IN THE SUPREME COURT OF THE STATE OF WASHINGTON


FRED BINSCHUS, individually and as           )
Personal Representative of the Estate of     )           No. 91644-6
JULIE ANN BINSCHUS; TONYA                    )
FENTON; TRISHA WOODS; TAMMY                  )            EnBanc
MORRIS; JOANN GILLUM, as Personal            )
Representative of the Estate of GREGORY N.)
GILLUM; CARLA J. LANGE, individually )           Filed       SEP ?. ? 2016
and as Personal Representative of the Estate )
of LEROY B. LANGE; NICHOLAS LEE              )
LANGE, individually; ANDREA ROSE,            )
individually and as Personal Representative )
of the Estate of CHESTER M. ROSE;            )
STACY ROSE, individually; RICHARD            )
TRESTON and CAROL TRESTON, and the )
marital community thereof; BEN               )
MERCADO; PAMELA RADCLIFFE,                   )
individually and as Personal Representative )
of the Estate of DAVID RADCLIFFE; and )
TROY GIDDINGS, individually,                 )
                                             )
                            Respondents,     )
                                             )
      v.                                     )
                                             )
STATE OF WASHINGTON,                         )
DEPARTMENT OF CORRECTIONS;                   )
SKAGIT EMERGENCY                             )
COMMUNICATIONS CENTER d/b/a                  )
"Skagit 911 ," an interlocal government      )
agency; and OKANOGON COUNTY, a               )
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


political subdivision of the State of                   )
Washington,                                             )
                                                        )
                                Defendants,             )
                                                        )
and                                                     )
                                                        )
SKAGIT COUNTY, a political subdivision                  )
of the State of Washington                              )
                                                        )
                                Petitioner.             )
_________________________)

        OWENS, J. -In 1992, we held that the State could be held liable for crimes

committed by parolees if those crimes resulted from the State's negligence in

supervising the parolees. Taggart v. State, 118 Wash. 2d 195, 822 P.2d 243 (1992).

Today, plaintiffs ask us to extend Taggart and hold that a county jail can be held

liable for crimes committed by a former inmate. However, the crimes in this case

occurred well after the imnate left that jail-long after the county had the duty (or

ability) to supervise the former inmate. Plaintiffs contend that the jail could have

prevented the inmate from committing crimes after he was released, but a jail's duty

to supervise and control im11ates during incarceration does not include a general duty

to somehow prevent inmates from committing crimes after they are lawfully released

from incarceration. We affirm the trial court's summary judgment order for Skagit

County.




                                                    2
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


                                                FACTS

        Isaac Zamora was incarcerated at Skagit County Jail for nonviolent crimes

from April4, 2008, until May 29, 2008, when he was transferred to Okanogan County

Corrections Center. Zamora then served the rest of his sentence at Okanogan County

Corrections Center and was released on August 2, 2008. 1

        On September 2, 2008, Zamora had a psychotic episode and went on a shooting

spree in Skagit County. He ultimately killed six people and injured several others.

Some of his victims and their families (plaintiffs) sued a number of parties, including

Skagit County. The plaintiffs alleged that Skagit County was liable for Zamora's

actions because of its failure to "exercise ... ordinary and reasonable care" while

Zamora was incarcerated in Skagit County Jail several months prior to the shooting.

Clerk's Papers (CP) at 3868. The plaintiffs' claims against the other institutions were

either settled out of court or dismissed on summary judgment.

        Plaintiffs contend that while Zamora was incarcerated in Skagit County Jail

from April4, 2008, until May 29, 2008, the jail failed to fully evaluate and treat

Zamora's mental illness. They argue that (1) Skagit County was on notice that

Zamora was in need of mental health services, (2) if Zamora had received a thorough

mental health evaluation, he would been diagnosed and prescribed treatment,


1
  Zamora was briefly detained by Skagit County on August 5, 2008, but was released by a
judge on his own recognizance the next day. The plaintiffs do not allege any negligence
by the county during that time period.

                                                    3
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


(3) Zamora might have complied with treatment resulting from that evaluation, and

( 4) if Zamora had complied with that treatment, he might not have had the psychotic

break that led to the shooting in September. For the sake of our analysis today, we

will treat those allegations as true.

        The trial judge granted summary judgment to Skagit County on the issues of

duty and proximate cause. The trial judge ruled that "[a]ny take charge duty an entity

owes under Restatement (Second) of Torts§ 319 [(Am. Law. Inst. 1965)] must be

based on the presumption that the entity can control the actor. In the case of a jail,

this duty would exist only during the period of incarceration." CP at 212. The trial

judge also found that the plaintiffs had not made a showing that Skagit County's

alleged negligence was the proximate cause of Zamora's crimes.

        The Court of Appeals reversed. It held that there were material issues of fact as

to whether Skagit County had a legal duty to the victims and whether a breach of that

alleged duty was the proximate cause of the injuries to the victims. Binschus v. Dep 't

of Carr., 186 Wash. App. 77, 81, 345 P.3d 818 (2015). We granted Skagit County's

petition for review. 184 Wash. 2d 1001,357 P.3d 665 (2015).

                                                    ISSUE

        Did the trial court properly grant summary judgment to Skagit County because

the county's duty to control Zamora did not extend to the plaintiffs?




                                                      4
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


                                             ANALYSIS

        We review smmnary judgment orders de novo. Mountain Park Homeowners

Ass 'n v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994). Smnmary judgment is

appropriate when there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. I d. "All facts and reasonable inferences are

considered in the light most favorable to the nonmoving party." !d.

        In this case, the trial court granted summary judgment to Skagit County

because Skagit County had no duty to prevent Zamora from committing criminal acts

after he was lawfully released from its custody. As explained below, we affirm the

trial court. Under the Restatement, a jail's duty in a take charge relationship is limited

to controlling violent inmates during incarceration, not preventing all foreseeable

future crimes.

        As a general rule, people and institutions are not responsible for preventing a

person from physically harming others. Petersen v. State, 100 Wash. 2d 421, 426,671
P.2d 230 (1983). However, there is an ex.ception when '"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.'" !d. (quoting RESTATEMENT (SECOND) OF TORTS§ 315

(AM. LAW INST. 1965)). Crucial to our analysis is the nature of that duty: '"to control

the third person's conduct."' !d. (emphasis added) (quoting RESTATEMENT § 315).




                                                    5
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


        One of those special relationships that gives rise to a duty to control the third

person's conduct is the relationship between a jail and an irunate. Specifically, the

jail-irunate relationship is often a take charge relationship, described in § 319 of the

Restatement:

        One who takes charge of a third person whom he knows or should lmow
        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§ 319. Again, we note the nature of that duty: "to exercise reasonable

care to control the third person to prevent him from doing harm." I d. (emphasis

added).

        We adopted the Restatement's rule for take charge relationships in Taggart,
118 Wash. 2d at 219-20. In that case, we held that parole officers have a take charge

relationship with parolees. I d. at 220. We explained that the take charge duty is

fundamentally about control: "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." Id. (emphasis added). We applied the

same rule in Joyce v. Department of Corrections, 155 Wash. 2d 306, 315-16, 119 P.3d
825 (2005), where we held that community corrections officers can have a take charge

relationship with offenders when they are responsible for supervising the offenders

and ensuring that they are complying with their conditions of release. We held that


                                                    6
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


liability can be imposed when there is a failure to adequately supervise the

probationer. !d. at 319.

        Importantly, the take charge duty is not without limitation. Throughout our

case law, we have consistently reiterated a fundamental limit on duties arising from a

take charge relationship: such a duty will be imposed "only upon a showing of a

'definite, established and continuing relationship between the defendant and the third

party."' Taggart, 118 Wash. 2d at 219 (quoting Honcoop v. State, Ill Wn.2d 182, 193,

759 P.2d 1188 (1988)); see also Joyce, 155 Wn.2d at319-20.

        Plaintiffs ask this court to greatly expand the take charge duty described above.

Rather than imposing a duty to control a person's conduct, plaintiffs contend that the

take charge duty imposes a broad duty to "to use reasonable care to protect against

reasonably foreseeable dangers [the offender] posed." Resp'ts' Suppl. Br. at 13, 20.

In theory, this could include all reasonably foreseeable dangers, even those that might

occur long after the take charge duty has ended. For support, plaintiffs point to

language in Taggart and Joyce where we summarized the duty that results from a take

charge relationship. Taken out of context, one could read the individual sentences as

imposing such a broad duty. However, a thorough reading of those cases reveals that

they did not create such a radical expansion of the take charge duty. The

Restatements and our case law consistently explain the take charge duty is a duty to




                                                    7
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


control, and that liability results from negligently failing to control, not failing to

protect against all foreseeable dangers.

        In Taggart, we held that parole officers have a take charge relationship with

parolees, despite the fact that they do not have a custodial relationship. 118 Wash. 2d at

223. After an in-depth review of the Restatement sections, we explained that "[w]hen

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." !d. at 220 (emphasis added). We then explained the particular actions

that the parole officers failed to take to control the parolees-one parole officer

should have "supervised closely" the parolee, and the other failed to arrest the parolee

for violating the conditions of his parole. !d. at 224-25.

        Plaintiffs point to one particular statement in Taggart where we did not

emphasize control. We stated, "We conclude that parole officers have a duty to

protect others from reasonably foreseeable dangers engendered by parolees'

dangerous propensities."2 !d. at 224. However, following that statement, we



2
  We also quoted this statement in Joyce, but we did not broaden our holding from
Taggart. See 155 Wash. 2d at 316 ("We have answered all of the questions raised by the
State about its duty before."). As in Taggart, the statement must be read in the context of
the opinion, where we again discussed the nature of that duty: "[O]nce the relationship is
created, it is the relationship itself which ultimately imposes the duty upon the
government, and 'the failure to adequately monitor and report violations, thus failure to
adequately supervise the probationer,' may result in liability." !d. at 319 (emphasis

                                                    8
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


discussed how we specifically did not want to "exaggerate the degree of control

[parole officers] exercise over parolees." !d. To the extent that our concluding

statement can be taken out of context to mean that the take charge duty to control is a

broad duty to prevent all reasonably foreseeable dangers, we now clarify: the take

charge duty described in Restatement § 319 as a "duty to control" is, indeed, a duty to

control. We did not previously, and do not today, expand it to a general duty to

prevent a person from committing criminal acts in the future. 3 Such an interpretation

is contrary to the language and logic of§ 319.

        The practical implications of imposing such a broad duty on jails are striking.

By some estimates, the recidivism rate is well over 50 percent. See U.S. DEP'T OF

JUSTICE, OFFICE OF JUSTICE PROGRAMS BUREAU OF JUSTICE STATISTICS, RECIDIVISM

OF PRISONERS RELEASED IN 30 STATES IN 2005: PATTERNS FROM2005 TO 2010

(2014), http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf

[https://perma.cc/A4QF-84XQ]. Thus, one could argue that in almost any case, it is

foreseeable that an inmate may commit another crime after release. Are jails civilly

liable for those crimes if they failed to take adequate measures to prevent that



added and omitted) (quoting Bishop v. Miche, 137 Wash. 2d 518, 526, 973 P.2d 465
(1999)).
3
  The dissent criticizes us for focusing on the word "control" in § 319, but we might levy
a similar criticism for their refusal to aclmowledge the word altogether. Section 319
imposes "a duty to exercise reasonable care to control the third person to prevent him
from doing harm." RESTATEMENT § 319. We stand by our conclusion that the concept
of "control" must be a part of any § 319 analysis.

                                                    9
Binschus, et al. v. Dep 't of Corrections, et al.
No. 91644-6


foreseeable recidivism? Such an expansive interpretation is not supported by the

Restatement sections or a thorough reading of our precedent.

        Applying the rule from the Restatement sections, Skagit County owed a duty to

exercise reasonable care to control Zamora to prevent him from doing harm. This

duty was owed during the time when Skagit County had a take charge relationship

with Zamora. Skagit County owed this duty to anyone who might foreseeably suffer

bodily harm resulting/rom the failure to control Zamora. Skagit County did not owe

such a duty for harms unrelated to its duty to control Zamora. The trial court correctly

held that as a matter of law, the crimes Zamora committed after his lawful release

were not a foreseeable consequence of any failure to control Zamora during

incarceration. Thus, the trial court correctly granted summary judgment for Skagit

County.

        This is not to say that jails can never be liable for a former inmate's actions.

First, there may be situations in which a jail's failure to control an inmate results in

foreseeable injury to others, and the jail may be liable even if that injury occurs after

the duty to control ended. For instance, a jail could fail to control a violent inmate by

negligently allowing him or her to escape one week before he or she was scheduled to

be released. Even if the inmate injured others after the scheduled release date (and

thus after the jail's duty to control had theoretically ended), the jail might still be

liable if its failure to control the inmate during incarceration was the proximate cause



                                                    10
Binschus, et al. v. Dep 'I of Corrections, et al.
No. 91644-6


of the injuries. Such a situation would be analogous to Petersen, in which a

psychiatrist failed to adequately control a patient. 100 Wash. 2d at 424-25. In that case,

a psychiatrist discharged an involuntarily detained patient. The patient stopped taking

his medications and injured the plaintiff in a car accident five days after he was

released. I d. at 424. We found that this was a violation of the psychiatrist's duty to

control the patient, as the psychiatrist chose to release the patient rather than seeking

additional involuntary confinement. This fits with our analysis above-the injury to

the plaintiff was a foreseeable consequence of the failure to control the patient. 4

Thus, the psychiatrist could be liable for that failure to control the patient, even

though the injuries to the victim occurred after the duty ended.

        Second, a jail could theoretically be liable for injuries caused by former

inmates under a separate section of the Restatement that explains,

        An act or an omission may be negligent if the actor realizes or should realize
        that it involves an unreasonable risk of harm to another through the conduct of
        the other or a third person which is intended to cause harm, even though such
        conduct is criminal.



4 The dissent contends that we focus solely on "physical control" and that any other
action, such as transferring Zamora's files to his new jail, was "categorically" outside of
Skagit County's § 319 duty. Dissent at 11. This is incorrect. Section 319 requires that
jails "exercise reasonable care to control the third person to prevent him from doing such
harm." A variety of actions might be needed to control a person to prevent him or her
from doing harm, and there is nothing in § 319 or this majority that limits that duty to
physical control. However, there is a limit on the jail's responsibilities under§ 319;
unfortunately, the dissent ignores that limit. By§ 319's language, jails have a duty to
exercise reasonable care to control a person so as to prevent them from doing harm. We
do not change that limit today; we simply abide by it.

                                                    11
Binschus, eta!. v. Dep 't of Corrections, eta!.
No. 91644-6


RESTATEMENT (SECOND) OF TORTS§ 302B (AM. LAW lNST. 1965). We have held

that "Restatement § 302B may create an independent duty to protect against the

criminal acts of a third party where the actor's own affirmative act creates or exposes

another to the recognizable high degree of risk of harm." Robb v. City of Seattle, 176
Wash. 2d 427, 429-30, 295 P.3d 212 (2013). While the trial court held that the jail's

alleged actions in this case do not rise to that standard, 5 we nonetheless recognize that

§ 302B presents the possibility that a jail could be liable for a former inmate's actions

in cases where an affirmative act has occurred.

       Because we find that Skagit County had no duty to the plaintiffs, we do not

reach the issue of whether its actions in April and May 2008 were the proximate cause

of Zamora's psychotic break in September 2008.

                                         CONCLUSION

        We affirm the trial court's grant of summary judgment to Skagit County. Jails

have a responsibility to control violent inmates while they are incarcerated, but they

do not have a general duty to prevent such inmates from committing crimes after they

are lawfully released from incarceration.




5 The trial court dismissed the plaintiffs' § 302B claim because the jail in this case did not
commit an affirmative act, and the Court of Appeals affirmed. To the extent that
respondents contend they raised this issue in their answer to the petition for review, we
note that we granted only the petition for review; therefore, the § 302B claim is not
before us.

                                                  12
Binschus, et al. v. Dep' t of Corrections, et al.
No. 91644-6




WE CONCUR:




                                        13
Binschus, eta/. v. Skagit County, eta/., No. 91644-6
(Yu, J., dissenting)




                                         No. 91644-6

       YU, J. (dissenting)- The issue presented is not whether counties should be

subject to an expansive duty to prevent recidivism by former jail inmates. Rather,

the issue presented is whether the evidence in the record is sufficient to create a

factual question about whether Skagit County fulfilled its duty to protect third

parties from foreseeable violence by pretrial detainees and jail inmates in

accordance with Restatement (Second) of Torts§ 319 (Am. Law Inst. 1965)

(§ 319). The majority limits the scope of this duty to maintaining physical control

over the detainee or inmate during periods of lawful confinement, categorically

excluding any other types of reasonable precautions a county might take. Such a

limitation is inconsistent with our precedent, and the evidence in the record is

sufficient to raise factual questions that should have precluded summary judgment.

I would therefore affirm the Court of Appeals, and must respectfully dissent.




                                                I
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J,, dissenting)

                                FACTUAL BACKGROUND

       Because the duty imposed by § 319 requires a highly fact-specific inquiry, I

present these additional facts to supplement the factual summary in the majority

opinion. And as the nonmoving parties at the summary judgment stage, the

plaintiffs are entitled to have "all facts submitted and all reasonable inferences

therefrom" viewed in the light most favorable to them. Taggart v. State, 118
Wash. 2d 195, 199, 822 P.2d 243 (1992).

       The records from Skagit County's own jail and sheriffs office indicate that

Skagit County had known for years that Isaac Zamora suffered from mental health

issues. See Clerk's Papers (CP) at 3551 ("At this time we are aware that ISAAC

ZAMORA does have some mental problems and his mom will be monitoring him,

calling ifthere is any change." (emphasis added)). The events surrounding

Zamora's incarceration in Skagit County Jail in the spring of2008 reaffirmed this

knowledge, and also strongly indicated that his condition was worsening and

becoming potentially dangerous.

        On April 4, 2008, Skagit Emergency Communications Center received a

hang-up call from the Zamora residence and dispatched Skagit County deputies to

investigate. Zamora explained that he had called 911 and "just wanted to thank us

and the dispatcher for a response the other day." I d. at 3554. The deputies arrested

Zamora on two outstanding warrants and described him in their reports as


                                                  2
Binschus, eta/. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

"verbally abusive" and "rambling." !d. At the request of jail staff, Zamora was

taken to a hospital to determine whether "he was fit for jail" at all. !d. Zamora

was ultimately housed in the "C-Pod" unit of Skagit County Jail, which is "sort of

protective custody" for imnates who are "anti-social," who are "fearful" of others,

are "disruptive" or "threatening" to the general population, or suffer from mental

illness. !d. at2581.

       By this time, Zamora's mother was very concerned about his deteriorating

mental health. Three days after Zamora was taken to jail, she wrote a letter to the

Skagit County prosecutor, requesting that his sentence include "a mental health

evaluation and treatment." !d. at 142. She also spoke to a Skagit County

corrections officer by phone that day, reporting that she was "afraid" of Zamora

due to his mental illness and unpredictable behavior. !d. at 2580. Zamora's

mother reported he was "bi-polar and is aggressive [and] has anger problems," and

"begged" the officer to keep Zamora in jail and get him mental health treatment.

!d. at 3681. The next day, a mental health counselor asked Zamora if he would

like contact with a mental health provider, but he would not answer the question at

that time. Id. at 3683.

        However, while Zamora was in Skagit County Jail, he did make three

separate requests for mental health care. The first mental health cmmselor Zamora

spoke with described him as having "[p]ersecutorial thoughts," being "easily


                                                 3
Binschus, eta!. v. Skagit County, eta!., No. 91644-6
(Yu, J., dissenting)

moved into rageful thinking," having "pressured speech," feeling "victimized,"

having "[s]ome grandiosity" about "his role in the world," and suffering from

"anxiety" that "sounds like [a] panic attack." Id. at 3685. The counselor

concluded, "He needs something!" I d. However, because Zamora was "paranoid

about poison and not messing [with] his brain," the counselor entreated, "Can a

person in medical please meet with him if meds are approved and address his

fears?" Id. Three days later, a physician approved a prescription for Lamictal, an

antiseizure medication that is often used as a mood stabilizer. There is no

indication that anyone followed up on the counselor's urgent request that a medical

professional meet with Zamora regarding this medication.

       Zamora later spoke with a different mental health counselor and stated he

was taking his Lamictal, although the medication log indicated he was refusing it.

I d. at 3687. Zamora also told the counselor that he would take medication to help

him sleep, but not any other "'mental' medications." Id. He "expressed extreme

anger" regarding his mother's efforts to get him mental health treatment and asked

the counselor to call his mother and "tell her to 'get the fuck out of my life."' Id.

The counselor noted he "appeared upset, [was] easily angered," and had "rambling

style speech." Id. The counselor's recommendation was to "continue to offer

psych meds." Id.




                                               4
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

       After Zamora had spent a little over a month in Skagit County Jail, he made

a third mental health request, stating, "[I']d like [t]o talk because [I] keep seeing

black dots and white flashes." Jd. at 2958. Unlike Zamora's previous mental

health requests, there are no notes indicating whether there was any follow up on

this third request.

       On May 15, 2008, after spending approximately 6 weeks in Skagit County

Jail as a pretrial detainee, Zamora pleaded guilty to one count of malicious

mischief in the second degree and one count of possession of a controlled

substance. Id. at 3483, 3494. He was sentenced to 6 months of confinement,

which, "if medically appropriate/required," could be served as in-home detention.

Jd. at 3498. Following confinement, Zamora was to serve 12 months of

community supervision with conditions including "mental health

eval[uation]/treatment," a "drug evaluation," and to "comply with all treatment

recommendations." Id. at 3499. Two weeks later, Zamora was transferred to

Okanogan County Corrections Center pursuant to an interlocal agreement.

However, Skagit County transferred only part of Zamora's file, and did not provide

Okanogan County with his judgment and sentence or other information about

Zamora's mental health care needs. I d. at 2540, 2618. Zamora remained in

Okanogan County Corrections Center for approximately 2 months.




                                                  5
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

       Three days after Zamora was released, his mother called 911 because

Zamora "was aggressive and angry towards his mother and brother." I d. at 2858.

The responding deputy discovered Zamora had an outstanding warrant, arrested

him, and took him back to Skagit County Jail. Zamora's mother told officers that

he was "suffering from undiagnosed and untreated mental illness and that he has

been a problem for some time." I d. at 3557. The deputy who brought Zamora to

the jail specifically asked them not to release Zamora the same day in order to give

his mother time to seek a no-contact order. Zamora was released the next day on

his own recognizance.

       About a month later, one of Zamora's neighbors, Clinton Griffith, called

police to report Zamora had confronted Griffith's wife, demanding to know how

long she had been living there. As Zamora left, he apparently tore down a sign on

Griffith's gate. Griffith was less concerned about the property damage than about

Zamora's "weird behavior" and the possibility that he was suffering from "some

sort of mental illness." I d. at 3562. On that same day, Zamora underwent a mental

health evaluation to determine his eligibility for services from the Department of

Social and Health Services. Zamora "apparently really needed help," id. at 162,

and the evaluator found him qualified for services. Zamora's mother viewed this

evaluation as a "glimmer of hope" because in the preceding weeks he'd "been




                                                  6
Binschus, eta/. v. Skagit County, eta/., No. 91644-6
(Yu, J., dissenting)

progressively getting more seriously mentally ill with no treatment, no diagnosis,

no help in sight." I d. at 181.

       The violence underlying this lawsuit occurred the next day. Another of

Zamora's neighbors, Chester Rose, called Zamora's mother to say Zamora was in

Rose's house and "didn't seem to be himself." I d. at 170. Zamora apparently let

himself into Rose's house, then demanded to know what Rose was doing there.

Zamora's mother told Rose to call the police, which he did, and Skagit County

Sheriffs Deputy Anne Jackson responded. Upon getting out of her patrol car at

Rose's house, Deputy Jackson encountered Zamora and the two exchanged

gunfire. Deputy Jackson was shot six times and died at the scene. In the ensuing

melee, five of Zamora's neighbors were also killed and four more were injured.

                                         ANALYSIS

       As correctly noted by the majorit;:, the duty contemplated by § 319 stems

from the special relationship that arises where one "takes charge" of someone else

who has a known likelihood of harming others if not controlled. However, the

majority incorrectly seizes on the single word "control" to unduly limit the scope

of that duty. This interpretation is inconsistent with our precedent. It also

encourages counties to detain individuals with known mental health issues in jail

without making reasonable efforts to provide them with adequate treatment, to

transfer such individuals to another county without providing adequate information


                                                7
Binschus, eta/. v. Skagit County, eta/., No. 91644-6
(Yu, J., dissenting)

about their mental health needs, and to release such individuals into the community

with more severe mental health problems than they had to begin with. We should

not tolerate, much less encourage, such practices, which contribute to a revolving

door, conveyor belt system of justice.

A.     Scope of the duty to control

       The majority's analysis rests on a single word: "control." From this single

word, the majority concludes that so long as Skagit County maintained physical

control over Zamora while he was lawfully in custody, Skagit County fully

discharged its § 319 duty. However, the scope of§ 319 duty to control depends on

the nature of the specific relationship at issue; it is not strictly limited to physical

control.

       Indeed, the very first case in which this court adopted § 319 applied it to the

relationship between the State and parolees under its supervision. Taggart, 118
Wash. 2d at 219. A parolee, by definition, is not within the State's immediate

physical control, and we specifically rejected the argument that the duty imposed

by § 319 is limited to custodial relationships involving physical control over a

person. Id. at 223. Nevertheless, we held "that the State has a duty to take

reasonable precautions to protect against reasonably foreseeable dangers posed by

the dangerous propensities of parolees," id. at 217 (emphasis added), and we

evaluated the scope of those reasonable precautions in light ofthe actual scope of


                                                8
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

the State's authority over parolees, id. at 219-20. Our subsequent case law has

adhered to this approach of evaluating the actual relationship giving rise to a § 319

duty to determine its proper scope. See, e.g., Osborn v. Mason County, 157 Wash. 2d
18, 24, 134 P.3d 197 (2006); Joyce v. Dep 't ofCorr., 155 Wash. 2d 306, 320 n.3, 119
P.3d 825 (2005). In light of this precedent, it seems anomalous to hold, as the

majority appears to, that§ 319 imposes only a limited duty on counties to maintain

physical control over its jail population, even though it imposes a broader duty on a

state parole officer to take reasonable precautions to prevent foreseeable violence

by parolees in the community.

       There are, without question, important limitations on a county's authority to

control its jail population. Of course, the only acts or omissions that Skagit County

could be held liable for are those that occurred during its special relationship with

Zamora while he was in custody. See, e.g., Joyce, 155 Wash. 2d at 319; Smith v.

Dep't ofCorr., 189 Wash. App. 839, 849-50,359 P.3d 867 (2015), review denied,

185 Wn.2d 1004,366 P.3d 1244 (2016). 1 There are also statutory, common law,

and constitutional limitations on a county's authority that necessarily limit the




        1
         In Smith, Division Two of the Court of Appeals held that the Department of
Corrections' (DOC) take charge duty with respect to an offender on community custody "ended
when [the offender] absconded from community custody and a warrant issued for his arrest."
Smith, 189 Wash. App. at 848. However, it separately analyzed DOC's actions that occurred
before the offender absconded, ultimately holding that any such actions or omissions did not
proximately cause the victim's murder, which occurred almost four months later. Id at 850-53.


                                                  9
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

scope of its duty. See Osborn, 157 Wash. 2d at 24-25; Joyce, 155 Wash. 2d at 320 n.3;

Couch v. Dep 't ofCorr., 113 Wash. App. 556, 571, 54 P.3d 197 (2002). For

instance, as amicus rightly notes, Skagit County cannot be held liable for failing to

involuntarily medicate or civilly commit Zamora if it did not have the

constitutional and statutory authority to do so. See Br. of Amicus Curiae Am. Civil

Liberties Union of Wash. at 5-8.

       It must also be emphasized that in this context, as in all negligence cases,

"only reasonable care is owed." Lowman v. Wilbur, 178 Wash. 2d 165, 170, 309
P.3d 387 (2013). The law does not demand perfect results, but merely reasonable

efforts. For example, while Skagit County had the duty to provide Zamora with

necessary medical treatment, including mental health care, while he was in

custody, it had no overarching duty to completely rehabilitate Zamora or somehow

cure his mental illness. See RCW 70.48.130(1); Gregoire v. City of Oak Harbor,

170 Wash. 2d 628, 635-36, 244 P.3d 924 (2010) (Sanders, J., lead opinion); id. at 646

(Madsen, C.J., concurring/dissenting); cf Melville v. State, 115 Wash. 2d 34, 38-39,

793 P.2d 952 (1990) (holding that general statutes do not impose a specific duty on

the Department of Corrections to provide a particular course of mental health care

treatment).

       The record here indicates several reasonable precautions that might have

been within the scope of Skagit County's § 319 duty. Skagit County's own mental


                                                 10
Binschus, eta/. v. Skagit County, eta/., No. 91644-6
(Yu, J., dissenting)

health counselor recommended a reasonable step that Skagit County could have

taken-having a medical doctor try to talk to Zamora about psychiatric medication.

CP at 3685. While a doctor approved a prescription for Lamictal, it is not clear

whether any doctor ever met with Zamora to address his fears or to evaluate

whether Lamictal was an appropriate medication in light of Zamora's known

symptoms and barriers to treatment. Id. at 2539-40, 2544-45. Moreover,§ 319

unquestionably imposes "a duty to protect foreseeable victims of criminals, mental

patients, and others leaving its custody." Osborn, 157 Wash. 2d at 24 (emphasis

added). But when Zamora was transferred to Okanogan County Corrections

Center, Skagit County provided only part of his file and no information on his

mental health care needs, potentially curtailing Okanogan County's ability to

address those needs. CP at 2540, 2618. Under the majority's reasoning, however,

even the basic step of transferring Zamora's file along with his person was

categorically outside Skagit County's § 319 duty. This cannot be a legitimate limit

on Skagit County's duty.

        The majority rightly acknowledges that "[a] variety of actions might be

needed to control a person to prevent him or her from doing harm." Majority at 11

n.4. However, this acknowledgment is inconsistent with the majority's apparent

conclusion that such actions do not include reasonably following up on available

information and conveying that information to other responsible parties. Those are


                                               11
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

in fact precisely the type of actions that may be required to fulfill a § 319 duty

because the ability to meaningfully control a foreseeably violent person necessarily

requires adequate information about that person. See, e.g., Joyce, 155 Wash. 2d at

316-17 ("[A] jury could conclude that this duty was breached by the State's failure

to report egregious violations of the conditions of release to the court so that the

trial judge could take action appropriate to the offender's conduct."); Taggart, 118
Wash. 2d at 214 (parole officer allegedly failed to "provide his superior with relevant

information necessary to enable the superior to make an informed decision whether

to issue a parole warrant"). The majority does not explain why this case must be

different, but nevertheless shifts the focus of its inquiry to whether Skagit County

maintained basic, physical control over Zamora while he was in custody.

       By focusing only on physical control, the majority's analysis treats the

special relationship between a county and its jail population as analogous to the

relationship between a warehouse and its inventory. This is unacceptable as

applied to anyone, but is particularly disconcerting as applied to a presumptively

innocent pretrial detainee who is known to be suffering from mental illness, as

Zamora was for most of the time he was in Skagit County Jail. I therefore cannot

join the majority.




                                                 12
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

B.     Foreseeability and proximate cause

       Because the majority does not need to reach the other issues raised, I address

them only briefly. I would affirm the Court of Appeals holding that there are

material factual questions precluding summary judgment dismissal of the

plaintiffs' § 319 claim.

       First, Skagit County argues that it did not owe any take charge duty to the

victims because their injuries and deaths occurred after Zamora left its custody. As

the Court of Appeals correctly determined, "this argument confuses the existence

of a duty with the scope of the duty." Binschus v. Dep 't of Corr., 186 Wash. App.
77, 95, 345 P.3d 818, review granted, 184 Wash. 2d 1001, 357 P.3d 665 (2015).

Section 319 itself plainly contemplates that the duty extends to anyone who is

foreseeably injured by a breach occurring during the take charge relationship, even

if the injury occurs later. Most on point is the first illustration:

        A operates a private hospital for contagious diseases. Through the
        negligence of the medical staff[,] B, who is suffering from scarlet
        fever, is permitted to leave the hospital with the assurance that he is
        entirely recovered, although his disease is still in an infectious
        stage. . . . B ... communicate[ s] the scarlet fever ... to D .... A is
        subject to liability to D.

RESTATEMENT (SECOND) OF TORTS§ 319 cmt. a, illus.l (AM. LAW. INST. 1965). In

this illustration, A's take charge relationship with B ended when B was permitted




                                                 13
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

to leave the hospital. However, A's negligence during its take charge relationship

with B foreseeably caused D's later injury, so A is liable.

       Our case law is consistent with this analysis. Most on point is Petersen v.

State, 100 Wash. 2d 421, 671 P.2d 230 (1983). 2 In Petersen, a psychiatric patient had

a schizophrenic-type reaction to drugs and the psychiatrist determined that the

patient's symptoms were likely to return if the patient used drugs again or went off

his medication. I d. at 428. The psychiatrist also determined that the patient was

"quite likely" to resume taking drugs and stop taking his medication if released,

but the psychiatrist did not seek additional involuntary commitment or "take other

reasonable precautions." I d. The patient was released, resumed using drugs, and

injured another person in a car accident while under the influence. Id. at 422-23.

This court held that even though the car accident occurred after the psychiatrist's

relationship with the patient ended, the psychiatrist might be liable for the injuries

because the breach occurred during the relationship. I d. at 428.

        Once a special relationship giving rise to a § 319 duty is established, the

question of whether the actual injuries suffered by the particular victims were

foreseeable is a question of fact "and should not be decided as a matter of law



        2
         Petersen discusses the general special relationships contemplated by Restatement
(Second) of Torts § 315 (Am. Law Inst. 1965), rather than the specific take charge relationship
contemplated by§ 319. However, it illustrates well that a victim can be foreseeable even if he or
she does not suffer injury until after the special relationship ends.


                                                 14
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

unless reasonable minds could not differ." Joyce, 155 Wash. 2d at 321 n.3; see also

Taggart, 118 Wash. 2d at 224-25. Here, reasonable minds could differ. Zamora's

release into the community was not only foreseeable, but certain. And the victims

were Zamora's neighbors, members of the immediate community into which

Skagit County !mew he would be released. Whether Zamora's acts of violence

against them were foreseeable should be resolved by the trier offact.

       Additionally, Skagit County contends that proximate cause is precluded as a

matter of law. "Washington 'recognizes two elements to proximate cause: [c]ause

in fact and legal causation."' Lowman, 178 Wash. 2d at 169 (alteration in original)

(quoting Hartley v. State, 103 Wash. 2d 768, 777, 698 P.2d 77 (1985)). While

proximate cause does present a close question in this case, I would hold it cannot

be resolved as a matter of law based on the record presented.

       As to cause in fact, Skagit County contends that there is no evidence that

Zamora would have consented to any additional mental health care measures or

that any such measures would have been effective. However, the evidence in the

record indicates that Zamora's willingness to accept mental health care

fluctuated-he did in fact specifically request mental health treatment on three

separate occasions while in Skagit County Jail. CP at 2958, 3685, 3687. Zamora's

intermittent refusal to participate in mental health treatment cannot be treated as

definitive proof that he would certainly have refused all treatment if, for instance, a


                                                 15
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

medical professional had spoken to him as Skagit County Jail's mental health

counselor had requested. Id. at 3685. Moreover, the record indicates that after the

shootings, Zamora was confined at Western State Hospital and took medications

that did in fact control his psychotic symptoms. Id. at 2545. This is significantly

more concrete evidence than what we have rejected in the past as overly

speculative. See, e.g., Melville, 115 Wash. 2d at 40-41.

       As to legal causation, Skagit County contends that the chain of causation

was broken as a matter of law. However, in the specific context of a duty imposed

by a special relationship, we have already held that "[t]he question oflegal

causation is so intertwined with the question of duty that the former can be

answered by addressing the latter." Taggart, 118 Wash. 2d at 226; see also Hertog v.

City ofSeattle, 138 Wn.2d 265,284,979 P.2d 400 (1999). And Skagit County

does not point to "an actual intervening act" in the record that was sufficient to

break the chain of causation. Joyce, 155 Wash. 2d at 321-22; see, e.g., Bishop v.

Miche, 137 Wash. 2d 518,531-32,973 P.2d 465 (1999) (where probation officer

reported a violation of court-imposed probation conditions and the court chose not

to revoke probation, the court's decision precluded proximate cause as a matter of

law). I would therefore hold that summary judgment on the issue of proximate

cause was not appropriate.




                                                 16
Binschus, et al. v. Skagit County, et al., No. 91644-6
(Yu, J., dissenting)

                                        CONCLUSION

       I cannot join the majority's narrow interpretation ofthe duty imposed by

§ 319. And because the evidence, viewed in the light most favorable to the

plaintiffs, is sufficient to create genuine issues of material fact on all the elements

of their § 319 claim, I would affirm the Court of Appeals and remand for further

proceedings. I respectfully dissent.




                                                 17
Binschus, eta/. v. Skagit County, eta/., No. 91644-6
(Yu, J., dissenting)




                                               18