Opinion
No. 57069-2-I.
May 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-24712-0, James D. Cayce, J., entered May 30 and 31, July 18, September 16, and October 11, 2005.
The statutory duty of an officer engaged in a high-speed pursuit is set forth in a pattern instruction as a duty to "drive with due regard for the safety of all persons". The pattern instruction adequately explains the statutory duty as interpreted in Mason v. Bitton, 85 Wn.2d 321, 325-326, 534 P.2d 1360 (1975): even when a police vehicle is not directly involved in a collision, the duty can be violated if the police negligently maintain pursuit and the individual pursued causes injury to others. The instruction is neither ambiguous nor misleading, and the trial court did not err in declining to add a clarifying instruction.
FACTS
According to the evidence presented to the jury, Michelle Gunderson stole a car in December 2001. On the evening of Saturday, December 19, she drove the car to a Kent motel where she smoked methamphetamines.
City of Kent police officers knew the motel as a high-crime location and often patrolled there. That evening Officer Sagiao, who was in the motel parking lot, took note of the license plate and learned the car was stolen. Other officers responded to his call for backup. When Gunderson left the motel at approximately 10:00 p.m. Officers Sagiao and Clark tried to pull her over. Gunderson sped away northbound on Pacific Highway South. Officers Sagiao and Clark gave chase with their lights and sirens on.
By the time the chase had gone on for a mile, Gunderson was at the Kent-Des Moines intersection, had reached speeds of close to 100 miles per hour, did not have her headlights on, and was running red lights. Two southbound state troopers turned around and joined the chase, which continued for three more miles. Although the police testified that they formally terminated the pursuit just after South 200th, there was evidence that they still had their sirens and lights on as far north as South 192nd. Gunderson was slowing down when she approached a yellow light at South 188th street but the eastbound lanes had the light by the time she entered the intersection. She crashed into a car carrying Richard and Mary Lou Jones, killing them.
By May 2003, Sheila Kembel was the personal representative of the estates of Richard and Mary Lou Jones. Kembel sued the City of Kent and Gunderson on behalf of the estates. The parties agreed to bifurcate the liability and damages phases of the trial. The liability phase took nine court days. Kembel's theory was that the pursuit officers caused the collision by negligently continuing to chase Gunderson after she began to run red lights at high speeds. The City's theory was that Gunderson alone caused the collision.
The jury found the City of Kent was not negligent. Kembel appeals.
DUTY INSTRUCTION
The trial court gave the pattern instruction on the duty of care owed by the driver of a police pursuit vehicle. Kembel contends the instruction was ambiguous and misleading under these circumstances where the police vehicle was not the direct cause of the collision.
The emergency vehicle statute allows police pursuers to exercise certain privileges such as running red lights, but it does not relieve them of the duty to drive with due regard for the safety of all persons:
(1) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(2) The driver of an authorized emergency vehicle may:
(a) Park or stand, irrespective of the provisions of this chapter;
(b) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(c) Exceed the maximum speed limits so long as he does not endanger life or property;
(d) Disregard regulations governing direction of movement or turning in specified directions.
(3) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of visual signals meeting the requirements of RCW 46.37.190, except that: (a) An authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle; (b) authorized emergency vehicles shall use audible signals when necessary to warn others of the emergency nature of the situation but in no case shall they be required to use audible signals while parked or standing.
(4) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
The Supreme Court resolved an issue about the duty imposed by this statute in Mason v. Bitton, 85 Wn.2d 321, 325-326, 534 P.2d 1360 (1975). A man was killed when a person being pursued by police crashed into him. The estate brought suit against two police agencies alleging that they had been negligent in the manner in which they had carried out the pursuit. The trial court dismissed the suit on summary judgment. The police agencies defended the decision on appeal by arguing that the duty set forth in the emergency vehicle statute "can be violated only in instances where the police vehicle itself is involved in an accident." Mason, 85 Wn.2d at 325. The Supreme Court reversed and remanded for trial, finding no merit to this argument:
The statutory construction urged by the defendants would impose only half a duty and would disregard the intended purpose underlying the statute; i.e., to provide for the safety of all persons and property from all consequences resulting from negligent behavior of the enforcement officers. The safety of those individuals within the intended class of persons protected by RCW 46.61.035 can be jeopardized just as much by the negligence of the pursuer as it can by the negligence of the party being pursued. The defendants' own policy statements recognize that at times it would be more prudent to cease a pursuit in order to protect the public. This clearly evidences that the defendants are aware that innocent third parties may be injured by the individual being pursued, and that it is their responsibility to determine whether the purpose of the pursuit warrants this risk. It is the duty of this court "to construe legislation so as to make it purposeful and effective." This mandates a statutory construction which does not limit the scope of RCW 46.61.035 to situations where only the police vehicle is directly involved in the accident. Therefore, we hold that the trial court erred in holding otherwise.
Mason, 85 Wn.2d at 325-326 (emphasis in original) (citations omitted).
The pattern jury instruction on the duty of pursuit officers, WPI 71.01, closely tracks the wording of the statute. The pattern instruction adds that the duty to drive with due regard for the safety of all persons means a duty to exercise ordinary care under all of the circumstances. As given in this trial, the instruction read as follows:
Defendant City of Kent's police vehicles were authorized emergency vehicles. When an authorized emergency vehicle is in the pursuit of an actual or suspected violator of the law and if an authorized signal is being sounded and if the special lights on the vehicle are in operation, the driver of the emergency vehicle is privileged:
(a) To park or stand, irrespective of the provisions of the law applicable to motorists generally;
(b) To proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(c) To exceed the maximum speed limits so long as life or property is not endangered;
(d) To disregard regulations governing direction of movement or turning in specified directions. These privileges granted to an authorized emergency vehicle do not relieve its driver from the duty to drive with due regard for the safety of all persons under all of the circumstances, including the circumstances of the emergency. Furthermore, these privileges do not protect the driver from the consequences of any reckless disregard of the safety of others.
The duty to drive with due regard for the safety of all persons means a duty to exercise ordinary care under all of the circumstances.
Except for the privileges enumerated and the conditions here set forth when those privileges may be exercised, the driver of an authorized emergency vehicle is subject to the laws applicable to other drivers.
Instruction 23.
Kembel objected on the ground that Instruction 23 did not incorporate the holding of Mason, that is, it did not advise the jury that the police had to consider the danger that Gunderson might run into someone as well as the danger that the police vehicle might run into someone. The modified version proposed by Kembel differs from Instruction 23 in several ways, principally by adding the sentence emphasized below:
Defendant City of Kent's vehicles were authorized emergency vehicles. When an authorized emergency vehicle is in the pursuit of an actual or suspected violator of the law and if an authorized signal is being sounded and if the special lights on the vehicle are in operation when and to the extent reasonably necessary to warn pedestrians and other drivers of its approach, the driver of the emergency vehicle is privileged:
(a) To proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(b) To exceed the maximum speed limits so long as life or property is not endangered;
(c) To disregard regulations governing direction of movement or turning in specified directions. These privileges granted to an authorized emergency vehicle do not relieve its driver from the duty to drive with due regard for the safety of all persons under all of the circumstances, including the circumstances of the emergency. The duty to drive with due regard for the safety of all persons includes consideration of the danger to public safety created by the suspected violator as well as the authorized emergency vehicle.
The duty to drive with due regard for the safety of all persons means a duty to exercise ordinary care under all of the circumstances.
Except for the privileges enumerated and the conditions here set forth when those privileges may be exercised, the driver of an authorized emergency vehicle is subject to the laws applicable to other drivers.
Clerk's Papers at 370 (emphasis added).
Kembel cited Mason as authority for her revision of the instruction. The trial court decided to go with the pattern instruction, while acknowledging that Kembel's version was probably also a correct statement of the law. Kembel assigns error to this decision.
When read as a whole the instructions must allow counsel to argue her theory of the case, must not be misleading, and must properly inform the trier of fact of the applicable law.Falk v. Keene Corp., 113 Wn.2d 645, 655, 782 P.2d 974 (1989). Errors of law in jury instructions are reviewed de novo, and an instruction's erroneous statement of the applicable law is reversible error where it prejudices a party. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). The abuse of discretion standard applies to questions about the number and specific wording of jury instructions. Hue, 127 Wn.2d at 92 n. 23. Here, de novo review is called for because the question is whether an instruction using the language of the statute suffers from ambiguity on the point of law that was settled in Mason.
A statute is ambiguous if it is "susceptible to more than one reasonable meaning". Department of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 12, 43 P.3d 4 (2002). Like the statute, the pattern instruction states that the privileges granted to an authorized emergency vehicle, such as the privilege to exceed the speed limit and to go through a red light, "do not relieve its driver from the duty to drive with due regard for the safety of all persons". Kembel says that this language is susceptible to the interpretation that police have a duty of ordinary care only insofar as their own driving is concerned. She argues that if the trial court in Mason could misunderstand the statute as having that meaning, a jury could likewise be confused by it.
The Supreme Court, however, did not attribute the error committed by the trial court in Mason to any alleged ambiguity in the wording of the statute. The defendants inMason admitted that the duty imposed by the statute includes the duty to act with due regard for the safety of others. Mason, 85 Wn.2d at 324. Yet they asked the court to limit liability to collisions involving the police vehicle itself. The Supreme Court did not find support in the statute for imposing that construction.
The trial court's ruling in Mason reflected what is described as a minority view in a Connecticut case cited by Kembel, Tetro v. Town of Stratford, 189 Conn. 601, 610, 458 A.2d 5 (Conn. 1983). In Tetro, the Stratford police approached three young men in a Chevrolet because they "looked too young to have valid driver's licenses."Tetro, 189 Conn. at 602-603. When the Chevrolet drove off, the police followed and a high speed chase ensued, ending when the Chevrolet turned the wrong way down a one-way street and crashed into another car. The injured driver sued the Town of Stratford for his injuries and obtained a judgment. The Town argued on appeal that the negligence of the driver of the Chevrolet was the sole proximate cause of the victim's injuries as a matter of law. The Connecticut court, however, affirmed the judgment and cited Mason as representing the more modern and better-reasoned view.
The statute at issue in Tetro was virtually identical to ours and it stated, as ours does, that the driver of the emergency vehicle retains "the duty to drive with due regard for the safety of all persons and property." In view of this language, the court rejected the Town's argument that the statute limited the scope of duty of the officers to incidents involving collisions with the emergency vehicle itself.Tetro, 189 Conn. at 609.
If such a limitation had been adopted in Mason, it would have been grounded in considerations extraneous to the language of the statute. Then it would have become necessary to modify the pattern instruction because the statutory language would not have been an accurate statement of the law. But Mason does not impose an artificial meaning on the statute. Consequently there was no necessity to supplement the pattern instruction in the manner proposed by Kembel. Neither Mason nor Tetro suggests that the statute itself is susceptible to more than one meaning.
Kembel's theory was that Gunderson would have slowed down sooner if the police had stopped chasing her. She has not shown how Instruction 23 was an obstacle to arguing her theory. Kembel presented expert testimony by former Bellevue Police Chief Donald Van Blaricom. He stated his opinion that if the police had terminated the pursuit once they saw Gunderson running red lights, Gunderson would have slowed down and blended into traffic before reaching South 188th. He used the analogy that the person being chased "is a rocket, the police are the rocket fuel. If you turn off the fuel the rocket slows down. It stops." The City responded with evidence that the traffic was light and that Gunderson continued to drive too fast even after she could see the officers were no longer behind her. The City emphasized the importance of arresting Gunderson and presented expert opinions that the pursuit was reasonable notwithstanding the risk. The trial judge, who was well aware of Mason, certainly would not have permitted the City to argue that under Instruction 23 the only risk to be perceived was the risk of a collision involving a police vehicle.
Report of Proceedings (June 14, 2005) at 34.
Instruction 23 was neither ambiguous, nor misleading, nor an incomplete statement of the applicable law. We find no instructional error.
THE PURSUIT POLICIES
Kembel contends that the court erred by declining to strike testimony the City elicited from former Chief Van Blaricom about Kent's pursuit policy. She contends the City prejudicially violated a ruling that barred this topic from being discussed.
Some police agencies have a policy that officers should not pursue unless the eluder is suspected of committing a violent felony. The City of Kent does not have this restriction. Kembel moved before trial to prevent the City from attempting to label an expert witness who favored the restriction as "anti-pursuit" or "anti-chase." The City opposed her motion, and brought its own motion to exclude testimony that the City should have adopted a more restrictive policy. The trial court did not grant either motion.
Clerk's Papers at 438 (May 16, 2005; Plaintiff's Motion in Limine Regarding Testimony of Defense Experts).
Clerk's Papers at 516 (May 24, 2005; Defendant's Response to Plaintiffs' Motion in Limine re: Defense Experts).
Clerk's Papers at 320 (May 16, 2005; Defendant City of Kent's Motions in Limine).
Clerk's Papers at 548 (May 31, 2005; Order on Plaintiff's Motion in Limine; Clerk's Papers at 559 (May 31, 2005; Order on Defendant's Motions in Limine).
Trial testimony began on June 6, 2005. Both sides brought out testimony relating to various agencies' pursuit policies during Kembel's case without objection. The City elicited from one of the troopers involved in the pursuit that the State Patrol has an "open-ended" pursuit policy: "if someone does not stop we can pursue them until situations arise that lead us to believe that it's just safer to let them go." Kembel put into evidence Gunderson's deposition, in which she talked about her understanding of pursuit policies.
Report of Proceedings (June 7, 2005) at 26.
Clerk's Papers at 1440 (Gunderson Deposition); Report of Proceedings (June 7, 2005) at 80 (deposition read to jury).
No one objected to testimony mentioning a pursuit policy until June 9 when the plaintiff was conducting direct examination of Sergeant Thomas, the Kent officer who supervised Officers Sagiao and Clark as they were pursuing Gunderson. Kembel questioned Sergeant Thomas about "pursuit reports" that were critical of how Officers Sagiao and Clark had performed in several prior pursuits. On cross-examination Sergeant Thomas was asked if the pursuit reports were prepared "because of policies that exist within the City of Kent". Sergeant Thomas answered that they were. The City then asked him how the Kent policies had been developed. Kembel objected and requested a sidebar where she discussed the motions in limine and asserted that the parties had agreed it was irrelevant whether the officers had complied with the City's policies. The lawyer for the City responded there had been no agreement to make the pursuit policy an off-limits topic. The court ordered the parties to file briefs on the issue.
Report of Proceedings (June 9, 2005) at 50.
Report of Proceedings (June 9, 2005) at 54.
Report of Proceedings (June 9, 2005) at 61-63.
Meanwhile, Kembel presented an expert witness who testified that his research indicated fleeing suspects generally stop driving recklessly when they see that law enforcement was terminating a pursuit. Without objection, the court read a juror question asking if officers had changed their tactics as a result of the expert's training efforts. The expert answered that "there are a lot of cities that do not chase stolen vehicles."
Report of Proceedings (June 9, 2005) at 144.
Before the next trial day, June 14, the parties had briefed the admissibility of testimony about pursuit policies. After hearing argument, the court granted Kembel's motion to exclude, on relevance grounds, testimony that the pursuit had been conducted in conformance with the Kent policy: "The policy is irrelevant. Unless the policy itself is negligent and no one is alleging it is." But the court found the door had been opened to testimony that the past pursuits by Officer Sagaio and Clark had been found to comply with City policy:
Clerk's Papers at 860 (Memorandum Re: Discovery and Testimony regarding KPD Pursuit Policy); Clerk's Papers at 886 (Plaintiff's Motion in Limine Re Kent's pursuit Policy).
Report of Proceedings (June 14, 2005) at 8.
THE COURT: The policy that I will allow, however, because I think it has been made relevant by the plaintiffs, is all of this record keeping; the reports and the reason that they keep the reports and that sort of thing. Not the pursuit policy.
I mean, the fact that they write up each pursuit I think by policy is something that you can inquire into.
MR. COOLEY: If allowed I would put on the evidence that every one of the pursuits were reviewed and found to be in conformance with our policy.
THE COURT: If the door has been opened for that.
MR. COOLEY: It has been.
THE COURT: Yes.
MR. COOLEY: Thank you, Your Honor.
Has the door been — or is it going to be permissible for me to ask Sergeant Thomas do you have a — does a pursuit require a sergeant to supervise the pursuits?
THE COURT: No, because it's not relevant. In fact, he did. It doesn't matter [whether] the policy requires it or not.
MR. COOLEY: Can I ask, does a pursuit require a secondary officer to call the pursuit? And I'm asking that because we had a juror question yesterday about whether or not procedure requires the pursuit to be terminated once the secondary officer is not able to call it any longer.
THE COURT: Again, policy doesn't matter. I mean, you can ask those questions otherwise I think as a reasonable police officer supervising a pursuit or calling a pursuit or being the lead vehicle on a pursuit, but not — what Kent policy is with respect to that doesn't matter.
Report of Proceedings (June 14, 2005) at 11-12.
Shortly after the trial court made this ruling, Kembel called her last witness, former Chief Van Blaricom. On direct examination, he stated that his job as a police chief was to set policy and make certain his officers conformed to it. He also mentioned on direct examination that he had reviewed the "Kent Police Department pursuit policy" to form his opinions. Van Blaricom opined that it was reasonable for the officers to begin their pursuit of Gunderson. But Van Blaricom believed police had acted unreasonably after the pursuit began because they had failed to terminate the pursuit once they saw her run the red light at the Kent-Des Moines intersection at 80 to 100 miles per hour.
Report of Proceedings (June 14, 2005) at 18.
Report of Proceedings (June 14, 2005) at 20.
Report of Proceedings (June 14, 2005) at 29.
Report of Proceedings (June 14, 2005) at 39.
On cross-examination, Van Blaricom responded to a series of questions by the City by stating he had prohibited his officers from chasing suspects who were involved in DWIs, misdemeanors, gross misdemeanors, and car thefts. He said, "that's still the policy in the City of Bellevue as it is in most cities around here," and commented, "I'm not going to kill people for misdemeanors." Kembel did not object during any of this testimony.
Report of Proceedings (June 14, 2005) at 57.
The City then brought out that Van Blaricom's policy stood in contrast to the policies of the Washington State Patrol and the City of Kent:
Q And you barred any officers from chasing for a felony unless it was what you had termed to be a violent felony, correct?
A That's exactly right.
Q Now, the Washington State Patrol does not have such a policy, correct?
A No, sir, they didn't and don't have such a policy.
Q And neither does the City of Kent, correct?
A No, neither does the City of Kent.
Report of Proceedings (June 14, 2005) at 57-58.
Kembel still did not object. On redirect examination, Kembel again brought up the subject of the Bellevue pursuit policy. In response to Kembel's questions, Van Blaricom again testified that even "putting aside the Bellevue policy," it had been reasonable for the officers to begin their pursuit of Gunderson.
Report of Proceedings (June 14, 2005) at 67.
At a sidebar shortly after Van Blaricom stepped down, Kembel objected that the City had violated the court's earlier ruling by eliciting the testimony that the City of Kent does not limit pursuits to violent felonies. Kembel asked the court to instruct the jury to disregard any testimony regarding the Kent policy. The court ruled that this objection had come too late. "I made rulings. If you think that there's a question that's in violation of a ruling then you need to object." The court also pointed out that the testimony could not have prejudiced Kembel because Van Blaricom had agreed that the Bellevue officers had not been negligent in beginning the pursuit.
Report of Proceedings (June 14, 2005) at 82.
On appeal, Kembel alleges that the City prejudicially violated the court's ruling. A trial court's decision to admit evidence is reviewed for abuse of discretion. Mason v. Bon Marche Corp., 64 Wn.2d 177, 178, 390 P.2d 997 (1964).
The City contends that Kembel waived this issue when she failed to raise an immediate objection.
Generally, only the party on the losing end of a motion in limine can have a standing objection to evidence. State v. Sullivan, 69 Wn. App. 167, 171-72, 847 P.2d 953 (1993). "In a situation where a party prevails on a motion in limine and thereafter suspects a violation of that ruling, the party has a duty to bring the violation to the attention of the court and allow the court to decide what remedy, if any, to direct." A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004). But in Sullivan and A.C., the party who attempted to bring up the evidentiary issue on appeal had done nothing below to bring the problem to the attention of the trial court at a time when it could still be remedied. Here, Kembel brought the matter to the court's attention at a sidebar soon after the objectionable question and answer about the City of Kent. Because the sidebar discussion provided the court with a timely opportunity to provide a remedy by instructing the jury to disregard the exchange, we conclude Kembel has preserved the alleged violation for review.
Nevertheless, this is not a case like State v. Smith, 189 Wash. 422, 429, 65 P.2d 1075 (1937), on which Kembel principally relies. Smith holds that prejudice must be presumed when a party deliberately violates an in limine ruling. In Smith, a criminal case, defendant Smith was a military deserter. The prosecutor asked him about the manner in which he was separated from the Marine Corps. This was a clear violation of an order the trial court had just made forbidding the State to ask that very question. "The question was highly prejudicial and of such a nature that the prejudice largely consists in the mere asking of the question."Smith, 189 Wash. at 428.
Here, it is not clear that the City was acting in deliberate disregard of the court's ruling. Van Blaricom's first mention of the Kent pursuit policy was in answer to a question posed ondirect examination, and the City could have believed his remarks had opened the door to questions about what the City's policy was and whether the officers were complying with it. The question did come soon after the ruling, but the question at issue was not one of the specific questions the City's attorney had discussed with the trial court. And the question was not inherently prejudicial such that the mere asking of it was necessarily designed to prejudice the jury in favor of the police. Kembel's theory was that police were negligent in letting the chase go on too long, not that they were wrong to begin it. For the jury to learn that the City of Kent had no policy barring pursuits did not damage this theory.
Kembel contends she based her case on the understanding that evidence of the pursuit policy would not come in. But the trial court did not grant Kembel's pretrial motion to exclude such evidence; the ruling she contends the City violated was not made until just before Van Blaricom testified. Although she claims the parties had agreed before trial to make the pursuit policy off-limits, the trial court did not find this to be so after reviewing briefing on the issue and making its decision on June 14.
Report of Proceedings (June 14, 2005) at 3-13.
Kembel argues that the irrelevant testimony about Kent's policy may have confused the jury into thinking the pursuit of Gunderson was acceptable because it complied with city policy. She says the same thing about a later ruling on June 20 in which the court allowed defense witnesses to testify that prior pursuits by the officers were in compliance with Kent's pursuit policy. Kembel's argument is speculative. The jury was instructed that the officers had a duty to drive with due regard for the safety of all persons under the circumstances of the emergency. A jury is presumed to follow the court's instructions. A.C. v. Bellingham School District, 125 Wn. App. 511, 521-522, 105 P.3d 400 (2004). We think it unlikely that hearing one or two isolated references to the City of Kent's pursuit policy would have diverted the jury from its responsibility to evaluate the police conduct according to the instructions given.
Report of Proceedings (June 20, 2005) at 77.
EMPLOYER NEGLIGENCE
In the complaint, Kembel alleged that the City had a duty to use reasonable care in hiring, training, supervising, monitoring, and retaining police personnel. She alleged the City had breached this duty and that the breach proximately caused the death of the Joneses. The City moved under CR 12(b)(6) to dismiss these employer negligence claims. The motion admitted that all of the City's employees had been acting in the scope of their employment at the relevant times and argued that the employer negligence claims were thereby rendered irrelevant.
The court granted the motion to dismiss. Kembel contends this decision was error. The City responds that the dismissal was correct. The City suggests that the employer negligence claims were asserted as a tool to introduce prejudicial and irrelevant evidence of prior bad acts by the officers in question. The City has cross-appealed on the basis that after dismissing Kembel's claim of negligent supervision and training, the court nevertheless erroneously admitted a substantial amount of "prior bad act" evidence from the City's records about how the Kent officers who chased Gunderson had performed during other pursuits.
Whether a CR 12(b)(6) dismissal was appropriate is a question of law reviewed de novo. Dismissal is appropriate only if it appears beyond doubt that the plaintiff cannot prove any set of facts that would justify recovery. A plaintiff's allegations are presumed to be true and a court may consider hypothetical facts not included in the record. Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005).
We considered a similar issue in Gilliam v. DSHS, 89 Wn. App. 569, 584-585, 950 P.2d 20 (1998). Gilliam's ex-wife alleged to Child Protective Services that their two children said Gilliam molested them. Eventually, Gilliam rebutted these allegations and was reunited with his children. He brought suit against the caseworker Ann Morrow for her alleged negligence in handling his case and against the State for its alleged negligence in supervising Morrow. The trial court dismissed the suit. On appeal, we reinstated the cause of action against the caseworker. But we affirmed the dismissal of the negligent supervision claims against the State:
Here, the State acknowledged Morrow was acting within the scope of her employment, and that the State would be vicariously liable for her conduct. Under these circumstances a cause of action for negligent supervision is redundant. If Gilliam proves Morrow's liability, the State will also be liable. If Gilliam fails to prove Morrow's liability, the State cannot be liable even if its supervision was negligent.
Gilliam, 89 Wn. App. at 585.
The Gilliam rationale applies to this case because the City agreed that it would be vicariously liable for any negligence on the part of the officers. If Kembel could prove the officers were negligent, the City would be liable. But since she has failed to prove the officers were negligent, the City cannot be liable even if the City was negligent in hiring, training, supervising, monitoring, or retaining them.
Kembel falls back on her argument that the jury might have believed that the officers complied with an official pursuit policy. If so, she argues, the jury might have exonerated the officers but nonetheless found the City negligent in allowing these particular officers to participate in high-speed pursuits. Again, Kembel offers no persuasive reason why the jury would have failed to use the court's instructions as the standard for determining negligence.
The trial court properly granted the motion to dismiss.
Judgment for the City of Kent is affirmed. In light of this decision it is unnecessary for us to address the City's cross-appeal.