does not control this case.


[93] We reverse the trial court's discovery order, provided that we affirm the portion of the order that dismisses Hertog's negligent hiring claim.


[94] We affirm the denial of the City and County's motions for summary judgment.


[95] We remand for further proceedings consistent with this opinion.


[96] WE CONCUR:


[97] Walter E. Webster


[98] Susan R. Agid


[99] AGID, J. (concurring) -- I fully agree with the majority's Disposition of the discovery issue. I concur in the result on the negligence issue only because it is compelled by the Supreme Court's decisions in Petersen v. State, 100 Wash. 2d 421, 671 P.2d 230 (1983), and Taggart v. State, 118 Wash. 2d 195, 822 P.2d 243 (1992). I continue to believe those decisions ignore the reality of what officials exercising the cursory supervision permitted by state and local law can do to "control" the behavior of dangerous or, as here, potentially dangerous criminals. The huge caseloads and limited resources available to supervising city, county and state officials simply do not permit them to keep track of, much less control, every potentially dangerous defendant. In my view, the ability to control that the Court has imputed under the Restatement (Second) of Torts sec. 315 (1965) is particularly illusory where, again as here, only the court can terminate probation. But, as the majority says, Petersen holds this is irrelevant. Majority at 16-17. Finally, I note that, while Krantz had been charged with a sexually-motivated crime in King County, he had not been convicted. Are parole and probation officers to ignore the basic tenet of our criminal Justice system that a defendant is presumed innocent?


[100] But until the Supreme Court looks again at the unworkable, impractical assumptions about our criminal supervision system that underlie Petersen and Taggart, I agree that this case must go to trial.



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Opinion Footnotes

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[101] *fn1 See Waller v. State, 64 Wash. App. 318, 338, 824 P.2d 1225, review denied, 119 Wash. 2d 1014, 833 P.2d 1390 (1992).


[102] *fn2 In July 1995, John Hertog was appointed as guardian ad litem.


[103] *fn3 See Barfield v. City of Seattle, 100 Wash. 2d 878, 886-87, 676 P.2d 438 (1984).


[104] *fn4 State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971).


[105] *fn5 CR 26(b)(1) provides in pertinent part as follows:


[106] "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]"


[107] *fn6 RCW 18.83.110.


[108] *fn7 State v. Post, 118 Wash. 2d 596, 613, 826 P.2d 172 (1992); In re Welfare of Henderson, 29 Wash. App. 748, 752, 630 P.2d 944 (1981).


[109] *fn8 State v. King, 130 Wash. 2d 517, 532, 925 P.2d 606 (1996).


[110] *fn9 Post, 118 Wash. 2d at 612.


[111] *fn10 State v. Warner, 125 Wash. 2d 876, 892-93 n.8, 889 P.2d 479 (1995).


[112] *fn11 74 Wash. App. 49, 64-65, 871 P.2d 1106 (1994).


[113] *fn12 118 Wash. 2d at 612-613.


[114] *fn13 Post, 118 Wash. 2d at 612-13; State v. King, 78 Wash. App. 391, 404, 897 P.2d 380 (1995), aff'd, 130 Wash. 2d 517, 925 P.2d 606 (1996); Warner, 125 Wash. 2d at 892.


[115] *fn14 King, 78 Wash. App. at 404.


[116] *fn15 118 Wash. 2d at 612-13.


[117] *fn16 (Italics ours).


[118] *fn17 60 Wash. 2d 214, 373 P.2d 474 (1962).


[119] *fn18 Warner, 125 Wash. 2d at 892-93 n.8.


[120] *fn19 (Italics ours.)


[121] *fn20 Black's Law Dictionary 692 (6th ed. 1990) (citations omitted).


[122] *fn21 See CR 26(b)(1).


[123] *fn22 See also In re D.D.S., 869 P.2d 160 (Alaska 1994).


[124] *fn23 Mountain Park Homeowners Ass'n v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994).


[125] *fn24 CR 56(c).


[126] *fn25 Tydings, 125 Wash. 2d at 341.


[127] *fn26 Tydings, 125 Wash. 2d at 341.


[128] *fn27 Ruff v. County of King, 125 Wash. 2d 697, 704, 887 P.2d 886 (1995).


[129] *fn28 Zenkina v. Sisters of Providence in Wash., Inc., 83 Wash. App. 556, 560, 922 P.2d 171 (1996), review denied, 131 Wash. 2d 1003, 932 P.2d 644 (1997).


[130] *fn29 Johnson v. State, 77 Wash. App. 934, 937, 894 P.2d 1366, review denied, 127 Wash. 2d 1020, 904 P.2d 299 (1995).


[131] *fn30 Ruff, 125 Wash. 2d at 704.


[132] *fn31 Ruff, 125 Wash. 2d at 706.


[133] *fn32 Taggart v. State, 118 Wash. 2d 195, 218, 822 P.2d 243 (1992).


[134] *fn33 Taggart, 118 Wash. 2d at 218 citing Restatement (Second) of Torts, 315 (1965)).


[135] *fn34 Restatement (Second) of Torts 319 (1965).


[136] *fn35 Taggart, 118 Wash. 2d at 220.


[137] *fn36 Taggart, 118 Wash. 2d at 223.


[138] *fn37 100 Wash. 2d 421, 671 P.2d 230 (1983).


[139] *fn38 Petersen, 100 Wash. 2d at 428-29.


[140] *fn39 See Petersen, 100 Wash. 2d at 428-29.


[141] *fn40 See Taggart, 118 Wash. 2d at 224-25.


[142] *fn41 Johnson v. State, 68 Wash. App. 294, 298, 841 P.2d 1254 (1992), review denied, 121 Wash. 2d 1018, 854 P.2d 42 (1993).


[143] *fn42 Baumgart v. Grant County, 50 Wash. App. 671, 673, 750 P.2d 271, review denied, 110 Wash. 2d 1033 (1988).


[144] *fn43 Taggart, 118 Wash. 2d at 226.


[145] *fn44 Taggart, 118 Wash. 2d at 226.


[146] *fn45 103 Wash. 2d 768, 784, 698 P.2d 77 (1985).


[147] *fn46 68 Wash. App. 294.


[148] *fn47 50 Wash. App. 671.


[149] *fn48 50 Wash. App. at 676.


[150] *fn49 64 Wash. 2d 678, 393 P.2d 967 (1964).


[151] *fn50 103 Wash. 2d 768.


[152] *fn51 RCW 46.65.


[153] *fn52 65 Wash. App. 905, 830 P.2d 385, review denied, 120 Wash. 2d 1003 (1992).


[154] *fn53 65 Wash. App. at 912.


[155] *fn54 Taggart, 118 Wash. 2d at 203.


[156] *fn55 Barr v. Day, 124 Wash. 2d 318, 332, 879 P.2d 912 (1994) (holding that guardians ad litem act as surrogates of the court in settlement hearings and thus have judicial immunity); Adkins v. Clark County, 105 Wash. 2d 675, 717 P.2d 275 (1986) (bailiff acting as an arm of the court during trial and therefore is protected by judicial immunity).


[157] *fn56 Walker, 60 Wash. App. at 624, 628, 806 P.2d 249, review granted, 117 Wash. 2d 1001 (1991), petition dismissed, 118 Wash. 2d 1014 (1992).


[158] *fn57 Bruce v. Byrne-Stevens & Assocs. Eng'rs, 113 Wash. 2d 123, 129, 776 P.2d 666 (1989).


[159] *fn58 Taggart, 118 Wash. 2d at 213.


[160] *fn59 Savage v. State, 127 Wash. 2d 434, 447, 899 P.2d 1270 (1995).


[161] *fn60 65 Wash. App. at 917.


[162] *fn61 65 Wash. App. at 917.


[163] *fn62 65 Wash. App. at 917.


[164] *fn63 55 Wash. App. 845, 781 P.2d 498 (1989), review denied, 114 Wash. 2d 1007 (1990).


[165] *fn64 118 Wash. 2d at 223-24.