Felony Bar Defeats Washington Jail Wrongful Death Claim

Washington Appeals Court Rules Felony Defense Bars Jail Overdose Wrongful Death Claim

A Washington appeals court has ordered judgment for Grant County in a wrongful death suit over a 2018 jail overdose, holding that the state felony defense statute turns on what the person who died was doing at the moment of death rather than on the county's earlier conduct.

Information last verified on October 13, 2026. This is a developing story; we update it as the record changes.

Status: Published opinion filed October 8, 2026 by Division Three on remand from the Washington Supreme Court. The order denying the county summary judgment was reversed, and the case was remanded for entry of judgment for the county. Further review remains possible as of October 13, 2026.

Jurisdiction scope: This decision construes a Washington statute, RCW 4.24.420, and applies only in Washington. It has no direct effect in any other state. The panel did not construe or apply the companion intoxication defense in RCW 5.40.060, which enters the case only through its procedural history. A published Washington Court of Appeals opinion is citable, precedential authority in Washington courts, and further Supreme Court review remains possible. The holding rests on the pre-2021 version of RCW 4.24.420, which governs occurrences before the 2021 amendments took effect on July 25, 2021.

What Happened

Derek Batton was booked into the Grant County Jail on August 10, 2018. Jordan Tebow was booked the next day and assigned to the same cell. According to the Court of Appeals, Tebow offered Batton heroin that he had smuggled into the jail. Batton accepted it, ingested it, and was found dead in his cell on August 12, 2018.

The clerk's papers recorded the cause of death as acute morphine intoxication, likely heroin.

The Washington Supreme Court's earlier opinion in the same case adds record detail. It states that the Grant County Sheriff's Office was struggling to control the flow of drugs into the jail that summer, that the record suggests inmates routinely smuggled drugs in and regularly evaded searches, and that Tebow had previously been charged with bringing drugs into the jail but was not rigorously searched. Tebow has since pleaded guilty to controlled substances homicide under RCW 69.50.415, a class B felony. The Supreme Court also noted that Batton had long struggled with addiction, with periods of recovery and relapse, and was taken to the jail on outstanding warrants.

Batton's parents, Barbara Anderson and Rod Batton, individually and as co-personal representatives of his estate, sued Grant County. They alleged the county was negligent in three ways: failing to search Tebow adequately, failing to detect the heroin in Batton's cell through adequate supervision or video surveillance, and failing to detect and respond to the overdose in time to save him.

The county moved for summary judgment, raising two affirmative defenses enacted in Washington's 1986 tort reform act: the felony defense in RCW 4.24.420 and the intoxication defense in RCW 5.40.060. The trial court denied the motion, then certified the case for discretionary appellate review under RAP 2.3(b)(4).

Three questions, three rounds of review

The parties jointly asked the Court of Appeals to resolve three questions: whether RCW 4.24.420 applies to these facts and what "occurrence" means in the statute; if it applies, whether the 2021 version governs retroactively; and whether the Supreme Court's decision in Gregoire v. City of Oak Harbor, 170 Wn.2d 628 (2010), a plurality opinion about a jail suicide, precludes application of RCW 5.40.060.

In 2023, Division Three expanded the third question and answered only that one. It held that the county was barred from asserting either defense, which made the first two questions moot. That decision is reported at Anderson v. Grant County, 28 Wn. App. 2d 796 (2023).

The Supreme Court reversed on March 5, 2026. Writing for the majority, Justice González agreed that jailers owe a special common law duty to the people they hold, tracing it back through Gregoire, Kusah v. McCorkle (1918) and Riggs v. German (1914), and wrote that nothing in the two statutory defenses eliminates that duty. But the majority concluded that the duty and the defenses can coexist, that even the narrowest construction of the statutes leaves the defenses available against a breach of a special duty of care, and that the legislature had not limited them in cases involving a special relationship.

The majority put the policy question where it thought it belonged: "While the policy implications of this case are grave, they are not ours to decide. That work falls on the legislature."

Justice Mungia dissented, writing that the county "cannot cast off the very duty with which it is charged through a violation of that duty," and that the legislature had not clearly expressed an intent to displace the common law duty jails owe to the people they incarcerate.

The Supreme Court remanded with an express instruction, set out in a footnote, that Division Three resolve the two questions it had skipped: which version of RCW 4.24.420 applies, and whether the occurrence causing the death was the county's alleged negligence in allowing Tebow to bring heroin into the jail or Batton's possession of it.

What Division Three decided on remand

Acting Chief Judge Cooney wrote the October 8 opinion, joined by Judges Lawrence-Berrey and Murphy. The panel summarized its conclusion at the outset: "We conclude that the 'occurrence causing the injury or death' was Mr. Batton's possession and ingestion of the heroin and that the 2021 amendments to RCW 4.24.420 do not apply to these facts."

On the retroactivity question, the panel treated this as a question of legislative intent rather than statutory scope. Washington presumes amendments apply prospectively unless the legislature clearly indicates otherwise. The 2021 act contains no retroactivity clause.

The panel then looked at the drafting record: the original Senate Bill 5263 included a section declaring the act "remedial" and retroactive, that language survived into the first substitute bill, and the legislature removed it from the engrossed substitute that was enacted. The court treated the deletion as evidence of intent, writing that it "evidences an intent not to apply the amendments retroactively." Because Batton died in 2018, the pre-amendment statute governed.

On the meaning of "occurrence," the panel noted that no Washington appellate decision had squarely construed the phrase before. It worked from dictionary definitions, treating an occurrence as an event or incident, something that happens or takes place, and reading "cause of death" as the immediate precipitating event. Read that way, the court held, the phrase "most naturally refers to the time of the event or act that directly produced the injury or death, not earlier events in the causal chain."

The panel acknowledged that the county's alleged negligence in allowing heroin into the facility, and jail staff's failure to check on Batton, "may have been proximate causes" of the death. It held that this did not matter under the text, because the statute refers to the occurrence causing the death, not the occurrence proximately causing it, and because the legislature used the phrase "proximate cause" expressly elsewhere in the same sentence for the felony element.

Addressing the estate's argument that this reading would immunize officers who facilitate contraband, the court wrote that "notwithstanding the tragedy of Mr. Batton's death and the Estate's allegations of negligence," the former statute left no room to weigh the county's purported fault once the decedent was committing a felony at the time of the occurrence causing death. It cited Division One's decision in Davis v. King County, 16 Wn. App. 2d 64 (2021), which had observed that on its face the statute applies even if the defendant was negligent or unreasonable. Davis itself came out the other way on its own record: Division One reversed a summary judgment order entered for King County under the same statute and sent that wrongful death case back for trial, because whether the decedent had the specific intent required for the underlying felony was a question for a jury.

The result: the order denying summary judgment is reversed, and the case returns to Grant County Superior Court for entry of judgment in the county's favor.

What the Law Actually Says

RCW 4.24.420 is often called the felony defense or felony bar statute. The version the court applied, the 1987 text of a defense first enacted in the 1986 tort reform act, read in full:

It is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death. However, nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983.

Two elements, then. The person injured or killed must have been committing a felony at the time of the occurrence causing the injury or death, and that felony must have been a proximate cause. The defense is complete, meaning it defeats the claim rather than reducing damages.

The final sentence preserves federal civil rights claims, which is a real and important carve-out: the statute does not reach a claim brought under 42 U.S.C. Sec. 1983.

The current statute, amended by Engrossed Substitute Senate Bill 5263 and codified as 2021 c 325, keeps that general defense in subsection (1) but carves out one category. In an action "arising out of law enforcement activities resulting in personal injury or death," subsection (2) makes the defense available only if the finder of fact has determined beyond a reasonable doubt that the person injured or killed was committing a felony that proximately caused the injury or death. Subsection (3) preserves the Sec. 1983 carve-out. The act took effect July 25, 2021.

It is worth noting how much narrower the enacted bill was than the original proposal. As introduced, SB 5263 would have rewritten the statute to apply only where the injured or killed person "has been convicted of a class A or a class B felony," and would have made the change retroactive to pending claims. Neither feature survived. The enacted law left the general defense intact and added only the heightened standard for law enforcement cases.

The felony the court identified here comes from RCW 9.94.041(2), which makes it a class C felony for a person confined in a county or local correctional institution to knowingly possess a narcotic drug or controlled substance, among other items, without legal authorization.

The second defense the county raised, RCW 5.40.060, is the intoxication defense. It is a complete defense that the person injured or killed was under the influence of alcohol or any drug at the time of the occurrence causing the injury or death, that the condition was a proximate cause, and that the trier of fact finds that person more than 50 percent at fault. Note the shared statutory phrase: both statutes turn on conditions "at the time of the occurrence causing the injury or death." Division Three's construction of that phrase may therefore carry weight beyond the felony statute, though the panel spoke only to RCW 4.24.420 and did not construe RCW 5.40.060. Because the felony defense disposed of the case, the panel did not need to apply the intoxication defense on remand.

How this fits Washington wrongful death law

A Washington wrongful death claim is a creature of statute. Under RCW 4.20.010, when a death is caused by another's wrongful act, neglect or default, the decedent's personal representative may bring an action for the economic and noneconomic damages sustained by the beneficiaries listed in RCW 4.20.020. Those beneficiaries are the spouse or state registered domestic partner and the children, including stepchildren; if there are none, the action may be maintained for the benefit of the parents or siblings. That second tier is why Batton's parents were proper claimants here.

None of that changes after this decision. What changes is the defense landscape. An affirmative defense like the felony bar does not say a duty was never owed or a claim never existed. It says a separate statutory bar defeats the claim once the defendant raises and proves it, which is the point the Supreme Court majority stressed when it said the jailer's duty "remains." Our overview of wrongful death deadlines and who is allowed to sue in each state explains how the beneficiary tiers and filing windows differ, and the Washington-specific rules on beneficiaries, damages and timing go further into state practice.

Timing rules also sit outside this ruling and were not at issue in it. Washington generally applies the three-year limitation period in RCW 4.16.080(2) to wrongful death actions. Claims against counties, cities and other local government entities carry an additional procedural step under RCW 4.96.020: the claim must be presented to the entity's designated agent within the limitations period, on the state standard tort claim form or on the local entity's own claim form if it provides one, and no suit may be filed until 60 calendar days have passed after presentment, with the limitations period tolled during that window.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The legal work in this opinion happens inside a single sentence of the 1987 statute, and it is worth seeing why. That sentence contains two different causation ideas. One is temporal: the decedent must have been committing a felony "at the time of the occurrence causing the injury or death." The other is the familiar tort standard: the felony must have been "a proximate cause." Division Three read the first as the narrower of the two on purpose, reasoning that the legislature knew the words "proximate cause" and used them deliberately in the same sentence for the second element only.

That reading does a lot of work. Washington tort law has long accepted that an injury can have more than one proximate cause, and the estate's theory depended on that principle: the county's alleged failures created the conditions in which the heroin reached the cell. Under the panel's construction, that theory does not change the answer, because the statutory clock is set at the moment of the act that directly produced the death, not at the earlier link in the chain. The county's alleged negligence can be a proximate cause and still be the wrong occurrence for purposes of the statute.

Because the phrase "at the time of the occurrence causing the injury or death" appears in RCW 5.40.060 as well, the construction has a wider footprint than the felony statute. A Washington court reading the intoxication defense now has an appellate decision on what that shared phrase means, even though this panel did not apply that defense.

The retroactivity half of the opinion is a reminder of how much a deleted clause can carry. The original bill said plainly that the act was remedial and applied retroactively to claims commenced before or after the effective date. The enacted bill said nothing about retroactivity at all.

Division Three treated that deletion as affirmative evidence of legislative intent, not merely as silence. The practical effect here is that the law applied to a 2018 death is the 1987 statute, with no heightened standard of proof, even though the version on the books today reads differently.

That gap between the statute as applied and the statute as it exists is the main reason to be careful about reading this decision forward. The current RCW 4.24.420(2) requires proof beyond a reasonable doubt of the underlying felony in actions arising out of law enforcement activities. Whether a death in a county jail is such an action is a question this opinion did not reach and did not need to reach. Until a Washington appellate court answers it, the scope of the 2021 carve-out for custodial deaths is open.

Two other limits are worth naming. First, the Sec. 1983 carve-out in subsection (3) means the felony defense does not travel into federal civil rights claims, where the governing standards are different. Second, the Supreme Court's March opinion was explicit that the policy argument against applying these defenses to overdose deaths in custody is an argument for the legislature, noting that the statutes "can be amended or repealed."

Justice Mungia's dissent made the competing case for reading the statutes narrowly against a common law duty. Which view prevails long term is a legislative question, not something a court filing will settle, and we are not predicting an outcome either way.

How This Affects You

This is general information about Washington law, not advice about any particular case. Deadlines and procedural requirements are unforgiving in this area, and only a Washington lawyer reviewing the actual facts can tell anyone what applies to them.

A few general points follow from the decision and the statutes it applies.

The felony defense is an affirmative defense. The defendant must raise it and prove its elements, and it is distinct from the question of whether a duty of care existed. The Washington Supreme Court said directly that the jailer's special duty to people in custody survives these statutes.

Which version of a statute governs usually depends on when the events happened, not when the suit was filed or when a defense was asserted. In this case the amendment arrived after the death but before the county pleaded the defense, and the court still applied the older text.

Claims against a county, city or other local government entity in Washington involve a presentment step under RCW 4.96.020 on top of the ordinary limitation period, and that step has its own 60-day waiting rule. Missing it can be fatal to a claim regardless of its merits.

Federal civil rights claims follow a different track. RCW 4.24.420(3) states that nothing in the section affects a right of action under 42 U.S.C. Sec. 1983, so the state felony bar does not resolve whether such a claim exists or succeeds.

Documentation matters in custodial death matters, and much of it is held by government agencies. Our guide to obtaining incident records from Washington agencies covers how those requests work. Where a death happens in the course of employment rather than in custody, a different statutory system applies entirely, and the state-run industrial insurance scheme in Washington sets out how that exclusive remedy operates.

This article is general legal information, not legal advice, and no attorney-client relationship is created by reading it. Statutes and case law change, and how a rule applies depends on specific facts. For guidance on a particular situation, consult a lawyer licensed in the relevant jurisdiction.

Related articles

• Wrongful death deadlines and who can sue, state by state
• Washington wrongful death rules for beneficiaries and damages
• How to request a police or incident report in Washington
• Washington workers' compensation and the exclusive remedy rule

Last updated: 2026-10-13. This is a developing story; details verified as of 2026-10-13.

Frequently Asked Questions

What did the Washington Court of Appeals decide on October 8, 2026?

In Anderson v. Grant County, No. 38892-1-III, Division Three held that the 'occurrence causing the injury or death' under RCW 4.24.420 was Derek Batton's possession and ingestion of heroin, and that the 2021 amendments to that statute do not apply to a 2018 death. It reversed the denial of summary judgment and remanded for entry of judgment in Grant County's favor.

What is Washington's felony defense statute?

RCW 4.24.420 provides a complete defense to a personal injury or wrongful death action where the person injured or killed was committing a felony at the time of the occurrence causing the injury or death and that felony was a proximate cause. The statute also states that nothing in it affects a right of action under 42 U.S.C. Sec. 1983.

Why did the court apply the older version of RCW 4.24.420?

Washington presumes statutory amendments apply prospectively unless the legislature clearly says otherwise. The 2021 act, Engrossed Substitute Senate Bill 5263, contains no retroactivity clause, and the court noted that earlier drafts had declared the act remedial and retroactive before the legislature deleted that language. Because the death occurred in 2018, before the amendments took effect on July 25, 2021, the earlier text governed.

What did the 2021 amendments to RCW 4.24.420 change?

The amendments kept the general felony defense in subsection (1) but added a separate rule for actions arising out of law enforcement activities. In those actions, subsection (2) allows the defense only if the finder of fact determines beyond a reasonable doubt that the person injured or killed was committing a felony that proximately caused the injury or death. The act took effect July 25, 2021.

Does the 2021 law enforcement carve-out cover deaths in a county jail?

That question is unresolved in Washington. The October 8 opinion applied the pre-2021 statute, so it did not decide whether a jail death is an action arising out of law enforcement activities under the current RCW 4.24.420(2). No Washington appellate decision cited in the opinion answers it.

What did the Washington Supreme Court hold earlier in this case?

On March 5, 2026, in Anderson v. Grant County, No. 103111-4, the Supreme Court held that Grant County is not precluded from raising the statutory felony and intoxication defenses, reversing the Court of Appeals and remanding for it to decide the two questions it had skipped. The majority said the jailer's common law duty remains and can coexist with the statutory defenses. Justice Mungia dissented.

Does this ruling eliminate a jail's duty of care in Washington?

No. The Supreme Court stated that nothing in these two statutory affirmative defenses eliminates the jailer's common law duty toward incarcerated people, and that the duty remains. The defenses are separate bars to liability that a defendant must raise and prove.

Who can bring a wrongful death claim in Washington?

Under RCW 4.20.010 the decedent's personal representative brings the action, for the benefit of the beneficiaries listed in RCW 4.20.020. Those are the spouse or state registered domestic partner and the children, including stepchildren. If there are none, the action may be maintained for the benefit of the parents or siblings.

Does the felony defense apply to federal civil rights claims?

RCW 4.24.420(3) states that nothing in the section affects a right of action under 42 U.S.C. Sec. 1983. A claim under that federal statute is governed by federal standards, and the Washington felony bar does not by itself resolve whether such a claim exists or succeeds.

Can this decision still be reviewed?

A party may petition the Washington Supreme Court for discretionary review of a published Court of Appeals decision. As of October 13, 2026, we have seen no order granting further review in this case, and the opinion as filed directs entry of judgment for the county.