State not liable for assault by minors under agency's care

(Continued - Page 2)

The Supreme Court noted two general rules that favored the State's position. First, at common law, one has no duty to prevent a third party from injuring another. Second, under the public-duty doctrine, the State is not liable for its own negligence unless it owes a duty specifically to the injured person and not just to the public generally.

An exception to these rules, and thus a legal duty, may arise where a special relationship exists between the actor and the third person, such as when the actor takes charge of the third person, who the actor should know is likely to harm others if not controlled. For example, a parole officer has a duty to protect others from foreseeable injuries that stem from a parolee's dangerous propensities. The Supreme Court has applied this rationale to find legal duties of parole officers, probation officers, and pretrial release counselors.

But the Washington Court of Appeals had held in other cases that DSHS had no duty to prevent children in their care from assaulting others. The Supreme Court noted that the Court of Appeals "gave great weight to the distinction between DSHS's statutory purpose (protecting children) and the criminal justice system's purpose … (to 'properly supervise an adjudicated offender based on the prior crime').”

The Aba Sheikh Court agreed with this rationale. The Court considered and rejected Aba Sheikh's argument that DSHS had various statutory duties of supervision of foster children. "This argument is not well taken," the Court concluded. "Nothing in this [statutory] statement of purpose suggests DSHS is directed to protect the public from dependent children."

The Court also considered and rejected Aba Sheikh's argument that the State was liable because it was in loco parentis, a common-law doctrine that one who treats a child as his or her own family assumes the same rights and liabilities as between parent and child. Here, however, the foster parent, not DSHS, assumed that quasi-parental role.

Aba Sheikh next argued that the State was vicariously liable for the alleged failure of Daniels to supervise Pierre and Anderson. Again the Court rejected his argument. The statutorily defined relationship between DSHS and foster parents did not give DSHS control over the daily actions of foster parents. Daniels was an independent contractor only, and the State therefore was not vicariously liable for her conduct.

Justice Tom Chambers concurred but wrote a separate opinion, urging the Court to address how the trial court should resolve the interplay between negligence, which Aba Sheikh alleged against the State, and intentional torts, which the foster children had committed when they assaulted Aba Sheikh. The majority did not reach that issue.

Justice Richard Sanders dissented. He contended that DSHS does stand in loco parentis according to some earlier Washington cases and under decisions from other states. He therefore concluded that the State should be liable to the same degree that a parent would be for negligent supervision of a child who has a known propensity for violence and who assaults another. He also contended that the State could be liable for failing to place foster children with able foster parents, since it did have the ability to place Pierre and Anderson in a different foster home. He concluded, “[DSHS] chose not to exercise its authority and thereby breached its duty of careful placement.”