Aba Sheikh v. Choe

¶29 (concurring) — I concur with the majority.

Chambers, J.

¶30 Like both the majority and dissent, I would not extend the duty we found in Taggart v. State, 118 Wn.2d 195, 217, 822 P.2d 243 (1992), based upon the State’s “take charge” relationship with those on parole or probation, to foster children. Those convicted of crimes and those committed to the State’s care as foster children are far too different to permit that analogy. Foster children are under the State’s supervision overwhelmingly through no fault of their own. The primary duty of the State is the protection of these children. Terrell C. v. Dep’t of Soc. & Health Servs., 120 Wn. App. 20, 28-29, 84 P.3d 899, review denied, 152 Wn.2d 1018 (2004). Foster children are entitled to the least restrictive placement possible. Imposing a duty on the State in negligence to third parties injured by foster children is inconsistent with placing these children in the most family-like setting possible, and it would have a potentially terrible, negative impact on these children.

¶31 But that is not to say the State should be immune from any enforceable duty of care. The State, of course, may *460be liable for its own negligence. The public’s right to be free from the violent acts of foster children may be found in other common law duties such as negligent entrustment that results in foreseeable injuries. Cf. Hickle v. Whitney Farms, Inc., 148 Wn.2d 911, 925-26, 64 P.3d 1244 (2003); cf. State ex rel. Gilroy v. Superior Court, 37 Wn.2d 926, 933, 226 P.2d 882 (1951) (quoting 39 Am. Jur. Parent and Child § 61, at 697; 67 C.J.S. Parent and Child § 71, at 803). However, I concur with the majority that, in this case, none of these theories presented by the plaintiff survive summary judgment.

¶32 I write separately because this case offers us an opportunity to examine the practical impact of Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003).6 As often happens, Aba Sheikh pleaded a case involving both negligent and intentional acts that resulted in indivisible harm. Aba Sheikh was assaulted by four youths in March 1999. Their conduct was intentional. Aba Sheikh also alleged that the negligence of the Department of Social and Health Services was partially to blame. Judge Downing properly, in my view, read Tegman to permit, but not require, segregation of harm.

¶33 Tegman, of course, must be read in harmony with our case law interpreting apportionment, especially Cox v. Spangler, 141 Wn.2d 431, 439-40, 5 P.3d 1265 (2000) and Phennah v. Whalen, 28 Wn. App. 19, 28-29, 621 P.2d 1304 (1980), as Judge Downing properly did here. The Cox court applied the long-recognized common law rule that an at-fault defendant bears the burden of proof that seemingly *461indivisible damages are in fact segregable. Cox, 141 Wn.2d at 443-44, 446-47 (quoting Restatement (Second) of Torts § 433(B) (1965) and Phennah, 28 Wn. App. at 28-29).

¶34 The principles in play are well illustrated in Phennah. There, the plaintiff was injured in two unrelated car accidents that happened about four months apart. Phennah, 28 Wn. App. at 20. The plaintiff saw the same physician after each accident. Id. That physician testified that both accidents contributed to a permanent disability and that it was “impossible” to determine which accident caused what portion of the harm. Id. at 21. The plaintiff sued both drivers but did not attempt to segregate the damage between them. The defendants successfully filed a motion to dismiss based on the plaintiff’s failure to attempt to segregate, and the Court of Appeals reversed and remanded for trial.

¶35 Key to the court’s holding was the fact that the divisibility of the harm was only theoretical: the harm was actually indivisible. Phennah, 28 Wn. App. at 23-24. Like Judge Downing below, the Phennah court found that the burden of segregating the harm caused, if possible, properly rested with the defendants. Phennah, 28 Wn. App. at 29. Accordingly,

“[wjhere the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.”

Phennah, 28 Wn. App. at 28 (quoting Restatement (Second) of Torts § 433(B)(2) (1965)).

¶36 Similarly, in Cox, the injury to the plaintiff might have been caused by two parties in succession, but the first (who caused an accident months before) was not potentially “at-fault” for purposes of RCW 4.22.070 because of statutory immunity from liability under the Industrial Insurance Act, Title 51 RCW. This precluded joint and several liability. We concluded the trial court correctly instructed *462the jury that the burden of establishing the injury was segregable and that the burden of apportioning the harm fell upon the lone remaining (at-fault) defendant. Cox, 141 Wn.2d at 447-48. The defendant would be responsible for the entire injury if it could not meet that burden.

¶37 The State argues these cases are inapplicable because they do not involve an intentional tortfeasor. The argument misses the point. Cox involved one at-fault defendant under RCW 4.22.070 and a party relieved from liability under the Industrial Insurance Act. See Cox, 141 Wn.2d at 446. That is substantially similar, analytically, to the case before us.

¶38 Here the State may be an at-fault defendant under RCW 4.22.015 and the four assailants are excluded from that statute because they are intentional tortfeasors. RCW 4.22.015 (“ ‘Fault’ includes acts or omissions . . . that are in any measure negligent or reckless.”). On this important point, Cox, Phennah, and A6a Sheikh are analogous. In a unanimous opinion by Justice Alexander, this court held that an at-fault defendant bears the burden to prove seemingly indivisible damages are in fact segregable, and if this burden is not met, the defendant remains liable for those damages. Cox, 141 Wn.2d at 447-48; see also Phennah, 28 Wn. App. at 28-29; Restatement (Second) of Torts § 433(B)(2). This result was not based upon the principle of joint and several liability, which, in any event, did not apply in Cox because an immune entity was the other alleged cause of the damages. See Cox, 141 Wn.2d at 446. Rather, again, the court grounded its decision in the actual indivisibility of the plaintiff’s injuries. See Cox, 141 Wn.2d at 447; accord Phennah, 28 Wn. App. at 23-24.

¶39 In this case, the trial judge properly harmonized the tort reform act, chapter 4.22 RCW, Tegman, Cox, and Phennah.

¶40 I concur with the majority.

I will make no secret of the fact that I would reverse Tegman. I have already set forth my view of why Tegman is wrong. See Tegman, 150 Wn.2d at 120-35 (Chambers, J., dissenting). Tegman is also harmful because it prevents full and fair compensation to victims that the legislature clearly intended to fully compensate. RCW 4.22.070(l)(b). It creates the perverse possibility of a grossly negligent party escaping any liability because of the completely foreseeable intentional conduct of another. An examination of the tortured verdict form in this case should be sufficient to satisfy anyone that Tegman’s requirement that indivisible damages be segregated twice, based upon irreconcilable standards, has a harmful impact on the law. Under Tegman, damages must be segregated first based upon cause, and second based upon the character of the defendants’ conduct. The results of these different standards may have nothing to do with one another and will confound any jury.