H-LED. COURT OF APPEALS
Hill SEP - 3 A M. 3: 3
STATE OF WASHINGTON E, r
OF- IN THE COURT OF APPEALS OF THE STATE '' TON
DIVISION II
KELSEY BREITUNG, No. 45123 - -II 9
Appellant,
v.
STATE OF WASHINGTON; DEPARTMENT UNPUBLISHED OPINION OF SOCIAL AND HEALTH SERVICES, and COMMUNITY COUNSELING INSTITUTE, a Washington non - profit corporation,
Respondent.
HUNT, J. Kelsey Breitung appeals the superior court' s granting ( 1) the Community
Counseling Institute' s ( CCI) motion for summary judgment, dismissing with prejudice her
negligent hiring, supervision, and retention claims; and ( 2) the Department of Social and Health
Services' ( DSHS) motion for partial summary judgment, dismissing her claims against DSHS.
Breitung argues that the superior court erred in ( 1) dismissing her claims on summary judgment
because they involved genuine issues of material fact; ( 2) ruling that DSHS was not immune
from Breitung' s negligent investigation claim under RCW 4. 24. 595( 2); ( 3) ruling that Breitung
was judicially estopped from prosecuting her sexual abuse claims, based on her inconsistent
statements in 2009; and ( 4) ruling that the juvenile court' s November 2009 ruling was a
superseding cause that absolved DSHS and CCI from liability. We affirm. No. 45123 -9 -II
FACTS
Community Counseling Institute ( CCI) is a nonprofit organization offering walk - drug in
assessments, outpatient education, and treatment services for individuals with substance abuse
problems. Andrew Bernard Phillips, a certified mental health counselor, applied for a job with
CCI in 2008; CCI' s director, Dr. William H. James, interviewed Phillips, called Phillips'
references, and ran a background check on him. This background check revealed only a 1995
conviction for attempted possession of stolen property. CCI hired Phillips as a counselor.
I. BREITUNG' S COUNSELING RELATIONSHIP WITH CCI AND PHILLIPS
In February 2009, when Breitung was 16 years old, she reported to CCI as required by a
juvenile court order issued in connection with her misdemeanor assault while intoxicated. CCI
assigned Phillips as Breitung' s counselor; their counseling relationship began on February 27.
Phillips also facilitated his church' s " Celebrate Recovery" program, which he encouraged
Breitung to join and through which Breitung met Phillips' wife. Clerk' s Papers ( CP) at 2.
Although CCI was aware that Phillips had encouraged other CCI clients to attend Celebrate
Recovery, it had never stopped him from doing so. Phillips routinely gave Breitung rides
between Celebrate Recovery and her home; he also gave her his cell phone number, telling her
she could call him anytime.
In July 2009, Breitung left her parents' home to live with a friend because of issues with Beitlerl, her mother. In August, Breitung started living with Rose her temporary guardian. On
August 11, Breitung told Phillips that she had gone to a party with Beitler, where she drank
alcohol and had sex with Beitler' s 19- year -old friend. Breitung begged Phillips not to report
1 Rose Beitler is also referred to as Rose Sialana in the record.
2 No. 45123 -9 -II
Beitler to Child Protective Services ( CPS). Phillips did not file a CPS report, but he did tell his
wife about the incident, which she reported to CPS.
During an August 13 meeting with Jessica Chaney, Breitung' s DSHS social worker,
Beitler explained that she had " some serious concerns" about Phillips. The next day, August 14,
DSHS placed Breitung with South King County Youth Shelter ( SKCYS).
Around the same time, Beitler also met with Bernie Bell, CCI' s associate director, and
reported that Phillips had inappropriately shared information about Breitung with his wife. CP at
946 -47. On August 14, Bell filed a critical incident report with CCI, documenting her
conversation with Beitler and Beitler' s concerns about Breitung' s relationship with Phillips. CCI
director James also filed a critical incident report, noting that Phillips " broke confidentiality" by
disclosing information about Breitung to his wife. CP at 956. As remedial measures, on August
30, CCI ( 1) discharged Breitung as a CCI client and recommended that Breitung attend treatment
at another agency, and ( 2) instructed Phillips to have no further contact with Breitung of any
kind. Following her discharge from CCI, Breitung began counseling with Andrea Venier at
Auburn Youth Resources.
II. DEPENDENCY PETITION; BREITUNG' S PLACEMENT WITH PHILLIPS FAMILY
Meanwhile, on August 19, DSHS filed a dependency petition on grounds that it was
contrary to Breitung' s welfare to remain in or to return home to her mother. On August 19, the
juvenile court held a dependency hearing, ruling that Breitung should not return to her parents
and that she should remain in shelter care because she had no parent, guardian, or custodian
available to provide for her. Around this same time, DSHS assigned Gabrielle Rosenthal as
Breitung' s social worker.
3 No. 45123 -9 -II
Breitung repeatedly expressed to Rosenthal her .desire to live with the Phillips family.
Breitung described the Phillips as a positive, supportive couple who provided her with a safe and
stable environment. Rosenthal noted ' potential professional ethical problems given the
counselor- patient relationship between Breitung and Phillips. Nevertheless, Rosenthal contacted
the Phillips and explained the steps they needed to take to be considered a placement resource for 2 Breitung. Phillips disclosed a prior conviction for attempted possession of stolen property.
Rosenthal ran a criminal background check, which confirmed Phillips' prior conviction and no
other conviction or negative action. Rosenthal also searched DSHS' s database to determine
whether any reports or allegations of child abuse, neglect, or endangerment had been filed
against the Phillips; she found none.
Rosenthal also asked Philips to check whether any professional or ethical rule prevented
him from serving as a placement resource for Breitung; Phillips responded that he checked and
did not find any rule that prevented him from doing so. Rosenthal, however, did not
independently contact CCI to inquire about a potential breach of professional or ethical rules that
could stem from placing Breitung with Phillips.
Around this same time, on September 16, the juvenile court held a shelter care hearing.
Rosenthal reported to the court that ( 1) she had not seen Breitung display any particular
attachment to Phillips, ( 2) she ( Rosenthal) had talked mostly with Phillips' wife, ( 3) Breitung
had a good relationship with the Phillips family, and ( 4) she ( Rosenthal) did not have any
concerns about Breitung' s proposed placement with the Phillips family.
2 DSHS required the Phillips to disclose whether they had been convicted of a crime; been accused of sexual abuse, physical abuse, neglect, abandonment, or exploitation of a child; and whether either had any protection orders or restraining orders entered against them. No. 45123 -9 -II
On September 21, Breitung' s new counselor, Venier, submitted a written report to
Auburn Youth Resources, expressing her ethical concerns about Breitung' s relationship with
Phillips. Three days later, on September 24, Rosenthal spoke with Venier, who ( 1) did " not feel
that there [ was] an inappropriate relationship" between Breitung and Phillips, and ( 2) reported
Breitung' s desire to live with Phillips and his wife, whom Breitung " fe[ lt] would be a great
support." CP at 637.
On September 30, Breitung' s mother filed an objection to Breitung' s placement with the
Phillips family. Breitung' s mother expressed concerns about Breitung' s relationship with
Phillips given that Breitung had " told people of dreams involving [ Phillips]" and that Breitung
wanted to spray perfume in his office so that he would think of her. CP at 673. In response, the
juvenile court ordered Breitung to remain in DSHS custody and scheduled a hearing for
November 3.
On October 15, Rosenthal told Breitung that she would approve Breitung' s placement
with the Phillips family. Breitung moved in with the Phillips family the next day. Shortly
thereafter, Phillips started touching Breitung inappropriately while she was making dinner at the
Phillips' home; Breitung ignored him. A few days later, while watching a movie, Phillips started
touching Breitung and tried to kiss her; she went back to her room and felt " super awkward"
because she wanted to stay with the Phillips family and did not " want [ her placement] to be
ruined. CP at 710. The next time Phillips tried to kiss Breitung, she did not turn away. After
that incident, they kissed " every now and again." CP at 710. And it was not before long before
they " just ended up having sex." CP at 711.
5 No. 45123 -9 -II
On November 3, the juvenile court held a hearing to address Breitung' s mother' s
contested placement of Breitung with the Phillips family. Breitung' s mother expressed concerns
about Breitung' s placement with the Phillips and opined that Breitung should be in a more
neutral setting" where she did not have a lot of confused emotions and an unhealthy attachment
to the placement. CP at 539. Rosenthal did not mention Venier' s concerns about Breitung' s
placement with Phillips; instead, she recommended the Phillips placement. Breitung told the
court that things were " going really well" with the Phillips family and that this placement was
the " best one" she had ever had. CP at 440. The juvenile court stated it had no concerns about
the placement, noting that while there is always a risk of improper attachment between an older
foster child and a foster parent, such risk was minimal. The juvenile court signed and entered the
order placing Breitung with the Phillips family.
On November 16, Phillips' wife called Rosenthal, informing Rosenthal that she and
Phillips would be filing for divorce and that Phillips would be moving out of the home because
Phillips had told her that he was having an affair. Breitung then told Phillips' wife about her
sexual relationship with Phillips. On November 24, Breitung disclosed her sexual relationship
with Phillips to her Celebrate Recovery group. The next day, Breitung moved out of the
Phillips' home. On November 25, Phillips' wife reported child sexual abuse to DSHS, and
Rosenthal placed Breitung back into the SKCYS group home. On November 30, CCI terminated
Phillips from his position as counselor.
6 No. 45123 -9 -II
III. LITIGATION
Breitung sued the State of Washington for negligent placement and negligent failure to
protect her; she also sued CCI for negligent hiring, training, and supervision, negligent failure to
protect, and corporate negligence. CCI moved for summary judgment on grounds that ( 1) there
was no evidence that CCI was negligent in hiring, training, or supervising Phillips; and ( 2) CCI
owed no duty to monitor Phillips' conduct outside the scope of his employment. The next
month, Breitung amended her complaint to name DSHS as a party, alleging . negligent
investigation and negligent placement.
Responding to CCI' s motion for summary judgment, Breitung argued it was foreseeable
that an inappropriate sexual relationship would develop between her and Phillips. In support,
Breitung submitted a declaration from Sharon Fenton, Clinical Director of Assessment and
Treatment Associates, which stated that ( 1) chemical dependency agencies should be aware of 3 boundary' issues " where chemical dependency professionals' ability to empathize and to
identify with clients can lead to improper relationships and conflicts of interest; ( 2) CCI should
not have permitted Phillips to encourage or to direct clients to a separate Celebrate Recovery
program because it could create a conflict of interest; and ( 3) CCI violated the standard of care in
supervising and retaining Phillips and terminating Breitung' s treatment instead of terminating
Phillips' employment for disclosing personal information about Breitung to his wife and for
admitted inappropriate social interaction with Breitung outside the counselor - patient relationship.
Breitung also submitted excerpts of Beitler' s deposition, in which Beitler stated she had reported
3CPat1011.
7 No. 45123 -9 -II
to CCI her concerns of an " inappropriate relationship" between Phillips and Breitung. CP at
270.
DSHS moved for partial summary judgment asserting ( 1) it was statutorily immune for
its placement recommendations to the juvenile court given that the juvenile court had ordered
Breitung' s placement with the Phillips family; ( 2) the juvenile court' s placement decision was a
superseding, intervening act that severed DSHS' s liability; and ( 3) the doctrine of judicial
estoppel prevented Breitung from recovering damages in this lawsuit for the placement decision.
Breitung responded to DSHS' s motion for partial summary judgment asserting that
Rosenthal' s investigation of the Phillips family was negligent, and that Rosenthal had failed to
inform the juvenile court about her conversations with Venier in which Venier had expressed
concerns about Breitung' s and Phillips' relationship. Breitung also submitted the declaration of
Barbara Stone, statewide director of all foster and childcare licensing in DSHS' s Children' s
Administration. Stone had reviewed Breitung' s DSHS file and opined that DSHS' s placement of
Breitung in the Phillips' home violated state law and DSHS' own policies. Stone .stated that a
child' s expressed preference for a particular placement does not negate DSHS' s duty to
investigate. Stone also opined that Rosenthal' s home study of Phillips did not comply with
DSHS policies because she ( Rosenthal) did not complete her placement checklist, did not fill out
a placement agreement at the time of placement, and did not investigate " boundary issues"
between Phillips and Breitung, such as Phillips' giving Breitung his personal cell phone number.
CP at 744. Stone further declared that although Rosenthal recognized an ethical conflict for
Phillips to have custody of Breitung, Rosenthal did not personally check with CCI about this
conflict, relying instead on Philips' representation that ethical conflict was not a problem.
8 No. 45123 -9 -II
At the summary judgment hearing, the superior court orally ruled that the main issue with
Breitung' s claim against CCI was foreseeability: Because Breitung was placed with the Phillips
family at her request, Phillips' subsequent sexual conduct was not foreseeable by CCI, especially
where CCI had terminated Phillips' counseling relationship with Breitung two months before the
sexual contact occurred at Phillips' home. Finding no evidence of foreseeability, the superior
court granted CCI' s motion for summary judgment. The superior court also orally ruled that ( 1) 5954
RCW 4.24. has retroactive effect under these circumstances, which provided DSHS with
immunity from Breitung' s lawsuit; ( 2) the juvenile court' s order placing Breitung with Phillips
also cut off DSHS' s liability; and ( 3) Breitung failed to present an issue of material fact to
warrant a jury trial. The superior court entered a written order granting DSHS' s motion for
partial summary judgment, dismissing all of Breitung' s claims against DSHS arising from
Breitung' s placement in the Phillips' home. The superior court also granted CCI' s motion for
5 summary judgment, dismissing all of Breitung' s claims against CCI with prejudice. Breitung
timely appeals.
4 The record incorrectly references "[ RCW 4.] 24. 959." The correct citation is RCW 4. 24. 595. See Report of Proceedings at 51.
5 Based on the parties' stipulation, the trial court stayed the following additional claims pending Breitung' s appeal: the State of Washington' s negligent failure to protect Breitung, negligent investigation into reports of abuse and neglect by Breitung' s parents, and negligent placement of Breitung with her mother.
9 No. 45123 -9 -II
ANALYSIS
I. SUMMARY JUDGMENT FOR CCI
Breitung argues that the superior court erred in granting CCI' s motion for summary
judgment because ( 1) CCI owed Breitung a legal duty to prevent foreseeable harm, and ( 2)
Breitung presented sufficient evidence below to establish a genuine issue of material fact about
the foreseeability of Phillips' sexual abuse to overcome dismissal of her negligent hiring, 6 supervision, and retention claims. We disagree.
A. Standard of Review
We review summary judgment de novo, engaging in the same inquiry as the trial court
and viewing the facts and any reasonable inferences therefrom in the light most favorable to the
non - moving party, here, Breitung. Associated Petrol. Prods., Inc. v. Nw. Cascade, Inc., 149 Wn.
App. 429, 433 -34, 203 P. 3d 1077 ( 2009). Summary judgment is proper when no genuine issue
of material fact remains and the moving party is entitled to judgment as a matter of law.
Diamond B Constructors, Inc. v. Granite Falls Sch. Dist., 117 Wn. App. 157, 160 -61, 70 P. 3d
966 ( 2003). " A genuine issue of material fact exists where reasonable minds could differ on the
facts controlling the outcome of the litigation." Ranger Ins. Co. v. Pierce County, 164 Wn.2d
545, 552, 192 P. 3d 886 ( 2008). To defeat summary judgment, the non - moving party must assert
specific facts and cannot rely on mere speculation. Seven Gables Corp. v. MGM/UA Entm' t Co.,
106 Wn.2d 1, 13, 721 P. 2d 1 ( 1986).
6 Breitung does not specifically challenge the superior court' s ruling on her negligent hiring, retention, and supervision claims individually on appeal, instead, she conflates negligent hiring, supervision, and retention and " collectively refers to [ her claims as] negligent supervision" to
challenge the issues of duty, foreseeability and proximate cause. Br. of Appellant at 23 n.9.
10 No. 45123 -9 -II
B. Negligent Hiring, Supervision, and Retention Claims
Breitung argues that CCI owed her a legal duty to prevent foreseeable harm and that she
presented sufficient evidence to establish a genuine issue of material fact as to the foreseeability
of Phillips' sexual abuse to overcome summary judgment on her negligent hiring, supervision,
and retention claims. This argument fails.
It is well settled that an essential element in any negligence action is the existence of a
legal duty that the defendant owes to the plaintiff. Christensen v. Royal Sch. Dist. No. 160, 156
Wn.2d 62, 66, 124 P. 3d 283 ( 2005). An individual or entity generally has no legal duty to
prevent a third party from intentionally harming another unless a special relationship exists
between the defendant and either the third party or the foreseeable victim of the third party' s
conduct. Niece v. Elmview Grp. Home, 131 Wn.2d 39, 43, 929 P. 2d 420 ( 1997). Foreseeability
limits the scope of duty owed to a plaintiff. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307
1989). A plaintiff' s harm must be reasonably perceived as within the general field of danger
that should have been anticipated. Id. A plaintiff alleging sexual misconduct must show that
such conduct was " reasonably foreseeable," and such foreseeability must be based on more than
speculation or mere conjecture. Kaltreider v. Lake Chelan Cmty. Hosp., 153 Wn. App. 762, 766-
67, 224 P. 3d 808 ( 2009). In general, foreseeability is a question for the jury unless the
circumstances of the inquiry are "' so highly extraordinary or improbable as to be wholly beyond
the range of expectability. "' Shepard v. Mielke, 75 Wn. App. 201, 206, 877 P. 2d 220 ( 1994)
quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 ( 1953)).
11 No. 45123 -9 -II
1. Negligent hiring; negligent retention
An employer may be liable to a third person for negligence in hiring or retaining an
employee who is incompetent or unfit. Peck v. Siau, 65 Wn. App. 285, 288, 827 P. 2d 1108
1992). To prove negligent hiring or retention, a plaintiff must demonstrate that ( 1) the employer
knew or, in the exercise of ordinary care, should have known of its employee' s unfitness at the
time of hiring or retaining such individual; and ( 2) the negligently hired or retained employee
proximately caused the plaintiff' s injuries. Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 252-
53, 868 P. 2d 882 ( 1994); Peck, 65 Wn. App. at 288 -89. Negligent hiring and negligent retention
claims share the same elements; the difference is the timing of the employer' s alleged
negligence. Peck, 65 Wn. App. at 288. With negligent hiring, the negligence occurs at the time
of hiring; with negligent retention, the negligence occurs during the course of employment. Id. Rucshner7
Breitung mistakenly relies on for the proposition that CCI' s negligent hiring of
Phillips " enabled or facilitated" the foreseeable consequence of his pattern of violating ethical
boundaries and engaging in sexual relations with her because the facts in Rucshner are 8 distinguishable. Br. of Appellant at 32 ( emphasis omitted). In Ruschner we held that a
residential security system company did not perform its contractual duty to conduct a
background check before hiring an employee with a criminal record, who raped a girl when
7 Ruschner v. ADT Sec. Sys. Inc., 149 Wn. App. 665, 686 -88, 204 P.3d 271 ( 2009).
8 In Ruschner, a security company hired Michael Robinson, who raped a 14- year -old after he met her making sales calls for the company at her home. Ruschner, 149 Wn. App. at 668. The
security company had a contractual duty to perform criminal background checks on its employees and had failed to conduct a criminal background check on Robinson that would have revealed his criminal history of first degree criminal impersonation, third degree theft, possession of drug paraphernalia, and possession of marijuana. Id. at 673, 682.
12 No. 45123 -9 -II
making a sales call to her home. Ruschner, 149 Wn. App. at 681, 682. We reversed the superior
court' s grant of summary judgment to the security company and reinstated the plaintiff' s
negligent hiring action. Id. at 688. Here, in contrast, Breitung failed to demonstrate that CCI
knew or should have known of Phillips' unfitness at the time it hired him.
On the contrary, the record shows CCI verified that Phillips was a certified counselor, a
qualification required for the job. Further, CCI' s director, James, screened Phillips' job
application materials, interviewed Phillips, and contacted Phillips' references. One of the
conditions of CCI employment was passing a criminal background check to ensure the job
applicant did not have any charges for child abuse or solicitation of minors. Unlike the company
in Ruschner, which completely failed to conduct a background check, CCI did run a background
check on Phillips, which revealed only a 1995 misdemeanor conviction for attempted possession
of stolen property. At the time of hiring, none of CCI' s inquiries revealed any hint of Phillips'
propensity for sexual abuse of minor. Thus, even taking the evidence in the light most favorable
to Breitung, the record does not support that CCI knew or should have known about Phillips'
unfitness to serve as a juvenile counselor at the time it hired him. We hold, therefore, that the
superior court did not err in dismissing Breitung' s negligent hiring claim on summary judgment.
Breitung bases her negligent retention claim on CCI' s failure to terminate Phillips'
employment when CCI learned that Phillips had divulged confidential information about
Breitung to his wife. But even taken in the light most favorable to Breitung, the facts she
presented did not satisfy the elements required to prove her negligent .retention claim. The
record shows that during the course of Phillips' employment, CCI had no reason to know about
his propensity for sexual abuse. On the contrary, during the course of his employment, CCI
13 No. 45123 -9 -II
learned only that Phillips had inappropriately shared confidential information about Breitung to
his wife in August. And CCI responded to this impropriety by ( 1) filing a critical incident report,
2) asking Phillips to provide a chronology of events around his relationship with Breitung, ( 3)
requesting that Breitung transfer to another treatment agency, ( 4) reporting the incident to the
Department of Health, ( 5) telling Phillips it had informed Beitler that she could file a complaint
against him in her capacity as Breitung' s temporary guardian, and ( 6) ordering Phillips not to
have any further contact with Breitung, her caregivers, or any other individuals involved in her care and treatment. At that point in August, CCI had no reason to foresee that Phillips would
disobey this order, that Breitung would later move in with Phillips, or that he would engage in a
sexual relationship with Breitung in his home. But in November, when CCI later learned about
Phillips' sexual relationship with Breitung, CCI promptly terminated Phillips from his position
as counselor.
Even taken in the light most favorable to Breitung, her evidence failed to show that CCI
knew or should have known about Phillips' unfitness to serve as a juvenile counselor before
hiring him or during his period of employment. We hold, therefore, that the superior court did
not err in dismissing Breitung' s negligent hiring and retention claims on summary judgment.
2. Negligent supervision
Breitung further argues that ( 1) CCI was aware Phillips had " violated therapeutic
boundaries" before it discharged her as a client; and ( 2) therefore, Phillips' later sexual abuse of
her, after her discharge, was foreseeable. Br. of Appellant at 25. Again, even taking the
evidence in the light most favorable to Breitung, she does not show that Phillips' later sexual
abuse of her, after CCI severed their counseling relationship, was foreseeable.
14 No. 45123 -9 -II
A negligent supervision claim requires showing that ( 1) an employee acted outside the
scope of his or her employment; ( 2) the employee presented a risk of harm to other employees;
3) the employer knew, or should have known in the exercise of reasonable care, that the
employee posed a risk to others; and ( 4) the employer' s failure to supervise was the proximate
cause of injuries to other employees. Briggs v. Nova, 135 Wn. App. 955, 966 -67, 147 P. 3d 616
2006) ( citing Niece, 131 Wn.2d at 48 -49), aff'd, 166 Wn.2d 794, 213 P. 3d 910 ( 2009). Given
Breitung' s argument, we focus on the foreseeability factor; we conclude that the circumstances
in this case were "' so highly extraordinary ' that they were "' beyond the range of
expectability, "' which does not create an issue for the jury. Shepard, 75 Wn. App. at 206
quoting McLeod, 42 Wn.2d at 323).
Citing Smith9 and Kaltreider, CCI contends that an employee' s sexual conduct is not
reasonably foreseeable and an employer does not have a duty to guard against the possibility that
an employee is an undisclosed sexual predator. The Smith and Kaltreider plaintiffs were both
victims of sexual abuse in a hospital: In Smith, a nursing assistant engaged in sexual behavior
with a patient in the psychiatric unit; in Kaltreider, a registered nurse engaged in sexual behavior
with a patient in an alcohol dependency unit. Smith, 144 Wn. App. at 540 -41; Kaltreider, 153,
Wn. App. at 764. The Smith court held that the employee' s sexual encounter with a patient in
the workplace was legally insufficient to support a cause of action for negligent supervision,
absent a showing that the employer knew or should have known of the employee' s potential for
sexual abuse. Smith, 144 Wn. App. at 544. The Kaltreider court held that the employee' s
9 Smith v. Sacred Heart Med. Ctr., 144 Wn. App. 537, 184 P. 3d 646 ( 2008).
15 No. 45123 -9 -II
actions were not foreseeable absent any evidence that the employee' s conduct was known or
reasonably foreseeable to the employer. Kaltreider, 153 Wn. App. at 767.
Like the Smith and Kaltreider plaintiffs, Breitung presented no evidence of the
foreseeability of Phillips' later sexual conduct with her in his home, well after CCI terminated
their counseling relationship. Rather, she provided Bell' s critical incident report, filed with CCI
on August 14, which included " concerns" about Phillips' disclosing confidential information
about Breitung to his wife and Beitler' s expressed concern about Phillips' relationship with
Breitung. CP at 950. Similarly, in her deposition, Beitler testified only that she had expressed 10 concerns " to CCI about an " inappropriate relationship" between Phillips and Breitung, such as
Phillips' disclosing Breitung' s confidential information to his wife and that Breitung had been
spraying perfume in Philips' office, which behavior was " not normal for an older man ' who
was "' supposed to be [ Breitung' s] counselor.' CP at 947 ( emphasis omitted).
Breitung also presented the deposition of Fenton, Clinical Director of Assessment and
Treatment Associates. Fenton testified in general that ( 1) chemical dependency agencies should 11 be aware of "` boundary' issues " between chemical dependency professional and their clients
because these can lead to improper personal relationships and conflicts of interest; ( 2) CCI
should not have permitted Phillips to encourage or' to direct clients to a separate Celebrate
Recovery program because it could create a conflict of interest; ( 3) it is not the best practice in
substance abuse treatment to assign male counselors to adolescent girls and, if so, such agencies
should train and monitor employees to avoid giving out their personal phone numbers, to restrict
10 CP at 948.
11CPat1011.
16 No. 45123 -9 -II
their contact with clients outside the agency, and to recognize flirtatious behavior; ( 4) CCI
violated the standard of care in supervising and retaining Phillips when it terminated Breitung' s
treatment instead of terminating Phillips' employment after he admitted . having disclosed
personal information about Breitung to his wife and admitted to engaging in " inappropriate
12 conduct " with Breitung —Phillips' giving Breitung his cell phone number, providing her with
transportation, introducing her to his wife, and inviting her to his church fellowship group; and
5) a counselor' s duty to a client extends beyond termination of the client because the
Washington Administrative Code ( WAC) prohibits health care providers from having sexual 13 relationships, with clients for two years after terminating a therapy relationship.
Most of Fenton' s points emphasized the potential for an improper relationship to develop
between a male substance abuse counselor and an adolescent female client and proposed
appropriate training to minimize such problems. But none of her points showed ( 1) how CCI' s
supervision of Phillips could have prevented his later sexual conduct with Breitung at his home,
long after CCI discharged Breitung as a client and forbade Phillips from having any further
contact with her; or ( 2) how Phillips' later sexual conduct with Breitung was foreseeable.
Viewing the evidence in the light most favorable to Breitung, we hold that she did not
present sufficient evidence to create a genuine issue of material fact about whether Phillips' later
12 CP at 1012.
13 WAC 246 -16- 100( 3) provides that a health care provider " shall not engage, or attempt to engage, [ in sexual misconduct] with a former ... client ... within two years after the provider - client patient / relationship ends." The definition of a " health care provider" for purposes of this regulation includes chemical dependency professionals, mental health counselors, mental health counselor associates, social workers, and social work associates. WAC 246 -16 -020; former RCW 18. 130. 040( 2)( a)( xi), (xvi) (2009).
17 No. 45123 -9 -II
sexual abuse of Breitung was foreseeable or how this abuse was connected to its earlier
supervision of him when he was her ,CCI counselor. We hold, therefore, that the superior court
did not err in dismissing Breitung' s negligent supervision claim on summary judgment.
II. PARTIAL SUMMARY JUDGMENT FOR DSHS
Breitung next argues that the superior court erred in granting partial summary judgment
to DSHS because ( 1) the juvenile court' s November 2009 placement order was not a superseding
cause that absolved DSHS from liability, ( 2) RCW 4. 24. 595 does not immunize DSHS from
Breitung' s negligent investigation claim, and ( 3) Breitung was not judicially estopped from
pursuing her sexual abuse claim based on her November 2009 statements to the juvenile court
asking to be placed with the Phillips family. DSHS responds that it is liable for negligent
investigation only if Breitung produced admissible evidence that DSHS proximately caused the
allegedly harmful placement and that DSHS failed to disclose a material fact to the juvenile
court. We agree with DSHS that Breitung did not present evidence to show that DSHS' s
allegedly negligent investigation was the proximate cause of her placement. Even taking the
facts in the light most favorable to Breitung, we hold that she failed to establish a causal
connection between the information DSHS brought to the dependency court and Phillips' sexual
abuse of her after the court placed her with his family. Thus, we do not address her separate
immunity and judicial estoppel arguments.
A claim for negligent investigation arises when the State conducts a biased or incomplete
investigation that results in a harmful placement decision. M.W v. Dep' t of Soc. & Health Servs.,
149 Wn. 2d 589, 591, 70 P. 3d 954 ( 2003). To prevail on a claim for negligent investigation, the
claimant must prove that the allegedly faulty investigation was the proximate cause of the
18 No. 45123 -9 -II
harmful placement. Petcu v. State, 121 Wn. App. 36, 56, 86 P. 3d 1234 ( 2004). In a negligent
investigation claim, proximate cause includes two elements: cause in fact and legal cause.
Ruschner, 149 Wn. App. at 686. Cause in fact refers to the actual, " but for," cause of injury,
which involves a determination of some physical connection between an act and an injury that is
generally left to the jury. Id. Legal causation rests on policy considerations about how far the
consequences of the defendant' s acts should extend; and it focuses on whether, as a matter of
policy, the connection between the ultimate harm and the defendant' s act is too remote or
insubstantial to impose liability. Id. at 687. In a lawsuit based on negligent investigation, a
caseworker may be legally responsible for a child' s placement if the court has been deprived of a
material fact as a result of the caseworker' s faulty investigation. See Tyner v. Dep' t of Soc. &
Health Servs., 141 Wn.2d 68, 86, 1 P. 3d 1148 ( 2000). Otherwise, court intervention operates as
a superseding intervening cause that cuts off the caseworker' s and his or her agency' s liability.
Tyner, 141 Wn.2d at 88 ( no- contact order operates as superseding intervening cause, cutting off
agency' s liability).
Breitung argues that the November 2009 court placement order was not a superseding
cause that absolved DSHS from liability because she presented evidence that her DSHS
caseworker, Rosenthal, withheld material information from the court, namely that Breitung' s
new mental health counselor, Venier, had expressed concerns about Breitung' s placement with
Phillips. Stone, who testified in support of Breitung' s summary judgment motion, had reviewed
Breitung' s DSHS file and opined that DSHS' s proposed placement of Breitung in the Phillips'
home violated state law and DSHS' s own policies. Stone further opined that Rosenthal' s home
study of the Phillips family was not in compliance with DSHS policies because Rosenthal did
19 No. 45123 -9 -II
not complete her placement checklist, did not .fill out a placement agreement at the time of
placement, and did not investigate Phillips' patient " counselor - boundary issues." CP at 744.
Stone stated that Rosenthal recognized it was an ethical conflict for Phillips to have custody of
Breitung, that Rosenthal did not personally check with CCI about the conflict, and that she
instead relied on Phillips' representation that it was not a problem. Further, although Venier had
told Rosenthal in September that she was concerned about Breitung' s relationship with Phillips
and Breitung' s desire to live with Phillips and his wife, Rosenthal did not relate to the court any
of her conversation with Venier. Stone also stated that a child' s expressed preference for a
particular placement does not negate DSHS' s duty to investigate.
The record shows, however, that DSHS' s concerns about Phillips were brought to the
juvenile court' s attention.14 The record does not show that DSHS withheld from the juvenile
court any material fact it had gathered from its investigation of the Phillips family. In the end,
there were few placement options available for Breitung, and the juvenile court placed Breitung
with the Phillips family. Accordingly, there was no genuine issue of material fact about whether
Rosenthal' s allegedly negligent investigation proximately caused Breitung' s placement with the
14 For example, the juvenile court was aware of Breitung' s mother' s objection to Breitung' s placement with the Phillips family, which matter it addressed at the November 3 hearing. Breitung' s mother' s objection included: Breitung' s telling people that she had dreams about Phillips and wanted to spray perfume in his office so he could think of her; her ( Breitung' s mother' s) belief that Breitung had an unhealthy attachment to Phillips; and her ( Breitung' s mother' s) opinion that placing Breitung with him and his wife would not be stable and would lead to problems. Rosenthal told the juvenile court that she did not see any particular attachment between Breitung and Phillips; but Rosenthal did not tell the court that Venier had expressed concerns about Breitung' s placement with Phillips. Nevertheless, the court had already heard similar concerns from Breitung' s mother and had addressed them at the hearing.
20 No. 45123 -9 -II
Phillips family. We hold that the superior court did not err in ruling that the November 2009
court placement order was a superseding cause that absolved DSHS from potential liability.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur: