                                                                                                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.



                                                  3
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”




                                                 4
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 Wn.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.




                                                  5
No. 47612-6-II


v. Tremont Grp. Holdings, Inc., 180 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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

Wn. 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 Wn.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 Wn. 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 Wn.2d 99, 105, 615 P.2d




                                                  7
No. 47612-6-II


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 Wn.2d 739, 745-47, 675 P.2d 226

(1984); Lien v. Barnett, 58 Wn. 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 Wn.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 Wn.2d

83, 107-08, 768 P.2d 481 (1989), modified on recons., 116 Wn.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 Wn. 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




                                                  8
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 Wn.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 Wn.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 Wn. 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 Wn.2d 39, 48, 929 P.2d 420 (1997).




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No. 47612-6-II


       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 Wn. 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 Wn.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 Wn. 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

Wn. 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

Wn.2d at 718-20 (priests sexually molested an altar boy); Niece, 131 Wn.2d at 42, 53-59 (staff

member at a group home sexually assaulted a disabled woman); Smith v. Sacred Heart Med.

Ctr., 144 Wn. App. 537, 543, 184 P.3d 646 (2008) (nursing assistant at hospital engaged in

sexual activity with former psychiatric patients); Bratton, 73 Wn. App. at 498-501 (teacher

engaged in a sexual relationship with a student); Thompson, 71 Wn. 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 Wn.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 Wn. 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 Wn. 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 Wn.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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No. 47612-6-II


       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 Wn.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 Wn.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 Wn.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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No. 47612-6-II


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 Wn.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 Wn.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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No. 47612-6-II


        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 Wn.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

Wn.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 Wn.2d at 78.

        The third Bennett question is whether implying a remedy is consistent with the

underlying purpose of RCW 26.44.030. 113 Wn.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 Wn. 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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No. 47612-6-II


        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 Wn.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 Wn. 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 Wn. 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

Wn. 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 Wn. 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 Wn.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 Wn. 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 Wn.2d at 48; see also Smith, 144 Wn.

App. at 544; Betty Y. v. Al-Hellou, 98 Wn. App. 146, 149, 988 P.2d 1031 (1999).

“[F]oreseeability requires that the alleged harm fall within the general field of danger.” Smith,

144 Wn. App. at 544. Foreseeability typically is a question of fact. Christen v. Lee, 113 Wn.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 Wn.2d 316, 319-20, 255 P.2d 360 (1953); Kok v. Tacoma Sch. Dist. No. 10,

179 Wn. App. 10, 18, 317 P.3d 481 (2013); J.N. v. Bellingham Sch. Dist. No. 501, 74 Wn. App.

49, 57, 871 P.2d 1106 (1994); Peck, 65 Wn. App. at 292; Scott, 50 Wn. App. at 44. This duty is

based on the special custodial relationship between the school and the students. McLeod, 42

Wn.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 Wn. 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 Wn.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 Wn. App. at 292, 294; Scott, 50 Wn. 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 Wn.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 Wn.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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