Yonker By and Through Snudden v. State Dept. of Social and Health Services

Decision Date10 February 1997
Docket NumberNo. 37315-3-I,37315-3-I
Citation85 Wn.App. 71,930 P.2d 958
CourtWashington Court of Appeals
PartiesJoshua YONKER, a minor child By and Through his guardian, Maryann SNUDDEN, and Maryann Snudden, individually, and as guardian for Joshua Yonker, Appellants, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and Alexander Yonker, a single man, Respondents.

Breean Lawrence Beggs and Philip James Buri, Brett & Daugert, Bellingham, for Appellants.

Susan Marjorie Edison, Seattle and Michael E. Tardif, Olympia, for Respondents.

ELLINGTON, Judge.

To protect abused children and their families, the Legislature requires the Department of Social and Health Services (DSHS) to investigate reports of possible child abuse. Maryann Snudden reported to DSHS that her two-and-a-half-year-old son was explicitly simulating intercourse and that her ex-husband, Alex Yonker, had a "bad pornography problem," which DSHS caseworkers acknowledged could indicate abuse. Believing they needed a more specific allegation of abuse, however, caseworkers did not investigate further. Almost a year later, Snudden reported to DSHS that her son had told her his father touched him sexually. Because the child would not repeat the statement to the caseworker, DSHS again declined to take action, and told Snudden that she was obligated to comply with court-ordered visitation. Soon afterward, Yonker pleaded guilty to molesting his son. Snudden's damages suit against DSHS was dismissed on summary judgment when the trial court concluded that DSHS was shielded from liability by the public duty doctrine. We hold that the legislative intent exception to the public duty doctrine applies because Snudden and her son were members of the particular and circumscribed class of individuals the Legislature intended to protect, and that DSHS is thus not shielded from liability. We therefore reverse and remand for trial.

FACTS 1

Maryann Snudden and her ex-husband, Alex Yonker, shared custody of their young son, Joshua Yonker. Joshua spent Wednesdays, every other weekend, and six weeks in the summer with his father.

In June of 1992, Snudden noticed two-and-a-half-year-old Joshua explicitly acting out intercourse with a stuffed animal. When Snudden tried to explain to Joshua that his behavior was not appropriate and was something only mommies and daddies did, he pushed her and tried to put his erect penis in her belly button. Snudden immediately made an appointment with Child Protective Services (CPS).

The next day, Snudden told the CPS caseworker that she did not think anyone was molesting Joshua, but she thought he "was watching something, either it be pornography or someone having sex." She said Joshua's father had a "pornography problem" and that he lived in a studio apartment with his girlfriend where Joshua might witness them having intercourse.

Although the caseworker agreed that these facts could indicate abuse, the caseworker gave Joshua's case a risk factor of zero, meaning no risk, and told Snudden that without a more specific allegation of abuse, CPS would take no action.

Snudden took Joshua to the Brigit Collins House, a shelter for abused women and children, but Joshua was too young for them to treat him. They referred her to another counselor who also said it would be difficult to help him because he was so young. Discouraged, Snudden did not seek further assistance. She tried to make excuses to prevent Yonker from seeing Joshua, but Yonker occasionally became violent, so she let Yonker take Joshua to avoid having him involved in a tug-of-war.

After Snudden first talked to CPS, Joshua's behavior began to change. He withdrew from other children, became violent toward her, and began having nightmares. Snudden noticed that his behavior was worse following visits with Yonker. Then in April 1993, while getting ready for bed, Joshua told her, "Daddy sucks wee-wee me." He repeated the same thing in front of Snudden's mother and husband.

Snudden called 911 and an officer arrived. The next day she called CPS. She told the caseworker about her previous report and about Joshua's behavior changes as well. The caseworker attempted to get Joshua to recount what happened, but when Joshua would not repeat what he had told his mother and grandmother, the caseworker told Snudden there was not much CPS could do. Snudden told the caseworker that Yonker had visitation rights and asked how she was supposed to protect Joshua. She was told that if the visits were court-ordered, she had to comply.

This caseworker also assessed Joshua's case as low risk, which she later explained was because the child made no disclosures to her, and the child was not in imminent danger of harm because the alleged abuser "wasn't going to see the child that day."

Soon after that, Yonker confessed to the Bellingham Police Department that he had molested his son. He eventually pleaded guilty to first degree child molestation during the period between January 1, 1992 and June 1, 1993. Yonker had previous convictions for indecent liberties and for trespass related to a peeping incident. Three months after Yonker pleaded guilty, Snudden 2 sued the Department of Social and Health Services for negligence in failing to investigate her report of possible child abuse.

The Department moved for summary judgment, arguing that CPS did not have a duty to discover and stop abuse in every case in which a report was made. In opposition to the motion for summary judgment, Snudden submitted a declaration from a child abuse expert, who expressed the opinion that CPS

fell far below the standard of care required when interviewing, evaluating, and protecting Joshua Yonker and Maryann Snudden during both the June 1992 and April 1993 referrals. Specifically, RCW 26.44.050 required Child Protective Services to investigate and protect Joshua and Maryann Snudden in accordance with RCW 74.13. The simple passive recording of Maryann Snudden's complaints did not come close to fulfilling that duty.

The expert also concluded that CPS failed to follow its own guidelines for intake and assessment of child abuse complaints.

The Department argued that Washington does not recognize a cause of action for negligent investigation and that the State was immune from liability under the public duty doctrine. The trial court agreed, holding that the statute describing CPS's duty to investigate created an obligation to the public in general, not to a specific parent or child, and granted summary judgment of dismissal. This appeal followed.

Summary Judgment Standards

We review a grant of summary judgment de novo. Doherty v. Municipality of Metropolitan Seattle, 83 Wash.App. 464, 468, 921 P.2d 1098 (1996). Our inquiry is the same as the trial court's, viewing the facts and their inferences in the light most favorable to the nonmoving party. Doherty, 83 Wash.App. at 468, 921 P.2d 1098. A summary judgment may be affirmed only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Doherty, 83 Wash.App. at 468, 921 P.2d 1098.

Public Duty Doctrine

The question raised here is whether DSHS owed a legal duty to Snudden and Joshua. Whether a duty exists is a question of law. Johnson v. State, 77 Wash.App. 934, 937, 894 P.2d 1366, review denied, 127 Wash.2d 1020, 904 P.2d 299 (1995). Once a duty is established, whether the defendant breached the duty and whether that breach was a proximate cause of the plaintiff's injuries are normally questions of fact. Johnson, 77 Wash.App. at 937, 894 P.2d 1366.

A defendant is liable for negligence only for breach of a duty of care owed to the plaintiff, not to the public at large. McCluskey v. Handorff-Sherman, 125 Wash.2d 1, 6, 882 P.2d 157 (1994). When a governmental agency is the defendant, this rule is known as the public duty doctrine. Taylor v. Stevens Cy., 111 Wash.2d 159, 163, 759 P.2d 447 (1988). Thus, a government official's negligent conduct does not expose the government to tort liability unless the plaintiff can show that a duty was owed to the plaintiff, as opposed to the public in general. Taggart v. State, 118 Wash.2d 195, 217, 822 P.2d 243 (1992). In other words, "a duty to all is a duty to no one." Taggart, 118 Wash.2d at 217, 822 P.2d 243 (quoting Taylor, 111 Wash.2d at 163, 759 P.2d 447).

Courts have recognized numerous exceptions to the public duty doctrine. Taggart, 118 Wash.2d at 217-18, 822 P.2d 243. These exceptions are founded in traditional negligence principles, and determine the existence of a duty. In Bailey v. Forks, 108 Wash.2d 262, 268, 737 P.2d 1257 (1987), the court identified four such exceptions: (1) when the Legislature expresses by statute "an intent to identify and protect a particular and circumscribed class of persons (legislative intent)"; (2) when a governmental agent has a responsibility to enforce statutory requirements and the plaintiff is within the class the statute was intended to protect, but the agent fails to take corrective action, despite actual knowledge of a statutory violation (failure to enforce); (3) when a governmental agent assumes a duty to warn or come to the aid of the plaintiff, then fails to exercise reasonable care (rescue doctrine); and (4) when the injured plaintiff is set off from the general public by a relationship between him or her and the governmental agent, and the agent gives explicit assurances to the plaintiff or assurances are inherent in a duty vested in the governmental entity, and the plaintiff relies upon those assurances (special relationship). A determination that an exception to the public duty doctrine applies is tantamount to a conclusion that the defendant owed a duty to the plaintiff. Taggart, 118 Wash.2d at 218, 822 P.2d 243.

DSHS claims that the statute requiring it to investigate reports of child abuse was intended to protect society in general and does not create a duty to individuals, and that the public duty...

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