Sheikh v. Choe
| Decision Date | 16 February 2006 |
| Docket Number | No. 76723-8.,76723-8. |
| Citation | 156 Wn.2d 441,128 P.3d 574 |
| Court | Washington Supreme Court |
| Parties | Said Aba SHEIKH, Respondent/Cross-Appellant, v. Kevin S. CHOE and Kum S. Choe, d/b/a South Seattle Market, a sole proprietorship; Shell Oil Company, a foreign corporation; Height Point Mini Mart & Deli, a domestic nonprofit corporation; King County; Emma Daniels; Michael Gallow; Mychal Anderson; Pulefano Ativalu; and Miguel T. Pierre, Defendants, and State of Washington, Appellant/Cross-Respondent. |
Jeffrey A.O. Freimund, Attorney General's Office, Torts Div, Olympia, for Petitioner/Appellant.
Darrell L. Cochran, John Robert Connelly, Gordon Thomas Honeywell et al, Tacoma, Fred Diamondstone, Jay Herman Krulewitch, Law Offices of Fred Diamondstone, Seattle, for Appellee/Respondent.
Jayne Lyn Freeman, Seattle, for Amicus Curiae, Washington Defense Trial Lawyers.
Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae, Washington State Trial Lawyers Assoc. Foundation.
¶ 1 This case involves cross-appeals from a civil trial in which plaintiff Said Aba Sheikh obtained a judgment against the State of Washington for $10,364,372 in damages. Aba Sheikh's injuries were inflicted during an assault by four youths in March 1999. One of the four assailants, Mychal Anderson, had been placed in a dependency guardianship by the Department of Social and Health Services (DSHS). Another, Miguel Pierre, was a DSHS dependent who had been placed in foster care. Aba Sheikh brought claims against the State alleging (1) negligent placement of Anderson and Pierre by DSHS, (2) parental liability under an in loco parentis theory, (3) vicarious liability, and (4) negligent failure to provide treatment. While claims 2-4 were dismissed upon the State's motion for summary judgment, the jury rendered a verdict in favor of Aba Sheikh on his negligent placement claim. The State raises four issues on appeal: (1) whether DSHS owed a duty to Aba Sheikh, (2) whether there was sufficient evidence to support a proximate cause finding, (3) whether the trial court improperly denied the State's proposed Tegman1 instruction, and (4) whether the trial court erred in failing to provide for periodic payments of Aba Sheikh's future economic damages under RCW 4.56.260. Aba Sheikh cross-appeals the dismissal of his second, third, and fourth claims. We reverse the trial court and hold that the State owed no duty to Aba Sheikh. We also affirm the trial court's dismissal of Aba Sheikh's additional claims.
¶ 2 On March 27, 1999, Aba Sheikh was assaulted in the parking lot of a West Seattle minimart by Anderson, Pierre, Pulefano Ativalu, and Michael Gallow. Both Anderson and Pierre resided in the home of Emma Daniels as a result of placement arrangements by DSHS. Facts specific to DSHS's relationships with Anderson and Pierre are described separately below.
¶ 3 Anderson, 13 at the time of the assault, was a dependent child placed with Daniels in what is known as a dependency guardianship. A dependency guardianship is more permanent than foster care but less so than outright adoption. See RCW 13.34.136(1)(a), .145(1)(a). Among other features, the guardianship gave custody and control to Daniels until Anderson turned 18 and limited DSHS's supervisory role, terminating periodic judicial review of the dependency. Anderson's dependency guardianship could be altered only upon the court's finding that there was a substantial change in circumstances and the alteration would be in Anderson's best interests. RCW 13.34.233(2). In December 1998 and February 1999, Daniels asked that Anderson's dependency guardianship be terminated and that he be removed from her home due to his criminal behavior and general incorrigibility.
¶ 4 Pierre, 16 at the time of the assault, was a dependent placed in Daniels' home as a foster child. "Foster parents are responsible for the protection, care, supervision, and nurturing of the child in placement." RCW 74.13.330. However, unlike Anderson's dependency guardianship, Pierre's foster care placement involved greater ongoing involvement by DSHS. For example, DSHS was required to develop and monitor a plan for Pierre's foster home placement and produce reports for periodic review by the court. RCW 74.13.031(1), (5). A permanency planning hearing for Pierre was conducted by the juvenile court the day before the assault. Although there was significant evidence regarding Pierre's delinquent and criminal behavior DSHS recommended continued placement in Daniels' home and the court agreed. As with Anderson, Daniels requested that Pierre be removed from her home in the months before the assault.
¶ 5 The State argued, on motion for summary judgment under CR 56 and motion for judgment as a matter of law under CR 50, that it owed no actionable tort duty to Aba Sheikh. The trial court denied both motions, concluding that the State owed Aba Sheikh a common law duty to control Anderson and Pierre through DSHS's ability to seek changes in placement. After a verdict in Aba Sheikh's favor, the State timely appealed to Division One of the Court of Appeals. Aba Sheikh subsequently filed a cross-appeal, the issues of which were contingent upon the possibility the State would obtain a favorable decision on appeal. The Court of Appeals certified the case to this court for direct review.
¶ 6 RAP 10.3(a)(4) requires a "statement of the facts and procedure relevant to the issues presented for review, without argument" and that "[r]eference to the record must be included for each factual statement." Pursuant to these requirements, the State moves to strike dozens of sentences in Aba Sheikh's brief for failure to provide citation and use of improper argument. Upon review, the disputed statements are irrelevant to the legal issues addressed in this opinion. We therefore note only that, although in no way affecting the outcome of this case, the motion to strike is granted to the extent that Aba Sheikh's brief continues to fail to comply with RAP 10.3(a)(4) after taking into account the additional citation provided in his response to the motion to strike.
¶ 7 1. Did DSHS's influence or control over the placement of Anderson and Pierre create a duty to protect Aba Sheikh from intentional torts by those assailants?
¶ 8 2. Can Aba Sheikh maintain a claim against the State for in loco parentis liability?
¶ 9 3. Can Aba Sheikh maintain a claim against the State for vicarious liability?
¶ 10 4. Can Aba Sheikh maintain a claim against the State for negligent failure to provide treatment?
¶ 11 At issue is the trial court's denial of the State's motion for summary judgment and judgment as a matter of law that it owed no duty to Aba Sheikh, as well as the trial court's decision to grant summary judgment in favor of the State as to Aba Sheikh's in loco parentis, vicarious liability and failure to provide treatment claims. "The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002). The standard on a motion for judgment as a matter of law mirrors that of summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The elements of negligence include the existence of a duty to the plaintiff, breach of that duty, and injury to the plaintiff proximately caused by the breach. Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996). Whether or not the duty element exists in the negligence context is a question of law that is reviewed de novo. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999).
¶ 12 As a general rule, our common law imposes no duty to prevent a third person from causing physical injury to another. See RESTATEMENT (SECOND) OF TORTS § 315. Additionally, under the public duty doctrine, the State is not liable for its negligent conduct even where a duty does exist unless the duty was owed to the injured person and not merely the public in general. Taylor v. Stevens County, 111 Wash.2d 159 163, 759 P.2d 447 (1988). However, this court recognizes an exception to both these general rules in Restatement (Second) of Torts, sections 315 and 319. See, e.g., Taggart v. State, 118 Wash.2d 195, 218-21, 822 P.2d 243 (1992). Under section 315(a), a duty arises where "a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct." Through Taggart and its progeny, we have adopted one class of these "special relation" cases as described in section 319: "`One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.'" 118 Wash.2d at 219, 822 P.2d 243 (quoting RESTATEMENT (SECOND) OF TORTS § 319).
¶ 13 The Taggart court announced that "parole officers have a duty to protect others from reasonably foreseeable dangers engendered by parolees' dangerous propensities." Id. at 224, 822 P.2d 243. In reaching this conclusion, the court began to delineate the meaning of a "take charge" relationship, first stating that there must be a "`definite, established and continuing relationship between the defendant and the third party.'" Id. at 219, 822 P.2d 243 (quoting Honcoop v. State, 111 Wash.2d 182, 193, 759 P.2d 1188 (1988)). The Taggart court then cited RCW 72.04A.080, which states that parolees "`shall be subject to the supervision of the department of corrections, and the probation and parole officers of the department...
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