                                                                                      H-LED.
                                                                                 COURT OF APPEALS


                                                                                 Hill SEP - 3        A M. 3: 3

                                                                                 STATE OF WASHINGTON
                                                                                  E,   r

                                         OF-
    IN THE COURT OF APPEALS OF THE STATE ''                                                                TON


                                                  DIVISION II

KELSEY BREITUNG,                                                                No. 45123 - -II
                                                                                          9


                                    Appellant,


        v.



STATE OF WASHINGTON; DEPARTMENT                                           UNPUBLISHED OPINION
OF SOCIAL AND HEALTH SERVICES, and
COMMUNITY COUNSELING INSTITUTE,
a Washington non -
                 profit corporation,


                                     Respondent.


        HUNT, J.         Kelsey Breitung      appeals     the   superior court' s      granting (   1) the Community

Counseling     Institute' s ( CCI)     motion for summary judgment, dismissing with prejudice her

negligent hiring, supervision, and retention claims; and ( 2) the Department of Social and Health

Services' (   DSHS) motion for partial summary judgment, dismissing her claims against DSHS.

Breitung argues that the superior court erred in ( 1) dismissing her claims on summary judgment

because they involved         genuine    issues   of material   fact; (   2) ruling that DSHS was not immune

from   Breitung'   s negligent    investigation    claim under     RCW 4. 24. 595( 2); (     3) ruling that Breitung

was judicially estopped from prosecuting her sexual abuse claims, based on her inconsistent

statements    in 2009;    and (   4)   ruling that the juvenile court' s November 2009 ruling was a

superseding    cause   that   absolved   DSHS     and   CCI from   liability.   We     affirm.
No. 45123 -9 -II



                                                              FACTS


        Community Counseling Institute ( CCI) is a nonprofit organization offering walk - drug
                                                                                        in

assessments, outpatient education, and treatment services for individuals with substance abuse


problems.     Andrew Bernard Phillips, a certified mental health counselor, applied for a job with

CCI in 2008;         CCI'   s   director, Dr. William H. James, interviewed Phillips, called Phillips'


references,    and ran a        background     check on       him.    This background check revealed only a 1995

conviction for attempted possession of stolen property. CCI hired Phillips as a counselor.

                    I. BREITUNG' S COUNSELING RELATIONSHIP WITH CCI AND PHILLIPS


          In February 2009, when Breitung was 16 years old, she reported to CCI as required by a

juvenile    court order     issued in     connection with       her    misdemeanor assault while          intoxicated.      CCI


assigned Phillips as Breitung' s counselor; their counseling relationship began on February 27.

Phillips    also    facilitated his     church' s "    Celebrate       Recovery" program, which he encouraged

Breitung     to join     and    through   which     Breitung         met    Phillips'   wife.    Clerk' s Papers ( CP) at 2.


Although CCI was aware that Phillips had encouraged other CCI clients to attend Celebrate


Recovery, it had         never     stopped   him from         doing        so.   Phillips routinely gave Breitung rides

between Celebrate Recovery and her home; he also gave her his cell phone number, telling her

she could call him anytime.


           In July 2009, Breitung left her parents' home to live with a friend because of issues with
                                                                                   Beitlerl,
her   mother.      In August,     Breitung   started    living   with       Rose                her temporary   guardian.    On


August 11, Breitung told Phillips that she had gone to a party with Beitler, where she drank

alcohol    and     had   sex with   Beitler'   s   19- year   -old   friend.     Breitung begged Phillips not to report


1 Rose Beitler is also referred to as Rose Sialana in the record.


                                                                 2
No. 45123 -9 -II



Beitler to Child Protective Services ( CPS).                  Phillips did not file a CPS report, but he did tell his


wife about the incident, which she reported to CPS.


          During an August 13 meeting with Jessica Chaney, Breitung' s DSHS social worker,

Beitler   explained   that   she   had "   some serious concerns"             about   Phillips.   The next day, August 14,

DSHS placed Breitung with South King County Youth Shelter ( SKCYS).

          Around the same time, Beitler also met with Bernie Bell, CCI' s associate director, and

reported that Phillips had inappropriately shared information about Breitung with his wife. CP at

946 -47.     On August         14, Bell filed        a   critical       incident     report   with   CCI,   documenting her

conversation with Beitler and Beitler' s concerns about Breitung' s relationship with Phillips. CCI

director James also filed a critical incident report, noting that Phillips " broke confidentiality" by

disclosing   information      about   Breitung      to his    wife.      CP   at   956. As remedial measures, on August


30, CCI ( 1) discharged Breitung as a CCI client and recommended that Breitung attend treatment

at another agency, and ( 2) instructed Phillips to have no further contact with Breitung of any

kind.     Following her discharge from CCI, Breitung began counseling with Andrea Venier at

Auburn Youth Resources.


             II. DEPENDENCY PETITION; BREITUNG' S PLACEMENT WITH PHILLIPS FAMILY


           Meanwhile, on August 19, DSHS filed a dependency petition on grounds that it was

contrary to   Breitung'      s welfare     to   remain   in   or   to   return   home to her   mother.      On August 19, the


juvenile court held a dependency hearing, ruling that Breitung should not return to her parents

and that she should remain in shelter care because she had no parent, guardian, or custodian

available    to   provide    for her.      Around this same time, DSHS assigned Gabrielle Rosenthal as


Breitung' s social worker.



                                                                    3
No. 45123 -9 -II




            Breitung repeatedly expressed to Rosenthal her .desire to live with the Phillips family.

Breitung described the Phillips as a positive, supportive couple who provided her with a safe and

stable       environment.           Rosenthal     noted ' potential     professional          ethical   problems         given the


counselor- patient relationship between Breitung and Phillips. Nevertheless, Rosenthal contacted

the Phillips and explained the steps they needed to take to be considered a placement resource for
              2
Breitung.           Phillips disclosed a prior conviction for attempted possession of stolen property.

Rosenthal ran a criminal background check, which confirmed Phillips' prior conviction and no

other       conviction    or negative       action.   Rosenthal also searched DSHS' s database to determine


whether any reports or allegations of child abuse, neglect, or endangerment had been filed

against the Phillips; she found none.


             Rosenthal also asked Philips to check whether any professional or ethical rule prevented

him from serving as a placement resource for Breitung; Phillips responded that he checked and

did   not      find    any   rule    that   prevented    him from       doing        so.      Rosenthal, however,           did not


independently contact CCI to inquire about a potential breach of professional or ethical rules that

could stem from placing Breitung with Phillips.

             Around this same time, on September 16, the juvenile court held a shelter care hearing.

Rosenthal         reported    to the     court   that ( 1)   she had not seen Breitung display any particular

attachment        to Phillips, ( 2)     she (   Rosenthal) had talked mostly               with   Phillips'    wife, (   3) Breitung

had     a    good     relationship    with   the Phillips     family,   and (   4)    she (   Rosenthal)       did not have any

concerns about Breitung' s proposed placement with the Phillips family.


2 DSHS required the Phillips to disclose whether they had been convicted of a crime; been
accused of sexual abuse, physical abuse, neglect, abandonment, or exploitation of a child; and
whether either          had any     protection orders or     restraining   orders entered against             them.
No. 45123 -9 -II



          On September 21,            Breitung' s new counselor, Venier, submitted a written report to

Auburn Youth Resources, expressing her ethical concerns about Breitung' s relationship with

Phillips.   Three days later, on September 24, Rosenthal spoke with Venier, who ( 1) did " not feel

that there [ was] an inappropriate relationship" between Breitung and Phillips, and ( 2) reported

Breitung' s desire      to live      with   Phillips    and   his    wife, whom           Breitung " fe[ lt] would be a great

support."     CP at 637.


           On September 30, Breitung' s mother filed an objection to Breitung' s placement with the

Phillips    family.        Breitung' s mother expressed concerns about Breitung' s relationship with

Phillips    given   that   Breitung had " told         people of        dreams     involving [ Phillips]" and that Breitung

wanted     to spray    perfume in his       office so   that he     would     think   of   her. CP     at   673. In response, the


juvenile court ordered Breitung to remain in DSHS custody and scheduled a hearing for

November 3.


           On October 15, Rosenthal told Breitung that she would approve Breitung' s placement

with   the Phillips        family.    Breitung    moved       in    with   the Phillips       family    the    next    day.   Shortly

thereafter, Phillips started touching Breitung inappropriately while she was making dinner at the

Phillips' home; Breitung ignored him. A few days later, while watching a movie, Phillips started

touching Breitung           and   tried to kiss her;     she went         back to her       room and        felt "   super awkward"



because     she wanted        to stay   with   the Phillips         family    and    did   not "   want [ her placement] to be


ruined.      CP   at   710.   The    next   time Phillips tried to kiss            Breitung,   she   did    not   turn away.    After


that incident,      they kissed " every       now and again."            CP   at   710.    And it was not before long before

they " just   ended    up   having    sex."    CP at 711.




                                                                    5
No. 45123 -9 -II



          On November 3, the juvenile court held a hearing to address Breitung' s mother' s


contested placement of Breitung with the Phillips family. Breitung' s mother expressed concerns

about Breitung' s placement with the Phillips and opined that Breitung should be in a more

 neutral setting" where she did not have a lot of confused emotions and an unhealthy attachment

to the   placement.       CP    at   539.   Rosenthal did not mention Venier' s concerns about Breitung' s

placement with       Phillips; instead,          she recommended        the Phillips   placement.   Breitung told the

court that things were " going really well" with the Phillips family and that this placement was

the " best   one"   she   had   ever    had. CP     at   440. The juvenile court stated it had no concerns about


the placement, noting that while there is always a risk of improper attachment between an older

foster child and a foster parent, such risk was minimal. The juvenile court signed and entered the


order placing Breitung with the Phillips family.

          On November 16, Phillips'                wife called Rosenthal, informing Rosenthal that she and

Phillips would be filing for divorce and that Phillips would be moving out of the home because

Phillips had told her that he            was     having   an affair.   Breitung then told Phillips' wife about her

sexual    relationship    with       Phillips.   On November 24, Breitung disclosed her sexual relationship

with     Phillips to her Celebrate           Recovery       group.     The next day, Breitung moved out of the

Phillips' home.       On November 25, Phillips' wife reported child sexual abuse to DSHS, and

Rosenthal placed Breitung back into the SKCYS group home. On November 30, CCI terminated

Phillips from his position as counselor.




                                                                6
No. 45123 -9 -II



                                                     III. LITIGATION


            Breitung sued the State of Washington for negligent placement and negligent failure to

protect her; she also sued CCI for negligent hiring, training, and supervision, negligent failure to

protect, and corporate negligence.              CCI moved for summary judgment on grounds that ( 1) there

was no evidence that CCI was negligent in hiring, training, or supervising Phillips; and ( 2) CCI

owed no       duty   to   monitor   Phillips'    conduct     outside   the   scope   of   his   employment.        The next


month,       Breitung     amended       her   complaint      to   name   DSHS        as   a   party,    alleging . negligent


investigation and negligent placement.


            Responding to CCI' s motion for summary judgment, Breitung argued it was foreseeable

that   an   inappropriate      sexual   relationship   would      develop    between her        and   Phillips.   In support,


Breitung submitted a declaration from Sharon Fenton, Clinical Director of Assessment and

Treatment Associates,           which stated     that ( 1)   chemical dependency agencies should be aware of
                           3
  boundary' issues "           where    chemical     dependency       professionals'      ability to empathize and to

identify     with clients can     lead to improper       relationships and conflicts of          interest; ( 2) CCI should


not have permitted Phillips to encourage or to direct clients to a separate Celebrate Recovery

program because it could create a conflict of interest; and ( 3) CCI violated the standard of care in


supervising and retaining Phillips and terminating Breitung' s treatment instead of terminating

Phillips'     employment for disclosing personal information about Breitung to his wife and for

admitted inappropriate social interaction with Breitung outside the counselor -
                                                                              patient relationship.

Breitung also submitted excerpts of Beitler' s deposition, in which Beitler stated she had reported




3CPat1011.


                                                                  7
No. 45123 -9 -II



to CCI her         concerns of an "       inappropriate relationship" between Phillips                 and   Breitung. CP at

270.


            DSHS moved for partial summary judgment asserting ( 1) it was statutorily immune for

its placement recommendations to the juvenile court given that the juvenile court had ordered


Breitung' s    placement with          the Phillips   family; ( 2) the juvenile court' s placement decision was a

superseding,        intervening     act    that   severed   DSHS'     s   liability;    and (   3)   the doctrine of judicial


estoppel prevented Breitung from recovering damages in this lawsuit for the placement decision.

            Breitung responded to DSHS' s motion for partial summary judgment asserting that

Rosenthal' s investigation of the Phillips family was negligent, and that Rosenthal had failed to

inform the juvenile court about her conversations with Venier in which Venier had expressed

concerns about        Breitung' s      and   Phillips' relationship.        Breitung also submitted the declaration of

Barbara Stone, statewide director of all foster and childcare licensing in DSHS' s Children' s

Administration. Stone had reviewed Breitung' s DSHS file and opined that DSHS' s placement of

Breitung in        the Phillips' home        violated   state   law   and   DSHS'      own policies.       Stone .stated that a


child' s expressed preference for a particular placement does not negate DSHS' s duty to

investigate.        Stone also opined that Rosenthal' s home study of Phillips did not comply with

DSHS policies because she ( Rosenthal) did not complete her placement checklist, did not fill out

a placement         agreement     at    the time    of placement,         and   did    not   investigate "   boundary issues"

between Phillips and Breitung, such as Phillips' giving Breitung his personal cell phone number.

CP     at   744.    Stone further declared that although Rosenthal recognized an ethical conflict for

Phillips to have custody of Breitung, Rosenthal did not personally check with CCI about this

conflict, relying instead on Philips' representation that ethical conflict was not a problem.



                                                                 8
No. 45123 -9 -II



          At the summary judgment hearing, the superior court orally ruled that the main issue with

Breitung' s      claim against          CCI   was   foreseeability: Because Breitung was placed with the Phillips

family at her request, Phillips' subsequent sexual conduct was not foreseeable by CCI, especially

where CCI had terminated Phillips' counseling relationship with Breitung two months before the

sexual contact occurred at                 Phillips' home.         Finding no evidence of foreseeability, the superior

court granted CCI' s motion for summary judgment. The superior court also orally ruled that ( 1)
                  5954

RCW 4.24.                has retroactive effect under these circumstances, which provided DSHS with


immunity from Breitung' s lawsuit; ( 2) the juvenile court' s order placing Breitung with Phillips

also   cut   off   DSHS'         s   liability;   and (   3)   Breitung failed to present an issue of material fact to

warrant      a   jury   trial.       The superior court entered a written order granting DSHS' s motion for

partial summary judgment, dismissing all of Breitung' s claims against DSHS arising from

Breitung' s      placement           in the Phillips' home. The superior court also granted CCI' s motion for

                                                                                                                   5
summary judgment,                dismissing       all of   Breitung' s    claims against   CCI   with prejudice.       Breitung

timely appeals.




4
    The   record    incorrectly          references "[     RCW 4.] 24. 959." The correct citation is RCW 4. 24. 595.
See Report of Proceedings at 51.


5 Based on the parties' stipulation, the trial court stayed the following additional claims pending
Breitung' s appeal: the State of Washington' s negligent failure to protect Breitung, negligent
investigation into reports of abuse and neglect by Breitung' s parents, and negligent placement of
Breitung with her mother.



                                                                      9
No. 45123 -9 -II



                                                        ANALYSIS


                                        I. SUMMARY JUDGMENT FOR CCI


         Breitung argues that the superior court erred in granting CCI' s motion for summary

judgment because ( 1)        CCI owed Breitung a legal duty to prevent foreseeable harm, and ( 2)

Breitung presented sufficient evidence below to establish a genuine issue of material fact about

the   foreseeability   of   Phillips'   sexual abuse to overcome dismissal of her negligent hiring,
                                             6
supervision, and retention claims.                We disagree.


                                                   A. Standard of Review


         We review summary judgment de novo, engaging in the same inquiry as the trial court

and viewing the facts and any reasonable inferences therefrom in the light most favorable to the

non - moving party, here, Breitung. Associated Petrol. Prods., Inc.                v.   Nw. Cascade, Inc., 149 Wn.


App.    429, 433 -34, 203 P. 3d 1077 ( 2009).             Summary judgment is proper when no genuine issue

of material fact remains and the moving party is entitled to judgment as a matter of law.

Diamond B Constructors, Inc.            v.       Granite Falls Sch. Dist.,   117 Wn. App. 157, 160 -61, 70 P. 3d

966 ( 2003). " A genuine issue of material fact exists where reasonable minds could differ on the


facts controlling the       outcome of       the litigation."      Ranger Ins. Co. v. Pierce County, 164 Wn.2d

545, 552, 192 P. 3d 886 ( 2008).         To defeat summary judgment, the non -
                                                                             moving party must assert

specific facts and cannot rely on mere speculation. Seven Gables Corp. v. MGM/UA Entm' t Co.,

106 Wn.2d 1, 13, 721 P. 2d 1 ( 1986).




6
    Breitung does not specifically challenge the superior court' s ruling on her negligent hiring,
retention, and supervision claims individually on appeal, instead, she conflates negligent hiring,
supervision, and retention and " collectively refers to [ her claims as] negligent supervision" to

challenge the issues of duty, foreseeability and proximate cause. Br. of Appellant at 23 n.9.


                                                              10
No. 45123 -9 -II




                          B. Negligent Hiring, Supervision, and Retention Claims

          Breitung argues that CCI owed her a legal duty to prevent foreseeable harm and that she

presented sufficient evidence to establish a genuine issue of material fact as to the foreseeability

of Phillips' sexual abuse to overcome summary judgment on her negligent hiring, supervision,

and retention claims. This argument fails.


          It is well settled that an essential element in any negligence action is the existence of a

legal duty that the defendant owes to the plaintiff. Christensen v. Royal Sch. Dist. No. 160, 156

Wn.2d 62, 66, 124 P. 3d 283 ( 2005).                  An individual or entity generally has no legal 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).         Foreseeability

limits the scope of duty owed to a plaintiff. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307

 1989).    A plaintiff' s harm must be reasonably perceived as within the general field of danger

that   should   have been    anticipated.       Id.   A plaintiff alleging sexual misconduct must show that

such conduct was "       reasonably foreseeable,"         and such foreseeability must be based on more than

speculation or mere conjecture.           Kaltreider     v.   Lake Chelan   Cmty. Hosp., 153 Wn. App. 762, 766-

67, 224 P. 3d 808 ( 2009).             In general, foreseeability is a question for the jury unless the

circumstances of      the   inquiry   are "'   so highly extraordinary or improbable as to be wholly beyond

the range    of   expectability. "'    Shepard v. Mielke, 75 Wn. App. 201, 206, 877 P. 2d 220 ( 1994)

 quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 ( 1953)).




                                                               11
No. 45123 -9 -II



                                         1. Negligent hiring; negligent retention

          An employer may be liable to a third person for negligence in hiring or retaining an

employee who         is incompetent         or unfit.      Peck v. Siau, 65 Wn. App. 285, 288, 827 P. 2d 1108

 1992).    To prove negligent hiring or retention, a plaintiff must demonstrate that ( 1) the employer

knew or, in the exercise of ordinary care, should have known of its employee' s unfitness at the

time of hiring or retaining such individual; and ( 2) the negligently hired or retained employee

proximately     caused     the plaintiff' s     injuries.     Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 252-

53, 868 P. 2d 882 ( 1994);         Peck, 65 Wn. App. at 288 -89. Negligent hiring and negligent retention

claims    share     the    same        elements;     the difference is the timing of the employer' s alleged

negligence.     Peck, 65 Wn.            App.   at   288.   With negligent hiring, the negligence occurs at the time

of hiring; with negligent retention, the negligence occurs during the course of employment. Id.
                                                      Rucshner7

          Breitung       mistakenly      relies on                  for the proposition that CCI' s negligent hiring of

Phillips "   enabled or facilitated" the foreseeable consequence of his pattern of violating ethical

boundaries and engaging in sexual relations with her because the facts in Rucshner are
                     8
distinguishable.           Br.    of   Appellant      at   32 (   emphasis    omitted).   In Ruschner we held that a


residential security system company did not perform its contractual duty to conduct a

background check before hiring an employee with a criminal record, who raped a girl when



7
    Ruschner   v.   ADT Sec. Sys. Inc.,         149 Wn. App. 665, 686 -88, 204 P.3d 271 ( 2009).

8 In Ruschner, a security company hired Michael Robinson, who raped a 14- year -old after he met
her making        sales   calls   for the company           at    her home.    Ruschner, 149 Wn.   App.   at   668.   The

security company had a contractual duty to perform criminal background checks on its
employees and had failed to conduct a criminal background check on Robinson that would have
revealed his criminal history of first degree criminal impersonation, third degree theft, possession
of drug paraphernalia, and possession of marijuana. Id. at 673, 682.

                                                                    12
No. 45123 -9 -II



making a sales call to her home. Ruschner, 149 Wn. App. at 681, 682. We reversed the superior

court' s grant of summary judgment to the security company and reinstated the plaintiff' s

negligent   hiring   action.    Id.   at   688.   Here, in contrast, Breitung failed to demonstrate that CCI

knew or should have known of Phillips' unfitness at the time it hired him.

       On the contrary, the record shows CCI verified that Phillips was a certified counselor, a

qualification     required     for the job.        Further, CCI'       s   director, James,   screened    Phillips'   job


application      materials,   interviewed Phillips,        and    contacted     Phillips'   references.     One of the


conditions of CCI employment was passing a criminal background check to ensure the job

applicant did not have any charges for child abuse or solicitation of minors. Unlike the company

in Ruschner, which completely failed to conduct a background check, CCI did run a background

check on Phillips, which revealed only a 1995 misdemeanor conviction for attempted possession

of stolen   property.     At the time of hiring, none of CCI' s inquiries revealed any hint of Phillips'

propensity for sexual abuse of minor. Thus, even taking the evidence in the light most favorable

to Breitung, the record does not support that CCI knew or should have known about Phillips'

unfitness   to   serve as a   juvenile      counselor at   the time it      hired him. We hold, therefore, that the


superior court did not err in dismissing Breitung' s negligent hiring claim on summary judgment.

        Breitung bases her negligent retention claim on CCI' s failure to terminate Phillips'

employment when CCI learned that Phillips had divulged confidential information about

Breitung    to his wife.       But even taken in the light most favorable to Breitung, the facts she

presented     did   not   satisfy the      elements   required    to   prove   her   negligent .retention   claim.    The


record shows that during the course of Phillips' employment, CCI had no reason to know about

his propensity for        sexual   abuse.     On the contrary, during the course of his employment, CCI



                                                             13
No. 45123 -9 -II




learned only that Phillips had inappropriately shared confidential information about Breitung to

his wife in August. And CCI responded to this impropriety by ( 1) filing a critical incident report,

 2) asking Phillips to       provide a       chronology    of events around       his   relationship   with   Breitung, ( 3)

requesting that      Breitung      transfer to   another   treatment agency, (        4) reporting the incident to the

Department      of   Health, ( 5)    telling Phillips it had informed Beitler that she could file a complaint

against him in her capacity as Breitung' s temporary guardian, and ( 6) ordering Phillips not to

have any further contact with Breitung, her caregivers, or any other individuals involved in her
care and   treatment.        At that point in August, CCI had no reason to foresee that Phillips would

disobey this order, that Breitung would later move in with Phillips, or that he would engage in a

sexual   relationship     with     Breitung in his    home. But in November, when CCI later learned about


Phillips' sexual relationship with Breitung, CCI promptly terminated Phillips from his position

as counselor.



         Even taken in the light most favorable to Breitung, her evidence failed to show that CCI

knew or should have known about Phillips' unfitness to serve as a juvenile counselor before


hiring   him   or   during   his   period of employment.             We hold, therefore, that the superior court did


not err in dismissing Breitung' s negligent hiring and retention claims on summary judgment.

                                                 2. Negligent supervision


         Breitung       further     argues    that ( 1)   CCI   was       aware   Phillips had " violated therapeutic


boundaries" before it discharged her as a client; and ( 2) therefore, Phillips' later sexual abuse of

her,   after   her discharge,       was   foreseeable.      Br.      of   Appellant   at   25.   Again, even taking the

evidence in the light most favorable to Breitung, she does not show that Phillips' later sexual

abuse of her, after CCI severed their counseling relationship, was foreseeable.



                                                                14
No. 45123 -9 -II



             A    negligent supervision claim requires                        showing that ( 1)      an employee acted outside the


scope of         his    or    her   employment; (       2) the employee presented a risk of harm to other employees;


 3)   the employer knew, or should have known in the exercise of reasonable care, that the


employee posed a risk to others; and ( 4) the employer' s failure to supervise was the proximate


cause of      injuries to           other employees.           Briggs v. Nova, 135 Wn. App. 955, 966 -67, 147 P. 3d 616

 2006) ( citing Niece, 131 Wn.2d                        at   48 -49), aff'd, 166 Wn.2d 794, 213 P. 3d 910 ( 2009).              Given


Breitung' s argument, we focus on the foreseeability factor; we conclude that the circumstances

in    this       case        were "'    so    highly         extraordinary '          that   they   were "'   beyond   the   range   of


expectability, "'             which     does      not   create    an     issue for the       jury. Shepard, 75 Wn. App. at 206

 quoting McLeod, 42 Wn.2d at 323).

             Citing Smith9 and Kaltreider, CCI contends that an employee' s sexual conduct is not

reasonably foreseeable and an employer does not have a duty to guard against the possibility that

an employee              is   an undisclosed sexual predator.                      The Smith and Kaltreider plaintiffs were both


victims      of sexual abuse             in   a   hospital:      In Smith, a nursing assistant engaged in sexual behavior

with a patient in the psychiatric unit; in Kaltreider, a registered nurse engaged in sexual behavior

with a patient               in   an alcohol      dependency          unit.   Smith, 144 Wn. App. at 540 -41; Kaltreider, 153,

Wn.    App.        at   764.        The Smith court held that the employee' s sexual encounter with a patient in


the workplace was legally insufficient to support a cause of action for negligent supervision,

absent a showing that the employer knew or should have known of the employee' s potential for

sexual       abuse.           Smith, 144 Wn.            App.     at    544.    The Kaltreider court held that the employee' s




9
    Smith    v.   Sacred Heart Med. Ctr.,                    144 Wn. App. 537, 184 P. 3d 646 ( 2008).



                                                                              15
No. 45123 -9 -II



actions were not foreseeable absent any evidence that the employee' s conduct was known or

reasonably foreseeable to the employer. Kaltreider, 153 Wn. App. at 767.

        Like the          Smith   and    Kaltreider        plaintiffs,   Breitung presented no evidence of the

foreseeability of Phillips' later sexual conduct with her in his home, well after CCI terminated

their counseling         relationship.   Rather, she provided Bell' s critical incident report, filed with CCI


on   August 14,      which      included "     concerns"     about Phillips' disclosing confidential information

about Breitung to his wife and Beitler' s expressed concern about Phillips' relationship with

Breitung.     CP    at   950.   Similarly, in her deposition, Beitler testified only that she had expressed
              10
 concerns "        to CCI about an " inappropriate relationship" between Phillips and Breitung, such as

Phillips' disclosing Breitung' s confidential information to his wife and that Breitung had been

spraying     perfume       in Philips'   office, which       behavior    was "    not normal   for   an older man '    who



was "' supposed       to be [ Breitung'   s]       counselor.'    CP at 947 ( emphasis omitted).


        Breitung also presented the deposition of Fenton, Clinical Director of Assessment and

Treatment Associates.           Fenton testified in general that ( 1) chemical dependency agencies should
                                              11
be   aware   of "`   boundary'     issues "         between chemical dependency professional and their clients

because these        can    lead to improper           personal   relationships    and   conflicts   of   interest; ( 2) CCI


should not have permitted Phillips to encourage or' to direct clients to a separate Celebrate


Recovery     program        because it   could create a conflict of        interest; ( 3) it is not the best practice in


substance abuse treatment to assign male counselors to adolescent girls and, if so, such agencies


should train and monitor employees to avoid giving out their personal phone numbers, to restrict



10 CP at 948.

11CPat1011.


                                                                  16
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their    contact    with   clients    outside    the agency,        and   to   recognize     flirtatious behavior; ( 4) CCI


violated the standard of care in supervising and retaining Phillips when it terminated Breitung' s

treatment        instead   of     terminating Phillips'        employment after he admitted . having disclosed

personal    information         about      Breitung   to his   wife    and     admitted     to engaging in " inappropriate


            12
conduct "        with   Breitung —Phillips' giving Breitung his cell phone number, providing her with

transportation, introducing her to his wife, and inviting her to his church fellowship group; and

 5)     a counselor' s duty to a client extends beyond termination of the client because the

Washington Administrative Code ( WAC) prohibits health care providers from having sexual
                                                                                                           13
relationships, with clients         for two    years after   terminating       a   therapy relationship.

          Most of Fenton' s points emphasized the potential for an improper relationship to develop

between a male substance abuse counselor and an adolescent female client and proposed

appropriate       training   to   minimize such problems.             But none of her points showed ( 1) how CCI' s


supervision of Phillips could have prevented his later sexual conduct with Breitung at his home,

long after CCI discharged Breitung as a client and forbade Phillips from having any further

contact with her; or ( 2) how Phillips' later sexual conduct with Breitung was foreseeable.

          Viewing the evidence in the light most favorable to Breitung, we hold that she did not

present sufficient evidence to create a genuine issue of material fact about whether Phillips' later



12
      CP at 1012.

13
      WAC 246 -16- 100( 3)          provides    that   a   health   care provider "        shall not engage, or attempt to
engage, [   in    sexual misconduct] with a            former ...     client ...       within two years after the provider -
        client
patient /           relationship      ends."    The definition of a " health care provider" for purposes of this
regulation includes chemical dependency professionals, mental health counselors, mental health
counselor        associates,      social   workers,    and   social   work         associates.   WAC 246 -16 -020; former
RCW 18. 130. 040( 2)(           a)( xi), (xvi) (2009).




                                                                 17
No. 45123 -9 -II



sexual abuse of Breitung was foreseeable or how this abuse was connected to its earlier

supervision of      him     when   he    was   her ,CCI      counselor.     We hold, therefore, that the superior court


did not err in dismissing Breitung' s negligent supervision claim on summary judgment.

                                   II. PARTIAL SUMMARY JUDGMENT FOR DSHS


          Breitung next argues that the superior court erred in granting partial summary judgment

to DSHS because ( 1) the juvenile court' s November 2009 placement order was not a superseding

cause    that    absolved    DSHS from          liability, ( 2) RCW 4. 24. 595 does not immunize DSHS from

Breitung' s      negligent   investigation       claim,       and (   3)   Breitung was not judicially estopped from

pursuing her sexual abuse claim based on her November 2009 statements to the juvenile court

asking to be       placed    with       the Phillips    family. DSHS responds that it is liable for negligent

investigation only if Breitung produced admissible evidence that DSHS proximately caused the

allegedly harmful placement and that DSHS failed to disclose a material fact to the juvenile

court.    We agree with DSHS that Breitung did not present evidence to show that DSHS' s

allegedly       negligent   investigation       was    the   proximate cause      of   her   placement.   Even taking the

facts in the light most favorable to Breitung, we hold that she failed to establish a causal

connection between the information DSHS brought to the dependency court and Phillips' sexual

abuse of    her    after   the   court placed     her   with    his    family.   Thus, we do not address her separate


immunity and judicial estoppel arguments.

          A claim for negligent investigation arises when the State conducts a biased or incomplete

investigation that     results     in   a   harmful   placement       decision. M.W v.   Dep' t of Soc. & Health Servs.,

149 Wn. 2d 589, 591, 70 P. 3d 954 ( 2003).                    To prevail on a claim for negligent investigation, the


claimant must prove that the allegedly faulty investigation was the proximate cause of the



                                                                  18
No. 45123 -9 -II



harmful     placement.    Petcu     v.   State, 121 Wn.         App.   36, 56, 86 P. 3d 1234 ( 2004).        In a negligent


investigation      claim, proximate         cause   includes two        elements:     cause in fact and legal cause.


Ruschner, 149 Wn.         App.    at     686.   Cause in fact     refers   to the   actual, "   but for,"   cause of injury,

which involves a determination of some physical connection between an act and an injury that is

generally left to the     jury.   Id.      Legal causation rests on policy considerations about how far the

consequences of the defendant' s acts should extend; and it focuses on whether, as a matter of


policy, the connection between the ultimate harm and the defendant' s act is too remote or

insubstantial to impose         liability. Id.      at   687.    In a lawsuit based on negligent investigation, a


caseworker may be legally responsible for a child' s placement if the court has been deprived of a

material    fact   as a result of   the    caseworker' s    faulty     investigation.    See Tyner v. Dep' t of Soc. &

Health Servs., 141 Wn.2d 68, 86, 1 P. 3d 1148 ( 2000).                     Otherwise, court intervention operates as


a superseding intervening cause that cuts off the caseworker' s and his or her agency' s liability.

Tyner, 141 Wn.2d at 88 ( no- contact order operates as superseding intervening cause, cutting off

agency' s liability).

          Breitung argues that the November 2009 court placement order was not a superseding

cause that absolved DSHS from liability because she presented evidence that her DSHS

caseworker, Rosenthal, withheld material information from the court, namely that Breitung' s

new mental health counselor, Venier, had expressed concerns about Breitung' s placement with

Phillips.    Stone, who testified in support of Breitung' s summary judgment motion, had reviewed

Breitung' s DSHS file and opined that DSHS' s proposed placement of Breitung in the Phillips'

home   violated state     law   and      DSHS'   s own policies.        Stone further opined that Rosenthal' s home


study of the Phillips family was not in compliance with DSHS policies because Rosenthal did



                                                                 19
No. 45123 -9 -II



not complete her placement checklist, did not .fill out a placement agreement at the time of

placement,     and   did   not   investigate Phillips'             patient "
                                                         counselor -            boundary   issues."      CP at 744.


Stone stated that Rosenthal recognized it was an ethical conflict for Phillips to have custody of

Breitung, that Rosenthal did not personally check with CCI about the conflict, and that she

instead relied on Phillips' representation that it was not a problem. Further, although Venier had


told Rosenthal in September that she was concerned about Breitung' s relationship with Phillips

and Breitung' s desire to live with Phillips and his wife, Rosenthal did not relate to the court any

of   her   conversation    with   Venier.    Stone also stated that a child' s expressed preference for a


particular placement does not negate DSHS' s duty to investigate.

           The record shows, however, that DSHS' s concerns about Phillips were brought to the


juvenile court' s attention.14 The record does not show that DSHS withheld from the juvenile

court   any   material   fact it had   gathered   from its investigation   of   the Phillips   family.   In the end,


there were few placement options available for Breitung, and the juvenile court placed Breitung

with the Phillips family. Accordingly, there was no genuine issue of material fact about whether

Rosenthal' s allegedly negligent investigation proximately caused Breitung' s placement with the




14 For example, the juvenile court was aware of Breitung' s mother' s objection to Breitung' s
placement with the Phillips family, which matter it addressed at the November 3 hearing.
Breitung' s mother' s objection included: Breitung' s telling people that she had dreams about
Phillips and wanted to spray perfume in his office so he could think of her; her ( Breitung' s
mother' s) belief that Breitung had an unhealthy attachment to Phillips; and her ( Breitung' s
mother' s) opinion that placing Breitung with him and his wife would not be stable and would
lead to problems. Rosenthal told the juvenile court that she did not see any particular attachment
between Breitung and Phillips; but Rosenthal did not tell the court that Venier had expressed
concerns about Breitung' s placement with Phillips.   Nevertheless, the court had already heard
similar concerns from Breitung' s mother and had addressed them at the hearing.

                                                          20
No. 45123 -9 -II



Phillips   family. We hold that the superior court did not err in ruling that the November 2009

court placement order was a superseding cause that absolved DSHS from potential liability.

           We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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