Rogerson v. State

1

TERESA ROGERSON, Appellant, v. STATE OF WASHINGTON and CITY OF SEATTLE, a municipal corporation, Respondents.

No. 84646-9-I

Court of Appeals of Washington, Division 1

November 27, 2023

UNPUBLISHED OPINION

Dwyer J.

Teresa Rogerson appeals from the dismissal of her amended complaint against the City of Seattle (the City), in which she alleges negligence by Seattle Police Department (SPD) officers following her report of rape. Specifically, Rogerson alleges that the City's police officers breached a duty to exercise reasonable care by not promptly submitting for testing the forensic evidence obtained when she underwent a sexual assault examination and by not taking further steps to identify her assailant. In granting the City's motion for summary judgment, the superior court ruled that "there is no claim for negligent investigation" in our state.

Indeed Washington courts of appeals have consistently held that negligent investigation by law enforcement is a noncognizable claim. Our Supreme Court has repeatedly declined invitations to opine differently, thus leaving undisturbed that decisional authority. In dismissing Rogerson's amended complaint, the superior court ruled in accordance with appellate decisional authority. We can find no error in the court so ruling. Rogerson's claims, as pleaded, constitute negligent investigation claims. Accordingly, we affirm the superior court's dismissal of her amended complaint.

I

In 2007, Teresa Rogerson was forcibly abducted from a downtown Seattle sidewalk and violently raped by a man she did not know, who brandished a screwdriver and threatened to kill her. During the incident, an identification card fell out of the man's clothing. Rogerson saw the name "John Lay" on the identification card. The man told Rogerson that he knew she "live[d] at Angeline's, " a nearby homeless shelter for women. He told her that if she reported the rape, he would find and kill her.

Rogerson nevertheless promptly reported the rape to her caseworker at the women's shelter. An SPD officer thereafter arrived at the shelter in response to Rogerson's 911 call. Rogerson recounted the incident to the officer and gave him a detailed description of her assailant. She told the officer that while being held against her will, she had observed the assailant's "prison license, " which indicated that his name was "John Lay." The officer asked Rogerson if she would consent to a sexual assault examination, and she agreed. The officer then drove Rogerson to Harborview Medical Center, where she endured an hours-long painful and invasive examination to enable the collection of forensic evidence. During the examination, Rogerson was "tearful, afraid and despondent." Despite "the care and concern" of the sexual assault nurse examiner Rogerson "felt as if she was reliving the rape all over again."

An SPD detective was thereafter assigned to conduct a follow up investigation of the case. When the assigned detective entered the name "John Lay" into a criminal history database, he discovered an arrest history report for a "Johnny Lay Jr., " whose identifiers matched Rogerson's description of her assailant. The database indicated that "Johnny Lay Jr." was a registered sex offender on active Department of Corrections (DOC) supervision. Notwithstanding the discovery of this information, the detective at no point created a "photo montage" for identification purposes. Nor did he contact the assigned DOC officer to attempt to determine the whereabouts of "Johnny Lay Jr."

A few days after the sexual assault examination, the assigned detective contacted Rogerson by phone to discuss the case and to schedule a follow up interview. According to Rogerson, she repeatedly inquired during the call as to whether the sexual assault kit obtained from the examination had been submitting for testing. The assigned detective assured her that "'the rape kit will be tested.'" He told her, "'[D]on't worry about [the rape kit], '" and that "'it's being taken care of.'" This proved untrue. In fact, the detective closed Rogerson's case as "inactive" within a few weeks of her report, and the sexual assault kit was not submitted for testing until June 2016, nearly a decade later.

In March 2018, SPD received notice from the Washington State Crime Patrol Laboratory that the DNA obtained from Rogerson's sexual assault kit matched that of "Johnny Lay." A different SPD detective, who was then assigned to the case, contacted and interviewed Rogerson. In October 2020, a jury convicted Lay of rape in the second degree for the rape of Rogerson.

Rogerson thereafter filed an amended complaint against the City alleging negligence by SPD police officers following her report of the rape.^[1] Rogerson alleged therein that, despite an express assurance from the assigned detective that her sexual assault kit would be promptly tested, the forensic evidence was not submitted for testing for "over a decade." She further alleged that, had the sexual assault kit been promptly submitted for testing, her assailant would have been easily identified. Instead, Rogerson asserted, she "lived in terror, fear, anxiety and psychological distress for over a decade, " "constantly looking over her shoulder-worrying that the man who raped her would find her and kill her as he had threatened to during the rape."

Specifically, Rogerson pleaded that SPD officers had breached a duty of care owed to her by (1) failing to submit the forensic evidence for testing for over a decade, (2) failing to upload the DNA profile thus obtained into a criminal database, (3) failing to create and provide to her a "photo montage" that included the suspect, (4) failing to contact both the suspect whom she had identified and the suspect's probation officer, and (5) failing to further contact Rogerson following her report of the rape. She alleged that the officers had "failed to take steps to positively identify the rape suspect [whom she] had identified by name" and had "failed to investigate her rape case, " thus breaching a duty to refrain from causing her foreseeable harm. Rogerson further asserted a claim for negligent infliction of emotional distress, alleging that SPD officers breached a duty of care owed to her by failing to promptly submit the sexual assault kit for testing after assuring her that such action would be taken.

The City thereafter filed a motion for summary judgment seeking dismissal of the amended complaint. The City asserted, in part, that Rogerson's claims constituted noncognizable negligent investigation claims. In response to the City's motion, Rogerson replied that "[i]t is undisputed that [the assigned detective's] 'investigation' into the rape . . . was minimal. A conservative estimate of the time it took [him] to complete the actions on [Rogerson's] case is less than an hour." She additionally submitted declarations and deposition testimony of two experts who opined regarding the actions that a "reasonably prudent" detective would have undertaken. Rogerson asserted that, according to those experts, such a detective would have entered the suspect's name into the police department's internal database, contacted the suspect's community custody officer, and required the suspect to participate in a "line up or photo montage" for identification purposes. She alleged that the assigned detective had breached a duty of care by failing to engage in these actions.

On April 8, 2022, the superior court granted the City's motion for summary judgment. The court determined that the asserted causes of action constituted negligent investigation claims and ruled that "there is no claim for negligent investigation" in Washington. Accordingly, the court dismissed Rogerson's amended complaint.

Rogerson appeals.

II

Rogerson asserts that the superior court erred by dismissing her claims against the City as noncognizable negligent investigation claims. This is so, she avers, because her claims are not rendered unactionable in tort merely because the alleged negligent acts and omissions occurred within a police investigation. We disagree. We, along with our colleagues in Divisions Two and Three of this court, have consistently held that our state does not recognize a claim for negligent investigation. Our Supreme Court has provided no indication that this decisional authority is incorrect. Accordingly, we can find no error in the superior court's decision to rule in accordance with that authority. Having determined that the asserted causes of action constitute negligent investigation claims, we conclude that the superior court properly dismissed Rogerson's amended complaint.

We review de novo a trial court's decision on summary judgment, engaging in the same inquiry as did the trial court. Haley v. Amazon.com Servs., LLC, 25 Wn.App 2d 207, 216, 522 P.3d 80 (2022). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c). The moving party bears the burden of demonstrating that there is no disputed issue of material fact. Haley, 25 Wn.App. 2d at 216. "All reasonable inferences must be considered in the light most favorable to the nonmoving party, and summary judgment may be granted only if a reasonable person could reach but one conclusion." Johnson v. Recreational Equip., Inc., 159 Wn.App. 939, 954, 247 P.3d 18 (2011).

"A claim for negligent investigation is not cognizable under Washington law."^[2] Fondren v. Klickitat County, 79 Wn.App. 850, 862, 905 P.2d 928 (1995). We have repeatedly so held. Janaszak v. State, 173 Wn.App. 703, 725, 297 P.3d 723 (2013); Stansfield v. Douglas County, 107 Wn.App. 1, 12-13, 27 P.3d 205, review denied, 145 Wn.2d 1009 (2001);...