Background

The words “negligent” and “intentional” are contradictory. To maintain an action in negligence, the plaintiff must establish four essential elements: duty, breach, proximate cause, and harm. To maintain an intentional tort action, the plaintiff must establish the tort was intentional, i.e., volitional. One action is typically distinct from the other, and a claim will usually sound in one or the other. However, in Beltran-Serrano v. City of Tacoma, — P.3d —, 2019 WL 2455660 (2019), the Supreme Court of Washington held that an officer’s conduct may constitute intentional assault and battery and negligence in failing to use ordinary care to avoid the use of deadly force.

Facts

Beltran-Serrano suffers from mental illness and is not proficient with English. On June 29, 2013, he was homeless and standing on a street corner, when he was confronted by Officer Volk. Officer Volk approached Beltran-Serrrano in an attempt to educate him on panhandling laws. Officer Volk did not have reasonable suspicion or probable cause to believe a crime had been, or was about to be, committed.

Beltran-Serrano laid down and began digging in a hole as Officer Volk approached. Officer Volk greeted Beltran-Serrano, but he simply looked up at her blankly while he dug. Officer Volk watched Beltran-Serrano find an old soda container, take a drink, then throw the container back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk radioed for an officer who spoke Spanish.

Officer Volk again tried to engage Beltran-Serrano in conversation, but he was nonresponsive. She gestured that she wanted to see his identification. Beltran-Serrano briefly patted his pockets before he resumed digging in the hole. When Office Volk moved closer to Beltran-Serrano, he became frightened and began to run away.

Officer Volk shot him in the back with a stun gun, but it did not stop Beltran-Serrano. Officer Volk then removed her service weapon and shot at Beltran-Serrano until he fell. Multiple witnesses stated Beltran-Serrano did not assault Officer Volk or brandish any weapon.

Issue

Whether a claim of negligence can be based on Officer Volk’s shooting of Beltran-Serrano when it is clear that the shooting was intentional.

Analysis

The City, in defending Beltran-Serrano’s claim, argued that the “negligent commission” of an intentional tort does not exist. Additionally, the City argued that the public duty doctrine precludes liability, because the statutory duty to enforce laws and keep peace is imposed solely on government and owed to the public at large.

Beltran-Serrano incorporated a broader view, including Officer Volk’s negligence leading up to the shooting. This included her failure to respond to clear signs of mental illness, her decision to continue to engage in English, and her decision to prevent him from moving away from her. The negligence allegations revealed Officer Volk’s lack of adequate training and her failure to recognize the ineffectiveness of a stun gun against a mentally ill person. Beltran-Serrano also argued he is not asserting the commission of a “negligent intentional shooting,” but that the officer’s conduct requires consideration of the totality of the circumstances, to identify potential negligence in the series of actions leading up to the decision to shoot.

Washington courts have maintained that where there is sufficient evidence to submit the question of whether there was an assault and battery to a jury, there may be sufficient evidence to submit the question of negligence as well. The court listed a common set of characteristics found in cases allowing both claims:  (1) use of deadly force; (2) police regulation arguably distinct from the excessive force standard; (3) alternate scenarios where a distinct act of negligence led to a decision to fire; and (4) a negligent act preceding the application of the relevant force of resort to firearms.

The court’s analysis parallels the practice in Washington of allowing claims to be pursued under alternative, and even inconsistent, theories of recovery. An intentional tort claim for excessive force has no bearing on the viability of a negligence claim for violation of the duty to act reasonably. The court asserted that it is for a jury to decide whether or not either claim is properly supported.

The court held that Beltran-Serrano’s intentional tort and negligence claims may coexist under the facts of the case. The court also held that Officer Volk owed a duty under tort law to Beltran-Serrano individually, based on her affirmative conduct through their interaction. Establishing a duty in tort is accomplished by showing the duty breached was owed to an individual and was not merely a general obligation owed to the public. Beltran-Serrano’s negligence claim arises from Officer Volk’s direct interaction with him, not the breach of a generalized public duty. It follows the City owed Beltran-Serrano a duty in tort to exercise reasonable care and that the public duty doctrine does not apply.

Conclusion

Beltran-Serrano properly pleaded a separate negligence cause of action and identified genuine issues of material fact. The City owes an individual a duty to refrain from causing foreseeable harm in the course of law enforcement interaction. The duty in this case is grounded in common law negligence and is owed specifically by Officer Volk to Beltran-Serrano, rather than the public as a whole. As such, a jury will hear Beltran-Serrano’s intentional tort and negligence claims against Officer Volk.

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