f 39 (dissenting) — In the midst of investigations, allegations of sexual abuse, and arrests surrounding the Wenatchee sex ring cases in the mid-1990s, Jonathan and Honnah Sims sent their son Danny to live with his grandmother in Kansas. Knowing she was the subject of investigation, Honnah reasonably feared Danny would be taken, as had the children of other parents accused of sexual abuse.
Sanders, J.¶40 Shortly after Danny’s departure Honnah was in fact arrested, but her trial resulted in acquittal. The Simses and other victims of Douglas County’s careless police work sued the county, amongst others, for negligent investigation. The jury returned a verdict in favor of the Simses and against the county for $3,000,000.12
¶41 On appeal the county argued for the first time the Simses had not proved Danny was either the subject of investigation or of a “harmful placement decision.” Agreeing these new elements were not proved, the Court of Appeals reversed the judgment, ordering the case dismissed. Our majority affirms, holding Division Three was not bound by the law of the case and holding further, as a matter of law, the Simses cannot prove a harmful placement decision. I disagree.
*49I. Unexcepted Jury Instructions Are the Law of the Case
¶42 Law of the case is a broad rubric referring to three distinct doctrines. See Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992). First, appellate court decisions bind the trial court on remand. Id. Second, jury instructions not objected to become the properly applicable law on appeal. Id. Finally, a second appellate court will not revisit the holdings of the first appellate court in the same case. Id. But “[t]his final use of the term has been limited by case law and rules of court.” Id. (citing Folsom v. County of Spokane, 111 Wn.2d 256, 263-64, 759 P.2d 1196 (1988); RAP 2.5(c)).
¶43 The second proposition is of interest here. “[J]ury instructions not objected to become the law of the case.” State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998) (citing State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968)). This rule is deeply rooted in this state, being “so well established that the assembling of the cases is unnecessary.” Peters v. Union Gap Irrigation Dist., 98 Wash. 412, 413, 167 P. 1085 (1917). However, an exception exists if the record shows “the party in whose favor the verdict is rendered is not entitled to recover. No man should be allowed to recover in any case unless there is evidence to support his contention.” Tonkovich v. Dep’t of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948).
¶44 The majority errs by applying restrictions on the law of the case doctrine to the jury instruction prong that are properly applied only to the third prong, namely, a second appellate court reviewing a previous appellate decision in the same case. See Lutheran Day Care, 119 Wn.2d at 113 (“This final use of the term has been limited by case law and rules of court.”). The “clearly erroneous/manifest injustice” standard for review of a previous opinion in the same case can be applied only when there is a previous opinion. See majority at 42 (citing First Small Bus. Inv. Co. of Cal. v. Intercapital Corp. of Or., 108 Wn.2d 324, 333, 738 P.2d 263 (1987)). Likewise, the intervening change in case law between trial and appeal exception, see majority at 42-43, applies *50only in the same context, see RAP 2.5(c)(2). Neither of these exceptions applies to jury instructions.
¶45 Without citation the majority opines: “[I]f jury instructions were controlling as Petitioners assert, a reviewing court could never review a case based on the law as it exists at the time of appeal.” Majority at 43. This statement is manifestly untrue. Only in cases where neither party objects to the jury instructions, likely a small percentage of such cases, and where intervening precedent changes the law, a smaller percentage still, will this issue arise. In all other cases the new law is applicable. The present case simply requires application of the jury instructions component of the law of the case doctrine. But the majority violates the well-settled doctrine that requires a party to except to an instruction to preserve the alleged error for appeal. Lutheran Day Care, 119 Wn.2d at 113; RAP 2.5(a).
¶46 Nor does the only possible exception, insufficient evidence to support the claim, apply here because the Simses proved every element of the tort as defined by the jury instructions, which, without objection, necessarily state the applicable law.13 Contra majority at 43. It is nonsensical to scuttle the Simses’ claim for failure to prove at trial elements not alleged until the appeal and extraneous to unexcepted jury instructions.
II. The County Subjected the Simses to a Harmful Placement Decision
¶47 RCW 26.44.050 has two purposes: protection of children and the preservation of the integrity of the family. Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 80, 1 P.3d 1148 (2000). Three years after Tyner recognized the *51implied cause of action under chapter 26.44 RCW for negligent investigation of child abuse, M.W. v. Department of Social & Health Services, 149 Wn.2d 589, 70 P.3d 954 (2003), restricted the potential claims to only those resulting in a “harmful placement decision, such as placing the child in an abusive home, removing the child from a nonabusive home, or failing to remove a child from an abusive home.”14 Id. at 591.
¶48 Here the majority erroneously holds as a matter of law the Simses cannot prove a harmful placement decision simply because Danny was “voluntarily” removed from the jurisdiction. See majority at 47. This conclusion is false, and it undermines one of the stated purposes of the statute: the protection of the integrity of the family, Tyner, 141 Wn.2d at 80.
¶49 The day of Honnah Sims’ arrest Child Protective Services (CPS) filed a dependency petition concerning Danny, with an accompanying motion for a court order to take him into custody, after Douglas County Sheriff’s Office requested CPS assistance in placing Danny in protective custody. Suppl. Br. of Pet’rs (Van Siclen Deck), App. B.15 This was a “placement decision.” The petition identified Danny as “abused or neglected as defined in chapter 26.44 RCW” and alleged Danny “had no parent, guardian or custodian capable of adequately caring for [him].” Id. The order to take Danny into custody and place him in shelter care was issued the following day. Subsequently, the county *52assisted CPS’ efforts to secure an order instructing Danny’s grandmother to turn him over to the authorities. But happily these attempts proved unsuccessful. Danny returned home after Honnah Sims was acquitted of all charges. Yes, the “placement decision” was unexecuted because the parents acted in a timely fashion to save their child from the state, but there was a placement decision nonetheless and harmful consequences.
¶50 Rejecting the Simses’ placement argument, the majority cites concerns regarding the speculative nature of the alleged harm, the claimants’ ability to control the extent of their damages, and potential incentives to frustrate investigations. See majority at 46. However, these are questions for the jury — not this court.
III. Conclusion
¶51 The majority’s holding forces innocent parents negligently investigated for child abuse to choose between forfeiting their beloved children to the state or forfeiting their claims under chapter 26.44 RCW. Presenting parents with such a choice contravenes the statutory aim of preserving the integrity of the family.
¶52 The majority refuses to apply the jury instruction prong of the law of the case and erroneously holds the Simses cannot prove a harmful placement decision as a matter of law.
¶53 I dissent.
Alexander, C.J., and Chambers, J., concur with Sanders, J.
I am aware of the complicated procedural history of this case, and I deliberately shortened it here for reasons of clarity.
The jury instruction listed three elements for establishing the county’s investigation was negligent:
First, that one or more of the defendants acted, or failed to act, in a negligent manner when investigating the allegations of child sex abuse.
Second, that the plaintiffs were injured or harmed; and,
Third, that the negligence of one or more of the defendants was a proximate cause of the injury to plaintiffs.
Clerk’s Papers at 364 (Instruction 12).
In my view, the M.W. majority incorrectly relied on the factual context of the negligent investigation cases decided prior to M.W. to artificially limit governmental liability to the three harmful placement decision categories. “Typically the principle upon which tort liability is imposed is more general than any specific facts which may fall within that principle.” M.W., 149 Wn.2d at 605 (Sanders, J., dissenting). The only limitation on recovery under chapter 26.44 RCW should be absence of direct and proximate injury to the child or the integrity of the family caused by negligent investigation. Id.
The declaration of Robert Van Siclen and its appendixes were proffered by the Simses in their RAP 9.11 motion to supplement the record. The majority denies this motion. The Simses did not introduce this evidence at trial for a simple reason: it did not become relevant until the county alleged a “harmful placement decision” as an element of a negligent prosecution claim in its appeal. Because it meets the criteria of RAP 9.11, we should consider this evidence in our resolution of this case.