Angela Evans v. Tacoma School District No. 10 , 195 Wash. App. 25 ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
July 12, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ANGELA EVANS, No. 47612-6-II
Appellant,
v. PUBLISHED OPINION
TACOMA SCHOOL DISTRICT NO. 10,
Respondent.
MAXA, J. – Angela Evans appeals the dismissal of her multiple claims against the Tacoma
School District (District) arising from a sexual relationship between her minor daughter JM, a
student at a District school, and Jesse Brent, a District security guard. Evans filed suit to recover
her own damages, not any damages JM may have sustained. The trial court granted the District’s
CR 12(b)(6) motion on Evans’s claims for seduction of a child, alienation of a child’s affections,
and negligent hiring, retention, supervision and/or training, and later granted summary judgment
in favor of the District on Evans’s claim for negligent failure to report child abuse under RCW
26.44.030.1
We hold that (1) although the torts of seduction of a child and alienation of a child’s
affections are viable under Washington law, the District has no vicarious liability because
Brent’s conduct was done for his personal sexual gratification and therefore was outside the
1
RCW 26.44.030(1) has been amended since the events of this case transpired, however, these
amendments do not impact the statutory language relied on by this court. See Laws of 2016, Ch.
166, § 4; Laws of 2013, ch. 23, § 42-43. Accordingly, we refrain from including the word
“former” before RCW 26.44.030.
No. 47612-6-II
scope of his employment as a matter of law; (2) the District was entitled to summary judgment
on the alleged failure to report child abuse under RCW 26.44.030 because there was no genuine
issue of material fact that District employees, other than the perpetrator, had no reasonable cause
to believe that JM had suffered child abuse, but (3) the trial court erred in dismissing Evans’s
negligent hiring, retention, supervision and/or training claims under CR 12(b)(6) because the
District potentially owed a duty to Evans.
Accordingly, we affirm the trial court’s CR 12(b)(6) order on the claims for seduction of
a child and alienation of a child’s affections and summary judgment order on the failure to report
child abuse. But we reverse the trial court’s CR 12(b)(6) order on the negligent hiring, retention,
supervision and/or training claims.
FACTS
Complaint
Evans filed a complaint against the District, seeking to recover for her personal damages.
JM was not included as a plaintiff in the lawsuit, and Brent was not named as a defendant.
Evans alleged that Brent, an adult security guard at Tacoma’s Science and Math Institute
(SAMI), sexually groomed and had a sexual relationship with JM, who was a student at SAMI
and under 18 years old at the time. Evans alleged that Brent and JM had exchanged thousands of
text messages and that Brent had forced JM to send him sexual and nude pictures, had statutorily
raped JM, and had impregnated JM. Evans also alleged that several District staff members had
observed an inappropriate relationship between JM and Brent and had failed to report the
relationship or take any other action. Evans alleged that because of Brent’s conduct, she no
longer had a relationship with JM and the parent-child relationship had been forever damaged
and destroyed.
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No. 47612-6-II
Evans’s complaint asserted numerous causes of action, including seduction of a child
under RCW 4.24.020; common law negligence; negligent hiring, retention, supervision and/or
training; and negligent failure to report suspected abuse under RCW 26.44.030. Evans alleged
that the District was vicariously liable for the conduct of its employees.
CR 12(b)(6) Motion to Dismiss
The District filed a motion to dismiss each of Evans’s claims with prejudice under CR
12(b)(6). The trial court granted the District’s motion to dismiss Evans’s claims for seduction of
a child, alienation of affection,2 and negligent hiring, training, supervision and/or retention.3 The
trial court ruled that the seduction of a child and alienation of affection claims could only be
brought against the perpetrator and not against the District. For the negligent hiring, training,
supervision and/or retention claim, the trial court ruled that the District owed a duty to JM as a
student but not to Evans as her parent. The trial court denied the District’s motion to dismiss
Evans’s claim for negligent failure to report child abuse under RCW 26.44.030.4
Summary Judgment Motion – Duty to Report
After the parties conducted discovery, the District filed a summary judgment motion on
Evans’s remaining claim for negligent failure to report child abuse. In opposition, Evans did not
2
Evans did not assert a claim for alienation of affection in her complaint. However, the parties
addressed this claim in the CR 12(b)(6) motion, and the trial court included it in its dismissal
order.
3
The trial court’s order dismissed Evans’s common law negligence claim and did not reference
her claims for negligent hiring, retention, supervision and/or training. However, both parties
subsequently treated the trial court’s dismissal of the common law negligence claim as a
dismissal of Evans’s claims for negligent hiring, retention, supervision and/or training.
4
In conjunction with the CR 12(b)(6) motion, Evans voluntarily dismissed her claims for assault,
battery, negligent and intentional infliction of emotional distress, retaliation, and disparate
impact discrimination.
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No. 47612-6-II
present any evidence that the District knew before JM turned 18 that Brent and JM had a sexual
relationship. However, she argued that the District knew or should have known that there was an
abusive grooming/romantic relationship between Brent and JM and that District employees
should have reported that relationship. In support of this assertion, Evans submitted deposition
testimony from District employees and the declaration of a former SAMI student.
Carol Brouillette was JM’s English teacher for the 2011-2012 school year. Brouillette
stated that Brent was in her classroom “pretty often” while working as the security guard at
SAMI. Clerk’s Papers (CP) at 301. She characterized Brent’s conduct as “hanging out in the
back and talking to students and being in the way,” CP at 301, and “talking and joking with a
group of students” in the back of the classroom. CP at 302. Brouillette stated that Brent’s
conduct was not concerning, just annoying. Brouillette did not remember how long Brent would
stay in the classroom or how often he was present, but she remembered that she was annoyed by
Brent’s conduct for a long period of time. When asked if it appeared that Brent was maintaining
proper boundaries during her class, Brouillette responded that she felt that Brent’s relationship
with students was “informal and unprofessional but not dangerous.” CP at 302.
Kristin Tinder is the assistant principal at SAMI. Tinder stated that in the fall of 2011
two teachers expressed concerns about Brent spending too much time in their classrooms.
Tinder stated that she spoke to Brent about spending extended periods of time in classrooms and
subsequently did not receive any other reports of Brent spending too much time in classrooms.
Tinder “never had any concerns about [Brent] singling out particular students.” CP at 308.
Kuammesha Moore was a classmate of JM. Moore stated in her declaration that (1)
during JM’s junior year at SAMI (2011-2012), “it was obvious that [Brent] had some sort of
inappropriate romantic/flirtatious relationship with [JM],” CP at 334-35; (2) Brent was “always”
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No. 47612-6-II
around JM in classes and on campus, CP at 335; (3) Brent would come into JM’s English class,
taught by Brouillette, where Brent would stand or sit in the back of the classroom to talk and flirt
with JM for the entire class; (4) Brouillette “most definitely observed and acknowledged”
Brent’s presence, CP at 335; (5) it was obvious to the classroom students that Brent’s attentions
for JM were “inappropriate, flirtatious and appeared romantic,” CP at 335; (6) students made
comments to Brent about the relationship in front of Brouillette, such as “Why don’t you do your
job?” and “Why so much attention for [JM]?”, CP at 335; and (7) she had personal knowledge
that the SAMI administrators and teachers had observed Brent “exclusively talking and flirting”
with JM. CP at 335.
The trial court granted summary judgment in favor of the District and dismissed Evans’s
claim for negligent failure to report child abuse. The trial court ruled that the District did not
owe Evans, as JM’s mother, a duty under RCW 26.44.030 and therefore could not be liable for
failure to report.
Evans appeals the trial court’s CR 12(b)(6) and summary judgment orders.
ANALYSIS
A. STANDARD OF REVIEW
The trial court dismissed Evans’s claims for seduction of a child, alienation of affection,
and negligent hiring, retention, supervision and/or training under CR 12(b)(6). CR 12(b)(6)
provides a defense for the “failure to state a claim upon which relief can be granted.”
We review de novo a CR 12(b)(6) order dismissing a claim. J.S. v. Vill. Voice Media
Holdings, LLC, 184 Wash. 2d 95, 100, 359 P.3d 714 (2015). We accept as true all facts alleged in
the plaintiff’s complaint and all reasonable inferences from those facts. Id. We also “may
consider hypothetical facts supporting the plaintiff’s claim.” FutureSelect Portfolio Mgmt., Inc.
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No. 47612-6-II
v. Tremont Grp. Holdings, Inc., 180 Wash. 2d 954, 962, 331 P.3d 29 (2014). The question is
whether there are facts that conceivably could be raised that would support a legally sufficient
claim. Worthington v. WestNET, 182 Wash. 2d 500, 505, 341 P.3d 995 (2015). Dismissal under
CR 12(b)(6) is appropriate only if the plaintiff cannot allege any set of facts that would justify
recovery. Id. For instance, CR 12(b)(6) applies when the plaintiff’s allegations involve some
legal bar to recovery. See J.S., 184 Wash. 2d at 100.
The trial court granted summary judgment in favor of the District on Evans’s claim for
negligent failure to make a report of child abuse under RCW 26.44.030. We review a trial
court’s order granting summary judgment de novo, considering the evidence and all reasonable
inferences from the evidence in the light most favorable to the nonmoving party. Keck v.
Collins, 184 Wash. 2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is appropriate where
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. CR 56(c); Keck, 184 Wash. 2d at 370. No genuine issue of material fact exists if the
evidence is insufficient for a reasonable jury to return a verdict for the nonmoving party. See
Keck, 184 Wash. 2d at 370. “If reasonable minds can reach only one conclusion on an issue of fact,
that issue may be determined on summary judgment.” Sutton v. Tacoma Sch. Dist. No. 10, 180
Wash. App. 859, 865, 324 P.3d 763 (2014).
When seeking summary judgment, the initial burden is on the moving party to show there
is no genuine issue of material fact. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash. 2d 157, 169,
273 P.3d 965 (2012). Once the moving party has made such a showing, the burden is on the
nonmoving party to set forth specific facts that rebut the moving party’s contentions and indicate
a genuine issue of material fact. Id.
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No. 47612-6-II
B. SEDUCTION/ALIENATION OF AFFECTIONS OF A CHILD
Evans alleges two related causes of action: seduction of a child and alienation of a child’s
affections. She argues that the allegations in her complaint are sufficient to show that Brent
committed both torts and that the District is vicariously liable for his conduct under respondeat
superior principles. We hold that the torts of seduction of a child and alienation of a child’s
affections are viable under Washington law, but that the District has no vicarious liability
because Brent’s conduct was done for his personal sexual gratification and therefore was outside
the scope of his employment as a matter of law.
1. Seduction of a Child
RCW 4.24.020 states that “[a] father or mother, may maintain an action as plaintiff for
the seduction of a child.” The District acknowledges a cause of action under RCW 4.24.020, but
it contends that the claim can be asserted only against the perpetrator of the seduction. The
District argues that because it was not the perpetrator, it cannot be liable for the seduction of JM.
The District is correct that it cannot be liable under RCW 4.24.020 based on its own
conduct, and Evans does not argue otherwise. Instead, Evans argues that the District is
vicariously liable for Brent’s conduct under respondeat superior principles. This issue is
addressed below.
2. Alienation of a Child’s Affections
Division One of this court recognized a common law cause of action for alienation of a
child’s affections in Strode v. Gleason, 9 Wash. App. 13, 15-20, 510 P.2d 250 (1973). The District
argues that the tort of alienation of affections has been abolished in all its forms in Washington.
The District relies on Wyman v. Wallace, in which the Supreme Court held that actions for
alienation of a spouse’s affections were abolished in Washington. 94 Wash. 2d 99, 105, 615 P.2d
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452 (1980). The District also cites to two later cases that dismissed claims for alienation of a
spouse’s affections based on Wyman. Lund v. Caple, 100 Wash. 2d 739, 745-47, 675 P.2d 226
(1984); Lien v. Barnett, 58 Wash. App. 680, 683-85, 794 P.2d 865 (1990).
These cases do not support the District’s argument that the common law claim for
alienation of a child’s affections has been abolished. The Supreme Court in Wyman expressly
noted that the case did “not raise the related issue of the continued vitality of actions for
alienation of a child’s affections.” 94 Wash. 2d at 105 n.2. And in Babcock v. State, the Supreme
Court later noted that it had not yet had occasion to recognize a cause of action for alienation of a
child’s affections, but did not suggest that the cause of action had been abolished. 112 Wash. 2d
83, 107-08, 768 P.2d 481 (1989), modified on recons., 116 Wash. 2d 596, 809 P.2d 143 (1991).
Instead, the court stated that Washington courts “repeatedly” had relied on the elements listed in
Strode in considering such claims. Id. at 107.
Further, Strode has never been overruled. After Wyman, Lund and Lien, Division One
recognized the ongoing validity of the cause of action for alienation of a child’s affections.
Waller v. State, 64 Wash. App. 318, 338-39, 824 P.2d 1225 (1992). The court in Waller referred to
the cause of action as both “alienation of affections of a minor child” and “malicious interference
with the parent-child relationship.” Id. at 338; see also Grange Ins. Ass’n v. Roberts, 179 Wn.
App. 739, 765, 320 P.3d 77 (2013) (recognizing claim for “tortious interference with a parent-
child relationship”).
In the absence of any contrary authority, we hold that a cause of action for alienation of a
child’s affection continues to be viable under Washington law.
The District does not argue that Evans’s complaint fails to allege facts that could support
a claim for alienation of JM’s affections against Brent. The District argues that the complaint
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No. 47612-6-II
does not allege the District engaged in any conduct that would support an alienation of affection
claim. However, as with the seduction claim, the District still is potentially liable under a
vicarious liability theory for alienation of JM’s affections based on Brent’s conduct. This issue
is discussed below.
3. No Vicarious Liability for Sexual Relationship
Evans argues that the District is liable for seduction of a child and alienation of a child’s
affections based on respondeat superior principles. We hold that the District cannot be held
vicariously liable because Brent’s conduct was done for his personal sexual gratification and
therefore was outside the scope of his employment as a matter of law.
Under the rule of respondeat superior, an employer is vicariously liable to third parties
for its employee’s torts committed within the scope of employment. Robel v. Roundup Corp.,
148 Wash. 2d 35, 53, 59 P.3d 611 (2002). An employee is within the scope of employment if he or
she is (1) engaged in the performance of duties required by his employment contract or
specifically directed by the employer – i.e., fulfilling his or her job functions, or (2) engaged in
the furtherance of the employer’s interests. Id. In applying this test, we focus on the benefit to
the employer of the employee’s liability-causing conduct. Dickinson v. Edwards, 105 Wash. 2d
457, 467, 716 P.2d 814 (1986).
On the other hand, conduct not performed in furtherance of the employer’s business is
outside the scope of employment. Thompson v. Everett Clinic, 71 Wash. App. 548, 553, 860 P.2d
1054 (1993). This includes conduct involving the employee’s “wholly personal motive” and
“solely personal objectives or desires.” Id. “Where the employee steps aside from the
employer’s purposes in order to pursue a personal objective of the employee, the employer is not
vicariously liable.” Niece v. Elmview Grp. Home, 131 Wash. 2d 39, 48, 929 P.2d 420 (1997).
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When an employee’s conduct involves a personal objective unrelated to the employer’s
business, that conduct is outside the scope of employment even if the employee’s position
provides the opportunity for his or her wrongful conduct. Bratton v. Calkins, 73 Wash. App. 492,
498, 500-01, 870 P.2d 981 (1994) (holding that a teacher’s sexual relationship with a student was
outside the scope of employment even though his position as a teacher provided the opportunity
for his wrongful conduct toward a student). Similarly, that the employee may appear to be acting
within the scope of his or her authority does not support vicarious liability. C.J.C. v. Corp. of the
Catholic Bishop of Yakima, 138 Wash. 2d 699, 719-20, 985 P.2d 262 (1999) (holding that two
priests’ sexual molestation of an altar boy was outside the scope of their employment even
though they were acting within their authority from the victim’s perspective).
Whether an employee’s conduct is within the scope of employment generally is a factual
question. Michael v. Laponsey, 123 Wash. App. 873, 876, 99 P.3d 1254 (2004). However,
“certain fact patterns may, as a matter of law, relieve the employer of liability.” Thompson, 71
Wash. App. at 552.
Based on these rules, Washington courts uniformly have held as a matter of law that an
employee’s intentional sexual misconduct is not within the scope of employment. C.J.C., 138
Wash. 2d at 718-20 (priests sexually molested an altar boy); Niece, 131 Wash. 2d at 42, 53-59 (staff
member at a group home sexually assaulted a disabled woman); Smith v. Sacred Heart Med.
Ctr., 144 Wash. App. 537, 543, 184 P.3d 646 (2008) (nursing assistant at hospital engaged in
sexual activity with former psychiatric patients); Bratton, 73 Wash. App. at 498-501 (teacher
engaged in a sexual relationship with a student); Thompson, 71 Wash. App. at 550-53 (staff
physician at clinic engaged in sexual activity with patients). The Supreme Court stated in C.J.C.,
Following an extended discussion, we concluded in Niece that neither current
Washington case law nor considerations of public policy favor the imposition of
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No. 47612-6-II
respondeat superior or strict liability for an employee’s intentional sexual
misconduct.
138 Wash. 2d at 718-19.
Bratton involved facts similar to those here. In that case, a high school student had a
sexual relationship with a man who had been her junior high school teacher and was her high
school softball coach. 73 Wash. App. at 493. She sued the teacher and the school district. Id. The
trial court initially granted summary judgment in favor of the school district, ruling as a matter of
law that a sexual relationship between a teacher and student is not within the scope of a teacher’s
employment. Id. The trial court later changed its ruling and found that the sexual relationship
was within the scope of employment. Id. at 500.
Division Three of this court reversed the trial court and held that the school district was
entitled to summary judgment. Id. at 500-03. The court stated:
A sexual relationship between a teacher and a student does not benefit the
employer and is not within a teacher’s scope of employment. . . . A personally
motivated sexual relationship between a teacher and a student does not further the
employer’s interest. The relationship was the result of [the teacher’s] wholly
personal motives and was done solely to gratify his personal objectives and
desires. Even if his employment provided the opportunity for the wrongful acts,
his intentional tortious actions should not be attributable to the school district.
Bratton, 73 Wash. App. at 500-01 (internal citations omitted). The same analysis applies to a
sexual relationship between a high school security guard and a student.
Evans argues that there is no rule providing that intentional or criminal conduct always is
outside the scope of employment, citing Robel, 148 Wash. 2d at 52-53. The Supreme Court in
Robel disagreed that an intentional tort was outside the scope of employment as a matter of law.
Id. at 52-53. Instead, the court confirmed that an employee’s conduct must be intentional or
criminal and outside the scope of employment to defeat vicarious liability. Id. at 53.
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But the court in Robel did acknowledge an absolute rule for sexual misconduct: “[T]his
court has also determined that, where an employee’s acts are directed toward personal sexual
gratification, the employee’s conduct falls outside the scope of his or her employment.” Id. at
54. The court referred to conduct involving personal sexual gratification as “an exceptional
circumstance that could have taken the conduct outside the scope of their employment.” Id.
Here, Evans’s complaint alleged that Brent had a sexual relationship with, raped, and
impregnated JM. The complaint alleged that because of Brent’s seduction of JM, Evans’s
relationship with her daughter has been destroyed. There is no question that the alleged acts
involved sexual misconduct and Brent’s personal sexual gratification, and were not done to
fulfill his job functions or in furtherance of the District’s interests. There are no allegations,
reasonable inferences or even hypothetical facts under which Brent’s sexual relationship with JM
would be within the scope of his employment as a security guard. Therefore, the District cannot
be vicariously liable for Brent’s conduct as a matter of law.
We hold that the trial court did not err in dismissing Evans’s claims for seduction of a
child and alienation of a child’s affections under CR 12(b)(6).
C. NEGLIGENT FAILURE TO REPORT CHILD ABUSE
Evans argues that she has a cause of action against the District under RCW 26.44.030 for
failing to report JM’s sexual abuse. The District argues that (1) Evans cannot bring a cause of
action pursuant to RCW 26.44.030 because she is not within the class of individuals to be
protected by the statute, (2) the District is not subject to liability because only District employees
and not the District itself are mandatory reporters, and (3) there was insufficient evidence to
trigger any mandatory duty to report any alleged child abuse. We hold that RCW 26.44.030
gives rise to an implied cause of action for parents and the District can be vicariously liable for
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No. 47612-6-II
its employees’ failure to report child abuse, but that Evans failed to present a genuine issue of
fact that District employees had reasonable cause to believe that JM had suffered abuse.
1. Parent’s Cause of Action Under RCW 26.44.030
Evans argues that she has an implied cause of action under RCW 26.44.030 to recover for
her own injuries caused by the District’s failure to report JM’s abuse. We agree.
RCW 26.44.030(1)(a) requires certain professionals, including professional school
personnel, who have “reasonable cause to believe that a child has suffered abuse or neglect,” to
report the suspected abuse or neglect to DSHS or the proper law enforcement agency. RCW
26.44.020(1) defines “[a]buse or neglect” to include sexual abuse and exploitation.
In Beggs v. Department of Social and Health Services, the Supreme Court held that RCW
26.44.030 implied a civil cause of action against a mandatory reporter who fails to report
suspected abuse. 171 Wash. 2d 69, 77-78, 247 P.3d 421 (2011). The court applied the Bennett test
to determine whether a cause of action could be implied from the statute:
“[F]irst, 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.”
Id. at 77 (quoting Bennett v. Hardy, 113 Wash. 2d 912, 920-21, 784 P.2d 1258 (1990). The court
held that child abuse victims are within the class for whose special benefit the legislature enacted
RCW 26.44.030, the statute implicitly supported a civil remedy, and an implied cause of action
is consistent with the statute’s underlying purpose. Beggs, 171 Wash. 2d at 77-78.
But Beggs addressed the existence of an implied cause of action against a mandatory
reporter based on the abuse victim’s injury. Id. at 77. In Beggs, the plaintiffs were the estate of
the deceased child victim and his siblings. Id. at 74. The issue here is whether a parent has a
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cause of action under RCW 26.44.030 for her own injury independent of injury to her child –
here, the destruction of Evans’s relationship with her child. This is an issue of first impression.
To determine whether Evans has a cause of action under RCW 26.44.030, we must apply
the Bennett factors. The first question is whether Evans, as a parent of a student, is within the
“class for whose ‘especial’ benefit the statute was enacted.” Bennett, 113 Wash. 2d at 920. There
is no express statutory language that addresses a cause of action for parents under RCW
26.44.030. But the declaration of purpose for chapter 26.44 RCW states in part:
The Washington state legislature finds and declares: The bond between a child
and his or her parent, custodian, or guardian is of paramount importance, and
any intervention into the life of a child is also an intervention into the life of the
parent, custodian, or guardian.
RCW 26.44.010 (emphasis added). This portion of the declaration of purpose demonstrates that
the legislature considered parents individually and the family unit as a whole when implementing
the mandatory reporting statute.
In Tyner v. Department of Social and Health Services, the Supreme Court addressed the
first Bennett prong in determining whether a cause of action exists for a parent under RCW
26.44.050, which creates a duty to investigate reported child abuse. 141 Wash. 2d 68, 76-80, 1 P.3d
1148 (2000). The court relied on the declaration of purpose in RCW 26.44.010 in holding that
the investigation statute was enacted for the special benefit of parents as well as children. Id. at
78. The court stated:
[T]he Legislature has recognized the importance of the family unit and the
inextricable link between a parent and child. . . . The procedural safeguards of
RCW 26.44.050 protect both children and family members; children are protected
from potential abuse and needless separation from their families and family
members are protected from unwarranted separation from their children.
Id. at 79.
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If the investigation statute was enacted for the special benefit of parents, it is logical to
conclude that the mandatory reporting statute also was enacted for the special benefit of parents.
Therefore, RCW 26.44.030 satisfies the first prong of the Bennett test.
The second Bennett question is whether legislative intent, explicitly or implicitly,
supports creating or denying an implied cause of action. Bennett, 113 Wash. 2d at 920. The statute
is silent on this issue. However, as recognized in Beggs, we can assume that the legislature is
aware of the doctrine of implied statutory causes of action, even when the statute is silent. 171
Wash. 2d at 78. And as recognized in Beggs, chapter 26.44 RCW provides immunity from civil
liability in certain cases, which implies that civil liability can exist under the statute. Id. at 78.
Because RCW 26.44.030 imposes a duty to report suspected child abuse for certain
professionals, chapter 26.44 RCW supports an implied cause of action against a professional for
the failure to fulfill that duty. Beggs, 171 Wash. 2d at 78.
The third Bennett question is whether implying a remedy is consistent with the
underlying purpose of RCW 26.44.030. 113 Wash. 2d at 920-21. RCW 26.44.010 states, “It is the
intent of the legislature that, as a result of such [mandatory] reports, protective services shall be
made available in an effort to prevent further abuses, and to safeguard the general welfare of
such children.” Moreover, “imposing civil consequences for fail[ing] to report motivates
mandatory reporters to take action to protect victims of childhood sexual abuse.” Doe v. Corp.
of the President of the Church of Jesus Christ of Latter-Day Saints, 141 Wash. App. 407, 422, 167
P.3d 1193 (2007). Holding that RCW 26.44.030 implies a private cause of action for parents
against professionals who fail to report suspected child abuse furthers the underlying purpose of
the statute by motivating mandatory reporters to make such reports.
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Accordingly, we hold that there is an implied cause of action under RCW 26.44.030 for a
parent’s own injuries against a mandatory reporter who fails to report suspected abuse.
2. District Liability
The District argues that even if Evans has a cause of action under RCW 26.44.030, she
cannot recover against the District because only professional school personnel – and not the
District itself – are mandatory reporters. We disagree.
The District is correct that RCW 26.44.030(1)(a) lists “professional school personnel”
and not school districts as mandatory reporters. But the duty to report child abuse clearly would
be within a District employee’s scope of employment. Therefore, even if the District cannot be
directly liable for the failure to report child abuse, the District can have vicarious liability for the
negligence of its employees. Robel, 148 Wash. 2d at 53. We reject the District’s argument.
3. Reasonable Cause to Believe Abuse Had Occurred
Evans argues that the trial court erred in granting summary judgment in favor of the
District for negligent failure to report child abuse because there was a question of fact whether
Brouillette and other District employees observed an inappropriate relationship between Brent
and JM, which was enough to trigger a mandatory duty to report the conduct. We hold that
Evans failed to present sufficient evidence to create a material issue of fact whether a District
employee had reasonable cause to believe that JM had suffered child abuse.
RCW 26.44.030(1)(a) requires “professional school personnel” with “reasonable cause to
believe that a child has suffered abuse or neglect” to report the suspected abuse to DSHS or law
enforcement. “ ‘Reasonable cause’ means a person witnesses or receives a credible written or
oral report alleging abuse, including sexual contact, or neglect of a child.” RCW
26.44.030(1)(b)(iii). RCW 26.44.030(1)(b)(v) incorporates the definition of “[s]exual contact”
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in RCW 9A.44.010(2): “any touching of the sexual or other intimate parts of a person done for
the purpose of gratifying sexual desire of either party or third party.” And RCW 26.44.020(1)
defines “[a]buse or neglect” as “sexual abuse, sexual exploitation, or injury of a child by any
person under circumstances which cause harm to the child’s health, welfare, or safety . . . or the
negligent treatment or maltreatment of a child by a person responsible for or providing care to
the child.” The reporting requirement does not apply to abuse or neglect that occurred during
childhood if it is discovered only after the child has become an adult. RCW 26.44.030(2).
Here, Evans did not present evidence that District employees had received a written or
oral report alleging JM’s abuse before her 18th birthday. The question is whether a District
employee witnessed any “abuse” of JM before she turned 18.
Moore’s declaration stated that it was “obvious” that Brent had an “inappropriate
romantic/flirtatious relationship” with JM. CP at 334-35. She stated that Brent would sit or
stand at the back of Brouillette’s English class and flirt with JM. She also stated that Brouillette
“most definitely observed and acknowledged the presence of [Brent] and [JM].” CP at 335. In
addition, Moore’s declaration stated that Moore knew that Tinder and other teachers had
observed Brent “exclusively talking and flirting” with JM. CP at 335. Even though Moore’s
testimony conflicts with the declarations of Brouillette and Tinder, her testimony creates a
question of fact as to whether District employees were aware that Brent was flirting with and
paying inappropriate attention to JM.
However, flirting or inappropriate attention does not necessarily constitute “abuse or
neglect” as defined in RCW 26.44.020(1). Here, there is no evidence that Brent was sexually
abusing, exploiting or otherwise injuring JM. The type of flirting and inappropriate attention
described in the record cannot be characterized as sexual abuse or exploitation. And Evans has
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presented no evidence that there were any signs that Brent’s flirtation and inappropriate attention
had developed into a sexual relationship. As a result, there is no evidence that District
employees had reasonable cause to believe that Brent was sexually abusing JM.
We hold that Evans did not present sufficient evidence to create a material issue of fact
that a District employee had reasonable cause to believe that JM had suffered abuse or neglect as
defined in RCW 26.44.020(1). Accordingly, we hold that the trial court did not err in granting
summary judgment in favor of the District on this issue.
D. NEGLIGENT HIRING, RETENTION, SUPERVISION AND/OR TRAINING
The trial court dismissed Evans’s claims for negligent hiring, retention, supervision,
and/or training under CR 12(b)(6), ruling that the District owed a duty under these causes of
action to JM but not to Evans as JM’s parent. We hold that the trial court erred in dismissing
Evans’s claims for negligent hiring, retention, supervision, and/or training because the District
potentially owed Evans a duty as a foreseeable victim of its negligence.
1. Legal Principles
Negligent hiring or retention and negligent supervision or training are recognized causes
of action in Washington. Scott v. Blanchet High Sch., 50 Wash. App. 37, 43-44, 747 P.2d 1124
(1987). An employer can be liable for negligent hiring or retention for failing to exercise
ordinary care by hiring or retaining an employee known to be unfit. Peoples v. Puget Sound’s
Best Chicken!, Inc., 185 Wash. App. 691, 701, 345 P.3d 811 (2015). Negligent hiring occurs at the
time of hiring, while negligent retention occurs in the course of employment. Peck v. Siau, 65
Wash. App. 285, 288, 827 P.2d 1108 (1992).
Distinct from these causes of action are negligent supervision and training, for which an
employer can be liable for failing to exercise ordinary care in supervising an employee. Peoples,
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185 Wash. App. at 701. Liability arises when the employer knows or has reason to know that the
employee presented a risk of danger to others. Niece, 131 Wash. 2d at 48-49. The employer has a
duty to “prevent the tasks, premises, or instrumentalities entrusted to an employee from
endangering others.” Id. at 48.
The causes of action for negligent hiring, retention, supervision and training are
analytically different from vicarious liability. Id. These claims arise when the employee is
acting outside the scope of employment. Id. at 51. They are based on the concept that the
employer’s own negligence is a wrong to the injured party, independent from the employer’s
liability for its employee’s negligence imputed by the doctrine of respondeat superior. Id. at 48.
In fact, an injured party generally cannot assert claims for negligent hiring, retention, supervision
or training of an employee when the employer is vicariously liable for the employee’s conduct.
LaPlant v. Snohomish County, 162 Wash. App. 476, 479-80, 271 P.3d 254 (2011).
2. Scope of Duty
The District argues that even if it could be liable for negligent hiring, retention,
supervision and/or training of Brent, its duty under these causes of action was only to its students
and not to the parents of students. We disagree.
a. Foreseeable Victims
An employer’s duty relating to the hiring, retention, supervision and training of
employees is owed to “foreseeable victims.” Niece, 131 Wash. 2d at 48; see also Smith, 144 Wn.
App. at 544; Betty Y. v. Al-Hellou, 98 Wash. App. 146, 149, 988 P.2d 1031 (1999).
“[F]oreseeability requires that the alleged harm fall within the general field of danger.” Smith,
144 Wash. App. at 544. Foreseeability typically is a question of fact. Christen v. Lee, 113 Wash. 2d
479, 492, 780 P.2d 1307 (1989).
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b. Distinguishing the District’s Duty to Protect Students
The District relies on Jachetta v. Warden Joint Consolidated School District, 142 Wn.
App. 819, 176 P.3d 545 (2008). In that case, the parents of a student sued a school district for
negligently responding to a death threat made to their son. Id. at 821. The court recognized that
“[a] school district must protect students in its custody from reasonably anticipated dangers.” Id.
at 824. The school district admitted its duty to protect the student but denied any duty to his
parents. Id. The court agreed, concluding that because the plaintiffs were not students, the
school district had no duty to protect them. Id.
However, Jachetta did not involve allegations of negligent hiring, retention, supervision
or training and instead involved a completely different type of cause of action than the
allegations here. As the court in Jachetta noted, a school district has a well-settled duty to
protect its students from reasonably foreseeable dangers. E.g., McLeod v. Grant County Sch.
Dist. No. 128, 42 Wash. 2d 316, 319-20, 255 P.2d 360 (1953); Kok v. Tacoma Sch. Dist. No. 10,
179 Wash. App. 10, 18, 317 P.3d 481 (2013); J.N. v. Bellingham Sch. Dist. No. 501, 74 Wash. App.
49, 57, 871 P.2d 1106 (1994); Peck, 65 Wash. App. at 292; Scott, 50 Wash. App. at 44. This duty is
based on the special custodial relationship between the school and the students. McLeod, 42
Wash. 2d at 319-20. “[A] school district has the power to control the conduct of its students while
they are in school or engaged in school activities, and with that power goes the responsibility of
reasonable supervision.” Peck, 65 Wash. App. at 292. Significantly, Evans did not allege any
claim in her complaint based on the District’s duty to protect JM.
Evans’s claims for negligent hiring, retention, supervision and/or training are based on
the employment relationship between the District and its security guard employee, not any
relationship between the District and the student victim. And the District’s duty for these claims
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is to control the employee, not to protect the student victim. A duty to protect a potential victim
from foreseeable harm based on a special relationship with that person is fundamentally different
than the duty to control a potential perpetrator based on an employment relationship with that
person. See Niece, 131 Wash. 2d at 52 (distinguishing between a nursing home’s duty to protect its
patients and duty to control its employees).
Peck and Scott demonstrate in the school context that a school district’s duty to protect
students is different than its duty regarding the hiring, retention, supervision or training of
employees. In both cases, the courts analyzed separately the duty to supervise a student and a
duty to hire/retain and supervise a teacher. Peck, 65 Wash. App. at 292, 294; Scott, 50 Wash. App. at
43-44. Because of this difference in the type of claims and causes of action, Jachetta is
inapplicable here.
c. Parent of Student as Foreseeable Victim
As stated above, an employer’s duty relating to the hiring, retention, supervision and
training of employees is owed to “foreseeable victims.” Niece, 131 Wash. 2d at 48. Therefore, the
test under CR 12(b)(6) is whether Evans could show under any set of facts, including
hypothetical facts, that she – not just JM – was a foreseeable victim of Brent’s conduct.
FutureSelect, 180 Wash. 2d at 962.
Here, Evans’s allegations in her complaint regarding these claims are minimal. She
alleges without any detail negligent hiring, retention, supervision and/or training and we must
assume that this allegation is true. She also alleges that because of Brent’s seduction of JM, her
relationship with JM has been damaged and destroyed. Again, we must assume that this
allegation is true. And under CR 12(b)(6), we must assume that the negligent hiring, retention,
supervision and/or training caused the damage to Evans’s relationship with JM.
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Given these assumptions, we hold that it is possible to conceive of facts under which it
would be foreseeable to the District that if Brent was engaging in sexual conduct with a student,
that conduct might harm the parent’s relationship with that student. The notion that a parent
might suffer harm in this situation is not so extraordinary that we can say as a matter of law that
such harm is unforeseeable under any circumstances.
Accordingly, we hold that the trial court erred in dismissing Evans’s negligent hiring,
retention, supervision and/or training claims under CR 12(b)(6).
CONCLUSION
We affirm the trial court’s CR 12(b)(6) order on Evans’s seduction of a child and
alienation of a child’s affections claims and the trial court’s summary judgment order on Evans’s
failure to report child abuse claim. But we reverse the trial court’s CR 12(b)(6) dismissal of
Evans’s negligent hiring, retention, supervision and/or training claims. We remand for further
proceedings consistent with this opinion.
MAXA, J.
We concur:
WORSWICK, J.
BJORGEN, C.J.
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