IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAIAH RIDEOUT and JOEY ) No. 78898-1-1 RIDEOUT, husband and wife, and ) marital community composed thereof, ) DIVISION ONE ) Appellant, ) UNPUBLISHED OPINION ) v. ) ) CITY OF BELLINGHAM and DAVID ) ALAN FRICK, ) ) Respondent. ) ) FILED: October 21, 2019
HAZELRIGG-HERNANDEZ, J. — Michaiah and Joey Rideout appeal the trial
court's grant of summary judgment and dismissal of all claims against the City of
Bellingham. They argue only the claims of vicarious liability were before the court,
thus the court erred in dismissing the direct liability claims. They further argue that
disputes of material fact exist as to the City of Bellingham's vicarious liability for
the tortious conduct of their employee and as to the City of Bellingham's direct
negligence. We affirm.
FACTS
David A. Frick was employed by the City of Bellingham (City) as a recreation
instructor at the Arne Hanna Aquatic Center (Aquatic Center). Frick had worked
at the Aquatic Center from 1996 to 2016. Frick's duties included lifeguarding, NO. 78898-1-1/2
leading water aerobics classes, and swimming lessons. Frick was also tasked with
opening the pool in the morning, verifying lifeguard staffs timesheets, and
purchasing first aid and safety equipment.
Frick was arrested on suspicion of possession of child pornography on
August 4, 2016. During a police interview subsequent to Frick's arrest, he admitted
that he had been secretly video recording his coworkers while changing into and
out of their swimsuits at work. Frick captured his recordings by hiding a cell phone
with a camera in a locked locker in the staff changing room. Bellingham police
were able to identify the victims in these recordings when they seized Frick's
computer devices and phone.
It was established that Michaiah Rideout was one of the victims of Frick's
secret recordings at work. The City was notified of Frick's conduct and these
recordings on August 5, 2016, one day after his arrest. Frick's superiors and
coworkers were shocked by the news. During Frick's twenty-year employment at
the Aquatic Center no one had ever complained about inappropriate behavior by
him. The only complaint recalled by the Aquatic Center manager, Lori Johnson,
was when a patron indicated that Frick told jokes during water aerobics class. Only
two fellow employees recalled seeing Frick with a cell phone at work. Michaiah
and Joey Rideout(collectively the Rideouts)sued the City in April of 2017, alleging
the City was vicariously liable for Frick's conduct, the City had created a hostile
work environment by failing to protect employees from Frick and that the City
breached a duty to inspect for hazardous conditions.
2 No. 78898-1-1/3
In December 2017, the City moved for summary judgment dismissal of the
plaintiffs' claims. The City's motion denied vicarious liability for Frick's conduct
since it was outside the scope of his employment and further denied that they had
created a hostile work environment. The Rideouts filed a response brief in
February 2018 which clarified the negligent supervision claim, however they failed
to assert any contrary evidence regarding a dispute of fact for the vicarious liability
claims. The City's reply brief expressly addressed the negligent supervision claim
and again asked the trial court to dismiss the City from the suit.
At oral argument on the summary judgment motion, both parties discussed
the vicarious liability, hostile work environment, and negligent supervision claims.
Just prior to the judge's ruling, the Rideouts asserted that they had unresolved
direct negligence claims against the City under Restatement (Second) of Torts
Section 317 (American Law Institute 1965). The trial court judge granted the
motion for summary judgment on all claims and dismissed the City from the suit.
The Rideouts continued to argue that the City had not addressed all claims, but
the City pointed out that the foreseeability element was key to all claims and that
had been thoroughly analyzed. The trial court affirmed its ruling on summary
judgment on all claims and the City's dismissal from the suit. The Rideouts were
later granted summary judgment on their claims against Frick in a separate
hearing. The Rideouts appeal the trial court's order granting the City's summary
judgment motion on all claims and dismissal from the suit.
3 No. 78898-1-1/4
DISCUSSION
The court properly dismissed all claims against the City.
All claims against the City were properly before the trial court, despite the
Rideout's argument that the City's motion only addressed claims based on
vicarious liability. The record of oral argument on the motion clearly shows that
the City discussed all of the claims brought by the Rideouts that they characterize
as direct negligence by the City. The City stated that "it's easiest to divide up the
claims" in reference to those based in vicarious and direct liability theories and
then argued as to each of the claims set out in the Rideout's complaint. The
Rideouts assert that only the claims grounded in vicarious liability were before the
court.
The Rideouts rely on White v. Kent Medical Center, Inc. in support of their
position. 61 Wn. App. 163, 810 P.2d 4, 10 (1991). In White, the party moving for
summary judgment raised new issues in its rebuttal materials that had not been
raised in the initial summary judgment motion. Id. at 168. Unlike White, the City's
arguments here were consistent from the outset that no issues of material fact exist
regarding foreseeability of Frick's actions or his alleged status as a manager or
supervisor at the Aquatic Center. As discussed below, foreseeability is a key
element of each of the claims alleged by the Rideouts.
The City's memorandum in support of its motion for summary judgement
addressed the direct negligence claims stating, "there is no evidence showing that
the City authorized, knew, or should have known of Frick's alleged harassing
behavior against his coworkers or that the City failed to take prompt and adequate
4 Na. 78898-1-1/5
remedial action." The City again focused on the direct negligence claims later in
that same memorandum reiterating that "there is no evidence that the City
authorized, knew, or should have known about Frick's behavior." The City's
memorandum explicitly pointed out that the Rideouts acknowledged the lack of
foreseeability, "Plaintiff Micaiah [sic] Rideout said 'absolutely not' when asked if
there were any signs that Frick was capable of such behavior." Each of these
arguments in support of the City's motion is an explicit reference to foreseeability;
one of the essential elements of a claim for direct liability for an employer under
the Restatement(Second) of Torts Section 317. All claims against the City were
properly before the trial court in the summary judgment motion and the parties had
an opportunity to argue their respective positions at the hearing.
II. There was no genuine issue of material fact as to the City's alleged
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAIAH RIDEOUT and JOEY ) No. 78898-1-1 RIDEOUT, husband and wife, and ) marital community composed thereof, ) DIVISION ONE ) Appellant, ) UNPUBLISHED OPINION ) v. ) ) CITY OF BELLINGHAM and DAVID ) ALAN FRICK, ) ) Respondent. ) ) FILED: October 21, 2019
HAZELRIGG-HERNANDEZ, J. — Michaiah and Joey Rideout appeal the trial
court's grant of summary judgment and dismissal of all claims against the City of
Bellingham. They argue only the claims of vicarious liability were before the court,
thus the court erred in dismissing the direct liability claims. They further argue that
disputes of material fact exist as to the City of Bellingham's vicarious liability for
the tortious conduct of their employee and as to the City of Bellingham's direct
negligence. We affirm.
FACTS
David A. Frick was employed by the City of Bellingham (City) as a recreation
instructor at the Arne Hanna Aquatic Center (Aquatic Center). Frick had worked
at the Aquatic Center from 1996 to 2016. Frick's duties included lifeguarding, NO. 78898-1-1/2
leading water aerobics classes, and swimming lessons. Frick was also tasked with
opening the pool in the morning, verifying lifeguard staffs timesheets, and
purchasing first aid and safety equipment.
Frick was arrested on suspicion of possession of child pornography on
August 4, 2016. During a police interview subsequent to Frick's arrest, he admitted
that he had been secretly video recording his coworkers while changing into and
out of their swimsuits at work. Frick captured his recordings by hiding a cell phone
with a camera in a locked locker in the staff changing room. Bellingham police
were able to identify the victims in these recordings when they seized Frick's
computer devices and phone.
It was established that Michaiah Rideout was one of the victims of Frick's
secret recordings at work. The City was notified of Frick's conduct and these
recordings on August 5, 2016, one day after his arrest. Frick's superiors and
coworkers were shocked by the news. During Frick's twenty-year employment at
the Aquatic Center no one had ever complained about inappropriate behavior by
him. The only complaint recalled by the Aquatic Center manager, Lori Johnson,
was when a patron indicated that Frick told jokes during water aerobics class. Only
two fellow employees recalled seeing Frick with a cell phone at work. Michaiah
and Joey Rideout(collectively the Rideouts)sued the City in April of 2017, alleging
the City was vicariously liable for Frick's conduct, the City had created a hostile
work environment by failing to protect employees from Frick and that the City
breached a duty to inspect for hazardous conditions.
2 No. 78898-1-1/3
In December 2017, the City moved for summary judgment dismissal of the
plaintiffs' claims. The City's motion denied vicarious liability for Frick's conduct
since it was outside the scope of his employment and further denied that they had
created a hostile work environment. The Rideouts filed a response brief in
February 2018 which clarified the negligent supervision claim, however they failed
to assert any contrary evidence regarding a dispute of fact for the vicarious liability
claims. The City's reply brief expressly addressed the negligent supervision claim
and again asked the trial court to dismiss the City from the suit.
At oral argument on the summary judgment motion, both parties discussed
the vicarious liability, hostile work environment, and negligent supervision claims.
Just prior to the judge's ruling, the Rideouts asserted that they had unresolved
direct negligence claims against the City under Restatement (Second) of Torts
Section 317 (American Law Institute 1965). The trial court judge granted the
motion for summary judgment on all claims and dismissed the City from the suit.
The Rideouts continued to argue that the City had not addressed all claims, but
the City pointed out that the foreseeability element was key to all claims and that
had been thoroughly analyzed. The trial court affirmed its ruling on summary
judgment on all claims and the City's dismissal from the suit. The Rideouts were
later granted summary judgment on their claims against Frick in a separate
hearing. The Rideouts appeal the trial court's order granting the City's summary
judgment motion on all claims and dismissal from the suit.
3 No. 78898-1-1/4
DISCUSSION
The court properly dismissed all claims against the City.
All claims against the City were properly before the trial court, despite the
Rideout's argument that the City's motion only addressed claims based on
vicarious liability. The record of oral argument on the motion clearly shows that
the City discussed all of the claims brought by the Rideouts that they characterize
as direct negligence by the City. The City stated that "it's easiest to divide up the
claims" in reference to those based in vicarious and direct liability theories and
then argued as to each of the claims set out in the Rideout's complaint. The
Rideouts assert that only the claims grounded in vicarious liability were before the
court.
The Rideouts rely on White v. Kent Medical Center, Inc. in support of their
position. 61 Wn. App. 163, 810 P.2d 4, 10 (1991). In White, the party moving for
summary judgment raised new issues in its rebuttal materials that had not been
raised in the initial summary judgment motion. Id. at 168. Unlike White, the City's
arguments here were consistent from the outset that no issues of material fact exist
regarding foreseeability of Frick's actions or his alleged status as a manager or
supervisor at the Aquatic Center. As discussed below, foreseeability is a key
element of each of the claims alleged by the Rideouts.
The City's memorandum in support of its motion for summary judgement
addressed the direct negligence claims stating, "there is no evidence showing that
the City authorized, knew, or should have known of Frick's alleged harassing
behavior against his coworkers or that the City failed to take prompt and adequate
4 Na. 78898-1-1/5
remedial action." The City again focused on the direct negligence claims later in
that same memorandum reiterating that "there is no evidence that the City
authorized, knew, or should have known about Frick's behavior." The City's
memorandum explicitly pointed out that the Rideouts acknowledged the lack of
foreseeability, "Plaintiff Micaiah [sic] Rideout said 'absolutely not' when asked if
there were any signs that Frick was capable of such behavior." Each of these
arguments in support of the City's motion is an explicit reference to foreseeability;
one of the essential elements of a claim for direct liability for an employer under
the Restatement(Second) of Torts Section 317. All claims against the City were
properly before the trial court in the summary judgment motion and the parties had
an opportunity to argue their respective positions at the hearing.
II. There was no genuine issue of material fact as to the City's alleged
vicarious liability for Frick's tortious conduct.
On appeal of an order granting summary judgment, this court reviews de
novo whether "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law." CR 56(c); see Ramer Ins. Co. v. Pierce County, 164 Wn.2d 545,
552, 192 P.3d 886(2008). A "material fact" is "one upon which the outcome of the
litigation depends." Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152(1977)
The City points out that the Rideouts' briefing does not challenge the City's
denial of vicarious liability. In the Rideouts' response to summary judgment, they
explicitly state "[p]laintiffs submit questions of fact exist under Restatement
5 No. 78898-1-1/6
(Second) of Torts § 317 as to COB's direct liability, as opposed to vicarious
liability." Both the vicarious liability of the City and any independent direct
negligence tort claim of a hostile work environment hinge on whether Frick's
actions were foreseeable. The Rideouts did not advance any genuine issue of
material fact about the foreseeability of Frick's conduct and their challenge fails.
The Rideouts did raise a general concern of video voyeurism within public pools,
but that is unresponsive to the City's foreseeability arguments. The Rideouts went
so far as to undercut their own assertions about a generalized concern within the
pool industry arguing "[Ned COB adopted a policy prohibiting recording devices at
Arne Hanna, they could face liability for Frick's violation of that policy." However,
the Rideouts' position is in tension with state law.
Washington case law is clear that unless an employee's sexual misconduct
was foreseeable, the employer is generally not liable. For an employer to be
vicariously liable for an employee's misconduct, the threshold questions are
whether that employee was acting in the furtherance of the employer's business
and within the scope of employment. Henderson v. Pennwalt Corp., 41 Wn. App.
547, 552, 704 P.2d 1256 (1985). This court has stated, "where an employee
commits an assault in order to effect a purpose of his or her own, the employer is
not liable." Thompson v. Everett Clinic, 71 Wn. App 548, 551, 860 P.2d 1054
(1993). In Thompson, the court further explained:
[W]here the servant's intentionally tortious or criminal acts are not performed in furtherance of the master's business, the master will not be held liable as a matter of law even though the employment situation provided the opportunity for the servant's wrongful acts or the means for carrying them out.
6 No. 78898-1-1/7
Id. at 553 (citing Kuehn v. White, 24 Wn. App. 274, 278, 600 P.2d 679 (1979)).
In Thompson, the court held that the actions of a doctor manually obtaining
sperm samples from patients during routine examinations were outside the scope
of employment. Id. at 554-56. The Washington Supreme Court reinforced this in
Robel v. Roundup Corp., stating, "this court has also determined that, where an
employee's acts are directed toward personal sexual gratification, the employee's
conduct falls outside the scope of his or her employment." 148 Wn.2d 35, 54, 59
P.3d 611 (2002).
In the present case, Frick's conduct of attaching a cell phone with a camera
inside a locker to record his co-workers changing is an undisputed fact. This act
was clearly unauthorized by Aquatic Center management and undertaken for
Frick's own sexual gratification so should be understood as squarely outside his
scope of employment. He engaged in this conduct for personal gratification
unrelated to his employer. On these facts, the City cannot be vicariously liable.
The trial court's ruling on summary judgment in favor on the City on the vicarious
liability claims was proper.
III. No genuine issue of material fact exists as to the City's alleged direct liability
under Restatement(Second) of Torts Section 317.
The City correctly asserts that all of the Rideouts' direct negligence claims
turn on the foreseeability of Frick's actions. The Rideouts failed to allege any facts
to establish that Frick's conduct was foreseeable, therefore subjecting the City to
a direct liability claim under Restatement(Second) of Torts Section 317 for failure
to protect its employees or to inspect for hazardous conditions.
7 No. 78898-1-1/8
An employer can be directly liable for conduct that is outside of the scope
of employment if the acts of the employee were foreseeable. In Thompson, the
court articulated the standard as a question of whether the employer had prior
knowledge of the dangerous tendencies of the employee. 71 Wn.App. at 555. Like
the present case, Thompson was also an appeal by the victim after summary
judgment was granted in favor of the employer. Id. The Thompson victims failed
to offer substantial evidence establishing a genuine issue of material fact that the
clinic knew or should have known, or failed to exercise reasonable care to know of
the doctor's inappropriate sexual conduct. Id.
The Rideouts did not offer evidence that the Aquatic Center management
knew or should have known of Frick's dangerous propensity. The only known
issue as to Frick's conduct during his employment was a single patron complaining
that he would "test" jokes during water aerobics class. There is nothing in the
record to suggest the jokes made in class were sexual in nature. There was,
however, undisputed evidence introduced that the same year that Frick's conduct
was discovered, the Aquatic Center had an issue with some female staff members'
underwear being stolen from their lockers and some having strange suggestive
messages and fixtures attached to them. Some other staff members reported
similar findings as to their underwear left inside their lockers. The City investigated
this incident and determined a janitorial staff member from another department
was responsible.
The Rideouts rely on the fact that Frick placed a lock on his staff locker to
accomplish his surreptitious recordings as indicative of Frick's acts being
8 No. 78898-1-1/9
foreseeable to the City. The record suggests that Frick was the only employee to
use a lock. However, without more, utilization of a lock on a locker is merely
evidence of seeking to protect the contents from theft or other disturbance,
particularly in light of the issues with the janitor removing or affixing messages to
undergarments. To bolster their claims that the City should have known of Frick's
dangerousness, the Rideouts also cite statements from two Aquatic Center
employees that they had seen Frick with a cell phone at work. Simply having a cell
phone in one's possession at work is not evidence of that person's intent to illegally
record their coworkers. Acceptance of this position would result in untenable
consequences for employers across a variety of industries and professional fields.
We do not agree that these assertions are sufficient to establish any dispute of
material fact regarding the foreseeability of Frick's actions.
A. General concern within an industry does not establish the particularized
dangerousness of a specific employee.
For an employer to be liable in Washington under a claim for negligent
supervision under Restatement (Second) of Torts § 317(b), courts have required
that the employer have knowledge of the dangerous tendencies of that particular
employee. Niece v. Elmview Grp. Home, 131 Wn.2d. 39, 52, 929 P.2d 420, 423
(1997). The Supreme Court recently upheld this requirement in Anderson v. Soap
Lake School District. 191 Wn.2d 343,423 P.3d 197(2018). In Anderson,the Court
rejected the assertion that there was evidence of a particularized danger as to a
basketball coach who did not have a record of misconduct in his employment, but
9 No. 78898-1-1/10
where the school district knew that he would host parties with students at his home.
Id. at 353, 357.
In Anderson, two students were killed after leaving a high school coach's
home where they had been served alcohol at one of the parties he hosted for
students. Id. at 348. The parents of one of the students brought a negligent
supervision claim against the school district for failing to supervise conduct outside
of the scope of the coach's employment when the district knew the coach hosted
pizza parties at his home. Id. at 351-52, 360. The school district was granted
summary judgment on the claim and the Court affirmed, finding there was no
evidence of particularized dangerousness of the coach, other than general
dangers of teachers possibly giving alcohol to students. Id. at 364, 377.
The Rideouts argue that the exhibits they submitted about the general issue
of video voyeurism at swimming pools raised an issue of material fact as to whether
the city was aware or should have been aware of the possibility that Frick would
engage in such conduct. The Rideouts offered the testimony of purported expert,
Rhonda Stouder, to discuss the risk of video voyeurism at pools, and a number of
newspaper articles from across the country about incidents of video voyeurism.
Though the Rideouts offered these documents, the City challenged the materials
and also the propriety of their consideration by the court. It is unclear from the
record if this information from the Rideouts factored into the court's decision.
However, these materials would only support general knowledge of the
broad concern of pool voyeurism which is insufficient under Anderson.
Restatement (Second) of Torts § 317(b)(ii) explains that liability may be found
-10- No. 78898-1-1/11
where the employer, "knows or should know of the necessity and opportunity for
exercising such control." Id. at 363(emphasis omitted). The purported evidence
of video voyeurism at pools at best raises an issue of a general danger within the
industry. The Anderson court explained that issues of general danger go to
negligent protection not negligent supervision for purposes of employer liability. Id.
at 365.
B. There is no evidence regarding a breach of any duty owed to Ms.
Rideout by the City; therefore, any negligent protection claim fails.
An employer owes a duty to an employee to make "reasonable provision
against foreseeable dangers of criminal misconduct to which the employment
exposes the employee." Minahan v. W. Wash. Fair Ass'n, 117 Wn. App. 881, 894,
73 P.3d 1019(2003)(quoting Bartlett v. Hantover, 9 Wn. App 614, 621, 513 P.2d
844 (1974), rey'd on other grounds, 84 Wn.2d 426, 526 P.2d 1217 (1974)). Any
claim by the Rideouts based on negligent protection returns to the analysis of
whether the City should have foreseen Frick's conduct. This foreseeability
analysis follows the same reasoning as set out above because "[w]here there is
no evidence that the defendant knew of the dangerous propensities of the
individual responsible for the crime and there is no history of such crimes on the
premises, courts have held the criminal conduct unforeseeable as a matter of law."
Raider v. Greyhound Lines, Inc., 94 Wn. App 816, 819, 975 P.2d 518(1999).
Again, there is no evidence that the City should have foreseen Frick's
actions. All employees interviewed pursuant to this case were shocked when they
learned that Frick had engaged in this tortious conduct and no one foresaw that he No. 78898-1-1/12
was possible of such, including Rideout herself. All of the Rideout's claims,
including those based on direct negligence, hinge on the foreseeability element
and the facts surrounding each of those claims are undisputed. The facts that
Frick used a lock on his locker and that two employees had seen him at work with
a phone are insufficient to establish a genuine issue of material fact as to the
foreseeability of Frick's conduct. Stouder's opinion and the newspaper articles
offered with the Rideouts' motion opposing summary judgment similarly fail as to
the particular dangerousness of Frick, but also as to a generally foreseeable
danger, which would have been essential in order to establish a duty for the City.
The record clearly demonstrates that all of the claims raised by the Rideouts were
challenged by the City's motion and properly before the court for argument. In light
of the argument and evidence, the trial court did not err in granting summary
judgment in favor of the City and dismissing them from the suit.
Affirmed.
WE CONCUR:
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