Donohoe v. State

Decision Date29 August 2006
Docket NumberNo. 33181-1-II.,33181-1-II.
Citation135 Wn. App. 824,142 P.3d 654
PartiesRandy DONOHOE, in his capacity as the Personal Representative of the estate of Florence Byrne Donohoe, Deceased, Appellant, v. STATE of Washington, Respondent.
CourtWashington Court of Appeals

Jeffrey a Damasiewicz, Attorney at Law, Aberdeen, WA, for Appellant.

James Harmony, Attorney at Law, Olympia, WA, for Respondent.


¶ 1 Randy Donohoe, personal representative of the estate of his mother, Florence Byrne Donohoe (Estate), appeals the trial court's summary judgment dismissal of his action against the State for negligence, based on Pacific Care Center's deficient care of Mrs. Donohoe while residing at its private nursing home. The Estate argues that the trial court misconstrued its claim as "negligent investigation" and erroneously applied the public duty doctrine. Holding that the Estate has no statutory or common law cause of action against the State for failure to control Pacific Care's negligence, we affirm.


¶ 2 Florence Donohoe was a Washington State Department of Social and Health Services (DSHS) client from at least September 1, 1998, until her death. In her 80's, Mrs. Donohoe was living in an adult family home in Hoquiam, chosen and paid for by her family, when her condition began to deteriorate. Among other medical conditions, she suffered incontinence, several falls requiring hospitalization, and severe dementia. She was in need of 24-hour care, which the adult family home was unable to provide.

¶ 3 Preparing to transfer Mrs. Donohoe from privately-financed placement to Medicaid, in December 2001, DSHS conducted a comprehensive assessment to determine her required level of care and her Medicaid eligibility. A DSHS case manager determined that she qualified for Community Options Program Entry System (COPES) federal funding at the nursing home level and informed her family that she needed to be placed in a nursing home.

¶ 4 When Mrs. Donohoe's family learned that their preferred nursing home had no bed space available, they moved her to Pacific Care nursing home in Hoquiam.1 Pacific Care was owned and operated by Prestige Care, a private company. Pacific Care hired, trained, and supervised its employees, including Mrs. Donohoe's care-givers, over whom DSHS had no control.

¶ 5 DSHS conducted general nursing home licensing and regulatory oversight for Pacific Care, as it does for other nursing homes. At the time of Mrs. Donohoe's admission in December 2001, Pacific Care was a properly licensed nursing home facility in substantial compliance with minimum state requirements.2

¶ 6 Several months later, DSHS received two complaints from the Donohoe family about Pacific Care's treatment of Mrs. Donohoe. The first complaint, on April 23, 2002, was that Mrs. Donohoe had fecal matter under her fingernails, that she was not being fed properly, and that she was generally being neglected. On May 3, 2002, DSHS conducted an on-site inspection, noted dry fecal matter under Mrs. Donohoe's fingernails, found no evidence to support the family's other feeding and neglect allegations, and cited Pacific Care for failure to provide Mrs. Donohoe with appropriate personal hygiene services.3

¶ 7 DSHS received the second complaint on May 22, 2002, the day after Mrs. Donohoe's family moved her from Pacific Care to the hospital. Her family complained that Pacific Care had not corrected the previous hygiene deficiency, that Mrs. Donohoe had lost 10 pounds during the first two weeks of May, that she had been left lying in feces-soiled linens, and that Pacific Care had failed to notify the family when Mrs. Donohoe had a fever and was not looking well. DSHS conducted another on-site inspection and cited Pacific Care for failing to provide clean bed and bath linens and for violating regulations concerning personal privacy, personal hygiene, and the production of patient records. In response, Pacific Care submitted a plan to correct the deficiencies, which DSHS accepted "as evidence that the cited deficiencies [were], in fact, corrected"4

¶ 8 After Mrs. Donohoe's hospitalization, her family did not return her to Pacific Care. Instead, they moved her to a different private nursing home in Shelton. DSHS continued to assess Mrs. Donohoe's Medicaid eligibility and the level of care she needed. Advancing in age and declining in health, she had issued a medical directive that she not be resuscitated. Approximately a year later, she died.


¶ 9 On behalf of his mother's estate, Randy Donohoe filed a complaint for negligence against Pacific Care, the Pacific Care personnel principally responsible for Mrs. Donohoe's care, the State of Washington (DSHS), and individual State employees. Under the terms of a monetary settlement with the Estate, the trial court dismissed Pacific Care and its employees from the lawsuit. By agreement of the parties, the trial court also dismissed the named individual State employee defendants. Thus, DSHS became the sole remaining defendant.

¶ 10 DSHS moved for summary judgment, arguing that it owed no actionable legal duty to Mrs. Donohoe and that the public duty doctrine barred the Estate's action. The Estate countered (1) that DSHS was liable under a general theory of negligence for having failed to assure Pacific Care's compliance with State nursing home regulations, and (2) that several exceptions to the public duty doctrine applied. The trial court granted the State's motion for summary judgment dismissal of the Estate's action against DSHS, ruling that: (1) "[t]he thrust of the plaintiff's claim against the State [was] `negligent investigation,'" which Washington courts generally do not recognize; and (2) none of the exceptions to the public duty doctrine applied. Clerk's Papers at 605.

¶ 11 Donohoe appeals.


¶ 12 The Estate argues that we should reverse the trial court's summary judgment dismissal of its negligence action against the State because the trial court misconstrued the Estate's claim as "negligent investigation" and erroneously applied the public duty doctrine. The Estate's negligence complaint against DSHS, based on Pacific Care Center's deficient care of Mrs. Donohoe, appears to encompass claims for general negligence, failure to warn, and negligent investigation or negligent enforcement of regulatory nursing home standards.

¶ 13 In order to prevail on a negligence claim, however, ordinarily, the Estate would first need to show that the State is not immune from lawsuit and liability. If the Estate could show a waiver of sovereign immunity, it would then need to show that the State owed, and breached, a specific duty to Mrs. Donohoe, distinct from a duty owed to the public in general.

¶ 14 Neither party here, however, has briefed the extent of the State's statutory waiver of sovereign immunity under Revised Code of Washington (RCW) 4.92.090, which, by its plain language, limits the State's "liab[ilty] for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation." Nor does either party address whether, under this broad, though circumscribed waiver of sovereign immunity, there is a private entity analogue for the State's negligent investigation or negligent enforcement of nursing home regulations. We have considered and rejected requesting supplemental briefs on this issue.

¶ 15 Instead, we note our Supreme Court's recent decision in Cummins v. Lewis County, 156 Wash.2d 844, 133 P.3d 458 (2006), which, like many Washington cases, appears to conflate, rather than separately to analyze sovereign immunity waiver and the public duty doctrine.5 Because we can resolve the instant case on the public duty doctrine alone, we leave clarification of the interplay between the public duty doctrine and sovereign immunity for another day when the issues are squarely presented and briefed.6


¶ 16 The Washington Constitution gives our Legislature, not the courts, the power to determine the scope of governmental immunity from lawsuit. Accordingly, the judicially-created public duty doctrine comes into play only in those tort actions for which the Legislature has waived sovereign immunity.

The "public duty doctrine" has modified the traditional concept of sovereign immunity. . . . "The threshold determination in a negligence action is whether a duty of care is owed by the defendant to the plaintiff. Whether the defendant is a governmental entity or a private person, to be actionable, the duty must be one owed to the injured plaintiff, and not one owed to the public in general. This basic principle of negligence law is expressed in the `public duty doctrine'."

Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 784-85, 30 P.3d 1261 (2001). See also Cummins, 156 Wash.2d at 852, 133 P.3d 458 (citing Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988)).

A. Standard of Review

¶ 17 The threshold determination in a negligence action is a question of law, Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 128, 875 P.2d 621 (1994), which we review de novo. When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).

¶ 18 We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. But the nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or consideration of affidavits at face value.7 Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986...

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