156 Wash. 2d 441 | Wash. | 2006
Lead Opinion
¶1 This case involves cross appeals from a civil trial in which plaintiff Said Aba Sheikh obtained a judgment against the State of Washington for $10,364,372 in damages. Aba Sheikh’s injuries were inflicted during an assault by four youths in March 1999. One of the four assailants, Mychal Anderson, had been placed in a dependency guardianship by the Department of Social and Health Services (DSHS). Another, Miguel Pierre, was a DSHS dependent who had been placed in foster care. Aba Sheikh brought claims against the State alleging (1) negligent placement of Anderson and Pierre by DSHS, (2) parental liability under an in loco parentis theory, (3) vicarious liability, and (4) negligent failure to provide treatment. While claims 2-4 were dismissed upon the State’s motion for summary judgment, the jury rendered a verdict in favor of Aba Sheikh on his negligent placement claim. The State raises four issues on appeal: (1) whether DSHS owed a duty to Aba Sheikh, (2) whether there was sufficient evidence to support a proximate cause finding, (3) whether the trial court improperly denied the State’s pro
¶2 On March 27, 1999, Aba Sheikh was assaulted in the parking lot of a West Seattle minimart by Anderson, Pierre, Pulefano Ativalu, and Michael Gallow. Both Anderson and Pierre resided in the home of Emma Daniels as a result of placement arrangements by DSHS. Facts specific to DSHS’s relationships with Anderson and Pierre are described separately below.
1. Anderson and DSHS
¶3 Anderson, 13 at the time of the assault, was a dependent child placed with Daniels in what is known as a dependency guardianship. A dependency guardianship is more permanent than foster care but less so than outright adoption. See RCW 13.34.136(l)(a), .145(l)(a). Among other features, the guardianship gave custody and control to Daniels until Anderson turned 18 and limited DSHS’s supervisory role, terminating periodic judicial review of the dependency. Anderson’s dependency guardianship could be altered only upon the court’s finding that there was a substantial change in circumstances and the alteration would be in Anderson’s best interests. RCW 13.34.233(2). In December 1998 and February 1999, Daniels asked that Anderson’s dependency guardianship be terminated and that he be removed from her home due to his criminal behavior and general incorrigibility.
¶[4 Pierre, 16 at the time of the assault, was a dependent placed in Daniels’ home as a foster child. “Foster parents are responsible for the protection, care, supervision, and nurturing of the child in placement.” RCW 74-.13.330. However, unlike Anderson’s dependency guardianship, Pierre’s foster care placement involved greater ongoing involvement by DSHS. For example, DSHS was required to develop and monitor a plan for Pierre’s foster home placement and produce reports for periodic review by the court. RCW 74.13.031(1), (5). A permanency planning hearing for Pierre was conducted by the juvenile court the day before the assault. Although there was significant evidence regarding Pierre’s delinquent and criminal behavior, DSHS recommended continued placement in Daniels’ home and the court agreed. As with Anderson, Daniels had requested that Pierre be removed from her home in the months before the assault.
3. Procedural History
¶5 The State argued, on motion for summary judgment under CR 56 and motion for judgment as a matter of law under CR 50, that it owed no actionable tort duty to Aba Sheikh. The trial court denied both motions, concluding that the State owed Aba Sheikh a common law duty to control Anderson and Pierre through DSHS’s ability to seek changes in placement. After a verdict in Aba Sheikh’s favor, the State timely appealed to Division One of the Court of Appeals. Aba Sheikh subsequently filed a cross appeal, the issues of which were contingent upon the possibility the State would obtain a favorable decision on appeal. The Court of Appeals certified the case to this court for direct review.
4. State’s Motion To Strike
¶6 RAP 10.3(a)(4) requires a “statement of the facts and procedure relevant to the issues presented for review, without argument” and that “Reference to the record must
ISSUES
¶7 1. Did DSHS’s influence or control over the placement of Anderson and Pierre create a duty to protect Aba Sheikh from intentional torts by those assailants?
¶8 2. Can Aba Sheikh maintain a claim against the State for in loco parentis liability?
¶9 3. Can Aba Sheikh maintain a claim against the State for vicarious liability?
¶10 4. Can Aba Sheikh maintain a claim against the State for negligent failure to provide treatment?
STANDARD OF REVIEW
¶11 At issue is the trial court’s denial of the State’s motion for summary judgment and judgment as a matter of law that it owed no duty to Aba Sheikh, as well as the trial court’s decision to grant summary judgment in favor of the State as to Aba Sheikh’s in loco parentis, vicarious liability, and failure to provide treatment claims. “The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court.” Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). The standard on a motion for judgment as a matter of law mirrors that of summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The elements
ANALYSIS
1. Placement Duty under Restatement (Second) of Torts § 319 (1965)
¶12 As a general rule, our common law imposes no duty to prevent a third person from causing physical injury to another. See Restatement (Second) of Torts § 315. Additionally, under the public duty doctrine, the State.is not liable for its negligent conduct even where a duty does exist unless the duty was owed to the injured person and not merely the public in general. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988). However, this court recognizes an exception to both these general rules in Restatement (Second) of Torts sections 315 and 319. See, e.g., Taggart v. State, 118 Wn.2d 195, 218-21, 822 P.2d 243 (1992). Under section 315(a), a duty arises where “a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.” Through Taggart and its progeny, we have adopted one class of these “special relation” cases as described in section 319: “ ‘One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.’ ” 118 Wn.2d at 219 (quoting Restatement (Second) of Torts § 319).
¶13 The Taggart court announced that “parole officers have a duty to protect others from reasonably foreseeable dangers engendered by parolees’ dangerous propensities.” Id. at 224. In reaching this conclusion, the court began to
¶14 Since Taggart, we have continued to define the class of cases in which a take charge duty exists. For example, in Hertog, this court held that a take charge special relationship extends to probation counselors and pretrial release counselors. 138 Wn.2d at 281, 292. The Hertog court noted that “[a] probation counselor is clearly in charge of monitoring the probationer to ensure that conditions of probation are being followed, and has a duty to report violations to the court.” Id. at 279. The court applied similar reasoning to pretrial release counselors over the dissent’s objection that such counselors “are not authorized to arrest the people on their caseload nor can they impose conditions of
f 15 In contrast to the series of cases imposing a duty, at least two decisions from the Court of Appeals have defined limitations to the take charge exception. First and by far the most analogous to this case, Division One declined to impose a duty where DSHS had undertaken supervision of two children who later sexually assaulted a neighbor child. Terrell C. v. Dep’t of Soc. & Health Servs., 120 Wn. App. 20, 29, 84 P.3d 899, review denied, 152 Wn.2d 1018 (2004). DSHS was actively supervising the two children and had filed dependency petitions before the assault occurred, but the children had not been adjudicated dependent. Id. at 23-24. In concluding there was no take charge relationship, the court relied heavily on the nature of the child welfare statutes, stating as follows:
The statutory scheme does not contemplate that social workers will supervise the general day-to-day activities of a child. Rather the social worker’s role is to coordinate and integrate services in accord with the child’s best interests and the need[s] of the family. Any “ongoing” relationship between the social worker and the child is to prevent future harm to that child, not to protect members of the community from harm.
Id. at 28 (emphasis added) (footnote omitted). Thus, the court gave great weight to the distinction between DSHS’s statutory purpose (protecting children) and the criminal justice system’s purpose in the Taggart line of cases (to “properly supervise an adjudicated offender based on the prior crime”). Id. Additionally, in Couch v. Department of
¶16 We are tasked with determining where the State’s relationships to Anderson and Pierre fall on the continuum of take charge cases discussed above. In appealing the trial court’s decision to extend the take charge duty into the realm of DSHS placement decisions, the State relies on the statutory limits of DSHS’s purpose and authority, existing case law, and public policy considerations. In response, Aba Sheikh argues that there is some statutory basis for imposing a duty and Terrell C. is immaterial because the assailants in that case were not dependents.
¶17 There are numerous statutory descriptions of the purposes underlying DSHS’s child welfare division. For example, RCW 26.44.010 declares that “[i]t is the intent of the legislature that. . . protective services shall be made available in an effort... to safeguard the general welfare of [abused] children.” Similarly, RCW 74.15.010(1) states that the purpose of the care of children chapter of the code is “[t]o safeguard the health, safety, and well-being of children . . . receiving care away from their own homes, which is paramount over the right of any person to provide care.” With direct reference to the sentiment expressed in these statutes, this court has recently stated that “[the] statement of purpose encompasses two concerns: the integrity of the family and the safety of children within the family.” M.W. v. Dep’t of Soc. & Health Servs., 149 Wn.2d 589, 597-98, 70 P.3d 954 (2003) (citing Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 80, 1 P.3d 1148 (2000)). Out of this declaration we find a fundamental distinction between the criminal justice agencies at issue in Taggart,
¶18 In response, Aba Sheikh relies on several statutory references to DSHS’s control over placement and takes them out of context to argue that there is statutory support for a take charge relationship. For example, Aba Sheikh lists DSHS’s authority to (1) ensure appropriate placements with foster parents; (2) remove a child from a foster home; (3) monitor and supervise a foster home; (4) arrange case worker contact every 90 days; (5) license foster homes; and (6) deny, suspend, revoke, or refuse to renew foster home licenses. See former WAC 388-73-212(6), (7) (1999), repealed by Wash. St. Reg. 01-18-037 (Sept. 28, 2001); RCW 74.13.260; RCW 74.15.010(5), .030(3), (5). While DSHS clearly has some control over dependent children, these statutes uniformly follow from child welfare’s stated purpose: to safeguard the health and welfare of dependent children. Aba Sheikh also directs us to RCW 74.15.010(5), which states that DSHS is directed to “license agencies . .. and to assure the users of such agencies, their parents, the community at large and the agencies themselves that adequate minimum standards are maintained by all agencies caring for children.” (Emphasis added.) Aba Sheikh reasons that the authority to license agencies (e.g., foster homes, group homes) and assure the “community at large,” among others, that those agencies are meeting minimum standards in their care of dependent children suggests that DSHS’s placement authority is intended to protect the public from the tortious acts of those dependent children. This argument is not well taken. Nothing in this statement of purpose suggests DSHS is directed to protect the public from dependent children. The statement does, however, speak to providing the public with assurances that DSHS is fulfilling its child protection role. Again, this represents a clear distinction from the criminal justice system.
¶20 Finally, public policy considerations weigh strongly in favor of concluding that DSHS owes no duty to protect the public from the criminal acts of dependent children. First, imposing such a common law duty on DSHS would directly conflict with separate DSHS statutory mandates. On the one hand, DSHS is required to ensure that foster care placements are in the least restrictive, most family-like setting available. See 42 U.S.C. § 675(5)(A); RCW 74-.13.065(2)(f). On the other hand, DSHS would be subject to liability, or at least the potential for liability, if it did not take significant steps to restrict the freedom of dependent children, the vast majority of whom have suffered severe
¶21 In sum, the nature of DSHS’s statutory relationship to dependent children, the existing case law, and public policy considerations all support a conclusion that the State owed no duty to Aba Sheikh. DSHS’s authority is limited to moving dependent children between foster homes or group homes that are in “[t]he least-restrictive, most family-like placement reasonably available.” ROW 74.13.065(2)(f). The purpose of this authority is to protect “the integrity of the family and the safety of children within the family.” M.W., 149 Wn.2d at 597. All of this lies in stark contrast to the authority of criminal justice agencies to supervise offenders or alleged offenders for the purpose of protecting the public from harm as in Taggart, Hertog, and Bishop. Accordingly, we hold that DSHS owed no duty to Aba Sheikh under Restatement (Second) of Torts section 319.
2. In Loco Parentis Liability
¶22 Aba Sheikh argues that it was error for the trial court to dismiss, upon motion for summary judgment, his in loco parentis claim against DSHS. The in loco parentis relationship is a common law doctrine that is not well defined in our case law. In State ex rel. Gilroy v. Superior Court, 37 Wn.2d 926, 933, 226 P.2d 882 (1951), this court gave some meaning to the doctrine through citation to outside authority, stating as follows:
“One who takes a child into his home and treats it as a member of his own family, educating and supporting it as if it were his own child, is said to stand to the child in loco parentis. . . .
*455 “Where one stands in loco parentis to another, the rights and liabilities arising out of that relation are, as the words imply, substantially the same as between parent and child.”
Id. (quoting 39 Am. Jur. Parent and Child § 61, at 697). Aba Sheikh reasons that Anderson’s and Pierre’s statuses as dependents, requiring DSHS to provide basic services (housing, physical care, and medical care), and DSHS’s authority to assume custody under RCW 74.13.031(6), create the in loco parentis relationship.
¶23 In the foster care setting it is the foster parent, Daniels in this case, who stands in the parental role, not DSHS. RCW 74.13.330 defines the responsibilities of foster parents as follows: “Foster parents are responsible for the protection, care, supervision, and nurturing of the child in placement.” Congruently, RCW 74.15.020(l)(g) defines “ [f]oster-family home’ ” as “an agency which regularly provides care on a twenty-four hour basis to one or more children.” In contrast to Daniels, DSHS was limited to coordinating the foster care services and, in the case of Pierre, monitoring the home on an ongoing basis. It was Daniels who took the children into her home and treated them as members of her own family, educating and supporting them. See Gilroy, 37 Wn.2d at 934. DSHS had no analogous relationship. Therefore, the trial court was correct when it concluded as a matter of law that DSHS did not stand in loco parentis as to Anderson and Pierre.
3. Vicarious Liability
¶24 Aba Sheikh next argues that it was error for the trial court to dismiss his vicarious liability claim against
The State sets forth certain standards for licensing a foster home and requires general compliance with certain standards, but it does not control the manner and means of operating the home. The foster parent is paid per child, rather than for time worked; and the State treats foster parents as vendors, not employees, for tax purposes.
. . . [Tjhere is no employee/employer relationship primarily because there is no right to control the daily actions of the foster parent and thus no ability to supervise or interfere with the day-to-day interaction between a foster parent and those working in the foster home. The State could revoke a foster parent’s license and remove foster children from the home, but it would have no right to otherwise “control” the actions of the foster parent. A foster parent is therefore not a state employee.
Id. at 139-40. In contrast, in Estate of Jones v. State, 107 Wn. App. 510, 521, 15 P.3d 180 (2000), the Court of Appeals stated that a DSHS-run group home for juvenile offenders was vicariously liable for torts that occurred when a resident escaped. Notably, the full extent of the court’s analysis on this issue is as follows: “Second Chance was an agent of the State when it operated the group home to which the State assigned Dodge and the State remains liable for any negligent supervision by Second Chance via respondeat superior.” Id.
4. Negligent Failure To Provide Treatment
¶26 Aba Sheikh’s third and final alternative claim is that DSHS had a duty, established by administrative regulation, to protect the public by providing mental health and substance abuse treatment to Anderson and Pierre. We employ a three-part test to determine whether a statute or regulation creates an implied cause of action: (1) “whether the plaintiff is within the class for whose ‘especial’ benefit the statute was enacted”; (2) “whether legislative intent, explicitly or implicitly, supports creating or denying a remedy”; and (3) “whether implying a remedy is consistent with the underlying purpose of the legislation.” Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). Aba Sheikh’s argument regarding this issue is extremely underdeveloped, failing to even discuss the Bennett test. Instead, Aba Sheikh simply cites three now-
¶27 The basis for Aba Sheikh’s claim fails to satisfy any of the three Bennett factors. First, these administrative rules are clearly intended to benefit the recipients of the listed services. Aba Sheikh points to nothing in the WAC or authorizing legislation that would suggest the treatment provisions are intended to prevent tortious acts by dependent children from harming the community at large. Second, Aba Sheikh’s only contention that the legislature intended to create a remedy is his renewed citation to the “community at large” reference in RCW 74.15.010(5) (one of DSHS’s purposes is to license foster homes to ensure there are minimum standards in child care). Licensing foster homes has no relation to offering additional services (i.e., mental health and chemical dependency treatment) to dependent children.
¶28 We hold that the State owes no duty under Restatement (Second) of Torts section 319 to persons harmed by the tortious acts of dependent children. Imposing such a common law duty on the State would be inconsistent with the principles of “take charge” liability and our current case law, as well as contrary to important public policy concerns. We also hold that the trial court did not err in granting the State’s motion for summary judgment as to Aba Sheikh’s in loco parentis, vicarious liability, and negligent failure to provide treatment claims. As Aba Sheikh maintains no remaining claims, the judgment against the State is vacated and all other issues on appeal are moot.
Alexander, C.J., and C. Johnson, Madsen, Bridge, Fairhurst, and J.M. Johnson, JJ., concur.
Tegman v. Accident & Med. Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003). The proposed jury instruction by the State relates to the segregation of damages between negligent and intentional tortfeasors.
For example, in Taggart, the parole officer was tasked with regulating the parolees’ movement and monitoring their use of drugs and alcohol, the failure of both of which led to the parolees’ attacks on the victims. 118 Wn.2d at 200-03.
The dissent refers us to Evangelical United Brethren Church v. State, 67 Wn.2d 246, 259-60, 407 P.2d 440 (1965) (analogizing the treatment, management, and care of delinquent children committed to its custody to a parent/child relationship). This case is inapposite because it involved a child placed in a juvenile corrections facility, not dependency, and the statutory basis for the State’s responsibility has since been repealed. Washington courts have recognized that the Evangelical United decision is “outdated” and has been “significantly narrowed by later decisions.” Estate of Jones v. State, 107 Wn. App. 510, 522-23, 15 P.3d 180 (2000) (citing Taggart, 118 Wn.2d at 214-15).
Former WAC 388-24-2150(2) (1999), repealed by Wash. St. Reg. 00-03-012 (Feb. 7, 2000), states that, beyond the basic requirements of foster family home care, clothing, and personal incidentals, “[a]dditional requirements for the eligible child shall be school supplies when not provided by the school, needed transportation costs, and psychological services.” Former WAC 388-86-067(1) (1999), repealed by Wash. St. Reg. 00-05-039 (Mar. 12, 2000), states that the “department shall provide mental health or day health care services.” Finally, former WAC 388-86--300(1) (1999), repealed by Wash. St. Reg. 00-18-032 (Sept. 29, 2000), states that the “department shall provide chemical dependency outpatient treatment services to a Medicaid client,” which includes dependent children.
See also Braam v. State, 150 Wn.2d 689, 712, 81 P.3d 851 (2003) (under RCW 74.14A.050 (requiring DSHS to develop programs for dependent’s emotional, medical, and mental needs), there was “no evidence of legislative intent to create a private cause of action, and that implying one is inconsistent with the broad power vested in DSHS to administer these statutes”).
Concurrence Opinion
¶29 (concurring) — I concur with the majority.
¶30 Like both the majority and dissent, I would not extend the duty we found in Taggart v. State, 118 Wn.2d 195, 217, 822 P.2d 243 (1992), based upon the State’s “take charge” relationship with those on parole or probation, to foster children. Those convicted of crimes and those committed to the State’s care as foster children are far too different to permit that analogy. Foster children are under the State’s supervision overwhelmingly through no fault of their own. The primary duty of the State is the protection of these children. Terrell C. v. Dep’t of Soc. & Health Servs., 120 Wn. App. 20, 28-29, 84 P.3d 899, review denied, 152 Wn.2d 1018 (2004). Foster children are entitled to the least restrictive placement possible. Imposing a duty on the State in negligence to third parties injured by foster children is inconsistent with placing these children in the most family-like setting possible, and it would have a potentially terrible, negative impact on these children.
¶31 But that is not to say the State should be immune from any enforceable duty of care. The State, of course, may
¶32 I write separately because this case offers us an opportunity to examine the practical impact of Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003).
¶33 Tegman, of course, must be read in harmony with our case law interpreting apportionment, especially Cox v. Spangler, 141 Wn.2d 431, 439-40, 5 P.3d 1265 (2000) and Phennah v. Whalen, 28 Wn. App. 19, 28-29, 621 P.2d 1304 (1980), as Judge Downing properly did here. The Cox court applied the long-recognized common law rule that an at-fault defendant bears the burden of proof that seemingly
¶34 The principles in play are well illustrated in Phennah. There, the plaintiff was injured in two unrelated car accidents that happened about four months apart. Phennah, 28 Wn. App. at 20. The plaintiff saw the same physician after each accident. Id. That physician testified that both accidents contributed to a permanent disability and that it was “impossible” to determine which accident caused what portion of the harm. Id. at 21. The plaintiff sued both drivers but did not attempt to segregate the damage between them. The defendants successfully filed a motion to dismiss based on the plaintiff’s failure to attempt to segregate, and the Court of Appeals reversed and remanded for trial.
¶35 Key to the court’s holding was the fact that the divisibility of the harm was only theoretical: the harm was actually indivisible. Phennah, 28 Wn. App. at 23-24. Like Judge Downing below, the Phennah court found that the burden of segregating the harm caused, if possible, properly rested with the defendants. Phennah, 28 Wn. App. at 29. Accordingly,
“[wjhere the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.”
Phennah, 28 Wn. App. at 28 (quoting Restatement (Second) of Torts § 433(B)(2) (1965)).
¶36 Similarly, in Cox, the injury to the plaintiff might have been caused by two parties in succession, but the first (who caused an accident months before) was not potentially “at-fault” for purposes of RCW 4.22.070 because of statutory immunity from liability under the Industrial Insurance Act, Title 51 RCW. This precluded joint and several liability. We concluded the trial court correctly instructed
¶37 The State argues these cases are inapplicable because they do not involve an intentional tortfeasor. The argument misses the point. Cox involved one at-fault defendant under RCW 4.22.070 and a party relieved from liability under the Industrial Insurance Act. See Cox, 141 Wn.2d at 446. That is substantially similar, analytically, to the case before us.
¶38 Here the State may be an at-fault defendant under RCW 4.22.015 and the four assailants are excluded from that statute because they are intentional tortfeasors. RCW 4.22.015 (“ ‘Fault’ includes acts or omissions . . . that are in any measure negligent or reckless.”). On this important point, Cox, Phennah, and A6a Sheikh are analogous. In a unanimous opinion by Justice Alexander, this court held that an at-fault defendant bears the burden to prove seemingly indivisible damages are in fact segregable, and if this burden is not met, the defendant remains liable for those damages. Cox, 141 Wn.2d at 447-48; see also Phennah, 28 Wn. App. at 28-29; Restatement (Second) of Torts § 433(B)(2). This result was not based upon the principle of joint and several liability, which, in any event, did not apply in Cox because an immune entity was the other alleged cause of the damages. See Cox, 141 Wn.2d at 446. Rather, again, the court grounded its decision in the actual indivisibility of the plaintiff’s injuries. See Cox, 141 Wn.2d at 447; accord Phennah, 28 Wn. App. at 23-24.
¶39 In this case, the trial judge properly harmonized the tort reform act, chapter 4.22 RCW, Tegman, Cox, and Phennah.
¶40 I concur with the majority.
I will make no secret of the fact that I would reverse Tegman. I have already set forth my view of why Tegman is wrong. See Tegman, 150 Wn.2d at 120-35 (Chambers, J., dissenting). Tegman is also harmful because it prevents full and fair compensation to victims that the legislature clearly intended to fully compensate. RCW 4.22.070(l)(b). It creates the perverse possibility of a grossly negligent party escaping any liability because of the completely foreseeable intentional conduct of another. An examination of the tortured verdict form in this case should be sufficient to satisfy anyone that Tegman’s requirement that indivisible damages be segregated twice, based upon irreconcilable standards, has a harmful impact on the law. Under Tegman, damages must be segregated first based upon cause, and second based upon the character of the defendants’ conduct. The results of these different standards may have nothing to do with one another and will confound any jury.
Dissenting Opinion
¶41 (dissenting) — The majority holds the Department of Social and Health Services (DSHS) has no
I. Background
¶43 On March 27, 1999, a gang of four young thugs— Miguel Pierre, Mychal Anderson, Pulefano Ativalu, and Michael Gallow — viciously beat 14-year-old Said Aba Sheikh. They dragged Sheikh from a parked car, pummeled him with fists and feet, repeatedly stomped on his head, and left him for dead in the parking lot of a Shell gas station. Sheikh survived the assault. But he suffered severe brain damage and permanent disability.
¶44 The ringleaders of the gang — Pierre and Anderson— were dependent children in State custody. Both lived with Emma Daniels, a single, elderly foster mother who worked full-time. See Ex. 7-542. And both were gang members with long histories of serious crime and violence, including assault, sexual abuse, burglary, car theft, and drug dealing. See Report of Proceedings (RP) at 95-100; Exs. 7-542 and 7-575. DSHS concealed those criminal histories from Daniels. See RP at 148-50, 173-74. It knew Daniels was incapable of controlling the children in her care.
II. Liability Exists under the Public Duty Doctrine Because the State Stands In Loco Parentis to Foster Children
¶45 The majority concludes that the State is not liable to Sheikh for negligently placing Pierre and Anderson with a foster parent incapable of controlling them because it has no “special relation” to foster children. Under the public duty doctrine, the State is liable for negligence only when it owes a duty specific to the injured person because “ ‘a duty to all is a duty to no one.’ ” Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001) (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988)). But the State owes a duty specific to an injured person when it has a “special relation” to a third person who injures that person.
¶46 After lengthy analysis, the majority concludes no “special relation” exists because children are not parolees. See majority at 448-50 (discussing Taggart, 118 Wn.2d 195). While many teens might take exception, the majority is quite correct, as far as it goes.
A. The State Stands In Loco Parentis to Foster Children in Its Custody
¶47 But the State does not limit its “special relations” to parolees. It is well-settled that the State stands in loco
¶48 Curiously, the majority characterizes the in loco parentis relationship as “not well defined in our case law.” Majority at 454. In fact, there is little to define. A party stands in loco parentis by “acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.” Black’s Law Dictionary 803 (8th ed. 2004). See State v. Waleczek, 90 Wn.2d 746, 752-53, 585 P.2d 797 (1978) (following State ex rel. Gilroy v. Superior Court, 37 Wn.2d 926, 933, 226 P.2d 882 (1951)). The relationship thereby established is “undefined” only in that the duties accompanying it depend on the circumstances.
B. The Duty of a Parent To Control a Child Is a “Special Relation” under the Public Duty Doctrine
¶49 And a parent’s duty to control the conduct of a child is a canonical “special relation,” establishing liability for negligent failure to control the actions of a third party.
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent: (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.
¶50 In any case, any party standing in loco parentis has a duty to control its ward. The State no more assumes “[gjeneral responsibility for the rearing of incorrigible children” than does a parent. Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 895 (1934). But it must “exercise the care which a reasonable parent should exercise to prevent his child from creating an unreasonable risk of harm to third persons.” Id. See, e.g., Evangelical United Brethren Church, 67 Wn.2d at 259-60; Riley, 604 N.W.2d at 12 (holding that “public duty doctrine is inapplicable” to the State’s duty to control foster children); P.G., 4 P.3d at 331 (holding State “stands in a special relationship . . . with children in need of aid who come under its supervision”). Thus, the State is “liable for the tortious conduct of a child” in its custody “if [it] know[s] of the child’s dangerous proclivity and fail[s] to take reasonable measures to control that proclivity.” Carey, 56 Wn. App. at 22 (citing Eldredge, 90 Wn.2d at 408). See also
III. The State Has a Duty To Place Children with Able Foster Parents
¶51 The majority characterizes foster parents as “independent contractors whose actions do not impose vicarious liability on the State.” Majority at 457. Fair enough. When the State places a child in its custody with a foster parent, the foster parent — not the State — occupies the in loco parentis relationship. See RCW 74.13.330. Cf. RCW 4.24.590 (“In actions for personal injury or property damage commenced by foster children or their parents against foster parents . . ., the liability of foster parents for the care and supervision of foster children shall be the same as the liability of biological and adoptive parents for the care and supervision of their children.”). Because the State lacks sufficient control over the foster parent-foster child relationship, it is not vicariously liable for a foster parent’s negligence. See, e.g., Hennig v. Crosby Group, Inc., 116 Wn.2d 131, 802 P.2d 790 (1991). But it does have a duty to inform foster parents when a foster child is dangerous, see Taggart, 118 Wn.2d at 221 (citing Johnson v. State, 69 Cal. 2d 782, 786, 447 P.2d 352, 73 Cal. Rptr. 240 (1968)), and “an ongoing duty to control” children after releasing them from its custody to their parents. See Taggart, 118 Wn.2d at 221 (citing Doe v. Arguelles, 716 P.2d 279 (Utah 1985)).
¶52 And it also has a duty to place children in its custody with an able foster parent. “Commensurate with the parental obligation to supervise a child’s activities outside the home is a duty on the part of the state not to place one of its charges with an adult that it knows will not or cannot
¶53 This duty of careful placement is fully consistent with state law. DSHS must place foster children in the least restrictive, most family-like setting in the child’s community, consistent with the child’s best interests. See 42 U.S.C. § 675(5)(A); RCW 74.13.065(2)(e), (f); RCW 13.34.136(1)-(b)(iii). Obviously, a degree of supervision calculated to discourage criminal behavior is consistent with a child’s best interests.
¶54 Oddly, the majority relies on precedents holding that the State has no duty to exercise authority it does not possess. Yes, the State has no duty to control children not in its custody. See Terrell C. v. Dep’t of Soc. & Health Servs., 120 Wn. App. 20, 84 P.3d 899 (2004). And it has no duty to control parolees it lacks effective authority to monitor. Couch v. Dep’t of Corr., 113 Wn. App. 556, 54 P.3d 197 (2002). Likewise, it has no duty of careful placement when it lacks authority to change a foster child’s placement. Stenger v. State, 104 Wn. App. 393, 404, 16 P.3d 655 (2001). Unsurprisingly, “in cases where there is no underlying statutory authority to control or take charge of the offender’s behavior, no special relationship has been imposed.” Terrell C., 120 Wn. App. at 28.
¶56 Accordingly, I dissent.
The youth development director of the YMCA (Young Men’s Christian Association) informed DSHS that Daniels’s home “has not been a healthy placement for Miguel [Pierre]” who was “free to come and go as he pleases and