author: NAKAMOTO, J.

text:
    EUGENE WATER AND ELECTRIC BOARD, Petitioner on Review, v. PUBLIC EMPLOYEES RETIREMENT BOARD and John T. Wigle, Respondents on Review.
    SC S065686
    Supreme Court of Oregon, En Banc.
    Argued and submitted January 17, 2019. June 6, 2019
    C. Robert Steringer, Harrang Long Gary Rudnick P.C., Portland, argued the cause and filed the brief for petitioner on review. Also on the briefs were Sharon A. Rudnick, William F. Gary and Erica R. Tatoian.
    Keith L. Kutler, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review Public Employees Retirement Board. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Philip Thoennes, League of Oregon Cities, Salem, filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Oregon School Boards Association, Special Districts Association of Oregon, Metro, and Lane County.
   NAKAMOTO, J.

Respondent John Wigle first worked for petitioner Eugene Water and Electric Board (EWEB) as a temporary worker in a series of positions through a temporary-staffing company. EWEB, a public employer, later hired Wigle as a regular employee. When Wigle retired from EWEB, a dispute ensued over when Wigle had become eligible for retirement benefits from the Public Employees Retirement System (PERS). The outcome would affect the amount of Wigle's monthly retirement benefit.

The dispute centers on what the legislature intended in a 1981 statute governing PERS eligibility. That statute provides, in part: "No person may become a member of the system unless he is in the service of a public employer and has completed six months' service * * *." Former ORS 237.011 (1981), renumbered as ORS 238.015(1) (1995) (emphasis added).

In a contested case proceeding, the Public Employees Retirement Board (the board) concluded that, even though he was working through the temporary-staffing company, Wigle was eligible for PERS retirement benefits because he had worked for EWEB for six months. The Court of Appeals affirmed the board's order, rejecting EWEB's contention that Wigle became eligible only upon his later hire as a regular employee. Eugene Water and Electric Board v. PERB , 289 Or. App. 302, 410 P.3d 1026 (2017).

We conclude that the legislature likely intended a person "in the service of a public employer" to mean an employee of the public employer on that employer's payroll-not someone who, in hindsight, was determined to have a common-law employment relationship with the public employer. In this case, EWEB placed Wigle on its payroll when he was hired as a regular employee. Accordingly, we reverse the decision of the Court of Appeals and the board's final order and remand the case to the board.

I. BACKGROUND

A. PERS Overview

In 1953, the legislature enacted a comprehensive statutory scheme establishing a retirement system for public employees in Oregon. In the Public Employes Retirement Act of 1953, the legislature declared:

"A system of retirement and of benefits at retirement or death for employes of public employers hereby is established and shall be known as the Public Employes Retirement System. Any similar system being operated by a public employer at the time this Act takes effect may be integrated into this system as hereinafter provided."

Or. Laws 1953, ch. 200, § 3, codified as former ORS 237.005 (1953). The statute in dispute was enacted as part of the 1953 Act. Or. Laws 1953, ch. 200, § 8.

This court recently provided an overview of PERS that in two respects forms the backdrop for the dispute in this case. First, large numbers of public employers and employee members participate in PERS:

"Employees become PERS members after working six months in a qualified position for the state or other participating public employer. ORS 238.015(1) ; ORS 238A.100(1) ; ORS 238A.300(1). There are more than 330,000 members in the PERS system, including current employees (active members), unretired former employees (inactive members), and retired former employees (retired members). And there are about 900 participating public employers, including all state departments and agencies, all school districts, and nearly all units of local government."

Moro v. State of Oregon , 357 Or. 167, 175, 351 P.3d 1 (2015) (footnote omitted).

And second, PERS retirement benefits are funded through a combination of employee and employer contributions and investments of those contributions over time. The board "administers PERS and serves as trustee of the Public Employee Retirement Fund (the fund), which the board uses to pay member retirement benefits." Id. In carrying out its responsibility to ensure that the fund has enough assets to pay retirement benefits to PERS members, the board "relies on three sources to generate the fund's assets: member contributions; employer contributions; and investment income." Id.

In overview, to "generate sufficient assets from those three sources to equal the retirement benefits owed to PERS

members[,]" the board "attempts to prefund each member's benefits by collecting contributions both from that member and from his or her employer while the member is working" and then "invests those contributions over the course of the member's career and collects the income from those investments." Id. More specifically, the board "first determines the value of projected benefits for each member and then attempts to set current contribution rates so that, when invested, those contributions will grow and fully fund the benefits that the member will receive in retirement." Id. at 176-77, 351 P.3d 1. "Member contribution rates are set by statute at 6% of the member's salary." Id. at 177, 351 P.3d 1. "Usually, employers pay for that contribution on behalf of their employees." Id. at 177 n. 4, 351 P.3d 1. The board "may adjust only the employer contribution rates[,]" and the board "sets employer contribution rates every biennium." Id. at 177, 351 P.3d 1. To set the employer contribution rates for PERS members like Wigle, the board "makes actuarial projections involving a member's career path, future earnings, and life expectancy, as well as anticipated earnings on investments." Id. at 179, 351 P.3d 1.

B. Facts

We take the facts, which are undisputed, from the record and the board's final order. See ORS 183.482(7) ("Review of a contested case shall be confined to the record, and the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion.").

Wigle worked in three temporary positions at EWEB. The first lasted only a few months. The second, which is central to the dispute, lasted almost one year. On November 1, 1982, Wigle started performing work as a residential analyst/inspector. EWEB placed Wigle in a "temporary/contract position" through Kelly Services, a temporary-staffing company, after EWEB employees had interviewed and selected him. After working elsewhere, Wigle returned to EWEB for a third time, and, as before, worked less than one year in a temporary/contract position through Kelly Services. EWEB received federal funding for Wigle's temporary/contract positions, which were part of a program to provide residential customers with energy audits, through contracts with the Bonneville Power Administration (BPA).

For any given year of funding, BPA did not provide EWEB with a confirmed annual budget until approximately one month before the year started.

While Wigle worked for EWEB in a temporary/contract position, he reported to work at EWEB, without having to check in with Kelly Services. EWEB provided Wigle with everything needed for work: a desk, a badge and EWEB business cards identifying him as an employee, materials to use for inspections and audits, work overalls, and an EWEB fleet vehicle to drive to and from assignments. Wigle's duties were similar to those of EWEB's regular full-time employees, and he used EWEB-created protocols to conduct home inspections and analyses. He also was subject to performance reviews every six months by his supervisors at EWEB.

At the end of each week, Wigle completed a Kelly Services time card, which he submitted to his supervisor at EWEB, who would sign on a line calling for the "customer's signature" and forward the time card to Kelly Services. Pursuant to EWEB's contract with Kelly Services, EWEB paid Kelly Services fees for temporary workers like Wigle. Kelly Services-not EWEB-issued paychecks to Wigle when he worked at EWEB in temporary/contract positions.

EWEB concedes that it "exercised sufficient control over the hiring and working conditions of Wigle" in his temporary/contract positions so that he and EWEB were in a common-law employee-employer relationship rather than an "independent contractor arrangement." Yet while Wigle worked in a temporary/contract position, he did not accrue paid sick days or vacation time and did not receive other employment benefits, such as health or life insurance. Nor did Wigle or EWEB make PERS contributions on Wigle's behalf.

Wigle knew that he was not receiving employment benefits in the temporary/contract positions, and he applied for and was hired in a regular full-time position with EWEB, effective February 1, 1986. As of that date, he began to accrue paid sick days, vacation time, and insurance benefits. Six months later, he was recognized as a PERS member, effective August 1, 1986. EWEB then began making contributions to PERS on his behalf. Wigle continued his employment with EWEB until he retired as of November 1, 2011.

At the end of Wigle's career with EWEB, EWEB vacillated over how to treat the PERS eligibility dates for its various employees who had worked at EWEB through a temporary-staffing company before being hired into a regular position. In 2010, EWEB sought legal advice, and EWEB's legal counsel determined that, for purposes of PERS eligibility, PERS likely would consider those individuals to have been employees, even when they worked as temporary staff. As a result, EWEB notified the affected employees that "PERS may now view your time at the temporary agency as PERS-covered employment."

At EWEB's request, PERS adjusted Wigle's PERS-eligible start date to November 1, 1982. Accordingly, PERS charged EWEB over $ 40,000 to account for the retirement contributions that EWEB should have made, and earnings on those contributions that Wigle would have accrued, had Wigle become a PERS member six months after his adjusted start date. EWEB paid the invoice. In January 2012, after Wigle had retired, PERS notified Wigle that his PERS membership date had been adjusted to May 1, 1983. As a result of those adjustments, Wigle received close to two additional years of creditable service and related contributions and earnings to his PERS account.

But at an unspecified time after EWEB paid the invoice, EWEB received a second-and contrary-legal opinion regarding PERS eligibility for employees like Wigle who had initially worked through a temporary-staffing company. EWEB then backtracked by requesting that PERS again change its records, this time to reflect that Wigle became a PERS-eligible employee on February 1, 1986-his hire date as a regular employee. EWEB explained that Wigle had not been "in the service of a public employer" until then and that Wigle had been paid by a temporary-staffing company earlier.

PERS initially accepted EWEB's second change, and it issued a determination notice to Wigle that his retirement benefit would be reduced by approximately $ 325 per month. When Wigle appealed that determination, however, PERS agreed with Wigle that he was PERS-eligible as of November 1, 1982, the date he began his temporary/contract position. PERS issued an amended determination rejecting EWEB's contention that, by virtue of having been paid through a temporary-staffing company, Wigle was not PERS-eligible until February 1, 1986, and referred the matter to the Office of Administrative Hearings for a contested case hearing before an administrative law judge (ALJ), at which PERS participated as a party.

C. Final Order and Judicial Review

After the hearing, the ALJ issued an opinion in Wigle's favor, which the board affirmed. It concluded in its final order that the phrase "in the service of a public employer" as used in former ORS 237.011 (1981) was "synonymous with employment" with a public employer. The board set aside both PERS's initial and amended determinations and ordered PERS to correct its records to reflect that Wigle "began employment with EWEB on November 1, 1982," and "became entitled to PERS membership as of May 1, 1983."

EWEB sought judicial review of the board's order. EWEB's primary argument to the Court of Appeals was that the board had failed to "properly take into account the PERS statutory scheme." Eugene Water and Electric Board , 289 Or. App. at 307, 410 P.3d 1026. EWEB focused on the way in which PERS contributions were made, including the required employee contribution to the Public Employees Retirement Fund based on six percent of the member's salary and the duties of public employers related to each payroll. Id. , 410 P.3d 1026.

Wigle and the board responded that the phrase "in the service of a public employer" simply referred to performance of work for a public employer and that, if eligibility required the employee to receive a salary from a public employer, that requirement was met because EWEB paid Wigle's salary through Kelly Services and the PERS statutes do not require the salary to be paid directly out of public funds. Id. The board added that a person becomes eligible for PERS membership after six months of work so long as "the person does not fall within any of the exceptions set forth in the PERS statutes." Id.

The Court of Appeals affirmed. Like the board, the court concluded that the legislature had intended "service" to have its common meaning, that is, "working" or "employment." Id. at 309, 410 P.3d 1026. Wigle had performed work for EWEB, and EWEB conceded that Wigle had been an employee under the common-law test differentiating employees from independent contractors. The court then turned to the second sentence of former ORS 237.011 (1981), which provided that "[e]very employe of a participating employer shall become a member of the system at the beginning of his first full pay period following the six months' period." 289 Or. App. at 310, 410 P.3d 1026. The court concluded that, although the legislature had carved out some exceptions to the class of PERS-eligible workers, none of them excluded Wigle as an "employe" when he worked for EWEB through Kelly Services. Id. at 311, 410 P.3d 1026.

EWEB petitioned for review. We allowed EWEB's petition to determine whether a common-law employee who works for a public employer through a temporary-staffing company and who is paid by that company is "in the service of a public employer" and eligible for PERS retirement benefits under former ORS 237.011 (1981).

II. ANALYSIS

On review, the board, on one hand, and EWEB, on the other, continue to propose two fundamentally different interpretations of the 1981 statute. The board makes the case that the Court of Appeals' holding was correct. It argues that the legislature intended "in the service of a public employer" to have an ordinary meaning, namely, performance of work for, or employment by, a public employer. And, the board adds, a common-law employment relationship between a worker and the public employer is qualifying employment, even if the worker was not on the public employer's payroll and instead worked in a temporary position, without employment benefits, through a temporary-staffing company.

EWEB acknowledges that the board advances a plausible reading of the statutory text. But EWEB suggests that the phrase "in the service of a public employer" remains ambiguous because the dictionary definitions that the board and the Court of Appeals cite "do not resolve whether a person is a servant of Company A if he receives his wages from Company B." EWEB further argues that the legislature intended "in the service of a public employer" to refer to a particular employment relationship in the context of the PERS statutes: The PERS statutes set out that retirement benefits are based on a PERS member's salary from the public employer, and, given that context, a worker who is "in the service of a public employer" refers to someone (1) who is in an employee-employer relationship with the public employer and (2) who is formally placed on the public employer's payroll.

Our task, therefore, is to construe the statutory phrase "in the service of a public employer." Absent lingering uncertainty regarding the interpretation of the statute, that task typically involves examining the text in context, and considering any pertinent legislative history, to determine legislative intent. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). As we explain, we conclude from the text of former ORS 237.011 (1981), in context, that the legislature most likely intended a PERS-eligible employee to be one who is on the public employer's payroll and not one who could be determined to be in a common-law employment relationship-as opposed to an independent-contractor relationship-with the public employer.

A. Text

We begin the analysis of a statute, as always, with the text. Former ORS 237.011 (1981) provided, in part:

"No person may become a member of the system unless he is in the service of a public employer and has completed six months' service uninterrupted by a total of more than 30 working days during the six months' period. Every employe of a participating employer shall become a member of the system at the beginning of his first full pay period following the six months' period."

The first sentence of former ORS 237.011 (1981) remained as originally enacted as part of the 1953 Act. Or. Laws 1953, ch. 200, § 8. That sentence plainly required a person to be "in the service of a public employer" before becoming a member of PERS. The relevant definitional statute, former ORS 237.003 (1981), however, did not define the word "service" or the phrase "in the service of," and neither was such a definition in the original enactment, see Or. Laws 1953, ch. 200, § 2.

When the legislature has not defined a word or a phrase, we may assume, at least initially, that the word or phrase has its ordinary meaning. DCBS v. Muliro , 359 Or. 736, 745-46, 380 P.3d 270 (2016). No one disputes that the ordinary meaning of the phrase "in the service of" points to employment by or work for an employer, based on the ordinary meanings of "service" and, relatedly, "servant." The noun "service" is most relevantly defined as the "occupation, condition, or status of a servant" or "[p]erformance of labor for the benefit of another, or at another's command[.]" Webster's New Int'l Dictionary 2288 (unabridged 2d ed. 1934). A "servant" is defined as "[o]ne who serves, or does services, under obligation and subject to command[.]" Id. at 2287.

However, sometimes undefined terms in a statute are terms of art, with technical meanings used in, for example, a trade, a field of activity, or an area of the law. See Comcast Corp. v. Dept. of Rev ., 356 Or. 282, 296, 337 P.3d 768 (2014) (when legislature uses term of art, court will look to the meaning and usage of those terms in the discipline from which the legislature borrowed them). The word "service" has various legal meanings, depending on context. In 1953, in the context of contracts, the legal meaning of "service," like its ordinary meaning, denoted employment or work. In Black's Law Dictionary 1533 (4th ed. 1951), "service" is defined as "being employed to serve another; duty or labor to be rendered by one person to another, the former being bound to submit his will to the direction and control of the latter" or the "act of serving; the labor performed or the duties required." But the same legal definition also stated that "service" and "employment" are terms that "generally imply that the employer, or person to whom the service is due, both selects and compensates the employee, or person rendering the service." Id.

That legal definition of "service" signals the underlying question at hand: Granting that "service" in former ORS 237.011 (1981) denotes employment or work-whether the word is used in its ordinary sense or in its legal sense-what kind of PERS-qualifying employment or work did the legislature intend in the circumstances of this case? Here, EWEB depended on the availability of federal funding and took steps not to hire Wigle as a regular employee or to put him on its payroll while he was in a temporary/contract position. Nevertheless, Wigle and EWEB were in a common-law employee-employer relationship due to the extent of EWEB's control over Wigle and his work performance. Did the legislature intend, as the board concluded, that a common-law employment relationship was PERS-qualifying, regardless of whether the worker was paid by a temporary-staffing company and received no employee benefits? Or, did the legislature intend a worker to receive PERS benefits only after the worker was on the public employer's payroll? The text "in the service of," standing alone, does not provide a ready answer.

B. Context

In this case, context helps us determine the legislature's intended meaning. Context includes other provisions of the same statute and related statutes in the statutory scheme, PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993), as well as earlier versions of the statute at issue, State v. McNally , 361 Or. 314, 325, 392 P.3d 721 (2017). To determine what the legislature intended by using "in the service of a public employer" as a prerequisite for a worker's eligibility for PERS benefits, we review former ORS 237.011 (1981) in context by viewing the statutory scheme as a whole. See Brown v. SAIF , 361 Or. 241, 254, 391 P.3d 773 (2017) (turning to "the relevant statutes in context to determine the interpretation that best fits the statutory scheme as a whole " (emphasis in original)). Because the statute was originally enacted in 1953, the directly relevant statutory scheme is the 1953 Act. See Health Net, Inc. v. Dept. of Rev. , 362 Or. 700, 739, 415 P.3d 1034 (2018) (Context includes "the statutory framework within which the law was enacted." (Citation and internal quotation marks omitted.)).

1. The second sentence of former ORS 237.011 (1981)

We start the contextual analysis with the second sentence of former ORS 237.011 (1981), which helps to explain what the legislature intended in the disputed first sentence. That second sentence provides: "Every employe of a participating employer shall become a member of the system at the beginning of his first full pay period following the six months' period." Plainly, that sentence sets out the precise starting point of PERS membership.

Unlike the first sentence, the second sentence of the 1953 enactment had changed by 1981. Its original version provided: "Membership shall begin at the beginning of the first pay period following the six months' period." Or. Laws 1953, ch. 200, § 8 (emphasis added). That change happened in 1955, when "[m]embership shall begin" became "[e]very employe of a participating employer shall become a member of the system." Or. Laws 1955, ch. 131, § 4.

The parties do not contend, nor do we conclude, that the 1955 amendment adding "employe" to the second sentence is significant for purposes of understanding what "in the service of" means. That is, the 1955 addition of "employe"-even as a statutorily defined term-does not resolve the ultimate issue of whether the legislature intended to provide PERS benefits only for workers who were in a formal employment relationship with the public employer and on its payroll or whether those in a common-law employment relationship with the public employer were included as well. The statutory definition of that term is unhelpful because the definition of "employe" was in part tautological and did not positively describe the attributes of a qualifying employee.

Thus, as originally enacted and as it existed in 1981, the second sentence of former ORS 237.011 defined the beginning of an employee's PERS membership as "the first pay period following the six months' period" of continuous service. What EWEB views as significant is the term "pay period." EWEB explains that the legislature's designation of the first pay period as the starting point of membership is a clue that a PERS-eligible employee is one who is on a public employer's payroll. EWEB argues that the legislature intended the term "pay period" to refer to the public employer's-not a third party's-pay period. EWEB supports its argument by reading former ORS 237.011 (1981) in conjunction with another 1981 PERS statute concerning deductions from payroll: former ORS 237.071(2) (1981), renumbered as ORS 238.200 (1995).

Former ORS 237.071(2) (1981), regarding contributions of employees, required a public employer to deduct the employee's PERS contribution from each payroll:

"(1)(a) Each employe who is a member of the system shall contribute to the fund and there shall be withheld from salary of the employe six percent of that salary .
"* * * * *
"(2) The contributions of each employe as provided in subsection (1) of this section shall be deducted by the employer from each payroll and transmitted by the employer to the board , which shall cause them to be credited to the account of the employe in the fund. Salary shall be considered earned in the month in which it is paid. The date inscribed on the paycheck or warrant shall be considered as the pay date, regardless of when the salary is actually delivered to the employe."

(Emphases added.) As EWEB points out, that procedure-with a public employer withholding the six percent PERS contribution from an employee's salary on each payroll and then transmitting that amount to the board-appears to be based on the premise that an employee member of PERS is on the public employer's payroll.

But PERS correctly observes that, between the time of the original 1953 Act and the 1981 version of ORS 237.071, that statute had been amended multiple times and in significant ways. Thus, PERS asserts, the wording of the 1981 version of ORS 237.071 concerning PERS contributions by employees cannot serve as relevant context for what the Legislative Assembly's intentions were when it enacted ORS 237.011 in 1953. Although we agree with PERS that the 1981 version of ORS 237.071 cannot directly shed light on what the legislature intended in the 1953 Act, in some material respects, the 1981 statute is similar to and consistent with its 1953 version and serves as indirect evidence of the legislature's intentions in 1953. See Halperin v. Pitts , 352 Or. 482, 490-91, 287 P.3d 1069 (2012) ("[T]his court not infrequently refers to later-enacted statutes for the purpose of demonstrating consistency (or inconsistency) in word usage over time as indirect evidence of what the enacting legislature most likely intended.").

As originally enacted, ORS 237.071 set out objectives for, among other things, the amount of retirement allowance that PERS members (other than police officers and firefighters) were to receive, depending on the member's eligibility to participate in the federal Old Age and Survivors Insurance program, the number of years of PERS membership the member had, and when the member's service occurred. See Or. Laws 1953, ch. 200, § 13. The statute also provided that "[c]ontributions shall be withheld from one-half of such earnings as shown on the payroll of the employer." Or. Laws 1953, ch. 200, § 13(2). Thus, ORS 237.071 as originally enacted provided for PERS contributions to be withheld from certain earnings shown on the payroll of the employer.

Although that provision was stated in the passive voice, another provision established who was making the contributions and who was withholding them: "From each payroll during the period, his employer shall deduct that percentage of half the amount credited to him on the payroll and shall transmit the deduction to the board, which shall cause it to be credited to his account in the fund." Or. Laws 1953, ch. 200, § 13(4). The contributions, therefore, were the employee's PERS contributions, and, just as provided in former ORS 237.071(2) (1981), the 1953 Act provided for payroll withholdings by the public employer.

That description of the 1953 Act's provisions regarding how public employers were to handle employee contributions to the fund leads us to agree with EWEB's reading of "pay period" in the second sentence of the statute that we are construing. The second sentence of former ORS 237.011 (1981)-providing that every employee "shall become a member of the system at the beginning of his first full pay period following the six months' period"-supports the view that a PERS member is an employee on the public employer's payroll. From the date of original enactment in 1953, the PERS statutory scheme established a system by which the public employer transmits payroll deductions to the board for each member's PERS contributions. In contrast, a public employer using a temporary employee through a temporary-staffing company does not have that employee on its payroll and is not in a position to perform withholdings for PERS contributions. Instead, the temporary-staffing company has the employee on its payroll.

2. The word "service" in other parts of the 1953 Act

In analyzing the context for former ORS 237.011 (1981), we also review the use of the same term in other parts of the same statutory scheme, the 1953 Act, for additional indicators of legislative intent. See State v. Cloutier , 351 Or. 68, 99, 261 P.3d 1234 (2011) (Oregon courts "ordinarily assume that the legislature uses terms in related statutes consistently."). The word "service" or its plural appears throughout much of the 1953 Act. Most of those uses are not illuminating for purposes of our analysis, however; that is, they do not aid in understanding whether or not the legislature intended a PERS-eligible employee to be on the public employer's payroll. However, one of the references to "service" in the PERS statutory scheme provides some substantiation that it was the legislature's intention to require an employee of the public employer to be on the public employer's payroll before the worker became PERS-eligible.

In particular, "services" was used in the definition of "salary" in the 1953 Act. See Or. Laws 1953, ch. 200, § 2(4), codified as former ORS 237.004(8) (1953). "Salary" was defined as meaning the following:

"the remuneration paid an employe in cash out of the funds of a public employer in return for his services to the employer , plus the monetary value, as determined by the Public Employes' Retirement Board, of whatever living quarters, board, lodging, fuel, laundry and other advantages the employer furnishes him in return for his services."

Id. (emphasis added). That definition of salary provides, albeit in the passive voice, that the public employer pays an employee a salary in cash out of its funds for the work that the employee provides. A public employer typically determines the amount of the employee's contribution based on the employee's salary, as to which the public employer has knowledge and control. That, in turn, dovetails with the need for the public employer to withhold from payroll (or to pick up) the amount of the member's PERS contributions. In a retirement benefit system in which a public employer is to make and transmit withholdings for PERS contributions from the employee, that mechanism becomes impractical when the employee is paid by a third party and is not on the public employer's payroll. If a third party is paying the employee, then the public employer will not necessarily know or control the employee's salary. The public employer's payroll, therefore, is a significant part of the apparatus needed for the proper amount of PERS contributions to be made-and it easily allows recordkeeping to occur as well. The board argues that the 1953 Act contains a counterexample involving PERS membership for volunteer firefighters that undermines the idea that the use of "service" implies an employment relationship in which an employee is on the public employer's payroll and directly receiving a salary from the public employer. The board argues that a volunteer firefighter in the 1953 Act is someone "who is employed in a position that does not require 600 hours of service per year" or is a firefighter "who is strictly a volunteer; i.e. , one who receives no remuneration." Thus, the board argues, the fact that a volunteer firefighter may become a PERS member without receiving a salary from the public employer demonstrates that "former ORS 237.011(1) cannot be construed to require the payment of any salary by a public employer as a requisite for membership in PERS." The board similarly observes that almost all uses of "service" in the statutory scheme pertain to PERS membership and refer to labor or work performed for a public employer, not to whether the public employer directly paid the employee. But rather than serving as a counterexample, the case of the strictly volunteer firefighter who receives no salary and who is PERS-eligible under the 1953 Act illustrates the importance of payroll in the PERS statutory scheme.

As originally enacted, former ORS 237.011 contained a section describing how a public employer that wished to include its volunteer firefighters as PERS members was to proceed:

"A public employer employing volunteer fire-fighters may apply to the board at any time for them to become members of the system. Upon receiving the application the board shall fix a wage at which, for purposes of this Act only, they shall be considered to be employed and which shall be the basis for computing the amounts of the contributions which they pay into, and of the benefits which they and their beneficiaries receive from, the fund; and if the wage so fixed is satisfactory to the employer, shall include the fire-fighters in the system."

Or. Laws 1953, ch. 200, § 8(8). Thus, for strictly volunteer firefighters, the legislature required the board and the public employer to fix an agreed wage for them-a phantom salary-for purposes of computing amounts of PERS contributions and the amount of PERS benefits that they and their beneficiaries would receive. That phantom salary, set solely for purposes of PERS, would allow the public employer to follow the method of withholding and transmitting the volunteer firefighter's PERS contributions to the board.

3. The funding mechanism for public employee retirement benefits

Our consideration of how PERS benefits are funded also supports our view that the decision by the Court of Appeals that common-law employees paid by third parties are PERS-eligible under former ORS 237.011 (1981) is not what the legislature likely had in mind. Circling back to the beginning, where we provided background on PERS, we noted, first, that hundreds of public employers and hundreds of thousands of employees are covered by PERS and, second, that the adequacy of funding for the PERS benefits owed to public employees depends on employee and employer contributions and the investment of those contributions over time. We also described how the board sets and collects member contributions-a fixed percentage of the member's salary-and attempts to prefund each member's benefits by collecting sufficient contributions from the member's employer and investing both sets of contributions over the course of the member's career.

Including temporary workers paid through a temporary-staffing company as PERS-eligible employees-in this case because decades later it was determined that the initial working relationship between EWEB and Wigle rose to the level of a common-law employment relationship-introduces uncertainty into a funding system that relies on expected contributions to ensure that enough funds are available to pay members' retirement benefits. The biggest and most obvious uncertainty concerns whether or when any particular worker became a member of PERS entitled to receive retirement benefits. Yet the PERS funding mechanism is member-focused and in part is based on certainty about who is a member and what that member's PERS contributions will be.

Although we do not know whether the legislature contemplated how to treat temporary workers paid through temporary-staffing companies for purposes of PERS in 1953, in light of the funding system that the legislature put in place, we doubt that the legislature would have wanted to introduce such uncertainty by using the phrase "in the service of the public employer." In sum, we conclude from the text and context of former ORS 237.011 (1981) that the legislature most likely intended a PERS-eligible employee to be on the public employer's payroll with a known salary for purposes of computing PERS contribution amounts.

The decision of the Court of Appeals is reversed. The order of the Public Employees Retirement Board is reversed, and the case is remanded to the Public Employees Retirement Board.

      On review, the board is the primary respondent. Wigle filed a response opposing the petition for review but did not file a brief on the merits.

      The parties have not offered legislative history of the Public Employes Retirement Act of 1953 for the court's consideration. The board explains that no useful legislative history of the 1953 Act exists, and EWEB does not disagree. See also Hughes v. State of Oregon , 314 Or. 1, 18, 838 P.2d 1018 (1992) (stating that "little legislative history exists regarding the 1953 Act"). We also are not presented with an argument by the board that its understanding of the statute, as represented by the board's administrative rules or otherwise, is entitled to any deference.

      The definition of "employee" in 1955 was the same as originally enacted: "The term 'employe' includes, in addition to employes, public officers, but not persons engaged as independent contractors and not seasonal, emergency or casual workers whose periods of employment with any public employer or public employers do not in any fiscal year total 600 hours." See Or. Laws 1953, ch. 200, § 2(2); Or. Laws 1955, ch. 131, § 3(4). The definition remained self-referential in 1981. See former ORS 237.003(4) (1981). There is no legislative history that might help elucidate the reason for the 1955 amendment.

      See Or. Laws 1953, ch. 200, § 2(3), (4), (7); § 4(3), (5) (used with various definitions); § 7 ("civil service"); § 8; 8(1), (3)-(7), (9) (primarily relating to a worker in a separate retirement system becoming a PERS member); § 9(2)(f) (relating to integrating an existing retirement system with PERS); § 10(3) (relating to transmission of PERS funds from State Treasurer); § 12 (relating to periodic actuarial reports); § 13(1), (2), (4) (outlining objectives for approximate amount of retirement benefits for long-term "service"); § 14(1)-(5) (amounts that public employers must transmit to PERS and credits to members for "service"); § 15(1)-(8) (primarily relating to what happens to a PERS account upon worker's separation from "all service" before and after earliest "service retirement age" and when an "employe" ceases to be a member); § 16(1)-(5) (credit for uninterrupted service, including after military or federal government service); § 17(1)-(4), (6)-(8) (early and compulsory retirement ages and reemployment); § 18 (describing "service retirement allowance"); § 19 (election to convert allowance to annuity or for reduced allowance with payment to surviving beneficiary); § 21(1)-(4), (6) (disability retirement for incapacity).

      The definition of "salary" in the 1981 PERS statutes remained in material part identical to the 1953 original. See former ORS 237.003(8) (1981).

      The board's argument understandably focuses more on whether a public employer must directly pay a salary to an employee and less on the public employer's placement of the employee on its payroll, because EWEB made the former the centerpiece of its argument as to why Wigle was ineligible for PERS membership until his hire as a regular employee. But we are not bound by the parties' arguments concerning the construction of a statute. Engweiler v. Persson/Dept. of Corrections , 354 Or. 549, 559, 316 P.3d 264 (2013) (stating that this court is obliged to reach a correct interpretation of a statute, "whether or not the correct interpretation has even been advanced by the parties").

      In light of the numbers of public employers across the state that participate in PERS, it is unsurprising that the record does not reflect how many former temporary workers could be affected by a holding making them potentially PERS-eligible.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Michael Thomas CRAW, Defendant-Appellant.
    A162044
    Court of Appeals of Oregon.
    Submitted February 21, 2018. June 12, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   PER CURIAM

Affirmed. State v. Slagle , 297 Or. App. 392, 441 P.3d 644 (2019).


text:
    In the MATTER OF T. H., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. T. H., Appellant.
    A168007
    Court of Appeals of Oregon.
    Submitted March 8, 2019. June 19, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Affirmed. State v. R. C ., 298 Or. App. 280, --- P.3d ---- (2019).


text:
    In the MATTER OF D. G., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. D. G., Appellant.
    A169118
    Court of Appeals of Oregon.
    Submitted April 5, 2019. June 19, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment continuing his commitment to the Oregon Health Authority for a period not to exceed 180 days. ORS 426.307. Appellant contends that the trial court erred because the record does not contain clear and convincing evidence that appellant continues to be a person with a mental illness who is in need of further treatment. Id. ; ORS 426.005(1)(f) (defining "person with mental illness"). The state concedes that the evidence is legally insufficient to support appellant's continued commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of continued commitment.

Reversed.


author: STEPHENS, J. MADSEN, J. (dissenting)

text:
    Cesar BELTRAN-SERRANO, an incapacitated person, individually, and Bianca Beltran as guardian ad litem of the person and estate of Cesar Beltran-Serrano, Petitioners, v. CITY OF TACOMA, a political subdivision of the State of Washington, Respondent.
    NO. 95062-8
    Supreme Court of Washington.
    Filed JUNE 13, 2019
    Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Avenue SW, Third Floor, Suite C, Seattle, WA 98126-2138, John Robert Connelly Jr., Micah R. LeBank, Connelly Law Offices, 2301 N. 30th Street, Tacoma, WA 98403-3322, Sidney Charlotte Tribe, Camey Badley Spellman, 701 5th Avenue, Suite 3600, Seattle, WA 98104-7010, for Petitioners.
    Jean P. Homan, Tacoma City Attorney's Office, 747 Market Street, #1120, Tacoma, WA 98402-3701, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Avenue N., Seattle, WA 98109-3007, for Respondent.
    Philip Albert Talmadge, Micah R. LeBank, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Avenue SW, Third Floor, Suite C, Seattle, WA 98126-2138, John Robert Connelly Jr., Micah R. LeBank, Connelly Law Offices, 2301 N. 30th Street, Tacoma, WA 98403-3322, for Guardian Ad Litem.
    Jose Dino Vasquez, Karr Tuttle Campbell, 701 5th Avenue, Suite 3300, Seattle WA 98104-7055, Antoinette M. Davis, American Civil Liberties Union of Washington, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, for Amicus Curiae American Civil Liberties Union of Washington Foundation.
    Kimberly Ann Mosolf, Disability Rights Washington, 315 5th Avenue S., Suite 850, Seattle, WA 98104-2691, for Amicus Curiae Disability Rights Washington.
    Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., 801 2nd Avenue, Suite 1210, Seattle, WA 98104-3175, for Amicus Curiae Washington Cities Insurance Authority and Washington Counties Risk Pool.
    Daniel Edward Huntington, Richter-Wimberley PS, 422 W Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae Washington State Association for Justice Foundation.
    Daniel G. Lloyd, Vancouver City Attorney's Office, P.O. Box 1995, 415 W. 6th Street, Vancouver, WA 98668-1995, Jonathan Collins, Smith Goodfriend, 1619 8th Avenue N., Seattle, WA 98109-3007, for Amicus Curiae Washington State Association of Municipal Attorneys.
   STEPHENS, J.

¶1 Cesar Beltran-Serrano, a mentally ill homeless man, was shot multiple times by Tacoma Police Officer Michel Volk, after a simple social contact escalated to the use of deadly force. Beltran-Serrano survived the shooting and, through a guardian ad litem, brought this action for negligence and assault and battery against the city of Tacoma (City). The Pierce County Superior Court dismissed the negligence claims on summary judgment, agreeing with the City that the sole avenue for any recovery must be an intentional tort claim for assault and battery.

¶2 We reverse. The fact that Officer Volk's conduct may constitute assault and battery does not preclude a negligence claim premised on her alleged failure to use ordinary care to avoid unreasonably escalating the encounter to the use of deadly force. Under well-established negligence principles, police officers owe a duty of reasonable care in situations such as this. Beltran-Serrano has presented evidence to allow a jury to find that the City failed to follow accepted practices in Officer Volk's interactions with him leading up to the shooting and that this negligence resulted in his injuries.

FACTS AND PROCEDURAL HISTORY

¶3 Beltran-Serrano suffers from mental illness and has limited English language proficiency. On June 29, 2013, he was homeless when Officer Volk noticed him standing on the corner of East 28th Street, an area of Tacoma where the police had received multiple complaints about panhandlers. Officer Volk parked her patrol vehicle near Beltran-Serrano and approached him with the goal of educating him about the City's panhandling laws. She did not have reasonable suspicion or probable cause to believe he was committing a crime.

¶4 As Officer Volk approached Beltran-Serrano, he laid down on his stomach and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked up at her blankly and kept digging in the hole. Noticing that the hole contained mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda container, take a drink, and throw it back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk then radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish, was within one and a half to five minutes away.

¶5 Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see an ID card. Beltran-Serrano began to pat his pockets as if to look for identification, but then he bent down and reached back into the hole. When Officer Volk moved closer to Beltran-Serrano and continued to address him in English, he became scared and started to run away. Officer Volk shot him in the back with a stun gun as he ran across the street. Clerk's Papers (CP) at 400-01. The stun gun did not have the desired effect, and Beltran-Serrano continued to run away. Id. Officer Volk then pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the ground. CP at 401. The total time between when Officer Volk called for a Spanish-speaking officer and the shooting was 37 seconds. CP at 396.

¶6 In resisting summary judgment, Beltran-Serrano offered declaration testimony from multiple witnesses who stated that they did not see Beltran-Serrano assault Officer Volk or brandish any weapon and that there was no instance of struggle or altercation on the street corner. Witnesses expressed concern as to why Beltran-Serrano was shot because he did not appear to be acting aggressively or making threatening motions. CP at 415-16, 432-33. A shooting scene reconstruction led a ballistics expert to conclude that "[n]one of the fired bullet paths to Beltran-Serrano support him 'swinging' or otherwise moving his arms at the time of receiving the gunshots." CP at 459.

¶7 Through a guardian ad litem, Beltran-Serrano brought this action against the City. In addition to a claim for assault and battery, his complaint alleged that Officer Volk improperly, unreasonably, and unnecessarily escalated the situation, and that the City failed to properly train and supervise officers to deal with the mentally ill and to exercise appropriate force. CP at 77. The City filed a motion for partial summary judgment, arguing it owed no duty of reasonable care to Beltran-Serrano. Specifically, the City asserted that (1) a negligence claim could not be based on an intentional tort, (2) the public duty doctrine barred any negligence claim, and (3) a negligent training and supervision claim was unavailable because Officer Volk was acting within the scope of her employment. CP at 240-54. The Pierce County Superior Court granted the City's motion to dismiss the negligence claims and entered an order certifying for interlocutory review the issue of "whether a police officer owes a duty of reasonable care to act reasonably when using deadly force." CP at 698-99, 757. Beltran-Serrano then filed a motion for direct discretionary review in this court, which our commissioner granted pursuant to RAP 4.2(a)(4).

ANALYSIS

¶8 Claims of negligent law enforcement are not novel. Washington courts have long recognized the potential for tort liability based on the negligent performance of law enforcement activities. See, e.g. , Washburn v. City of Federal Way, 178 Wash.2d 732, 310 P.3d 1275 (2013) (negligent service of a protective order); Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451 (1983) (negligent failure to respond with police assistance in a timely manner); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975) (negligent police vehicle chase); Garnett v. City of Bellevue, 59 Wash. App. 281, 796 P.2d 782 (1990) (negligent infliction of emotional distress for officers' harsh and offensive language in responding to a call that plaintiffs were loitering). Indeed, the City readily acknowledges that such liability is consistent with the broad waiver of sovereign immunity for municipalities under RCW 4.96.010. Br. Of Resp't at 10.

¶9 The question in this case is whether a claim of negligence can be based on Officer Volk's shooting of Beltran-Serrano when it is clear the shooting was intentional, i.e., volitional. The City insists that "[t]here is no such thing as the negligent commission of an intentional tort." Id. at 18. The City further argues that the public duty doctrine precludes liability because the statutory duty "to enforce the laws and keep the peace ... is imposed solely on government and owed to the public at large." Id. at 36. We believe the City misunderstands both the nature of Beltran-Serrano's negligence claim and the nature of its law enforcement duty.

A. An Intentional Tort Claim Does Not Foreclose a Negligence Claim Premised on the Failure To Use Reasonable Care To Avoid the Use of Force

¶10 In arguing that Beltran-Serrano seeks to allege negligence in the commission of an intentional tort, the City fails to appreciate the nature of Beltran-Serrano's claim. The core of his negligence claim is that Officer Volk unreasonably failed to follow police practices calculated to avoid the use of deadly force. CP at 77-78. Beltran-Serrano focuses on Officer Volk's negligence leading up to the shooting, including her failure to respond appropriately to clear signs of mental illness or impairment, her decision to continue to engage with Beltran-Serrano in English, and her decision to prevent him from walking away. The negligence allegations also identify Officer Volk's lack of adequate training and her failure to recognize the ineffectiveness of using a stun gun against a mentally ill individual. While these negligence claims relate to events that culminated in Officer Volk intentionally shooting Beltran-Serrano, they do not assert a "negligent intentional shooting." Instead, they require consideration of the totality of the circumstances involved in the encounter between Officer Volk and Beltran-Serrano, and identify potential negligence in the series of actions leading up to the decision to shoot.

¶11 The District of Columbia Court of Appeals has considered cases similar to this one and has explained the distinction between negligence and intentional tort claims arising from police use of force. District of Columbia v. Chinn, 839 A.2d 701, 710 (D.C. 2003). The court observed, " '[W]here there is sufficient evidence to submit to a jury the question of assault and battery, there may be, on the facts of a particular case, sufficient evidence to submit the question of negligence as well.' " Id. (alteration in original) (quoting Holder v. District of Columbia , 700 A.2d 738, 742 (D.C. 1997) ). Cases allowing for both claims present a set of common characteristics:

Each involves the use of deadly force. Each invokes a police regulation establishing a standard of care with respect thereto that is arguably distinct from the excessive force standard. Each involves alternate scenarios in at least one of which a distinct act of negligence, a misperception of fact, may have played a part in the decision to fire. Each involves a negligent act that precedes the application of the relevant force of resort to firearms, i.e., prior to the pulling of the trigger.

Id. at 710-11. These characteristics underscore how ordinary negligence principles apply in situations that involve both a claim of battery or unprivileged use of force and the duty to act reasonably in carrying out law enforcement functions. The series of actions culminating in the use of deadly force may be analyzed in its constituent parts or, alternatively, as involving either negligent or intentional conduct. Id . ; see also Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013) (recognizing negligence claim may be asserted for police use of deadly force "if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable").

¶12 To understand how negligent acts leading up to the ultimate use of force may be delineated from the use of force itself, one need consider only a variation on the facts of this case. A person in Beltran-Serrano's situation might just as readily be injured, not by an officer shooting, but perhaps by running into a car as he attempts to flee from the officer in panic. The same acts of negligence remain under either scenario, but we would not describe the latter scenario as involving an intentional tort. By focusing on the alleged acts of negligence during the totality of Officer Volk's encounter with Beltran-Serrano, we avoid mischaracterizing this case as involving "nothing but" an intentional tort.

¶13 Our analysis also accords with the practice in Washington of allowing claims to be pursued under alternative, even inconsistent, theories of recovery. CR 8(e)(2) (specifying that a party may plead "as many separate claims or defenses as the party has regardless of consistency"). Here, the fact that Beltran-Serrano may have a valid intentional tort claim for excessive force has no bearing on the viability of his negligence claim for violation of the duty to act reasonably. A jury could find one claim or the other (or neither claim) to be supported. The City certainly has not conceded that Beltran-Serrano has an assault and battery claim as opposed to a negligence claim. All claims remain for trial.

¶14 The City misreads Boyles v. City of Kennewick, 62 Wash. App. 174, 813 P.2d 178 (1991), as precluding overlapping claims of negligence and assault and battery under Washington law. See Br. of Resp't at 9, 22; Resp. to Mot. for Discr. Review at 12. Boyles merely explains that a police officer may be an intentional tortfeasor and "is liable as such for assault and battery if unnecessary violence or excessive force is used in accomplishing the arrest." Boyles, 62 Wash. App. at 176, 813 P.2d 178 (citing 6A C.J.S. Assault & Battery § 27 (1975) ). This statement alone, however, does not support the City's argument because it does not foreclose a separate claim premised on negligence. The authority cited in Boyles for the above statement is a Corpus Juris Secundum entry describing claims for assault and battery. Not only does Boyles fail to limit actions against law enforcement to intentional torts, it specifically states that a claim for negligence against a police officer remains possible:

As Ms. Boyles points out, there are no Washington cases mandating a claim of assault and battery for all injuries inflicted during or after an arrest. While a claim for negligence against a police officer is possible, it is not raised by the factual allegations of the complaint in this case and, therefore, does not relate back to the original pleadings; additional facts would be necessary to support it.

Id. at 178, 813 P.2d 178 (emphasis added). Here, Beltran-Serrano's amended complaint asserted a valid claim of negligence and alleged facts necessary to support it. CP at 73-79. Consistent with Washington case law and CR 8(e)(2), Beltran-Serrano is allowed to pursue both an intentional tort and a negligence action.

¶15 The City further argues that allowing a negligence action based on police use of force would "circumvent both the defense of self-defense and the standard of objective reasonableness applicable to an excessive force claim." Br. of Resp't at 23. We disagree. The statute the City relies on, RCW 9A.16.040, governs "[j]ustifiable homicide or use of deadly force by public officer, peace officer, [or] person aiding." (Boldface omitted.) This statute defines when police officers are justified in using deadly force. See id. Regardless of whether Beltran-Serrano's claims sound in negligence or assault and battery, the statute allows Officer Volk to argue to the jury that her actions were privileged under the good faith standard of the statute that requires consideration of "all the facts, circumstances, and information known to the officer at the time." RCW 9A.16.040(4). This statutory standard fully accords with Beltran-Serrano's view that the facts of this case must be evaluated under the totality of the circumstances, including Officer Volk's preshooting conduct. Br. of Appellants at 27-28.

¶16 We hold that Beltran-Serrano's intentional tort and negligence claims may coexist under the facts of this case. Considering the totality of the circumstances, the allegations support a claim for negligence that does not amount to a "negligent intentional shooting." Moreover, all facts remain to be determined at trial, and negligence and intentional tort claims may be pleaded in the alternative under CR 8(e)(2). The superior court erred in dismissing the negligence claims as a matter of law.

¶17 A remaining question is whether Beltran-Serrano's negligence claims should nonetheless be dismissed in light of the public duty doctrine. Stated differently, we must determine whether the duty owed by Officer Volk represents a tort duty owed specifically to Beltran-Serrano rather than a nonactionable duty owed to the public as a whole.

B. Officer Volk Owed a Duty in Tort to Beltran-Serrano Based on Her Affirmative Conduct throughout Their Interaction

¶18 The public duty doctrine recognizes that governments, unlike private persons, are tasked with duties that are not actionable duties within the meaning of tort law. Washburn, 178 Wash.2d at 753, 310 P.3d 1275. The central purpose behind the public duty doctrine is to ensure that governments do not bear greater tort liability than private actors. Munich v. Skagit Emergency Commc'ns Ctr., 175 Wash.2d 871, 886, 288 P.3d 328 (2012) (Chambers, J., concurring).

¶19 To establish a duty in tort against a governmental entity, a plaintiff must show that the duty breached was owed to an individual and was not merely a general obligation owed to the public. Babcock , 144 Wash.2d at 785, 30 P.3d 1261. While there are four exceptions to the public duty doctrine that provide for liability even in the face of otherwise public duties, see Munich, 175 Wash.2d at 879, 288 P.3d 328, an enumerated exception is not always necessary to find that a duty is owed to an individual and not to the public at large. Instead, the public duty doctrine is simply a "focusing tool" to ensure that the government is not held liable in tort for duties owed solely to the general public. Id. at 878, 288 P.3d 328.

¶20 Importantly, this court has recognized that the public duty doctrine comes into play when special governmental obligations are imposed by statute or ordinance. Id. at 886, 288 P.3d 328 (Chambers, J., concurring). As to common law negligence, Justice Chambers pointed out in his concurrence in Munich that "[t]his court has never held that a government did not have a common law duty solely because of the public duty doctrine." Id. at 886-87, 288 P.3d 328 (emphasis added). To apply the doctrine so broadly would inappropriately lead to a partial restoration of immunity by carving out an exception to ordinary tort liability for governmental entities. Id. at 892, 288 P.3d 328 (Chambers, J., concurring). This would undermine the value of tort liability to protect victims, deter dangerous conduct and provide a fair distribution of risk of loss. Eastwood v. Horse Harbor Found., Inc., 170 Wash.2d 380, 407, 241 P.3d 1256 (2010) (Chambers, J, concurring).

¶21 At common law, every individual owes a duty of reasonable care to refrain from causing foreseeable harm in interactions with others. Restatement (Second) of Torts § 281 cmt. e (Am. Law Inst. 1965) explains that "the duty established by law to refrain from the negligent conduct is established in order to protect the other from the risk of having his interest invaded by harm resulting from one or more of this limited number of hazards." This duty applies in the context of law enforcement and encompasses the duty to refrain from directly causing harm to another through affirmative acts of misfeasance. See Robb v. City of Seattle, 176 Wash.2d 427, 295 P.3d 212 (2013) ; see also Coffel v. Clallam County, 47 Wash. App. 397, 403, 735 P.2d 686 (1987) (recognizing that, "if the officers do act, they have a duty to act with reasonable care"). In Washington, this principle dates to at least the 1926 case of Jahns v. Clark , which specifically recognized an actionable duty on the part of law enforcement officers exercising deadly force. 138 Wash. 288, 296-97, 244 P. 729 (1926) (holding sheriff and deputies liable on a bond for civil damages arising from an "intentional or negligent shooting").

¶22 Garnett illustrates how recognizing tort liability for negligent law enforcement activities is consistent with the public duty doctrine. 59 Wash. App. at 287, 796 P.2d 782. There, the Court of Appeals identified a law enforcement situation where, even though no public duty doctrine exception directly applied, the city was liable for its officers' negligence. Id. Garnett concerned an interaction between police officers and two women who were allegedly soliciting customers at a Bellevue hotel and refused to leave. Id. at 282, 796 P.2d 782. During the interaction, the police officers accused the women of being prostitutes, saying things like " 'You know what you did and you know what you are,' " and " 'I am going to pick you up and take you downtown because we don't want your kind here.' " Id. at 284, 796 P.2d 782. In addressing the plaintiffs' claims for negligent infliction of emotional distress, the Court of Appeals focused on the fact that harm resulted from the officer's direct contact with the plaintiffs, not the performance of a general public duty of policing. Id. at 286, 796 P.2d 782. Even though the facts did not fit neatly into a previously identified exception, the Court of Appeals correctly rejected the public duty doctrine as a basis to preclude liability. Id. at 286-287, 796 P.2d 782.

¶23 The present case aligns with the analysis in Garnett. As noted, under the common law, "if the officers do act, they have a duty to act with reasonable care." Coffel , 47 Wash. App. at 403, 735 P.2d 686. Beltran-Serrano's negligence claims arise out of Officer Volk's direct interaction with him, not the breach of a generalized public duty. The City therefore owed Beltran-Serrano a duty in tort to exercise reasonable care. Recognizing such a duty does not open the door to potential tort liability for a city's statutorily imposed obligation to provide police services, enforce the law, and keep the peace. These statutory duties have always been, and will continue to be, nonactionable duties owed to the public at large. In this case, however, the specific tort duty owed to Beltran-Serrano arises from Officer Volk's affirmative interaction with him. The public duty doctrine does not apply to prevent the City from being found liable in tort.

CONCLUSION

¶24 The superior court wrongly dismissed Beltran-Serrano's negligence claims, which are not foreclosed by his intentional tort claim. Under Washington common law, the City owes a duty to refrain from causing foreseeable harm in the course of law enforcement interactions with individuals. Because the duty at issue in this case, grounded in common law negligence, is owed specifically by Officer Volk to Beltran-Serrano rather than to the public as a whole, the public duty doctrine does not apply. Beltran-Serrano has properly pleaded a separate negligence cause of action and identified genuine issues of material fact regarding Officer Volk's breach of the duty to act reasonably. We reverse the superior court order granting summary judgment and remand to the trial court for further proceedings consistent with this opinion.

WE CONCUR:

Fairhurst, C.J.

González, J.

Gordon McCloud, J.

Yu, J.

MADSEN, J. (dissenting)

¶25 A Tacoma police officer stopped her patrol car and approached a man at the northwest corner of East 28th Street and Portland Avenue, a location for which police had received complaints about aggressive panhandlers. The encounter quickly escalated until the officer drew her firearm and shot the man. The majority holds that these facts support a claim of negligence, but there is no doubt that the officer acted intentionally when she shot this man and that it was the officer's action of shooting the man that caused the injury for which he now seeks compensation. The majority divorces the first portion of the encounter from the injury and says that the escalation is the injury. But it is not. The man is seeking redress for being shot; he does not identify any independent injury related to the escalating conduct. Rather, the events leading up to the shooting are relevant to support the plaintiffs' claim for assault and battery. For these reasons, as expounded below, I dissent.

¶26 This case concerns claims against the city of Tacoma stemming from a police shooting of Cesar Beltran-Serrano, a Spanish-speaking, mentally ill man, on a Tacoma street following a community caretaking contact with Beltran-Serrano by Tacoma Police Officer Michel Volk. The present review addresses the trial court's dismissal on partial summary judgment of a negligence claim against the city stemming from the noted shooting; at issue is whether Beltran-Serrano's negligence claim may be maintained in light of Officer Volk's intentional shooting of Beltran-Serrano.

¶27 As noted, the majority answers that question affirmatively by "focus[ing] on Officer Volk's negligence leading up to the shooting" (majority at 611) and reverses the trial court's grant of summary dismissal of the negligence claim. In the majority's view, "[t]he gravamen of the negligence claim is the mishandling of the encounter, not the use of excessive force." Id. at 612 n.6. I disagree. In my view, we cannot so easily parse and ignore the required elements of a negligence claim. In the present circumstance, where intentional injury is the basis of the complaint, a claim of negligence is not available as a matter of law. I begin with the required elements of a negligence claim.

¶28 To sustain an actionable negligence claim, a plaintiff must establish four essential elements: duty, breach, proximate cause, and resulting harm. Pedroza v. Bryant , 101 Wash.2d 226, 228, 677 P.2d 166 (1984) ; Hansen v. Friend , 118 Wash.2d 476, 479, 824 P.2d 483 (1992) ; Kennedy v. Sea-Land Serv., Inc., 62 Wash. App. 839, 856, 816 P.2d 75 (1991). "If any of these elements cannot be met as a matter of law, summary judgment for the defendant is proper." Ranger Ins. Co. v. Pierce County , 164 Wash.2d 545, 552-53, 192 P.3d 886 (2008). "A defendant as moving party may prevail by showing that there is an absence of evidence to support the plaintiff's case." Kennedy , 62 Wash. App. at 856, 816 P.2d 75 (citing Young v. Key Pharm., Inc., 112 Wash.2d 216, 225 n.1, 770 P.2d 182 (1989) ).

¶29 Critically, the damage or harm must be the proximate result of the breach of duty; merely following subsequently in time is not enough. "Negligence and causation are independent legal requirements, and a finding of negligence does not automatically imply causation." 65 C.J.S. Negligence § 15 at 301 (2010). Further, "[d]amages constitute an essential element of a negligence claim; without damages, a negligence claim fails. Proof of damages, that is, actual injury to the plaintiff, is an essential element of a claim for negligence." Id. § 54, at 351 (footnote omitted). "An allegedly negligent act must cause an injury in order to be actionable. A plaintiff in a negligence action therefore is required to adduce evidence showing there was a negligent act on the part of the defendant and that such act was the cause of the plaintiff's injury ." Id. at 351-52 (emphasis added) (footnote omitted).

If the negligent act or omission has resulted in no injury or loss to anyone, it is merely injuria sine damno even though it involved a violation of a statute or ordinance. Even though injury may have resulted, there is no liability unless such injury was proximately caused by the negligence complained of; the real cause of action in a negligence case is not the negligent act but the injury resulting therefrom, since to support the action there must be not only the negligent act but a consequential injury, and the injury is the gravamen of the charge.

Id. at 352 (emphasis added) (footnotes omitted).

¶30 Put another way, even if the conduct preceding the injury is substandard, such fact cannot "fill in" for the absence of a proximately caused resulting injury. "An action in negligence is not determined alone from the doing of an act resulting in injury to another. Similarly, a defendant's breach of a duty, standing alone, does not mean that a defendant is negligent." Id. § 20, at 305 (footnote omitted). "The essence of negligence is behavior creating an unreasonable danger to others"-it is "relative to the time, place, circumstances, or persons involved"; accordingly, "[n]egligence in the abstract does not support a cause of action." Id. § 4, at 280. "To maintain an action in negligence, the plaintiff must assert in the complaint [the noted four elements]. When these elements are present, they together constitute negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient." Id. § 20, at 305-06 (footnote omitted).

A negligent or careless act is not necessarily actionable negligence. To constitute actionable negligence, there must be not only a lack of care, but such lack of care must involve a breach of some duty owed to a person who is injured in consequence of such breach. Even though an act or omission may involve a lack of care, it does not necessarily follow that any cause of action arises therefrom since negligence which did not contribute to the damage sustained is negligence, but not actionable negligence, and negligence is not a tort unless it results in the commission of a wrong or in harm to someone.

Id. § 11, at 292 (footnotes omitted).

¶31 Further, the injury must be cognizable in the negligence context. "The term 'negligence' is synonymous with disregard, heedlessness, inadvertence, inattention oversight and thoughtlessness." Id. § 15, at 299-300 (footnotes and most internal quotation marks omitted). "The words 'negligence' and 'intentional' are contradictory; negligence is not synonymous with intentional action." Id. § 17, at 302 (footnote omitted); see also Tegman v. Accident & Med. Investigations, Inc., 150 Wash.2d 102, 109-10, 75 P.3d 497 (2003) ("fault" within the meaning of chapter 4.22 RCW, which encompasses liability for negligence, does not include intentional acts or omissions); State Farm Fire & Cas. Co. v. Justus , 199 Wash. App. 435, 455, 398 P.3d 1258, review denied , 189 Wash.2d 1026, 406 P.3d 629 (2017) (distinguishing "intentional acts to harm" as "not merely conduct which created an 'unreasonable risk of harm' ").

"Negligence," by definition, is not an intentional tort: it includes only such conduct as creates liability for the reason that it involves risk and not certainty of invading the interest of another, and therefor excludes conduct which creates liability because of the actor's intention to invade a legally protected interest of the person injured.

65 C.J.S. Negligence § 17, at 302 n.1.

[N]egligence excludes the idea of intentional wrong; the absence of an intent or purpose to inflict the injury of which complaint is made is essential to the legal conception of negligence and is an element which distinguishes it from other torts. Where an intention to inflict the injury exists , whether that intention is actual or constructive only, the wrongful act is not negligent but is one of violence or aggression.

Id. § 28, at 313 (emphasis added) (footnotes omitted). Accordingly, "[n]egligence claims and assault and battery claims ... are mutually exclusive." Id. § 15, at 300.

¶32 With these requirements in mind, turning to the current case, the majority's focus on Officer Volk's alleged substandard conduct concerning her initial contact with Beltran-Serrano does not cure the absence of a qualifying proximately caused injury. That is, while Beltran-Serrano was indeed injured, there is no dispute that the shooting of Beltran-Serrano by Officer Volk was an intentional act. The shooting is the only harm alleged by Beltran-Serrano in his complaint and is pleaded as the basis for both his assault and battery claim and his negligence claim. The amended complaint states, "Defendant [city] ... unreasonably, unnecessarily, and without provocation shot Cesar Beltran ... thereby inflicting an assault and battery on Cesar Beltran." Clerk's Papers at 78. The amended complaint further states, "As a direct and proximate result of the breaches, failures, and negligence of Defendant [city], ... Plaintiff was shot ... multiple times causing serious injuries." Id. Only a single harm is alleged-the shooting. There is no dispute that the shooting was intentional. Officer Volk deliberately drew her service handgun and shot Beltran-Serrano multiple times. There is simply no inadvertence that would support a negligence claim. See 65 C.J.S. Negligence § 14, at 298 ("A negligent act is an inadvertent act."); see also Boyles v. City of Kennewick, 62 Wash. App. 174, 176, 813 P.2d 178 (1991) ("[A] police officer making an arrest is justified in using sufficient force to subdue a prisoner, however [the officer] becomes a tortfeasor and is liable as such for assault and battery if unnecessary violence or excessive force is used in accomplishing the arrest." (citing 6A C.J.S. Assault & Battery § 27 (1975) )). A complaint that refers only to intentional, deliberate conduct does not state a prima facie claim of negligence. "To state a claim for negligence, the underlying complaint must allege facts that support a conclusion that the conduct was negligent." Grange Ins. Ass 'n v. Roberts , 179 Wash. App. 739, 769, 320 P.3d 77 (2013). " 'In order to state a cause of action for negligence, it is necessary to allege facts which would warrant a finding that the defendant has committed an unintentional breach of a legal duty, and that such breach was a proximate cause of the harm.' " Id. (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wash.2d 316, 319, 255 P.2d 360 (1953) ).

¶33 The majority cites District of Columbia v. Chinn , 839 A.2d 701 (D.C. 2003), and Hayes v. County of San Diego, 57 Cal. 4th 622, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013), as support, but in my view, Chinn argues against the availability of a negligence claim here and Hayes simply does not convince. In Chinn , "the plaintiff failed to make a separate and distinct claim for negligence apart from the battery allegations." 839 A.2d at 711. Chinn's allegations "neither establish[ed] a claim separate and distinct from the alleged battery, nor demonstrate[d] the essential elements of a negligence claim. The allegations [did] not reflect negligence, but rather an intentional tort with a conclusory allegation of negligence." Id. The same is true here. The Chinn court explained,

The crux of Chinn's claim is that the officers deliberately inflicted excessive force upon him, and ... assaulted him without provocation. Chinn did not argue that the officers mistakenly or negligently thought Chinn was armed; Chinn did not allege that the officers misperceived him as a threat. The negligence claim ... should not have gone to the jury as no separate and distinct cause or theory of negligence was presented before the court.

Id. Chinn does not support the notion that a negligence claim can be premised upon an intentional tort as the majority advocates here.

¶34 In Hayes , the California Supreme Court, answering a certified question from the Ninth Circuit Court of Appeals, noted that under California state law, the court had "long recognized that peace officers have a duty to act reasonably when using deadly force." 57 Cal. 4th at 629, 305 P.3d 252, 160 Cal.Rptr.3d 684. The California court explained that in its prior decision in Grudt v. City of Los Angeles, 2 Cal. 3d 575, 468 P.2d 825, 86 Cal. Rptr. 465 (1970), it had determined that preshooting circumstances might show that an otherwise reasonable use of deadly force by officers was, in fact, unreasonable. But the circumstances in Grudt and Hayes are nothing like the case here. In Grudt , a police officer in plain clothes, carrying a double-barreled shotgun, approached a car, possibly causing the driver to think he was being robbed or attacked. The driver accelerated the car toward a second plainclothes officer, and then both officers opened fire on the driver, killing him. See Hayes , 57 Cal. 4th at 629, 305 P.3d 252, 160 Cal.Rptr.3d 684 (discussing Grudt ). In Hayes , police officers were called to a house and advised that the man inside was potentially suicidal. When the officers entered the house to investigate, the man approached them, holding a knife in his raised hand. Both officers drew their firearms and fired two shots, killing the man. Id. at 626, 160 Cal. Rptr. 3d 684, 305 P.3d 252.

¶35 In my view, Hayes does not offer any useful guidance here. It is based on foreign jurisdiction law, and the circumstances in both Hayes and Grudt are simply too different from the present case to be helpful. More to the point, for the reasons discussed above, I disagree with Hayes. While an officer's use of deadly force must be appropriate, "[w]here an intention to inflict the injury exists, whether that intention is actual or constructive only, the wrongful act is not negligent." 65 C.J.S. Negligence § 28, at 313. As discussed above, a plaintiff "may not base claims of negligence on alleged intentional actions, such as excessive force or unlawful arrest." Lawson v. City of Seattle , No. C12-1994-MAT, 2014 WL 1593350, at *13 (W.D. Wash. Apr. 21, 2014) (court order); see also St. Michelle v. Robinson , 52 Wn. App. 309, 315-16, 759 P.2d 467 (1988) (where alleged sexual abuse was intentional, and the resulting emotional distress was also intentionally inflicted as a matter of law, plaintiff cannot state a cause of action for negligent infliction of emotional distress); Willard v. City of Everett, No. Cl 2-14 TSZ, 2013 WL 4759064, at *2 (W.D. Wash. Sept. 4, 2013) (court order), aff'd , 637 F. App'x 441 (2016) ("A plaintiff may not base a claim of negligence on an intentional act, like the use of excessive force."); Keates v. City of Vancouver, 73 Wash. App. 257, 267, 869 P.2d 88 (1994) ("As a general rule, law enforcement activities are not reachable in negligence.").

¶36 Finally, I note that affirming the trial court's dismissal of the negligence claim does not leave Beltran-Serrano without a remedy concerning the shooting. As Boyles noted, where a police officer is alleged to have used excessive force in accomplishing an arrest, a claim for assault and battery may lie, and Beltran-Serrano has so alleged. See Boyles, 62 Wash. App. at 176, 813 P.2d 178. However, for the reasons discussed, in my view, a negligence claim based on the intentional shooting that occurred here is simply not available. I would affirm the trial court's dismissal of Beltran-Serrano's negligence claim. Accordingly, I dissent.

Johnson, J.

Owens, J.

WIGGINS, J, (concurring in dissent)

¶37 I concur in Justice Madsen's dissent that a negligence claim based on the intentional act of shooting a weapon is not available. Dissent at 9. I write separately to emphasize the important distinction in mental states between negligence and intentional tort claims.

¶38 As we have repeatedly held, a cause of action in negligence requires a plaintiff to show that a defendant owed a duty of care to the plaintiff, there was a breach of that duty, there was a resulting injury, and there was proximate cause between the breach and the injury. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 220, 802 P.2d 1360 (1991). An intentional tort requires, among other things, proof of intent. For example, an "intentional tort" is "[a] tort committed by someone acting with general or specific intent." BLACK'S LAW DICTIONARY 1717 (10th ed. 2014).

¶39 The mental states of intentional torts and negligence are vastly different and exist on a sliding scale:

If the actor knows that the consequences are certain, or substantially certain, to result from his [or her] act, and still goes ahead, [the actor] is treated by the law as if he [or she] had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence.

RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (AM. LAW INST. 1965) (RESTATEMENT) . Negligence conveys the idea of neglect or inadvertence, "as distinguished from premeditation or formed intention." Adkisson v. City of Seattle, 42 Wash.2d 676, 682, 258 P.2d 461 (1953).

¶40 Thus, an actor cannot be of two minds. He or she may act either negligently, lacking intent to cause harm, or intentionally, intending to cause or aware that harmful consequences are substantially certain to result from an action. RESTATEMENT § 8A. These mental states are mutually exclusive. Id. §§ 8A, 282 cmt. d; DAN B. DOBBS ET AL., THE LAW OF TORTS § 31, at 77 (2d ed. 2011) ("Any given act may be intentional or it may be negligent, but it cannot be both. Intent and negligence are regarded as mutually exclusive grounds for liability.").

¶41 Here, assuming that Cesar Beltran-Serrano could prove the first three elements in negligence, he cannot prove that the proximate cause of his injuries resulted from a negligent act. The sole cause of Beltran-Serrano's injury was the shooting of Officer Michel Volk's weapon. The officer's decision to pull the trigger was intentional. This fact cannot be used simultaneously as evidence of intention and negligence, as liability under these theories requires distinct and mutually exclusive mental states. E.g., RESTATEMENT § 8A.

¶42 The majority's decision combines two mutually exclusive principles of tort law and does not answer the inherent conflict it creates in so doing. A claim is one of either negligence or intention-it cannot be both. If a principled path existed to reconciling these conflicting principles, the majority would have offered such a path. It has not, and this silence is telling.

¶43 Accordingly, I respectfully dissent.

      Because we are reviewing an order granting summary judgment, we consider all facts and reasonable inferences in the light most favorable to Beltran-Serrano, the nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 784, 30 P.3d 1261 (2001) (plurality opinion). Our review is de novo. Id.

      The City offers a different view of the facts. According to Officer Volk's statement, after Beltran-Serrano reached back into the hole, he grabbed what appeared to be a piece of construction pipe that was bent into an oval shape. CP at 365. Beltran-Serrano swung the object at Officer Volk's upper body, and she blocked the strike with her left forearm before giving chase to Beltran-Serrano as he ran into the street. Id. As Beltran-Serrano was running away, Officer Volk discharged her stun gun, hitting Beltran-Serrano in the back, at a distance of approximately seven yards. CP at 366. After the stun gun appeared to have no effect, Officer Volk maintains that Beltran-Serrano turned toward her, raised the object above his head as if to strike, and began to move in her direction. Id. Officer Volk then drew her firearm and fired until Beltran-Serrano "dropped the pipe and fell to the ground." Id.

      The order on summary judgment dismisses "plaintiff's negligence claims ... in their entirety." CP at 699. However, the separate certification order framing the issue for review does not reference the negligence claims based on the City's duty to train and supervise employees. CP at 757. Beltran-Serrano's motion for discretionary review is similarly limited to this focus. See Mot. for Discr. Review at 1. Given the limited issue identified in the certification order and the motion for discretionary review, we have not separately addressed Beltran-Serrano's negligence theory based on the City's training and supervision of its employees. We leave it to the superior court on remand to determine, consistent with the reasoning in this opinion, whether that negligence theory remains for trial.

      The City separately sought discretionary review in the Court of Appeals of an order granting partial summary judgment to Beltran-Serrano concerning the reasonableness of medical expenses. That matter has been stayed pending this review.

      Beltran-Serrano offered testimony from a police practices expert that Officer Volk failed to recognize Beltran-Serrano was affected by mental illness and did not follow basic police procedures. Br. of Appellants at 10-11; see CP at 473-81. In her deposition, Officer Volk stated that she perceived no basis to determine whether Beltran-Serrano was mentally ill. CP at 475. Beltran-Serrano's expert reviewed Officer Volk's training records and found her last course completed on mental health was in February 2013. Id. Officer Volk was unable to recall any training that addressed how to approach someone suffering from mental illness. CP at 476. Beltran-Serrano also presented the testimony of Volk's fellow officer Loretta Cool, who explained that upon approaching the same situation as Officer Volk, she would have considered the person to have been under the influence of drugs or mentally ill. CP at 494.

      The federal district court cases the City relies on miss this overlap between negligence and battery. See Roufa v. Constantine, No. C15-1379JLR, 2017 WL 120601 (W.D. Wash. Jan. 11, 2017) (court order); Lawson v. City of Seattle, No. C12-1994-MAT, 2014 WL 1593350 (W.D. Wash. Apr. 21, 2014) (court order); Willard v. City of Everett, No. C12-14 TSZ, 2013 WL 4759064 (W.D. Wash. Sept. 4, 2013) (court order), aff'd , 637 F. App'x 441 (2016). These cases posit a negligence claim based on the unreasonable use of force or an unlawful arrest. This does not accurately describe the negligence Beltran-Serrano alleges. As noted, his negligence claim is premised on Officer Volk's failure to understand and apply accepted police procedures in dealing with a mentally ill individual who has limited English language proficiency, and in avoiding the use of force. The gravamen of the negligence claim is the mishandling of the encounter, not the use of excessive force.

      The four recognized exceptions to the public duty doctrine are (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship. Munich, 175 Wash.2d at 879, 288 P.3d 328. "If any one of the exceptions applies, the government is held as a matter of law to owe a duty to the plaintiff." Id.

      Justice Chambers's concurring opinion is precedential because it received five votes from justices who also signed the majority opinion. See Shizuko Mita v. Guardsmark, LLC, 182 Wash. App. 76, 83 n.2, 328 P.3d 962 (2014) (recognizing stare decisis effect of Justice Chambers's concurrence in Munich ).

      Of course, tort liability for law enforcement activities may be limited by the legislature. Statutes specifically mandate the use of a gross negligence standard for a variety of law enforcement related activities. See, e.g., RCW 71.05.510 (detention of a person suffering from mental illness for more than the allowable number of days); RCW 7.69A.040 (failure to provide notice of rights to a child witness or victim); RCW 9.95.204 (supervision of misdemeanant offenders); RCW 4.24.550 (release of information/ classification level of sex offender information to the public). No statute currently alters the reasonable care standard for law enforcement in the use of deadly force. As noted above, RCW 9A.16.040 imposes a "good faith" standard and provides that the use of deadly force is justifiable when "necessarily used by a peace officer meeting the good faith standard of this section to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty." RCW 9A.16.040(l)(b).

      Even if we believed it necessary to identify an enumerated exception to the public duty doctrine, Beltran-Serrano persuasively argues that the rescue doctrine exception applies here. The rescue doctrine recognizes that a duty to exercise reasonable care arises when a person undertakes "to render aid to or warn a person in danger." Brown v. MacPherson's, Inc., 86 Wash.2d 293, 299, 545 P.2d 13 (1975). Here, Officer Volk initiated contact with Beltran-Serrano and sought to educate him about panhandling laws. In the course of their interaction, Officer Volk's unreasonable escalation of the encounter to the use of deadly force significantly increased the risk of harm to Beltran-Serrano.

      Whether that shooting was justified will be determined at trial.

      In the present case, Officer Volk was not advised that the man she was approaching was unstable; nor was there any question about Officer Volk's identity since she was driving a marked police cruiser and was in uniform when she approached Beltran-Serrano.