Lacy v. Snohomish Cnty.

SARA L. LACY in her personal capacity and as personal representativeof the Estate of CECIL D. LACY, JR., deceased, Appellant/Cross Respondent, v. SNOHOMISH COUNTY, a political subdivision of the State of Washington;Respondent/Cross Appellant, MICHAEL JOHNSEN, in his personal capacity;TYLER GROSS, in his personal capacity, Defendants.

No. 79294-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

October 5, 2020

UNPUBLISHED OPINION

SMITH, J. — "[I'm] freaking out. . . . [I] can't breathe," Cecil Lacy Jr.¹ exclaimed, as he lay face down with Snohomish County Sheriff Deputy Tyler Pendergrass's weight on his back. Deputy Pendergrass responded, "'Cecil, you're breathing. You're talking. You're breathing. Just focus on deep breaths[ ] . . . and calm down.'" All the while, Deputy Pendergrass maintained pressure on Cecil's back. Cecil, who was experiencing an episode of exciteddelirium, quickly became unconscious. Following attempts to provide aid, Cecil was declared dead at the scene. The entire interaction—from when Deputy Pendergrass first approached Cecil to when Cecil became unconscious—lasted less than nine minutes.

Following Cecil's death, his wife, Sara Lacy, sued Snohomish County (County) alleging, among other claims, battery and negligence. After Sara rested her case, the trial court granted the County's motion for a directed verdict with regard to all of Sara's claims. Sara appealed.

We conclude that Sara presented insufficient evidence for a reasonable juror to find that proximate cause existed for any of the negligence theories that she asserted. Accordingly, the trial court did not err by entering a directed verdict on those theories. However, because Sara's police practices expert testified that a reasonable officer would have recognized that Cecil was suffering from excited delirium, avoided applying pressure to Cecil's back while he was in a prone position, and removed the pressure immediately after Cecil said he could not breathe, the trial court erred when it entered a directed verdict with regard to Sara's battery claim. Therefore, we reverse in part and remand for trial on the battery claim.

FACTS

The testimony and exhibits offered at trial provide the basis for this statement of facts. And because our review is of a directed verdict, we present the facts in the light most favorable to Sara.

Around 9:30 p.m. on September 18, 2015, 46-year-old Cecil, a Tulalip

Tribal member, left his home in Tulalip, Washington, and began walking on State Route 529, also known as Marine View Drive. At 9:47 p.m., dispatch for the County received a call about a potential road hazard: a man walking on the side of the road. Deputy Pendergrass and Tulalip Tribal Police Sergeant Michael Johnsen and Officer Tyler Gross (collectively officers) responded to the call. Deputy Pendergrass arrived on the scene at approximately 10:06 p.m. When Deputy Pendergrass arrived, Officer Gross was parked on the shoulder of the road but had been instructed by Sergeant Johnsen, his training officer, to wait to approach Cecil. Sergeant Johnsen arrived shortly after Deputy Pendergrass.

At around 10:07 p.m., Deputy Pendergrass exited his vehicle. As he approached Cecil, Cecil walked toward him, and Deputy Pendergrass later testified that at the time, he was afraid Cecil was going to attack him. Deputy Pendergrass radioed for backup and commanded Cecil to stop. Cecil complied. When asked what he was doing, Cecil told Deputy Pendergrass that "he was out for a nightly exercise walking down the roadway." Officer Gross joined Deputy Pendergrass and eventually so did Sergeant Johnsen.

In Sergeant Johnsen's body camera footage later admitted at trial, Cecil can be seen unable to stand still and speaking rapidly. Cecil explained to Sergeant Johnsen that he suffered from mental health conditions that made it difficult for him to stand still.² At that point, Sergeant Johnsen said to Deputy Pendergrass, "We can take him, if that's cool with you." Deputy Pendergrassagreed. The officers then persuaded Cecil to receive a ride home from Sergeant Johnsen. But as Sergeant Johnsen attempted to handcuff Cecil, Cecil panicked and became agitated. Cecil repeatedly asked the officers to call his wife to come pick him up. The officers explained to Cecil that they could either take him home or to a hospital and that he was not under arrest. And Deputy Pendergrass pointed his stun gun at Cecil and told him: "I want you to relax or you're going to get tased." Eventually, Cecil calmed down and asked to be handcuffed in front of his body because his "shoulders are really bad." Sergeant Johnsen agreed, handcuffed Cecil, and frisked him for weapons.

Upon finding no weapons, at around 10:12 p.m., the officers walked Cecil to Officer Gross's patrol vehicle. On the way to the vehicle, Cecil expressed serious concern about going to the hospital because he had experienced abuse on multiple occasions while being treated at mental health facilities. Cecil ultimately got into the vehicle. He remained in the vehicle for a moment but then quickly exited "the vehicle and pushed [Officer Gross] aside" in an "attempt[ ] to get away from" the officers. In the video footage, one officer can be heard repeatedly saying, "Now, we're gonna take you to the hospital." Cecil responds, "Take me to the hospital" and pleads with the officers not to put him in the patrol vehicle. Nonetheless, the officers calmed Cecil down, and Cecil got back into the vehicle.

Cecil's composure was short-lived. At around 10:13 p.m., a struggle began when "Officer Gross and Sergeant Johnsen went to shut the vehicle's door" and Cecil "jumped out swinging his arms wildly . . . causing him to hitSergeant Johns[e]n [and] knock[ ] his bodycam[era] off." The officers attempted to subdue Cecil and "to get him back into the patrol car," but Cecil "essentially drug [Sergeant Johnsen], Officer Gross and Deputy Pendergrass to the front of the vehicle." Unable to gain control of Cecil, Deputy Pendergrass deployed his stun gun on Cecil's upper right shoulder in drive stun mode.³ The stun gun was ineffective, and Deputy Pendergrass lost his stun gun as the struggle continued.

Sergeant Johnsen performed a leg sweep, a maneuver by which Sergeant Johnsen brought Cecil to the ground. Cecil ended up in a prone position in the ditch beyond the shoulder of the road. Officer Gross attempted to restrain Cecil by crossing Cecil's feet and pressing them up to Cecil's buttocks; Sergeant Johnsen restrained Cecil's handcuffed hands above Cecil's head; and Deputy Pendergrass applied pressure "somewhere between Mr. Lacy's buttocks and his shoulder blades," "holding [Cecil] down." At some point during the struggle, Deputy Pendergrass radioed to "close the air," which meant that an incident was ongoing.

While the officers attempted to subdue Cecil, Cecil said that he was "struggling to breathe," was "freaking out," and could not breathe. The officers commanded Cecil to calm down and take a breath. Deputy Pendergrass continued to put weight on Cecil's back, and "[Cecil] continued to struggle" for about 10 or 15 seconds. Cecil became unresponsive at approximately 10:14 p.m. Deputy Pendergrass testified that he attempted to rouse Cecil oncehe became unresponsive and then moved his weight off of Cecil's back. Thereafter, the officers rolled Cecil over and once more, without success, attempted to obtain a response from Cecil. At this point, Deputy Pendergrass called for "'one more unit.'"

At 10:17 p.m., Deputy Pendergrass called to expedite aid, and Sergeant Johnsen started checking Cecil's vitals. Sergeant Johnsen did not start cardiopulmonary resuscitation (CPR) because he could not find Cecil's pulse. At the same time, Deputy Pendergrass returned to his vehicle to look for a CPR mask. And at 10:18 p.m., the officers were "still working on [Cecil's] breathing status." When Deputy Pendergrass returned to Cecil at around 10:19 p.m., he "rechecked for vitals, confirmed that there was no pulse and no breathing," and started CPR.

At 10:22 p.m., Tulalip Bay Fire Department emergency medical technicians (EMTs) arrived on the scene and began to administer aid. At 10:26 p.m., CPR was still in progress, and the officers made an additional request for "aid to exp[e]dite." At 10:29 p.m., 23 minutes after Deputy Pendergrass first arrived on scene and 12 minutes after Deputy Pendergrass called for aid, Marysville Fire Department paramedics arrived and immediately began providing aid.

Cecil was pronounced dead at the scene. The County medical examiner's officer stated that Cecil died from "cardiac arrhythmia due to acute drug intoxication due to methamphetamine [and that] other significant conditions contributory to death were hypertension, dilated cardiomyopathy, schizophrenia,bipolar disorder, morbid obesity[,] and physical struggle with law enforcement."

PROCEDURE

In September 2016, Sara, in her individual capacity and as personal representative of Cecil's estate, sued the County. In her second amended complaint, Sara asserted five claims for relief: (1) negligence and gross negligence, (2) false imprisonment, (3) battery, (4) negligent use of excessive force, and (5) outrage. In one of Sara's negligence theories, she argued that the County failed to train or supervise Deputy Pendergrass. Sara also generally alleged that the "County is[ ] and was . . . responsible for the actions or inactions[ ] . . . of the Snohomish County Sheriff's Office and its employees, including" Deputy Pendergrass and that Deputy "Pendergrass w[as] acting within the course and scope of [his] employment during the incident that gave rise to [the] complaint." In its answer to Sara's complaint, the County admitted this allegation.

During discovery, Sara's police practices expert, Susan Peters, opined in her expert report as to Deputy Pendergrass's failure to stage aid, the County's negligent supervision and training, and Deputy Pendergrass's failure to recognize Cecil's...