Triplett v. Wash. State Dep't of Soc. & Health Servs.

Decision Date21 April 2016
Docket NumberNo. 32121–5–III.,32121–5–III.
Citation373 P.3d 279,193 Wash.App. 497
CourtWashington Court of Appeals
PartiesBettyJean TRIPLETT and Kevin Smith as Personal Representatives of the Estate of Kathleen Gail Smith; BettyJean Triplett, individually; and Kevin Smith, individually, Respondents, v. WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES; Washington State Department of Social & Health Services Division of Developmental Disabilities; Washington State Department of Social & Health Services Aging & Disability Services Administration; Lakeland Village; Washington State Department of Social & Health Services Secretary Robin Arnold–Williams; Washington State Department of Social & Health Services Director Linda Rolfe; Michael Noland, an individual, Petitioners.

Jarold Phillip Cartwright, Aty. General's Ofc. Tort Division, Carl Perry Warring, Washington State Aty. General, Spokane, WA, for Petitioners.

Mark Douglas Kamitomo, Collin Michael Harper, The Markam Group Inc. PS, Spokane, WA, for Respondents.


¶ 1 We granted discretionary review to the Washington State Department of Social and Health Services (DSHS), two subagencies, two officials, and an employee, after the superior court denied a motion for summary judgment dismissal of civil rights claims asserted by the personal representatives of the Estate of Kathleen Smith. Ms. Smith, a voluntary patient at Lakeland Village, a state operated facility for persons with mental disabilities, died while under the defendants' care, allegedly as a result of their “deliberate, intentional and/or negligent conduct.” Clerk's Papers (CP) at 7. She claims a violation of her right to substantive due process.

¶ 2 The estate does not defend the trial court's failure to dismiss its claims against state agencies and against individual defendants sued in their official capacity, none of whom are “persons” within the meaning of 42 U.S.C. § 1983. We reverse in part with instructions to dismiss those claims.

¶ 3 The individual defendants (in their personal capacity) urged the trial court to follow Campbell v. State of Washington Department of Social & Health Services, 671 F.3d 837 (9th Cir.2011), which affirmed dismissal of a substantially similar claim because the plaintiff failed to show that the state owed its resident a constitutional duty of protection arising out of either an involuntary custodial relationship or a state-created danger. Both the parties and the court in Campbell relied on a “duty to protect” theory as limited by DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Alternatively, the individual defendants argued they enjoy qualified immunity.

¶ 4 DeShaney addressed the limited circumstances under which state actors owe a duty to protect a person from third party violence. The deprivation of Ms. Smith's substantive due process right alleged in this case was by a state actor. While the estate's complaint and briefing in this case have advanced both “duty to protect” and direct state action theories, its “duty to protect” claim fails for the simple reason that the estate does not demonstrate any private violence.

¶ 5 The estate's evidence in support of a theory of direct state action demonstrates facts from which a jury could find a deprivation of substantive due process. And since it was clearly established before March 2006 that a deprivation of life with the requisite fault would subject an individual defendant to liability under § 1983, qualified immunity is not available to the individual defendants at this stage of the litigation.

¶ 6 We affirm the trial court's order refusing to dismiss the estate's claims against the individual defendants in their personal capacities to the extent they are based on direct state action.


¶ 7 On March 21, 2006, Kathleen Smith, a voluntary resident of Lakeland Village, was found lying face down in a bathtub in her assigned cottage. Resuscitation efforts failed and she was pronounced dead within an hour. Ms. Smith, then 52 years old, had been admitted to Lakeland Village by her mother, BettyJean Triplett, 39 years earlier, when Ms. Smith was 14. She suffered from profound mental retardation as well as a seizure disorder. By the time of her death, Ms. Smith's seizures had been controlled by medication for many years; the last seizure she had suffered was in or around 1989. Nonetheless, Ms. Smith's autopsy reported “a bite mark on the right side of the decedent's tongue, consistent with a seizure” and attributed her death to “asphyxia due to fresh-water downing in bathtub due to epileptic seizure with incapacitation in bathtub due to clinical history of idiopathic epilepsy. The manner of death is accident.” CP at 112.

¶ 8 Investigation revealed that on the afternoon Ms. Smith drowned, she was being attended to by Michael Noland, a Lakeland Village attendant counselor assigned to Apple Cottage, where Ms. Smith lived. Ms. Smith had expressed a preference to bathe rather than shower before dinner, and at approximately 4:30 p.m., Mr. Noland helped her prepare a bath by setting the water temperature. He left Ms. Smith to bathe on her own, while he assisted other residents. According to Mr. Noland, approximately 15 minutes later, Ms. Smith called to him and said she was finished. He told her to get out if she was finished, and left the area. He then became engaged in a conversation with his supervisor.

¶ 9 Mr. Noland's two absences during the bath were contrary to Ms. Smith's individual habilitation plan, which had been updated less than a year earlier and which Mr. Noland had signed.1 Given her seizure disorder, Ms. Smith's plan provided for the following supervision:

Bathing—Provide visual supervision (within arm[']s reach). Showering: Staff will intermittently check (at least every 5 minutes).

CP at 104.

¶ 10 Nearly 20 minutes after Mr. Noland left Ms. Smith unattended the second time, another nurse working in Apple Cottage went into the bathing area and found Ms. Smith lying on her right side in the bathtub with her face fully submerged. The nurse called for help and began resuscitation efforts. Ms. Smith was pronounced dead at 5:45 p.m.

¶ 11 The Department of Health and Human Services Centers for Medicare and Medicaid Services (DHHS) conducted an investigation within a matter of days after Ms. Smith's death, at the conclusion of which they issued a Statement of Deficiencies and Plan of Correction that was critical of Lakeland Village, including its failure to comply with individual habilitation plans.

¶ 12 A death review report signed by Dr. Barry Smith on June 20, 2006, concluded that while Ms. Smith “died as the result of an accident,” [s]he was not properly supervised during the bathing and the clearly outlined procedures were not followed.” CP at 116.

¶ 13 Mr. Noland was charged with manslaughter in the second degree. He was acquitted following a jury trial.

¶ 14 Ms. Triplett and Kevin Smith, who is Ms. Smith's brother, were appointed personal representatives of Ms. Smith's estate. In May 2009, they filed this action individually and on behalf of the estate, naming as defendants DSHS, two subagencies (the Division of Developmental Disabilities (DDD) and the Aging and Disability Services Administration), former DSHS Secretary Robin Arnold–Williams, DDD Director Linda Rolfe, Lakeland Village, and Michael Noland. They asserted wrongful death and survival action claims under state law as well as a civil rights claim under 42 U.S.C. § 1983, alleging the defendants deprived Ms. Smith of her substantive due process rights to reasonable safety and bodily security under the Fourteenth Amendment of the United States Constitution.

¶ 15 In an earlier discretionary review proceeding, this court dismissed Ms. Triplett's and Mr. Smith's State law claims and held that the estate had no recoverable damages under its state law survival claim. Triplett v. Dep't of Soc. & Health Servs., 166 Wash.App. 423, 268 P.3d 1027 (2012). The estate's § 1983 claim was not at issue in that appeal.

¶ 16 Following remand, the defendants moved for summary judgment dismissing the estate's § 1983 claim on qualified immunity and other grounds. The superior court denied the motion. The defendants sought discretionary review by this court, which we granted under liberal application of the discretionary review criteria in RAP 2.3(b) that we apply to ensure full and adequate protection of federal immunity rights. Walden v. City of Seattle, 77 Wash.App. 784, 789–90, 892 P.2d 745 (1995).


¶ 17 DSHS2 assigns error to the trial court's denial of its motion for summary judgment on three grounds.

¶ 18 First, it argues that DSHS and its subagencies, Secretary Arnold–Williams, and Director Rolfe were entitled to summary judgment because they are not “persons” subject to suit under 42 U.S.C. § 1983.

¶ 19 Second, it argues that summary judgment dismissing claims against the individual defendants should have been granted based on qualified immunity. Relying on the Ninth Circuit's decision in Campbell, it argues that the estate could not demonstrate that any constitutionally protected right of Ms. Smith was violated because (1) she was a voluntary resident of Lakeland Village and (2) she did not drown as the result of a state-created danger. Alternatively, it argues that summary judgment should have been granted on immunity grounds because any right violated by the individual defendants was not clearly established at the time of Ms. Smith's death.

¶ 20 Its third argument is that summary judgment dismissal of the claims against Secretary Arnold–Williams and Director Rolfe was appropriate for the additional reason that the women did not participate in the alleged deprivation of Ms. Smith's rights.

¶ 21 We review an order denying summary judgment de novo, engaging in the same inquiry as the trial court. Ruvalcaba v. Kwang Ho Baek, 175...

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