Niece v. Elmview Group Home

• Decision Date: 02 November 1995
• Docket Number: No. 14564-6-III,14564-6-III
• Court: Washington Court of Appeals
• Parties: , 11 IER Cases 182 Dory NIECE, as Guardian for her daughter Lori Ann Niece, Appellant, v. ELMVIEW GROUP HOME, a corporation, Respondent, and Kleber V. Quebedo, aka Kleber Quevedo; Bruce A. Herman, M.D.; and State of Washington, Defendants.

Page 660

79 Wn.App. 660

904 P.2d 784, 11 IER Cases 182

Dory NIECE, as Guardian for her daughter Lori Ann Niece, Appellant, v. ELMVIEW GROUP HOME, a corporation, Respondent and Kleber V. Quebedo, aka Kleber Quevedo; Bruce A. Herman M.D.; and State of Washington, Defendants.

No. 14564-6-III.

Court of Appeals of Washington, Division 3 Panel Four.

Nov. 2, 1995.

David A. Thompson, Moore & Thompson, Yakima, J. Adams Moore, Jr., Moore, Thompson & Scott, Yakima, for Appellant.

Nancy K. McCoid, Merrick, Hofstedt & Lindsey, Seattle, for Respondent.

Bryan P. Harnetiaux, Spokane, Debra L. Stephens, Spokane, Gary N. Bloom, Harbaugh & Bloom, Spokane, for amicus curiae Washington State Trial Lawyers.

Mary M. Palmer, Paine, Hamblen, Coffin, Brooke & Miller, Spokane, for amicus curiae Washington Defense Trial Lawyers.

SCHULTHEIS, Judge.

Lori Niece, a physically and mentally disabled woman, was repeatedly raped while residing at Elmview Group Home. Some of her claims against Elmview were dismissed on summary judgment and she appeals, contending the trial court erred in finding (1) Elmview was not vicariously liable for the intentional torts of its employee; (2) there was no issue of material fact regarding Elmview's negligent supervision; and (3) Elmview's duty to protect Ms. Niece from foreseeable dangers was limited to its duty to supervise its employees. We reverse and remand.

In 1986, when Ms. Niece was twenty-two years old, her mother placed her at Elmview, a private facility licensed by the Washington State Department of Health and the Department of Social and Health Services. Ms. Niece has cerebral palsy and has great difficulty walking and communicating. She is also profoundly developmentally disabled, with a mental age ranging from the four- to six-year level. Elmview provides residential care and treatment for around twelve persons with varying degrees of developmental disability.

On September 19, 1990, Elmview hired Kleber Quevedo, a twenty-five-year-old single male, primarily to care for male residents from 3 p.m. until around 7 p.m. From 7 p.m. until 10 p.m., Mr. Quevedo was left on the premises alone to care for all the Elmview residents. His shift ended at 10 p.m., when an evening staff person arrived and stayed until morning.

During a medical exam on August 14, 1991, it was discovered that Ms. Niece was six months pregnant. She eventually accused Mr. Quevedo of raping her several times by force. Mr. Quevedo admitted to finding her naked in her room before the first assault and to being "overwhelmed". Ms. Niece's baby was born unexpectedly and was found dead in the toilet of her room. Blood tests on the baby, Ms. Niece and Mr. Quevedo established that he was probably the father. He pleaded guilty to two counts of indecent liberties with forcible compulsion and was sentenced to ten years.

Ms. Niece's mother, as her guardian, filed suit for personal injury damages against Mr. Quevedo and Elmview on March 16, 1993. In an amended complaint filed February 17, 1994, she added Ms. Niece's attending doctor as a defendant. The complaint included allegations that Elmview had negligently breached its duty (1) in hiring, training and supervising its employees, and (2) in caring for, supervising and treating Ms. Niece. On October 28, 1994, the trial court granted partial summary judgment and dismissed the rape-related claims against Elmview based on negligent hiring, training and supervision of Mr. Quevedo and Elmview's vicarious liability for Mr. Quevedo's assaults.

In a hearing on Ms. Niece's motion for clarification and reconsideration, she asked the court to rule on the duty to protect a resident from the foreseeable consequences of her handicaps, a duty described in Shepard v. Mielke, 75 Wash.App. 201, 877 P.2d 220 (1994). The trial judge told her he believed he addressed the Mielke duty to protect when he ruled on Elmview's negligent supervision of Mr. Quevedo. The final order ruled that all of Ms. Niece's theories of liability against Elmview relating to the rapes were dismissed. ¹

A. Vicarious Liability

Ms. Niece first contends the trial court erred in summarily dismissing her claim that Elmview had a nondelegable duty to protect and care for its residents. She argues that Elmview assumed a contractual duty to provide safety for its residents in exchange for their surrender of control over themselves and their environment. This duty should extend, she asserts, to protection against intentional wrongful acts of employees outside the scope of their employment.

Summary judgments are upheld on review if the pleadings, affidavits, depositions and admissions on file show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ruff v. County of King, 125 Wash.2d 697, 703, 887 P.2d 886 (1995). The reviewing court makes the same inquiry as the trial court, viewing the facts in the light most favorable to the nonmoving party. Ruff, 125 Wash.2d at 703, 887 P.2d 886. Although the extent to which an employee was acting within the scope of his or her employment is an issue of fact which may be considered under the principles of summary judgment, an employer may be relieved from liability for the conduct of its employees as a matter of law. Bratton v. Calkins, 73 Wash.App. 492, 497, 870 P.2d 981 (citing Dickinson v. Edwards, 105 Wash.2d 457, 466-67, 716 P.2d 814 (1986)), review denied, 124 Wash.2d 1029, 883 P.2d 326 (1994).

The doctrine of respondeat superior generally provides that an employer is liable for the acts of its employee committed within the scope of his or her employment. Dickinson, 105 Wash.2d at 466, 716 P.2d 814; Bratton, 73 Wash.App. at 498, 870 P.2d 981. When an employee's intentionally tortious or criminal acts are not in furtherance of the employer's business, the employer is not liable as a matter of law, even if the employment situation provided the opportunity or means for the employee's wrongful acts. Bratton; Kuehn v. White, 24 Wash.App. 274, 278, 600 P.2d 679 (1979).

Ms. Niece does not argue that Mr. Quevedo was acting within the scope of his employment when he raped her; rather, she urges us to extend the common carrier exception to the respondeat superior doctrine to the relationship between a group home and its profoundly impaired residents.

A common carrier has the duty to exercise the highest degree of care toward its passengers. Zorotovich v. Washington Toll Bridge Auth., 80 Wash.2d 106, 108, 491 P.2d 1295 (1971); Pruneda v. Otis Elevator Co., 65 Wash.App. 481, 488, 828 P.2d 642 (1992). The common carrier and passenger relationship is considered a "special relationship" requiring an affirmative duty to render aid. Lauritzen v. Lauritzen, 74 Wash.App. 432, 439-40, 874 P.2d 861 (pertaining to the special duty to protect certain classes of people from foreseeable criminal acts of third parties), review denied, 125 Wash.2d 1006, 886 P.2d 1134 (1994). Under the common carrier exception to the respondeat superior doctrine, the employer is liable even for the intentional torts or criminal acts of its employees. Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1280-81 n. 4 (4th Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978); Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 227-28, 802 P.2d 1360 (1991); Marks v. Alaska S.S. Co., 71 Wash. 167, 169, 127 P. 1101 (1912); Lauritzen, 74 Wash.App. at 439-40, 874 P.2d 861.

Ms. Niece contends the special relationship between a group home and its profoundly disabled resident compels the extension of common carrier nondelegable liability for criminal acts of employees. A similar extension was adopted by the Indiana Supreme Court in Stropes v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244 (Ind.1989). In Stropes, a developmentally disabled child sued a children's center for damages arising out of his sexual assault by a nurse's aide. The court noted that the children's center assumed a contractual duty to protect its particularly vulnerable clients. This duty was found to be analogous to the duty of a common carrier, whose responsibility for the passenger's safety is predicated on the passenger's surrender of control over his or her environment. Stropes, 547 N.E.2d at 252-54. The court concluded that the children's center assumed a nondelegable duty to provide protection and care for its clients. Accordingly, the court reversed summary judgment dismissal of the nondelegable duty claim, and directed that the child must show at trial that the protection provided by the children's center fell short of the extraordinary standard of care imposed by the common carrier exception. Stropes, 547 N.E.2d at 254.

No Washington court has extended the common carrier/special duty vicarious liability to group homes, nursing homes or child care centers. See, e.g., Bratton and Thompson v. Everett Clinic, 71 Wash.App. 548, 860 P.2d 1054 (1993), review denied, 123 Wash.2d 1027, 877 P.2d 694 (1994), which restrict the respondeat superior analysis to whether or not the employee was acting within the scope of employment. As of this date, no other jurisdiction has adopted the Stropes theory. See, e.g., Worcester Ins. Co. v. Fells Acres Day School, Inc., 408 Mass. 393, 558 N.E.2d 958, 968 (1990) (imposition of common carrier liability on group day cares would constitute a significant extension of Massachusetts law); Maguire v. Montana, 254 Mont. 178, 835 P.2d 755, 759-60 (1992) (creation of nondelegable duty for day-care centers would constitute a significant extension of Montana law). See also Rabon (refusal to extend common carrier liability to private security agencies).

As Elmview points out, the Bratton court recently rejected the invitation to impose vicarious liability on a school district employer for the sexual misconduct of its teacher. The court noted that such an extension of vicarious liability would be far-reaching, negatively affecting...