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Niece v. Elmview Group Home

January 16, 1997


Appeal from Superior Court, Kittitas County. 93-2-00062-9. Honorable Michael Leavitt, Judge. Judgment Date: 12-23-94.

As Corrected January 31, 1997.

Authored by Barbara Durham. Concurring: James M. Dolliver, Charles Z. Smith, Richard P. Guy, Barbara A. Madsen, Philip A. Talmadge. Dissenting: Charles W. Johnson, Gerry L. Alexander, Richard B. Sanders.

The opinion of the court was delivered by: Durham

En Banc

DURHAM, C.J. -- A developmentally disabled woman brought this action for damages against a private group home after she was sexually assaulted by a staff member at the home. We are asked to determine the tort theories under which a group home for developmentally disabled persons may be liable for such assaults. We hold that (1) the special relationship between the group home and its vulnerable residents gives rise to a duty of reasonable care, owed by the group home to its residents, to protect the residents from all foreseeable harms, and (2) sexual assault by a staff member is not a legally unforeseeable harm.

Our recognition of this tort duty makes it unnecessary to determine the precise boundaries of a cause of action based on the theory of negligent supervision. We also decline the invitation to adopt a more expansive "nondelegable duty" theory of vicarious liability announced in a recent Indiana case, Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244 (1989). This theory would impose essentially strict liability for an employee's intentional or criminal conduct. We are unable to determine the public policy consequences of such a major change in Washington employer liability and therefore reserve such considerations of public policy for the Legislature.


Lori Niece suffers from cerebral palsy and has profound developmental disabilities including difficulty with mobility and communication. She has the mental abilities of a very young child. Since 1986, Niece has been a resident at Elmview Group Home, a licensed private provider of residential care for persons with developmental disabilities.

Niece was sexually assaulted on more than one occasion by an Elmview employee, Kleber Quevedo. Prior to the discovery of Quevedo's assaults, Elmview had no knowledge of his dangerous propensities. Quevedo had no criminal history and had received favorable references from another group home where he had previously worked.

At the time of the assaults, Quevedo was the only Elmview staff member on duty. Elmview previously had a policy against male staff members being left alone with female residents. This policy, adopted in response to prior sexual assaults on residents by another Elmview employee, was intended to protect both staff and residents. By the time of Quevedo's assaults on Niece, Elmview had abandoned this policy. Niece's expert, the former medical director of a large public facility for developmentally disabled persons, opined that permitting such unsupervised contact with residents violated the standard of care for group homes with disabled residents.

Niece pursues this action against Elmview under several tort theories. Niece alleges that (1) Elmview breached its duty to protect her from foreseeable harms, (2) Elmview had been negligent in its supervision of Quevedo, and (3) Elmview was vicariously liable for Quevedo's actions, even though he was not acting within the scope of employment, due to Elmview's nondelegable duty to protect its residents. The trial court dismissed all of Niece's claims.

The Court of Appeals affirmed the dismissal of Niece's claims for negligent supervision and vicarious liability. The Court of Appeals reversed the dismissal of Niece's negligence claim and held that Elmview had a duty to protect Niece from foreseeable harms including sexual assaults by staff. Niece v. Elmview Group Home, 79 Wash. App. 660, 668-69, 904 P.2d 784 (1995). We granted both parties' petitions for review. PROTECTIVE SPECIAL RELATIONSHIP

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.'" Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash. 2d 217, 227, 802 P.2d 1360 (1991) (quoting Petersen v. State, 100 Wash. 2d 421, 426, 671 P.2d 230 (1983)); Lauritzen v. Lauritzen, 74 Wash. App. 432, 438-39, 874 P.2d 861, review denied, 125 Wash. 2d 1006, 886 P.2d 1134 (1994). A duty arises where:

(a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or (b) a special relation exists between the [defendant] and the other which gives the other a right to protection. Petersen, 100 Wash. 2d at 426 (quoting Restatement (Second) of Torts sec. 315 (1965)). Niece's negligence claims are based on both types of special relationship. Niece's negligent supervision claim (discussed in the next section) is based on the relationship between Elmview and its employee Quevedo. Niece's claim for Elmview's negligent failure to protect her is based on the relationship between Niece and Elmview.

Many special relationships give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties. For example, a school has a duty to protect students in its custody from reasonably anticipated dangers. McLeod v. Grant County Sch. Dist. No. 128, 42 Wash. 2d 316, 320, 255 P.2d 360 (1953). See also J.N. ex rel. Hager v. Bellingham Sch. Dist. No. 501, 74 Wash. App. 49, 871 P.2d 1106 (1994); Briscoe v. School Dist. No. 123, 32 Wash. 2d 353, 201 P.2d 697 (1949). The rationale for such a duty -- the placement of the student in the care of the defendant with the resulting loss of the student's ability to protect himself or herself -- is also the basis for the similar duty of an innkeeper to protect guests from the criminal actions of third parties. Hutchins, 116 Wash. 2d at 228 (citing Joseph A. Page, Premises Liability sec. 11.2, at 292 (2d ed. 1988)).

Other relationships falling into the general group of cases where the defendant has a special relationship with the victim are also protective in nature, historically involving an affirmative duty to render aid. The defendant may therefore be required to guard his or her charge against harm from others.

Thus a duty may be owed from a carrier to its passenger, from an employer to an employee, from a hospital to a patient, and from a business establishment to a customer. Hutchins, 116 Wash. 2d at 228 (citing W. Page Keeton et al., Prosser and Keeton on Torts sec. 56, at 383 (5th ed. 1984)). *fn1 The special relationship which is most analogous to the relationship at issue here is the relationship between a hospital and its patients. In Hunt v. King County, 4 Wash. App. 14, 481 P.2d 593, review denied, 79 Wash. 2d 1001 (1971), a disturbed and suicidal patient was admitted to the psychiatric ward of a county hospital. The patient was injured when he found an open window and jumped five stories to the ground. The Court of Appeals held that the hospital owed the patient a duty of care which included a "duty to safeguard the patient from the reasonably foreseeable risk of self-inflicted harm through escape." Hunt, 4 Wash. App. at 20.

In Shepard v. Mielke, 75 Wash. App. 201, 205, 877 P.2d 220 (1994), the Court of Appeals recognized that a convalescent center had a general duty to protect its vulnerable residents. The plaintiff in Shepard had suffered brain damage and was entrusted to Manor Care, a convalescent center, where she was sexually assaulted by a visitor. The Court of Appeals observed that Ms. Shepard could not lock her door, screen visitors, or generally provide for her own safety. She was in Manor Care precisely because she was unable to perform these tasks for herself. Manor Care, like other nursing homes, holds itself out to the public as willing and able to provide these services, for a fee. Shepard, 75 ...

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