H.B.H. v. State

IN CLIRKt OmCE
luneE ooum;amiE OF WMHMereN This opinion was filed for record
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GHIEFJUS71GE

SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

S.A.H.; and TREY HAMRICK,
litigation guardian ad litem on behalf of
K.E.H., and

Respondents,
NO. 94529-2
V.

STATE OF WASHINGTON,
EN BANC
Petitioner,

and

Filed _N0OJ_J{m
TOWN OF EATONVILLE,

Defendant.

STEPHENS, J.—Former foster children KMH,HBH, SAH, KEH, and JBH

, brought this case against the Department of Social and Health Services (DSHS),

alleging negligence in failing to protect them from the tortious or criminal acts of

their foster, and later adoptive, parents. At the close ofthe evidence, the trial court

granted DSHS's CR 50 motion and dismissed the children's claims of negligence
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concerning the preadoption, foster care period. Division Two of the Court of

Appeals reversed, holding that DSHS owes a common law duty to protect dependent

foster children from foreseeable harm based on the special relationship between

DSHS and such children.

This holding is correct. Under well-established common law tort principles,

DSHS owes a duty of reasonable care to protect foster children from abuse at the

hands of their foster parents. The evidence at trial was sufficient to present a jury

question as to whether DSHS breached this duty and caused the plaintiffs harm. We

affirm the Court of Appeals and remand for trial on the preadoption claims.

FACTS AND PROCEDURAL HISTORY

DSHS placed KMH in foster care with Scott and Drew Ann Hamrick in

February 1998. Social worker Amy Page was initially assigned to KMH's case,

before being replaced by Renee Harvey in 1999. KMH also had two guardians ad

litem and a therapist during the preadoption period. The record suggests that there

were no observations or reports of any problems with KMH's placement during this

time.

In October 1999, DSHS placed twins HBH and SAH with the Hamricks.

HBH and SAH had been removed from their parents in 1994 and had been placed in

several foster homes in the years preceding their placement with the Hamricks. They

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suffered abuse and neglect in those foster homes, DSHS social worker Mary

Woolridge was assigned to the twins' cases in February 1999. According to DSHS

policies, Woolridge was required to conduct regular in-home health and safety

checks every 90 days to determine whether the children felt safe or had concerns

about their new foster home setting. Evidence presented at trial indicated that

Woolridge failed to conduct these health and safety visits as required. DSHS records

show no visits and no reports between October 1999(the date HBH and SAH were

placed in the Hamrick home)and October 2000 (the date the girls were adopted by

the Hamricks).

In January 2000, DSHS also placed KEH and JBH in the Hamricks' home.

DSHS social worker Liza Oilman was initially assigned to the girls' cases, followed

by social workers Sally Bryan, Amy Page, and Anna Tran. The record indicates that

each social worker conducted health and safety visits, and did not observe or receive

any information about abuse occurring in the Hamrick home.

In June 2000, DSHS conducted a home study to determine whether the

Hamricks would be suitable adoptive parents. The resulting report recommended

that DSHS allow the Hamricks to adopt all of the children. In October 2000, the

Hamricks adopted KMH,HBH, and SAH. A few years later, in January 2003, the

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Hamricks adopted KEH and JBH. DSHS involvement with the children ended upon

their adoptions.

Evidence at trial showed that the Hamricks abused all five girls physically,

sexually, and psychologically during the preadoption period from 1998 to 2003.

DSHS did not obtain any information concerning abuse during this period, however,

and the social workers in contact with the children reported that the children seemed

happy in the Hamricks' home.

In April 2008, following the children's adoption by the Hamricks, Child

Protective Services (CPS)received a written referral from a school counselor who

suspected physical abuse of SAH. CPS screened the report and decided not to

investigate. In November 2009, CPS received another referral related to Scott

Hamrick's alleged sexual contact with a juvenile neighbor girl; this referral noted

that there were multiple adopted children within the Hamrick home. CPS referred

the incident to law enforcement but did not conduct its own investigation or

otherwise follow up on the report. In March 2010, a neighbor reported possible

abuse and neglect of KEH to CPS. This time, CPS investigated the referral but

determined the report was unfounded.

In 2011, the Pierce County Sheriffs Department began investigating

allegations that the Hamricks were abusing KMH,HBH,SAH,KEH,and JBH. The

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investigation resulted in DSHS removing the children from the Hamrick home.

Scott Hamrick committed suicide during the criminal investigation. Drew Ann

Hamrick was eventually charged and convicted of crimes related to the abuse.

In September 2011, HBH and SAH brought this civil suit against DSHS,

alleging that its negligence in failing to investigate or take other protective action

during the preadoption period allowed the Hamricks to abuse them as foster and,

later, adopted children. A separate suit was filed through a guardian ad litem on

behalf of KMH,KEH, and JBH, who were still minors at the time. The two cases

were eventually consolidated and went to trial. The jury heard evidence over

approximately six weeks oftestimony.

Following the close of both parties' cases, DSHS moved under CR 50 for

judgment as a matter oflaw, arguing that it was not negligent during the preadoption

period. The trial court granted DSHS's motion as to the preadoption period.^ The

jury returned a defense verdict on the remaining claims.

^ The CR 50 motion also encompassed claims of negligence based on the 2009 CPS
referral. The trial court granted DSHS's motion for judgment as a matter of law, ruling
that"the fact[DSHS]didn't investigate it is not evidence ofany kind ofnegligence on their
part because they didn't have any duty or obligation to investigate it." Verbatim Report of
Proceedings(Mar. 5,2015)at 82. The foster children did not appeal that aspect ofthe trial
court's ruling.

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 et al. v. State, 94529-2

On appeal, the foster children argued that the trial court erred in dismissing

their claims of negligence by DSHS concerning the preadoption period. They did

not seek to revive claims based on DSHS's statutory duty to investigate^ but,instead,

argued that DSHS owed a common law duty of reasonable care to protect foster

children based on the special protective relationship between the agency and such

children. They further argued that DSHS breached that duty by failing to protect

them from the tortious or criminal acts oftheir foster parents. DSHS contended that

no special relationship should be recognized because DSHS did not have physical

custody of the foster children, who at all relevant times were in the care of the

Hamricks.

The Court of Appeals reversed the trial court's CR 50 order relating to the

preadoption period, holding that DSHS stands in a protective special relationship

with foster children within the meaning of Restatement (Second) of Torts § 315(b)

(Am.Law Inst. 1965). H.B.H. v. State, 197 Wn. App. 77,92,387 P.3d 1093(2016).

Relying on both the Restatement and Washington case law,the court concluded that

"entrustment, not custody, is at the heart of a special protective relationship for

purposes of imposing a common law tort duty." Id. at 91. The court further held

^ At trial, the foster ehildren had argued that DSHS breaehed its statutory duty to
investigate child abuse as required under RCW 26.44.050.

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that the foster children produced sufficient evidence ofbreach and causation to avoid

dismissal under CR 50 of their claims relating to DSHS's negligence during the

preadoption period. Id. at 92-95. The court remanded for trial on the preadoption

negligence claims. We granted DSHS's petition for review. H.B.H. v. State, 189

Wn.2d 1002, 404 P.3d 1162(2017).

ANALYSIS

Courts are appropriately hesitant to take cases away from juries. A CR 50

motion for directed verdict or judgment as a matter of law should be granted only

when, after viewing the evidence in the light most favorable to the nonmoving party,

there is no substantial evidence or reasonable inferences therefrom to support a

verdict for the nonmoving party. Goodman v. Goodman, 128 Wn.2d 366, 371,907

P.2d 290(1995).

DSHS argues dismissal was appropriate in this case because it owes no

common law duty to foster children to protect them from abuse by foster parents.

DSHS contends that the Court of Appeals erred in holding that a Restatement

§ 315(b) protective special relationship exists between DSHS and dependent foster

children and that imposing a duty here would effectively abrogate the State's

sovereign immunity. As an alternative basis to affirm the trial court, DSHS argues

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that the plaintiffs presented no evidence to allow a jury to find DSHS breached its

duty and caused harm. As did the Court of Appeals, we reject these arguments.

A. DSHS's Role as Parens Patriae in the Child Welfare System

The primary issue in this case is whether DSHS has a special relationship with

dependent foster children in its charge, providing such children a right to protection

from the tortious or criminal acts oftheir foster parents. DSHS describes its role in

the foster care system as limited to "engag[ing] in reviews, visits, assistance, and

services directed by statutes and courts." State's Suppl. Br. at 19. According to

DSHS,"[tjhis comprehensive, but statutorily defined, non-custodial power,together

with the statutory role offoster homes to provide custody, explains why DSHS does

not have a special relationship with foster children." Id. Given DSHS's insistence

that its limited relationship with dependent foster children is statutorily defined, it

seems only natural that we begin our analysis by looking at the relevant statutes. A

careful review of the statutory framework is imperative to understanding the

relationship between DSHS and dependent children placed in foster care.

It is well established that while parents have a fundamental liberty interest in

the care and custody of their children, the State has an equally compelling parens

patriae interest in protecting the physical, mental, and emotional health of children

in this state. In re Dependency ofSchermer, 161 Wn.2d 927, 941, 169 P.3d 452

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(2007). When a child's health, safety, and welfare are seriously jeopardized by

parental deficiencies, the State has the power to intervene and act in its capacity as

provider of protection to those unable to care for themselves. Id. at 941-42; In re

Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)("[Wjhen parental

actions or decisions seriously conflict with the physical or mental health ofthe child,

the State has a parens patriae right and responsibility to intervene to protect the

child."(emphasis added)). In situations where the State exercises its parens patriae

right to intervene by removing children jfrom their homes and placing them in foster

care, the State has a statutory and constitutional duty to ensure that those children

are free from unreasonable risk of harm, including a risk flowing from the lack of

basic services while under the State's care and supervision. Braam v. State, 150

Wn.2d 689, 699, 81 P.3d 851 (2003). "[A]s custodian and caretaker of foster

children," the State is required to "provide conditions free of unreasonable risk of

danger, harm, or pain, and must include adequate services to meet the basic needs of

the child." Id. at 700.

Balancing the interests of parents, children, and the State, the legislature has

created a comprehensive statutory framework to govern the State's role as parens

patriae in the child welfare system. See chs. 13.34 RCW (Juvenile Court Act), 26.44

ROW (Child Abuse and Neglect Act), 74.13 RCW (child welfare services), 74.15

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RCW(care ofchildren, expectant mothers, persons with developmental disabilities).

The purpose of Washington's statutory scheme is "to safeguard, protect, and

contribute to the welfare of the children of the state," RCW 74.13.010. Consistent

with this purpose, the guiding principal of our child welfare system is that "the

child's health and safety shall be the paramount concern." RCW 13.34.020.

Washington's statutory framework is unique in this regard; it expressly places the

rights of the child above the rights of parents. "When the rights of basic nurture,

physical and mental health, and safety ofthe child and the legal rights ofthe parents

are in conflict, the rights and safety ofthe child should prevail." Id.

A detailed statutory scheme authorizes the State to remove a child from the

family home, take the child into state custody, and declare the child "dependent" ^

when doing so is in the best interest and safety of the child. RCW 26.44.010;

Schermer, 161 Wn.2d at 942. The dependency process is initiated when DSHS

^ RCW 13.34.030(6) defines a "dependent child" as any child who
(a)Has been abandoned;
(b) Is abused or neglected as defined in chapter 26.44 RCW by a
person legally responsible for the care ofthe child;
(c)Has no parent, guardian, or custodian capable ofadequately caring
for the child, such that the child is in circumstances which constitute a danger
of substantial damage to the child's psychological or physical development;
or

(d)Is receiving extended foster care services, as authorized by RCW
74.13.031.

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receives a report that a child has been abused, neglected, or abandoned. RCW

26.44.050. Upon receiving the report, DSHS assigns a social worker to investigate

the allegations. Ifthere appears to be merit to the allegations of abuse and the child

is in immediate danger, the social worker may file a dependency petition with the

juvenile court to remove the child from the family home. RCW 13.34.040(1). The

court may then order "a law enforcement officer, probation counselor, or child

protective services official" to take the child into state custody if it finds reasonable

grounds to believe the child is dependent and that the child's "health, safety, and

welfare will be seriously endangered ifnot taken into custody." RCW 13.34.050(1).

Within 75 days of a dependency petition being filed, the juvenile court must

hold a fact-finding hearing to determine whether the child is "dependent." RCW

13.34.070(1). The petitioner, typically DSHS,bears the burden of establishing by a

preponderance of the evidence that the child is dependent within the meaning of

RCW 13.34.030. RCW 13.34.110(1). Ifthe child is found to be dependent,the court

must then determine where the child will be placed and the services to be provided.

RCW 13.34.130,.136; Schermer, 161 Wn.2d at 942. Ifthe court concludes that the

child cannot remain in the parental home,the court may order the child to be placed

with DSHS, which has the authority to accept legal custody of dependent children.

RCW 13.34.130(l)(b)(i)(juvenile court shall "[ojrder the child to be removed from

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his or her home and into the custody, control, and care of... the department... for

supervision of the child's placement"); RCW 74.13.031(7)("The department shall

have authority to accept custody of children from parents and to accept custody of

children from juvenile courts, where authorized to do so under law.").

When the court places a dependent child with DSHS,as in this case, DSHS is

the sole legal custodian ofthe child. JuCR 3.8(e)(when the disposition requires that

the child be removed from the parental home, it has the effect of transferring legal

custody to the agency or custodian charged with the child's care). The transfer of

legal custody charges DSHS with the following duties: (1) maintaining physical

custody of the child, (2) protecting, training, and disciplining the child, and (3)

providing food, clothing, shelter, education,and routine medical care. Id. Ofcourse,

DSHS retains the right to designate agents to carry out certain duties granted to it as

a result of the transfer of legal custody. For example, when DSHS accepts custody

of a dependent child, DSHS has not only a duty to maintain the physical custody of

the child but also the "authority to place the child ... in a foster family home or

group care facility licensed pursuant to chapter 74.15 RCW." RCW

13.34.130(b)(ii). However, when DSHS places a dependent child in the physical

care oflicensed foster parents,DSHS remains the child's legal custodian throughout

the duration ofthe dependency.

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The two basic principles of foster care are that the child is placed on a

temporary basis with a foster family and DSHS reserves the right to remove the child

at any time from the foster home. Foster care serves as a substitute for parental care

until the child can be returned to the family home or another permanent placement

can be made. In addition to its initial duty to investigate foster homes for licensing

purposes, DSHS has a continuing duty to investigate allegations of abuse and to

monitor the dependent child in the foster home. See RCW 74.13.031(3) ("[t]he

department shall investigate complaints of any recent act or failure to act on the part

ofa parent or caretaker"),(6)("The department shall monitor placements ofchildren

in out-of-home care and in-home dependencies to assure the safety, well-being, and

quality of care being provided is within the scope of the intent of the legislature as

defined in RCW 74.13.010 and 74.15.010.").

Unlike DSHS, foster parents have no legally recognized parental interest in

the dependent children placed in their homes. See In re Dependency ofJH, 117

Wn.2d 460, 472, 815 P.2d 1380 (1991)(holding that foster parents do not have

"liberty interest" sufficient to require procedural due process before foster children

can be removed from their foster home); In re Baby Girl Coverdell, 30 Wn. App.

677, 637 P.2d 991 (1981)(holding that foster parent had no right to intervene in

dependency proceedings). In making this observation, we do not minimize in the

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slightest the significant and invaluable role played by foster parents in the delivery

of child welfare services to dependent children in this state. Foster parents take on

the day-to-day parental responsibilities. Aba Sheikh v. Choe, 156 Wn.2d 441, 455,

128 P.3d 574 (2006). DSHS delegates to foster parents primary responsibility "for

the protection, care, supervision, and nurturing of the child in placement." RCW

74.13.330. That said, the legislature stopped short of creating substantive custody

rights in foster parents. See, e.g., RCW 74.13.300(3). Foster care placements are,

by their nature, intended to be temporary. For this reason, the act of placing a child

in foster care does not sever DSHS's relationship with the child as legal custodian

or terminate DSHS's ongoing duty to protect dependent children in its care."^

In sum,the establishment ofa dependency imposes essential rights and duties

on the State to care for dependent children. See, e.g., RCW 74.13.010 (duty to

protect and care for dependent children), .031(3)(duty to investigate complaints of

neglect, abuse, or abandonment of children), (6) (duty to monitor foster care

^ The dissent fundamentally misunderstands the relationship between DSHS and
foster ehildren when it deseribes foster parents as independent third parties. See dissent at
1, 4-5. They are instead agents of DSHS, who carry out the day-to-day responsibilities
entrusted to DSHS in its role as the legal custodian of dependent ehildren. See infra pp.
23-26. It is remarkable that the dissent believes "no amount of due diligence or periodic
investigation could prevent much of the harm" done by abusive foster parents to the
ehildren DSHS places in foster homes. Dissent at 4. Indeed, any faith society places in
the child welfare system depends on DSHS exercising due diligence and adequately
monitoring foster home placements.

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placements),(7)(duty to provide child welfare services to dependent children),(9)

(DSHS authorized to purchase care for dependent children). The State becomes the

legal custodian of the dependent child, and the State alone controls the services

provided to the child and determines where the child will reside. See JuCR. 3.8(e);

RCW 13.34.130(l)(b)(ii); RCW 74.13.031(7). It is against this statutory backdrop

that we consider whether DSHS's relationship with dependent foster children creates

a special relationship supporting a common law duty in this case.

B. DSHS Owes a Common Law Duty To Protect Dependent Foster Children
from Reasonably Anticipated Dangers

An essential element in any negligence action is the existence of a legal duty

that the defendant owes the plaintiff. Petersen v. State, 100 Wn.2d 421,425-26,671

P.2d 230 (1983). While there is generally no duty to prevent a third person from

intentionally harming another, a duty arises when '"a special relationship exists

between the defendant and either the third party or the foreseeable victim ofthe third

party's conduct.'" Niece v. Elmview Grp. Home, 131 Wn.2d 39, 43, 929 P.2d 420

(1997)(internal quotation marks omitted)(quoting Hutchins v. 1001 Fourth Ave.

Assocs., 116 Wn.2d 217, 227, 802 P.2d 1360 (1991)). A special relationship, and

the accompanying duty to protect, arises where (1) the defendant has a special

relationship with the third person that imposes a duty to control that person's conduct

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or(2)the defendant has a special relationship with the victim that gives the victim a

right to protection. Id.(quoting Petersen, 100 Wn.2d at 426(quoting RESTATEMENT

§ 315)).^ When a special relationship exists under § 315, the party owing a duty

must use reasonable care to protect the victim from the tortious acts ofthird parties.

Restatement § 314A cmt. e ("The duty in each case is only one to exercise

reasonable care under the circumstances."); Nivens v. 7-11 Hoagy's Corner, 133

Wn.2d 192, 205, 943 P.2d 286(1997).

Common examples of § 315(b) protective special relationships include the

relationships between schools and their students, innkeepers and their guests,

common carriers and their passengers, and hospitals and their patients. See McLeod

V. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 320, 255 P.2d 360 (1953)

(holding that a school has a duty to protect students from reasonably anticipated

dangers); Hutchins, 116 Wn.2d at 227-28 (holding that an innkeeper has a duty to

protect guests from the criminal actions ofthird parties); Hunt v. King County,4 Wn.

App. 14, 20, 481 P.2d 593 (1971)(holding that a hospital has a duty to protect

^ Restatement § 315 provides:
There is no duty so to eontrol the conduct of a third person as to prevent him
from causing physical harm to another unless
(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which
gives to the other a right to protection.

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patients from the reasonably foreseeable risk of self-inflicted harm through escape).

In these situations, the defendant has a "special relationship" that imposes a duty of

care to protect the plaintiff from foreseeable harm. The question we must resolve is

whether the ongoing relationship between DSHS and dependent foster children

similarly constitutes a special relationship within the meaning of § 315(b), giving

rise to a duty to protect such children from reasonably anticipated dangers.

DSHS asserts that the Court of Appeals' finding of a special protective

relationship between DSHS and dependent foster children represents "an

unprecedented expansion of this Court's § 315(b) doctrine." State's Suppl. Br. at

10. According to DSHS,"[t]he existence of the § 315(b) protective duty depends

on actual custodial care and control of the plaintiff and their environment," not

entrustment and victim vulnerability, as the Court of Appeals held. Id. at 14. Under

DSHS's approach, a § 315(b) special relationship requires "substantial control over

the plaintiffs environment and notice offoreseeable harm giving rise to entrustment

to the defendant's care, and a demonstration of an historic obligation to provide

protection from third parties." Pet. for Review at 15. DSHS argues that because it

does not exercise physical custody and control over foster children, the relationship

between DSHS and dependent foster children falls outside the special relationship

duty contemplated by § 315(b). State's Suppl. Br. at 10. In particular, DSHS notes

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that "the comprehensive statutory child welfare system does not create this type of

relationship between DSHS and foster children." Id.

DSHS's physical custody-and-control requirement is unsustainable for

several reasons. First, neither the Restatement nor relevant case law suggests that

§ 315(b) special relationships are confined to situations of physical custody or

control, as DSHS contends. Section 315(b) simply states that "a special relation

exists between the actor and the other which gives to the other a right to protection."

See Caulfield v. Kitsap County, 108 Wn. App. 242, 253, 29 P.3d 738 (2001)

(describing § 315(b) special relationships as '"protective in nature, historically

involving an affirmative duty to render aid'"(quoting Hutchins, 116 Wn.2d at 228)).

Nowhere in § 315 do we see any mention of a requirement for physical custody or

control. As noted, this court recognized in Braam that the State is "custodian and

caretaker of foster children" and, as such, must "provide conditions free of

unreasonable risk of danger, harm, or pain." 150 Wn.2d at 700. That DSHS has the

authority and responsibility to place foster children in individual foster homes

confirms, rather than detracts from, DSHS's custodial role. Indeed, this role is

similar to other situations in which the State places vulnerable individuals with

contractual caregivers, and courts recognize the State's tort duty under the theory of

§ 315(b). See Niece, 131 Wn.2d at 46-47 (recognizing duty of a group home to

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protect a disabled resident raped by caregiver); Caulfield, 108 Wn. App. at 255-56

(holding § 315(b) special relationship existed between a county and a profoundly

disabled adult when the county placed the plaintiff with an in-home caregiver and

was responsible for monitoring the placement). Such caregivers are not merely third

parties; they carry out the State's parens patriae responsibilities.

Section 315(b)ofthe Restatement is closely related to § 314A and § 320. See

Restatement § 315 cmt. c.^ Section 314A provides further insight into the contours

ofthe special protective relationship by describing specific settings in which the duty

to protect may be found,one of which is potentially relevant here. Subsection(4)of

§ 314A describes a special relationship giving rise to a duty to protect where "[o]ne

who is required by law to take or who voluntarily takes the custody of another under

circumstances such as to deprive the other of his normal opportunities for protection

is under a similar duty to the other."^ While subsection (4) references "custody,"

^ Comment c to § 315 provides:
The relations between the actor and a third person which require the actor to
control the third person's conduct are stated in §§ 316-319. The relations
between the actor and the other which require the actor to control the conduct
ofthird persons for the protection ofthe other are stated in §§ 314A and 320.
^ Significantly, § 314A's list of special protective relationships is nonexclusive.
Restatement § 314A caveat at 119 ("The Institute expresses no opinion as to whether
there may not be other relations which impose a similar duty."); id. at cmt. b("The relations
listed are not intended to be exclusive, and are not necessarily the only ones in which a
duty of affirmative action for the aid or protection of another may be found.").

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there is no indication that § 314A requires ongoing physical custody. In fact,

comment b following § 314A confirms that entrustment and vulnerability, not

physical custody, are at the heart of the special protective relationship—"[t]he law

appears, however, to be working slowly toward a recognition of the duty to aid or

protect in any relation of dependence or of mutual dependence." RESTATEMENT §

314A cmt. b (emphasis added).

Section 320 of the Restatement, entitled "Duty of Person Having Custody of

Another to Control Conduct of Third Persons," expands on the special protective

relationship described in subsection (4) of § 314A.^ Section 320 specifically

identifies the "[h]elplessness of[the] other" as a decisive factor in the custody-based

special relationship. RESTATEMENT § 320 cmt. b. As comment b to § 320 explains,

"The circumstances under which the custody ofanother is taken and maintained may

^ Section 320 provides:
One who is required by law to take or who voluntarily takes the custody of
another under circumstances such as to deprive the other ofhis normal power
ofself-protection or to subject him to association with persons likely to harm
him, is under a duty to exercise reasonable care so to control the conduct of
third persons as to prevent them from intentionally harming the other or so
conducting themselves as to create an unreasonable risk of harm to him, if
the actor
(a) knows or has reason to know that he has the ability to control the
conduct ofthe third persons, and
(b) knows or should know of the necessity and opportunity for
exercising such control.

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be such as to deprive him of his normal ability to defend himself, or to deprive him

ofthe protection ofsomeone who,if present, would be under a duty to protect him."

For example,"a child while in school is deprived ofthe protection of his parents or

guardian." Id. In this situation, "the actor who takes custody . . . of a child is

properly required to give him the protection which the custody or the manner in

which it is taken has deprived him." Id. Again, although § 320 refers to "custody,"

there is no indication that ongoing physical custody is required. Instead, the

common thread running through § 315 and its related provisions, §§314A and 320,

is the notion ofvulnerability and entrustment. References to "dependence,""mutual

dependence," and "helplessness" make this clear. Restatement §§ 314A cmt. b,

320 cmt. b.

DSHS's physical-custody-and-control test is also at odds with Washington

case law. While the term "custody" appears throughout our § 315 cases, we have

explained that it is not physical custody that creates the special relationship. Rather,

special protective relationships "are based on the liable party's assumption of

responsibility for the safety of another." Niece, 131 Wn.2d at 46; Bishop v. Miche,

137 Wn.2d 518, 528, 973 P.2d 465 (1999)(holding that the existence of a special

protective relationship turns on not custodial control but the relationship between

the actor and the third party). Echoing Restatement §§315,314A,and 320, we have

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 et al. v. State, 94529-2

characterized § 315(b) special relationships as being '"protective in nature,

historically involving an affirmative duty to render aid,'" requiring the defendant

'"to guard his or her charge against harm from others.'" Niece, 131 Wn.2d at 44

(quoting Hutchins, 116 Wn.2d at 228).

Contrary to DSHS's contention, our case law confirms that entrustment for

the protection of a vulnerable victim, not physical custody, is the foundation of a

special protective relationship. See Niece, 131 Wn.2d at 50(finding that "[t]he duty

to protect another person from the intentional or criminal actions of third parties

arises where one party is 'entrusted with the well being of another'" (quoting

Lauritzen v. Lauritzen, lA Wn. App. 432, 440, 874 P.2d 861, review denied, 125

Wn.2d 1006 (1994))); Nivens, 133 Wn.2d at 202-03 (finding that the duty to protect

arises where a business invitee "entrusts himself or herself to the control of the

business owner over the premises and to the conduct of others on the premises");

C.J.C. V. Corp. ofCatholic Bishop ofYakima, 138 Wn.2d 699,721-22,985 P.2d 262

(1999) (finding that the duty to protect arises where vulnerable children of a

congregation are delivered into the custody and care of a church, whether on or off

church premises); Caulfield, 108 Wn. App. at 255-56(finding that the duty to protect

arises where the relationship between the defendant and the plaintiff involves an

element of entrustment, "i.e., one party was, in some way, entrusted with the well-

-22-
 et al. v. State, 94529-2

being of the other party"). Certainly, many of our § 315 cases involve factual

scenarios where the plaintiff is in the physical custody of the defendant, as DSHS

points out. But not a single decision identifies physical custody as a necessary

condition for recognizing a § 315(b)special protective relationship.

While we reject DSHS's insistence on physical care and custody to establish

a special protective relationship, it is nonetheless present in this case. Foster care

involves a form of state custody—children are involuntarily removed from their

homes by an affirmative act ofthe State and confined to a state system offoster care.

In DeShaney v. Winnebago County Department ofSocial Services, 489 U.S. 189,

201 n.9, 109 S. Ct. 998, 103 L. Ed. 2d 249(1989),the United States Supreme Court

recognized foster care as "sufficiently analogous to incarceration or

institutionalization to give rise to an affirmative [State] duty to protect." Lower

federal courts have similarly held that involuntary foster care placement constitutes

state custody. See, e.g., Walton v. Alexander,20 F.3d 1350,1354 n.3(5th Cir. 1994);

Norfleet v. Ark. Dep't of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993).

Placement in foster care does not remove a child from the State's custody. Foster

parents act as agents of the State; however, the State, through DSHS, retains legal

custody of the child throughout the duration ofthe dependency, and the State alone

controls the placement of the child, determines the child welfare services to be

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 et al. v. State, 94529-2

provided, and decides when the child will be removed from a foster home, placed

with a new foster family, or returned to the family home.

DSHS unconvincingly seeks to minimize its role in Washington's child

welfare system. According to DSHS, when children are placed in foster care, the

agency's primary responsibility is to '"ensure that foster care placements are in the

least restrictive, most family-like setting available.'" State's Suppl. Br. at 15

(quoting Aba Sheikh, 156 Wn.2d at 453). To provide the most family-like setting,

the legislature devised a statutory scheme that "strikes a balance between imposing

appropriate licensing requirements for foster homes and empowering foster parents."

Id. Thus, as soon as a child is placed in foster care,"[f]oster parents are responsible

for the protection, care, supervision, and nurturing ofthe child in placement," RCW

74.13.330, while DSHS's role is limited to coordinating and integrating services

ordered by a juvenile court. Id. The State's main point seems to be that foster

parents, not DSHS, supervise the general day-to-day activities of the foster child.

State's Suppl. Br. at 16 ("Once DSHS places a child with foster parents,

responsibility for the day-to-day supervision ofthe foster child is turned over to the

foster parent, much the way a school turns responsibility back over to a parent at the

end of a school day or function."). DSHS maintains that our statutory framework

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 et al. v. State, 94529-2

thus denies it the "type of control, supervisory responsibility, or historic obligation

akin to the other special relationships." Pet. for Review at 16.

The State's attempt to narrowly circumscribe DSHS's duties during foster

care ignores its relationship with foster parents. The reason DSHS does not have

day-to-day physical custody over dependent foster children is because DSHS

contracts out its duty, as legal custodian, to foster parents. However, DSHS's

delegation of physical custody to foster parents does not lessen its continuing

responsibility to protect dependent children in its legal custody. We reject DSHS's

view that once a child is placed in foster care, its relationship with that child becomes

one of mere administrator of child welfare services. State's Suppl. Br. at 15. The

governing statutes suggest otherwise. When a dependent child is placed in foster

care, DSHS not only has a duty to investigate reports of child abuse and neglect,

RCW 26.44.050, but also an ongoing duty to "monitor placements of children" to

"assure the safety, well-being, and quality of care being provided is within the scope

of the intent of the legislature." RCW 74.13.031(6), .010 ("The purpose of this

chapter is to safeguard, protect, and contribute to the welfare of the children of the

state."). DSHS remains primarily responsible for supervising and monitoring foster

care placements. The State's refashioning of DSHS's role within the child welfare

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 et al. v. State, 94529-2

system as a mere licensor offoster homes is at odds with the statutory framework in

which it operates.^

Recognizing that DSHS stands in a special protective relationship with foster

children will not lead to the unrestrained liability the State and the dissent fear. See

Pet. for Review at 21 (warning that recognizing a common law duty "could lead to

claims that DSHS erred by failing to prevent a wide variety of harms, such as a dog

bite"); dissent at 5 (claiming grandparents and caregivers may be liable for

negligence of camp counselors or community centers). The State is not vicariously

liable for all acts of foster parents, and the scope of its duty is circumscribed by

standards of reasonable care. In any situation involving a § 315(b) special

relationship, the general duty is simply to use reasonable care to protect the other

person from the criminal or tortious acts of third parties. Restatement § 314A

cmt. e ("The duty in each case is only one to exercise reasonable care under the

circumstances."). The issue of reasonable care turns on context within the legal

framework that defines the parties' relationship. The duty of reasonable care is in

® The dissent suggests that the existence of statutes addressing DSHS's rights and
responsibilities somehow precludes recognition of common law tort liability. See dissent
at 2-3. However, we often look to statutory sources in connection with common law duties
and have never suggested that statutory and common law liabilities are mutually exclusive.
See MW. v. Dep't ofSoc. & Health Servs., 149 Wn.2d 589, 599-600, 70 P.3d 954(2003)
(noting existence of both statutes and common law causes of action against DSHS).

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 et al. v. State, 94529-2

turn limited by the concept of foreseeability. Only if a reasonable person in the

defendant's position would be aware of a "general field of danger" posing a risk to

one such as the plaintiff will a duty of care to protect the plaintiff be recognized.

Niece, 131 Wn.2d at 50 (citing Shepard v. Mielke, 75 Wn. App. 201, 206, 877 P.2d

220 (1994)), Intentional or criminal conduct may not be foreseeable if it is '"so

highly extraordinary or improbable as to be wholly beyond the range of

expectability.'" Id. Johnson v. State, 77 Wn.App.934,942,894 P.2d 1366

(1995)). In this regard, the State's duty is no broader than that of similarly situated

private entities and concerns about limitless liability are without merit.

Finally, we reject the State's argument that recognizing DSHS owes a

common law duty under § 315(b) conflicts with M.W. v. Department ofSocial &

Health Services, 149 Wn.2d 589,70 P.3d 954(2003)and Washington child welfare

statutes. DSHS relies on M.W. to argue that its liability must be limited to the

"implied cause of action in RCW 26.44.050," i.e., the implied statutory cause of

action for negligent investigation. State's Suppl. Br. at 22. In M IF, we considered

whether DSHS's statutory duty to investigate child abuse under RCW 26.44.050

encompassed a general duty of care to act reasonably during the course of an

investigation. 149 Wn.2d at 595-96. We declined to recognize "a general statutory

duty of care for a claim of negligent investigation," id. at 599, reasoning that the

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 et al. v. State, 94529-2

"negligent investigation cause of action against DSHS is a narrow exception that is

based on, and limited to, the statutory duty" and legislative purpose of the statute.

Id. at 601. Our analysis, however, did not stop there. We identified one additional

reason for our holding, which is particularly relevant to this case:

Our conclusion not to expand the cause of action of negligent
investigation is bolstered by our determination that DSHS has an existing
common law duty of care not to negligently harm children. An expansion of
the action of negligent investigation is therefore unnecessary.

Id. at 600. Rather than foreclosing the possibility of a common law cause of action

against DSHS,we simply concluded that "[wjhether the facts ofthe present case are

actionable at common law is not before us." Id. at 601. Our decision in M.W.

therefore confirms, rather than rejects, common law claims based on a special

relationship.

Recognizing DSHS's legal duty under the principles of § 315(b)furthers the

overarching purpose of Washington's child welfare laws "to safeguard, protect, and

contribute to the welfare of the children of the state." RCW 74.13.010.

'"Accountability through tort liability ... may be the only way of assuring a certain

standard of performance from governmental entities.'" Tyner v. Dep't ofSac. &

Health Servs., 141 Wn.2d 68,81,1 P.3d 1148(2000)(alteration in original)(quoting

Bender v. City ofSeattle, 99 Wn.2d 582, 590, 664 P.2d 492(1983)). We affirm the

Court of Appeals' holding that DSHS stands in a special relationship with foster

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 et al. v. State, 94529-2

children in its charge. Under the theory of Restatement § 315(b), this special

relationship supports recognition of a duty in tort to protect foster children from

foreseeable harms at the hands offoster parents.

C. Recognizing DSHS's Common Law Duty To Protect Foster Children from
Abuse Does Not Encroach on the State's Sovereign Immunity

DSHS insists that imposing a common law duty under § 315(b) amounts to

judicial abrogation ofthe State's sovereign immunity. See Pet. for Review at 12-14;

State's Suppl. Br. at 21-22. This argument reflects a fundamental misunderstanding

of government liability in tort following the statutory waiver ofsovereign immrmity

in 1961.

Article II, section 26 ofthe Washington Constitution authorizes the legislature

to "direct by law, in what manner, and in what courts, suits may be brought against

the state." In 1961, the legislature waived the State's sovereign immunity with

respect to tort actions. Laws of 1961, ch. 136, § 1 (codifled as RCW 4.92.090).

This waiver statute provides, "The state of Washington, whether acting in its

governmental or proprietary capacity, shall be liable for damages arising out of its

tortious conduct to the same extent as if it were a private person or corporation."

RCW 4.92.090. This statute is "one ofthe broadest waivers of sovereign immunity

in the country" and makes the State presumptively liable for its alleged tortious

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 et al. v. State, 94529-2

conduct "in all instances in which the Legislature has not indicated otherwise."

Savage v. State, 111 Wn.2d 434, 444-45, 899 P.2d 1270(1995).^"

In waiving sovereign immunity,the legislature consented to the imposition of

liability against the State for its tortious conduct "to the same extent as ifit were a

private person or corporation." RCW 4.92.090 (emphasis added). Accordingly,

when assessing the State's liability, it is appropriate to draw analogies between the

State's conduct and comparable conduct performed in the private sector. See

Evangelical United Brethren Church ofAdna v. State,67 Wn.2d 246,253,407 P.2d

440(1965)(noting that tortious conduct"must be analogous,in some degree at least,

to the chargeable misconduct and liability of a private person or corporation").

Here, the State asserts sovereign immunity because its conduct—^i.e.,

"remov[ing] children from their parents and plac[ing] them into foster care"—

involves a government function that cannot be undertaken by private persons or

corporations. Pet. for Review at 12; see also State's Suppl. Br. at 20-21("No private

sector entity collects and investigates reports of child abuse and neglect; intervenes

in families and removes children from parents; or licenses foster parents, so that

removed children can be placed into a natural, nurturing family environment.").

In 1967, the legislature similarly waived the sovereign immunity of eounties,
eities, and other loeal governmental entities. LAWS OF 1967, eh. 164, § 1 (codified as RCW
4.96.010).

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H.B.H, et al. v. State, 94529-2

Essentially, the State argues that DSHS performs a uniquely governmental function

that has no counterpart in the private sector, i.e., there is no "private analog." State's

Suppl. Br. at 10. This argument fails for two reasons.

First, it ignores the legislature's directive to submit the State to tort liability

as ifit were a private entity. For tort liability to attach,the State does not necessarily

have to be doing something that a private party does. Rather, RCW 4.92.090

recognizes that "the official conduct giving rise to liability must be tortious, and it

must be analogous, in some degree at least, to the chargeable misconduct and

liability ofa private person or corporation." Evangelical,67 Wn.2d at 253. Contrary

to the State's interpretation, the focus of the waiver statute is on the presence of

tortious conduct, rather than comparable private conduct. Id. at 252-53(noting state

"is rendered liable for damages only when such damages arise out of 'tortious

conduct to the same extent as if it were a private person or corporation'" (quoting

RCW 4.92.090)).^^ The State cannot shield itself from liability by simply asserting

that its role in the foster care system has no direct counterpart in the private sector.

Under our waiver statute, there is no "private analog" requirement.

"Tortious" conduct does not include those high-level discretionary functions that
are essential to governance. Evangelical, 67 Wn.2d at 253 ('"[I]t is not a tort for
government to govem.'"(quoting Dcr/e/zzYe v. United States, 346 U.S. 15, 57,73 S. Ct. 956,
97 L. Ed. 1427(1953)(Jackson, J., dissenting))).

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 et al. v. State, 94529-2

Second, there are comparable private relationships that give rise to a duty in

tort. For example, private persons entrust the care of children in their custody to

schools, camps, and day care centers on a daily basis. These entities in turn delegate

responsibilities to teachers, counselors, and caregivers. DSHS is not performing a

uniquely governmental function by delegating the care of a child in its custody to

foster parents. We reject its attempt to use the shield ofsovereign immunity to avoid

defending against negligence claims for failing to protect foster children.

In sum, because DSHS is entrusted with the responsibility of protecting

dependent foster children, who are particularly vulnerable and in need ofprotection,

the Court of Appeals correctly recognized that DSHS owes a common law duty

under Restatement § 315(b). Recognizing DSHS's protective duty is consistent with

Washington's broad waiver of sovereign immunity. The potential for tort liability

does not disregard the State's sovereign immunity but instead serves the goal of

holding the State accountable "to the same extent as if it were a private person or

corporation." RCW 4.92.090.

D. The Foster Children Produced Sufficient Evidence of Breach and Causation
To Allow a Jury To Decide Their Claims.

As a distinct basis for dismissing the foster children's preadoption claims,

DSHS argues that the evidence at trial was insufficient to create a jury question on

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 et al. v. State, 94529-2

issues of breach of the duty of care, proximate cause, and damages. It asks us to

affirm the trial court on this basis. See Pet. for Review at 22-24; State's Suppl. Br.

at 22-24. We decline to do so.

We agree with the Court of Appeals that the foster children produced

sufficient evidence from which a jury could find that DSHS breached its protective

duty, and that the breach ofthat duty caused their injuries. 197 Wn. App. at

95. In reviewing the CR 50 dismissal order, the evidence advanced at trial must be

read in a light most favorable to the plaintiffs. Hume v. Am. Disposal Co., 124

Wn.2d 656,667,669, 880 P.2d 988 (1994). While the trial testimony was certainly

mixed, the Court of Appeals correctly identified evidence that showed DSHS

breached its duty by failing "to conduct required health and safety checks—either at

all or with sufficient regularity" during the preadoption period—and fell below the

standard of reasonable care. H.B.H., 197 Wn. App. at 92. As for causation, the

Court of Appeals correctly credited the jury's ability to draw the inference that "but

for the allegedly deficient health and safety checks, SAH or one of the other girls

would have disclosed the abuse and the State would have intervened." Id. at 94-95.

The State challenges the Court of Appeals' breach and causation analysis as

"complete speculation." State's Suppl. Br. at 22. But, crediting reasonable

inferences is the stuff of juries, which is why courts generally leave questions of

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 et al. v. State, 94529-2

breach and causation for juries to decide. See Hertog v. City ofSeattle, 138 Wn.2d

265, 275, 979 P.2d 400 (1999)("Breach and proximate cause are generally fact

questions for the trier of fact."). The trial court took that issue away from the jury

through its CR 50 decision, even though there was sufficient evidence that, if

believed, would support a finding of breach. Testimony and documentary evidence

showed that SAH and HBH's social worker, Mary Woolridge, failed to conduct

required health and safety checks for a full year, and a reasonable jury could find

that this amounted to a breach ofDSHS's duty to protect the children. The Court of

Appeals did not err in holding that the foster children produced sufficient evidence

of breach.

As for causation, this is a difficult issue in many tort cases. Certainly, linking

DSHS's negligence to the continuation of abuse by the foster parents would require

the jury to reconstruct a causal chain. And,the jury would need to decide whether

the conduct of subsequent actors broke the causal chain. But, there was sufficient,

albeit conflicting, evidence on these issues. Verbatim Report ofProceedings(VRP)

(Feb. 9, 2015) at 8-14 (Woolridge's testimony), 62-68 (Barbara Stone's expert

testimony). The trial court seems to have resolved these issues itself, in concluding,

"I mean, does it really matter whether Mary Woolridge was or was not doing her

health and safety visits.... I can't really see there are any claims based on anything

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 et al. v. State, 94529-2

Mary Woolridge did or did not do." VRP (Mar. 5, 2015) at 83-84. Jurors might

have viewed the evidence differently.

Resolution of the foster children's negligence claim against DSHS presents a

close question, which the trier offact could likely resolve either way. We agree with

the Court of Appeals that the case should go to the jury on these issues and hold that

the trial court erred in entering judgment as a matter oflaw under CR 50.

CONCLUSION

The State, through DSHS,stands in a special relationship with foster children.

While DSHS contracts with foster parents and others to provide day-to-day care for

dependent children, the State alone is "custodian and caretaker of foster children."

Braam, 150 Wn.2d at 700. Consistent with our precedent, we hold that the special

relationship between DSHS and foster children gives rise to a protective duty under

Restatement § 315(b). Recognition of this duty is wholly consistent with the

legislature's waiver ofthe State's sovereign immunity. Questions offact remain in

this case as to whether DSHS breached its duty and whether it proximately caused

the foster children's injuries. We affirm the Court of Appeals and remand this case

to the trial court for further proceedings.

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HBH, et al. v. State, 94529-2

WE CONCUR:

J

36 ■
HBH, et al. v. State of Washington, et al.

No. 94529-2

MADSEN,J.(dissenting)—I disagree with the majority's conclusion that the

Department of Social and Health Services(DSHS)owes a common law duty to protect

dependent foster children from foreseeable harm. I write separately because the majority,

contrary to precedent and plain meaning, expands the meaning of Restatement(Second)

ofTorts § 315(b)'s "special relationship" doctrine to include the relationship between

DSHS and foster children, imposing a duty where none would otherwise exist.

Discussion

In general, "there is no duty to prevent a third party from intentionally harming

another" unless, pursuant to Restatement § 315(b),

"a special relation exists between the [actor] and the other which
gives the other a right to protection."

Niece v. Elmview Grp. Home, 131 Wn.2d 39, 43, 929 P.2d 420(1997)(quoting Petersen

V. State, ICQ Wn.2d 421, 426, 671 P.2d 230 (1983)). In cases where such a special

relationship exists, the defendant owes a duty to the victim and must use reasonable care

to protect the victim from foreseeable harm. See id. at 44.

Despite years of precedent to the contrary, much of which the majority cites, the

majority baselessly holds that Restatement § 315(b)should be applied broadly—creating
 No. 94529-2
Madsen, J., dissenting

a special relationship where the defendant does not have physical custody ofthe victim

but entrusts the victim to the ultimate tortfeasor. The majority concedes that its motive in

expanding Restatement § 315(b) is to ensure '""[ajccountability through tort liability ...

[which] may be the only way of assuring a certain standard of performance from

governmental entities.'"" Majority at 28(second alteration in original)(quoting Tyner v.

Dep'tofSoc. & Health Servs., 141 Wn.2d 68, 81, 1 P.3d 1148(2000)(quoting Bender v.

City ofSeattle, 99 Wn.2d 582, 590,664 P.2d 492(1983))). However, we may not simply

abandon our precedent to achieve a desired outcome or to effectuate a desired policy

change, which is contrary to the carefully crafted statutory scheme adopted by the

legislature. Rather, we may do so only in instances where the '"established rule is

incorrect'" or'"when [its] legal underpinnings ... have changed or disappeared

altogether.'" State v. Johnson, 188 Wn.2d 742, 756-57, 399 P.3d 507(2017)(alterations

in original)(quoting In re Rights to Waters ofStranger Creek, 77 Wn.2d 649,653,466

P.2d 508(1970); W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council ofCarpenters, 180

Wn.2d 54, 66, 322 P.3d 1207(2014)).

It is unclear why the majority aims to subject DSHS to a common law duty that

has never been applied in the context of a DSHS-foster child relationship when the

legislature has already enacted statutes establishing DSHS'rights and responsibilities.^

See eh. 74.13 RCW. Indeed, the majority concedes this point, stating.

'The majority seems to misunderstand the argument here in stating that we "have never
suggested that statutory and common law liabilities are mutually exclusive." Majority at 26 n.9.
The special relationship exception '"do[es] not create new duties or eliminate recognized
No. 94529-2
Madsen, J., dissenting

Balancing the interests of parents, children, and the State, the
legislature has created a comprehensive statutory framework to govern the
State's role as parens patriae in the child welfare system. The purpose of
Washington's statutory scheme is "to safeguard, protect, and contribute to
the welfare of the children of the state."

Majority at 9-10 (quoting RCW 74.13.010)(emphasis added)(citations omitted). The

majority offers no justification for its decision to deviate from the legislature's

"comprehensive statutory framework," which was created to protect'"the children ofthe

state.'" Id. (quoting RCW 74.13.010). Whether the majority is satisfied with the

statutory framework's rigidity is of no consequence—such concerns are policy

considerations better suited for the legislature.

Additionally, in holding that DSHS owes a common law duty to protect foster

children from reasonably anticipated dangers, the majority relies on the notion that a

Restatement § 315(b)special relationship arises from entrustment, rather than physical

custody. However, the majority primarily cites to cases where special relationships arose

from physical custody. Specifically, the majority states;

Common examples of § 315(b) protective special relationships
include the relationships between schools and their students, innkeepers and
their guests, common carriers and their passengers, and hospitals and their
patients. See McLeod v. Grant County Sch. Dist. No. 128,42 Wn.2d 316,
320, 255 P.2d 360(1953)(holding that a school has a duty to protect
students from reasonably anticipated dangers); Hutchins [v. 1001 Fourth
Ave. Assocs.,] 116 Wn.2d [217,] 227-28[, 802 P.2d 1360(1991)] (holding
that an innkeeper has a duty to protect guests from the criminal actions of

duties.'" Gregoire v. City ofOak Harbor, 170 Wn.2d 628, 646, 244 P.3d 924(2010)(Madsen,
C.J., concurring/dissenting)(alteration in original)(quoting Caulfield v. Kitsap County, 108 Wn.
App. 242, 251, 29 P.3d 738 (2001)). The issue here is not whether common law and statutory
liability can coincide but, rather, that no common law duty exists, and the majority seeks to
create one under the special relationship exception.
No. 94529-2
Madsen, J., dissenting

third parties); Hunt v. King County,4 Wn. App. 14, 20, 481 P.2d 593
(1971)(holding that a hospital has a duty to protect patients from the
reasonably foreseeable risk of self-inflicted harm through escape).

Majority at 16-17. Indeed, each of these examples—^the relationships between schools

and their students, irmkeepers and their guests, common carriers and their passengers—

involve physical custody, not entrustment. Importantly, the connection between physical

custody and the duty to protect is logical.^ In instances where the victim is in the

defendant's physical custody and under the defendant's direct supervision, the defendant

has a clear opportunity to prevent harm to the child. Such an opportunity does not exist

where the defendant entrusted the victim to a third party because no amount of due

diligence or periodic investigation could prevent much ofthe harm done by third parties.

The majority argues that DSHS' duty is similar to the defendant's duty in Niece.

In that case, a disabled woman brought an action against a group home after a staff

member at the group home sexually assaulted her. 131 Wn.2d at 41. We held that there

was a "special relationship" between the group home and the disabled woman and, thus,

the group home owed a duty to protect its residents fi-om foreseeable harm. Id. The

majority attempts to compare DSHS to the group home in Niece because DSHS,like the

group home, was not the tortfeasor. But, the majority's reliance on this case is misplaced

^ Indeed,"[a] determination of legal liability will depend upon 'mixed considerations of logic,
common sense,justice, policy, and precedent.'" Crowe v. Gaston, 134 Wn.2d 509, 518, 951
P.2d 1118 (1998)(internal quotation marks omitted)(quoting Schooley v. Pinch's Deli Market,
Inc., 134 Wn.2d 468, 479,951 P.2d 749 (1998)). The majority appears to base its argument
entirely on its subjective sense of"justice"; meanwhile, it neglects each of the other equally
important considerations.
No. 94529-2
Madsen, J., dissenting

because the majority ignores the key distinetion between Niece and the ease before us—

unlike DSHS,the defendant in Niece was in physical control ofthe plaintiff when the

offense occurred.^ Indeed, the offense in Niece oeeurred at the group home. Id. at 42.

Receiving no help from any of our eases, the majority moves on to Restatement §

314A and Restatement § 320 to hold that the existence of a "speeial relationship" is based

on the "notion of vulnerability and entrustment." Majority at 21. But, Restatement §§

314A and 320 do not define "special relationship," and § 315 makes no mention of

vulnerability or entrustment as considerations for determining a "special relationship."

As this court has recently reiterated, "Parties who take custody of another have a duty to

'protect them against unreasonable risk of physical harm'" under Restatement § 314A.

Hendrickson v. Moses Lake Sch. Dist., No. 94898-4, at 7(Wash. Nov. 1, 2018)(emphasis

added and omitted)(rejecting enhanced tort liability based on the speeial relationship

doctrine). I do not see how the majority can hold that a special relationship is based on

vulnerability and entrustment in the face of our current precedent.

^ The majority characterizes the relationship between DSHS and foster parents as an agency
relationship to fall under the special relationship exception. See majority at 14 n.4. Since the
special relationship exception requires physical custody, not merely entmstment,the majority
must show that DSHS retains physical custody through its agent—^the foster parents. Agency
law requires that the contractor must exercise a right to control the manner in which the work is
completed. See Afoa v. Port ofSeattle, 176 Wn.2d 460, 487, 296 P.3d 800(2013). The statutory
scheme does not provide DSHS with any authority to dictate the day-to-day supervision of the
children by foster parents. The lack of control is fatal to the majority's argument that foster
parents are agents of DSHS.
'' Nor does the majority find support for its interpretation of Restatement § 315(b)in case law
from other jurisdictions.
No. 94529-2
Madsen, J., dissenting

While the majority's goal is concededly to ensure government accountability,

"[fjoisting [a new] rule upon courts and parties by judicial fiat could lead to unforeseen

consequences." In re Pers. Restraint ofCarlstad, 150 Wn.2d 583, 592 n.4, 80 P.3d 587

(2003). Indeed, the majority fails to recognize that its expansion of Restatement § 315(b)

will apply beyond the facts of this case. For example, consider a situation in which a

child who would otherwise be placed with DSHS is placed with grandparents. In such a

scenario, the grandparents would be subject to the same common law duties that the

majority aims to impart on DSHS. Thus, if the grandparents entrust the child to a

summer camp, the grandparents would be liable for all ofthe foreseeable harm that the

child might experience at the camp (e.g., bullying and fighting). Or, consider a scenario

in which a caregiver who maintains custody of an elderly person, entrusts that elderly

person to an elder care home or community center. Under the majority's interpretation of

Restatement § 315(b), the caregiver would be liable for any foreseeable harm caused by a

third party at the elder care home. Of course, these examples represent a small number of

the consequences that will assuredly flow from the majority's holding.

Finally, the majority seeks to create liability under the special relationship

doctrine, but we have consistently used the Bennett test to determine DSHS's liability.

Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990). Under Bennett, courts look to

(1) whether the plaintiff is within the class for whose benefit the statute was enacted,(2)

whether legislative intent, explicitly or implicitly, supports creating or denying a remedy.
No. 94529-2
Madsen, J., dissenting

and(3) whether implying a remedy is consistent with the imderlying purpose ofthe

legislation. Id. at 920-21.

InDucote v. Department ofSocial & Health Services, 167 Wn.2d 697,222 P.3d

785 (2009), we held that stepparents do not have an implied cause of action against

DSHS using the Bennett test. Similarly, in Tyner, 141 Wn.2d 68, we applied the Bennett

test to find parents had an implied cause of action against DSHS for negligent

investigations that erroneously removed children from a home.

The majority seeks to sidestep the outcome of applying our well-established

precedent by invoking the special relationship doctrine. While chapter 74.13 RCW was

indisputably created for the benefit offoster children, there is no evidence that the

legislature sought to burden the State with the duty of having an ever vigilant and

watchful eye over foster parents. Rather the duty imposed on the State is to monitor

foster home placement monthly and to investigate alleged violations when they are

discovered. RCW 74.13.031(6). Moreover, a statutory remedy is available if a

department investigation deems criminal penalties against the foster home necessary for

alleged violations similar to the instant case. RCW 74.13.031(3). Nothing here suggests

an implied cause of action is warranted.

Because DSHS'rights and responsibilities are already defined in statute and

because Restatement § 315(b)'s special relationship doctrine is limited to instances where

the defendant had physical custody ofthe victim, I respectfully dissent.
No. 94529-2
Madsen, J., dissenting