Turner v. Dep't of Soc. & Health Servs. ( 2021 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
AUGUST 12, 2021
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
AUGUST 12, 2021
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
KATHY ARLEEN TURNER, individually )
and as the Personal Representative of the ) No. 99243-6
ESTATE OF KENT ALLEN TURNER, )
Deceased, )
)
Appellant, )
)
v. ) En Banc
)
WASHINGTON STATE DEPARTMENT )
OF SOCIAL & HEALTH SERVICES; )
LEWIS-MASON-THURSTON AREA )
AGENCY ON AGING; RES-CARE )
WASHINGTON, INC., a Delaware )
corporation; and LIFE THERAPEUTIC )
WORKS, LLC, a Washington Limited )
Liability Corporation, )
)
Respondents. )
) Filed: August 12, 2021
JOHNSON, J.—This case primarily involves the existence and scope of any
duty owed by the Washington State Department of Social and Health Services
(DSHS) and area agencies on aging (AAAs) to individuals who qualify for and
No. 99243-6
receive state long-term care services. Kent Turner suffered from multiple sclerosis
(MS), which caused loss of his motor skills. When his wife, Kathy Turner, 1 could
not, due to her health issues, provide necessary in-home assistance, Kent moved
into a nursing home and then into an apartment, where he died in a fire. Kent’s
estate, through Kathy Turner, sued DSHS and Lewis-Mason-Thurston Area
Agency on Aging (LMTAAA)—the AAA with case management responsibilities
for Kent’s care—for negligence and for abuse or neglect. DSHS and LMTAAA
moved for summary judgment, which the trial court granted. The trial court ruled
that no special relationship was formed and only an ordinary duty of care was
owed. The trial court further held that no breach occurred and causation was
lacking. We affirm the trial court’s summary judgment dismissal of the claims
against DSHS and LMTAAA. 2
FACTS AND PROCEDURAL HISTORY
In this case, it is helpful to provide some background on how long-term care
is administered and the statutory role of both DSHS and LMTAAA. Long-term
1
When referring to Kent and Kathy Turner, we use their first names for clarification. No
disrespect is intended.
2
The National Council on Independent Living and Advancing States et al., the
Washington State Health Care Authority, and the Washington State Association for Justice
Foundation all filed amicus briefs in this case.
2
No. 99243-6
care services are paid in part through Medicaid and are administered by DSHS. 3
Ch. 74.39 RCW; ch. 74.39A RCW. The statutorily enumerated purposes of long-
term care services include safety and cost, but they also include promoting
“individual choice, dignity, and the highest practicable level of independence.”
RCW 74.39A.007(1). In an effort to align promoting choice and independence
with limiting the State’s cost, long-term care services offered in community
settings were expanded as an alternative option to services received in institutional
settings. RCW 74.39A.030. The expansion not only allowed the State to save the
costs associated with care received in a nursing facility but also advanced the
dignity and choices of the clients who could receive care in independent living
situations in the community.
DSHS’s responsibilities in administering long-term care services are
established by statute and regulation. Summarizing this process, first, a client must
apply for long-term care services by requesting an assessment and submitting a
Medicaid application. WAC 388-106-0025. DSHS is then responsible for
conducting an assessment, advising a client of the appropriate level of care, and
establishing a plan of care based on the assessment in order to facilitate informed
3
Health Care Authority (HCA) is the state agency responsible for administering
Medicaid programs. HCA delegates authority to DSHS to administer certain Medicaid programs,
including long-term care services at issue in this case. RCW 41.05.021(1)(m)(iii); RCW
74.39A.007.
3
No. 99243-6
choices by individuals who qualify for long-term care services. RCW
74.42.058(1); RCW 74.39A.040. These assessments are called the Comprehensive
Assessment Reporting Evaluation (CARE assessment), which determine eligibility
for long-term care services by evaluating an individual’s functional limitations and
ability to perform activities of daily living. WAC 388-106-0045 to -0140. 4 The
assessment decides the level of care the individual is eligible to receive supported
by Medicaid, and the individual must consent to the plan of care developed by
DSHS. RCW 74.39A.040(3); WAC 388-106-0045(3). Given the long-term care
services program’s promotion of choice and independence, those receiving long-
term care are provided with considerable control over their care. An individual has
the right to “turn down services[] and not accept case management services,” to
“make choices about services you want or don’t want,” to “[n]ot be forced to
answer questions or do something you don’t want to,” and to “[t]ake part in and
have your wishes included in planning your care.” WAC 388-106-1300(4), (5), (9),
(13).
Once a person qualifies for and is receiving care, DSHS provides individual
case management services for those receiving care in a nursing facility. RCW
4
Relevant to this case, if a client’s CARE assessment determines they are functionally
eligible for a nursing facility level of care, they may be eligible for long-term care services
supported by various programs. See WAC 388-106-0310(3)(a), -0277(1). This determination
does not necessarily mean that 24-hour care is required and, instead, means that the individual
meets a certain functional criteria level. See generally WAC 388-106-0355.
4
No. 99243-6
74.42.058. DSHS also contracts with AAAs to provide case management services
for those receiving long-term care services in the community. RCW
74.39A.090(2). DSHS must monitor the quality of AAAs, and it is permitted to
step in and temporarily provide case management responsibilities if the AAA is not
performing its contractual duties. RCW 74.39A.090(3)-(4). AAAs must also
develop a care plan for clients based on DSHS’s initial care plan, and it must
monitor the implementation of the care plan to “verify that it adequately meets the
needs of the consumer through activities such as home visits, telephone contacts,
and responses to information received by the area agency on aging indicating that a
consumer may be experiencing problems relating to his or her home care.” RCW
74.39A.095(1)(a), (b). At the time of Kent’s death, DSHS could terminate a
contract with an individual provider if they threatened the safety or health of a
client. See former RCW 74.39A.095(7) (2014). DSHS is also authorized to
completely terminate a client’s long-term services. WAC 388-106-0047(2)-(3).
With that backdrop, this case arises out of Kent’s tragic death from a fire in
his apartment. Kent was a military veteran who transitioned into work as a police
officer and eventually as a correctional facility officer. In 2007, Kent was
diagnosed with MS. Three years later, Kent was forced into early disability
5
No. 99243-6
retirement at the age of 48 because his MS progressed to the point where he used a
wheelchair and needed assistance with his mobility limitations.
Kathy became Kent’s caregiver once he retired, and they lived in an
apartment in Olympia. She had to help Kent with many activities of daily living,
including bathing, dressing, getting in and out of his electric wheelchair, and using
the restroom. Kathy was employed, and while she worked, Kent was able to
function in his wheelchair without assistance.
In July 2013, Kathy was diagnosed with squamous cell carcinoma, which
required surgery and chemotherapy treatment. Because of her cancer treatment,
Kathy knew that she could not continue to provide the needed assistance. Kathy
looked into getting in-home care for Kent, but the family was unable to afford it.
An application for DSHS assistance was submitted.
On July 31, 2013, DSHS performed an initial CARE assessment to
determine Kent’s eligibility for long-term care services and to establish a plan of
care. The assessment found that Kent’s general functional limitations were
“[g]eneral weakness, [p]oor hand/eye coordination, [w]eak grip, [l]imited fine
motor control.” Clerk’s Papers (CP) at 830. Based on his limitations, the
assessment found that Kent needed assistance with transferring to and from his
wheelchair, going to the bathroom, getting dressed, bathing, and doing chores.
Once in his wheelchair, Kent was able to independently operate his wheelchair
6
No. 99243-6
both inside and outside the apartment. The assessment concluded that Kent was
eligible for DSHS assistance, and it noted that the planned and recommended
living situation was to receive care in a nursing facility. It also noted that Kent’s
long-term goal was to move back home once Kathy recovered. A service summary
for the assessment included a paragraph stating that 24-hour care was available in a
residential setting only and that Kent’s participation in the long-term care services
program was voluntary. 5 Kent signed a service summary with the same language
each time an assessment was done.
On August 5, 2013, Kent moved into Puget Sound Healthcare Center
(PSHC). About two weeks after he was admitted into PSHC, Kent met with a
DSHS nurse facility case manager, Kaya Wilcox. Ms. Wilcox described her role as
assisting “people . . . who have a right to discharge and go to a lesser level of care
or something that could meet their needs, because it’s very expensive to live in a
nursing home.” CP at 1549. In their initial meeting, Ms. Wilcox confirmed that
Kent wanted to stay at PSHC temporarily until he could return home to live with
Kathy. Ms. Wilcox followed up with Kent again two months later on October 16,
5
“I am aware of all alternatives available to me and I understand that access to 24-hour care
is available only in residential settings, including community residential settings. I agree with the
above services outlined in this summary.
• I understand that participation in all ADSA/LTC [(Aging and Disability Services
Administration/Long-Term Care)] paid services is voluntary and I have a right to decline or
terminate services at any time.
• I understand that I must notify my case manager if I have a change in my living situation.”
CP at 855 (boldface omitted).
7
No. 99243-6
2013, and performed another CARE assessment. Her notes reflect a change in
Kent’s ultimate goal of going from PSHC to his home after Kathy’s cancer
treatment was over. Instead, Kent’s goal now stated that he wanted to discharge
from PSHC. 6 The assessment stated that Kent’s planned and recommended living
situation was to receive care “In Home.” CP at 495. Kent was determined to be
eligible for 158 hours of in-home care per month by his original CARE
assessment.
A plan was developed to facilitate Kent’s discharge from PSHC, and Kent
was qualified for Roads to Community Living (RCL), which is a federally funded
program designed to help people transition from institutional settings and into the
community. Kent’s CARE assessment from October 16, 2013 qualified him for
this program. He signed a participation form for the RCL program on that date in
addition to a waiver of nursing home care services, which states, “I have been
informed of my service options and I choose to receive services under the
following Home and Community based waiver instead of nursing home care.” CP
at 2168. Under the RCL protocols, Washington requires that the plan of care
contain an evacuation plan. See also WAC 388-101D-0170(c) (services providers
must develop and practice an evacuation with clients). In the locomotion portion of
6
More specifically, the notes state that “going to an [assisted living] from the [skilled
nursing facility] with an ultimate goal of going home or possibly getting his own apartment
would be a plan he could support.” CP at 865.
8
No. 99243-6
Kent’s CARE assessments, the evacuation plans stated that his caregiver would
keep the walkways clear, recharge his wheelchair batteries, and help him in
evacuating. The two CARE assessments done after his initial CARE assessment
found that Kent’s evacuation capability for an adult family home was independent,
which means that Kent could use his wheelchair to exit.
DSHS then contracted with Life Therapeutic Works (LTW) to help Kent
find an appropriate community placement. On December 4, 2013, Kent told Ms.
Wilcox he wanted to live in an independent living situation, rather than in an adult
family home or assisted living situation. Kent signed another RCL participation
form at that time. Kent went through a number of capability assessments by an
occupational therapist, which found that he met the expectations in his abilities to
perform activities and therefore could live with modified independence. LTW
discussed and showed Kent various apartment options, and he ultimately applied
and was approved for an apartment unit at Capitol House Apartments on January
30, 2014. He moved into the apartment on February 18, 2014.
On February 21, 2014, Kent was assessed by a registered nurse, a physical
therapist, and an occupational therapist, and it was found that he needed no further
therapy. The nurse also noted that no structural barriers, safety hazards, or sanitary
issues existed in the apartment. Ms. Wilcox also conducted an interim CARE
assessment on February 28, 2014, which confirmed Kent’s eligibility for in-home
9
No. 99243-6
care of 158 hours per month, outlined the services he was supposed to be
receiving, and provided an evacuation plan.
On March 17, 2014, DSHS transferred case management responsibilities to
LMTAAA. Kent’s case manager was Heidi Hildebrandt. She met with Kent on
March 26, 2014 to review the services being provided to him, and they both signed
the service summary. ResCare provided Kent’s in-home care for two hours in the
morning and two hours in the evening. On March 31, another resident of Capitol
House Apartments reported that Kent was losing weight, that his wheelchair
battery was not being charged, and that it appeared he had not showered. No
investigation was made.
On April, 30, 2014, tragically, Kent died alone in his apartment from a fire.
While the apartments had a fire alarm system that notified first responders, the
apartment did not have sprinklers. Kent was found in front of the door in his
wheelchair, and it appeared that the fire was primarily isolated to his person, as the
wheelchair had not moved once the fire started. Because a majority of the fire was
under the wheelchair, the fire department concluded that the fire was probably
started either on the wheelchair or on Kent. The coroner’s report and the autopsy
10
No. 99243-6
report concluded that Kent’s death was accidental and a result of inhaling toxic
materials from the fire. It remains unclear what actually caused the fire.
On October 14, 2015, Kent’s estate, through Kathy, brought suit against
DSHS, alleging negligence and for abuse and neglect. The complaint was amended
twice, adding claims against ResCare, LTW, and LMTAAA as defendants. The
complaint alleged that DSHS breached its duty to Kent by failing to conduct
adequate assessments, to provide appropriate services, to place him in a safe
environment, and to comply with policies and regulations. The complaint also
alleged that LMTAAA negligently performed its case management responsibilities.
It alleged that LMTAAA breached its duties by not placing Kent in a safe
environment with safe caregivers, and by not complying with regulations and
internal policies. The complaint further alleged that DSHS and LMTAAA
breached a duty to investigate a complaint that Kent was not receiving adequate
care in his apartment.
All defendants moved for summary judgment, and the trial court granted
summary judgment in favor of all defendants. 7 Regarding DSHS and LMTAAA,
the trial court concluded that both parties were not in a special relationship to Kent
and therefore owed him only an ordinary standard of care. It concluded that the
7
Three manufacturers of Kent’s wheelchair were also sued, including Curtis Instruments,
Inc., Pride Mobility Products Corporation, and United Seating and Mobility, LLC, which were
dismissed and not before us.
11
No. 99243-6
undisputed facts established no breach of that duty. The trial court further
concluded that proximate cause was not met, especially in light of the uncertainty
surrounding the fire causing Kent’s death. Finally, the trial court dismissed the
claims of abuse or neglect under chapter 74.34 RCW. Kathy appealed, and we
accepted certification for direct review.
ANALYSIS
I. Standard of Review
We review orders granting summary judgment de novo. Summary judgment
is appropriate where there is no genuine issue as to any material fact, so that the
moving party is entitled to judgment as a matter of law. We view the facts in a
light most favorable to the nonmoving party. To prevail on a negligence claim, a
plaintiff “‘must show (1) the existence of a duty to the plaintiff, (2) a breach of that
duty, (3) a resulting injury, and (4) the breach as the proximate cause of the
injury.’” Ehrhart v. King County, 195 Wn.2d 388, 396, 460 P.3d 612 (2020)
(internal quotation marks omitted) (quoting N.L. v. Bethel Sch. Dist., 186 Wn.2d
422, 429, 378 P.3d 162 (2016)). In this case, the primary issues relate to the
existence and scope of any duty owed under these facts by DSHS and LMTAAA
to Kent. The existence and scope of a duty is a threshold inquiry in a negligence
action, and it is a question of law we review de novo. Munich v. Skagit Emergency
Commc’ns Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012).
12
No. 99243-6
II. DSHS’s Duty of Care
While the claims asserted against DSHS and LMTAAA share some
arguments in common, the briefing demonstrates that the factual basis of those
claims are somewhat distinct. The claim against DSHS relies most heavily on the
existence of a special relationship between DSHS and Kent leading up to his move
into Capitol House Apartments. Appellant, Kathy Turner, essentially argues that
DSHS was in a special relationship to Kent because it “encouraged Kent to make
such a move, largely for financial reasons.” Br. of Appellant at 6-7. Appellant
points to statements from Ms. Wilcox, Kent’s nurse facility case manager, that the
RCL program saved the State money, attempting to cast her actions in asking Kent
if he wanted to move as bordering on predatory type behavior. Reply Br. of
Appellant at 3 (“DSHS actively recruited people with disabilities to leave [skilled
nursing facilities] . . . in order to cut costs”), 4 (arguing that DSHS worked toward
its “‘targeting and recruitment’ goals by aggressively approaching new admittees
to [skilled nursing facilities]”). Because Kent’s initial plan was to receive care in a
nursing facility temporarily until he returned to Kathy, appellant argues that Kent’s
move was entirely based on DSHS’s recommendations and guidance, and that
“DSHS, in its blind adherence to transition of disabled persons to community
settings in the guise of ‘client choice,’ washed its hands of any real responsibility
13
No. 99243-6
for Kent’s placement in a facility that jeopardized him.” Br. of Appellant at 24
(citation omitted).
Appellant therefore argues DSHS breached its special protective duty to
Kent by allowing him to move into an assisted independent living situation,
arguing that if the State had kept him in a nursing care type facility, Kent’s death
would not have occurred.8 Assuming for summary judgment purposes that
appellant’s description of DSHS’s involvement in Kent’s move may be true to a
certain extent, it does not necessarily establish a special relationship existed.
Instead, the record establishes, as provided by the statutory framework for the
administration of long-term care services, that Kent had control over the decision
to live more independently or to stay at a nursing facility, that Kent fully
participated in that choice, and that DSHS’s role was to provide information and
assist Kent in carrying out that choice. RCW 74.42.058(1) (“The purpose of the
case management services is to assist residents and their families to assess the
appropriateness and availability of home and community services that could meet
8
Interestingly, this argument as to the existence of a special relationship based on DSHS
encouraging Kent to move was not the appellant’s sole focus of the duty analysis at oral
argument. Instead, appellant presented a somewhat different and new theory regarding DSHS’s
breach of duty by arguing DSHS did not obtain Kent’s informed consent because it did not
adequately discuss the risks associated with moving into the community despite its knowledge
that Kent overestimated his abilities. Wash. Supreme Court oral argument, Turner v. Dep’t of
Soc. & Health Servs., No. 99243-6 (March 11, 2021), at 5 min., 56 sec. through 7 min., 10 sec.;
17 min., 6 sec. through 18 min., 56 sec., audio recording by TVW, Washington State’s Public
Affairs Network, http://www.tvw.org. This theory was not raised in any of appellant’s briefing on
appeal or at the trial court, and it does not change our ultimate analysis in this case.
14
No. 99243-6
the resident’s needs so that the resident and family can make informed choices.”).
DSHS did not have complete control over the living options nor did it make the
ultimate decision for Kent to leave PSHC.
While it is also true that Kent needed assistance, once he was placed in his
wheelchair, he was able to operate it independently. Given Kent’s level of care and
independence, the relationship between Kent and DSHS did not rise to the level of
a special relationship, and our cases have drawn this distinction.
The special relationship alleged by appellant is defined by Restatement
(Second) of Torts § 315 (Am. Law Inst. 1965):
There is no duty so to control the conduct of a third person as to
prevent [them] 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.
The special relationship in Restatement (Second) § 315(b) recognizes a heightened
duty to protect someone from foreseeable harms. A special relationship results in a
heightened duty where a person is helpless, totally dependent, or under the
complete control of someone else for decisions relating to their safety. Our cases
have identified the relationships resulting in such a protective duty “include the
relationships between schools and their students, innkeepers and their guests,
common carriers and their passengers, and hospitals and their patients.” H.B.H. v.
15
No. 99243-6
State, 192 Wn.2d 154, 169, 429 P.3d 484 (2018). The protective duty imposed by
the special relationship is “limited by the concept of foreseeability,” where a duty
is imposed “[o]nly 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.”
H.B.H., 192 Wn.2d at 176-77 (quoting Niece v. Elmview Grp. Home, 131 Wn.2d
39, 50, 929 P.2d 420 (1997)). If a special relationship is formed, it has an
accompanying “duty of care to protect the plaintiff from foreseeable harm,” which
borders on strict liability. H.B.H., 192 Wn.2d at 169.
First, it is necessary to discuss the nature of this relationship as applied to
DSHS in addition to establishing the duty owed. Our cases discussing the
formation of a special relationship with DSHS recognize a special relationship is
based on an element of entrustment. For example, we considered DSHS’s special
relationship to foster children in H.B.H., where former foster children sued DSHS
and alleged that DSHS was negligent in failing to protect them from child abuse
occurring in their foster placements. Citing Caulfield v. Kitsap County, 108 Wn.
App. 242, 29 P.3d 738 (2001), we reasoned that DSHS’s role in placing foster
children in foster homes was similar to its role in placing vulnerable adults with
contractual caregivers. Both roles “carry out the State’s parens patriae
responsibilities.” H.B.H., 192 Wn.2d at 171. Rather than physical custody or
control, vulnerability and “entrustment for the protection of a vulnerable
victim . . .
16
No. 99243-6
is the foundation of a special protective relationship,” which other sections of
Restatement (Second) further outlining the special relationship confirmed. 9 H.B.H.,
192 Wn.2d at 173. We ultimately concluded that DSHS stood in a protective
relationship because it was the legal custodian of foster children with statutory
duties to investigate reports of abuse or neglect and monitor foster care placements.
While we have not analyzed DSHS’s relationship to vulnerable adults, two
Division Two Court of Appeals decisions have. The first is Caulfield, which
involved an adult with MS who required 24-hour care. Caulfield was initially
placed in a nursing facility, and his care was monitored by a DSHS case manager.
DSHS concluded that Caulfield was eligible for in-home care. DSHS contracted
directly with Caulfield’s caregiver who provided him 24 hour in-home care.
Caulfield complained to his DSHS case manager about his caregiver, and the case
management responsibilities for Caulfield’s care were transferred to a Kitsap
County social worker. Caulfield was hospitalized with severe injuries and illnesses,
and he sued Kitsap County, DSHS, and the caregiver, claiming negligent care from
his in-home placement. A jury found the county and the caregiver negligently
caused Caulfield’s injuries. The county appealed and argued that it owed no duty
9
Specifically, we considered the special relationship resulting from “‘[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.’” H.B.H., 192 Wn.2d at 171 (alteration in original) (quoting RESTATEMENT (SECOND) §
314A(4)).
17
No. 99243-6
to Caulfield under the public duty doctrine. The Court of Appeals disagreed, and it
reasoned that the special relationship defined by Restatement (Second) § 315(b)
applied to the county. The court concluded that the county case manager stood in a
special relationship to Caulfield based on a total inability to care for himself, which
created an “element of ‘entrustment.’” Caulfield, 108 Wn. App. at 256. The court
noted that “[p]rofoundly disabled persons are totally unable to protect themselves
and are thus completely dependent not only on their caregivers but also their case
managers for their personal safety.” Caulfield, 108 Wn. App. at 255-56. The
extensive responsibilities of county case managers established a duty to use
reasonable care to protect Caulfield from harm caused by his caregiver.
The second Court of Appeals case, Donohoe v. State, 135 Wn. App. 824,
142 P.3d 654 (2006), presents a contrasting factual scenario where the court
concluded a special relationship was not formed. That case involved an adult who
needed 24-hour care due to her dementia, incontinence, and risk of falling.
Donohoe initially lived in an adult family home privately paid for by her family.
DSHS assessed Donohoe and found her eligible for DSHS assistance. Donohoe
chose to receive her care in a nursing home, Pacific Care. DSHS received two
complaints from Donohoe’s family about Pacific Care’s caregiving, and DSHS
cited Pacific Care’s failure to provide adequate personal hygiene. Donohoe was
moved to a hospital shortly before the second complaint. Donohoe’s family then
18
No. 99243-6
moved her to another private nursing home, where she died about a year later.
Donohoe’s estate sued DSHS. DSHS’s motion for summary judgment argued that
it owed no duty to Donohoe, relying on the public duty doctrine. The Court of
Appeals reasoned that no special relationship between Donohoe and DSHS existed,
and it distinguished Caulfield. Unlike Caulfield, where a DSHS case manager hired
and monitored Caulfield’s sole caregiver, the court noted that DSHS did not select
or oversee the care Donohoe was receiving at Pacific Care and that Donohoe’s
family, not DSHS, chose Pacific Care and ultimately removed her. At bottom,
Caulfield’s differing special relationship was created by DSHS being solely
responsible for monitoring Caulfield’s in-home caregiver. In contrast, DSHS’s
primary responsibilities as to Donohoe were determining Medicaid and nursing
home eligibility.
H.B.H. concluded DSHS’s relationship to vulnerable adults involves an
element of entrustment similar to its relationship to foster children. Pursuant to that
reasoning, DSHS and AAAs may be in a special relationship to adults receiving in-
home care when either entity monitors an individual’s care to the extent that the
individual completely entrusts them with their safety. Here, the trial court
concluded that there was no special relationship between Kent and DSHS or
LMTAAA and distinguished Caulfield because Kent was not under 24-hour care.
19
No. 99243-6
While Kent required a certain amount of assistance due to his functional
limitations, independent assessments determined that he did not require 24-hour
care in a nursing facility. As a result, Kent could choose to receive care
independently with partial assistance. And when given that option, Kent chose to
move out of PSHC and live more independently, and he accepted certain risks
associated with moving out of a nursing facility with 24-hour care available. Given
Kent’s ability to live independently with partial assistance combined with his
choice to receive his care in that living situation, Kent’s relationship with DSHS
does not fit under our cases developed outlining the nature of a special
relationship. Unlike Caulfield, Kent was not helpless, totally dependent, or under
the complete control of DSHS for decisions relating to his safety at his apartment
given his level of independence.
We affirm the trial court’s ruling that no special relationships existed under
these facts. Rather than a special relationship stemming from monitoring Kent’s
care at his apartment, appellant essentially alleges that a special relationship
existed because DSHS allowed Kent to move from the safe environment of a
nursing facility into an apartment with lesser care available. Reply Br. of Appellant
at 6 (describing DSHS as “ushering him out of the [skilled nursing facility] into an
inappropriate, unsafe setting and care plan that did not meet his needs”). According
to appellant, DSHS was entrusted with Kent’s safety based on that move.
20
No. 99243-6
But imposing a special relationship based on Kent’s move runs contrary to
the client-centered approach of long-term care services. Kent was ultimately the
decision-maker regarding his placement and care. RCW 74.42.058(1); WAC 388-
106-1300. It was Kent’s choice to live independently, albeit with partial assistance.
In fact, he signed RCL participation forms confirming his voluntary entry into that
program in addition to a waiver of nursing home care services, which stated that he
chose to receive services in the community. If DSHS were to limit the ability of
institutionalized clients to move into independent living when, as occurred in this
case, professionals determine the client can receive care in such a setting, then it
could run the risk of discriminating based on disability. 10 DSHS’s statutory role in
determining eligibility for long-term care services is to facilitate client choice and
independence in how they will receive care. Although the State may have a
financial incentive in moving institutionalized clients back into the community,
that incentive is aligned with the client when a client, such as Kent, is seeking that
type of placement. The element of entrustment necessary for a special relationship
10
Br. of Nat’l Council on Independent Living et al., as Amici Curiae at 7-15 (discussing
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999), and
the possible discrimination implications of finding liability based on Kent’s move). We have also
expressed our respect for and deference to the choice to not receive care in institutionalized
settings in the context of guardianships. Raven v. Dep’t of Soc. & Health Servs., 177 Wn.2d 804,
819-22, 306 P.3d 920 (2013). In Raven, we held that a guardian’s decision to not place her ward
in a nursing home could not constitute neglect because the ward expressed her desire to not go
into such a facility when competent. We reasoned that guardians could not move their wards into
such settings against their will because RCW 11.92.190 prohibits residential treatment facilities
from detaining a person unless pursuant to an involuntary commitment proceeding.
21
No. 99243-6
does not exist when a client decides to move into the community because this
would conflict with the primary statutory goals of choice and dignity of
independent living advanced by the long-term care services program. RCW
74.39A.007(1). Imposing liability based on that choice could put the long-term
care services program at risk because DSHS may become more hesitant in its
community placement efforts. 11
We conclude that Kent’s choice to move was an insufficient basis to
establish the element of entrustment necessary for a special relationship and that,
as a result, DSHS owed no duty to protect Kent from foreseeable harms. DSHS’s
relationship with Kent also does not involve complete dependence or control
required for a special relationship to exist.
Next, appellant argues that an associated special relationship formed based
on express assurances made by DSHS. Br. of Appellant at 44. A duty can exist
under this exception where “(1) there is direct contact or privity between the public
official and the injured plaintiff which sets the latter apart from the general public,
and (2) there are express assurances given by a public official, which (3) give rise
to justifiable reliance on the part of the plaintiff.” Taylor v. Stevens County, 111
Wn.2d 159, 166, 759 P.2d 447 (1988). In Caulfield, the court concluded that this
type of special relationship existed because DSHS had direct contact with
11
See Wash. State Health Care Auth.’s Amicus Curiae Br. at 11-15.
22
No. 99243-6
Caulfield, the DSHS case manager gave Caulfield express assurances that they
would provide “case management and crisis intervention,” and Caulfield justifiably
relied on those assurances. 108 Wn. App. at 252.
In contrast, in Donohoe, the court distinguished Caulfield because DSHS
had not promised Donohoe that it would ensure Pacific Care’s adequate care. Like
Caulfield, DSHS provided case management responsibilities to Kent, but it passed
that responsibility to LMTAAA once he was moved into his apartment.
Nevertheless, neither case management responsibilities nor CARE assessments
create an express assurance that Kent would be safe from all harms related to his
apartment living. Kent could not reasonably rely on any assurances to keep him
completely safe from all harm. And Kent repeatedly signed service summaries that
stated he was “aware of all alternatives available to me and I understand that
access to 24-hour care is available only in residential settings” and that
“participation in all ADSA/LTC paid services is voluntary and I have a right to
decline or terminate services at any time.” CP at 855. We conclude that no special
relationship existed based on express assurances by DSHS. 12
12
To the extent appellant argues that a special relationship existed based on LMTAAA’s
case management responsibilities, we conclude no special relationship existed. LMTAAA’s
oversight of the amount of care received did not include an element of entrustment for Kent’s
complete safety, and LMTAAA gave no assurance to keep Kent safe from all harm.
23
No. 99243-6
Appellant further argues DSHS owed a duty under Restatement (Second) §§
32313 and 324 14 by voluntarily undertaking services to Kent that were necessary for
his protection. Br. of Appellant at 19-21.15 Appellant argues that this duty arises
from DSHS offering Kent participation in the RCL program and conducting
assessments to determine Kent’s eligibility in that program. Br. of Appellant at 19-
21.
We have considered these sections of Restatement (Second) in cases
involving the voluntary rescue doctrine. For example, in Brown v. MacPherson’s,
Inc., 86 Wn.2d 293, 545 P.2d 13 (1975), we analyzed the voluntary rescue doctrine
in the context of a State agent’s representations relating to the risk of avalanche.
First, we noted that “[o]ne who undertakes, albeit gratuitously, to render aid to or
13
“One who undertakes, gratuitously or for consideration, to render services to another
which [they] should recognize as necessary for the protection of the other’s person or things, is
subject to liability to the other for physical harm resulting from [their] failure to exercise
reasonable care to perform [their] undertaking, if
“(a) [their] failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.”
14
Section 324 of Restatement (Second) is a specific application of section 323 and it
states: “One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect [themselves] is subject to liability to the other for any bodily harm
caused to [them] by
“(a) the failure of the actor to exercise reasonable care to secure the safety of the other
while within the actor’s charge, or
“(b) the actor’s discontinuing his aid or protection, if by so doing [they] leave[] the other
in a worse position than when the actor took charge of [them].”
15
These sections of Restatement (Second) were not raised below, and DSHS argues that
we should therefore not consider them. RAP 2.5(a); RAP 9.12. However, because these sections
of Restatement (Second) involve an exception to the public duty doctrine, and because the record
has been developed to consider this issue, we reach this issue. RAP 2.5(a).
24
No. 99243-6
warn a person in danger is required by our law to exercise reasonable care in [their]
efforts.” Brown, 86 Wn.2d at 299. A rescuer is then liable to the person they are
intending to assist if they “fail[] to exercise such care and consequently increase[]
the risk of harm.” Brown, 86 Wn.2d at 299. Under this theory, we first explained
that a duty arises where the State agent received word from an expert that there
was an avalanche danger but negligently misrepresented that danger, causing the
plaintiffs harm when they refrained from getting help elsewhere. We further held
that a duty to warn may be imposed pursuant to “promises which induce reliance,
causing the promisee to refrain from seeking help elsewhere and thereby
worsening [their] situation.” Brown, 86 Wn.2d at 300.
In Folsom, we highlighted that the rescue doctrine can apply where the
rescuer knows a danger is present. Folsom v. Burger King, 135 Wn.2d 658, 676,
958 P.2d 301 (1998). In that case, the estates of two Burger King employees
argued that a security company owed a duty to rescue them from a robbery and
murder where a security system was left in place after its security contract was
terminated. We disagreed and stated that “[t]he duty to rescue arises when a
rescuer knows a danger is present and takes steps to aid an individual in need.”
Folsom, 135 Wn.2d at 677. Because leaving the system in place occurred before
any danger was present, we held no duty to rescue was implicated.
25
No. 99243-6
We conclude that these facts do not implicate the voluntary rescue doctrine.
As stated in Folsom, the premise of the voluntary rescue doctrine is that the
rescuer, in this case evidently DSHS, undertakes or promises to undertake to
rescue the plaintiff from a known danger. In this case, DSHS did not provide an
assessment and outline a care plan because it knew of the danger posed by moving
Kent into an apartment.16
III. Duty of Ordinary Care
We next recognize, as the trial court did, that appellant raises a distinct
theory of the duty of ordinary care owed. This duty arises primarily from
LMTAAA’s case management responsibilities in monitoring the in-home care
Kent was receiving. LMTAAA was required to monitor Kent’s caregiver, ResCare,
to ensure that the assistance Kent received as outlined in his care plan, such as
bathing, dressing, and placing Kent in his wheelchair, was being adequately carried
out. RCW 74.39A.095(1)(b). “‘[I]n general, anyone who does an affirmative act is
under a duty to others to exercise the care of a reasonable [person] to protect them
against an unreasonable risk of harm to them arising out of the act.’” Robb v. City
of Seattle, 176 Wn.2d 427, 436, 295 P.3d 212 (2013) (quoting RESTATEMENT
(SECOND) § 302 cmt. a). Furthermore, “[t]he actor is negligent if [they]
16
We also reject any suggestion that the voluntary rescue doctrine would apply to
LMTAAA because LMTAAA similarly did not provide case management services based on the
dangers associated with Kent’s apartment.
26
No. 99243-6
intentionally create[] a situation, or if [their] conduct involves a risk of creating a
situation, which [they] should realize as likely to be dangerous to others in the
event of such customary or normal act or operation.” RESTATEMENT (SECOND) §
302 cmt. d. As the trial court seemed to acknowledge, no apparent dispute exists in
this case that LMTAAA owed a duty of ordinary care. But the scope of that duty
was limited to reasonably monitoring Kent’s care and ensuring the care plan was
being followed.
Appellant argues the trial court erred in granting summary judgment because
whether DSHS and LMTAAA breached a duty and proximately caused Kent’s
death are jury questions. Br. of Appellant at 45-48. Breach and proximate cause are
normally issues decided by the jury, but they may be determined as a matter of law
when “reasonable minds could not differ” on whether those elements exist. Hertog
v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Here, the trial court found no facts supporting breach or proximate cause.
The appellant’s briefing is sparse in addressing that portion of the trial court’s
ruling, and we are not convinced that the trial court’s ruling was incorrect. DSHS
transferred case management responsibilities to LMTAAA before Kent’s death.
While LMTAAA had a duty to reasonably monitor Kent’s care, Kent’s injury did
not result from LMTAAA’s fault in monitoring his care because his injury was not
27
No. 99243-6
related to the in-home care he was receiving. We agree with the trial court’s ruling
that LMTAAA did not breach any duty of ordinary care that caused Kent’s death.
As argued in appellant’s complaint and the supporting pleadings, DSHS’s
alleged duty to Kent primarily stems from the formation of a special relationship
with Kent based on his transition into independent living, which we have rejected
as a basis for a heightened duty of protection in this case. Appellant articulates
DSHS’s duty of ordinary care in her opposition to defendants’ motions for
summary judgment as similarly arising out of Kent’s transition to Capitol House
Apartments. See, e.g., CP at 1326, 1329 (appellant arguing that “DSHS was
negligent in assessing and supervising decedent Kent Turner’s care at the Capitol
House Apartments when they placed him in independent housing that failed to
meet his care needs” and owed a “duty to take reasonable care in making the
transition to ensure that Kent’s new living situation was reasonable for him”).
Appellant’s argument therefore merges DSHS’s duty of ordinary care with its
heightened duty of a protection from a special relationship, thereby blurring any
distinction between these duties. And again, DSHS did not “place” Kent in an
apartment; it merely assessed him and found that Kent could live independently
with modified assistance, which allowed Kent to choose to receive his care in an
apartment rather than a nursing facility. Therefore, to the extent that DSHS owed a
duty of ordinary of care, DSHS’s duty of ordinary care as argued by appellant
28
No. 99243-6
encompassed a responsibility to properly assess whether Kent qualified for long-
term care services received independently. Appellant does not point to the
inadequacy of any independent assessment DSHS relied on, and Kent’s ultimate
injury did not arise from an independent assessment as to his ability to live
independently. The dissent emphasizes appellant’s other peripheral arguments as to
DSHS’s breach of the ordinary duty of care, such as Kent’s evacuation plan and
the provision of a personal emergency response device. See dissent at 4-7.
However, these arguments are likewise not sufficiently separated from the
argument that a special relationship existed when DSHS allegedly “placed” Kent in
an apartment.
IV. Implied Cause of Action
Appellant also argues that we should imply a cause of action against DSHS
and LMTAAA based on their statutory responsibilities in providing and managing
long-term care services under chapter 74.39A RCW. Br. of Appellant at 28-36.17
DSHS contends that it owes no specific duty to Kent that it does not owe to the
17
Appellant cites the following statutes and regulations relating to DSHS: RCW
74.39A.090(4)(a) (monitoring AAA performance); WAC 388-106-1980 (outlining when DSHS
can terminate services); WAC 388-101D-0170(c) (evacuation plan must be developed and
practiced with a client). Appellant also cites the following statutes and regulations relating to
AAAs: RCW 74.39A.090(4)(a) (assessing the quality of in-home care); RCW 74.39A.095(1)(b)
(monitoring the implementation of the care plan to ensure it meets the needs of the client).
Finally, appellant cites a statute at the time of Kent’s death that allowed an AAA or DSHS to
terminate an individual provider if safety was an issue. Former RCW 74.39A.095(7).
29
No. 99243-6
public under chapter 74.39A RCW because this issue was unpreserved 18 or
because the public duty doctrine applies. Corrected Br. of Resp’t DSHS at 29-41.
An implied statutory cause of action analysis is related to the public duty doctrine
because it similarly asks whether a statute or regulation creates an actionable duty.
Ehrhart, 195 Wn.2d at 400 n.6.
In considering whether to imply a cause of action based on statutory
provisions, we utilize a three-part test derived from federal cases and consider
“first, whether the plaintiff is within the class for whose ‘especial’ benefit the
statute was enacted; second, whether legislative intent, explicitly or implicitly,
supports creating or denying a remedy; and third, whether implying a remedy is
consistent with the underlying purpose of the legislation.” Bennett v. Hardy, 113
Wn.2d 912, 920-21, 784 P.2d 1258 (1990). In Bennett, we concluded that RCW
49.44.090, which made age discrimination an unfair employment practice, created
an implied cause of action. First, the plaintiffs were within the age group that the
statute was enacted to protect, so they met the first part of the test. Second, we
relied “on the assumption that the Legislature would not enact a statute granting
rights to an identifiable class without enabling members of that class to enforce
those rights.” Bennett, 113 Wn.2d at 921. Finally, we concluded that the purpose of
18
Although this issue is not preserved, we reach it because the primary negligence
alleged arises out of DSHS and LMTAAA’s statutory duties pursuant to chapter 74.39A RCW.
RAP 2.5(a).
30
No. 99243-6
the statute—prohibiting age discrimination by employers—was furthered by
implying a cause of action for those experiencing employment discrimination
based on age.
We refuse to imply a cause of action here based on any of the monitoring
responsibilities in chapter 74.39A RCW. DSHS persuasively argues that we have
consistently declined to imply a cause of action based on public assistance statutes
like chapter 74.39A RCW, which benefit the public at large rather than a specific
class. Corrected Br. of Resp’t DSHS at 39-43. DSHS further argues that no
legislative intent supports creating a cause of action given that the statute and
regulations create enforcement remedies for both DSHS and clients. Finally, DSHS
highlights that implying a cause of action is inconsistent with DSHS’s
administration of long-term care services and with the statute’s purpose of
promoting client choice and independence. We agree with the State’s arguments.
In Keodalah, we considered whether to imply a cause of action based on a
good faith provision of a Washington insurance statute, RCW 48.01.030, and we
highlighted that the first Bennett factor “is not met if the statute in question
benefits the general public rather than an identifiable class of persons.” Keodalah
v. Allstate Ins. Co., 194 Wn.2d 339, 346, 449 P.3d 1040 (2019). We concluded that
the insurance statute was not enacted for the especial benefit of insureds because it
expressly stated it was concerned with public interest and the “‘integrity of
31
No. 99243-6
insurance’” generally. Keodalah, 194 Wn.2d at 347. The quality of long-term care
services and the vulnerability of adults like Kent is discussed in the findings and
the purpose and intent sections of the statute. RCW 74.39A.005, .007. However,
the statute is also concerned with the broader public interest. RCW 74.39A.005
(stating that the “public interest would best be served by a broad array of long-term
care services”). While chapter 74.39A RCW governs DSHS and LMTAAA’s
responsibilities toward the class of vulnerable adults, the public interest language
emphasizes that this is a public assistance statute that does not meet the first
Bennett factor.
The legislative intent does also not support creating a remedy. Appellant
argues that the “sheer extent of the specific protective provisions . . . and
implementing regulations” could not have been created without a corresponding
remedy. Br. of Appellant at 33. However, DSHS and LMTAAA’s statutory
responsibilities relate to the safe administration of long-term care services and
should not be considered rights that do not have an accompanying remedy. The
statute specifically commands that DSHS seek enforcement remedies where
providers are failing to safely provide care. RCW 74.39A.051(6). DSHS may take
enforcement action in response to noncompliance or violations. RCW 74.39A.080.
At the time of Kent’s death, the statute also authorized DSHS and LMTAAA to
terminate contracts with providers in the event of inadequate or harmful
32
No. 99243-6
performance. Former RCW 74.39A.095(7). Finally, clients may seek a hearing if
they disagree with a CARE assessment and eligibility determination regarding the
amount of care they are entitled to receive. WAC 388-106-1305. To imply a cause
of action “when the Legislature has provided an adequate remedy in the statute”
would be inconsistent with Bennett. Cazzanigi v. Gen. Elec. Credit Corp., 132
Wn.2d 433, 445, 938 P.2d 819 (1997).
Even if we view these remedies as insufficient, allowing private cause of
action against DSHS would be inconsistent with the statute’s purpose. In Braam,
where we considered an implied cause of action against DSHS based on its
statutory requirements relating to foster children, the court found that a private
cause of action would be “inconsistent with the broad power vested in DSHS to
administer these statutes.” Braam v. State, 150 Wn.2d 689, 712, 81 P.3d 851(2003). Similarly here, where the statute relies heavily on DSHS for proper
administration, it would be inconsistent with legislative purpose to find an implied
cause of action. An implied cause of action would be further inconsistent with the
statute’s purpose of promoting “individual choice, dignity, and the highest
practicable level of independence.” RCW 74.39A.007(1). If we implied a cause of
action based on DSHS and LMTAAA’s case management and discharge of Kent, it
could conflict with the statutory goal of allowing vulnerable adults the choice to
live in the independent settings. We decline to imply a cause of action against
33
No. 99243-6
DSHS under chapter 74.39A RCW because (1) the statute is a public assistance
statute, (2) the legislative history does not evidence an intent to create a private
cause of action, and (3) it would be inconsistent with the statute’s purpose.19
V. Abuse of Vulnerable Adults Act (AVAA), Ch. 74.34 RCW
Finally, appellant argues that the trial court erred in dismissing her private
cause of action for abuse or neglect against DSHS and LMTAAA pursuant to
RCW 74.34.200(1). That section provides a cause of action for damages for
injuries and pain and suffering for “a vulnerable adult who has been subjected to
abandonment, abuse, financial exploitation, or neglect either while residing in a
facility or in the case of a person residing at home who receives care from a home
health, hospice, or home care agency, or an individual provider.” RCW
74.34.200(1). However, the cause of action limits the parties who may be sued:
This action shall be available where the defendant is or was a
corporation, trust, unincorporated association, partnership,
administrator, employee, agent, officer, partner, or director of a
facility, or of a home health, hospice, or home care agency licensed or
required to be licensed under chapter 70.127 RCW, as now or
subsequently designated, or an individual provider.
19
Appellant also argues, as she did at summary judgment, that chapter 74.39A RCW
creates an actionable duty under the legislative intent exception to the public duty doctrine. Br.
of Appellant at 44; Reply Br. of Appellant at 17. The legislative intent exception involves an
inquiry similar to implied causes of action by asking whether the statute “enacts legislation for
the protection of persons of the plaintiff’s class.” Taylor, 111 Wn.2d at 164. The argument as to
this exception is not sufficiently developed to warrant additional analysis. Thus, we conclude the
legislative intent exception to the public duty doctrine does not apply for the same reasons as the
analysis for the implied cause of action.
34
No. 99243-6
RCW 74.34.200(1).
DSHS and LMTAAA correctly point out that this cause of action does not
apply to them. DSHS is not named in the statute, and, in fact, it is responsible for
investigating reported abuse or neglect. RCW 74.34.067-.068. Moreover, another
portion of the AVAA allows DSHS to seek an order of protection on behalf of a
vulnerable adult for abuse or neglect but expressly states that DSHS is not liable
for failing to do so. RCW 74.34.150. This supports the conclusion that there is no
private cause of action against DSHS pursuant to RCW 74.34.200(1). This cause of
action also does not apply to LMTAAA because AAAs are not individual
providers or in-home services agencies required to be licensed by chapter 70.127
RCW. RCW 70.127.040(14). We affirm the trial court’s dismissal of those claims.
Appellant briefly argues that LMTAAA was a mandatory reporter and
breached its duty to report suspected abuse or neglect. Br. of Appellant at 39
(citing RCW 74.34.035(1); Kim v. Lakeside Adult Family Home, 185 Wn.2d 532,
546, 374 P.3d 121 (2016)). But she argued in her complaint that only LMTAAA
and DSHS failed to investigate, and the trial court did not rule on this issue. We
decline to address this issue. RAP 2.5(a); RAP 9.12.
VI. CONCLUSION
We affirm the trial court’s summary judgment dismissal of the appellant’s
claims against DSHS and LMTAAA.
35
No. 99243-6
Johnson, J.
WE CONCUR:
36
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
No. 99243-6
STEPHENS, J. (dissenting)—No one disputes that a legal duty exists in this
case. The trial court and the majority both acknowledge, and I agree, that the
respondents—the Washington State Department of Social and Health Services
(DSHS) and Lewis-Mason-Thurston Area Agency on Aging (LMTAAA)—owed a
common law duty of reasonable care to Kent Turner. The majority’s lengthy
discussion of special relationships and independent living crowds out much
discussion of this duty, but the respondents undeniably owed a duty to Kent, 1 not to
dictate his choices but to act reasonably in providing him services. By granting
summary judgment on the issues of breach and causation with respect to the
1
Consistent with the majority, I refer to Kent and Kathy Turner using their first names.
No disrespect is intended.
1
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
respondents’ recognized common law duty, the majority usurps the essential role of
the trier of fact in negligence cases. Respectfully, I dissent.
This appeal follows the trial court’s summary dismissal of Kent Turner’s
complaint against DSHS and LMTAAA, relieving both respondents from liability
for Kent’s tragic—and perhaps preventable—death. We review orders granting
summary judgment de novo and “perform the same inquiry as the trial court, viewing
all facts and reasonable inferences in the light most favorable to the nonmoving
party.” Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273, P.3d 965
(2012). It is important to remember that summary judgment reflects the legal
conclusion that a trial would be “useless.” Olympic Fish Prods., Inc. v. Lloyd, 93
Wn.2d 596, 602, 611 P.2d 737 (1980). In a negligence action, where questions of
breach and proximate cause are ordinarily issues to be decided by the trier of fact,
summary judgment on these issues is appropriate only where reasonable minds could
not differ as to the relevant facts and favorable inferences drawn from the facts. Id.This case presents no novel issues. It is a basic principle of negligence law
that one who performs an affirmative act owes a common law duty to exercise
reasonable care in that undertaking. Beltran-Serrano v. City of Tacoma, 193 Wn.2d
537, 550-51, 442 P.3d 608 (2019); see also Robb v. City of Seattle, 176 Wn.2d 427,
436, 295 P.3d 212 (2013). The scope of the duty owed is measured by the scope of
2
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
the undertaking. See Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 609, 257 P.3d
532 (2011) (holding a design professional’s common law duty of reasonable care
extended to those working on the property at the time the designs were being
implemented). Here, no one contests that the respondents owed Kent a common law
duty of reasonable care with respect to the actions they took to assist him. The scope
of their duty is defined by the specific responsibilities the respondents undertook.
Unfortunately, fixated on the fact that Kent was not in the respondents’
custody, the majority advances a truncated view of the scope of the duty in this case,
limited to “LMTAAA’s case management responsibilities in monitoring the in-home
care Kent was receiving.” Majority at 26. With respect to DSHS, the majority sees
only “a responsibility to properly assess whether Kent qualified for long-term care
services received independently.” Id. at 29. But the scope of DSHS’s and
LMTAAA’s undertaking is broader than the majority acknowledges.
DSHS facilitated Kent’s move from an institutional setting into an apartment
setting through its Road to Community Living (RCL) program. The purpose of the
RCL program is to help individuals with long-term care needs move back into the
community safely and successfully. The program is not designed to merely assess
eligibility for independent living but to affirmatively aid the safe transition of
vulnerable clients into a community setting. Majority at 8 (“[RCL] is a federally
3
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
funded program designed to help people transition from institutional settings and
into the community.”). Kent’s RCL “Participation Information and Consent Form”
stated he would receive services to help “[r]esolve concerns, questions or problems
that could delay [Kent] from safely moving to, or remaining in, the community” and
“[i]dentify and help plan for possible risks the move may present.” Clerk’s Papers
(CP) at 867, 889. Relevant to the facts here, DSHS internal policy and state law
expressly require that RCL care plans contain an emergency evacuation plan
“developed and practiced with the client.” WAC 388-101D-0170(2)(c). While
LMTAAA managed day-to-day case management responsibilities after Kent’s
move, DSHS retained an authoritative role in his long-term care plan, and it could
terminate its contract with LMTAAA at any time “if they [were] threatening the
safety or health of [the] client.” Majority at 5 (citing former RCW 74.39A.095(7)
(2014)). DSHS could not simply wash its hands of a legal duty to Kent after
transferring case management responsibilities to LMTAAA. Based on its own
affirmative undertaking through RCL, DSHS indisputably retained a common law
duty to exercise reasonable care when facilitating Kent’s transition from a skilled
nursing facility into the community. This duty encompassed the responsibility to
reasonably ensure Kent’s placement was safe and suited to his individual needs, to
identify potential risks, and to create and practice an evacuation plan.
4
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
Although the decision to move from a residential setting to an apartment was
left to Kent’s choice, that choice did not absolve DSHS of its duty to exercise
reasonable care when performing services within the scope of its RCL program. The
majority’s protracted analysis of special relationships and its single-minded focus
on Kent’s free agency serve only to obscure the common law duty owed by DSHS
in these circumstances. 2 By fixating on principles of client choice and dignity, the
majority overlooks the specific responsibilities DSHS undertook—namely, to
manage Kent’s safe transition into community living. Honoring client choice and
dignity does not translate into immunizing DSHS from liability for harm to clients
caused by unreasonable conduct within the scope of its undertaking. Even outside
the framework of a special relationship, this common law duty remains.
Whether DSHS or LMTAAA breached their common law duties owed to Kent
and whether such breach caused Kent’s tragic death are quintessential fact questions
entrusted to the trier of fact. Yet, the majority barely slows down to address them.
The record in this case is replete with evidence that DSHS and LMTAAA failed to
2
I agree with the majority’s conclusion that the element of entrustment necessary to
establish a special relationship is lacking in this case. But the majority should not be read
to suggest that physical custody is always required to establish a special relationship. See
Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281, 295, 481 P.3d 1084 (2021) (“[O]ur cases
establish a policy based on the special relationship where school districts may be liable
for harms suffered by students even where the harm occurs off campus and is caused by
the act of a third party.”).
5
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
take reasonable steps to ensure Kent safely and successfully transitioned to a
community setting. When viewing the evidence and all reasonable inferences in the
light most favorable to the Turner estate, a reasonable jury could readily conclude
the respondents’ failures in this regard proximately caused Kent’s death. Even a
brief review of key relevant facts makes this clear.
Kent lived with multiple sclerosis, a chronic and progressive neurological
disease that forced him into early retirement, severely impaired his fine motor skills,
required his use of a wheelchair, and led him to seek professional assistance from
the State in order to perform basic daily tasks. Kent’s initial long-term care
assessment described his functional limitations as “[g]eneral weakness, [p]oor
hand/eye coordination, [w]eak grip, [and l]imited fine motor control.” CP at 830.
Kent needed help moving in and out of his wheelchair. He required assistance when
getting dressed and undressed. He struggled to open the heavy door of his apartment
and previously tied a scarf around the interior doorknob in order to accomplish this
task. DSHS and LMTAAA knew Kent was a regular smoker, typically smoking a
pack of cigarettes per day. He often refilled his own lighter fluid and more than once
had spilled lighter fluid on himself while doing so. On at least one prior occasion,
Kent inadvertently set his sleeve on fire when refilling his lighter fluid.
6
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
Despite this known risk, Kent’s Capitol House Apartment, where he lived
alone, lacked sprinklers. DSHS’s sole evacuation plan in the event of an emergency
was for Kent’s caregivers to assist him—but his caregivers were only present 4 hours
each day. Kent thus lacked any evacuation plan for the 20 hours per day he resided
alone in his apartment. There is no evidence in the record that DSHS discussed the
risks of Kent being alone in his apartment in the event he needed to evacuate. CP at
1457-58. No care provider ever practiced an evacuation plan with him either, as was
required by DSHS policy and state law. CP at 1454, WAC 388-101D-0170(2)(c).
And even though Kent frequently used a personal emergency response device to call
the fire department during the time he lived with his wife, Kathy, he was never given
one to use when he lived alone.
DSHS contends—and the majority agrees—that Kent “was his own decision
maker.” CP at 1458. But Kent’s freedom of choice and the respondent’s obligations
are not mutually exclusive—particularly where DSHS and LMTAAA failed to
identify and discuss known safety risks inherent to Kent’s living situation and to
develop a plan to manage those risks in the event of an emergency. Whether DSHS
and LMTAAA’s failure to identify and discuss these risks with Kent breached their
duties of reasonable care is a question of fact best resolved by a jury.
7
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
Further, the circumstances of Kent’s death create a jury question on the issue
of proximate cause. It is well established that the defendant’s negligence need not
be the sole cause of an injury to satisfy proximate cause, but simply a cause.
Brashear v. Puget Sound Power & Light Co., 100 Wn.2d 204, 207-08, 667 P.2d 78(1983). In this case, Kent died alone in an accidental fire. On the day of his death,
first responders found Kent lifeless in his wheelchair directly in front of his
apartment door—as if he attempted, but failed, to escape through the heavy door of
his apartment. While its origins remain unconfirmed, an investigation showed the
fire was isolated to Kent’s wheelchair and person. A reasonable inference is that the
fire started on the wheelchair or on Kent himself. Perhaps sprinklers might have
extinguished the fire. Perhaps by developing and practicing an evacuation plan with
Kent beforehand, DSHS might have realized the challenges of him opening the
apartment door unassisted. Perhaps an evacuation plan developed specifically to
accommodate Kent’s physical limitations would have allowed him to escape.
Simple access to an emergency response device might have allowed Kent to call the
fire department before the alarm system sounded—perhaps early enough for first
responders to reach Kent before he died.
Viewing the evidence and all reasonable inferences in the light most favorable
to the estate, it cannot be said on this record that no trier of fact could conclude the
8
Turner v. DSHS, No. 99243-6
(Stephens, J., dissenting)
respondents’ failure to exercise reasonable care, within the scope of the assistance
they agreed to provide, contributed to Kent’s tragic death. Regardless of any special
relationship, it is a gross usurpation of the role of the jury in our system of justice to
grant summary judgment on these intensely factual issues. The record contains
proffered evidence, albeit disputed, that would support a jury finding on breach and
proximate cause with respect to the respondents’ common law duties. The
majority’s vague description of the relevant facts as “not sufficiently separated from
the argument that a special relationship existed” improperly minimizes both the
scope of the respondents’ duty and the jury’s role in assessing the standard of care,
breach, and causation. Majority at 29. I would reverse the trial court’s grant of
summary judgment and remand for trial on the common law negligence claims.
9