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

By Daniel G. Lloyd

The State of Washington has no duty to prevent minors who are under the State's care from assaulting third parties, the Washington Supreme Court has held.

In Aba Sheikh v. Choe, no. 76723-8 (Feb. 16, 2006), the State Department of Social and Health Services (DSHS) placed two youths in foster care. Sixteen-year-old Miguel Pierre was a foster child in the home of foster parent Emma Daniels. DSHS was required to develop and monitor a plan for Pierre's foster-home placement and to submit periodic reports to juvenile court. Daniels, however, had asked that DSHS remove Pierre from her home because of his delinquent and criminal behavior.

Another foster child in Daniels's home was 13-year-old Mychal Anderson. Anderson's foster-care placement was a "dependency guardianship," which is more permanent than foster care but less so than a formal adoption. This arrangement charged Daniels with more and DSHS with less control over Anderson than was true of Pierre's foster-care placement. But as with Pierre, Daniels asked that DSHS remove Anderson from her home due to his criminal and generally incorrigible behavior.

One night, Anderson, Pierre, and two others assaulted Said Aba Sheikh in the parking lot of a convenience store. Aba Sheikh later sued the State, Daniels, the assailants, and the owners of the convenience store. The State moved for summary judgment, arguing that it owed Aba Sheikh no legal duty. The trial court denied the motion. The State appealed to the Washington Court of Appeals, which certified the case to the Supreme Court for direct review.

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.”

Foster parents may not sue state for negligent investigation of child abuse

By Nicholas L. Jenkins

Foster parents may not sue the state for an agency's violation of its statutory duty to investigate allegations of child abuse, the Washington Court of Appeals recently held.

In Blackwell v. State, no. 55531-6-I (Jan. 30, 2006), Miller and Mary Blackwell had served for many years as foster parents for several high-risk foster children with behavior problems. One of those children was DR. DR lived with the Blackwells for two years. The Blackwells considered adopting DR.

In March 2000, the Blackwells had five foster children in their home, including DR. Two of them threatened harm to themselves and others, so the state Department of Social and Health Services (DSHS) asked Miller Blackwell to take them to Harborview Hospital for observation and treatment. The children told a doctor at Harborview that Miller had abused them physically and emotionally. The doctor examined them and found no evidence of abuse, but DSHS was notified, and an investigation began.

During the investigation, two more foster children, including DR, alleged abuse. A Child Protection Services (CPS) investigated and determined that the abuse allegations against Miller Blackwell were well founded. In June 2000, DSHS notified the Blackwells of this conclusion. The foster children were removed from the home. The state notified the Blackwells that their foster-care license was revoked and advised them of the administrative procedure for contesting the decision.

Two years of administrative hearings ensued. An administrative law judge reversed the findings of physical abuse and reinstated the Blackwells' foster-care license. A reviewing judge revised some findings and conclusions from that decision but affirmed the decision that no abuse had occurred and affirmed the reinstatement of the license.

The Blackwells then sued several parties for the "negligent investigation" of the abuse allegations. Eventually the defendants were narrowed down to the City of Seattle and the State. The defendants moved for summary judgment of dismissal, which the superior court granted. The Blackwells appealed the dismissal of their claims against the State.

The Court of Appeals noted that children and parents may sue for negligent investigation by DSHS. However, that right of action arises by statute, not common law. The court found no common-law cases that extended the class of claimants beyond blood-relative children and parents. In a earlier case, the Court of Appeals refused to let a child-care worker pursue a claim for negligent investigation of child abuse because the Legislature chose not to include child-care workers in the class of persons who were entitled to sue. "With regard to foster parents," the court said, "we hold the same is true."

The court also rejected the Blackwells' attempt to liken their situation to that of adoptive or "de facto" parents. But the court observed that the Blackwells had never sought to adopt DR or become legal guardians of the child. And "de facto" parents are not entitled to parental privileges, but only those that are in the child's best interests.

The court concluded, “As foster parents, the Blackwells do not have standing to pursue a claim against DSHS for negligent investigation because they are not part of the particular, circumscribed class to which DSHS owes a duty under the statute.”

Around The Firm

Jeffrey P. Downer won summary judgment in City of Orting v. Cascadia Dev. Corp. He represented a city that several years earlier had entered into a development agreement to provide sewer service to a development outside its city limits. The agreement was signed without the required public hearing and authorizing ordinance, and it contained one-sided terms in favor of the developer that violated statutes governing the city's legal authority to set rates. The city sought declaratory judgment that the agreement was invalid. The developer counterclaimed for an estimated $35 million to $100 million in damages. Both parties moved for summary judgment on whether the agreement was binding. The court agreed with Jeff that the agreement was not enacted according to several statutory requirements and was void. Also working on the successful summary judgment motion were Christina L. Smith, Jenny M. Downey, and Matthew R. Lincecum.

Jeff Downer and Michael A. Guadagno also won summary judgment in Schneider v. Costco Wholesale Corp., in which a Costco patron hit plaintiff in the leg with a shopping cart. Plaintiff later developed necrotizing fasciitis, or flesh-eating bacteria, in the leg. He underwent four surgeries and incurred more than $110,000 in medical bills. Jeff and Mike moved for summary judgment because Costco had no legal duty to prevent this unavoidable accident between two customers. They then learned during discovery that plaintiff possessed no hard evidence that the accident caused the necrotizing fasciitis; they therefore brought another motion for summary judgment to dismiss plaintiff's claim that the accident caused that condition. The court granted both motions and dismissed the case. … Jeff Downer and Derek M. Johnson won summary judgment of dismissal in McVicker v. Costco, in which plaintiff sued for injuries she suffered after she touched a product display that then fell on her and caused her to tear ankle ligaments. The court agreed that the display did not present an unreasonably dangerous condition and that Costco had no reason to think that plaintiff would fail to protect herself against it.

Michael A. Patterson, Charles P.E. Leitch, and Daniel G. Lloyd won summary judgment dismissal in Bakay v. Clallam County. Plaintiffs had operated a cattery and claimed violations of numerous constitutional rights after officers seized 68 cats because of inhumane conditions. After successfully moving to dismiss much of plaintiffs' state-law claims for emotional distress damages, Mike, Charles, and Dan obtained dismissal of the remaining federal and state claims, arguing the officers complied with all constitutional guarantees in procuring the search warrant. Plaintiffs elected not to appeal after facing a threat of sanctions. ... Dan Lloyd also won the appeal of Page v. Harvey, a legal-malpractice action. Plaintiff claimed Dan's client had entered into a dissolution settlement agreement without authorization, which the plaintiff alleged caused irreparable harm. After obtaining summary judgment dismissal at the trial court, the defense argued that the doctrines of collateral estoppel, judicial estoppel, and failure of proof mandated affirmance. After a hearing before the Court of Appeals Commissioner, the appellate court affirmed the summary judgment on the merits and dismissed plaintiff's appeal.

Marc Rosenberg won summary judgment of dismissal in Sanborn v. Anchor Bay Ins. Co., an insurance-coverage dispute. … Tammy L. Williams and Pamela J. DeVet won the final round of Padilla v. Merchandising Inventives, Inc., when the Washington Supreme Court denied review of a Court of Appeals decision in their favor. Tammy and Pam had filed a successful motion for summary judgment on behalf of product manufacturer Merchandising Inventives, arguing that plaintiff filed her complaint outside the statute of limitations, notwithstanding the discovery rule. Plaintiff appealed, but the Court of Appeals affirmed the summary judgment, prompting plaintiff to seek review.