                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           December 13, 2016




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    HBH; SAH; and TREY HAMRICK, litigation                             No. 47438-7-II
    guardian ad litem on behalf of KEH, JBH, and
    KMH,

                                  Appellants,                 PART PUBLISHED OPINION

           v.

    STATE OF WASHINGTON,

                                  Respondent,
    And

    TOWN OF EATONVILLE,

                                  Defendant.

          BJORGEN, C.J. — KMH, HBH, SAH, KEH, and JBH1 (collectively, the children) appeal

the trial court’s partial dismissal of some of their claims through a CR 50 motion for judgment as

a matter of law, as well as an evidentiary ruling and the final judgment in favor of the

Department of Social and Health Services (DSHS). Their claims were related to incidents of



1
    We use initials to protect the privacy of those who were children at the time of the events.
No. 47438-7-II


child abuse by their foster, and later adoptive, parents, Scott and Drew Anne Hamrick (the

Hamricks).

        The children contend that the trial court erred by (1) dismissing under CR 50 their claims

regarding DSHS’s failure to investigate during the period before they were adopted, (2) adopting

a special verdict form that improperly asked the jury to apportion fault for both intentional torts

and negligence, (3) excluding the testimony of two late-disclosed witnesses, and (4) speaking

candidly about personal political leanings in court. They also assert that (5) cumulative error

violated their rights to a fair trial.

        In the published portion of this opinion, we hold that (1) DSHS has a duty of reasonable

care to protect children it places in foster homes based on a special relationship and that the

plaintiffs produced sufficient evidence to avoid dismissal under CR 50 for claims regarding

DSHS’s negligence during the period before the children were adopted. In the unpublished

portion we hold that (2) the trial court erred by submitting an incorrect special verdict form to the

jury, but the error was harmless for those claims; (3) the trial court erred in excluding the two

witnesses, but this error also was harmless; (4) the trial court did not create any appearance of

unfairness by speaking about political matters; and (5) there was no cumulative error.

Accordingly, we reverse the trial court’s CR 50 ruling and remand for trial on the claim of

negligent failure to investigate and to appropriately protect foster children. We affirm the trial

court’s judgment as to the remaining claims.




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No. 47438-7-II


                                             FACTS

1.      Pre-Adoption Period

        In February 1998, DSHS placed KMH in foster care with the Hamricks. Social worker

Amy Page was assigned to KMH’s case and conducted health and safety checks. Page did not

receive any information or make any observations suggesting that the Hamricks were abusing

KMH or that the placement was otherwise harmful.

        In October 1999, twins HBH and SAH were placed with the Hamricks as well. The twins

had been in other foster homes for the preceding seven years, and had suffered abuse and neglect

in those homes. DSHS social worker Mary Woolridge was assigned to the twins’ cases.

According to agency policies, Woolridge was supposed to conduct in-home health and safety

checks every 90 days at which she was to talk with the girls about their experiences in the home.

However, evidence presented at trial indicated that Woolridge may not have conducted these

visits as required.

        During this period, the Hamricks allegedly abused KMH, HBH, and SAH emotionally

and physically, and abused SAH sexually. However, DSHS received no reports of any abuse,

and individuals in contact with the children reported that they seemed happy.

        In January 2000, DSHS placed KEH and JBH in the Hamricks’ home. Social worker

Lisa Gilman was assigned to their cases and conducted health and safety visits. Gilman did not

receive any indication that abuse was occurring in the Hamrick home. Page later took over as

their assigned social worker, and similarly believed KEH and JBH were happy and doing well in

the home.




                                                3
No. 47438-7-II


        In June 2000, DSHS conducted a home study to determine whether the Hamricks would

be suitable adoptive parents. The resulting report recommended that DSHS allow them to adopt

all of the children.

2.      Post-Adoption Period

        In October 2000, the Hamricks adopted KMH, HBH, and SAH. In January 2003, they

adopted KEH and JBH as well.

        In April 2008, a school counselor reported suspected physical abuse of SAH. Child

Protective Services (CPS) screened this report and decided not to investigate. In November

2009, CPS received a referral related to Scott Hamrick’s alleged sexual contact with a juvenile

neighbor girl. CPS apparently referred this incident to local law enforcement for criminal

investigation but did not investigate the Hamrick household for abuse.

        In March 2010, a neighbor reported possible abuse and neglect of KEH to CPS. CPS

investigated this report, visiting the Hamrick household and interviewing the children and the

Hamricks. Ultimately, CPS determined that the report was unfounded.

        In 2011, the Pierce County Sheriff’s Department began an investigation of allegations

that the Hamricks had abused KMH, HBH, SAH, KEH, and JBH. This investigation led DSHS

to remove the children from the Hamrick home. Scott Hamrick committed suicide during the

investigation, and Drew Ann Hamrick was charged with crimes related to the abuse.

3.      Claims and Trial

        In October 2011, HBH and SAH sued DSHS, claiming that its negligence in failing to

investigate or take other protective action allowed the Hamricks to abuse them during their




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No. 47438-7-II


period as foster, and later adoptive, children in the Hamrick home. A guardian ad litem sued

DSHS on similar grounds on behalf of KMH, KEH, and JBH, who were still juveniles at the

time, and the two cases were consolidated. Following an initial mistrial, the case was tried

beginning in February 2015.

       Several days before trial began, the children disclosed two additional witnesses who

would testify concerning matters related to the 2009 CPS referral. The State objected to their

testimony. The trial court excluded the witnesses as a sanction for the children’s late disclosure,

believing that the testimony would not add anything significant to the case.

4.     CR 50 Motion

       Following the close of both parties’ cases, the State moved under CR 50 for judgment as

a matter of law that, inter alia, DSHS was not negligent during the pre-adoption period or in

relation to the 2009 CPS referral. The trial court agreed with the State and granted the motion.

As to the pre-adoption period, it ruled:

       there were so many people involved that were handling this prior to the adoption,
       all of these other voices that were coming in saying, no, there was nothing to show
       there was any abuse. I mean, absent — I mean, does it really matter whether Mary
       Woolridge was or was not doing her health and safety visits[?]. . . . Seems to me
       most of this case comes down to what did they know and when did they know it. .
       . . I can’t really see there are any claims based on anything Mary Woolridge did or
       did not do.

Report of Proceedings (RP) (Mar. 5, 2015) at 83. As to the 2009 CPS referral, the court ruled

that “the fact they didn’t investigate it is not evidence of any kind of negligence on their part

because they didn’t have any duty or obligation to investigate it.” RP (Mar. 5, 2015) at 82.

5.     Special Verdict Form

       The trial court provided the jury a special verdict form on which it was to document its

verdicts as to negligence and the assignment of any resulting damages. The verdict form first



                                                  5
No. 47438-7-II


asked the jury to decide whether DSHS was negligent in its treatment of the 2008 and 2010

referrals and whether its negligence proximately caused harm to the children. It then asked

whether certain other nonparties’ negligence proximately caused harm to KMH, HBH, SAH,

KEH, and JBH. In accordance with the trial court’s CR 50 rulings, the verdict form included no

questions concerning the pre-adoption period or the 2009 referral.

       The verdict form included several questions regarding damages. It asked the jury to

determine “each plaintiff’s total amount of damages” as a dollar value. Clerk’s Papers (CP) at

638. Next, it stated:

       Assume that 100% represents the total combined negligence or fault that
       proximately caused each plaintiff's damages. What percentage of this 100% is
       attributable to each individual or entity, if any, for whom you answered “yes” in
       answer to [the questions concerning DSHS’s and certain nonparties’ negligence]?
       For each plaintiff, the percentage of fault must equal 100 %.

CP at 638.

       The verdict form next asked, “Were the intentional acts of the following individuals a

proximate cause of any of the plaintiff[s’] damages?” CP at 638. Finally, the form asked:

       What percentage of each plaintiff's damages were caused by . . . all of the
       intentional conduct of [Scott and Drew Ann Hamrick], and what percentage of
       plaintiff[s’] damages were caused by all of the negligent conduct you identified in
       your answers to [the questions concerning negligence]? Your answer for each
       plaintiff must total 100 %.

CP at 639.

6.     Outcome of Trial

       The jury found that DSHS was not negligent in its treatment of either the 2008 or 2010

CPS referrals. As a result, it did not calculate or assign any damages to the children on the

special verdict form.




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No. 47438-7-II


       The plaintiffs moved for a new trial, arguing that the trial court had erred in its CR 50

ruling, its exclusion of the two witnesses’ testimony, and in providing the special verdict form.

The trial court denied the motion. The children now appeal.

                                            ANALYSIS

                   I. CR 50 MOTION REGARDING PRE-ADOPTION NEGLIGENCE

       The children argue that the trial court erred by dismissing their claims of negligence by

DSHS during the pre-adoption period. Underlying this request is the contention that DSHS owes

a common law duty of reasonable care to protect children it places in foster homes. We agree.

We further hold that the children here established genuine issues of fact as to both breach and

causation and, therefore, that the trial court erred in granting the CR 50 motion and in declining

to instruct the jury as to DSHS’s negligence during the pre-adoption period.

1.     Standard of Review

       We review de novo a trial court’s decision on a motion for judgment as a matter of law

on a particular issue under CR 50. Estate of Bordon ex rel. Anderson v. Dep’t of Corr., 122 Wn.

App. 227, 240, 95 P.3d 764 (2004). Like the trial court, we must determine whether there is any

legally sufficient evidentiary basis for a reasonable jury to have found for a party with respect to

the issue. CR 50; Bordon, 122 Wn. App. at 240. We view all conflicting evidence in the light

most favorable to the nonmoving party, here KMH, HBH, SAH, KEH, and JBH. Bordon, 122

Wn. App. at 240.

2.     Duty to Protect

       The children argue that DSHS owes a duty of reasonable care to investigate the health

and safety of children it places in foster homes based on a special protective relationship between




                                                 7
No. 47438-7-II


the agency and those children.2 We agree.

       Liability in tort for negligence may lie only where the defendant owes the plaintiff a duty

of care. Caulfield v. Kitsap County, 108 Wn. App. 242, 250, 29 P.3d 738 (2001). “As a general

rule, there is no duty to prevent a third party from intentionally harming another unless ‘a special

relationship exists between the defendant and either the third party or the foreseeable victim of

the third party’s conduct.’” Niece v. Elmview Grp. Home, 131 Wn.2d 39, 43, 929 P.2d 420

(1997) (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 227, 802 P.2d 1360

(1991)); accord RESTATEMENT (SECOND) OF TORTS § 315. Such a special relationship is

characterized by either (1) a duty by one party to control the conduct of a third person or (2) a

right by one party to the protection of the other. Niece, 131 Wn.2d at 43; Caulfield, 108 Wn.

App. 253; RESTATEMENT (SECOND) OF TORTS § 315.

       “Many special relationships give rise to a duty to prevent harms caused by the intentional

or criminal conduct of third parties.” Niece, 131 Wn.2d at 44-45. Common examples include

the relationships between schools and their students, innkeepers and their guests, common

carriers and their passengers, and hospitals and their patients. Niece, 131 Wn.2d at 44; Caulfield,

108 Wn. App. at 255. These relationships are “‘protective in nature, historically involving an




2
  The State argues that the trial court correctly dismissed the childrens’ negligent investigation
claims because DSHS did not breach the duty to investigate imposed by RCW 26.44.050. The
duty to investigate under this statute arises “upon the receipt of a report concerning the possible
occurrence of abuse or neglect [by] the law enforcement agency or the [DSHS].” RCW
26.44.050; see also Albertson v. State, 191 Wn. App. 284, 301, 361 P.3d 808 (2015). The
children argued in the trial court that DSHS breached its duty under RCW 26.44.050. However,
on appeal they expressly disclaim any argument based on RCW 26.44.050, contending instead
that DSHS’s duty to perform health and safety checks was based on a special relationship of
entrustment. Therefore, we need only address the latter source of duty.
                                                 8
No. 47438-7-II


affirmative duty to render aid.’” Caulfield, 108 Wn. App. at 253 (quoting Hutchins, 116 Wn.2d

at 228). Our Supreme Court held that the duty to protect another person from the intentional or

criminal actions of third parties arises, “where one party is ‘entrusted with the well being of

another.’” Niece, 131 Wn.2d at 50 (quoting Lauritzen v. Lauritzen, 74 Wn. App. 432, 440, 874

P. 2d 861 (1994). In finding such a duty, Niece also relied on the vulnerability of the person

harmed. 131 Wn.2d at 50-51. Similarly, this court in Caulfield, 108 Wn. App. at 255, held that

these special relationships arise where one party is entrusted with the care of another party

rendered vulnerable by the nature of the arrangement.

       In finding that a social worker has no duty to protect third persons from the tortious acts

of children for whom it coordinates services, Division One of our court noted that social workers

are not responsible for day-to-day supervision of such children. Terrell C. v. Dep’t of Soc. &

Health Servs., 120 Wn. App. 20, 28, 84 P.3d 899 (2004). It explained that “[a]ny ‘ongoing’

relationship between the social worker and the child is to prevent future harm to that child, not to

protect members of the community from harm.” Id. (emphasis added). Our Supreme Court later

quoted this language approvingly in Sheikh v. Choe, 156 Wn.2d 441, 450, 128 P.3d 574 (2006).

However, no Washington court has yet addressed whether such an ongoing relationship between

a social worker and a foster child constitutes a special relationship within the meaning of

Restatement (Second) of Torts, section 315, giving rise to a duty to protect that child from the

tortious acts of foster parents. We turn to the Restatement and to Washington case law

pertaining to foster children to meet that issue.

       In defining the contours of a protective special relationship, Niece relied on Restatement

(Second) of Torts § 315, among other sources. 131 Wn.2d at 43. Section 315 states:

       There is no duty so to control the conduct of a third person as to prevent him from
       causing physical harm to another unless

                                                    9
No. 47438-7-II


               (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.

        Comment c to this section explains that “[t]he relations between the actor and the other

which require the actor to control the conduct of third persons for the protection of the other are

stated in §§ 314 A and 320.” RESTATEMENT, supra, cmt. c. Section 314 A, in turn, lists a

number of specific relations of this type, such as common carrier and passenger, none of which

involve social worker and foster child. Section 320 deals with custodial relations. Significantly,

comment b to Restatement, supra, section 314A specifies that

        [t]he relations listed are not intended to be exclusive, and are not necessarily the
        only ones in which a duty of affirmative action for the aid or protection of another
        may be found. . . . The law appears, however, to be working slowly toward a
        recognition of the duty to aid or protect in any relation of dependence or of mutual
        dependence.

Thus, we must turn back to our case law to determine the extent to which the State had a duty to

protect these plaintiffs.3

        In M.W. v. Department of Social & Health Services, 149 Wn.2d 589, 70 P.3d 954 (2003),

the court examined whether RCW 26.44.050 imposes a duty on DSHS to protect children from

harm by DSHS workers while investigating potential abuse. M.W., 149 Wn.2d at 597. After

examining the statute and the case law interpreting it, the court held that liability under this

statute arises only for children

        who are harmed because DSHS has gathered incomplete or biased information that
        results in a harmful placement decision, such as removing a child from a



3
  We note that Restatement (Third) of Torts, section 40, replaced section 314 A of the
Restatement (Second) of Torts. However, no party cites to the Restatement (Third), and none
argue that the Restatement (Third) changed the principles of Restatement (Second), section 315,
in a way that affects this appeal.


                                                  10
No. 47438-7-II


       nonabusive home, placing a child in an abusive home, or letting a child remain in
       an abusive home.

Id. at 602. As noted above, the plaintiffs in this appeal make no claim of liability under RCW

26.44.050. Therefore, the holding in M.W. does not govern the resolution of this appeal.4

       M.W. does contain language which, read in isolation, could suggest that all claims of

negligence in monitoring the welfare of foster children are limited to this statutory liability. For

example, after noting that our courts have not recognized a general tort claim for negligent

investigation, the court stated, “The negligent investigation cause of action against DSHS is a

narrow exception that is based on, and limited to, the statutory duty and concerns we discuss

above." Id. at 601. However, the court’s entire analysis in M.W. was restricted to determining

whether liability lay in M.W.’s case under the statute. It examined the wording of the statute, its

purpose, and case law interpreting it. Its gaze did not reach the larger question presented here:

whether a special relationship is present from which a tort duty to exercise ordinary care would

arise. This narrow focus on statutory liability cannot be the basis for a denial of any liability in

tort, especially when the cornerstone of that liability, the special protective relationship, was not

even discussed. In addition, any duty under the statute is triggered only if a report is received of

possible abuse or neglect. To read M.W. to deny any liability outside the statute, then, is to

restrict liability to situations where a report has been made. Such a narrowing of liability, and its

consequent reduction of legal protection of foster children, cannot rest on a doubtful implication

from ambiguous language. M.W. does not speak to the issue here before us.




4
 The Supreme Court cited M.W. for its holding in Roberson v. Perez, 156 Wn.2d 33, 123 P.3d
844 (2005). Roberson, like M.W., is restricted to an interpretation of liability under chapter
26.44 RCW. Roberson, 156 Wn.2d at 35, 48.


                                                 11
No. 47438-7-II


       Another central decision in this area is Braam, ex rel. Braam v. State, 150 Wn.2d 689, 81

P.3d 851 (2003). The principal issue in Braam was whether foster children have a constitutional

substantive due process right to be free from unreasonable risks of harm and a right to reasonable

safety. Braam, 150 Wn.2d at 700. In holding that foster children have this right, the court

specified that “the Constitution does not guarantee due care on the part of state officials; liability

for negligently inflicted harm is categorically beneath the threshold of constitutional due

process.” Braam, 150 Wn.2d at 699 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849,

118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). Thus, Braam’s due process analysis and holding

does not bear on the issue presented here.

       The most direct authority on a common law duty of care is Caulfield and Niece, both

supra. In Caulfield, we examined whether a special relationship arose when a county contracted

with a third party to provide in-home caregiving services to a physically disabled adult as part of

a program designed to support disabled people living outside of group nursing facilities. 108

Wn. App. at 255-56. We held that this was a special relationship and that it gave rise to a duty

on the part of the county “to protect . . . [such] vulnerable clients from the tortious acts of others,

especially when a case manager knows or should know that serious neglect is occurring.” Id. at

256. We reasoned that because county case workers were responsible under the program for

planning and monitoring care, and for terminating the contracted caregiver if care was

inadequate, they must use ordinary care to protect their clients from dangers imposed by the

caregiver’s tortious conduct. Id.

       The State argues that a special relationship giving rise to tort liability must be custodial in




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No. 47438-7-II


nature. However, it is clear from Caulfield that custody is not a crucial element of such a

relationship. There, the contracted caregiver, not the county case worker, had a custodial

relationship to the disabled client. 108 Wn. App. at 245-46. The case worker’s relationship with

the client extended only to planning, monitoring, and providing other support services. Id. at

256. The fact that the case worker was entrusted with ensuring the client’s wellbeing proved

crucial in our assessment of the relationship. Id. at 255. Caulfield stands for the proposition that

entrustment, not custody, is at the heart of a special protective relationship for purposes of

imposing a common law tort duty. Niece, on the other hand, did involve a custodial relationship

between the group home operator and the resident. As noted, however, Niece did not base its

finding of a special relationship on custody, but rather on the same ground as Caulfield,

entrustment of a vulnerable individual. Niece, 131 Wn.2d at 50; Caulfield, 108 Wn. App. at 255.

Thus, the decisions of both the Supreme Court and this court signal that custody is not a

prerequisite to a protective special relationship.5

       The relationship between DSHS and children it places in foster homes is quite similar to

the one analyzed in Caulfield. Just as the county contracted with an in-home caregiver in

Caulfield, DSHS contracts with licensed foster parents to take in the children. See DeWater v.

State, 130 Wn.2d 128, 136, 921 P.2d 1059 (1996). Like the county case workers, DSHS social

workers are responsible for monitoring the health and safety of the children. See former RCW

74.13.031 (1998). Like the county’s disabled adult clients, the children are especially vulnerable

to harms created by their caregivers. Aponte v. Dep’t of Soc. & Health Servs., 92 Wn. App. 604,



5
  Alternatively, if some degree of custody were required, it is present. In Braam’s discussion of
a foster child’s substantive due process right to be free from unreasonable risks of harm and a
right to reasonable safety, the Supreme Court characterized the State as “custodian and caretaker
of foster children.” 150 Wn.2d at 700. This custodial relation is not somehow effaced when the
inquiry shifts from substantive due process to a special relationship.
                                                  13
No. 47438-7-II


622, 965 P.2d 626 (1998). The facts and policies at work in this appeal parallel those in

Caulfield. As in Caulfield, they lead to the presence of a special relationship.

          Perhaps more to the point, Niece found a special relationship “where one party is

‘entrusted with the well being of another,’” and the entrusted party is vulnerable to a degree. 131

Wn.2d at 50 (quoting Lauritzen, 74 Wn. App. at 440). As noted, Niece did not rely on custody in

finding this relationship. Absent proper monitoring by the State, a foster child is wholly exposed

to the will of the foster parents, whether that will is a blessing or a horror. In this setting, the

State is the last watchman of the foster child’s well being. A more compelling illustration of the

bases of a special relationship established in Niece is hard to imagine.

          For these reasons, we hold that DSHS owed the children a duty like that recognized in

Caulfield to take ordinary care to protect them from the tortious or criminal conduct of their

foster parents. The trial court erred to the extent it ruled that no such duty exists.

3.        Breach of Duty

          DSHS policies require case workers to conduct health and safety checks for foster

children. Evidence presented at trial showed that such visits were supposed to occur every 90

days during the first year children are in a new foster home. The evidence, however, indicated

that Woolridge did not conduct such health and safety checks for SAH during the pre-adoption

period.

          DSHS’s failure to conduct required health and safety checks—either at all or with

sufficient regularity—constituted sufficient evidence of a breach of its duty of care to avoid

dismissal under CR 50. Accordingly, the trial court erred to the extent it ruled that there was an




                                                   14
No. 47438-7-II


insufficient evidentiary basis for a reasonable jury to find that DSHS breached its duty to protect

the children.6

4.     Causation

       The State argues that even if DSHS had a duty to perform health and safety checks, the

children did not produce evidence from which the jury could find that a breach of that duty

caused their injuries. We disagree.

       To prove negligence, a plaintiff must establish that the negligent party’s action or failure

to act was the proximate cause of the plaintiff’s harm. Wuthrich v. King County, 185 Wn.2d 19,

25, 366 P.3d 926 (2016). Proximate cause consists of two elements: cause in fact and legal

causation. Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 82, 1 P.3d 1148 (2000).

Cause in fact requires a determination that if the defendant did not breach the duty of care, the

plaintiff’s injuries would not have occurred. See id. Legal causation describes the policy-based

determination that the defendant’s breach of the duty of care was of sufficient causal proximity

to support imposition of liability for the resulting injuries. See id.

       To establish cause in fact, a negligence plaintiff must prove that but for the defendant’s

breach of duty, the plaintiff would not have been injured. Id. This is a factual question, but may

be resolved as a matter of law where a reasonable jury could reach only one conclusion based on

the evidence presented. Hungerford v. Dep’t of Corr., 135 Wn. App. 240, 251, 139 P.3d 1131

(2006). Mere speculation or argumentative assertions of possible counterfactual events is

insufficient to prove that but for the defendant’s breach of duty the plaintiff would not have been

injured. Id. at 252, 254.




6
 We do not suggest that compliance with DSHS policies is necessarily enough to ensure
compliance with the duty to exercise ordinary care to protect foster children.
                                                  15
No. 47438-7-II


       The children claim that if DSHS had properly conducted health and safety checks, they

would have given the social worker some indication of abuse. SAH testified at trial that

       if I felt safe and knew—and the woman was always there, if I felt safe, I believe I would
       have said something. I was a very outspoken young girl.

RP (Feb. 11, 2015) at 32 (emphasis added). The record also shows that SAH wanted someone to

give her the opportunity to tell what was happening to her and that she asked to talk privately

with a therapist. The jury reasonably could have found based on this evidence that had the social

worker properly performed health and safety checks, SAH or the other girls would likely have

felt safe enough with the social worker to disclose the abuse or that the checks would have

otherwise uncovered or given DSHS reason to suspect abuse during the pre-adoption period.

       In addition, records of SAH’s and HBH’s visits with a therapist showed that the girls

were “sexually acting out together and using language which you wouldn’t expect a child to

use.” RP (Feb. 9, 2015) at 48. The children’s standard of care expert testified if Woolridge had

been aware of this behavior, it would have been reason to increase the health and safety checks

by DSHS. The jury could reasonably have found based on this evidence that the social worker

would likely have encountered similar behaviors had she properly performed health and safety

checks and that such encounters would have triggered an investigation. Notably, the jury would

have considered all of this evidence in light of the testimony of the children’s standard of care

expert that proper health and safety checks in general help built rapport, encourage honest

communication, and provide an avenue for disclosure of abuse and for observation of various

indicators of abuse.

       This evidence supplies a sufficient basis for a reasonable jury to find that but for the

allegedly deficient health and safety checks, SAH or one of the other girls would have disclosed

the abuse and the State would have intervened. It also provides a sufficient basis for a finding of

                                                 16
No. 47438-7-II


legal causation. With this, there was a sufficient evidentiary basis for a reasonable jury to find

that DSHS’s breach of its duty to protect the children was a proximate cause of their injuries.

Therefore, the trial court erred in entering judgment as a matter of law under CR 50 on the

children’s claims regarding the pre-adoption period.

                                          CONCLUSION

       We hold that DSHS has a duty to exercise ordinary care to protect foster children on the

basis of its special relationship with such children. We hold also that the evidence, viewed in the

light most favorable to KMH, HBH, SAH, KEH, and JBH, supplied a legally sufficient

evidentiary basis for a reasonable jury to find by a preponderance that DSHS breached that duty

during the pre-adoption period and proximately caused at least some of the children’s damages.

Consequently, we reverse the trial court’s CR 50 ruling and remand for trial on the claims of

negligent investigation and failure to take appropriate protective action during the period before

adoption.

       A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2.06.040, it is so ordered.

                                    II. SPECIAL VERDICT FORM

       The children argue that the trial court erred by providing a special verdict form that asked

the jury to segregate damages in an improper way. We agree, but hold that the error was

harmless.

       We review errors of law in jury instructions de novo. Hue v. Farmboy Spray Co., 127

Wn.2d 67, 92, 896 P.2d 682 (1995). A trial court’s instructions to the jury are legally sufficient

if they properly inform the jury of the applicable law, are not misleading, and permit each party



                                                 17
No. 47438-7-II


to argue its theory of the case as to any matters the jury will decide. Boyd v. Dep’t of Soc. &

Health Servs., 187 Wn. App. 1, 11, 349 P.3d 864 (2015). However, even where the trial court

erred in instructing the jury, we reverse only if the error prejudiced a party below. Hue, 127

Wn.2d at 92.

        Jury instruction 19 required the jury to determine what percentage of total negligence was

attributable to the negligence of DSHS and what percentage was attributable to the negligence of

the Hamricks, and stated that the total must equal 100 percent. Further, in calculating any

damage award, the jury was instructed to segregate any damages caused by such negligence from

damages caused solely by the Hamricks’ intentional acts. Instruction 21 stated:

                In calculating any damage award, you must not include any damages that
        were caused by the intentional acts of Drew Anne Hamrick and/or Scott Hamrick
        and not proximately caused by negligence of State of Washington/DSHS, nonparty
        Trey Hamrick, and/or nonparty Kelly Hamrick. Any damages caused solely by the
        intentional acts of Drew Ann Hamrick and/or Scott Hamrick and not proximately
        caused by negligence of State of Washington/DSHS, Trey Hamrick and/or Kelly
        Hamrick must be segregated from and not made part of any damage award against
        State of Washington/DSHS.

CP at 632. The children agree that instructions 19 and 21 correctly state the law.

        Questions 1 through 5 of the trial court’s verdict form involved whether DSHS was

negligent and question 6 involved whether the Hamricks were negligent. Question 7 then asked

the jury to find the amount of each child’s damages. Based on instruction 21, the jury was not

allowed to include in this amount any damages caused solely by the Hamricks’ intentional acts.

Consistent with instruction 19, question 8 required the jury to determine what percentage of total

negligence was attributable to the negligence of DSHS and what percentage was attributable to

the negligence of the Hamricks, and stated that the total must equal 100 percent. Again, the

Plaintiffs do not object to this series of instructions.




                                                   18
No. 47438-7-II


       Next, question 9 asked the jury to determine whether the Hamricks’ intentional acts were

a proximate cause of any of the children’s damages. Question 10 then asked the jury:

       What percentage of each plaintiff[s’] damages were caused by . . . all of the
       intentional conduct of [Scott and Drew Ann Hamrick], . . . and what percentage of
       plaintiff[s’] damages were caused by all of the negligent conduct you identified in
       your answers to Question No. 7? Your answer for each plaintiff must total 100%.

CP at 639. Question 10 also asked the jury to allocate percentages to either “[d]amages from

intentional conduct” or “[d]amages from negligent conduct,” with the total equaling 100 percent.

CP at 640.

       The children argue that including question 10 in the verdict form misled the jury as to the

segregation of damages by indicating that it could allocate some of the negligence damages

already segregated under instruction 21 to the Hamricks’ intentional torts. We agree.

       We read jury instructions as a whole when determining sufficiency. Rollins v. King

County Metro Transit, 148 Wn. App. 370, 379-80, 199 P.3d 499 (2009). We believe that here

the instructions read as a whole were misleading. Instruction 21 correctly required the jury to

segregate the damages caused by DSHS’s negligence from the damages “caused solely by the

[Hamricks’] intentional acts.” CP at 632 (emphasis added). This instruction directed the jury

response to question 7 of the verdict form, requiring the jury to exclude damages caused solely

by the Hamricks’ intentional acts in determining the amount of the children’s damages. But

question 10 then allowed for a second segregation of those negligence-related damages between

damages “caused by all of the negligent conduct” and those “caused by . . . all of the [Hamricks’]

intentional conduct.” CP at 638-40.

       The State argues that question 10 simply presented a step-by-step method of

implementing instruction 21. Read in the context of instruction 21, however, question 10 created




                                                19
No. 47438-7-II


a significant risk that the jury would segregate damages twice. We hold that the jury instructions

and verdict form questions as a whole were misleading as to the segregation of damages.7

       However, KMH, HBH, SAH, KEH, and JBH have shown no resulting prejudice. An

erroneous jury instruction is prejudicial if it affects the outcome of the trial. RWR Mgmt., Inc. v.

Citizens Realty Co., 133 Wn. App. 265, 278, 135 P.3d 955 (2006). We will not presume

prejudice if an instruction was misleading but did not misstate the law. Paetsch v. Spokane

Dermatology Clinic, P.S., 182 Wn.2d 842, 849, 348 P.3d 389 (2015). Here, because the jury

found that DSHS was not negligent, it assigned no damages at all. It could not have been misled

by the damage assignment portion of the special verdict form because it did not reach that

portion of the form. Any error in that unused portion of the form had no effect on the outcome

of the case.

       Accordingly, we hold that the trial court committed no reversible error regarding the

claims that went to the jury in issuing the special verdict form. However, on remand the trial

court’s verdict form should be consistent with our analysis above.

                             III. EXCLUSION OF WITNESS TESTIMONY

       The children argue that the trial court erred by excluding the testimony of two late-

disclosed witnesses without performing the analysis required by Jones v. City of Seattle, 179

Wn.2d 322, 314 P.3d 380 (2013). We agree that the trial court erred but hold that the error was

harmless.




7
 Question 9 also is inconsistent with instruction 21. Instruction 21 requires segregation of
damages caused solely by the Hamricks’ intentional conduct and damages caused by DSHS’s
negligence. Question 9 asked the jury to determine whether the Hamricks’ intentional acts were
a proximate cause of any of the children’s damages. Under instruction 21, the jury should have
been asked whether the Hamricks’ intentional acts were the sole proximate cause of any of the
children’s damages
                                                 20
No. 47438-7-II


       We review a trial court’s decision to exclude witness testimony for an abuse of

discretion. Id. at 337. A trial court abuses its discretion if its decision is manifestly unreasonable

or based on untenable grounds or reasons. Peralta v. State, 191 Wn. App. 931, 951, 366 P.3d 45

(2015), review granted in part, 185 Wn.2d 1027 (2016). The erroneous exclusion of witnesses

without performing the analysis required by Jones and Burnet v. Spokane Ambulance, 131

Wn.2d 484, 933 P.2d 1036 (1997), has been held to be subject to harmless error analysis. Jones,

179 Wn.2d at 338. An error is harmless, and therefore not grounds for reversal, if it does not

affect the outcome of the case. Blaney v. International Association of Machinists and

Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 211, 87 P.3d 757 (2004).

       Under Jones, a trial court may not exclude late-disclosed witnesses as a sanction without

first “explicitly consider[ing] whether a lesser sanction would probably suffice, whether the

violation at issue was willful or deliberate, and whether the violation substantially prejudiced the

opponent’s ability to prepare for trial.” Id. at 338; see also Burnet, 131 Wn.2d at 484. The trial

court need not invoke Jones or Burnet specifically, but the record must show that the trial court

evaluated the necessary elements before excluding the testimony. Jones, 179 Wn.2d at 344.

       Here, the trial court did not conduct the evaluation required by Jones and Burnet. In

ruling to exclude the testimony, the court reasoned as follows:

       [I]f you were intending on calling them as witnesses, they could have been
       disclosed at least a month ago; so I'm not going to allow them to testify at this time.
       I don't think that their testimony is going to add materially to anything. We already
       know the subject of the 2009 referral, and I would assume at some point we're going
       to have a caseworker that's going to be testifying about that referral and why they
       did or did not do anything. All right? So I don't think we need either [of the
       witnesses] to add anything to that; so at this point, I'm not going to allow [them],
       as lay witnesses, to testify.




                                                 21
No. 47438-7-II


RP (Feb. 5, 2015) at 26. This ruling did not address whether a lesser sanction would suffice,

whether the late disclosure was willful or deliberate, or whether the late disclosure prejudiced the

State in its trial preparation. Therefore, the trial court erred under Jones.

       However, the children have made no showing—in fact, they do not even argue—that the

exclusion prejudiced them. The record shows that the witnesses would have testified to matters

related to a 2009 referral to CPS. The evidence presented at trial showed that that particular

referral did not result in any mandate for DSHS to investigate. Consequently, the trial court

dismissed all claims based on DSHS’s inaction in light of that referral, and the children have not

appealed that dismissal. Given the dismissal and the absence of a showing of prejudice from

excluding the witnesses, we hold that the trial court’s failure to follow Jones did not prejudice

KMH, HBH, SAH, KEH, or JBH and constituted harmless error.

                   IV. COMMENTS REGARDING PERSONAL POLITICAL LEANINGS

       The children argue that the trial court violated their rights to a trial presided over by a fair

and impartial judge when it discussed matters of personal political preference. We disagree.

       The children base their argument on the appearance of fairness doctrine. Under that

doctrine, they must show actual or perceived bias to establish a violation of their right to a fair

trial. GMAC v. Everett Chevrolet, Inc., 179 Wn. App. 126, 154, 317 P.3d 1074, review denied,

181 Wn.2d 1008 (2014). The critical question is whether the proceedings would have appeared

unfair to a reasonably prudent and disinterested person. Id. We review appearance of fairness

claims de novo. In re Disciplinary Proceeding Against King, 168 Wn.2d 888, 899, 232 P.3d

1095 (2010).

       According to SAH’s declaration in support of the children’s motion for a new trial, the

presiding judge discussed the lifelong trajectory of her political views and described political



                                                  22
No. 47438-7-II


disagreements with another judge. Yet the record shows no nexus between these comments and

the parties or the issues to be decided in the case. It is unclear how commentary regarding

political matters would have produced any actual or potential bias in a negligence case related to

the abuse of foster children. No reasonably prudent, disinterested person would infer from these

comments by the trial court that it was biased as to the issues before it.

       The children also argued in the superior court that “it is clear that members of the jury

likely over[]heard the Court’s comments and was [sic] likely influenced by it in some unknown,

but prejudicial, way.” CP at 676. They speculated that jurors may have decided the case

according to their own political biases rather than the evidence presented in the case and the

instructions of the court as to the applicable law. However, the jury was properly instructed to

find the facts of the case based only on the evidence presented, and we presume that the jurors

followed those instructions. Peralta, 191 Wn. App. at 950.

       Speculation as to jurors’ motivations does not rebut this presumption and is no substitute

for a showing of actual or potential bias. The children have not shown that the trial court’s

comments produced any actual or perceived bias on the part of any jurors.

                                      V. CUMULATIVE ERROR

       The children also argue that the cumulative effects of the preceding claimed errors in

aggregate violated their right to a fair trial. We disagree.

       The children cite no authority for applying the cumulative error doctrine in a civil case.

In criminal cases our courts have held that cumulative error may warrant reversal even where the

trial court’s individual errors were harmless. In re Pers. Restraint of Cross, 180 Wn.2d 664, 690,

327 P.3d 660 (2014). This is the case “when there have been several trial errors that standing

alone may not be sufficient to justify reversal but when combined may deny a defendant a fair



                                                  23
No. 47438-7-II


trial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). “The test to determine whether

cumulative errors require reversal of a defendant’s conviction is whether the totality of

circumstances substantially prejudiced the defendant and denied him a fair trial.” Cross, 180

Wn.2d at 690.

        Assuming that the doctrine applies in civil cases, the children have not shown cumulative

error warranting reversal. The trial court erred in instructing the jury as to the segregation of

damages and in excluding two witnesses as a sanction for the children’s late disclosure of those

witnesses. However, there is no clear cumulative impact from those errors. The children argue

that “key rulings were decided on the fly without any serious consideration as to the controlling

law and/or admitted evidence.” Br. of Appellant at 33-34. This addresses a commonality of

causation—and a highly abstracted one—but does not speak to the cumulative effects of those

errors. 8

        The children have not shown that cumulative error denied them a fair trial.

                                          CONCLUSION

        We hold that DSHS has a duty to exercise ordinary care to protect foster children on the

basis of its special relationship with such children. We hold also that the evidence, viewed in the

light most favorable to the children, supplied a legally sufficient evidentiary basis for a

reasonable jury to find by a preponderance that DSHS breached that duty during the pre-adoption

period and proximately caused at least some of the children’s damages. Consequently, we



8
  The children seem to argue that they suffered generalized prejudice because the trial court’s CR
50 rulings forced them to give a closing argument that did not mirror their opening statement,
harming their attorneys’ credibility in the eyes of the jury. However, a change in legal argument
is an ineluctable result of granting a CR 50 motion on some but not all claims. In addition, the
jury was properly instructed to base its verdict only on the evidence presented and the
instructions of the court. We presume that the jurors followed those instructions, Peralta, 191
Wn. App. at 950, and nothing in the record or briefing shows that they did not.
                                                 24
No. 47438-7-II


reverse the trial court’s CR 50 ruling and remand for trial on the claims of negligent investigation

and failure to take appropriate protective action during the period before adoption. However, we

disagree with the children’s other arguments and affirm the trial court’s judgment as to the 2008

and 2010 CPS referrals.



                                                     BJORGEN, C.J.
 We concur:



JOHANSON, J.




MAXA, J.




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