M.E. v. City of Tacoma

• Decision Date: 01 September 2020
• Docket Number: No. 53011-2-II,53011-2-II
• Citation: 471 P.3d 950
• Parties: M.E. and J.E., minors, THROUGH Michael MCKASY, as Litigation Guardian ad Litem; and Joshua Eddo, individually, Appellants, v. CITY OF TACOMA, a political subdivision of the State of Washington, Respondent.
• Court: Washington Court of Appeals

471 P.3d 950

M.E. and J.E., minors, THROUGH Michael MCKASY, as Litigation Guardian ad Litem; and Joshua Eddo, individually, Appellants,

v.CITY OF TACOMA, a political subdivision of the State of Washington, Respondent.

No. 53011-2-II

Court of Appeals of Washington, Division 2.

Filed September 1, 2020

Nathan Paul Roberts, Connelly Law Offices, PLLC, Meaghan Maryanne Driscoll, Attorney at Law, 2301 N 30th St., Tacoma, WA, 98403-3322, Philip Albert Talmadge, Gary Manca, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Appellants.

Jean P. Homan, Tacoma City Attorneys Office, 747 Market St. #1120, Tacoma, WA, 98402-3701, for Respondent.

Nathan Paul Roberts, Connelly Law Offices, PLLC, Meaghan Maryanne Driscoll, Attorney at Law, 2301 N 30th St., Tacoma, WA, 98403-3322, Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Guardian Ad Litem.

PUBLISHED OPINION

Lee, C.J.

¶ 1 Joshua Eddo and his two daughters, M.E. and J.E. (collectively, the appellants), appeal the superior court's orders granting summary judgment and dismissing their entire complaint against the City of Tacoma (the City). We hold that the appellants’ negligence claim under RCW 26.44.050 fails as a matter of law because none of the City's actions resulted in a harmful placement decision. We also hold that the special relationship in H.B.H.¹ does not extend to law enforcement, and therefore, the appellants’ claim that there is a common law duty to protect based on a special relationship recognized in H.B.H. fails. And the appellants have failed to adequately argue a common law duty based on affirmative actions. Accordingly, we affirm the superior court's orders granting the City's motions for summary judgment.

FACTS

A. PLEADINGS AND MOTIONS FOR SUMMARY JUDGMENT

¶ 2 In 2017, the appellants filed a complaint against the City alleging the officers and detectives of the Tacoma Police Department (TPD) negligently conducted investigations in 2011, 2012, and 2013, which resulted in M.E. and J.E. remaining in an abusive home. The complaint also alleged that the City "breached its duty when among other things, it negligently hired, trained, supervised, and monitored its personnel." Clerk's Papers (CP) at 5. The City answered the appellants’ complaint by denying any negligence and asserting various affirmative defenses.

¶ 3 The appellants moved for partial summary judgment dismissal of the City's affirmative defenses and the City moved for summary judgment dismissal of the appellants’ claims that TPD acted negligently. In support of these motions, the parties presented the following evidence and arguments.

1. 2011 Investigation

¶ 4 In October 2011, M.E., age 5, and J.E., age 3, lived with their mother, Jocelyn Drayton, as their primary residential parent and had supervised visitation with Eddo. After a supervised visit, Eddo contacted TPD and reported that J.E. vomited after taking some of her mother's medication. In response to the call, TPD Officers Jennifer Corn and Bret Terwilliger were dispatched to Drayton's residence to conduct a welfare check.

¶ 5 Upon arriving at the residence, the officers learned that Drayton was at work and the children were being watched by Drayton's roommate, Rikki Buttelo. Buttelo told the officers that the children were asleep in their mother's bedroom. The officers visually checked the children for signs of injury, but they did not want to wake the children due to the late hour.

¶ 6 The officers asked Buttelo about J.E.’s vomiting. Buttelo informed the officers that J.E. had been sick all day and had been running a fever. When J.E. vomitted during the day and the vomit was pink, he was concerned, until he learned that she had eaten pink strawberry yogurt.

¶ 7 The officers observed that the floor of the master bedroom was "completely destroyed" with clothing, garbage, and debris covering the floor. CP at 44. It was impossible to walk through the master bedroom without stepping on something. And the officers observed a piece of pornography on the floor of the master bedroom. There were also medication bottles on the floor and dresser. The children's room was "slightly cleaner." CP at 44. But the kitchen sink and counters were covered in food and dirty dishes. The officers checked the refrigerator and pantry and confirmed that there was consumable food available for the children. In her report, Officer Corn stated that she did not "see a need to remove the children[,]" but noted the condition of the home was "not suitable" for children and referred the report to CPS for further investigation. CP at 44.

2. 2012 Investigation

¶ 8 In January 2012, TPD Detective Cynthia Brooks received a referral from CPS regarding M.E. and J.E. The referral was made by Sarah Kier, M.E. and J.E.’s visitation supervisor. Kier reported that on the way back from their visitation with Eddo, the girls told her about a "ghost" that was "peeking" at them in the bathroom. CP at 164. J.E. reported that the ghost came into the shower and punched her in the back. J.E. said that "[t]he ghost is entangled with Jason." CP at 164. Kier believed that Jason referred to Drayton's boyfriend, Jason Karlan. Kier also reported that J.E. was complaining of vaginal pain.

¶ 9 Detective Brooks contacted the assigned CPS investigator, Rocky Stephenson. Brooks and Stephenson arranged to have the children examined at the Child Advocacy Center (CAC) at Mary Bridge Children's Hospital three days later. They also planned to contact Drayton and the children before the scheduled exams to conduct safety interviews with both children.

¶ 10 Prior to the interviews, Detective Brooks contacted Kier. Kier clarified that J.E. did not report vaginal pain when talking about the ghost. Instead, Kier had noticed J.E. grabbing at her vaginal area and noticed an odor when J.E. urinated. Kier also reported J.E. was urinating frequently. Brooks also learned that the girls lived with Drayton and Karlan. Karlan provided care for the girls while Drayton was at work.

¶ 11 Prior to the exams scheduled at CAC, Detective Brooks and Stephenson conducted a safety interview with M.E. at her school. During the safety interview, M.E. made no disclosures of physical or sexual assault. M.E. told Brooks that Karlan had "Jedi powers" and could use them to make the car windows go up and down. CP at 254. M.E. reported that Drayton and Karlan disciplined her by sending her to the corner. M.E. did not report any concerns at home.

¶ 12 After conducting the safety interview with M.E., Detective Brooks and Stephenson went to the home to contact Drayton. Drayton was not home, but Karlan and J.E. were at the home. Drayton arrived at the home approximately 15 minutes later. Drayton explained the girls had a counseling appointment scheduled that afternoon, but she agreed to meet Brooks and Stephenson at the CAC for the exams.

¶ 13 A few hours later, Drayton met Detective Brooks and Stephenson at the CAC. Drayton told Brooks that she had discussed good touch and bad touch with the girls. Drayton also told Brooks that neither girls disclosed that a ghost hit them or watched them in the shower. Drayton further stated that there was no physical discipline in the house.

¶ 14 Brooks and Stephenson then conducted a safety interview with J.E. J.E. reported that things are good at home and that if she gets in trouble she gets a time out. J.E. explained to Brooks and Stephenson that one day the bathroom door opened and nobody was there. J.E. said that it "freaked" her out. CP at 255. J.E. did not report any concerns at home.

¶ 15 M.E. and J.E. both had a medical examination performed by a registered nurse practitioner, Michelle Breland, at Mary Bridge Children's CAC. Breland conducted an interview with M.E. During the interview, M.E. did not make any disclosures of physical or sexual abuse. Breland also performed a physical examination on M.E. Breland concluded that the exam revealed "a well child" and there were no signs of acute injury or healed trauma. CP at 242.

¶ 16 Breland also conducted a physical examination of J.E. J.E. did not make any disclosures of abuse to Breland during the interview. J.E.’s physical exam did not have any signs of acute injury or healed trauma. However, the exam did reveal a normal variation in the hymenal opening which can cause urine to pool and would explain the urinary odor that was reported.

¶ 17 While the examinations were being conducted at the CAC, Detective Brooks contacted Karlan in the parking lot. As to the specific allegations, Karlan told Brooks that the girls believed he had "Jedi mind powers" because one time he made the car windows go up and down and they did not know how he did it. CP at 255. Another time he turned the lights on and off and the girls did not know it was him. Karlan told Brooks that he primarily used time outs as discipline and did not use physical discipline with the girls. He said that the girls were potty-trained and they could bathe and dress themselves without his assistance. Karlan denied peeking at the girls in the shower. Karlan also denied hitting or punching either girl in back.

¶ 18 Based on the investigation and the fact that neither girl made any disclosures of abuse, Detective Brooks cleared the criminal investigation and referred the case back to CPS for any follow-up investigation. Detective Brooks did not run a national criminal background check on Karlan.

3. April 2013 Investigation (J.B.’s Allegations)

¶ 19 In April 2013, TPD Detective Jennifer Quilio received a CPS referral regarding allegations that Karlan had sexually abused J.B., who Karlan babysat. After receiving the referral, Detective Quilio contacted Courtney Thorpe, J.B.’s mother.

¶ 20 Thorpe reported she had been friends with Drayton and Karlan but that she had a falling out with Drayton and had not seen them for three months. Prior to the falling out, Karlan often babysat for J.B. while he was watching M.E. and ...