Niece v. Elmview Group Home , 131 Wash. 2d 39 ( 1997 )

Johnson, J.

(concurring in part, dissenting in part) — I concur with the majority’s resolution of the special relationship and negligent supervision issues. However, I disagree with the majority’s conclusion that a theory of vicarious liability based upon a nondelegable duty of care is incompatible with existing Washington law. Therefore, I would hold Niece stated a valid cause of action of vicarious liability based on Elmview’s nondelegable duty of care.

As noted by the majority, Washington courts have historically held common carriers vicariously liable based on the nondelegable duty of care owed to their passengers. Marks v. Alaska S.S. Co., 71 Wash. 167,127 P. 1101 (1912); Kelly v. Navy Yard Route, 77 Wash. 148, 149, 137 P. 444 (1913). In 1967, this court extended the applicability of the nondelegable duty theory to the public school context, holding a school district liable for the negligent acts of a volunteer agent. Carabba v. Anacortes Sch. Dist. No. 103, 72 Wn.2d 939, 957-58, 435 P.2d 936 (1967). There, the plaintiff, a student athlete, alleged his severe injuries were the result of the negligence of the school district’s volunteer official. Carabba, 72 Wn.2d at 940-41. This court held the school district owed student athletes a nondelegable duty of protection and adopted the Restatement (Second) of Agency § 214 (1958). Carabba, 72 Wn.2d at 957-58.

Section 214 states:

A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.

Restatement (Second) of Agency § 214 (1958). Comment a to § 214 goes on to state:

Unless one has directed a specific tortious act or result, or has been negligent, he is normally not responsible for the conduct of others, except that of his agents or servants acting within the scope of their employment. By contract, however, or by entering into certain relations with others, a person may become responsible for harm caused to them by conduct of his agents or servants not within the scope of employment, the extent of this liability depends upon the duty assumed.

Restatement (Second) of Agency § 214 cmt. a (emphasis added). Regardless of the protestations of the majority, applying this previously recognized theory in the context of assaults by the employees of group homes for disabled residents is neither contrary to nor an expansion of existing Washington law.

The plain language of section 214 and comment a apply to the facts of this case. As recognized by the majority in the first part of its opinion, group homes for the developmentally disabled owe a duty of care to their vulnerable residents based on the special relationship between the group home and its residents. Majority at 51. This special relationship recognized by the majority is one of those "certain relations” listed in comment a to section 214. This special relationship certainly is more compelling than the special relationship present in the common carrier and school district cases where this court has previously applied section 214. The majority explicitly makes this point:

The special relationship between Elmview and its vulnerable residents is perhaps more significant, for purposes of Elmview’s duty of care, than the recognized special relationships between a common carrier and its passengers or between a hotel and its guests. As noted earlier, these special tort duties are based on the liable party’s assumption of responsibility for the safety of another. Passengers and hotel guests are merely away from familiar surroundings and relying on their hosts to take the same reasonable precautions that they would take at home. Profoundly disabled persons are totally unable to protect themselves and are thus completely dependent on their caregivers for their personal safety.

Majority at 46 (citation omitted) (footnote omitted). The special relationship between Elmview and Niece requires that Elmview be held responsible for the harm caused by its employee, despite the fact the harm was the result of conduct outside the scope of employment. Because of the compelling nature of the special relationship in this case and the plain language application of section 214 to the facts of this case, I am hard pressed to see how the majority can claim the application of section 214 is incompatible with Washington law. Rather, Washington law mandates application of section 214 in this context.

I am also not convinced that we must defer to the Legislature because of the dire consequences of recognizing this theory of liability predicted by the majority. While I agree that questions of pubic policy are properly left to the Legislature, the Legislature has already addressed the issue of protecting the rights of the disabled living in group homes. In RCW 70.129.130 and RCW 74.15.010 the Legislature has clearly identified the right of the developmentally disabled to have their health, safety, and well being safeguarded, including the right to be free from sexual abuse, as matters of important public policy. This court has often recognized its role to protect the rights of individuals from tortious acts in contravention of recognized public policy. See, e.g., Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996). In light of our prior case law and the Legislature’s recognition of this important public policy, I would protect the rights of the developmentally disabled by applying section 214 to group homes providing care to the developmentally disabled.

In this case, the majority is abdicating its role of protector of the rights of individuals in the face of an explicit articulation of public policy by the Legislature. I would recognize a theory of liability, based on the nondelegable duty of care owed by group homes to their developmentally disabled residents, for the tortious acts of the home’s employees regardless of whether those acts are within the scope of employment. The majority expresses concern that the application of the nondelegable duty theory in this context will result in unchecked potential liability for all employers. This concern is misplaced. First, the application of this theory is severely limited by the special relationship requirement and does not broaden potential liability for all employers. Second, the recognition of a special relationship imposing a nondelegable duty of care in this case is limited to the context of group home providers for the disabled. Whether this theory applies to broader situations, such as employees of all health care employers, is a question not presently before this court and best left for another day.¹⁷ Therefore, I dissent.

Alexander and Sanders, JJ., concur with Johnson, J.

17 See Adam A. Milani, Patient Assaults: Health Care Providers Owe a NonDelegable Duty to Their Patients and Should be Held Strictly Liable for Employee Assaults Whether or Not Within the Scope of Employment, 21 Ohio N.L. Rev. 1147 (1994).