Snipped:http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=438123maj&searchval&invol=1Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 43812-3-I
Title of Case: Robert Roberson, Et. ux., Et. al., Appellants
v.
Robert Perez, Et. ux., Et. al., Respondents
File Date: 02/22/2000 SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 98-2-07404-3
Judgment or order under review
Date filed: 12/07/1998
Judge signing: Hon. Michael E. Donohue
JUDGES
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Authored by H. Joseph Coleman
Concurring: Mary K. Becker
Marlin J Appelwick
COUNSEL OF RECORD
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Counsel for Appellant(s)
James M. Beecher
Hackett Beecher & Hart
2200 Westlake Center
1601 Fifth Avenue
Seattle, WA 98101-1625
Robert C. Van Siclen
Van Siclen & Stocks
4508 Auburn Way N #a100
Auburn, WA 98002-1381
John Stocks
Van Siclen Stocks & Firkins
Ste A100
4508 Auburn Way N
Auburn, WA 98002-1381
Counsel for Defendant(s)
William L. Holder
Reed McClure
Two Union Square
601 Union St Ste 4800
Seattle, WA 98101-3900
Gregory B. Curwen
Gierke Curwen Metzler & Erie
Bldg D Suite 400
2102 N Pearl St
Tacoma, WA 98406-2550
Thomas W. Merrill
806 27th Ave
Milton, WA 98354-9322
Jefffrey A. Freimund
Ofc of Atty Gen Torts Div
P.O. Box 40126
Olympia, WA 98504-0126
Mara Vinnedge
610 3rd Ave Ste 1507
11411 NE 124th St
Seattle, WA 98104-1886
Counsel for Respondent(s)
Stanley A. Bastian
Jeffers Danielson Sonn & Aylward
317 North Mission
P.O. Box 1688
Wenatchee, WA 98807
Patrick G. McMahon
P.O. Box 2965
Wenatchee, WA 98807
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONDONNA RODRIGUEZ, a single person; )
DONNA RODRIGUEZ, as Guardian ad Litem )
for her minor child, KIMBERLY ALLBEE, )
)
Appellants, )
)
SUSAN EVERETT, a single person; KAREN )
LOPEZ a single person, )
)
Plaintiffs, )
)
ROBERT ROBERSON and CONNIE ) NO. 43812-3-I
ROBERSON, husband and wife; ROBERT )
ROBERSON as Guardian ad Litem for his ) DIVISION ONE
minor child, REBEKAH ROBERSON; )
JONATHAN SIMS and HONNAH SIMS, )
husband and wife; and JONATHAN SIMS as )
Guardian ad Litem for his minor child, )
DANIEL SIMS, )
Appellants, )
v. ) )
)
ROBERT PEREZ, )
Respondent, ) Published Opinion
)
TIMOTHY ABBEY, LAURIE ALEXANDER, )
CONNIE SARACINO, DEAN REIMAN, KATE ) Filed:
CARROW, )
)
Defendants, )
)
KENNETH BADGLEY; CITY OF )
WENATCHEE, a municipality in the State of )
Washington, )
Respondents, )
)
CHELAN COUNTY, a corporate body in the )
STATE OF WASHINGTON; )
)
Defendant, )
)
DOUGLAS COUNTY, a corporate body in the )
State of Washington, )
Respondent, )
)
STATE OF WASHINGTON, by and through its )
political subdivision Department of Social and )
Health Services, )
Defendant, )
)
ROBIN WAGG, DAVE HELVEY, )
DAN LaROCHE, )
)
Respondents, )
)
CINDY ANDREWS and DONNA ANDERSON, )
)
Defendants. )
)
COLEMAN, J. --
This case arises out of the investigation of an alleged
'sex ring' operating in Wenatchee, Washington.
The appellants, comprised
of parents and their children who were allegedly involved in the sex ring,
brought suit against numerous governmental entities and the individual
investigators responsible for investigating the alleged abuse. Their
claims of negligent investigation and negligent supervision against the law
enforcement agencies and their officers were dismissed under CR 12(b)(6),
and they appeal. We reverse the dismissal of the negligent investigation
claim. By imposing a duty of investigation on the part of law enforcement
agencies, RCW 26.44 allows members of the protected class to bring an
action for negligent investigation.FACTS
According to the appellants' allegations,1 law enforcement officers,
in the scope of their employment and working in concert with state
caseworkers, negligently conducted interviews when investigating
allegations of a possible sex ring involving children. The City of
Wenatchee, Douglas and Chelan counties, and DSHS allegedly sanctioned their
interviewing techniques.
The appellants allege that Detective Robert Perez conducted the
interviews using tactics such as threatening the interviewees with prison
terms, criminal charges, and permanent family separation. Children were
interviewed in the presence of other children. Perez yelled at a child and
called her a liar until she fabricated stories of abuse in an attempt to
appease him. Kimberly Allbee, Donna Rodriguez's daughter, was interviewed
at her school for five hours, and Perez threatened that her mother would be
arrested unless Allbee disclosed sexual abuse. She eventually disclosed
incriminating information. Perez also withheld exculpatory evidence from
law enforcement officials, investigators, prosecutors, and defense counsel.
The appellants further allege that two of the primary child witnesses were
foster children living with Perez and that he coerced them into making
disclosures with gifts or by physical abuse.
The Robersons, Honnah Sims, and Donna Rodriguez were arrested on
charges of child sexual abuse, and their children were removed from their
homes. Later, all were acquitted or the charges against them were dropped.
They and their children then filed suit against the individual
investigators, the City of Wenatchee, Chelan and Douglas counties, and DSHS
alleging negligent investigation, negligent supervision, false arrest,
false imprisonment, outrage, malicious prosecution, and tortious
interference with the parent-child relationship. Before trial, the trial court dismissed the plaintiffs' claims of
negligent investigation and negligent supervision and/or training, as they
pertained to the law enforcement officers and agencies. The case went to
trial on the remaining theories, and the jury returned a verdict for the
defendants. The appellants now appeal the dismissal of their negligent
investigation and supervision claims.DISCUSSION
A dismissal based on failure to state a claim upon which relief can be
granted is reviewed de novo. Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d
781 (1988). Motions under CR 12(b)(6) should be granted ''only in the
unusual case in which the plaintiff includes allegations that show on the
face of the complaint that there is some insuperable bar to relief.'"
Tenore v. AT & T Wireless Services, 136 Wn.2d 322, 330, 962 P.2d 104 (1998)
(quoting Hoffer, 110 Wn.2d at 420), cert. denied, 119 S. Ct. 1096 (1999).
If a plaintiff can prove any set of facts consistent with the complaint
that would entitle him or her to relief, including hypothetical facts not
in the formal record, then the claim should not be dismissed. Hoffer, 110
Wn.2d at 421. For purposes of analysis under CR 12(b)(6), the facts
alleged in the complaint are presumed to be true. Tenore, 136 Wn.2d at
330.
The respondents argue that Washington does not recognize a cause of
action for negligent criminal investigation. They further claim that
causes of action for negligent investigation and negligent supervision are
encompassed by the claims already presented to and decided by the jury.
The elements of negligence differ from the elements of the claims
previously tried, and failure to prove those claims does not preclude
proving negligence. Because of the different standard of conduct in a
negligence claim, we will undertake an analysis of the cognizability of the
claims of negligent investigation and supervision against the law
enforcement officers and their employers.
Negligent Investigation
Whether an investigation of child abuse can support a cause of action
in negligence against the investigating law enforcement agency is an issue
which has not been directly addressed in Washington. The resolution of
that question is guided, however, by principles already well established in
this state.
In all negligence actions the plaintiff must prove the defendant owed
the plaintiff a duty of care. Thus, in general, a claim for negligent
investigation does not exist under the common law because there is no duty
owed to a particular class of persons. In the area of law enforcement
investigation, the duty owed is typically owed to the public. For example,
the duty of police officers to investigate crimes is a duty owed to the
public at large and is therefore not a proper basis for an individual's
negligence claim. Chambers-Castanes v. King County, 100 Wn.2d 275, 284,
669 P.2d 451, 39 A.L.R.4th 671 (1983) (holding that the duty to arrest and
keep the peace are a duty owed to the public at large and unenforceable as
to individuals).
The Legislature, however, has created a limited exception in the area
of child abuse investigations by imposing a duty to investigate for the
protection of a specified class. See Babcock v. State, 116 Wn.2d 596, 809
P.2d 143 (1991); Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 740,
973 P.2d 1074; Lesley v. Department of Social & Health Servs., 83 Wn. App.
263, 921 P.2d 1066 (1996). RCW 26.44.050 requires a law enforcement agency
or DSHS to investigate possible occurrences of child abuse or neglect.
That duty derives from the paramount importance that is placed on the
welfare of the child.
Protecting the welfare of the child includes avoiding unnecessary
disruption of the parent-child relationship. The Legislature has
emphasized the importance of protecting the relationship between parent and
child and interfering with that relationship only when the child's health
and safety are endangered.
The bond between a child and his or her parent . . . is of paramount
importance, and any intervention into the life of a child is also an
intervention into the life of the parent{.}
RCW 26.44.010.
The legislature reaffirms that all citizens, including parents, shall be
afforded due process, that protection of children remains the priority of
the legislature, and that this protection includes protecting the family
unit from unnecessary disruption.
RCW 26.44.100.
When a duty is owed to a specific individual or class of individuals,
that person or persons may bring an action in negligence for breach of that
duty. See Hartley v. State, 103 Wn.2d 768, 781-82, 698 P.2d 77 (1985);
Chambers-Castanes, 100 Wn.2d at 284-85. 'It is well established that a
statute which creates a governmental duty to protect particular individuals
can be the basis for a negligence action where the statute is violated and
the injured party was one of the persons designed to be protected.' Yonker
v. Department of Social & Health Servs., 85 Wn. App. 71, 78, 930 P.2d 958
(1997) (quoting Donaldson v. City of Seattle, 65 Wn. App. 661, 666-67, 831
P.2d 1098 (1992)). See also Lesley, 83 Wn. App at 273.
By specifically including parents, custodians, and guardians of
children 'within the class of persons who are foreseeably harmed by a
negligent investigation into allegations of child abuse{,}' the Legislature
has recognized a duty to the parent as well as the child in conducting
child abuse investigations. Tyner v. Department of Social & Health Servs.,
92 Wn. App. 504, 512, 963 P.2d 215 (1998), review granted, 137 Wn.2d 1020
(1999). Thus, both the children who are suspected of being abused and
their parents comprise a protected class under RCW 26.44 and may bring
action for negligent investigation under that statute.
The respondents contend that unlike DSHS, which is held to a
negligence standard in investigating child abuse, law enforcement agencies
are not subject to negligence actions because they do not owe individual
plaintiffs a duty of care. The respondents' assertion is premised upon
criminal cases involving investigations of crimes other than alleged child
abuse. Fondren v. Klickitat County, 79 Wn. App. 850, 853, 863, 905 P.2d
928 (1995) (no cause of action for negligent murder investigation); Dever
v. Fowler, 63 Wn. App. 35, 38, 45, 816 P.2d 1237, 824 P.2d 1237 (1991)
(holding no cause of action for negligent investigation of arson and
manslaughter).
But as we have already discussed, the typical criminal investigation
is premised on a duty that is owed to the public at large. The question
before us concerns a duty that is owed to a specific class of individuals.
Thus, we cannot rely upon other investigation contexts, which demonstrate
the general rule, to provide the answer to the question raised here.
The rationale in permitting negligent investigation claims against
DSHS is based on DSHS's statutory duty to investigate child abuse and the
protected status of the parents and children bringing the claims. Those
considerations apply equally to claims against law enforcement officers
when those officers are conducting investigations pursuant to the statutory
directives set forth in RCW 26.44. RCW 26.44.050 requires the appropriate
law enforcement agency or DSHS to investigate a report of alleged child
abuse.
It is clear that the inclusion of law enforcement was intentional.2
That this case involves a criminal investigation rather than an
investigation conducted solely by DSHS does not affect our analysis. If
both entities have received reports and responded by initiating an
investigation, RCW 26.44.035 requires the agencies to 'coordinate the
investigation and keep each other apprised of progress.' It makes little
sense to conclude that one agency owes a duty of care and the other does
not when both are conducting investigations required by the statute.
Moreover, the appellants allege that Detective Perez and CPS investigator
Katie Carrow, working as a team, conducted the investigations. If, as
appellants allege, they conducted interviews together and their
interviewing techniques constituted negligence, then it would be
incongruous to hold each co-investigator to a different standard of
conduct.
The respondents contend that any investigative duty owed by law
enforcement under the statute is limited to responding to a possible
occurrence of abuse and transmitting a report to protective services in
accordance with RCW 74.13. That duty, they conclude, does not include
conducting a generalized investigation. They rely on Donaldson, 65 Wn.
App. 661 for their position that the duty of law enforcement agencies is
not construed beyond the confines of the governing statute.
Donaldson addressed whether police were negligent in not following up
with investigation after a victim reported a domestic violence assault but
the perpetrator was not on the premises when the police arrived. The
police left, and the perpetrator murdered the victim the following day.
The administratrix of the victim's estate brought suit, and the City
claimed it was immune from liability. At issue was the scope of the
agency's duty under the Domestic Violence Prevention Act (DVPA), which
requires an officer responding to a domestic violence call to arrest the
alleged perpetrator if the officer has probable cause to believe that a
felonious assault has occurred within the previous four hours.
When a peace officer responds to a domestic violence call and has
probable cause to believe that a crime has been committed, the peace
officer shall exercise arrest powers with reference to the criteria in RCW
10.31.100.
RCW 10.99.030(6)(a).
(2) A police officer shall arrest and take into custody, pending
release on bail, personal recognizance, or court order, a person without a
warrant when the officer has probable cause to believe that:
. . . .
(b) The person is sixteen years or older and within the preceding
four hours has assaulted a family or household member as defined in RCW
10.99.020{.}
RCW 10.31.100(2)(b). The Donaldson court recognized that the statute
imposed a mandatory duty to arrest under certain circumstances, when the
perpetrator is on the premises. But based upon the statutory language, the
court held that the statute did not impose a duty to conduct follow-up
investigation or to arrest after the four-hour period. Donaldson, 65 Wn.
App. at 671, 673. Because the perpetrator had left the premises, the court
concluded that no duty had been breached.
Nevertheless, the Donaldson court recognized that a breach of a
statutory duty is actionable, basing its reasoning upon the same principles
that govern this case.
In all negligence actions the plaintiff must prove the defendant owed
the plaintiff a duty of care. 'Whether the defendant is a governmental
entity or a private person, to be actionable, the duty must be one owed to
the injured plaintiff, and not one owed to the public in general.' Taylor
v. Stevens Cy., 111 Wn.2d 159, 163, 759 P.2d 447 (1988). When the
defendant is a public official this negligence principle is called the
'public duty doctrine'. Generally, no liability will attach for a public
official's negligent conduct unless the plaintiff can show that the duty
was owed to her rather than to the general public.
It is well established that a statute which creates a governmental
duty to protect particular individuals can be the basis for a negligence
action where the statute is violated and the injured party was one of the
persons designed to be protected. If the legislation evidences a clear
intent to identify a particular and circumscribed class of persons, such
persons may bring an action in tort for violation of the statute.
. . . .
This statute {DVPA} does not create new laws prohibiting domestic
violence, but requires the police and other law enforcement bodies to
better enforce the current laws in order to protect the victims of domestic
violence. The law identifies the particular class of individuals to be
protected and defines the specific duties of the police in this regard.
The City's claim that the public duty doctrine bars any liability is
accordingly rejected.
Donaldson, 65 Wn. App. at 666-67 (footnotes omitted).
Under the statute at issue in Donaldson, when the law enforcement
officers arrived and determined that the perpetrator had left, their
specific statutory duties were completed. RCW 26.44.050, however, does not
similarly limit the officer's required response to certain specified acts
or time periods, but provides a general mandatory duty to investigate.
Upon the receipt of a report concerning the possible occurrence of
abuse or neglect, it shall be the duty of the law enforcement agency or the
department of social and health services to investigate and provide the
protective services section with a report in accordance with the provision
of chapter 74.13 RCW, and where necessary to refer such report to the
court.
RCW 26.44.050 (italics ours). That statutory language is broad. Moreover,
the duties of a law enforcement agency involve more than merely forwarding
to protective services a response to a report of abuse, as respondents
contend.3 Because no limitation is placed on the duty to investigate and
there is a particular class of persons to whom the duty is owed, breach of
that duty gives rise to a cause of action in negligence.
The respondents additionally argue that police investigation of child
abuse allegations should be governed solely by the standard of probable
cause. They base their argument upon the second paragraph in RCW 26.44.050
that allows a law enforcement officer to take a child into custody without
a court order if 'there is probable cause to believe that the child is
abused or neglected{.}' That provision specifies, however, only what is
required in order to take a child into custody and does not address the
general investigative responsibility.
Applying only a standard of probable cause does not fulfill the
legislative purpose of protecting children and their parents from
unnecessary disruption in their relation to one another. An investigation
can be conducted negligently and yield false information which may then be
used to support a finding of probable cause. By ensuring that the
investigation is conducted in a nonnegligent manner, the balance between
the protection of the child and the parent-child relationship is
maintained. Moreover, permitting negligence actions against law
enforcement officials does not leave them without statutory and common law
qualified immunity.
Finally, the respondents assert that allowing a negligent
investigation claim against law enforcement agencies would lead to the
'absurd' result that prosecutors would also be liable for negligent
investigation contrary to their prosecutorial immunity because they are
included in the definition of 'law enforcement agency.'
This contention, however, is not supported by RCW 26.44. When the
chapter is read as a whole, it differentiates between the traditional
functions of a law enforcement agency and those of a prosecutor. For
example, RCW 26.44.030(5) requires a law enforcement agency that receives a
report of child abuse to 'report such incident . . . to the proper county
prosecutor or city attorney for appropriate action' when investigation
reveals that a crime may have been committed. That clearly refers to a
prosecutorial function.
In short, whether the prosecuting attorney is entitled to immunity for
acts taken pursuant to RCW 26.44 is resolved by traditional immunity
analysis. Under this analysis, only when a prosecutor engages in functions
outside the scope of prosecutorial duties do his or her actions result in
exposure to the same liability as other persons performing those same
functions:
There is a difference between the advocate's role in evaluating evidence
and interviewing witnesses as he prepares for trial, on the one hand, and
the detective's role in searching for the clues and corroboration that
might give him probable cause to recommend that a suspect be arrested, on
the other hand. When a prosecutor performs the investigative functions
normally performed by a detective or police officer, it is "neither
appropriate nor justifiable that, for the same act, immunity should protect
the one and not the other.'
Gilliam v. Department of Social & Health Servs., 89 Wn. App. 569, 583, 950
P.2d 20 (1998) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.
Ct. 2606, 125 L. Ed. 2d 209 (1993). Thus, neither RCW 26.44 nor our
holding restricts prosecutorial immunity.
Holding law enforcement agencies to a standard of negligence in child
abuse investigations should not have the effect of chilling those
investigations. Rather, such a standard will encourage careful, thorough
investigations, which support the public policy of protecting children from
child abuse while at the same time preventing unwarranted interference in
the parent-child relationship.
Negligent Supervision-Training
The appellants also allege that the police officers were negligently
supervised and trained. Negligent supervision creates a limited duty to
control an employee for the protection of a third person, even when the
employee is acting outside the scope of employment. Niece v. Elmview Group
Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). If an employee conducts
negligent acts outside the scope of employment, the employer may be liable
for negligent supervision. Niece, 131 Wn.2d at 51; Gilliam, at 584-85.
Although the issue of whether conduct was inside or outside the scope
of employment is typically a jury question, here the respondents have not
alleged that any conduct occurred outside the scope of employment. On the
contrary, their argument rests on the theory that their employees acted
according to their assigned duties. The appellants rely upon the same
evidence to prove negligent supervision as they do to prove negligent
investigation. But because the individual employees as well as their
employers had a statutory duty to investigate properly, any negligence on
the part of the individual officers is attributable to their employers.
Consequently, if the police officers are found to be negligent in their
investigation, then their employers may be held vicariously liable. If the
appellants fail to prove negligence, then the employers cannot be held
liable even if their supervision was negligent. Based upon the facts
presented here, no additional cause of action for negligent supervision is
necessary. See Gilliam, 89 Wn. App. at 584-85.
Conclusion
In conclusion, we hold that a negligent investigation claim against
the respondents is cognizable under RCW 26.44. Accordingly, the trial
court's dismissal is reversed and the claim of negligent investigation is
remanded for further proceedings.
WE CONCUR:
1Because this is a CR 12(b)(6) motion, we summarize the allegations as if
they had been established.
2Our conclusion is strengthened in that the original statute imposed the
duty to investigate only upon law enforcement agencies. In 1969, the
Legislature added 'department of public assistance,' which was later
rewritten to read 'department of social and health services.' RCWA
26.44.050. Thus, it is clear that DSHS's duties under the statute are to
apply equally to law enforcement agencies.
3The agency receiving the report must investigate and notify DSHS of all
reports received and its disposition of them. RCW 26.44.030(5).
Additionally, a law enforcement agency must report the results of an
investigation to the prosecutor if the investigation reveals that a crime
may have been committed (RCW 26.44.030(5)), may interview children (RCW
26.44.030(10)), and must take the child into custody if there is reason to
believe a child's welfare is in danger (RCW 26.44.056(2)).