Kim v. Lakeside Adult Family Home

·F·I~l:E
/ IN CLERKS OFFICE~
1UPREME COURT, STATE OF WASHINGTON
i DATE MAY 1 2 20'16
-hta. eke~ (] . ~-~·
CHIEF USTICE . Supreme court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ESTHER KIM, as Personal Representative of
the Estate ofHO IM BAE on behalf ofMi-Soon
Kim, J ae C. Kim, Chang Soon Kim, Jae Hong
Kim, and Kyoung Soon Kim, surviving family
members; and the ESTATE OF HO IM BAE,

Petitioners/Cross Respondents,

v. NO. 91536-9
LAKESIDE ADULT FAMILY HOME;
GRETCHEN DHALIWAL INCORPORATION
(G.D., INC.), a Washington corporation d/b/a
LAKESIDE AFH; and GRETCHEN
DHALIWAL, individually; and JANE and
JOHN DOES I-V, individually, ENBANC

Defendants,

ALPHA NURSING AND SERVICES
INCORPORATED, a Washington corporation,
MAY 1 2 2016
Respondent,

and

CHRISTINE THOMAS, individually,

Respondent/Cross Petitioner.
Kim, eta!. v. Lakeside Adult Family Home, eta!., 91536-9

STEPHENS, J.-Ho Im Bae died from acute morphine intoxication at Lakeside

Adult Family Home. Esther Kim, the personal representative ofBae's estate, brought

tort claims against several individuals involved in Bae's care. This appeal concerns

claims against Alpha Nursing & Services Inc. and two of its nurses, who did not provide

nursing services to Bae, but who are alleged to have observed signs of abuse and

physical assault that should have been reported to the Department of Social and Health

Services (DSHS) and law enforcement. The primary issue before us is whether the

abuse of vulnerable adults act (AVAA), chapter 74.34 RCW, 1 creates an implied cause

of action against mandated reporters who fail to report abuse.

The trial court granted the defendants' motion for summary judgment. The Court
.,

of Appeals affirmed, holding that one of the nurses did not have a duty to report and the

other nurse fulfilled her reporting duty by contacting DSHS. Kim v. Lakeside Adult

Family Home, 186 Wn. App. 398,416,345 P.3d 850, review granted, 183 Wn.2d 1017,

355 P.3d 1152 P.3d 1152 (2015). We reverse the Court of Appeals on this issue. The

AV AA creates a private cause of action against mandated reporters who fail to report

abuse, and genuine issues of material fact preclude summary judgment.

A separate issue is whether the claims against one of the nurses should be

dismissed for insufficient service. The nurse, Christine Thomas, moved to Norway.

The plaintiff personally served her there almost a year after filing the amended

complaint and properly serving Alpha. The plaintiff also delivered a copy of the

1 This statute has been amended multiple times since the commencement of this
action. Except where indicated, these changes do not impact our analysis. For ease of
reference, unless otherwise specified, we cite to the current version of the statute.

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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9

summons and complaint to Norway's designated central authority pursuant to the

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in

Civil or Commercial Matters, Nov. 15, 1965,20 U.S.T. 361 (Hague Convention). The

trial court denied Thomas's motion to dismiss, and the Court of Appeals affirmed. Kim,

186 Wn. App. at 416. We agree with the Court of Appeals that the statute oflimitations

was tolled but disagree that personal service was proper. Consistent with Norway's

ratification of the Hague Convention, however, the plaintiff acted with reasonable

diligence in serving Thomas through Norway's designated central authority. We

therefore affirm the lower courts' denial of the motion to dismiss.

Both parties seek attorney fees, but we deny their requests as premature because

neither party has yet prevailed. We remand this case to the trial court for further

proceedings.

FACTS AND PROCEDURAL HISTORY

This appeal arises out of an order granting summary judgment to defendants

Alpha and Thomas, dismissing claims brought by Esther Kim, the personal

representative of the estate ofHo Im Bae (collectively Kim). Presented below are the

undisputed facts in this case. Additional facts are provided in the analysis section as

necessary.

Ho Im Bae, a resident of Lakeside Adult Family Home, 2 died of acute morphine

intoxication on March 30, 2009. The state medical examiner ruled the death a

2
Neither Lakeside nor its owner, Gretchen Dhaliwal, are parties to this appeal. See
Clerk's Papers (CP) at 22-24.

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homicide. The autopsy report and a photo in the record reveal visible bruising on Bae' s

head and neck. The primary suspect, Fanny IrawatV was one ofBae's caregivers and

is not a party to this lawsuit.

Alpha is a home health agency that provides nursing services to patients living

in adult family homes, assisted living facilities, and private homes. At the time ofBae' s

death, Alpha employed two nurses who visited patients at Lakeside: Thomas, RN, and

Marion Binondo, LPN. 4 Bae was not one of Alpha's patients. Neither Thomas nor

Binondo provided her with nursing services.

On March 28 or 29, 2009, Binondo was visiting her patient Kerri Salzbrun at

Lakeside. Binondo and Salzbrun heard a "thump" or a "thud" from an adjacent room

and went into that room. Binondo saw a woman, now identified as Bae, lying on the

floor. Binondo at least suggested to Bae's caregiver, Irawati, that she may want to call

911. Irawati responded that Bae "falls a lot" and that she would call Dhaliwal,

Lakeside's owner who is also a nurse. Irawati put Bae back in bed, and Binondo saw

that Bae was moving her legs. When Binondo left Lakeside, Irawati was on the phone.

Binondo did not call either DSHS or 911 emergency services at that time.

On March 30, 2009, Thomas visited Salzbrun at Lakeside. During that visit,

Salzbrun told Thomas that Irawati had been giving Bae morphine. Thomas observed

Irawati dragging or pulling Bae into the bathroom. Bae was not moving her feet. Bae

3
This does not appear to be her real name, although it is the name the parties use.
See CP at 851. Her real name is unknown, so to be consistent with the parties' designation,
we refer to her as "Irawati."
4 Binondo is not a named party to this suit. CP at 925-26.

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appeared to Thomas as either "heavily sedated" or at a "decreased level of

consciousness." Clerk's Papers (CP) at 767, 179. Thomas looked at Bae's records and

determined that Bae was not prescribed morphine. Thomas left the home at

approximately 9:55 a.m. and called DSHS at approximately 10:00 a.m. The DSHS

hotline number was busy. Thomas called again at approximately 11:30 a.m. and left a

message describing her observations and Salzbrun's assertion that Bae was being given

morphine.

On April1, 2009, Thomas and Binondo were working at Alpha's office. Thomas

informed Susan Gange, Alpha's director of nursing, that she had called DSHS on March

30 to report her concerns about Bae. At Gange's request, Thomas prepared a written

statement for Alpha's files describing what she had told DSHS. That same day, Thomas

told Binondo about her observations at Lakeside. Based on that conversation, Binondo

believed the woman she heard fall may have been the same woman Thomas observed

being dragged into the bathroom. Binondo spoke with Gange about the fall, and Gange

instructed Binondo to report the incident to DSHS.

Thomas, a Norwegian citizen who had lived in the United States for over 25

years, moved back to Norway in August 2010. Kim filed her first amended complaint,

in which she added Alpha and Thomas as defendants, on March 20,2012. Kim served

Alpha on March 26, 20 12. Service on Thomas is at issue and is discussed in detail

below.

On April 3, 2013, Thomas moved to dismiss under CR 12(b)(4), (5), and (6),

arguing that Kim failed to commence litigation against Thomas within the three-year

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statute of limitations period, and that Kim failed to properly serve Thomas under the
Hague Convention. Judge RichardT. Okrent denied the motion to dismiss on May 1,
20 13. Thomas moved to certify the order denying the motion to dismiss for immediate
appellate review. On June 18, 2013, Judge Janice E. Ellis granted the motion for
certification.
On March 28,2013, Alpha and Thomas moved for summary judgment. Judge
George F.B. Appel granted their motion on July 16, 2013, and denied Kim's motion for
reconsideration on August 2, 2013. Kim appealed the order granting summary
judgment, and it was joined with Thomas's cross appeal of the order denying her motion
to dismiss. Division One of the Court of Appeals affirmed both decisions. J(im, 186
Wn. App. 398. Kim petitioned this court for review, and Thomas cross petitioned for
review. We granted both petitions for review. Kim, 183 Wn.2d 1017.
ANALYSIS
The primary issue in this case is whether the mandatory reporting provision of
the AVAA, RCW 74.34.035, creates an implied private cause of action for negligent
failure to report abuse. "Statutory interpretation is a question oflaw reviewed do novo."
Beggs v. Dep 't of Soc. & Health Servs., 171 Wn.2d 69, 75, 247 P.3d 421 (2011).

Applying the test this court developed in Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d
1258 (1990), we hold that RCW 74.34.035 creates an implied cause of action.

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1 The AVAA Creates an Implied Cause ofAction against Mandated Reporters Who
Fail To Report

To determine if a statute creates an implied cause of action, we employ a three-

part test. Bennett, 113 Wn.2d 912. We ask, "[F]irst, whether the plaintiff is within the

class for whose 'especial' benefit the statute was enacted; second, whether legislative

intent, explicitly or implicitly, supports creating or denying a remedy; and third,

whether implying a remedy is consistent with the underlying purpose of the legislation."

Id. at 920-21 (quoting In reWash. Pub. Power Supply Sys Sec. Litig., 823 F.2d 1349,

1353 (9th Cir. 1987)).

We have previously applied this test to the abuse of children act (ACA), chapter

26.44 RCW, and our analysis in that context guides our analysis here. In Beggs, this

court held that the mandatory reporting portion of the ACA, RCW 26.44.030, implies

a cause of action against mandatory reporters who fail to report suspected child abuse.

171 Wn.2d 69. First, the court found "victims of child abuse are certainly within the

class for whose 'special' benefit the legislature enacted the reporting statute." I d. at 77.

Second, the court found "the statute implicitly supports a civil remedy." Id. at 78. The

ACA provides immunity from civil liability for those who cooperated in good faith with

an investigation arising from a report made under the ACA. Id.; RCW 26.44.060(5).

The court reasoned, "'A grant of immunity from liability clearly implies that civil

liability can exist in the first place."' Beggs, 171 Wn.2d at 78 (quoting Jane Doe v.

Corp. ofPresident of Church ofJesus Christ ofLatter-Day Saints, 141 Wn. App. 407,

422-23, 167 P.3d 1193 (2007)). Because the statute imposed a duty on certain

professionals to report suspected child abuse, we held "[t]he statutory scheme supports

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an implied cause of action for a failure to fulfill that duty." Id. Finally, the court

recognized "an implied cause of action is consistent with the underlying purpose of the

statute." Jd. Looking to the statute's declaration of purpose, we found the purpose

of the statute was to ensure that protective services were available to prevent further

abuses and safeguard abused children's general welfare. Id. Furthermore,

legislative history stated, '"Governmental authorities must give the prevention,

treatment, and punishment of child abuse the highest priority, and all instances of

child abuse must be reported to the proper authorities.'" !d. (quoting LAWS OF 1985,

ch. 259, § 1).

Subsequent legislative action implicitly approved of this court's holding that

the ACA creates an implied cause of action against mandated reporters who fail to

report child abuse. The ACA has been amended multiple times post-Beggs.

Although some of these amendments have limited governmental entities' liability,

see, e.g., LAWS OF 2012, ch. 259, § 14, codified at RCW 26.44.280, none of these

changes have implicated the implied cause of action this court found in Beggs.

The AV AA is similar to the ACA, and thus Beggs is persuasive. Indeed, prior

to 1999, some of the AVAA's protections were incorporated in the ACA. See, e.g.,

former RCW 26.44.010-.020 (1969) (incorporating the protection of mentally

disabled adults into the statute); former RCW 26.44.010 (1977) (incorporating the

protection of adult developmentally disabled persons into the declaration of

purpose). Even after the AVAA was enacted, the ACA continued to provide

protection for vulnerable adults. See, e.g., LAWS OF 1984, ch. 97, §§ 1, 2 (the same

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year that the AV AA was enacted, see id. §§ 7-15, 17-18, the legislature amended the

ACA, changing "adult developmentally disabled persons" to "adult dependent

persons" but maintaining protection for such individuals under chapter 26.44 RCW).

It was not until 1999 that the legislature removed all reference to adults from the

ACA. See LAWS OF 1999, ch. 176, §§ 27-33; see also FINAL B. REP. ON SUBSTITUTE

H.B. 1620, 56th Leg., Reg. Sess. (Wash. 1999) (explaining that this bill consolidated

and made uniform the three statutes that required the reporting and investigation of

abuse of vulnerable adults).

Furthermore, the A V AA is similar to the ACA in both structure and purpose.

First, vulnerable adults who are the victims of abuse or neglect are within the class

of people for whose "special" benefit the legislature enacted the reporting statute.

When the legislature consolidated provisions protecting vulnerable adults into

chapter 74.34 RCW, it declared, "The purpose of chapter 74.34 RCW is to provide

the department [of social and health services] and law enforcement agencies with

the authority to investigate complaints of abandonment, abuse, financial

exploitation, or neglect of vulnerable adults and to provide protective services and

legal remedies to protect these vulnerable adults." LAWS OF 1999, ch. 176, § 1.

Second, legislative intent supports creating a private cause of action against

mandated reporters who fail to report. Like the ACA, the A V AA provides immunity

for those who in good faith make a report or testify about alleged abuse or neglect

under the chapter. See RCW 74.34.050. As this court observed in Beggs, the

provision of immunity from liability implies the possibility of civil liability. See

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Beggs, 171 Wn.2d at 78. Furthermore, the legislature clearly anticipated the

possibility of liability for failing to report. In the same provision that grants

immunity for those who report in good faith, the legislature limited liability for
permissive reporters, providing, "The making of permissive reports as allowed in
this chapter does not create any duty to report and no civil liability shall attach for

any failure to make a permissive report as allowed under this chapter." RCW

74.34.050(1) (emphasis added). By specifying that permissive reporters are not

liable for failing to report, but remaining silent as to mandated reporters, the

legislature implicitly recognized the existence of a cause of action against mandated
reporters who fail to report. 5

5
The legislative history of RCW 74.34.050(1) supports this conclusion. The
original AVAA addressed reporting by mandated reporters. See former ch. 74.34 RCW
(1984). Two years after its enactment, the legislature expanded the list of mandated
reporters and added permissive reporting. LAws OF 1986, ch. 187, § I. The legislature
also amended the civil liability provision to provide immunity from suit for permissive
reporters who failed to report. !d. § 3(1) ("The maldng of permissive reports ... does not
create any duty to report and no civil liability shall attach for any failure to make a
permissive report . . . ."). Given that the legislature was clearly contemplating both
mandated and permissive reporters, we consider its silence with regard to civil liability
against mandated reporters a deliberate decision to leave the door open for an action against
mandated reporters who fail to report. Similarly, in 1999, the legislature again
contemplated both mandated reporters and a limitation on liability against permissive
reporters. In the original House Bill 1620, the legislature completely struck permissive
reporter's protection from civil liability for failure to report. H.B. 1620, at 6-7, 56th Leg.,
Reg. Sess. (Wash. 1999). However, in Substitute House Bill1620, the bill that ultimately
became law, the legislature retained the protections for permissive reporters but did not
extend such protections to mandated reporters who fail to report. See LAWS OF 1999, ch.
176, § 6. At the time, the legislature was clearly contemplating the roles of both mandated
and permissive reporters in the AVAA. It added new definitions for mandated and
permissive reporters, repealed the AVAA's old reporting provision, and added new
reporting requirements for both mandated and permissive reporters. See id. §§ 3 (adding
definitions), 35 (repealing the AVAA's original reporting provision, RCW 74.34.030), 5

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Finally, recognizing an implied cause of action is consistent with the purpose

of the statute. The purpose of the AV AA is to give DSHS and law enforcement

authority to investigate alleged abuse and neglect of vulnerable adults, and to

provide those adults with protective services and legal remedies. LAWS OF 1999,
ch. 176, § 1. Implying a cause of action for failing to report suspected abuse or

neglect is consistent with the legislature's intent to ensure that DSHS and law

enforcement investigate cases of suspected abuse, and are able to provide protective

services to abused vulnerable adults.

One notable difference between the ACA and the AVAA is that "[i]n addition

to other remedies available under the law," the AVAA explicitly includes a cause of

action for vulnerable adults who have suffered abuse or neglect either while residing

in a facility, or, for those residing at home, "who receive[] care from a home health,

hospice, or home care agency, or an individual provider." RCW 74.34.200(1). The

ACA does not explicitly create any similar cause of action.

This AVAA provision does not preclude also finding an implied cause of

action against mandated reporters for failure to report. The express liability

provision provides redress for actual abuse; it does not provide redress for those

who breach their mandatory reporting duty. "Courts have consistently held that

when a statute gives a new right and no specific remedy, the common law will

(creating the new reporting requirements for mandated and permissive reporters). Again,
the legislature's silence with regard to civil causes of action against mandated reporters
implies legislative acquiescence to a civil action against mandated reporters who fail to
report abuse.

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provide a remedy." State ex rel. Phillips v. Wash. State Liquor Control Bd., 59

Wn.2d 565, 570, 369 P.2d 844 (1962). The AVAA creates a right to have suspected

abuse reported without providing a remedy for a violation of that right. Implying a

cause of action for a mandated reporter's failure to report suspected abuse or neglect

is thus appropriate. 6

II Summary Judgment Was Improper as to the AVAA Claims

A court may grant summary judgment when, on the basis of the facts before it, a

reasonable fact finder could reach only one conclusion. See SentinelC3, Inc. v. Hunt,

181 Wn.2d 127, 140, 331 P.3d 40 (2014). This court reviews orders for summary

judgment de novo. Folsom v. Burger King, 135 Wn.2d 658,663,958 P.2d 301 (1998).

An appellate court considers all ofthe evidence presented to the trial court and "engages

in the same inquiry as the trial court." Id. Summary judgment is appropriate only

"when the pleadings, affidavits, depositions, and admissions on file demonstrate there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law." I d. The moving party bears the burden of demonstrating there is no

issue of material fact, and all facts and reasonable inferences therefrom must be viewed

6 Nor is it significant that the AV AA provides a mandated reporter "who lmowingly
fails" to report is guilty of a gross misdemeanor. RCW 74.34.053(1). The same criminal
penalty is present in the ACA for failing to report. See RCW 26.44.080. Furthermore, the
imposition of criminal penalties does not preclude finding an implied cause of action. See
Wingert v. Yellow Freight Sys., Inc., 146 Wn.2d 841, 850, 50 P .3d 256 (2002) (noting "our
courts have implied a private right of action against an employer who violates RCW
49.48.010 (unlawful to withhold or divert an employee's wages) even though violation of
the statute also constitutes a misdemeanor").

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in the light most favorable to the nonmoving party. See Sentine!C3, 181 Wn.2d at 140;

Folsom, 135 Wn.2d at 663.

In this case, there are genuine disputes of material fact that preclude granting

summary judgment. As employees of Alpha, Thomas and Binondo are mandated

reporters under the AVAA. See RCW 74.34.020(13) (defining "mandated reporter" to

include "an employee of a ... home health ... agency"); CP at 447. Although the

parties agree on this point, 7 the defendants argue that Binondo had no duty under the

A V AA to report suspected abuse because she did not observe signs of abuse. Suppl.

Br. of Resp't/Cross-Pet'r at 14-15. They further argue that Thomas had no duty to

report to law enforcement, and that reporting to DSHS fulfilled her requirements under

the AV AA. Id. The defendants also contend that Kim failed to present any admissible

evidence to show Binondo or Thomas had reason to believe abuse was occurring. Id.

at 15. 8

Under the A VAA, mandated reporters have a duty to report suspected abuse or

neglect to DSHS and, in appropriate circumstances, directly to law enforcement. The

statute provides:

(1) When there is reasonable cause to believe that abandonment, abuse,
financial exploitation, or neglect of a vulnerable adult has occurred,

7
Although originally Alpha and Thomas argued that neither Thomas nor Binondo
had a duty to report suspected abuse of Bae because Bae was not their patient, CP at 901-
03, they no longer advance this argument. See Suppl. Br. ofResp't/Cross-Pet'r at 14-15.
8 We need not address the issue of harm. It is undisputed that Bae died because of

acute morphine intoxication. We also need not address causation, which was raised in
Alpha and Thomas's motion for summary judgment but was not addressed in the Court of
Appeals opinion and is not asserted by Alpha and Thomas as a basis to affirm the summary
judgment order.

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mandated reporters shall immediately report to the department [of social and
health services].

(3) When there is reason to suspect that physical assault has occurred
or there is reasonable cause to believe that an act has caused fear of imminent
harm:
(a) Mandated reporters shall immediately report to the department;
and
(b) Mandated reporters shall immediately report to the appropriate
law enforcement agency, except as provided in subsection (4) of this
section. [9l

RCW 74.34.035 (emphasis added). Whether an individual has a duty in the first

instance is a question of law. Folsom, 135 Wn.2d at 671. As discussed above, the

statute creates an implied cause of action, and its plain language requires mandated

reporters to report suspected abuse to either DSHS, or DSHS and law enforcement.

The Court of Appeals did not directly address the duty question, instead holding

Thomas and Binondo acted reasonably. Kim, 186 Wn. App. at 409-15,415 n.lO. Kim

is correct that whether an individual has "reasonable cause" or "reason to suspect"

abuse goes to the question of breach, not duty. The Court of Appeals appears to

have conflated these issues. See Kim, 186 Wn. App. at 409-15. Alpha and Thomas

adopt this faulty reasoning, arguing that Binondo had no duty to report to DSHS and

Thomas had no duty to report to law enforcement because they acted reasonably,

consistent with the statute. Suppl. Br. ofResp't/Cross-Pet'r at 14-15.

We agree with Kim that the court must separate the questions, first identifying

the duty the statute unequivocally places on mandated reporters, and then

9
Subsection (4) addresses the reporting of incidents of physical assault between
vulnerable adults. RCW 74.34.035(4).

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considering if genuine issues of material fact exist as to whether the reports of abuse

Binondo and Thomas received were credible, and whether they acted appropriately.

We have already identified the relevant legal duty under the AV AA. The

issue ofbreach is quintessentially a question for the trier of fact; it cannot be resolved

on summary judgment unless the material facts are undisputed and reasonable minds

could not disagree on the question. See Hertog v. City of Seattle, 138 Wn.2d 265,

275, 979 P.2d 400 (1999). In this case, there are genuine issues of material fact as

to whether (1) Binondo had "reasonable cause to believe" that abuse was occurring

and (2) Thomas had "reason to suspect that physical assault had occurred" such that

she should have reported directly to law enforcement and DSHS.

The terms "reasonable cause to believe" and "reason to suspect" have not been

defined in the AVAA, and there appears to be no case law interpreting them. 10 In

similar contexts, however, whether an individual has "reasonable cause to believe"

or "reason to suspect" are questions for the jury. Cf State v. Baker, 30 Wn.2d 601,

606-07, 192 P .2d 839 (1948) ("The question whether the resistance of the

complaining witness was prevented by fear of immediate and great bodily harm

which she had reasonable cause to believe would be inflicted upon her, was a

question of fact to be determined by the jury.").

The A V AA defined "abuse" as "the willful action or inaction that inflicts

injury, unreasonable confinement, intimidation, or punishment on a vulnerable

10 The ACA, which as noted above is similar to the AVAA, defines "reasonable
cause" as "a person witnesses or receives a credible written or oral report alleging abuse,
including ... neglect of a child." RCW 26.44.030(1 )(b)(iii).

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adult. ... Abuse includes ... physical abuse." Former RCW 74.34.020(2) (2008).

"Physical abuse" is "the willful action of inflicting bodily injury or physical

mistreatment. Physical abuse includes, but is not limited to, ... the use of chemical

restraints." Former RCW 74.34.020(2)(b) (2008). Giving a patient morphine

without a prescription would qualify as physical abuse by use of a chemical restraint.

In addition, it may qualify as assault under chapter 9A.36 RCW, which defines

"assault" to include the administration of a "destructive or noxious substance."

RCW 9A.36.0ll(l)(b), 9A.36.021(1)(d).

Alpha and Thomas argue there is no admissible evidence to support a finding

that Binondo had reasonable cause to believe Bae was being abused. Suppl. Br. of

Resp't/Cross-Pet'r at 15. This argument overlooks the following evidence creating

a genuine dispute of material fact: in her call to DSHS, Binondo told DSHS that she

noted Bae "had passed out" after the fall. CP at 309-10. 11 Binondo witnessed Irawati

pick Bae up after the fall (something Binondo cautioned Irawati against), drag her

into bed, and then not examine Bae. I d. Binondo also told DSHS that Salzbrun told

her "she thought [Bae] looked doped as she saw [Irawati] crush pills .... I know

what they look like because I take them also." Id. at 310. Binondo also indicated

that not only did she think Salzbrun was reliable, but that Salzbrun had told her the

same thing multiple times. Id. (when asked if Salzbrun was reliable, Binondo

11
Despite Alpha and Thomas's arguments, see CP at 71-72, the notes from DSHS
on Thomas's and Binondo' s calls may be admissible under the Uniform Business Records
as Evidence Act, chapter 5.45 RCW. See RCW 5.45.020. The record contains the DSHS
custodian's verification. CP at 314.

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responded, "I think so. . .. Now I think she is pretty reliable. She keeps telling me

the same thing over and over. I think she is pretty reliable about it."). Looking at

this evidence, a jury could conclude that on the day she heard Bae fall, Binondo had

"reasonable cause to believe" Bae was being abused, thus triggering Binondo' s duty

as a mandated reporter to immediately report the suspected abuse to DSHS. See

RCW 74.34.035(1).

There is additional evidence that could support a jury's conclusion that

Binondo had reasonable cause to believe Bae was being abused or neglected on the

day of the fall. Salzbrun also stated that she told Binondo Bae was "doped up"

shortly before Binondo left on the day of the fall. CP at 124. In addition, in her

deposition, Binondo stated she "[p]robably" remembered Bae losing consciousness

after the fall, id. at 332, and despite knowing the dangers of head strikes after a fall,

see id. at 331, Binondo did not insist Bae' s caregiver call 911 nor call 911 herself.

Id. at 329. All of this evidence raises questions of material fact that preclude

summary judgment.

Alpha and Thomas also argue that there is no admissible evidence to support

a finding that Thomas had "reason to suspect" that Bae was being abused such that

it would require an immediate call to law enforcement in addition to DSHS. The
Court of Appeals agreed and held that because Thomas did not actually see Bae

being given morphine and because she doubted Salzbrun's credibility, there was

insufficient evidence of physical assault to require Thomas to call law enforcement

in addition to DSHS. See I