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Michael Konicke, as Personal Representative of the Estate of Victoria Konicke v. Evergreen Emergency Services, P.S. et al.

Posted by John K. Kilpatrick | May 20, 2021 | 0 Comments

Single Treatment of Mentally Disturbed Patient Insufficient to Create Duty to Control Conduct.
 
 
Division One of the Court of Appeals handed down another opinion on February 8, 2021 which involved a tragic set of facts. Zachary Konicke ended his relationship with his wife in California in January 2015 and returned to Washington to live with his brother, mother, and father. Over the course of 2015, Zachary's behavior became increasingly odd, including a physical attack on his mother. After a series of events involving strange behavior, Zachary's brother called the police. Zachary was placed in an ambulance and taken to the emergency room. Zachary's brother told the emergency room staff what caused him to call the police. Zachary ended up being evaluated and released, but was not evaluated by a mental health professional. The next day, Zachary killed his mother, attacked his father (Michael Konicke), and set the family home on fire.
 
The surviving husband/father's complaint asserted three causes of action: (1) Negligent supervision; (2) Medical negligence; and (3) Gross negligence in violation of RCW 71.05.120. The defendants filed a motion to dismiss. In response, Michael Konicke abandoned his original claims and filed an amended complaint asserting gross negligence in violation of chapter 71.05 RCW as the sole cause of action. The court ended up granting the defendants' motion for summary judgment finding that RCW 71.05.120 does not create a cause of action and that there was no special relationship between Zachary & the defendants such that the defendants owed a duty of care to third parties. Michael Konicke then moved for reconsideration, which was denied. Michael then appealed the dismissal.
 
As for the argument that a “special relationship” existed, the Court held that since Zachary's relationship with the defendants was not “definite, established, and continuing,” it was not a “special relationship.” Since there was no “special relationship,” the defendants did not have a duty to protect Zachary's mom and dad from Zachary.
As for Michael Konicke's argument that RCW 71.05.120 creates a cause of action, the Court disagreed. The appellate court indicated that the trial court ruled correctly, and that this statute does not create an independent cause of action but, rather, serves to modify already existing causes of action. 

About the Author

John K. Kilpatrick

Associate John earned a Bachelor of Arts from Eckerd College, where he played baseball. John received his J.D. from Stetson University College of Law in 2014. Prior to moving to Seattle, John was an Assistant Public Defender in Clearwater, Florida where he was able to get significant trial exper...

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