H.B.H. v. State
This text of 429 P.3d 484 (H.B.H. v. State) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STEPHENS, J.
*487¶ 1 Former foster children KMH, HBH, SAH, KEH, and JBH brought this case against the Department of Social and Health Services (DSHS), alleging negligence in failing to protect them from the tortious or criminal acts of their foster, and later adoptive, parents. At the close of the evidence, the trial court granted DSHS's CR 50 motion and dismissed the children's claims of negligence concerning the preadoption, foster care period. Division Two of the Court of Appeals reversed, holding that DSHS owes a common law duty to protect dependent foster children from foreseeable harm based on the special relationship between DSHS and such children.
¶ 2 This holding is correct. Under well-established common law tort principles, DSHS owes a duty of reasonable care to protect foster children from abuse at the hands of their foster parents. The evidence at trial was sufficient to present a jury question as to whether DSHS breached this duty and caused the plaintiffs harm. We affirm the Court of Appeals and remand for trial on the preadoption claims.
FACTS AND PROCEDURAL HISTORY
¶ 3 DSHS placed KMH in foster care with Scott and Drew Ann Hamrick in February 1998. Social worker Amy Page was initially assigned to KMH's case, before being replaced by Renee Harvey in 1999. KMH also had two guardians ad litem and a therapist during the preadoption period. The record suggests that there were no observations or reports of any problems with KMH's placement during this time.
¶ 4 In October 1999, DSHS placed twins HBH and SAH with the Hamricks. HBH and SAH had been removed from their parents in 1994 and had been placed in several foster homes in the years preceding their placement with the Hamricks. They suffered abuse and neglect in those foster homes. DSHS social worker Mary Woolridge was assigned to the twins' cases in February 1999. According to DSHS policies, Woolridge was required to conduct regular in-home health and safety checks every 90 days to determine whether the children felt safe or had concerns about their new foster home setting. Evidence presented at trial indicated that Woolridge failed to conduct these health and safety visits as required. DSHS records show no visits and no reports between October 1999 (the date HBH and SAH were placed in the Hamrick home) and October 2000 (the date the girls were adopted by the Hamricks).
¶ 5 In January 2000, DSHS also placed KEH and JBH in the Hamricks' home. DSHS social worker Liza Gilman was initially assigned to the girls' cases, followed by social workers Sally Bryan, Amy Page, and Anna Tran. The record indicates that each social worker conducted health and safety visits, and did not observe or receive any information about abuse occurring in the Hamrick home.
¶ 6 In June 2000, DSHS conducted a home study to determine whether the Hamricks would be suitable adoptive parents. The resulting report recommended that DSHS allow the Hamricks to adopt all of the children.
*488In October 2000, the Hamricks adopted KMH, HBH, and SAH. A few years later, in January 2003, the Hamricks adopted KEH and JBH. DSHS involvement with the children ended upon their adoptions.
¶ 7 Evidence at trial showed that the Hamricks abused all five girls physically, sexually, and psychologically during the preadoption period from 1998 to 2003. DSHS did not obtain any information concerning abuse during this period, however, and the social workers in contact with the children reported that the children seemed happy in the Hamricks' home.
¶ 8 In April 2008, following the children's adoption by the Hamricks, Child Protective Services (CPS) received a written referral from a school counselor who suspected physical abuse of SAH. CPS screened the report and decided not to investigate. In November 2009, CPS received another referral related to Scott Hamrick's alleged sexual contact with a juvenile neighbor girl; this referral noted that there were multiple adopted children within the Hamrick home. CPS referred the incident to law enforcement but did not conduct its own investigation or otherwise follow up on the report. In March 2010, a neighbor reported possible abuse and neglect of KEH to CPS. This time, CPS investigated the referral but determined the report was unfounded.
¶ 9 In 2011, the Pierce County Sheriff's Department began investigating allegations that the Hamricks were abusing KMH, HBH, SAH, KEH, and JBH. The investigation resulted in DSHS removing the children from the Hamrick home. Scott Hamrick committed suicide during the criminal investigation. Drew Ann Hamrick was eventually charged and convicted of crimes related to the abuse.
¶ 10 In September 2011, HBH and SAH brought this civil suit against DSHS, alleging that its negligence in failing to investigate or take other protective action during the preadoption period allowed the Hamricks to abuse them as foster and, later, adopted children. A separate suit was filed through a guardian ad litem on behalf of KMH, KEH, and JBH, who were still minors at the time. The two cases were eventually consolidated and went to trial. The jury heard evidence over approximately six weeks of testimony.
¶ 11 Following the close of both parties' cases, DSHS moved under CR 50 for judgment as a matter of law, arguing that it was not negligent during the preadoption period. The trial court granted DSHS's motion as to the preadoption period.1 The jury returned a defense verdict on the remaining claims.
¶ 12 On appeal, the foster children argued that the trial court erred in dismissing their claims of negligence by DSHS concerning the preadoption period. They did not seek to revive claims based on DSHS's statutory duty to investigate2 but, instead, argued that DSHS owed a common law duty of reasonable care to protect foster children based on the special protective relationship between the agency and such children. They further argued that DSHS breached that duty by failing to protect them from the tortious or criminal acts of their foster parents. DSHS contended that no special relationship should be recognized because DSHS did not have physical custody of the foster children, who at all relevant times were in the care of the Hamricks.
¶ 13 The Court of Appeals reversed the trial court's CR 50 order relating to the preadoption period, holding that DSHS stands in a protective special relationship with foster children within the meaning of Restatement (Second) of Torts § 315(b) (Am. Law Inst. 1965). H.B.H. v. State ,
Free access — add to your briefcase to read the full text and ask questions with AI
STEPHENS, J.
*487¶ 1 Former foster children KMH, HBH, SAH, KEH, and JBH brought this case against the Department of Social and Health Services (DSHS), alleging negligence in failing to protect them from the tortious or criminal acts of their foster, and later adoptive, parents. At the close of the evidence, the trial court granted DSHS's CR 50 motion and dismissed the children's claims of negligence concerning the preadoption, foster care period. Division Two of the Court of Appeals reversed, holding that DSHS owes a common law duty to protect dependent foster children from foreseeable harm based on the special relationship between DSHS and such children.
¶ 2 This holding is correct. Under well-established common law tort principles, DSHS owes a duty of reasonable care to protect foster children from abuse at the hands of their foster parents. The evidence at trial was sufficient to present a jury question as to whether DSHS breached this duty and caused the plaintiffs harm. We affirm the Court of Appeals and remand for trial on the preadoption claims.
FACTS AND PROCEDURAL HISTORY
¶ 3 DSHS placed KMH in foster care with Scott and Drew Ann Hamrick in February 1998. Social worker Amy Page was initially assigned to KMH's case, before being replaced by Renee Harvey in 1999. KMH also had two guardians ad litem and a therapist during the preadoption period. The record suggests that there were no observations or reports of any problems with KMH's placement during this time.
¶ 4 In October 1999, DSHS placed twins HBH and SAH with the Hamricks. HBH and SAH had been removed from their parents in 1994 and had been placed in several foster homes in the years preceding their placement with the Hamricks. They suffered abuse and neglect in those foster homes. DSHS social worker Mary Woolridge was assigned to the twins' cases in February 1999. According to DSHS policies, Woolridge was required to conduct regular in-home health and safety checks every 90 days to determine whether the children felt safe or had concerns about their new foster home setting. Evidence presented at trial indicated that Woolridge failed to conduct these health and safety visits as required. DSHS records show no visits and no reports between October 1999 (the date HBH and SAH were placed in the Hamrick home) and October 2000 (the date the girls were adopted by the Hamricks).
¶ 5 In January 2000, DSHS also placed KEH and JBH in the Hamricks' home. DSHS social worker Liza Gilman was initially assigned to the girls' cases, followed by social workers Sally Bryan, Amy Page, and Anna Tran. The record indicates that each social worker conducted health and safety visits, and did not observe or receive any information about abuse occurring in the Hamrick home.
¶ 6 In June 2000, DSHS conducted a home study to determine whether the Hamricks would be suitable adoptive parents. The resulting report recommended that DSHS allow the Hamricks to adopt all of the children.
*488In October 2000, the Hamricks adopted KMH, HBH, and SAH. A few years later, in January 2003, the Hamricks adopted KEH and JBH. DSHS involvement with the children ended upon their adoptions.
¶ 7 Evidence at trial showed that the Hamricks abused all five girls physically, sexually, and psychologically during the preadoption period from 1998 to 2003. DSHS did not obtain any information concerning abuse during this period, however, and the social workers in contact with the children reported that the children seemed happy in the Hamricks' home.
¶ 8 In April 2008, following the children's adoption by the Hamricks, Child Protective Services (CPS) received a written referral from a school counselor who suspected physical abuse of SAH. CPS screened the report and decided not to investigate. In November 2009, CPS received another referral related to Scott Hamrick's alleged sexual contact with a juvenile neighbor girl; this referral noted that there were multiple adopted children within the Hamrick home. CPS referred the incident to law enforcement but did not conduct its own investigation or otherwise follow up on the report. In March 2010, a neighbor reported possible abuse and neglect of KEH to CPS. This time, CPS investigated the referral but determined the report was unfounded.
¶ 9 In 2011, the Pierce County Sheriff's Department began investigating allegations that the Hamricks were abusing KMH, HBH, SAH, KEH, and JBH. The investigation resulted in DSHS removing the children from the Hamrick home. Scott Hamrick committed suicide during the criminal investigation. Drew Ann Hamrick was eventually charged and convicted of crimes related to the abuse.
¶ 10 In September 2011, HBH and SAH brought this civil suit against DSHS, alleging that its negligence in failing to investigate or take other protective action during the preadoption period allowed the Hamricks to abuse them as foster and, later, adopted children. A separate suit was filed through a guardian ad litem on behalf of KMH, KEH, and JBH, who were still minors at the time. The two cases were eventually consolidated and went to trial. The jury heard evidence over approximately six weeks of testimony.
¶ 11 Following the close of both parties' cases, DSHS moved under CR 50 for judgment as a matter of law, arguing that it was not negligent during the preadoption period. The trial court granted DSHS's motion as to the preadoption period.1 The jury returned a defense verdict on the remaining claims.
¶ 12 On appeal, the foster children argued that the trial court erred in dismissing their claims of negligence by DSHS concerning the preadoption period. They did not seek to revive claims based on DSHS's statutory duty to investigate2 but, instead, argued that DSHS owed a common law duty of reasonable care to protect foster children based on the special protective relationship between the agency and such children. They further argued that DSHS breached that duty by failing to protect them from the tortious or criminal acts of their foster parents. DSHS contended that no special relationship should be recognized because DSHS did not have physical custody of the foster children, who at all relevant times were in the care of the Hamricks.
¶ 13 The Court of Appeals reversed the trial court's CR 50 order relating to the preadoption period, holding that DSHS stands in a protective special relationship with foster children within the meaning of Restatement (Second) of Torts § 315(b) (Am. Law Inst. 1965). H.B.H. v. State ,
ANALYSIS
¶ 14 Courts are appropriately hesitant to take cases away from juries. A CR 50 motion for directed verdict or judgment as a matter of law should be granted only when, after viewing the evidence in the light most favorable to the nonmoving party, there is no substantial evidence or reasonable inferences therefrom to support a verdict for the nonmoving party. Goodman v. Goodman,
¶ 15 DSHS argues dismissal was appropriate in this case because it owes no common law duty to foster children to protect them from abuse by foster parents. DSHS contends that the Court of Appeals erred in holding that a Restatement § 315(b) protective special relationship exists between DSHS and dependent foster children and that imposing a duty here would effectively abrogate the State's sovereign immunity. As an alternative basis to affirm the trial court, DSHS argues that the plaintiffs presented no evidence to allow a jury to find DSHS breached its duty and caused harm. As did the Court of Appeals, we reject these arguments.
A. DSHS's Role as Parens Patriae in the Child Welfare System
¶ 16 The primary issue in this case is whether DSHS has a special relationship with dependent foster children in its charge, providing such children a right to protection from the tortious or criminal acts of their foster parents. DSHS describes its role in the foster care system as limited to "engag[ing] in reviews, visits, assistance, and services directed by statutes and courts." State's Suppl. Br. at 19. According to DSHS, "[t]his comprehensive, but statutorily defined, non-custodial power, together with the statutory role of foster homes to provide custody, explains why DSHS does not have a special relationship with foster children."
¶ 17 It is well established that while parents have a fundamental liberty interest in the care and custody of their children, the State has an equally compelling parens patriae interest in protecting the physical, mental, and emotional health of children in this state. In re Dependency of Schermer,
¶ 18 Balancing the interests of parents, children, and the State, the legislature has *490created a comprehensive statutory framework to govern the State's role as parens patriae in the child welfare system. See chs. 13.34 RCW (Juvenile Court Act), 26.44 RCW (Child Abuse and Neglect Act), 74.13 RCW (child welfare services), 74.15 RCW (care of children, expectant mothers, persons with developmental disabilities). The purpose of Washington's statutory scheme is "to safeguard, protect, and contribute to the welfare of the children of the state." RCW 74.13.010. Consistent with this purpose, the guiding principal of our child welfare system is that "the child's health and safety shall be the paramount concern." RCW 13.34.020. Washington's statutory framework is unique in this regard: it expressly places the rights of the child above the rights of parents. "When the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail."
¶ 19 A detailed statutory scheme authorizes the State to remove a child from the family home, take the child into state custody, and declare the child "dependent"3 when doing so is in the best interest and safety of the child. RCW 26.44.010 ; Schermer,
¶ 20 Within 75 days of a dependency petition being filed, the juvenile court must hold a fact-finding hearing to determine whether the child is "dependent." RCW 13.34.070(1). The petitioner, typically DSHS, bears the burden of establishing by a preponderance of the evidence that the child is dependent within the meaning of RCW 13.34.030. RCW 13.34.110(1). If the child is found to be dependent, the court must then determine where the child will be placed and the services to be provided. RCW 13.34.130, .136; Schermer,
¶ 21 When the court places a dependent child with DSHS, as in this case, DSHS is the sole legal custodian of the child. JuCR 3.8(e) (when the disposition requires that the child be removed from the parental home, it has the effect of transferring legal custody to the agency or custodian charged with the child's care). The transfer of legal custody charges DSHS with the following duties: (1) maintaining physical custody of the child, (2) protecting, training, and disciplining the child, and (3) providing food, clothing, shelter, education, and routine medical care.
¶ 22 The two basic principles of foster care are that the child is placed on a temporary basis with a foster family and DSHS reserves the right to remove the child at any time from the foster home. Foster care serves as a substitute for parental care until the child can be returned to the family home or another permanent placement can be made. In addition to its initial duty to investigate foster homes for licensing purposes, DSHS has a continuing duty to investigate allegations of abuse and to monitor the dependent child in the foster home. See RCW 74.13.031(3) ("[t]he department shall investigate complaints of any recent act or failure to act on the part of a parent or caretaker"), (6) ("The department shall monitor placements of children in out-of-home care and in-home dependencies to assure the safety, well-being, and quality of care being provided is within the scope of the intent of the legislature as defined in RCW 74.13.010 and 74.15.010").
¶ 23 Unlike DSHS, foster parents have no legally recognized parental interest in the dependent children placed in their homes. See In re Dependency of J.H.,
¶ 24 In sum, the establishment of a dependency imposes essential rights and duties on the State to care for dependent children. See, e.g., RCW 74.13.010 (duty to protect and care for dependent children), .031(3) (duty to investigate complaints of neglect, abuse, or abandonment of children), (6) (duty to monitor foster care placements), (7) (duty to provide child welfare services to dependent children), (9) (DSHS authorized to purchase care for dependent children). The State becomes the legal custodian of the dependent child, and the State alone controls the services provided to the child and determines where the child will reside. See JuCR. 3.8(e) ; RCW 13.34.130(1)(b)(ii) ; RCW 74.13.031(7). It is against this statutory backdrop that we consider whether DSHS's relationship with dependent foster children creates a special relationship supporting a common law duty in this case.
B. DSHS Owes a Common Law Duty To Protect Dependent Foster Children from Reasonably Anticipated Dangers
¶ 25 An essential element in any negligence action is the existence of a legal *492duty that the defendant owes the plaintiff. Petersen v. State,
¶ 26 Common examples of § 315(b) protective special relationships include the relationships between schools and their students, innkeepers and their guests, common carriers and their passengers, and hospitals and their patients. See McLeod v. Grant County Sch. Dist. No. 128,
¶ 27 DSHS asserts that the Court of Appeals' finding of a special protective relationship between DSHS and dependent foster children represents "an unprecedented expansion of this Court's § 315(b) doctrine." State's Suppl. Br. at 10. According to DSHS, "[t]he existence of the § 315(b) protective duty depends on actual custodial care and control of the plaintiff and their environment," not entrustment and victim vulnerability, as the Court of Appeals held. Id. at 14. Under DSHS's approach, a § 315(b) special relationship requires "substantial control over the plaintiff's environment and notice of foreseeable harm giving rise to entrustment to the defendant's care, and a demonstration of an historic obligation to provide protection from third parties." Pet. for Review at 15. DSHS argues that because it does not exercise physical custody and control over foster children, the relationship between DSHS and dependent foster children falls outside the special relationship duty contemplated by § 315(b). State's Suppl. Br. at 10. In particular, DSHS notes that "the comprehensive statutory child welfare system does not create this type of relationship between DSHS and foster children." Id.
¶ 28 DSHS's physical custody-and-control requirement is unsustainable for several reasons. First, neither the Restatement nor relevant case law suggests that § 315(b) special relationships are confined to situations of physical custody or control, as DSHS contends. Section 315(b) simply states that "a special relation exists between the actor and *493the other which gives to the other a right to protection." See Caulfield v. Kitsap County,
¶ 29 Section 315(b) of the Restatement is closely related to § 314A and § 320. See RESTATEMENT § 315 cmt. c.6 Section 314A provides further insight into the contours of the special protective relationship by describing specific settings in which the duty to protect may be found, one of which is potentially relevant here. Subsection (4) of § 314A describes a special relationship giving rise to a duty to protect where "[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other."7 While subsection (4) references "custody," there is no indication that § 314A requires ongoing physical custody. In fact, comment b following § 314A confirms that entrustment and vulnerability, not physical custody, are at the heart of the special protective relationship-"[t]he law appears, however, to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence ." RESTATEMENT § 314A cmt. b (emphasis added).
¶ 30 Section 320 of the Restatement, entitled "Duty of Person Having Custody of Another to Control Conduct of Third Persons," expands on the special protective relationship described in subsection (4) of § 314A.8 Section 320 specifically identifies the "[h]elplessness of [the] other" as a decisive factor in the custody-based special relationship. RESTATEMENT § 320 cmt. b. As comment b to § 320 explains, "The circumstances under which the custody of another is taken and maintained may be such as to deprive him of his normal ability to defend himself, or to deprive *494him of the protection of someone who, if present, would be under a duty to protect him." For example, "a child while in school is deprived of the protection of his parents or guardian."
¶ 31 DSHS's physical-custody-and-control test is also at odds with Washington case law. While the term "custody" appears throughout our § 315 cases, we have explained that it is not physical custody that creates the special relationship. Rather, special protective relationships "are based on the liable party's assumption of responsibility for the safety of another." Niece,
¶ 32 Contrary to DSHS's contention, our case law confirms that entrustment for the protection of a vulnerable victim, not physical custody, is the foundation of a special protective relationship. See Niece,
¶ 33 While we reject DSHS's insistence on physical care and custody to establish a special protective relationship, it is nonetheless present in this case. Foster care involves a form of state custody-children are involuntarily removed from their homes by an affirmative act of the State and confined to a state system of foster care. In DeShaney v. Winnebago County Department of Social Services,
¶ 34 DSHS unconvincingly seeks to minimize its role in Washington's child welfare system. According to DSHS, when children are placed in foster care, the agency's primary responsibility is to " 'ensure that foster care placements are in the least restrictive, most family-like setting available.' " State's Suppl. Br. at 15 (quoting Aba Sheikh,
¶ 35 The State's attempt to narrowly circumscribe DSHS's duties during foster care ignores its relationship with foster parents. The reason DSHS does not have day-to-day physical custody over dependent foster children is because DSHS contracts out its duty, as legal custodian, to foster parents. However, DSHS's delegation of physical custody to foster parents does not lessen its continuing responsibility to protect dependent children in its legal custody. We reject DSHS's view that once a child is placed in foster care, its relationship with that child becomes one of mere administrator of child welfare services. State's Suppl. Br. at 15. The governing statutes suggest otherwise. When a dependent child is placed in foster care, DSHS not only has a duty to investigate reports of child abuse and neglect, RCW 26.44.050, but also an ongoing duty to "monitor placements of children" to "assure the safety, well-being, and quality of care being provided is within the scope of the intent of the legislature." RCW 74.13.031(6), .010 ("The purpose of this chapter is to safeguard, protect, and contribute to the welfare of the children of the state."). DSHS remains primarily responsible for supervising and monitoring foster care placements. The State's refashioning of DSHS's role within the child welfare system as a mere licensor of foster homes is at odds with the statutory framework in which it operates.9
¶ 36 Recognizing that DSHS stands in a special protective relationship with foster children will not lead to the unrestrained liability the State and the dissent fear. See Pet. for Review at 21 (warning that recognizing a common law duty "could lead to claims that DSHS erred by failing to prevent a wide variety of harms, such as a dog bite"); dissent at 5 (claiming grandparents and caregivers may be liable for negligence of camp counselors or community centers). The State is not vicariously liable for all acts of foster parents, and the scope of its duty is circumscribed by standards of reasonable care. In any situation involving a § 315(b) special relationship, the general duty is simply to use reasonable care to protect the other person from the criminal or tortious acts of third parties. RESTATEMENT § 314A cmt. e ("The duty in each case is only *496one to exercise reasonable care under the circumstances."). The issue of reasonable care turns on context within the legal framework that defines the parties' relationship. The duty of reasonable care is in turn limited by the concept of foreseeability. Only 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 will a duty of care to protect the plaintiff be recognized. Niece,
¶ 37 Finally, we reject the State's argument that recognizing DSHS owes a common law duty under § 315(b) conflicts with M.W. v. Department of Social & Health Services,
Our conclusion not to expand the cause of action of negligent investigation is bolstered by our determination that DSHS has an existing common law duty of care not to negligently harm children. An expansion of the action of negligent investigation is therefore unnecessary.
Id. at 600,
¶ 38 Recognizing DSHS's legal duty under the principles of § 315(b) furthers the overarching purpose of Washington's child welfare laws "to safeguard, protect, and contribute to the welfare of the children of the state." RCW 74.13.010. " 'Accountability through tort liability ... may be the only way of assuring a certain standard of performance from governmental entities.' " Tyner v. Dep't of Soc. & Health Servs.,
C. Recognizing DSHS's Common Law Duty To Protect Foster Children from Abuse Does Not Encroach on the State's Sovereign Immunity
¶ 39 DSHS insists that imposing a common law duty under § 315(b) amounts to judicial abrogation of the State's sovereign immunity. See Pet. for Review at 12-14; State's Suppl. Br. at 21-22. This argument reflects a fundamental misunderstanding of government liability in tort following the statutory waiver of sovereign immunity in 1961.
¶ 40 Article II, section 26 of the Washington Constitution authorizes the legislature to "direct by law, in what manner, and in what courts, suits may be brought against the state." In 1961, the legislature waived the State's sovereign immunity with *497respect to tort actions. LAWS OF 1961, ch. 136, § 1 (codified as RCW 4.92.090 ). This waiver statute provides, "The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation." RCW 4.92.090. This statute is "one of the broadest waivers of sovereign immunity in the country" and makes the State presumptively liable for its alleged tortious conduct "in all instances in which the Legislature has not indicated otherwise." Savage v. State,
¶ 41 In waiving sovereign immunity, the legislature consented to the imposition of liability against the State for its tortious conduct "to the same extent as if it were a private person or corporation." RCW 4.92.090 (emphasis added). Accordingly, when assessing the State's liability, it is appropriate to draw analogies between the State's conduct and comparable conduct performed in the private sector. See Evangelical United Brethren Church of Adna v. State,
¶ 42 Here, the State asserts sovereign immunity because its conduct-i.e., "remov[ing] children from their parents and plac[ing] them into foster care"-involves a government function that cannot be undertaken by private persons or corporations. Pet. for Review at 12; see also State's Suppl. Br. at 20-21 ("No private sector entity collects and investigates reports of child abuse and neglect; intervenes in families and removes children from parents; or licenses foster parents, so that removed children can be placed into a natural, nurturing family environment."). Essentially, the State argues that DSHS performs a uniquely governmental function that has no counterpart in the private sector, i.e., there is no "private analog." State's Suppl. Br. at 10. This argument fails for two reasons.
¶ 43 First, it ignores the legislature's directive to submit the State to tort liability as if it were a private entity. For tort liability to attach, the State does not necessarily have to be doing something that a private party does. Rather, RCW 4.92.090 recognizes that "the official conduct giving rise to liability must be tortious , and it must be analogous, in some degree at least, to the chargeable misconduct and liability of a private person or corporation." Evangelical,
¶ 44 Second, there are comparable private relationships that give rise to a duty in tort. For example, private persons entrust the care of children in their custody to schools, camps, and day care centers on a daily basis. These entities in turn delegate responsibilities to teachers, counselors, and caregivers. DSHS is not performing a uniquely governmental function by delegating the care of a child in its custody to foster parents. We reject its attempt to use the shield of sovereign immunity to avoid defending against negligence claims for failing to protect foster children.
*498¶ 45 In sum, because DSHS is entrusted with the responsibility of protecting dependent foster children, who are particularly vulnerable and in need of protection, the Court of Appeals correctly recognized that DSHS owes a common law duty under Restatement § 315(b). Recognizing DSHS's protective duty is consistent with Washington's broad waiver of sovereign immunity. The potential for tort liability does not disregard the State's sovereign immunity but instead serves the goal of holding the State accountable "to the same extent as if it were a private person or corporation." RCW 4.92.090.
D. The Foster Children Produced Sufficient Evidence of Breach and Causation To Allow a Jury To Decide Their Claims.
¶ 46 As a distinct basis for dismissing the foster children's preadoption claims, DSHS argues that the evidence at trial was insufficient to create a jury question on issues of breach of the duty of care, proximate cause, and damages. It asks us to affirm the trial court on this basis. See Pet. for Review at 22-24; State's Suppl. Br. at 22-24. We decline to do so.
¶ 47 We agree with the Court of Appeals that the foster children produced sufficient evidence from which a jury could find that DSHS breached its protective duty, and that the breach of that duty caused their injuries. H.B.H .,
¶ 48 The State challenges the Court of Appeals' breach and causation analysis as "complete speculation." State's Suppl. Br. at 22. But, crediting reasonable inferences is the stuff of juries, which is why courts generally leave questions of breach and causation for juries to decide. See Hertog v. City of Seattle,
¶ 49 As for causation, this is a difficult issue in many tort cases. Certainly, linking DSHS's negligence to the continuation of abuse by the foster parents would require the jury to reconstruct a causal chain. And, the jury would need to decide whether the conduct of subsequent actors broke the causal chain. But, there was sufficient, albeit conflicting, evidence on these issues. Verbatim Report of Proceedings (VRP) (Feb. 9, 2015) at 8-14 (Woolridge's testimony), 62-68 (Barbara Stone's expert testimony). The trial court seems to have resolved these issues itself, in concluding, "I mean, does it really matter whether Mary Woolridge was or was not doing her health and safety visits.... I can't really see there are any claims based on anything Mary Woolridge did or did not do." VRP (Mar. 5, 2015) at 83-84. Jurors might have viewed the evidence differently.
¶ 50 Resolution of the foster children's negligence claim against DSHS presents a close question, which the trier of fact could likely resolve either way. We agree with the Court of Appeals that the case should go to the jury on these issues and hold that the *499trial court erred in entering judgment as a matter of law under CR 50.
CONCLUSION
¶ 51 The State, through DSHS, stands in a special relationship with foster children. While DSHS contracts with foster parents and others to provide day-to-day care for dependent children, the State alone is "custodian and caretaker of foster children." Braam,
WE CONCUR:
Owens, J.
González, J.
Gordon McCloud, J.
Yu, J.
¶ 52 I disagree with the majority's conclusion that the Department of Social and Health Services (DSHS) owes a common law duty to protect dependent foster children from foreseeable harm. I write separately because the majority, contrary to precedent and plain meaning, expands the meaning of Restatement (Second) of Torts § 315(b) 's "special relationship" doctrine to include the relationship between DSHS and foster children, imposing a duty where none would otherwise exist.
Discussion
¶ 53 In general, "there is no duty to prevent a third party from intentionally harming another" unless, pursuant to Restatement § 315(b),
"a special relation exists between the [actor] and the other which gives the other a right to protection."
Niece v. Elmview Grp. Home,
¶ 54 Despite years of precedent to the contrary, much of which the majority cites, the majority baselessly holds that Restatement § 315(b) should be applied broadly-creating a special relationship where the defendant does not have physical custody of the victim but entrusts the victim to the ultimate tortfeasor. The majority concedes that its motive in expanding Restatement § 315(b) is to ensure " ' "[a]ccountability through tort liability ... [which] may be the only way of assuring a certain standard of performance from governmental entities." ' " Majority at 28 (second alteration in original) (quoting Tyner v. Dep't of Soc. & Health Servs.,
¶ 55 It is unclear why the majority aims to subject DSHS to a common law duty that has never been applied in the context of a DSHS-foster child relationship when the legislature has already enacted statutes establishing *500DSHS' rights and responsibilities.1 See ch. 74.13 RCW. Indeed, the majority concedes this point, stating,
Balancing the interests of parents, children, and the State, the legislature has created a comprehensive statutory framework to govern the State's role as parens patriae in the child welfare system. The purpose of Washington's statutory scheme is "to safeguard, protect, and contribute to the welfare of the children of the state."
Majority at 489-90 (quoting RCW 74.13.010 ) (emphasis added) (citations omitted). The majority offers no justification for its decision to deviate from the legislature's "comprehensive statutory framework," which was created to protect " 'the children of the state.' "
¶ 56 Additionally, in holding that DSHS owes a common law duty to protect foster children from reasonably anticipated dangers, the majority relies on the notion that a Restatement § 315(b) special relationship arises from entrustment, rather than physical custody. However, the majority primarily cites to cases where special relationships arose from physical custody. Specifically, the majority states:
Common examples of § 315(b) protective special relationships include the relationships between schools and their students, innkeepers and their guests, common carriers and their passengers, and hospitals and their patients. See McLeod v. Grant County Sch. Dist. No. 128, 42 [Wash.2d] 316, 320,255 P.2d 360 (1953) (holding that a school has a duty to protect students from reasonably anticipated dangers); Hutchins [v. 1001 Fourth Ave. Assocs. ,] 116 [Wash.2d] [217,] 227-28[,802 P.2d 1360 (1991) ] (holding that an innkeeper has a duty to protect guests from the criminal actions of third parties); Hunt v. King County , 4 [Wash.App.] 14, 20,481 P.2d 593 (1971) (holding that a hospital has a duty to protect patients from the reasonably foreseeable risk of self-inflicted harm through escape).
Majority at 16-17. Indeed, each of these examples-the relationships between schools and their students, innkeepers and their guests, common carriers and their passengers-involve physical custody, not entrustment. Importantly, the connection between physical custody and the duty to protect is logical.2 In instances where the victim is in the defendant's physical custody and under the defendant's direct supervision, the defendant has a clear opportunity to prevent harm to the child. Such an opportunity does not exist where the defendant entrusted the victim to a third party because no amount of due diligence or periodic investigation could prevent much of the harm done by third parties.
¶ 57 The majority argues that DSHS' duty is similar to the defendant's duty in Niece. In that case, a disabled woman brought an action against a group home after a staff member at the group home sexually assaulted her. 131 [Wash.2d] at 41,
¶ 58 Receiving no help from any of our cases,4 the majority moves on to Restatement § 314A and Restatement § 320 to hold that the existence of a "special relationship" is based on the "notion of vulnerability and entrustment." Majority at 494. But, Restatement §§ 314A and 320 do not define "special relationship," and § 315 makes no mention of vulnerability or entrustment as considerations for determining a "special relationship." As this court has recently reiterated, "Parties who take custody of another have a duty to 'protect them against unreasonable risk of physical harm' " under Restatement § 314A. Hendrickson v. Moses Lake Sch. Dist., No. 94898-4, at 7, --- Wash.2d ----,
¶ 59 While the majority's goal is concededly to ensure government accountability, "[f]oisting [a new] rule upon courts and parties by judicial fiat could lead to unforeseen consequences." In re Pers. Restraint of Carlstad,
¶ 60 Finally, the majority seeks to create liability under the special relationship doctrine, but we have consistently used the Bennett test to determine DSHS's liability. Bennett v. Hardy,
¶ 61 In Ducote v. Department of Social & Health Services,
¶ 62 The majority seeks to sidestep the outcome of applying our well-established precedent by invoking the special relationship doctrine. While chapter 74.13 RCW was indisputably created for the benefit of foster children, there is no evidence that the legislature sought to burden the State with the duty of having an ever vigilant and watchful eye over foster parents. Rather the duty imposed on the State is to monitor foster home placement monthly and to investigate alleged violations when they are discovered. RCW 74.13.031(6). Moreover, a statutory remedy is available if a department investigation deems criminal penalties against the foster home necessary for alleged violations similar to the instant case. RCW 74.13.031(3). Nothing here suggests an implied cause of action is warranted.
¶ 63 Because DSHS' rights and responsibilities are already defined in statute and because Restatement § 315(b) 's special relationship doctrine is limited to instances where the defendant had physical custody of the victim, I respectfully dissent.
Fairhurst, C.J.
Johnson, J.
Wiggins, J.
Related
Cite This Page — Counsel Stack
429 P.3d 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hbh-v-state-wash-2018.