IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
DEBRA KOSHELNIK and GLEN TURNER ) No. 75032-1 -I
individually and the marital community )
consisting thereof: and The Estate of ) DIVISION ONE
EVELYN KOSHELNIK, through DEBRA )
KOSHELNIK as personal representative ) UNPUBLISHED OPINION
thereof, )
)
Appellants, )
)
v. )
)
STATE OF WASHINGTON, ) ~ Cs~
DEPARTMENT OF SOCIALAND )
HEALTHSERVICES(DSHS),SUSANN. )
DREYFUS, Secretary of DSHS, LINDA ) ~
ROLFE, Director, Division of )
Developmental Disabilities of DSHS, )
CONNIE WASMUNDT, EVELYN ) ~
CANTRELL, LOREN JUHNKE, and )
BARBARA UEHARA, employees of DSHS )
and unknown supervisors and managers )
of said employees to be named, )
)
Respondents. ) FILED: June 20, 2016
___________________________________________________________________________________________ )
APPELwicK, J. — Debra and her husband provided care to three children
with Down Syndrome and Debra’s elderly mother, Evelyn, and her brother. The
Department investigated Debra after first receiving a report that Debra hit one of
No. 75032-1 -1/2
the children. As a result of this investigation, the Department entered a
substantiated finding of abuse against Debra. The Department then later received
a report that Debra was not properly caring for Evelyn, a vulnerable adult. A
Department investigator interviewed Evelyn. Evelyn had a stroke that same day
and subsequently died. Appellants filed a complaint against the Department and
its employees, alleging, among other causes of action, negligent investigation,
defamation, outrage, conspiracy, and violations of civil rights. The trial court
granted the Department summary judgment as to all claims. Appellants either fail
to state a claim upon which relief can be granted or fail to provide sufficient
evidence to show that there are genuine issues of material fact as to those claims.
We affirm.
FACTS
Debra Koshelnik and Glen Turner are married. In 2007, they lived with their
two adopted children (Virginia, Morgan), their child through the legal guardianship
process (Parker), Debra’s1 parents (Edward Koshelnik and Evelyn Koshelnik), and
Debra’s brother (Daniel Koshelnik). Daniel, Virginia, Morgan, and Parker all have
Down Syndrome. Debra has been Daniel’s caregiver for many years. Debra
chose to adopt the children specifically because she has a calling to provide care
to individuals with Down Syndrome. Both Daniel and Parker are clients of the
Department of Social and Health Services (Department) Division of Developmental
IWe refer to the Koshelniks by their first names for the sake of clarity. No
disrespect is intended.
2
No. 75032-1 -1/3
Disabilities (DDD). They receive personal care services from DDD. Their personal
care provider was Debra. Debra entered into a client service contract2 with the
Department in May 2005.
Both of Debra’s parents are deaf. Consequently, she grew up in a deaf
household and uses American Sign Language (ASL). Debra is not deaf, is
articulate in the English language, and has served as an interpreter between her
deaf relatives and other hearing persons.
I. The First Incident
On February 8, 2007 as Virginia was preparing to go to school, there was
an altercation between Virginia and Debra. Virginia, who was “mouthing off” and
being sassy, stuck her tongue out at Debra. Debra approached Virginia and
cautioned her to stop. When Virginia continued, Debra yelled at her never to do
that, poked Virginia’s chest with a finger and attempted to “pop” Virginia’s tongue
with her hand in a “stop” motion. Atthattime, Virginia turned her head and Debra’s
hand hit Virginia’s cheek.
Turner was waiting at the car and did not see the altercation. When Virginia
came to the car, she was crying, rubbing her cheek, and said, “Mom hit me.”
Virginia then went to school and told an educational assistant that her mom had
hit her. Virginia told other people at school about the altercation with Debra. The
2 The client service contract, in general, relates to payment by the
Department for authorized services rendered to the Department’s clients. The
contract includes detailed requirements regarding responsibilities of the provider
both with respect to provision of care to clients and with respect to meeting the
Department’s procedural, training, and other requirements.
3
No. 75032-1 -114
assistant principal contacted Adult Protective Services (APS)3 on February 9,
2007. APS is also a division of the Department. See RCW 74.34.067(8).
APS conducted an investigation. APS representative Corinne Wasmundt
went to Virginia’s school to interview her on February 14, 2007. Evelyn Cantrell,
Department Attorney and Legal Benefits Advisor, was also present during the
meeting with Virginia. On February 27, 2007, Wasmundt went with Olympia Police
Officer, Ed Dawson, to the Koshelnik home. Cantrell was also present as an
observer. Wasmundt and Dawson interviewed Debra. According to Wasmundt,
during the interview, Debra admitted to slapping Virginia and poking her in the
chest. According to Officer Dawson, Debra gave Virginia a gentle pop in the mouth
and a gentle poke to the chest. He did not feel that Virginia was ever in danger,
but because the facts of the case met the elements for domestic violence, he was
required to report the incident to the prosecutor’s office. The prosecutor did not
press charges.
Debra informed DDD case workers Kris Jorgensen-Dobson and Barbara
Uehara that she was being investigated by APS. On February 28, 2007,
Jorgensen-Dobson received a phone call from Wasmundt at APS. Wasmundt told
Jorgensen-Dobson that she would be substantiating the allegation of domestic
~ The school contacted APS, because Virginia was 18 years old and is
therefore not considered a child. See RCW 26.44.020(2) (under the child abuse
statute a child is any person under the age of 18). A “vulnerable adult” includes a
person who has a developmental disability—like Virginia. RCW 74.34.020(21).
4
No. 75032-1-115
violence. Uehara also made a note in the file indicating that she understood that
Debra had admitted to striking a client4 on the face.
On March 14, 2007, Uehara issued a notice to Parker stating that effective
March 15, 2007, DDD was terminating payments to his care provider—Debra. The
notice stated that DDD was taking that action, because of a reported allegation of
abuse or neglect to a vulnerable adult that is under investigation with APS. The
notice stated that Parker remained eligible for personal care services, but that he
had to choose another qualified provider. The Department sent a similar notice to
Daniel.
On April 2, 2007, Daniel and Parker requested a hearing and agreed to
consolidate their hearings. Debra continued providing personal care services to
Daniel and Parker even though she was not being paid. An administrative hearing
was held on May 21, 2007.
After conducting the hearing, the Administrative Law Judge (AU) issued a
decision on June 1, 2007. AU Rebekah Ross concluded that the light smack
Debra gave to Virginia did not constitute abuse under the relevant statute and
regulations. Consequently, the AU concluded that the Department erred in
denying Daniel and Parker their choice of care provider and it reversed the
Department’s decision to deny Debra as their care provider.
~ Virginia is also a DDD client and is thus eligible for DDD services, but was
not receiving services during the time periods at issue.
5
No. 75032-1-1/6
Then, on June 4, 2007, APS notified Debra that it had made a substantiated
finding that she had physically abused a vulnerable adult. The notice stated that
APS specifically determined that Debra willfully physically abused a vulnerable
adult when she punched and slapped Virginia. Debra timely appealed, asserting
that AU Ross already reversed the Department’s denial of payment for care
services and found that the incident did not fall within the definition of abuse.
On June 6, 2007—five days after AU Ross’s final order was issued in
Parker’s and Daniel’s appeal, reversing the Department’s decision to deny their
choice of provider—the Department again notified Parker that it was terminating
Debra’s client service contract. On June 24, 2007, Parker again appealed the
denial.
While Parker’s second appeal was pending, AU Jamie Moore held a
hearing on Debra’s appeal in January 2008, considering whether APS’s
substantiated finding of abuse should be reversed. On March 19, 2008, the AU
issued an order, concluding that the preponderance of the evidence in the hearing
record did not establish that Debra’s action, when she attempted to pop Virginia
on the tongue and then poke Virginia in the chest, constituted abuse under the
relevant statute. Consequently, the AU reversed the Department’s substantiated
finding of abuse.
The Department filed a petition for review of this order on May 14, 2008.
While that appeal was pending, Parker’s appeal challenging the Department’s
decision to terminate Debra’s client service contract continued. On June 20, 2008,
6
No. 75032-1-1/7
Parker filed a motion for summary judgment, contending that the Department’s
decision to deny his choice of Debra as his care provider was barred by res
judicata. A hearing was held on this matter on July 17, 2008 before AU Ross.
On August 18, 2008, AU Ross granted Parker’s motion for summary
judgment. AU Ross noted that although the evidence about the February 8, 2007
incident would be the same type of evidence presented in this action, a new
significant item of evidence could exist—an APS substantiated finding of abuse
against Debra. But, in determining whether the APS substantiated finding of abuse
was sufficient new evidence to defeat res judicata, AU Ross considered the fact
that the APS finding had been reversed after a full administrative hearing. She
concluded that the issue of whether Debra abused Virginia had been resolved in
Debra’s favor in Parker’s appeal and collateral estoppel would bar the Department
from injecting that issue into the proceedings unless and until AU Moore’s order
was reversed on appeal.
Shortly thereafter, on August 27, 2008, the Department’s Board of Appeals
affirmed AU Moore’s initial order reversing the APS’s substantiated finding of
physical abuse against Debra. APS did not seek further review of this decision.
II. The Second Incident
On January 4, 2010, roughly a year and a half later, APS received a report
that Debra was mentally abusing Evelyn. At the time, Evelyn was 85 years old
and her husband had recently passed away. The reporter stated that the
7
No. 75032-1-1/8
conditions in the Koshelnik home were filthy, that Evelyn is confined to her room
until Debra lets her out, and that Debra yells at Evelyn through sign language.
Consequently, the Department assigned Loren Juhnke to investigate.
Juhnke went to the Koshelnik household unannounced with a female interpreter
and told Debra that he needed to speak with Evelyn concerning the report of
abuse. Debra told Juhnke that Evelyn was in an emotionally and physically fragile
state and that any high stress contact would be frightening and dangerous to her.
Juhnke informed Debra that he was going to interview Evelyn anyway. And, he
did not allow Debra to remain in the room during the interview. Juhnke
documented the visit with Evelyn and concluded that the report of possible
mistreatment was unsubstantiated. He noted that Evelyn stated she had a
wonderful family and that her room was clean and free of clutter.
Debra went to check on Evelyn within minutes after Juhnke left. Evelyn told
Debra that she loved her and repeated, “I’m staying” and “this is my home” several
times. Debra tried to calm Evelyn down, but it did not work. Evelyn then had a
stroke. By the time they got to the emergency room, Evelyn was unconscious.
Evelyn did not regain consciousness and died the next day.
Ill. The Lawsuit
On June 7, 2011, Debra—individually and as personal representative of
Evelyn’s estate (the Estate)—and Turner (collectively “appellants”) filed a
complaint against the Department, the Secretary of the Department (Susan
Dreyfus), the Director of DDD (Linda Rolfe), Wasmundt, Cantrell, Juhnke, and
8
No. 75032-1 -119
Uehara. The appellants alleged 12 causes of action. Specifically, they brought
claims for the wrongful death of Evelyn, conspiracy, defamation, outrage, and
violation of federal civil rights. On July 14, 2011, the Department responded,5
denying all allegations against it.
Nearly two years later, on June 7,2013, the Department filed a CR 12(b)(6)
motion to dismiss and an alternative motion for summary judgment as to the
wrongful death and other claims raised on behalf of only the Estate. In response,
appellants filed exhibits including declarations, the administrative rulings, and
other supporting evidence. On July 12, 2013 the trial court granted the
Department’s motion and dismissed all of the appellants’ claims related to the
Estate. The trial court then denied appellants’ motion for reconsideration.
In the meantime, on August 22, 2013, the Department moved for summary
judgment as to all of appellants’ remaining claims. The trial court granted the
Department’s motion for summary judgment as to appellants’ remaining claims on
March 27, 2015. The appellants appeal.
DISCUSSION
Appellants argue that the trial court erred when it granted both of the
Department’s motions. The Department’s first motion was a CR 12(b)(6) motion
to dismiss and an alternative motion for summary judgment. The Department’s
second motion was a motion for summary judgment. Because the appellants
~ We refer to the Department defendants collectively as “the Department”
except where appellants’ claims are against specific individual defendants.
9
No. 75032-1-1/10
submitted evidence outside the pleadings in response to the Department’s first
motion, and because the trial court did not exclude it, we treat both of the trial
court’s orders as dismissals on summary judgment. ~ Granville Condo.
Homeowners Ass’n v. Kuehner, 177 Wn. App. 543, 550-51, 312 P.3d 702 (2013)
(stating that a motion to dismiss for failure to state a claim is treated as a motion
for summary judgment when matters outside the pleadings are presented to and
not excluded by the court).
This court reviews summary judgment orders de novo. Hadley v. Maxwell,
144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate
only where there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn.
App. 306, 310, 44 P.3d 894 (2002). An appellate court may affirm a trial court’s
disposition of a summary judgment motion on any basis supported by the record.
Davies v. Holy Family Hosp., 144 Wn. App. 483, 491, 183 P.3d 283 (2008).
When considering the evidence, the court draws reasonable inferences in
the light most favorable to the nonmoving party. Schaaf v. Hiqhfield, 127 Wn.2d
17, 21, 896 P.2d 665 (1995). However, a nonmoving party may not rely on
speculation or on argumentative assertions that unresolved factual issues remain.
White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). In a summary judgment
motion, the moving party bears the initial burden of showing the absence of an
issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225,
770 P.2d 182 (1989). If the moving party is a defendant and meets the initial
10
No. 75032-1-I/li
showing, then the inquiry shifts to the party with the burden of proof at trial—the
plaintiff. ki. The defendant may meet this initial burden by pointing out that there
is an absence of evidence to support the nonmoving party’s case. j~ at 225 n.1.
If, at this point, the plaintiff fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial, then the trial court should grant the motion. Id. at
225. In making this responsive showing, the nonmoving party cannot rely on the
allegations made in its pleadings. Id. The response by affidavits or as otherwise
provided in CR 56(e) must set forth specific facts showing that there is a genuine
issue for trial. ]4~ at 225-26. Because the defendants met their initial burden by
pointing out that there was an absence of evidence to support the appellants’ case,
to defeat summary judgment and to prevail in this case, the appellants had the
burden of establishing through admissible evidence that there was a material issue
of fact as to every element of their claims.
The appellants also argue that the trial court erred when it denied its motion
for reconsideration as to the claims relating to Evelyn’s death. Motions for
reconsideration are addressed to the sound discretion of the trial court, and a
reviewing court will not reverse a trial court’s ruling absent a showing of manifest
abuse of that discretion. Wagner Dev., Inc. v. Fid. & Deposit Co. of Md., 95 Wn.
App. 896, 906, 977 P.2d 639 (1999).
11
No. 75032-1 -1/12
I. Claims Related to Evelyn’s Death
We begin by addressing appellants’ claims that were dismissed through the
trial court’s first order granting summary judgment—all of the claims against the
Department that related to Evelyn’s death.
The appellants’ complaint alleged several facts about APS investigator
Juhnke’s interview with Evelyn. The complaint noted that rather than investigating
the source of the allegations against Debra’s care of Evelyn, the Department sent
an APS agent to interrogate Evelyn—implying that this was premature. And, the
complaint stated that, “To this 85-year-old frail deaf woman they sent a poorly
trained but imposing six foot tall man, Loren Juhnke, whose presence and the
nature of his questioning literally terrified [Evelyn] to death.” The complaint alleged
that supervisors or APS agents with basic knowledge or adequate training would
have known that their tactics, including using an ASL interpreter unknown to
Evelyn, would cause life threatening anxiety to a person in Evelyn’s condition. The
complaint noted that the Department’s ASL interpreter—the interpreter who was
present during Evelyn’s interview—confirmed that, in her opinion, questioning an
elderly deaf woman with a strange interpreter would in fact likely cause her great
anxiety. And, it stated that Evelyn’s hemorrhagic stroke—and death the next day—
was caused by the “terror generated by the interview.”
A. Negligent Investigation — The Department and Juhnke
On appeal, the appellants cite to Debra’s declaration and contend that
Juhnke’s “questioning did, in fact cause [Evelyn’s] death by a massive stroke which
12
No. 75032-1-1/13
occurred within minutes of his ending an ill-conceived interview, the dangers of
which he was clearly warned.” The appellants claim that Juhnke’s gross
negligence during the investigation caused Evelyn’s death.
In general, Washington common law does not recognize a claim for
negligent investigation because of the potential chilling effect such claims would
have on investigations. Janaszak v. State, 173 Wn. App. 703, 725, 297 P.3d 723
(2013). We have refused to recognize a cognizable claim for negligent
investigation against law enforcement officials and other investigators. j.çj~.
Washington courts have only recognized a negligent investigation claim against
the Department’s caseworkers investigating child abuse pursuant to their specific
statutory duty to investigate. j~
The cases that have recognized such a claim involve allegations that the
Department failed to adequately investigate a child’s living situation before making
a decision to remove a child from a home or place a child in a home. M.W. v. Dep’t
of Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). But in M.W.,
the court rejected the plaintiff’s attempt to broaden the duty to investigate after
parents sued, claiming that Department investigators inappropriately touched their
daughter’s genitals during the course of a child sexual abuse investigation. j~ at
592, 595-96, 598, 601. Specifically, the M.W. court considered whether the
statutory purpose of the child abuse statute supports a broader duty to protect
children from harm that is the result of direct negligence by Department
13
No. 75032-1-1/14
investigators during the course of an investigation, such as dropping a child or
negligently inflicting emotional harm. Id. at 598.
The M.W. court engaged in this inquiry, because of the test outlined in
Bennett v. Hardy, 113 Wn.2d 912, 919, 784 P.2d 1258 (1990), to determine
whether we may infer a cause of action from a statutory duty. M.W., 149 W.2d
596. The Bennett court recognized that when the legislature creates a duty, we
may provide a remedy for its breach if the remedy is appropriate to further the
purposes of the statute and is needed to assure its effectiveness. j~ To determine
whether an implied cause of action was warranted, the Bennett court adopted the
approach used by federal courts, which requires us to determine, among other
factors, whether the underlying purpose of the legislation is consistent with
inferring a remedy. Id. The M.W. court ultimately held that a cause of action from
a statutory duty is limited by the harm the statute is meant to address. ~ at 602.
It declined to expand the cause of action because the child abuse statute from
which the tort of negligent investigation was implied does not contemplate the type
of harm that could result directly from investigators. ~
Here, the Department had a statutory duty to investigate. ~ RCW
74.34.063(1) (stating that the Department shall initiate a response to a report of
abuse of a vulnerable adult no later than 24 hours after knowledge of the report).
No Washington case has decided that a negligent investigation claim exists
relative to this statute. We need not do so here.
14
No. 75032-1-1/15
Even if we were to assume that a claim for negligent investigation extends
to APS investigations, and even if Juhnke’s simple presence or behavior somehow
constituted an improper investigation, M.W. requires us to consider the harm the
vulnerable adult statute is meant to address. The purpose of chapter 74.34 RCW
is to provide the Department and law enforcement agencies with the authority to
investigate complaints of abuse or neglect of vulnerable adults by family members,
caregivers, and others with whom they have a relationship, and to provide
protective services to protect these vulnerable adults. ~ RCW 74.34.005
(stating the legislature’s findings); SUBSTITUTE H.B. 1620, at 1, 56th Leg., Reg.
Sess. (Wash. 1999). Nothing in the act hints at a purpose of protecting vulnerable
adults from the Department or creating a cause of action in tort against the
Department for the manner in which its personnel carry out the statutory mandate.
Even if we were to recognize that appellants could bring a claim for
negligent investigation against Juhnke in this context, causation is a required
element of a negligent investigation claim. ~ Tyner v. Dep’t of Soc.& Health
Servs., 141 Wn.2d 68, 82-83, 1 P.3d 1148 (2000). The trial court found that
appellants did not present a prima facie case of causation between Juhnke’s acts
and Evelyn’s death. We agree.
To survive summary judgment, the plaintiff’s showing of causation must be
based on more than mere conjecture or speculation. Miller v. Likins, 109 Wn. App.
140, 145, 34 P.3d 835 (2001). Therefore, to survive summary judgment,
appellants would have to demonstrate that there is an issue of material fact as to
15
No. 75032-1-1/16
whether Juhnke’s investigation caused Evelyn’s stroke and eventual death. It is
not disputed that Evelyn was agitated after the interview. But, there was no
evidence that her stroke and subsequent death were caused by the agitation from
the interview—it is mere speculation.
Appellants’ complaint stated in a conclusory fashion that the interview
caused Evelyn’s blood pressure to spike, leading to a stroke within minutes of the
interview. It also asserted that the Department’s interpreter later confirmed6 that,
in her opinion, questioning an elderly deaf woman with a strange interpreter would
likely cause her great anxiety. In its memorandum in opposition to the
Department’s motion for summary judgment, appellants cited to the declaration of
Allie Joiner, an advocate for deaf persons. Joiner asserted that an interview like
the one at issue here would likely cause a deaf interviewee anxiety. She concluded
that conducting the interview and the manner in which it was conducted was
grossly negligent. Significantly, Joiner’s declaration did not assert that the
interview—or the anxiety stemming from the interview—caused Evelyn’s death.
Nor was any medical testimony supporting such causation offered.
On appeal, appellants cite to Debra’s declaration, which outlines the
timeline of events between when Juhnke left and when Evelyn had a stroke. It
also cites to literary references to support its assertion that it provided enough facts
to survive summary judgment on the basis of causation. This argument asks to
6 There is no declaration from the interpreter in the record to support this
assertion.
16
No. 75032-1 -1117
allow a jury to speculate that due to the temporal proximity of the events that there
was cause and effect. It is insufficient to establish causation. Appellants did not
meet their burden to provide evidence to support every element of this claim.
Young, 112 Wn.2d at 225. We hold that the trial court properly dismissed
appellants’ negligent investigation claim on summary judgment.
Appellants also claim that the trial court erred when it denied its motion for
reconsideration on the order granting the Department summary judgment as to
these claims. Appellants assert only that denial of their motion was improper
because their expert, Joiner, had stated that the Department’s practice of sending
an APS agent who was not himself ASL fluent would be distressing to an
interviewee. The trial court was already duty bound to accept the allegation that
the interview caused anxiety as true for purposes of summary judgment. See
Schaaf 127 Wn.2d at 21 (stating that when considering the evidence, the court
draws reasonable inferences in the light most favorable to the nonmoving party).
The declaration adds nothing to prove the distress caused the death. We see no
basis on which to conclude that denial of reconsideration was an abuse of
discretion.
B. Negligent Training — Susan Drevfus
Appellants also assert a cause of action for negligent training against Susan
Dreyfus—the Secretary of the Department. Appellants assert that no one in the
chain of command seemed to know that it is always dangerous practice to send
an official investigator without ASL skills to interview an elderly deaf woman. And,
17
No. 75032-1 -1/18
that this ignorance led to Evelyn’s death. Appellants assert “[t]his is an equal
protection claim and a denial of life without due process.” Appellants ostensibly
raise this as a 42 U.S.C. § 1983~ (~ 1983) cause of action. Appellants also assert
that “it is a discrimination claim under [chapter] 49.60 [RCW].”
The basis of the appellants’ negligent training argument on appeal is
confusing. In the event that appellants intended their negligent training argument
to be a state law claim—as it alleged below—we will address that here. In
Washington, a cause of action for negligent training requires a plaintiff to show that
a subordinate employee acted outside the scope of his or her employment. ~
LaPlant v. Snohomish County, 162 Wn. App. 476, 479-80, 271 P.3d 254 (2011).
When an employee commits negligence within the scope of employment, a
different theory of liability—vicarious liability—applies. ]~ Therefore, under
Washington law, a claim for negligent training is generally improper when the
employer concedes the employee’s actions occurred within the course and scope
of employment. Id. at 480. Here, the Department has conceded that the individual
~ The statute states in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, or any State or
Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
18
No. 75032-1-1/19
defendants, including Junkhe, were acting within the scope of their employment at
the time of the events in question. To the extent the claims under §1983 and
chapter 49.60 RCW are based on negligent training, they fail.
Moreover, there is no indication in the record that the appellants raised
§ 1983 claims and claims under chapter 49.60 RCW below against Dreyfus based
on a theory of negligent training. Therefore, these specific claims are being raised
for the first time on appeal.
The general rule is that appellate courts will not consider issues raised for
the first time on appeal. Eyman v. McGehee, 173 Wn. App. 684, 698, 294 P.3d
847 (2013). RAP 2.5(a)(3) provides an exception to the general rule that parties
cannot raise new arguments on appeal. State v. WWJ Corp., 138 Wn.2d 595, 602,
980 P.2d 1257 (1999). We construe the exception narrowly by requiring an
appellant seeking review to identify (1) a constitutional error and (2) how the
alleged error actually affected appellants’ rights at trial. j~; Eyman, 173 Wn. App.
at 698-99. RAP 2.5(a)(3) was not designed to allow parties a means for obtaining
new trials whenever they can identify a constitutional issue not litigated below.
Eyman, 173 Wn. App. at 699. If the record from the trial court is insufficient to
determine the merits of the constitutional claim, then the claimed error is not
manifest and review is not warranted. Id. Because appellants fail to show why
these claims are manifest constitutional errors warranting review under RAP
2.5(a)(3), we decline to consider them for the first time on appeal.
19
No. 75032-1-1/20
II. Remaining Claims
Appellants’ remaining claims involve the Department’s investigation into
Debra’s alleged abuse against Virginia and the related termination of personal care
payments. Appellants claim that individual employees within the Department
defamed the Koshelnik family, engaged in outrageous behavior, conspired against
the Koshelnik family, and violated their federal due process rights. The trial court
dismissed all of these claims on summary judgment.
As to the federal claims, the trial court stated that it struggled to connect the
appellants’ specific allegations with evidence to each of the named defendants. It
noted that with regard to the state law claims, appellants did not provide sufficient
evidence to defeat summary judgment, and it found that there were no genuine
issues of material fact that precluded summary judgment dismissal. Appellants
assert that the trial court erred when it granted the Department’s motion for
summary judgment as to these claims.
A. Defamation — Department Employees
In their complaint, appellants alleged that Department employees spread
defamatory information about their case within the Department including the
falsehood that Virginia showed up to school with visible injuries. In its motion for
summary judgment, the Department asserted, among other things, the
dissemination of the information within the Department was subject to a privilege
that shielded it from liability.
20
No. 75032-1-1/21
On appeal, appellants argue that, “[p]lacing in the public record an
interagency communication as ‘substantiated’ a finding that Debra had abused her
vulnerable adult daughter after 1) a[] finding by an administrative tribunal that she
had not, and 2) with no new evidence, with the malicious intent to damage her
ability to ever be employed for compensation at her calling such that the agency
could continue to receive her services for free, defeats any possible qualified
privilege or immunity and establishes all of the elements [of defamation].”
In order to make out a prima facie case of defamation, a plaintiff must prove
falsity, an unprivileged communication, fault, and damages. Robel v. Roundup
Corp., 148 Wn.2d 35, 55, 59 P.3d 611(2002). Washington recognizes a qualified
privilege for the protection of common interests. Moe v. Wise, 97 Wn. App. 950,
957-58, 989 P.2d 1148 (1999). The common interest privilege applies when the
declarant and the recipient have a common interest in the subject matter of the
communication. Id. This privilege generally applies to organizations, partnerships,
and associations and arises when parties need to speak freely and openly about
subjects of common organizational or pecuniary interest. j4~ at 958-59. The
publications generally must be made to a specific group sharing a common
interest, rather than the general public. See Momah v. Bharti, 144 Wn. App. 731,
747-48, 182 P.3d 455 (2008). At the hearing on the Department’s second motion
for summary judgment, appellants conceded that the publication of the alleged
defamatory statements were made only internally within the Department. The
alleged defamatory statements were made by employees of the Department to
21
No. 75032-1 -1/22
employees of the Department. We conclude that even if appellants made out a
prima facie case of defamation, the common interest privilege applies here.
The appellants appear to concede that the common interest privilege
applies, arguing instead that the qualified privilege can be defeated. A qualified
privilege may be lost if it can be shown that the privilege has been abused. fyjp~,
97 Wn. App. at 963. The defendant abuses the qualified privilege if he or she
knows the matter to be false or acts in reckless disregard as to the truth or falsity
of the statement. Id. at 963. The appellants argue that placing in the Department’s
records, with malicious intent, a substantiated finding that Debra had abused her
vulnerable adult daughter, after an administrative tribunal decided that she had
not, defeats any possible qualified privilege.
The appellants characterize APS’s substantiated finding of abuse as the
“false” statement. Ultimately, the appellants are asserting that the finding was
false, because the DDD decision had already been challenged and the AU
rejected the conclusion that the contact between Debra and Virginia constituted
abuse. But, in February 2007, months before AU Ross determined that the
physical contact was not abuse, Wasmundt, from APS, informed DDD case
workers that she would be substantiating the allegation of domestic violence. It is
clear that APS was performing its own, independent investigation at that time.
Appellants do not assert that APS did not have a duty to perform its own
investigation or that DDD’s inquiry into Debra’s client services contract
necessitated that APS shrink from that duty and not make its own finding.
22
No. 75032-1-1/23
No evidence in the record establishes which of the individual Department
(APS) employees actually made the substantiated finding and internally published
it. Appellants assert it was Wasmundt because she was the lead investigator on
the case. But, there is no evidence in the record corroborating this fact. Nor is
there evidence that the APS employee who ultimately internally published the
substantiated the finding of abuse knew of AU Ross’s decision or acted in reckless
disregard of it. Therefore, determining whether the individual who actually made
and published the finding knew it to be false or entered the substantiated finding
with reckless disregard of that fact cannot be ascertained based on this record
without speculation.
Appellants have not met their burden to demonstrate that the qualified
privilege was lost. The trial court properly granted the Department’s motion for
summary judgment as to appellants’ defamation claim.
B. Outrac~e
Below, appellants asserted that outrage had been inflicted on both Evelyn
and Debra. On appeal, appellants appear to have abandoned the outrage claim
as to Evelyn and focus on the outrage claim as to Debra.
The elements of outrage are generally factual questions for the jury. Sutton
v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 869, 324 P.3d 763 (2014).
However, a trial court faced with a summary judgment motion must make an initial
determination as to whether the conduct may reasonably be regarded as so
extreme and outrageous as to warrant a factual determination by the jury. jç[. To
23
No. 75032-1-1/24
establish a claim for the tort of outrage, appellants must demonstrate that (1) Debra
suffered severe emotional distress; (2) the emotional distress was inflicted
intentionally or recklessly, and not negligently; (3) the conduct complained of was
outrageous and extreme; and (4) Debra was the object of the outrageous conduct.
See Lewis v. Bell, 45 Wn. App. 192, 194-95, 724 P.2d 425 (1986). The defendant’s
conduct must be so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Reid v. Pierce County, 136 Wn.2d 195,
202, 961 P.2d 333 (1998).
Appellants assert that “there was a concerted effort to deprive Debra [ofj
the resources with which to care for her disabled children by wrongfully branding
her an abuser solely to save the State money.” They argue that a reasonable
person could find such behavior extreme and outrageous. When Parker and
Daniel were notified that DDD was terminating payments to Debra, they were
informed that they remained eligible for personal care services, but that they had
to choose another qualified provider. The evidence does not support an inference
that a change of service provider would necessarily save the state money. Any
savings would flow from not choosing a different provider.
Appellants also cite to Debra’s declaration and note that a finding of
substantiated abuse would prevent Debra from ever being employed in caring for
persons with disabilities. Debra acknowledged that the Department told her she
did not have to disclose on job applications that there was a substantiated finding
24
No. 75032-1 -1/25
of abuse against her because it has been overturned. But, Debra stated that this
makes her uncomfortable, and that consequently, she has not applied for any
volunteer or paid positions where she would come in contact with adults or children
with special needs. Debra’s declaration states that this has caused her great
distress.
But, to prevail on an outrage claim, a plaintiff is required to come forward
with evidence that he or she actually suffered severe emotional distress as a result
of the defendant’s conduct. Sutton, 180 Wn. App. at 871. Emotional distress
includes all highly unpleasant mental reactions such as fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.
ki. But, liability arises only when the emotional distress is extreme. ]~. at 871-72.
Here, appellants have provided no evidence that Debra experienced severe
emotional distress. Therefore, the trial court did not err when it granted the
Department’s motion for summary judgment on the claim of outrage.
C. Due Process — Individual Defendants
Appellants argue that the individual defendants—Uehara, Rolfe, and
Wasmundt—violated their substantive due process rights. Appellants ostensibly
bring this claim as a deprivation of constitutional rights under § 1983.8 And,
8Appellants’ reliance on § 1983 is apparent, because appellants cite to
Sintra Inc. v. City of Seattle, 119 Wn.2d 1, 23, 829 P.2d 765 (1992), and Lutheran
Day Care v. Snohomish County, 119 Wn.2d 91, 829 P.2d 746 (1992), to support
their assertions. Both of these cases involved lawsuits for a deprivation of
substantive due process rights under § 1983. Sintra, 119 Wn.2d at 6; Lutheran,
119 Wn.2d at 124-25. Appellants argue that it is clear that “when the state and
those that act in its name abuse the established process and procedures to deny
25
No. 75032-1-1/26
appellants bring these claims against the individual defendants, apparently
recognizing that the Department cannot be held liable for violations of § 1983. ~
Janaszak, 173 Wn. App. at 720 (recognizing that neither a state nor its officials
acting in their official capacities are considered persons that may be liable to the
injured party under § 1983). However, named individuals—sued in their individual
capacities—may be held liable.9 Smith v. State, 135 Wn. App. 259, 270, 144 P.3d
331 (2006).
The appellants address each individually-named Department defendant
one by one. But, rather than asserting alleged due process violations attributable
to each defendant, the appellants list only facts about each individual defendant’s
involvement with the Koshelnik family and make bald assertions about their
culpability. Then, in their due process argument section, appellants refer to actions
categorically taken by “the Department.” As stated above, the Department cannot
be held liable for violations of § 1983. See Janaszak, 173 Wn. App. at 720.
Ultimately, all of appellants’ claims relate to the fact that the
Department required them to defend the same conduct—the claim of abuse by
Debra in hitting Virginia—in two separate administrative contexts. The appellants
public goods and relationships to which the Plaintiff is lawfully entitled . it
. .
violates” fundamental due process principles.
~ note that appellants’ complaint did not specify whether they were suing
the individual Department defendants in their individual or official capacities.
However, by virtue of the fact that the Department asserted the defense of qualified
immunity in its motion for summary judgment, we accept that appellants have sued
the defendants in their individual capacity. Indeed, on appeal, the Department
appears to concede this point by arguing that the individual defendants are entitled
to qualified immunity.
26
No. 75032-1 -1/27
concede that Virginia’s allegations of abuse against Debra needed to be
investigated. And, they conceded that the initial proceeding brought by DDD
during the pendency of the APS abuse investigation was also proper. But,
appellants stated that when the Department “went after them again” via the
renewed DDD payment proceeding is when the substantive due process violation
occurred. The appellants asserted that the sole purpose behind the administrative
proceedings was to terminate Debra’s payments and save the Department money.
The appellants assert that Uehara agreed to improperly use her powers as a DDD
case worker to deliberately withhold money from the appellants in order to save
the Department money. Uehara issued a notice to Parker stating that DDD was
terminating payments to Debra prior to APS’s substantiated finding of abuse.
Appellants do not assert that this was improper. Rather, appellants cite to an e
mail from a Department supervisor, Dee Nelson, in which Nelson asked
Department employees whether there was a way to disallow the Koshelnik family
from receiving additional money, because it was already receiving a lot of money
from the Department.1° This e-mail was eventually forwarded to Uehara and she
agreed to respond to Nelson’s inquiry. However, Uehara responded only that she
would respond. There is no additional response from Uehara in the record. In
fact, the e-mail in question from Nelson, on which appellants heavily rely, is dated
August 10, 2007—about two months after APS made the substantiated finding of
10 Nelson is not a named party to appellants’ lawsuit nor do appellants
assert that she is a part of the alleged conspiracy.
27
No. 75032-1-1/28
abuse and about five months after DDD began withholding payments from Debra.
Therefore, appellants’ attempts to suggest that Uehara’s actions were a result of
Nelson’s instruction is not well founded.
The appellants also argue that Uehara’s efforts to withhold payments from
them and skew the assessment process to save the Department money was clear,
because, among other things, Uehara testified at a hearing that there were too
many people in the Koshelnik household needing assistance. But, as stated
above, simply disqualifying Debra from receiving additional care provider
payments would not necessarily save the State money. The Department did not
to refuse to provide necessary services. It required a change of provider.
Taken in a light most favorable to Debra, this evidence fails to show a
deliberate attempt by Uehara to subject Debra to multiple administrative
proceedings and withhold payments to save the Department money. Such a
conclusion would be purely speculative. A nonmoving party on a summary
judgment motion may not rely on speculation. White, 131 Wn.2d at 9, 17.
As to Rolfe, appellants argue that because she was charged with overall
management of Uehara, she was clearly on notice that the Department was
repeatedly and unsuccessfully targeting the Koshelniks. But, this claim fails for the
same reason the claim against Uehara fails. There only speculative evidence that
Uehara was targeting the Koshelniks. Moreover, even if Rolfe could be held liable
for Uehara’s actions, appellants have provided only speculative evidence that
Rolfe was on notice that the Koshelniks were being targeted.
28
No. 75032-1-1/29
As to Cantrell, the appellants assert that she is culpable for re-prosecuting
the substantiated abuse claim without any new evidence when AU Ross had
found no abuse after a full evidentiary hearing. But, the appellants make no
showing that APS lacked the authority or was not duty bound to proceed, even
after the initial DDD proceeding, to make its own determination that abuse had
occurred. They submit no authority to support the proposition that the two separate
Department divisions—APS and DDD—could not lawfully proceed in this manner.
In fact, RCW 74.34.068(1) specifically authorizes the Department to make a
determination regarding whether the incident of abuse occurred.
Finally, as to Wasmundt, appellants claim in a conclusory fashion that
because she was the lead Department investigator, it was her decision to reclassify
the incident between Debra and Virginia from suspected abuse to substantiated
abuse. On February 28, 2007, a caseworker from DDD received a phone call from
Wasmundt. Wasmundt told the caseworker that she would be substantiating the
allegation of domestic violence. Appellants do not allege that this initial contact
was improper. The record indicates that “APS” notified Debra on June 4, 2007
that it made a substantiated finding of abuse. Even assuming Wasmundt was the
APS employee who decided to make the finding, appellants make no showing that
it was not Wasmundt’s job to do so. Nor do they make a showing that Wasmundt
knew or should have known about the finding of abuse made in the other
proceeding.
29
No. 75032-1 -1/30
The appellants failed to provide evidence connecting each individual
defendant to the repetitive efforts to terminate rights that are alleged to be a
constitutional deprivation. We hold the trial court did not err when it granted the
Department’s motion for summary judgment on appellants’ § 1983 substantive due
process claims.
D. Conspiracy — Individual Defendants
Finally, appellants argue that individual defendants engaged in a conspiracy
to deny Debra the right to contract with the Department to provide paid services to
her family. They argue that the evidence is clear to support a claim of conspiracy.
They cite to only Nelson’s e-mail and the fact that the Department “[r]epeated legal
processes.”
To establish a claim for civil conspiracy, a plaintiff must prove by clear,
cogent, and convincing evidence that (1) two or more people combined to
accomplish an unlawful purpose, or combined to accomplish a lawful purpose by
unlawful means; and (2) that the conspirators entered into an agreement to
accomplish the conspiracy. Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807
(2008).
Appellants define the unlawful purpose was denying Debra the right to
contract with the Department to provide paid services to her family by wrongfully
branding her an abuser and secondarily depriving her family members the right to
have paid services provided by their chosen qualified provider as required by
30
No. 75032-1-1/31
federal Medicaid law. The appellants note that conspiracies are generally shown
by circumstantial evidence—not direct evidence.
Appellants cite to two factors to support their claim: (1) the e-mail exchange
mentioned above between Department employees and (2) the fact that the
Department brought repeated legal processes. While the e-mail shows that the
Department was concerned with how much it was paying the Koshelnik family,
Nelson’s e-mail on which appellants predominantly rely to support its conspiracy
claim, could not have been a precipitator for the investigations or proceedings.
This is because it was sent after both APS and DDD already initiated investigations
and proceedings against the Koshelnik family. It is undisputed that Debra struck
Virginia. It is undisputed that APS had a duty to investigate the allegation of abuse.
It is undisputed that if abuse occurred a service provider would lose eligibility to
contract. DDD proceeded to review Debra’s service contracts on the initial,
unsubstantiated allegations. APS went forward with its separate process of
investigating the abuse of Virginia. When it substantiated the abuse, DDD again
proceeded to stop services. As noted above, the record does not demonstrate
that APS knew the AU had determined the incident with Virginia did not rise to the
level of abuse, and that it acted with malice or recklessly disregarded that fact
when it issued a finding of substantiated abuse. The fact that the AU concluded
that Debra’s actions did not rise to the level of abuse does not support an inference
that the Department wrongfully branded Debra as an abuser to deprive her family
of her paid services. The appellants do not demonstrate that the later concern
31
No. 75032-1 -1/32
expressed in Nelson’s e-mail about the amount of money paid to Debra’s
household was an improper concern. The record in a light most favorable to the
appellants does not support that Department employees engaged in unlawful
activities or purposes, or engaged in lawful purposes by unlawful means.
We hold that the trial court did not err when it granted the Department
summary judgment on these claims.
We affirm.
WE CONCUR:
/ ~
32
Debra Koshelnik v. D.s.h.s.
Combined Opinion