Division I: Omnibus Edition (Including Zamora Case)
What happens when you have a few opinions to catch up on, but you don’t quite want to just ditch the writing and skip a few to catch up? That’s right! You get an omnibus post. Here’s what’s been happening in Division I since we last spoke:
This all has to do with the Zamora killings. As you recall, Zamora got out of jail and then killed six people in the tiny town of Alger.
The plaintiffs (families of the deceased) argued that DOC had abrogated a duty to the public under section 302B of the Restatement of Torts. The Restatement of Torts is basically a bunch of smart people coming together and deciding what the law should be and then states can adopt portions of the Restatement as a matter of policy. Here, section 302B essentially says that the screw ups of DOC could lead to liability. As our Supreme Court stated in Robb v. City of Seattle, “Restatement s. 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."
Now, Zamora was in jail in 2008, and he was supposed to have community custody to include mental health evaluation or treatment, based on a pretty significant history, which involved an involuntary commitment. Mom asked that it occur as well. Someone did visit him, and noted some pretty significant findings:
Persecutorial thoughts, easily moved into rageful thinking, . . . feels victimized by just about everyone in his world. Some grandiosity about his education / intelligence and his role in the world: to fix the crazy systems, make people treat him better. Very focused on the issue of chronic pain and poor.... Reports anxiety . . . sounds like panic attack. He needs something! Recommend beginning Lamictal: He is paranoid about poison and not messing w/ his brain. Can a person in medical please meet with him ifmeds are approved and address his fears?
Now, the doctor agreed, but the medication prescribed, Lamictal, isn’t used for psychotic episodes, but is used as a mood stabilizer. He wasn’t taking his Lamictal as prescribed anyhow. After another visit, where he still showed a case of the crazies, the counselor recommended psych meds.
He was then transferred.
Guess which records didn’t make it over with the inmate. The new facility didn’t note any problems. When he was looked at for his shoulder, the doc noted the Lamictal Rx, and the failure to take it at the previous facility. Because he wasn’t exhibiting symptoms at the moment, Lamictal was discontinued. He was then released, taken back in after exhibiting a bit of the crazies again, but not evaluated. He was again released on his own recognizance. He was contacted by police for riding a motorcycle on his parents property and for a 911 hangup, but nothing came from those.
You can read what happened next here.
So the Court of Appeals affirmed the dismissal of the 302B claim. They didn’t do anything affirmative, they simply didn’t do something.
In an effort to bring his claims within the scope of § 302B, Binschus characterizes the counties' conduct as an improper evaluation and treatment, which, he contends, constitutes affirmative acts or misfeasance. But Binschus's attempt to frame the issue in this way is unconvincing because here, there simply were no affirmative acts. Rather, the counties' failure to evaluate Zamora and provide mental health treatment was an omission.
Regarding the rest of the case:
The next question we examine, therefore, is whether the counties knew or should have known of Zamora's violent propensities. We hold that material questions of fact remain as to whether Skagit County knew or should have known of Zamora's dangerous tendencies. The same, however, is not true for Okanogan County. Evidence in the record indicates that Skagit County was likely aware that Zamora had potentially dangerous and criminal inclinations.
. . .
Given these numerous contacts between Zamora and Skagit County, reasonable minds could conclude that Skagit County was aware of the risk posed by Zamora's violent propensities. Summary judgment in Skagit County's favor was inappropriate.
Regarding proximate cause, there was plenty of evidence that had they treated him properly, there would have been no killings.
So the claims of the deceased live on, except for those based on Restatement Section 302B.
Normally, I would just call land use attorneys nerds and move on. But since this is an omnibus, I suppose I can spare a sentence or two. Oops, those were my two sentences. Sorry, nerds! But seriously, land use attorneys should read this GMA case.
The attorneys at Issaquah Legal Services are skilled in bringing wrongful death claims, including those premised on the failures of the law enforcement community. Contact our Issaquah attorneys today.