110 Wash. App. 233 | Wash. Ct. App. | 2002
Lead Opinion
— J.C.W., through her guardian, sued the Department of Social and Health Services (DSHS), alleging that several employees were negligent in examining her for sexual abuse. DSHS argued that it has a statutory duty to investigate allegations of child abuse and that its examination was reasonable. The trial court granted DSHS’s motion for summary judgment. J.C.W. appeals, contending that
FACTS
In March 1996, J.C.W. lived with her foster parents, M.W. and A.W.
A.W. took J.C.W. into the DSHS conference room. “Home support specialists” Insu Baker and Lila Stinson came into the conference room; program manager Kenneth Panitz, social worker Mat Reitzug, and Francis remained in the doorway. Baker and Stinson asked A.W. to remove J.C.W.’s diaper. They then examined J.C.W.’s genitals and “pulled apart [J.C.W.’s] vaginal area to see if there was vaginal redness.” CP at 76. A.W. stated in her deposition:
The first thing is [Stinson and Baker] were kind of looking at [J.C.W.]. “Geez, do you see redness?” One would say yes; one would say no. And then they started pointing and touching the outside. And I would say it was probably — it was both of them. I think one did it first and then the other one, and they were kind of bantering back and forth.
*236 And then that’s when they went in and stuck their hands in and pulled apart like this.
. . . [T]here was [sic] two types of touching. One was the actual poking of the outer area. Not her legs, but her private areas.
The other was sticking their hands inside of her and pulling her apart like so.
CP at 227-29. A.W. compared the women’s actions to pulling apart and inserting one’s hands inside the opening of a Kleenex tissue box. A.W. estimated that the touching and poking lasted four to five minutes. J.C.W. began to cry during the examination. A.W. also cried.
Another DSHS employee entered the conference room, concluded there was no vaginal redness, and told Baker and Stinson to “cover that baby up.” CP at 76. A.W., Baker, and Stinson then took J.C.W. to Mary Bridge Hospital where a doctor examined her for sexual abuse. The doctor found no signs of abuse. Following an investigation, DSHS concluded that the allegations were unfounded and cleared M.W. and A.W. of wrongdoing. J.C.W.’s counselor submitted a declaration stating that J.C.W. suffered from posttraumatic stress disorder because of the examination.
ANALYSIS
I. Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We consider all facts and reasonable inferences from
II. Negligent Investigation
A. Claim Against DSHS
Both parties describe this as a claim for negligent investigation of suspected child abuse, a recognized cause of action in Washington. Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 79-81, 1 P.3d 1148 (2000). RCW 26.44.050 requires DSHS to investigate allegations of child abuse.
DSHS argues that because RCW 26.44.050 requires it to investigate child abuse allegations, it was simply fulfilling its statutory duties when it examined J.C.W.
In Lesley v. Department of Social & Health Services, 83 Wn. App. 263, 921 P.2d 1066 (1996), parents sued DSHS and a caseworker for negligent investigation of child abuse. The Lesleys’ daughter, Taylor, had Mongolian spots — a type of birthmark common in African-American children — on her lower back and buttocks. A day-care worker saw the marks and, believing they might be bruises, contacted Child Protective Services (CPS). Lesley, 83 Wn. App. at 266-67. CPS immediately removed Taylor from her parents’ custody without personal notification. Lesley, 83 Wn. App. at 267. CPS caseworkers ignored or downplayed the parents’ repeated assertions that the marks were Mongolian spots. Finally, six days after removing Taylor from her parents’ custody, a doctor identified the marks as Mongolian spots and diagnosed Taylor’s vaginal rash as a yeast infection. CPS returned Taylor to her parents. Lesley, 83 Wn. App. at 271.
The Court of Appeals reversed summary judgment in favor of DSHS, holding that DSHS could be liable for negligently investigating the marks. Lesley, 83 Wn. App. at 273. For the caseworkers to have qualified immunity against such a claim, they must “(1) carry out a statutory duty, (2) according to procedures dictated by statute or superiors, and (3) act reasonably.” Lesley, 83 Wn. App. at 274. The Lesleys had presented evidence that the caseworker failed to follow proper procedures and may not have acted reasonably under the circumstances. Lesley, 83 Wn. App. at 275.
Other negligent investigation cases have also recognized that DSHS’s duty to investigate necessarily involves the duty to act reasonably. See Tyner, 141 Wn.2d at 79 (“During its investigation the State has the duty to act reasonably in relation to all members of the family.”); Yonker v. Dep’t of Soc. & Health Servs., 85 Wn. App. 71, 77, 930 P.2d 958 (1997) (summarizing negligent investigation case law as requiring “the State [to] act responsibly once it decides to act”); Dunning v. Paccerelli, 63 Wn. App. 232, 240, 818 P.2d 34 (1991) (“[T]he [child abuse] reporting statute is framed in terms of reasonableness.”).
Here, the trial court concluded that “[t]here is no genuine issue of material fact insofar as Plaintiff failed to establish that DSHS breached a duty owed to J.C.W.” Clerk’s Papers (CP) at 473. This was error. M.W. and A.W. submitted evidence that DSHS breached its duty to investigate reasonably: Francis, who received S.H.’s complaint, “had some female staff members . . . respond to [the] allegation.” CP at 98. Social worker Reitzug testified that he asked Panitz to have home support specialists take a “look-see” to determine if J.C.W. had vaginal redness. A.W. testified in her depositions that the two home support specialists “touched,” “poked,” and “pulled apart” J.C.W.’s genital area. Panitz stated in his deposition that home support specialists are not trained to give physical examinations and that giving physical exams is not part of their job.
J.C.W. also submitted affidavits from several experts. Certified counselor Leslie Chertok stated that the inspection was intrusive and that J.C.W. was not properly prepared for the inspection in a way that would minimize trauma. Teri Hastings, a clinical psychologist specializing in child psychology, stated that the DSHS investigation was problematic for several reasons: (1) failing to adequately prepare J.C.W for such an intrusive examination, (2) allowing unskilled, untrained DSHS workers to conduct the examination, and (3) performing the examination in the presence of the alleged abuser (A.W.). Laura OdegardDavis, a former caseworker for the Children’s Home Society, stated that a physical examination at the DSHS office, conducted by untrained workers, was unethical, unprofessional, and traumatic for J.C.W. Finally, Linda Thomas-Jones, a DSHS caseworker who knew J.C.W, A.W., and M.W., testified in her deposition that the DSHS policy was to “refer potential victims to the sexual assault clinic to have an examination and interview and evaluation,” not to
DSHS countered with evidence that the examination was proper and reasonable.
B. Claim Against Dale Francis
The trial court found as a matter of law that “[t]here is no genuine issue of material fact insofar as Dale Francis did not act in an unreasonable manner or fail to follow the direction of supervisors and therefore is immune from the cause of action of negligent investigation.” CP at 473. But Dale Francis is immune from negligent investigation charges only if he was carrying out a statutory duty, according to procedure dictated by statute or superiors, and acting reasonably.
We address the argument of the dissent. The dissent reasons that because J.C.W. does not claim that DSHS either negligently placed or removed her from a living situation, her claim is not the typical negligent investigation claim. We agree. The dissent then renames the claim a “tortious assault” and states the issue as “whether the touching was tortious or privileged.” Whatever labels are applied, we agree that the critical question centers on the DSHS employees’ physical examination of J.C.W.
The dissent finds the examination privileged because DSHS stands in the role of parent to J.C.W. and a reasonable parent would surely remove the child’s diaper and look for redness if he or she thought the child had been sexually abused. Dissent at 257-58. In reaching this conclusion, the dissent misstates the facts. J.C.W. does not claim that the DSHS employees only removed a diaper and looked for redness. Rather, she presented evidence that the employees poked, prodded, and pulled her apart while physically examining her, an examination they were not qualified to perform.
Moreover, DSHS does not claim that its conduct was privileged. Rather, it concedes that it owed J.C.W. a duty to investigate the possible abuse in a reasonable manner. DSHS argues only that it did not breach this duty. As we have discussed, J.C.W. presented evidence sufficient to create an issue of material fact on the reasonableness of the examination. Nevertheless, we consider whether DSHS was privileged to harm J.C.W. during the physical examination.
But the dissent cites the Restatement (Second) of Torts § 147(2) (1965). This section appears under the heading, “Privilege to Discipline Children,” and grants a parent the privilege to use reasonable force for “its [the child’s] proper control, training, or education.” The section also affords the privilege to one other than a parent who has the function of controlling, training, or educating the child. But again the force must be reasonable and must be necessary to the “proper control, training, or education” of the child. Restatement (Second) of Torts § 147(2) (1965). No Washington case has adopted section 147(2). According to comment (f), the section protects a guardian of the child’s person, officers of a state orphanage or reformatory, and others. Restatement, supra, § 147(2) cmt. f. The categories are linked in protecting only those who have physical custody or control of the child victim, as a parent does. The DSHS employees who examined J.S.W. do not fit within any of the categories. Moreover, they were not using force to control, train, or educate J.C.W.; they were attempting to perform a physical examination. And even if the section applies, the force must be reasonable. Comment (d) explains that “the parent’s privilege of discipline is necessarily more extensive than that of other persons stated in Subsection (2)” and that this “must be taken into account in determining what is reasonable.” Restatement, supra, § 147(2) cmt. d. That is the very question the parties
We conclude that J.C.W. presented sufficient evidence to withstand summary judgment; a jury must resolve the issues of material fact to determine whether DSHS negligently examined her.
Reversed.
Seinfeld, J., concurs.
M.W. and A.W. have now adopted J.C.W.
The record does not reflect Francis’s exact title or position at DSHS.
M.W. and A.W. contend that S.H. accused them of child abuse in retaliation for A.W.’s having given evidence the previous week that further limited the biological parents’ visitation time with J.C.W.
The statute states in relevant part: “Upon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department of social and health services must investigate and provide the protective services section with a report in accordance with chapter 74.13 RCW, and where necessary to refer such report to the court.” RCW 26.44.050.
Babcock v. State, 116 Wn.2d 596, 622, 809 P.2d 143 (1991); Waller v. State, 64 Wn. App. 318, 824 P.2d 1225 (1992); Lesley v. Dep’t of Soc. & Health Servs., 83 Wn. App. 263, 921 P.2d 1066 (1996); Gilliam v. Dep’t of Soc. & Health Servs., 89 Wn. App. 569, 950 P.2d 20 (1998); Beltran v. Dep’t of Soc. & Health Servs., 98 Wn. App. 245, 989 P.2d 604 (1999), review granted, 140 Wn.2d 1021 (2000); Tyner, 141 Wn.2d 68.
DSHS concedes that it owed a duty to J.C.W. to “conduct a reasonable investigation.” Br. of Resp’t at 9 n.3.
According to Panitz, the home support specialists’ duties are to “work with families providing remediation and parenting skills and home improvement services, one-on-one working with families in the home.” CP at 28. They are not
We work with the social workers with families to help them to reestablish their life sometimes. We go into the home, we teach them household management, and we teach them how to get out and get community resources. We also help families ... with finding homes . .. try to help them find an affordable house for living because sometime the kids are going to be coming home. And we go into the home and we help them find housing and community resources, furniture and different things that they might need for the home. And we also teach them some aspects of safety in the home, too, with the children.
CP at 42-43.
Three DSHS officials testified that home support specialists are qualified and authorized to inspect for diaper rash or other injuries to a child. Even so, one official conceded, “We clearly do not have the expertise, the qualifications to do a sexual abuse examination!.] ... If by spreading the [vaginal] lips and looking internally you’re implying that the worker is doing a forensic examination, that clearly would not have been appropriate.” CP at 101-02.
Even if Francis has qualified immunity, the State can still be liable for negligent investigation. Waller v. State, 64 Wn. App. 318, 334, 824 P.2d 1225 (1992).
Francis stated in his deposition: “I had some female staff members, in fact, respond to [the biological parent’s] allegation by having the child visually seen and examined and that subsequently to confirm, the child was taken to Mary Bridge Hospital to be seen by a specialist to determine whether or not the
Dissenting Opinion
(dissenting) — In March 1996, the Department of Social and Health Services (DSHS) had custody of a 16-month-old girl. It had placed the girl in a foster home, pending termination of the natural parents’ rights. The foster parents were caring for the girl, but the natural parents still had visitation.
On March 18, 1996, the girl’s natural father filed a written complaint with DSHS. He alleged that the girl “is often red in the genital area,” is “exhibit[ing] antisocial behavior,” and is “clingy.”
That same day, the foster mother brought the girl to the DSHS office. There, two female DSHS employees called “home support specialists”
*245 Q: . . . [W]as [it the two home support specialists] that did this physical examination?
A: It was them.
Q: Did they penetrate the [child’s] vaginal area?
A: No.
Q: And just so I’m clear, you removed the diapers?
A: Yes.
Q: Was there redness in the vaginal area?
A: No.
Q: Any diaper rash?
A: No.
Q: . . . Did they leave any marks?
A: I don’t believe so.
Q: Do you recall if there was any bruising?
A: No.
Q: Leave any redness?
A: I don’t believe they left any redness, because they didn’t find any on her when we got to [the hospital].[15 ]
Later, the foster mother elaborated as follows:
Q: How did [the examination] start?
A: The first thing is they were kind of looking at her. “Geez, do you see redness?” One would say yes; one would say no. And then they started pointing and touching the outside. And I would say it was probably — it was both of them. I think one did it first and then the other one, and they were kind of bantering back and forth.
Q: What was the tone of their voice? Were they talking in a normal voice, were they whispering?
A: They weren’t whispering. They were normal voice.
Q: Okay.
A: . . . And they weren’t being rough with her. By any stretch of the imagination, they weren’t. I mean, I think I probably would have gone ballistic had that happened.
*246 And then that’s when they went in and stuck their hands in and pulled apart like this.
Q: . . . [Y]ou used your index finger and you essentially poked it in the air to describe poking a child? Can you for the record describe that a little bit?
A: Sure. To me there was two types of touching. One was the actual poking of the outer area. Not her legs, but her private areas.
Q: They didn’t touch the inner thigh when they were poking? A: No.
Q: Okay. Were they poking the labia then?
A: Yes. I don’t know all the technical terms for a woman’s body parts. I probably should, but I don’t.
The other was sticking their hands inside of her and pulling her apart like so.[16 ]
And later, the foster mother again elaborated:
Q: How far into the vaginal opening did [the home support specialist] go?
A: She didn’t stick her fingers up inside of her, I can tell you that.
Q: Was the vaginal canal penetrated by anybody who’s touching that child?
A: I can’t say yes or no, because I wasn’t quite down there looking at their fingers to say how far in that they went.[17 ]
Ultimately, DSHS employees took the child to a hospital emergency room, where the examining physician found nothing remarkable.
After March 18, 1996, the natural parents’ rights were terminated, and the foster parents were permitted to adopt the little girl.
After adopting the little girl, the foster/adoptive parents, acting as individuals and the girl’s guardians, sued DSHS
On appeal, the foster/adoptive parents do not contest the dismissal of most of their claims. According to their brief, the “sole issue” they now place before this court is “the trial court’s decision... on the claim of negligent investigation.”
The Washington courts generally do not recognize a cause of action for “negligent investigation.” Thus, a person charged with a crime may not sue the police, even after he has been acquitted or dismissed, for negligently investigating his conduct;
Although the Washington courts generally do not recognize a cause of action for “negligent investigation,” they do recognize “a limited exception in the area of child abuse investigations.”
The next case, Dunning v. Paccerelli,
The next case, Lesley v. Department of Social & Health Services,
The next case, Gilliam v. Department of Social & Health Services,
The next case, In re Estate of Shinaul M.,
The next case, Beltran v. Department of Social & Health Services,
The next case, Pettis v. State,
The next case, Rodriguez v. Perez,
The next case, Tyner v. Department of Social & Health Services,
The most recent case, Miles v. Child Protective Services Department,
These 12 cases can be grouped into three categories. In one, exemplified by Babcock, Shinaul M. and Beltran, DSHS is liable for negligently placing a child in a foster home,
Each of these categories shows that before DSHS makes a child-placement decision — in other words, before it decides to place a child in a home, leave a child in a home, or remove a child from a home — it must assemble and consider as much information as a reasonable person would assemble and consider under the same or similar circumstances. If it fails to do that, and its failure is a proximate cause of harm to the child or parents, it is liable for “negligent investigation.”
In light of the foregoing, the decision here should rest on two propositions. First, the ill-defined tort of “negligent investigation” requires proof that DSHS based a child-placement decision (i.e., a decision to place, leave, or remove a child from a home) on a body of information that was unreasonably incomplete or skewed. Second, the ill-defined tort of “negligent investigation” has nothing to do with DSHS’ activities while accumulating a body of information, regardless of whether that information turns out to be incomplete or skewed. To prove that DSHS is liable for its activities while accumulating information, a claimant must prove the elements of some other, recognized tort (for example, negligent operation of a car, negligent infliction of emotional distress, outrage, or assault).
Even when viewed in the light most favorable to the claimants, the record in this case does not support a finding that DSHS based a child-placement decision on information that was unreasonably incomplete or skewed. It is undisputed that DSHS properly placed the girl in the foster home. It is undisputed that DSHS did not remove the girl from that home. It is undisputed that when DSHS decided to leave the girl in the foster home despite the natural father’s allegation of abuse, it did so on the basis of information that was complete and accurate. The record does not support a claim of “negligent investigation,” and
The record suggests the possibility of two other torts. One is negligent infliction of mental distress. The other is assault.
The plaintiffs may not assert a claim for negligent infliction at this point in this litigation. The mother asserted such a claim in the trial court but has abandoned it on appeal. The little girl asserted a claim for “outrage” in the trial court but has abandoned it on appeal. The little girl did not assert a claim for negligent infliction in the trial court, and she may not do so for the first time on appeal.
The record does not support a claim for assault. Taking the evidence in the light most favorable to plaintiffs, two of DSHS’ in-home helpers touched a little girl’s genitalia to see if they could discern signs of sexual abuse. The only remaining issue is whether the touching was tortious or privileged. The touching was clearly privileged because, as legal custodian of the child, DSHS had the right to check out the natural father’s allegation of child sexual abuse, just as any parent would have done; and any parent in his or her right mind would have responded to a complaint of child sexual abuse by removing the child’s diaper and checking her genitalia.
The majority concedes that no Washington case applies the tort of “negligent investigation” in a situation of this type. It states:
In most negligent investigation claims, the allegations are that DSHS failed to adequately investigate a living situation either before removing or placing a child in the situation. This claim is different. [The little girl] does not contend that DSHS failed to investigate the alleged sexual abuse. Rather, she alleges that as part of the investigation, several DSHS employees negligently conducted a physical examination of her.[74 ]
The majority fails, however, to analyze or even address why Washington’s “limited exception” for “negligent investigation” should be extended from situations in which DSHS bases a child-placement decision on a body of information that is inadequate or skewed, to situations in which DSHS engages in negligent or intentional misconduct while assembling a body of information that is neither incomplete nor skewed. Because of this failure, the majority potentially expands DSHS’ liability to an extent that is both unsupported and unwise. Thus, I respectfully dissent.
Reconsideration denied March 27, 2002.
Review granted at 147 Wn.2d 1014 (2002).
Clerk’s Papers (CP) at 106.
Id.
A “home support specialist” is a paraprofessional without a college degree, but with expertise in “homemaking.” Id. at 397.
I accept the foster mother’s version of the incident for purposes of this summary judgment appeal. Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998); Higgins v. Stafford, 123 Wn.2d 160, 168-69, 866 P.2d 31 (1994).
CP at 215-16.
CP at 227-29.
CP at 231-32.
The record contains only the second amended complaint.
Br. of Appellant at 7.
Fondren v. Klickitat County, 79 Wn. App. 850, 862-63, 905 P.2d 928 (1995).
Dever v. Fowler, 63 Wn. App. 35, 44-45, 816 P.2d 1237 (1991), review denied, 118 Wn.2d 1028 (1992).
Donaldson v. City of Seattle, 65 Wn. App. 661, 671, 831 P.2d 1098 (1992).
Pettis v. State, 98 Wn. App. 553, 558-61, 990 P.2d 453 (1999).
Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 740-41, 973 P.2d 1074 (1999).
Lambert v. Morehouse, 68 Wn. App. 500, 504-06, 843 P.2d 1116, review denied, 121 Wn.2d 1022 (1993).
Laymon v. Dep’t of Natural Res., 99 Wn. App. 518, 531-32, 994 P.2d 232 (2000).
Rodriguez v. Perez, 99 Wn. App. 439, 443, 994 P.2d 874, review denied, 141 Wn.2d 1020 (2000) (citing Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991); Corbally, 94 Wn. App. at 740; Lesley v. Dep’t of Soc. & Health Servs., 83 Wn. App. 263, 921 P.2d 1066 (1996), review denied, 131 Wn.2d 1026 (1997)).
Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 77, 82, 1 P.3d 1148 (2000); Rodriguez, 99 Wn. App. at 445.
Pettis, 98 Wn. App. at 556.
Tyner, 141 Wn.2d at 82.
Rodriguez, 99 Wn. App. at 450.
E.g., Babcock, 116 Wn.2d 596.
E.g., Yonker v. Dep’t of Soc. & Health Servs., 85 Wn. App. 71, 930 P.2d 958, review denied, 132 Wn.2d 1010 (1997).
E.g., Tyner, 141 Wn.2d 68.
Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991).
Babcock, 116 Wn.2d at 601.
Babcock, 116 Wn.2d at 598.
Babcock, 116 Wn.2d at 598.
Babcock, 116 Wn.2d at 608.
Tyner, 141 Wn.2d at 79.
Dunning v. Paccerelli, 63 Wn. App. 232, 818 P.2d 34 (1991).
Pettis v. State, 98 Wn. App. 553, 558-60, 990 P.2d 453 (1999).
Pettis held that a child-care provider cannot bring a “negligent investigation” cause of action in the first instance. Pettis, 98 Wn. App. at 560. If Division Three agrees with Pettis, Dunning’s holdings are moot.
Waller v. State, 64 Wn. App. 318, 325, 824 P.2d 1225 (1992).
Waller, 64 Wn. App. at 333.
Waller, 64 Wn. App. at 333.
Lesley v. Dep’t of Soc. & Health Servs., 83 Wn. App. 263, 921 P.2d 1066 (1996), review denied, 131 Wn.2d 1026 (1997).
Lesley, 83 Wn. App. at 273.
Yonker v. Dep’t of Soc. & Health Servs., 85 Wn. App. 71, 930 P.2d 958, review denied, 132 Wn.2d 1010 (1997).
Yonker, 85 Wn. App. at 77.
Gilliam v. Dep’t of Soc. & Health Servs., 89 Wn. App. 569, 950 P.2d 20 (1998).
Gilliam, 89 Wn. App. at 571-72.
Gilliam, 89 Wn. App. at 572.
In re Estate of Shinaul M., 96 Wn. App. 765, 980 P.2d 800 (1999), review denied, 140 Wn.2d 1007 (2000).
Shinaul M., 96 Wn. App. at 770.
Shinaul M., 96 Wn. App. at 772-73.
Beltran v. Dep’t of Soc. & Health Sens., 98 Wn. App. 245, 989 P.2d 604 (1999), review granted, 140 Wn.2d 1021 (2000).
Beltran, 98 Wn. App. at 248.
Beltran, 98 Wn. App. at 254.
Beltran, 98 Wn. App. at 250.
Pettis v. State, 98 Wn. App. 553, 990 P.2d 453 (1999).
Rodriguez v. Perez, 99 Wn. App. 439, 994 P.2d 874, review denied, 141 Wn. 2d 1020 (2000).
Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 1 P.3d 1148 (2000).
DSHS first appealed to Division One, but that is not material here.
Tyner, 141 Wn.2d at 77.
Tyner, 141 Wn.2d at 83.
Miles v. Child Protective Servs. Dep’t, 102 Wn. App. 142, 6 P.3d 112 (2000), review denied, 142 Wn.2d 1021 (2001).
Shinaul M., 96 Wn. App. 765; Babcock, 116 Wn.2d at 610 (implying but not holding the proposition stated in the text); Beltran, 98 Wn. App. 245.
Beltran, 98 Wn. App. at 249-50. Division One has expressly recognized that this “negligent placement” type of claim should be distinguished from the other two types of claim. In Gilliam, Division One noted that in Lesley it had “recognized a cause of action for negligent investigation of a child abuse allegation, as distinct from negligent placement.” Gilliam, 89 Wn. App. at 577 n.6 (emphasis added). See also Miles, 102 Wn. App. at 154 (distinguishing claim for negligently removing children from parental home and claim for negligently placing children in foster home).
Division One has recognized that this type of claim should be distinguished from the others. As it noted in Yonker, “to say the State must act responsibly once it decides to act is not necessarily to say that the State is required to act.” Yonker, 85 Wn. App. at 77.
State v. WWJ Corp., 138 Wn.2d 595, 601-03, 980 P.2d 1257 (1999); Morales v. Westinghouse Hanford Co., 73 Wn. App. 367, 370, 869 P.2d 120 (1994).
According to the Restatement (Second) of Torts § 147(2), “One other than a parent who has been given by law ... the function of controlling, training, or educating a child, is privileged to apply such reasonable force ... as he reasonably believes to be necessary . .. .” According to accompanying comment (e), persons other than a parent “do not share any immunity of the parent, and are under a
I reject the plaintiffs’ apparent assertion that DSHS is somehow liable for a tort because the women who examined the child lacked college degrees or the title of “caseworker.” They were homemakers who knew how to remove a child’s diaper and look for redness, and their degrees and titles, if any, were irrelevant to that endeavor.
Majority at 237 (footnote omitted).