Washburn v. City of Federal Way (Division 1, March 26, 2012), is a shocking and depressing case — a wrongful death action against the City following a fatal act of domestic violence. But it would be a mistake to read this case as limited to its terrible facts. The Court’s decision includes a number of must-remember practice rules for all civil litigators, including the Court of Appeals’s limited ability to review denials of summary judgment, the need to object clearly and specifically to jury instructions, and the requirement (apparently previously unstated in Washington law) that a CR 50(a) motion be renewed post-verdict under CR 50(b) to preserve the right to appeal.
First, the facts: Baerbel Roznowski obtained a order of protection stating that her boyfriend, Paul Kim, was required to stay away from her and from her home. She specifically warned the Federal Way Police Department in writing (on a Department form) that Kim was likely to respond violently when served with the order. Despite Roznowski’s warning and the plain terms of the order (which required Kim to stay away from Roznowski’s home and from Roznowski), the Police Department served Kim with the order at Roznowski’s residence with Roznowski present. The officer did not remove Kim from the residence. The officer did not stay to ensure that Roznowski was safe. Instead, the officer informed Kim that Roznowski had obtained an order against him and left Kim at Roznowski’s home with Roznowski.
Kim then left the residence, withdrew money from his bank, gave the money to a friend, returned to Roznowski’s residence, and stabbed Roznowski 18 times. Roznowski’s daughters brought a wrongful death action against the City of Federal Way, both on behalf of the Estate and individually. At trial, the jury concluded that the City was liable for Roznowski’s death and awarded $1.1M to the Estate.
The facts of this case are no doubt shocking. But the Court of Appeals’s opinion is somewhat shocking on the law as well: The Court of Appeals strongly implies that under the applicable law, the City owed no duty of care to Roznowski. However, because of a series of apparent procedural mistakes by the City’s lawyers, the Court of Appeals holds that the City waived its ability to argue for the correct legal standard.