Opinion
No. 64977-9-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-12148-7, Brian M. Tollefson, J., entered October 17, 2008.
Reversed and remanded by unpublished opinion per Leach, A.C.J., concurred in by Schindler, J.; Appelwick, J., concurring separately.
The State and its employees appeal a judgment awarding the family of Gabriel Tobin damages jointly against a day care operator, the State, and its employees. The State asserts that sovereign immunity and the public duty doctrine bar the family's claims. The State also alleges several evidentiary and instructional errors occurred at the trial. We hold that the State did not breach any duty to Gabriel and his family and reverse.
FACTS
In 2002, Jennifer and Christopher Tobin placed their three-month-old son Gabriel in the care of Lisa Fish at Little Fish's day care. Fish operated this day care out of her home, located on Inlet Island on Lake Tapps in Bonney Lake, Washington. Lake Tapps can be seen from Fish's home and can be reached without obstruction by walking approximately 200 yards from Fish's front door across the street and through the yards of her neighbors. The State first issued Fish a license to operate her day care in 2001 and renewed it in 2004. The State never required that Fish fence her front yard. During a renewal inspection, Fish expressed concern to a state employee, Victor Berdecia, about the safety of her front door. Berdecia told her that the minimum license standards required that the door must be locked from the outside but easily opened from the inside in case of an emergency.
On July 13, 2004, Fish left three children, including two-year-old Gabriel, watching television and working on a puzzle in the living room while she went to the backyard to settle a dispute between three older children. She remained in the backyard for five to ten minutes. When she came back inside, Fish discovered the front door open and Gabriel missing. Approximately two hours later, first responders found Gabriel's body under a dock in Lake Tapps.
Jennifer and Christopher Tobin filed suit against the State of Washington and several of its employees, including Amy Cichowski, Victor Berdecia, and Mary Kay Quinlan, as well as Lisa Fish and her husband, asserting claims for negligence, for damages recoverable under wrongful death and survival statutes, violation of 42 U.S.C. § 1983, and emotional distress.
The plaintiffs-respondents will be referred to collectively as "the Tobins."
Pretrial, the trial court granted the Tobins partial summary judgment on the issue of duty but found that an issue of material fact remained as to breach. The trial court denied the State's motion for summary judgment in part, declining to dismiss a negligence claim. The case proceeded to trial on this claim. After three weeks of trial, the jury returned a verdict in favor of the Tobins. The jury allocated 81 percent of the liability to the State and its employees and 19 percent to the Fishes. The State and its employees appeal.
After removal by the State, federal district court dismissed the 42 U.S.C. § 1983 claim. The federal district court then remanded the case back to state court for resolution of the state law claims. The superior court dismissed the claims for outrage, negligent infliction of emotional distress, and negligent supervision, hiring, and retention.
ANALYSIS
I. Standard of Review
The State contends that the court erred by granting Tobins' motion for partial summary judgment and denying the State's motion for summary judgment. "A motion for summary judgment presents a question of law reviewed de novo." Summary judgment is proper if, after viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine issues exist as to any material fact and the moving party is entitled to judgment as a matter of law. We construe the evidence in the light most favorable to the nonmoving party. We review a ruling on a motion for summary judgment based solely on the record before the trial court at the time of the motion for summary judgment.
The Tobins raised two meritless issues regarding reviewability here. First, the Tobins argue that the denial of summary judgment may not be appealed if there has been a subsequent trial. A denial of summary judgment cannot be appealed following a trial if the denial was based upon a determination that material facts are in dispute and must be resolved by the trier of fact. Johnson v. Rothstein, 52 Wn. App. 303, 304, 759 P.2d 471 (1988). This is not the case here. An issue of law was decided, and this can be appealed. Kaplan v. Nw. Mut. Life Ins. Co., 115 Wn. App. 791, 799, 65 P.3d 16 (2003); see also Bulman v. Safeway, Inc., 96 Wn. App. 194, 198, 978 P.2d 568 (1999) (When denial of summary judgment turns on a substantive legal issue, an appellate court may review the denial after entry of final judgment).
Second, the Tobins assert that failure to assign error to the final judgment results in waiver and precludes consideration of the merits of the appeal. But, the State properly assigned error to all erroneous rulings to which it sought appellate review. RAP 10.3(a)(4).
Osborn v. Mason County, 157 Wn.2d 18, 22, 134 P.3d 197 (2006).
CR 56(c); Torgerson v. N. Pac. Ins. Co., 109 Wn. App. 131, 136, 34 P.3d 830 (2001).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
RAP 9.12; Wash. Fed'n of State Emp., Council 28 v. Office of Fin. Mgmt., 121 Wn.2d 152, 163, 849 P.2d 1201 (1993).
II. Sovereign Immunity
A plaintiff suing the State must show a waiver of sovereign immunity. The State of Washington has generally waived sovereign immunity. Our Supreme Court has characterized this waiver as one of the broadest in the country. The State first contends that it has not waived immunity for the conduct in issue because that conduct has no private analogue.
In 1961, the legislature waived the State's sovereign immunity with respect to tort actions. Laws of 1961, ch. 136, § 1 (codified as RCW 4.92.090).
RCW 4.92.090 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."
Savage v. State, 127 Wn.2d 434, 444, 899 P.2d 1270 (1995).
Washington law does not require this private analogue. Washington courts have upheld the tort liability of the government for conduct having no private analogue, including the negligent supervision of parolees and the failure to dispatch law enforcement to the scene of a crime. These cases demonstrate that the State cannot establish immunity simply by showing that its activity has no private analogue.
Taggart v. State, 118 Wn.2d 195, 223, 822 P.2d 243 (1992).
Chambers-Castanes v. King County, 100 Wn.2d 275, 282-83, 669 P.2d 451 (1983); see also Michael Tardif Rob McKenna, Washington State's 45-Year Experiment in Governmental Liability, 29 Seattle U. L. Rev. 1, 16 (2005) (explaining that Washington courts held that immunity was waived for several government activities, including issuing and deny permits, initiating police investigations, releasing mental patients, conducting police investigations, responses to emergency calls, supervising of paroled felons, and designing highways).
III. Duty
The State next contends that it did not breach any duty owed to the Tobins. As plaintiffs alleging negligence, the Tobins had to prove a duty owed to them, breach of that duty, resulting injury, and proximate cause between the breach and the injury. "`The threshold determination in a negligence action is whether a duty of care is owed by the defendant to the plaintiff.'" We review de novo this question of law.
Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784-85, 30 P.3d 1261 (2001) (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988)).
Donohoe v. State, 135 Wn. App. 824, 833-34, 142 P.3d 654 (2006).
The government may be held liable in tort only if it breaches a duty owed to a particular individual, rather than a duty owed to the general public. "When a government agency is the defendant, this rule is known as the public duty doctrine." The policy rationale of the public duty doctrine has historically been prevention of excessive governmental liability and avoiding hindrance of the governing process.
Osborn, 157 Wn.2d at 27.
Yonkers v. Dep't of Soc. Health Servs., 85 Wn. App. 71, 76, 930 P.2d 958 (1997) (citing Taylor, 111 Wn.2d at 163).
Chambers-Castanes, 100 Wn.2d at 291 (Utter J., concurring).
Washington courts have recognized four exceptions to this doctrine: the legislative intent exception, the failure to enforce exception, the special relationship exception, and the rescue doctrine. "These exceptions are founded in traditional negligence principles, and determine the existence of a duty." If an exception to the public duty doctrine applies, then the State owes a specific duty to the plaintiff, the breach of which is actionable. When defending against the State's summary judgment motion, the Tobins argued their case fell within each of the four recognized exceptions. The trial court agreed. But at trial the Tobins relied on only two of the exceptions, legislative intent and failure to enforce. We confine our analysis to those claimed exceptions.
Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987).
Yonkers, 85 Wn. App. at 76.
Taggart, 118 Wn.2d at 218.
The trial court found that all four exceptions applied. The case was tried on only two. "The burden is on the parties to a lawsuit to propose jury instructions covering their respective theories." Browne v. Cassidy, 46 Wn. App. 267, 269-70, 728 P.2d 1388 (1986). "A party is bound by the legal theories pleaded and argued before the jury renders a verdict." Browne, 46 Wn. App. at 270. "`[A] lawsuit cannot be tried on one theory and appealed on others.'" Browne, 46 Wn. App. at 270 (quoting Teratron Gen. v. Institutional Investors Trust, 18 Wn. App. 481, 489, 569 P.2d 1198 (1977)). We will only address the two exceptions raised by the Tobins at trial.
The Tobins' argument rests on the following analysis: the secretary of the Department of Social Health Services must safeguard the safety of children receiving care away from their homes. The secretary must adopt minimum requirements for family home day care facilities like Fish's. These minimum licensing requirements must address "[t]he size and suitability of facility," "[t]he safety, cleanliness, and general adequacy of the premises to provide for the comfort, care, and well-being of children," and "supervision." The State must ensure compliance with these regulations. Under former WAC 388-155-090(1) (2003), the State must deny a day care license application or suspend or revoke a license if the home day care facility does not meet the minimum license requirements. The State may waive the minimum licensing requirements only under strictly limited circumstances not present in this case.
RCW 74.15.030(2)(a), (j), (k).
Former WAC 388-155-050 (2003).
In compliance with its duty to adopt regulations promoting safety, the State adopted a regulation requiring a fence to prevent access to water hazards. Former WAC 388-155-295(5) stated, "A five foot high fence with gates, locked when not in use, is required to prevent access to water hazards, such as swimming pools, lakes, streams, or natural or artificial pools." The Tobins do not argue that the State failed to meet its legislative duty to adopt an adequate standard. Instead, they assert that the State failed to enforce a minimum standard it adopted.
Former WAC 388-155-295(5).
Former WAC 388-155-295, Water safety, stated in its entirety,
(1) The licensee must maintain the following water safety precautions when the child uses an on-premises swimming pool or wading pool. The licensee must ensure:
(a) The on-premises pool is inaccessible to the child when not in use; and
(b) An adult with current CPR training supervises the child at all times.
(2) The licensee must ensure a certified lifeguard is present during the child's use of an off-premises swimming pool.
(3) The licensee must empty and clean a portable wading pool daily, when in use.
(4) An adequate, department-approved cover or barrier, installed at the manufacturer's specification must be in place to prevent the child access at all times to heated tubs, whirlpools, spas, tanks, or similar equipment.
(5) A five foot high fence with gates, locked when not in use, is required to prevent access to water hazards, such as swimming pools, lakes, streams, or natural or artificial pools.
The Tobins contend that former WAC 355-188-295(5) required that the State not license Fish unless she first constructed a five-foot fence in the front yard to prevent children from accessing Lake Tapps. This case turns entirely on whether, as a matter of law, this water safety regulation required a five-foot fence in the front yard of this property to prevent "access" to a water hazard, Lake Tapps.
The pertinent regulations did not define the term "access." Assuming that the legislative intent and failure to enforce exceptions apply, we must decide whether Lake Tapps was accessible from the Fish property within the meaning of the regulation, making a five-foot fence in the front yard mandatory.
Former WAC 388-155-295; former WAC 388-155-010 (2003).
A day care is licensed to provide care inside the house and inside a fenced outdoor play area. Children have access to play areas only, both outside and in the home. At Little Fish's, the front yard was not a play area. The front yard was not used for the licensed day care operation.
Former WAC 388-155-330,-320 (2003).
The water safety regulation applied only to water hazards directly accessible to children while at the day care. That certainly includes water hazards located within the play area. It may also apply to water hazards on or immediately adjacent to the property but not within the play area. But the regulation creates no duty to fence an area not used as part of the licensed day care operation to prevent access to a water hazard located approximately two hundred yards away. Children at the day care do not have access from the day care directly to Lake Tapps. After leaving the Fish property, Gabriel necessarily crossed a public street and travelled through a waterfront property to reach Lake Tapps.
Former WAC 388-155-295.
The Tobins contend that "[u]nder the circumstances of this case, it would be absurd to hold that fencing would not be required between an indoor play area and Lake Tapps, when the only thing separating the two was a door, which had to be kept unlocked from the inside." Former WAC 388-155-600 (2003) required exit doors to be easy to open from the inside. The State appears to have adopted this door requirement for fire safety purposes and consistency with the fire code. But, the Tobins did not try this case on the theory that liability arose from a regulation requiring that a child must be able to open the door from the inside. They tried it based upon the State's failure to require fencing the front yard under the water safety regulation due to proximity of the day care to the lake.
We note that this statement is not factually correct as the door was locked but easily unlocked, and a public street and a neighbor's property also separated the door from the lake.
Former WAC 388-155-600(9), (10).
Former WAC 388-155-600(9), (10). The enactment of the fire code, like other enactments under the State's general police powers, is an action to benefit the public at large and creates only a public duty. See, e.g., Campbell v. City of Bellevue, 85 Wn.2d 1, 9-10, 530 P.2d 234 (1975) ("[N]egligent performance of a governmental or discretionary police power duty enacted for the benefit of the public at large imposes no liability on the part of a municipality running to individual members of the public.").
The Tobins also argue that the drafters of the water safety regulation knew how to say "on the premises" if that is what they intended and did not do so in former WAC 388-155-295(5). But, unlike pools, hot tubs, and wading pools also addressed in the regulation, many natural water safety hazards, such as lakes, rivers, and streams, will not be wholly located within the premises. While natural water hazards may abut or pass through the property, often they will not be entirely within the property. Because the State regulates the day care facility and the risks within it, the water safety regulation protected against risks from water hazards touching upon the property of the day care to which children might have access, but for the required fencing. It did not presume to protect against risks accessed beyond the boundaries of the licensed property.
We agree that the statute created a paramount duty. RCW 74.15.010(1) states that the purpose of chapter 74.15 RCW is
[t]o safeguard the health, safety, and well-being of children, expectant mothers and developmentally disabled persons receiving care away from their own homes, which is paramount over the right of any person to provide care.
This duty places the safety of the children ahead of a person's right to operate a noncompliant day care. It seeks to protect a child while on the licensed premises. But, the minimum licensing requirements do not provide a guarantee of absolute safety. The statute did not require the adoption of a specific water safety regulation protecting children in day care from water hazards on or off the day care property. As a matter of law, the water safety regulation, adopted as a minimum requirement, did not require a fence in the front yard of Fish's day care to protect against access to Lake Tapps. Therefore, the trial court erred as a matter of law in granting the Tobins' motion for partial summary judgment on the issue of duty and denying the State's motion for summary judgment. The loss of life here was tragic, but it did not occur because of a breach of duty by the State.
Because we hold that the case against the State and its employees should have been dismissed, we need not reach the additional arguments made by the State or the public duty doctrine exceptions arguments made by the Tobins.
We reverse and remand for dismissal as to the State and its employees.
I concur with the majority that the water safety regulation, WAC 388-155-295, did not create a duty for the State to require a five foot fence around the front yard of the Little Fish's day care. I also concur that the regulations requiring the front door of the day care to be able to be opened from the inside at all times is a fire and safety regulation which does not give rise to a duty to an individual.
The day care regulatory scheme presumes protection for children because they are supervised, a duty imposed on the day care operator. But, common sense and experience tell us that children are unsupervised at times. Even the rule requiring the door to be able to be opened by children presumes that no adult is present to open it for them in case of fire or emergency. If a child is free to leave the house unsupervised, he faces great danger from aggressive dogs, traffic, sexual predators, water hazards, holes, and much more. Children should be protected against these dangers. Common sense says this tragic death was preventable. Common sense says this tragedy is capable of occurring again and again if the issue of access to the outside world through the unlocked front door is not properly addressed. It is within the power of the legislature and the State to prevent such tragedies. Evidence at trial that subsequent to Gabriel's death the State required fencing or a door alarm to protect against off-site water hazards is encouraging. But, at present, the law does not require a front yard that is not a play area to be fenced to protect against the wide variety of hazards that exist beyond the front door. Such is the state of the law, and as the Tobins assert in their brief, it is "absurd."