374 P.3d 121
Wash.2016Background
- Ho Im Bae died of acute morphine intoxication while a resident of Lakeside Adult Family Home; the death was ruled a homicide and bruising was observed.
- Alpha Nursing employed two nurses (Thomas, RN, and Binondo, LPN) who visited Lakeside but did not have Bae as a patient; both are mandated reporters under the AVAA.
- Binondo witnessed a fall and heard reports from a resident (Salzbrun) that Bae had been "doped" and saw the caregiver drag Bae; Binondo did not call DSHS or 911 at that time.
- Thomas observed Bae lethargic and being dragged, reviewed records showing no morphine prescription, and called the DSHS hotline (left messages) but did not call law enforcement.
- Plaintiff Esther Kim (personal representative) sued Alpha and Thomas alleging mandated-reporting failures under the Abuse of Vulnerable Adults Act (AVAA); trial court granted summary judgment for defendants, Court of Appeals affirmed in part; Washington Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RCW 74.34.035 (AVAA mandatory-reporting provision) creates an implied private cause of action against mandated reporters who fail to report | AVAA implies a private negligence cause of action against mandated reporters who fail to report suspected abuse | No implied private cause of action; statutory scheme and remedies preclude or do not support implication | AVAA does create an implied private cause of action against mandated reporters who fail to report (Bennett/Beggs framework) |
| Whether summary judgment was proper on the AVAA claims (duty, breach, and timeliness of reporting) | Thomas and Binondo had duties as mandated reporters; disputed factual questions exist about whether they had "reasonable cause" or "reason to suspect" and whether reports were made "immediately" | Defendants: no duty (or duties fulfilled); insufficient admissible evidence; actions were reasonable so summary judgment was proper | Summary judgment was improper — genuine disputes of material fact exist as to duty/breach/timeliness; credibility and timing are jury questions |
| Whether personal service in Norway complied with the Hague Convention (service on Thomas) | Personal service in Norway was proper (relying on Articles 5 and 19 and Norway law) and/or moot because central-authority service also occurred | Personal service was improper because Norway objected to alternative methods; service must go through Norway’s central authority | Personal service by private process server in Norway was improper under the Hague Convention; service is proper when effected through Norway’s central authority (Royal Ministry) |
| Whether statute of limitations was tolled as to Thomas and whether plaintiff exercised due diligence in serving her abroad | Timely service on Alpha tolled limitations as to Thomas under RCW 4.16.170/Sidis; Kim acted diligently in locating and serving Thomas through the central authority | Thomas argued delay and alleged lack of diligence; sought dismissal for untimely service | Service on Alpha tolled the limitations period as to Thomas; Kim exercised reasonable diligence and timely pursued service through Norway’s central authority; tolling applies until central authority completes service |
Key Cases Cited
- Beggs v. Dep’t of Soc. & Health Servs., 171 Wn.2d 69 (2011) (held ACA mandatory-reporting provision implies private cause of action; framework applied to AVAA)
- Bennett v. Hardy, 113 Wn.2d 912 (1989) (three-part test for implying a statutory cause of action)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) (Hague Convention governs service abroad and preempts inconsistent state methods)
- Broad v. Mannesmann Anlagenbau, AG, 141 Wn.2d 670 (2000) (Hague Convention tolling and necessity of central-authority transmission)
- Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325 (1991) (service on one defendant in multi-defendant suit tolls limitations as to others)
- Powers v. W.B. Mobile Servs., Inc., 182 Wn.2d 159 (2014) (clarified Sidis: tolling applies to unnamed/John Doe defendants if identified with reasonable particularity and diligence)
- Folsom v. Burger King, 135 Wn.2d 658 (1998) (summary judgment standard; duty is a question of law)