Mark Potter, Appellant, v. The Washington State Patrol, Respondent, 161 Wash. 2d 335

¶1 This class action case seeks damages proximately caused by alleged conversion, based upon wrongful impoundment of vehicles. The foundation for the claim arises from In re Impoundment of Chevrolet Truck, 148 Wn.2d 145, 60 P.3d 53 (2002), where we held that the Washington State Patrol’s (WSP) mandatory vehicle im-poundment policy exceeded statutory authority. Mark Potter claimed that his cars were unlawfully impounded on two separate occasions. On the basis of the Restatement (Second) of Torts section 265 (1977), the trial court granted the WSP’s motion for

summary judgment. Under this section, the trial court held that the decision to impound the vehicles was privileged and dismissed the case. Potter appealed to the Court of Appeals, which certified the case to us, and we accepted direct review. We reverse the trial court and remand for further proceedings. C. Johnson, J. FACTS ¶2 Twice in a six month period, the WSP impounded a vehicle Potter was driving; in both instances for driving while license suspended in the first degree. The first im-poundment occurred when Potter’s mother was in the vehicle. The officer did not allow her to take possession of the vehicle.

In the second instance, the vehicle was parked on the side of a rural road. In both instances, the officer impounded the vehicles. A hold was placed on the vehicles for 90 days. Potter claims he could not pay the fees associated with the impoundments and holds. He did not request a hearing or otherwise challenge the impound-ments and both vehicles were auctioned. Clerk’s Papers at 209-10. ¶3 Potter filed this lawsuit as a class action, which the trial court certified.

Potter’s class consists of all registered owners cited for driving while license suspended whose vehicles were impounded by the WSP under the mandatory impoundment policy set out in WAC 204-96-010. The impoundments all occurred prior to our decision in In re Impoundment of Chevrolet Truck, 148 Wn.2d 145. Potter moved for

summary judgment on liability for conversion. The State cross-moved, seeking dismissal. The trial court granted the State’s motion and denied Potter’s. ANALYSIS ¶4 We accepted review to decide whether the immunity from civil liability for acts committed in the discharge of a duty or authority created by law, see Restatement (Second) of Torts

section 265, extends to the WSP’s impoundment of vehicles of drivers with suspended or revoked licenses under regulations held unlawful in In re Impoundment of Chevrolet Truck, 148 Wn.2d 145. ¶5 We undertake the same inquiry as the trial court in reviewing a grant of

summary judgment. There must be no genuine issue of any material fact and the moving party must be entitled to judgment as a matter of law. The court must consider all facts submitted and reasonable inferences from the facts in the light most favorable to the nonmoving party. Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005). ¶6 The Restatement (Second) of Torts

section 265 sets out the following privilege: One is privileged to commit

an act which would otherwise be a trespass to a chattel or a conversion if he is acting in discharge of a duty or authority created by law to preserve the public safety, health, peace, or other public interest, and his act is reasonably necessary to the performance of his duty or the exercise of his authority.

Applying this section, the trial judge reasoned: “The key inquiry is whether or not the action was, under authority, created by law to preserve the public safety or other public interests, and whether or not the act was reasonably necessary to the performance of the duty or exercise of authority.” Report of Proceedings (RP) at 41-42. The trial judge found that the officers had authority to impound and that the manner in which they exercised that authority was reasonable.

The trial court concluded that since the officers’ actions were authorized and reasonable, the WSP was protected by the privilege extended to its officers. RP at 42. ¶7 We have found no Washington cases adopting or recognizing Restatement (Second) of Torts

section 265 as a basis to make privileged otherwise unauthorized conduct, and we decline to apply the

section to this case. First, the privilege, even if we were to recognize it, is applicable only to cases involving the reasonableness of acts by individuals. See, e.g., Restatement (Second) of Torts § 265 cmts. a-d (referring to the actions of “an officer or a private citizen,” a “public officer,” and “an inspector, surveyor, or other administrative officer”). This is borne out by review of the cases discussing the privilege, all of which involve claims emanating from individual’s exercise of discretion. See Reimer v.

Short, 578 F.2d 621, 627-28 (5th Cir. 1978) (liability premised on actions of police officers); Downs v. United States, 522 F.2d 990, 1003-04 (6th Cir. 1975) (liability premised on actions of Federal Bureau of Investigations agent); Blake v. Delaware City, 441 F. Supp. 1189, 1205 n.64 (D. Del. 1977) (liability premised on actions of municipal officials, police officers, citizens). ¶8 Potter is not suing any individual officer. Br. of Resp’t at 24 n.13.

He is not alleging that the harm resulted from the conduct of any individual officer but rather from a WSP directive that unlawfully required impoundment and eliminated individual discretion. The WSP’s argument regarding the reasonableness of WSP officers’ actions is not controlling of the issue presented. ¶9 The WSP argues that there has been no showing that the manner in which the impoundments were carried out was unreasonable. Br. of Resp’t at 21. This argument confuses the lawfulness of the actions of its officers, the requirements to invoke the

section 265 privilege, and the basis for its own liability. The privilege described in

section 265, if or where it exists, is concerned with how an individual interprets and applies his or her duty or authority to preserve public safety, health, peace, or other public interest. The

section asks whether the agent’s application of that duty or authority was proper, whether it was premised on the individual’s role in serving some public interest goal, and whether it was reasonably necessary to accomplishing that goal. As such, it does not apply to instances, as here, where the harm arises from a strict mandate and the individual has no room to interpret, or cause to question, his or her duty.

The privilege is inapplicable in this case because it is relevant only in situations where liability results from the actions of individual officers acting with some discretion. ¶10 The WSP argues it had a privilege grounded in an effort to preserve public safety. “The impoundment of Mr. Potter’s vehicles was carried out under the authority of RCW 46.55.113 and former WAC 204-96-010 in order to further public safety.” Br. of Resp’t at 20.

This argument fails because the authority under which the impoundments were carried out by individual WSP officers is irrelevant to the basis of WSP’s liability for mandating impoundment— the WSP had no independent authority to mandate impoundment. ¶11 The WSP caused the impoundments by promulgating WAC 204-96-010, a mandate to impound that was in excess of its statutory authority. In re Impoundment of Chevrolet Truck, 148 Wn.2d at 156-57. And

section 265 does not privilege an agency for its incorrect

interpretation of its statutory authority, even where it interpreted its authority in pursuit of a public safety goal.

Section 265 presumes authority to act; authority does not arise by the mere endeavor to advance public safety. Under

section 265,

an act “in discharge of a duty or authority created by law” may be privileged. But “[i]t is beyond the scope of this Restatement to state when an officer ... is authorized to act.” Restatement (Second) of Torts § 265 cmt. a. ¶12 Our cases do not support extending a privilege to the WSP under the circumstances here. In Savage v. State, 127 Wn.2d 434, 899 P.2d 1270 (1995), we denied a request to extend a parole officer’s immunity to the State or agency.

We explained that holding the State liable would “have the salutary effect of providing the State an incentive to ensure that reasonable care is used in fashioning guidelines and procedures.” Savage, 127 Wn.2d at 446. The State argues that Savage is inapplicable as a qualified immunity case. It suggests that to rely on Savage would erode a distinction between privileges and immunities. Br. of Resp’t at 24 (citing Prosser and Keeton on the Law of Torts § 16, at 109 (W.

Page Keeton ed., 5th ed. 1984) (stating that privileges involve justifiable motives, while an immunity permits no inquiry into motives)). ¶13 The suggested distinction between privileges and immunities is not undermined by our conclusion that the WSP, as the WAC-promulgating authority, has no privilege under

section 265, and so the distinction erodes none of Savage’s relevance. Any tortious conduct here was a consequence of the WSP’s promulgation of WAC 204-96-010. Its officers had essentially no role in causing its liability, and whether they are protected by a privilege or immunity, the WSP’s liability is premised on a distinct basis. See Restatement (Second) of Agency § 217 cmt. b (1958) (“[W]here the principal directs an agent to act, or the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal.”).

The WSP cannot shield itself from liability for its policies based on a privilege that applies only to individuals and presumes authority to act. CONCLUSION ¶14 We find that

summary judgment was improperly granted. The WSP may be liable for conversion, and it is not privileged under Restatement (Second) of Torts

section 265. The trial court is reversed, and this case is remanded to the trial court for further proceedings. Sanders, Bridge, and Owens, JJ., and Becker, J. Pro Tem., concur. If the driver is arrested for first degree driving while license suspended and has two or more prior convictions of RCW 46.20.342(1)(

a) or (

b) in the last five years, the WSP can order a hold on the vehicle for up to 90 days. RCW 46.55.120(1)(a); WAC 204-96-010. Potter seeks damages proximately caused by the impoundments. The trial court order certifying the class is not before us in this case. The dissent argues we should review the order to serve the interests of judicial efficiency and save the parties time and costs, citing RAP 1.2(c). Dissent at 346 n.6.

The dissent argues that even though impoundment of Potter’s vehicles would have been justified, “in other class members’ cases where impoundment occurred while former WAC 204-96-010 was in effect, this would not be the case.” Dissent at 348. The dissent cites no part of the record to support this assertion. The WSP expressly declined to attack the class, and hence the propriety of class certification was not briefed. See Br. of Resp’t at 35 (“If Mr.

Potter argues a theory other than per se conversion based on the invalidated administrative rule, the State Patrol should have the right to dissolve the class before addressing Mr. Potter’s individual claim.”). In addition, no arguments or evidence on the subject were before the trial court. Notwithstanding our authority under RAP 1.2(

c) to waive the rules of appellate procedure to serve the ends of justice, generally an appellate court will consider only evidence and issues called to the attention of the trial court. RAP 9.12. To address the order certifying the class would require inferences from facts not in the record, and hence we decline to reach that issue at this time. In their briefing, the parties have raised arguments concerning the elements of conversion and the applicability of statutory sections relating to the impoundment process.

Given the narrow basis of the trial court’s ruling, we do not address or resolve these additional issues. Regarding the impoundments that gave rise to In re Impoundment of Chevrolet Truck, we said the officers lacked necessary discretion. “Since WAC 204-96-010 divests officers of all discretion on whether to impound a particular vehicle, the officer who impounded All Around’s van cannot have reasonably exercised discretion he did not have.” In re Impoundment of Chevrolet Truck, 148 Wn.2d at 150 n.2. For individual WSP officers, the inapplicability of this

section to this case does not necessarily expose them to liability. Insofar as they had no discretion under the mandate to impound, they are not individually liable.