Turner v. Dep't of Soc. & Health Servs.Turner v. Dep't of Soc. & Health Servs.
THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON AUGUST 12, 2021 ERIN L. LENNON SUPREME COURT CLERK
FACTS AND PROCEDURAL HISTORY
In this case, it is helpful to provide some background on how long-term care is administered and the statutory role of both DSHS and LMTAAA. Long-term care services are paid in part through Medicaid and are administered by DSHS.3
DSHS‘s responsibilities in administering long-term care services are established by statute and regulation. Summarizing this process, first, a client must apply for long-term care services by requesting an assessment and submitting a Medicaid application.
Once a person qualifies for and is receiving care, DSHS provides individual case management services for those receiving care in a nursing facility.
With that backdrop, this case arises out of Kent‘s tragic death from a fire in his apartment. Kent was a military veteran who transitioned into work as a police officer and eventually as a correctional facility officer. In 2007, Kent was diagnosed with MS. Three years later, Kent was forced into early disability retirement at the age of 48 because his MS progressed to the point where he used a wheelchair and needed assistance with his mobility limitations.
Kathy became Kent‘s caregiver once he retired, and they lived in an apartment in Olympia. She had to help Kent with many activities of daily living, including bathing, dressing, getting in and out of his electric wheelchair, and using the restroom. Kathy was employed, and while she worked, Kent was able to function in his wheelchair without assistance.
In July 2013, Kathy was diagnosed with squamous cell carcinoma, which required surgery and chemotherapy treatment. Because of her cancer treatment, Kathy knew that she could not continue to provide the needed assistance. Kathy looked into getting in-home care for Kent, but the family was unable to afford it. An application for DSHS assistance was submitted.
On July 31, 2013, DSHS performed an initial CARE assessment to determine Kent‘s eligibility for long-term care services and to establish a plan of care. The assessment found that Kent‘s general functional limitations were “[g]eneral weakness, [p]oor hand/eye coordination, [w]eak grip, [l]imited fine motor control.” Clerk‘s Papers (CP) at 830. Based on his limitations, the assessment found that Kent needed assistance with transferring to and from his wheelchair, going to the bathroom, getting dressed, bathing, and doing chores. Once in his wheelchair, Kent was able to independently operate his wheelchair both inside and outside the apartment. The assessment concluded that Kent was eligible for DSHS assistance, and it noted that the planned and recommended living situation was to receive care in a nursing facility. It also noted that Kent‘s long-term goal was to move back home once Kathy recovered. A service summary for the assessment included a paragraph stating that 24-hour care was available in a residential setting only and that Kent‘s participation in the
On August 5, 2013, Kent moved into Puget Sound Healthcare Center (PSHC). About two weeks after he was admitted into PSHC, Kent met with a DSHS nurse facility case manager, Kaya Wilcox. Ms. Wilcox described her role as assisting “people ... who have a right to discharge and go to a lesser level of care or something that could meet their needs, because it‘s very expensive to live in a nursing home.” CP at 1549. In their initial meeting, Ms. Wilcox confirmed that Kent wanted to stay at PSHC temporarily until he could return home to live with Kathy. Ms. Wilcox followed up with Kent again two months later on October 16, 2013, and performed another CARE assessment. Her notes reflect a change in Kent‘s ultimate goal of going from PSHC to his home after Kathy‘s cancer treatment was over. Instead, Kent‘s goal now stated that he wanted to discharge from PSHC.6 The assessment stated that Kent‘s planned and recommended living situation was to receive care “In Home.” CP at 495. Kent was determined to be eligible for 158 hours of in-home care per month by his original CARE assessment.
A plan was developed to facilitate Kent‘s discharge from PSHC, and Kent was qualified for Roads to Community Living (RCL), which is a federally funded program designed to help people transition from institutional settings and into the community. Kent‘s CARE assessment from October 16, 2013 qualified him for this program. He signed a participation form for the RCL program on that date in addition to a waiver of nursing home care services, which states, “I have been informed of my service options and I choose to receive services under the following Home and Community based waiver instead of nursing home care.” CP at 2168. Under the RCL protocols, Washington requires that the plan of care contain an evacuation plan. See also
DSHS then contracted with Life Therapeutic Works (LTW) to help Kent find an appropriate community placement. On December 4, 2013, Kent told Ms. Wilcox he wanted to live in an independent living situation, rather than in an adult family home or assisted living situation. Kent signed another RCL participation form at that time. Kent went through a number of capability assessments by an occupational therapist, which found that he met the expectations in his abilities to perform activities and therefore could live with modified independence. LTW discussed and showed Kent various apartment options, and he ultimately applied and was approved for an apartment unit at Capitol House Apartments on January 30, 2014. He moved into the apartment on February 18, 2014.
On February 21, 2014, Kent was assessed by a registered nurse, a physical therapist, and an occupational therapist, and it was found that he needed no further therapy. The nurse also noted that no structural barriers, safety hazards, or sanitary issues existed in the apartment. Ms. Wilcox also conducted an interim CARE assessment on
On March 17, 2014, DSHS transferred case management responsibilities to LMTAAA. Kent‘s case manager was Heidi Hildebrandt. She met with Kent on March 26, 2014 to review the services being provided to him, and they both signed the service summary. ResCare provided Kent‘s in-home care for two hours in the morning and two hours in the evening. On March 31, another resident of Capitol House Apartments reported that Kent was losing weight, that his wheelchair battery was not being charged, and that it appeared he had not showered. No investigation was made.
On April, 30, 2014, tragically, Kent died alone in his apartment from a fire. While the apartments had a fire alarm system that notified first responders, the apartment did not have sprinklers. Kent was found in front of the door in his wheelchair, and it appeared that the fire was primarily isolated to his person, as the wheelchair had not moved once the fire started. Because a majority of the fire was under the wheelchair, the fire department concluded that the fire was probably started either on the wheelchair or on Kent. The coroner‘s report and the autopsy report concluded that Kent‘s death was accidental and a result of inhaling toxic materials from the fire. It remains unclear what actually caused the fire.
On October 14, 2015, Kent‘s estate, through Kathy, brought suit against DSHS, alleging negligence and for abuse and neglect. The complaint was amended twice, adding claims against ResCare, LTW, and LMTAAA as defendants. The complaint alleged that DSHS breached its duty to Kent by failing to conduct adequate assessments, to provide appropriate services, to place him in a safe environment, and to comply with policies and regulations. The complaint also alleged that LMTAAA negligently performed its case management responsibilities. It alleged that LMTAAA breached its duties by not placing Kent in a safe environment with safe caregivers, and by not complying with regulations and internal policies. The complaint further alleged that DSHS and LMTAAA breached a duty to investigate a complaint that Kent was not receiving adequate care in his apartment.
All defendants moved for summary judgment, and the trial court granted summary judgment in favor of all defendants.7 Regarding DSHS and LMTAAA, the trial court concluded that both parties were not in a special relationship to Kent and therefore owed him only an ordinary standard of care. It concluded that the undisputed facts established no breach of that duty. The trial court further concluded that proximate cause was not met, especially in light of the uncertainty surrounding the fire causing Kent‘s death. Finally, the trial court dismissed the claims of abuse or neglect under
ANALYSIS
I. Standard of Review
We review orders granting summary judgment de novo. Summary judgment is appropriate where there is no genuine issue as to any material fact, so that the moving party is entitled to judgment as a matter of law. We view the facts in a light most favorable to the nonmoving party. To prevail on a negligence claim, a plaintiff “‘must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury.‘” Ehrhart v. King County, 195 Wn.2d 388, 396, 460 P.3d 612 (2020) (internal quotation marks omitted) (quoting N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 429, 378 P.3d 162 (2016)). In this case, the primary issues relate to the existence and scope of any duty owed under these facts by DSHS and LMTAAA to Kent. The existence and scope of a duty is a threshold inquiry in a negligence action, and
II. DSHS‘s Duty of Care
While the claims asserted against DSHS and LMTAAA share some arguments in common, the briefing demonstrates that the factual basis of those claims are somewhat distinct. The claim against DSHS relies most heavily on the existence of a special relationship between DSHS and Kent leading up to his move into Capitol House Apartments. Appellant, Kathy Turner, essentially argues that DSHS was in a special relationship to Kent because it “encouraged Kent to make such a move, largely for financial reasons.” Br. of Appellant at 6-7. Appellant points to statements from Ms. Wilcox, Kent‘s nurse facility case manager, that the RCL program saved the State money, attempting to cast her actions in asking Kent if he wanted to move as bordering on predatory type behavior. Reply Br. of Appellant at 3 (“DSHS actively recruited people with disabilities to leave [skilled nursing facilities] ... in order to cut costs“), 4 (arguing that DSHS worked toward its “‘targeting and recruitment’ goals by aggressively approaching new admittees to [skilled nursing facilities]“). Because Kent‘s initial plan was to receive care in a nursing facility temporarily until he returned to Kathy, appellant argues that Kent‘s move was entirely based on DSHS‘s recommendations and guidance, and that “DSHS, in its blind adherence to transition of disabled persons to community settings in the guise of ‘client choice,’ washed its hands of any real responsibility for Kent‘s placement in a facility that jeopardized him.” Br. of Appellant at 24 (citation omitted).
Appellant therefore argues DSHS breached its special protective duty to Kent by allowing him to move into an assisted independent living situation, arguing that if the State had kept him in a nursing care type facility, Kent‘s death would not have occurred.8 Assuming for summary judgment purposes that appellant‘s description of DSHS‘s involvement in Kent‘s move may be true to a certain extent, it does not necessarily establish a special relationship existed. Instead, the record establishes, as provided by the statutory framework for the administration of long-term care services, that Kent had control over the decision to live more independently or to stay at a nursing facility, that Kent fully participated in that choice, and that DSHS‘s role was to provide information and assist Kent in carrying out that choice.
While it is also true that Kent needed assistance, once he was placed in his wheelchair, he was able to operate it independently. Given Kent‘s level of care and independence, the relationship between Kent and DSHS did not rise to the level of a special relationship, and our cases have drawn this distinction.
The special relationship alleged by appellant is defined by Restatement (Second) of Torts § 315 (Am. Law Inst. 1965):
There is no duty so to control the conduct of a third person as to prevent [them] from causing physical harm to another unless
(a) 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, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.
The special relationship in Restatement (Second) § 315(b) recognizes a heightened duty to protect someone from foreseeable harms. A special relationship results in a heightened duty where a person is helpless, totally dependent, or under the complete control of someone else for decisions relating to their safety. Our cases have identified the relationships resulting in such a protective duty “include the relationships between schools and their students, innkeepers and their guests, common carriers and their passengers, and hospitals and their patients.” H.B.H. v. State, 192 Wn.2d 154, 169, 429 P.3d 484 (2018). The protective duty imposed by the special relationship is “limited by the concept of foreseeability,” where a duty is imposed “[o]nly if a reasonable person in the defendant‘s position would be aware of a ‘general field of danger’ posing a risk to one such as the plaintiff.” H.B.H., 192 Wn.2d at 176-77 (quoting Niece v. Elmview Grp. Home, 131 Wn.2d 39, 50, 929 P.2d 420 (1997)). If a special relationship is formed, it has an accompanying “duty of care to protect the plaintiff from foreseeable harm,” which borders on strict liability. H.B.H., 192 Wn.2d at 169.
First, it is necessary to discuss the nature of this relationship as applied to DSHS in addition to establishing the duty owed. Our cases discussing the formation of a special relationship with DSHS recognize a special relationship is based on an element of entrustment. For example, we considered DSHS‘s special relationship to foster children in H.B.H., where former foster children sued DSHS and alleged that DSHS was negligent in failing to protect them from child abuse occurring in their foster placements. Citing Caulfield v. Kitsap County, 108 Wn. App. 242, 29 P.3d 738 (2001), we reasoned that DSHS‘s role in placing foster children in foster homes was similar to its role in placing vulnerable adults with contractual caregivers. Both roles “carry out the State‘s parens patriae responsibilities.” H.B.H., 192 Wn.2d at 171. Rather than physical custody or control, vulnerability and “entrustment for the protection of a vulnerable victim... is the foundation of a special protective relationship,” which other sections of Restatement (Second) further outlining the special relationship confirmed.9 H.B.H., 192 Wn.2d at 173. We ultimately concluded that DSHS stood in a protective relationship because it was the legal custodian of foster children with statutory duties to investigate reports of abuse or neglect and monitor foster care placements.
While we have not analyzed DSHS‘s relationship to vulnerable adults, two Division Two Court of Appeals decisions have. The first is Caulfield, which involved an adult with MS who required 24-hour care. Caulfield was initially placed in a nursing facility, and his care was monitored by a DSHS case manager. DSHS concluded that Caulfield was eligible for in-home care. DSHS contracted directly with Caulfield‘s caregiver who provided him 24 hour in-home care. Caulfield complained to his DSHS case manager about his caregiver, and the case management responsibilities for Caulfield‘s care were transferred to a Kitsap County social worker. Caulfield was hospitalized with severe injuries and illnesses, and he sued Kitsap County, DSHS, and the caregiver, claiming negligent care from his in-home placement. A jury found the county and the caregiver negligently caused Caulfield‘s injuries. The county appealed and argued that it owed no duty to Caulfield under the public duty doctrine. The Court of Appeals disagreed, and it reasoned that the special relationship defined by Restatement (Second) § 315(b) applied to the county. The court concluded that the county case manager stood in a special relationship to Caulfield based on a total inability to care for himself,
The second Court of Appeals case, Donohoe v. State, 135 Wn. App. 824, 142 P.3d 654 (2006), presents a contrasting factual scenario where the court concluded a special relationship was not formed. That case involved an adult who needed 24-hour care due to her dementia, incontinence, and risk of falling. Donohoe initially lived in an adult family home privately paid for by her family. DSHS assessed Donohoe and found her eligible for DSHS assistance. Donohoe chose to receive her care in a nursing home, Pacific Care. DSHS received two complaints from Donohoe‘s family about Pacific Care‘s caregiving, and DSHS cited Pacific Care‘s failure to provide adequate personal hygiene. Donohoe was moved to a hospital shortly before the second complaint. Donohoe‘s family then moved her to another private nursing home, where she died about a year later. Donohoe‘s estate sued DSHS. DSHS‘s motion for summary judgment argued that it owed no duty to Donohoe, relying on the public duty doctrine. The Court of Appeals reasoned that no special relationship between Donohoe and DSHS existed, and it distinguished Caulfield. Unlike Caulfield, where a DSHS case manager hired and monitored Caulfield‘s sole caregiver, the court noted that DSHS did not select or oversee the care Donohoe was receiving at Pacific Care and that Donohoe‘s family, not DSHS, chose Pacific Care and ultimately removed her. At bottom, Caulfield‘s differing special relationship was created by DSHS being solely responsible for monitoring Caulfield‘s in-home caregiver. In contrast, DSHS‘s primary responsibilities as to Donohoe were determining Medicaid and nursing home eligibility.
H.B.H. concluded DSHS‘s relationship to vulnerable adults involves an element of entrustment similar to its relationship to foster children. Pursuant to that reasoning, DSHS and AAAs may be in a special relationship to adults receiving in-home care when either entity monitors an individual‘s care to the extent that the individual completely entrusts them with their safety. Here, the trial court concluded that there was no special relationship between Kent and DSHS or LMTAAA and distinguished Caulfield because Kent was not under 24-hour care.
While Kent required a certain amount of assistance due to his functional limitations, independent assessments determined that he did not require 24-hour care in a nursing facility. As a result, Kent could choose to receive care independently with partial assistance. And when given that option, Kent chose to move out of PSHC and live more independently, and he accepted certain risks associated with moving out of a nursing facility with 24-hour care available. Given Kent‘s ability to live independently with partial assistance combined with his choice to receive his care in that living situation, Kent‘s relationship with DSHS does not fit under our cases developed outlining the nature of a special relationship. Unlike Caulfield, Kent was not helpless, totally dependent, or under the complete control of DSHS for decisions relating to his safety at his apartment given his level of independence.
We affirm the trial court‘s ruling that no special relationships existed under these facts. Rather than a special relationship stemming from monitoring Kent‘s care at his apartment, appellant essentially alleges that a special relationship existed because DSHS allowed Kent to move from the safe environment of a nursing facility into an apartment with lesser care available. Reply Br. of Appellant at 6 (describing DSHS as “ushering him out of the [skilled nursing facility] into an inappropriate, unsafe setting and care plan that did not meet his needs“). According to appellant, DSHS was entrusted with Kent‘s safety based on that move.
But imposing a special relationship based on Kent‘s move runs contrary to the client-centered approach of long-term care
does not exist when a client decides to move into the community because this would conflict with the primary statutory goals of choice and dignity of independent living advanced by the long-term care services program.
We conclude that Kent‘s choice to move was an insufficient basis to establish the element of entrustment necessary for a special relationship and that, as a result, DSHS owed no duty to protect Kent from foreseeable harms. DSHS‘s relationship with Kent also does not involve complete dependence or control required for a special relationship to exist.
Next, appellant argues that an associated special relationship formed based on express assurances made by DSHS. Br. of Appellant at 44. A duty can exist under this exception where “(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) give rise to justifiable reliance on the part of the plaintiff.” Taylor v. Stevens County, 111 Wn.2d 159, 166, 759 P.2d 447 (1988). In Caulfield, the court concluded that this type of special relationship existed because DSHS had direct contact with Caulfield, the DSHS case manager gave Caulfield express assurances that they would provide “case management and crisis intervention,” and Caulfield justifiably relied on those assurances. 108 Wn. App. at 252.
In contrast, in Donohoe, the court distinguished Caulfield because DSHS had not promised Donohoe that it would ensure Pacific Care‘s adequate care. Like Caulfield, DSHS provided case management responsibilities to Kent, but it passed that responsibility to LMTAAA once he was moved into his apartment. Nevertheless, neither case management responsibilities nor CARE assessments create an express assurance that Kent would be safe from all harms related to his apartment living. Kent could not reasonably rely on any assurances to keep him completely safe from all harm. And Kent repeatedly signed service summaries that stated he was “aware of all alternatives available to me and I understand that access to 24-hour care is available only in residential settings” and that “participation in all ADSA/LTC
Appellant further argues DSHS owed a duty under Restatement (Second) §§ 32313 and 32414 by voluntarily undertaking services to Kent that were necessary for his protection. Br. of Appellant at 19-21.15 Appellant argues that this duty arises from DSHS offering Kent participation in the RCL program and conducting assessments to determine Kent‘s eligibility in that program. Br. of Appellant at 19-21.
We have considered these sections of Restatement (Second) in cases involving the voluntary rescue doctrine. For example, in Brown v. MacPherson‘s, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975), we analyzed the voluntary rescue doctrine in the context of a State agent‘s representations relating to the risk of avalanche. First, we noted that “[o]ne who undertakes, albeit gratuitously, to render aid to or warn a person in danger is required by our law to exercise reasonable care in [their] efforts.” Brown, 86 Wn.2d at 299. A rescuer is then liable to the person they are intending to assist if they “fail[] to exercise such care and consequently increase[] the risk of harm.” Id. Under this theory, we first explained that a duty arises where the State agent received word from an expert that there was an avalanche danger but negligently misrepresented that danger, causing the plaintiffs harm when they refrained from getting help elsewhere. We further held that a duty to warn may be imposed pursuant to “promises which induce reliance, causing the promisee to refrain from seeking help elsewhere and thereby worsening [their] situation.” Id. at 300.
In Folsom, we highlighted that the rescue doctrine can apply where the rescuer knows a danger is present. Folsom v. Burger King, 135 Wn.2d 658, 676, 958 P.2d 301 (1998). In that case, the estates of two Burger King employees argued that a security company owed a duty to rescue them from a robbery and murder where a security system was left in place after its security contract was terminated. We disagreed and stated that “[t]he duty to rescue arises when a rescuer knows a danger is present and takes steps to aid an individual in need.” Folsom, 135 Wn.2d at 677. Because leaving the system in place occurred before any danger was present, we held no duty to rescue was implicated.
We conclude that these facts do not implicate the voluntary rescue doctrine. As stated in Folsom, the premise of the voluntary rescue doctrine is that the rescuer, in this case evidently DSHS, undertakes or
III. Duty of Ordinary Care
We next recognize, as the trial court did, that appellant raises a distinct theory of the duty of ordinary care owed. This duty arises primarily from LMTAAA‘s case management responsibilities in monitoring the in-home care Kent was receiving. LMTAAA was required to monitor Kent‘s caregiver, ResCare, to ensure that the assistance Kent received as outlined in his care plan, such as bathing, dressing, and placing Kent in his wheelchair, was being adequately carried out.
Appellant argues the trial court erred in granting summary judgment because whether DSHS and LMTAAA breached a duty and proximately caused Kent‘s death are jury questions. Br. of Appellant at 45-48. Breach and proximate cause are normally issues decided by the jury, but they may be determined as a matter of law when “reasonable minds could not differ” on whether those elements exist. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Here, the trial court found no facts supporting breach or proximate cause. The appellant‘s briefing is sparse in addressing that portion of the trial court‘s ruling, and we are not convinced that the trial court‘s ruling was incorrect. DSHS transferred case management responsibilities to LMTAAA before Kent‘s death. While LMTAAA had a duty to reasonably monitor Kent‘s care, Kent‘s injury did not result from LMTAAA‘s fault in monitoring his care because his injury was not related to the in-home care he was receiving. We agree with the trial court‘s ruling that LMTAAA did not breach any duty of ordinary care that caused Kent‘s death.
As argued in appellant‘s complaint and the supporting pleadings, DSHS‘s alleged duty to Kent primarily stems from the formation of a special relationship with Kent based on his transition into independent living, which we have rejected as a basis for a heightened duty of protection in this case. Appellant articulates DSHS‘s duty of ordinary care in her opposition to defendants’ motions for summary judgment as similarly arising out of Kent‘s transition to Capitol House Apartments. See, e.g., CP at 1326, 1329 (appellant arguing that “DSHS was negligent in assessing and supervising decedent Kent Turner‘s care at the Capitol House Apartments when they placed him in independent housing that failed to meet his care needs” and owed a “duty to take reasonable care in making the transition to ensure that Kent‘s new living situation was reasonable for him“). Appellant‘s argument therefore merges DSHS‘s duty of ordinary care with its heightened duty of a protection from a special relationship, thereby blurring any distinction between these duties. And again, DSHS did not “place” Kent in an apartment; it merely assessed him and found that Kent could live independently with modified assistance, which allowed Kent to choose to receive his care in an apartment rather than a nursing facility. Therefore, to the extent that
IV. Implied Cause of Action
Appellant also argues that we should imply a cause of action against DSHS and LMTAAA based on their statutory responsibilities in providing and managing long-term care services under
public under
In considering whether to imply a cause of action based on statutory provisions, we utilize a three-part test derived from federal cases and consider “first, whether the plaintiff is within the class for whose ‘especial’ benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, 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). In Bennett, we concluded that
We refuse to imply a cause of action here based on any of the monitoring responsibilities in
The legislative intent does also not support creating a remedy. Appellant argues that the “sheer extent of the specific protective provisions ... and implementing regulations” could not have been created without a corresponding remedy. Br. of Appellant at 33. However, DSHS and LMTAAA‘s statutory responsibilities relate to the safe administration of long-term care services and should not be considered rights that do not have an accompanying remedy. The statute specifically commands that DSHS seek enforcement remedies where providers are failing to safely provide care.
Even if we view these remedies as insufficient, allowing private cause of action against DSHS would be inconsistent with the statute‘s purpose. In Braam, where we considered an implied cause of action against DSHS based on its statutory requirements relating to foster children, the court found that a private cause of action would be “inconsistent with the broad power vested in DSHS to administer these statutes.” Braam v. State, 150 Wn.2d 689, 712, 81 P.3d 851 (2003). Similarly here, where the statute relies heavily on DSHS for proper administration, it would be inconsistent with legislative purpose to find an implied cause of action. An implied cause of action would be further inconsistent with the statute‘s purpose of promoting “individual choice, dignity, and the highest practicable level of independence.”
Ch. 74.34 RCW
Finally, appellant argues that the trial court erred in dismissing her private cause of action for abuse or neglect against DSHS and LMTAAA pursuant to
This action shall be available where the defendant is or was a corporation, trust, unincorporated association, partnership, administrator, employee, agent, officer, partner, or director of a facility, or of a home health, hospice, or home care agency licensed or required to be licensed under
chapter 70.127 RCW , as now or subsequently designated, or an individual provider.
DSHS and LMTAAA correctly point out that this cause of action does not apply to them. DSHS is not named in the statute, and, in fact, it is responsible for investigating reported abuse or neglect.
Appellant briefly argues that LMTAAA was a mandatory reporter and breached its duty to report suspected abuse or neglect. Br. of Appellant at 39 (citing
VI. CONCLUSION
We affirm the trial court‘s summary judgment dismissal of the appellant‘s claims against DSHS and LMTAAA.
Johnson, J.
WE CONCUR:
González, C.J.
Madsen, J.
Owens, J.
Gordon McCloud, J.
Yu, J.
Montoya-Lewis, J.
Whitener, J.
STEPHENS, J. (dissenting)—No one disputes that a legal duty exists in this case. The trial court and the majority both acknowledge, and I agree, that the respondents—the Washington State Department of Social and Health Services (DSHS) and Lewis-Mason-Thurston Area Agency on Aging (LMTAAA)—owed a common law duty of reasonable care to Kent Turner. The majority‘s lengthy discussion of special relationships and independent living crowds out much discussion of this duty, but the respondents undeniably owed a duty to Kent,1 not to dictate his choices but to act reasonably in providing him services. By granting summary judgment on the issues of breach and causation with respect to the
respondents’ recognized common law duty, the majority usurps the essential role of the
This appeal follows the trial court‘s summary dismissal of Kent Turner‘s complaint against DSHS and LMTAAA, relieving both respondents from liability for Kent‘s tragic—and perhaps preventable—death. We review orders granting summary judgment de novo and “perform the same inquiry as the trial court, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party.” Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012). It is important to remember that summary judgment reflects the legal conclusion that a trial would be “useless.” Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 602, 611 P.2d 737 (1980). In a negligence action, where questions of breach and proximate cause are ordinarily issues to be decided by the trier of fact, summary judgment on these issues is appropriate only where reasonable minds could not differ as to the relevant facts and favorable inferences drawn from the facts. Id.
This case presents no novel issues. It is a basic principle of negligence law that one who performs an affirmative act owes a common law duty to exercise reasonable care in that undertaking. Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 550-51, 442 P.3d 608 (2019); see also Robb v. City of Seattle, 176 Wn.2d 427, 436, 295 P.3d 212 (2013). The scope of the duty owed is measured by the scope of the undertaking. See Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 609, 257 P.3d 532 (2011) (holding a design professional‘s common law duty of reasonable care extended to those working on the property at the time the designs were being implemented). Here, no one contests that the respondents owed Kent a common law duty of reasonable care with respect to the actions they took to assist him. The scope of their duty is defined by the specific responsibilities the respondents undertook.
Unfortunately, fixated on the fact that Kent was not in the respondents’ custody, the majority advances a truncated view of the scope of the duty in this case, limited to “LMTAAA‘s case management responsibilities in monitoring the in-home care Kent was receiving.” Majority at 26. With respect to DSHS, the majority sees only “a responsibility to properly assess whether Kent qualified for long-term care services received independently.” Id. at 29. But the scope of DSHS‘s and LMTAAA‘s undertaking is broader than the majority acknowledges.
DSHS facilitated Kent‘s move from an institutional setting into an apartment setting through its Road to Community Living (RCL) program. The purpose of the RCL program is to help individuals with long-term care needs move back into the community safely and successfully. The program is not designed to merely assess eligibility for independent living but to affirmatively aid the safe transition of vulnerable clients into a community setting. Majority at 8 (“[RCL] is a federally funded program designed to help people transition from institutional settings and into the community.“). Kent‘s RCL “Participation Information and Consent Form” stated he would receive services to help “[r]esolve concerns, questions or problems that could delay [Kent] from safely moving to, or remaining in, the community” and “[i]dentify and help plan for possible risks the move may present.” Clerk‘s Papers (CP) at 867, 889. Relevant to the facts here, DSHS internal policy and state law expressly require that RCL care plans contain an emergency evacuation plan “developed and practiced with the client.”
Although the decision to move from a residential setting to an apartment was left to Kent‘s choice, that choice did not absolve DSHS of its duty to exercise reasonable care when performing services within the scope of its RCL program. The majority‘s protracted analysis of special relationships and its single-minded focus on Kent‘s free agency serve only to obscure the common law duty owed by DSHS in these circumstances.2 By fixating on principles of client choice and dignity, the majority overlooks the specific responsibilities DSHS undertook—namely, to manage Kent‘s safe transition into community living. Honoring client choice and dignity does not translate into immunizing DSHS from liability for harm to clients caused by unreasonable conduct within the scope of its undertaking. Even outside the framework of a special relationship, this common law duty remains.
Whether DSHS or LMTAAA breached their common law duties owed to Kent and whether such breach caused Kent‘s tragic death are quintessential fact questions entrusted to the trier of fact. Yet, the majority barely slows down to address them. The record in this case is replete with evidence that DSHS and LMTAAA failed to
take reasonable steps to ensure Kent safely and successfully transitioned to a community setting. When viewing the evidence and all reasonable inferences in the light most favorable to the Turner estate, a reasonable jury could readily conclude the respondents’ failures in this regard proximately caused Kent‘s death. Even a brief review of key relevant facts makes this clear.
Kent lived with multiple sclerosis, a chronic and progressive neurological disease that forced him into early retirement, severely impaired his fine motor skills, required his use of a wheelchair, and led him to seek professional assistance from the State in order to perform basic daily tasks. Kent‘s initial long-term care assessment described his functional limitations as “[g]eneral weakness, [p]oor hand/eye coordination, [w]eak grip, [and l]imited fine motor control.” CP at 830. Kent needed help moving in and out of his wheelchair. He required assistance when getting dressed and undressed. He struggled to open the heavy door of his apartment and previously tied a scarf around the interior doorknob in order to accomplish this task. DSHS and LMTAAA knew Kent was a regular smoker, typically smoking a pack of cigarettes per day. He often refilled his own lighter fluid and more than once had spilled lighter fluid on himself while doing so. On at least one prior occasion, Kent inadvertently set his sleeve on fire when refilling his lighter fluid.
Despite this known risk, Kent‘s Capitol House Apartment, where he lived alone, lacked sprinklers. DSHS‘s sole evacuation plan in the event of an emergency was for Kent‘s caregivers to assist him but his caregivers were only present 4 hours each day. Kent thus lacked any evacuation plan for the 20 hours per day he resided alone in his apartment. There is no evidence in the record that DSHS discussed the risks of Kent being alone in his apartment in the event he needed to evacuate. CP at 1457-58. No care provider ever practiced an evacuation plan with him either, as was required by DSHS policy and state law. CP at 1454,
DSHS contends—and the majority agrees—that Kent “was his own decision maker.” CP at 1458. But Kent‘s freedom of choice and the respondent‘s obligations are not mutually exclusive—particularly where DSHS and LMTAAA failed to identify and discuss known safety risks inherent to Kent‘s living situation and to develop a plan to manage those risks in the event of an emergency.
Further, the circumstances of Kent‘s death create a jury question on the issue of proximate cause. It is well established that the defendant‘s negligence need not be the sole cause of an injury to satisfy proximate cause, but simply a cause. Brashear v. Puget Sound Power & Light Co., 100 Wn.2d 204, 207-08, 667 P.2d 78 (1983). In this case, Kent died alone in an accidental fire. On the day of his death, first responders found Kent lifeless in his wheelchair directly in front of his apartment door—as if he attempted, but failed, to escape through the heavy door of his apartment. While its origins remain unconfirmed, an investigation showed the fire was isolated to Kent‘s wheelchair and person. A reasonable inference is that the fire started on the wheelchair or on Kent himself. Perhaps sprinklers might have extinguished the fire. Perhaps by developing and practicing an evacuation plan with Kent beforehand, DSHS might have realized the challenges of him opening the apartment door unassisted. Perhaps an evacuation plan developed specifically to accommodate Kent‘s physical limitations would have allowed him to escape. Simple access to an emergency response device might have allowed Kent to call the fire department before the alarm system sounded—perhaps early enough for first responders to reach Kent before he died.
Viewing the evidence and all reasonable inferences in the light most favorable to the estate, it cannot be said on this record that no trier of fact could conclude the respondents’ failure to exercise reasonable care, within the scope of the assistance they agreed to provide, contributed to Kent‘s tragic death. Regardless of any special relationship, it is a gross usurpation of the role of the jury in our system of justice to grant summary judgment on these intensely factual issues. The record contains proffered evidence, albeit disputed, that would support a jury finding on breach and proximate cause with respect to the respondents’ common law duties. The majority‘s vague description of the relevant facts as “not sufficiently separated from the argument that a special relationship existed” improperly minimizes both the scope of the respondents’ duty and the jury‘s role in assessing the standard of care, breach, and causation. Majority at 29. I would reverse the trial court‘s grant of summary judgment and remand for trial on the common law negligence claims.
Stephens, J.
Notes
- I understand that participation in all ADSA/LTC [(Aging and Disability Services Administration/Long-Term Care)] paid services is voluntary and I have a right to decline or terminate services at any time.
- I understand that I must notify my case manager if I have a change in my living situation.” CP at 855 (boldface omitted).
“(a) [their] failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other‘s reliance upon the undertaking.”
“(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor‘s charge, or
“(b) the actor‘s discontinuing his aid or protection, if by so doing [they] leave[] the other in a worse position than when the actor took charge of [them].”