Appeal from Superior Court of Yakima County. Docket No: 93-2-01553-3. Date filed: 07/26/94. Judge signing: Hon. Susan Hahn.
Rehearing Denied July 8, 1997,
Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Ray E. Munson.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Kathleen Sanders emptied garbage containers as part of her job for the State of Washington. In 1988 she was pricked by a hypodermic needle while emptying a garbage bag. After she was again pricked in 1991, Ms. Sanders told her immediate supervisor she would no longer handle garbage bags because they posed a serious health hazard. The State reduced her pay for four months and eventually suspended her for two weeks without pay. Ms. Sanders filed a complaint with the Department of Labor and Industries. The hearings examiner concluded it was unreasonable for Ms. Sanders to refuse to perform her duties because the hypodermic needles did not constitute an abnormal danger or pose an imminent risk of serious bodily injury. The Personnel Appeals Board and the Thurston County Superior Court upheld the hearings examiner's ruling.
Ms. Sanders sued the State for retaliatory employment practices and negligent infliction of emotional distress. After a trial date was set and a jury was selected, the State moved in limine to preclude Ms. Sanders from presenting any evidence challenging the appropriateness or safety of the work site. The court ruled the doctrine of collateral estoppel precluded the admission of the evidence. It also ruled that Ms. Sanders had to demonstrate actual exposure to AIDS or hepatitis B to support her claim for negligent infliction of emotional distress and could not rely on evidence showing only a fear of contracting the diseases. Ms. Sanders voluntarily dismissed her retaliation claim. The court dismissed her claim for negligent infliction of emotional distress. She appeals.
Collateral Estoppel. Ms. Sanders first argues the court erred in applying the doctrine of collateral estoppel because the factual and legal issues addressed by the Personnel Appeals Board differ significantly from the issues to be addressed at trial. She asserts the administrative determination that her working conditions did not constitute an abnormal danger is not tantamount to a finding that her work place was safe. We disagree.
The elements of collateral estoppel are: (1) identical issues; (2) final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to the prior adjudication; and (4) the application of the doctrine does not work an inJustice on the party against whom it is to be applied. Department of Ecology v. Yakima Reservation Irrigation Dist., 121 Wash. 2d 257, 296, 850 P.2d 1306 (1993). To be precluded, issues must have actually been litigated and necessarily determined in the prior action. Peterson v. Department of Ecology, 92 Wash. 2d 306, 312, 596 P.2d 285 (1979). When an administrative agency has made a prior adjudication, collateral estoppel is proper if the agency "resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate . . . ." State v. Dupard, 93 Wash. 2d 268, 274, 609 P.2d 961 (1980) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966)).
At the administrative proceeding, the issue was whether Ms. Sanders had a right to refuse to perform assigned tasks because her work conditions were so unsafe she faced a real danger of death or serious injury. Ballinger v. Department of Social & Health Servs., 104 Wash. 2d 323, 329, 705 P.2d 249 (1985). It would not be enough to show the job has inherent dangers that factor is reflected in the job's pay scale rather, the danger must be abnormal and imminent. Id. at 330. The hearings examiner heard the testimony of 7 witnesses and considered more than 20 exhibits. Evidence was presented concerning specific steps the State took to minimize its employees' exposure to AIDS and hepatitis B from hypodermic needles. The hearings examiner concluded that Ms. Sanders' refusal to perform her duties was unreasonable because the presence of needles was not an abnormal danger creating an imminent risk of serious bodily injury. *fn1
On the State's motion, the trial court precluded Ms. Sanders from presenting any evidence "challenging the appropriateness or safety of the plaintiff's worksite . . . ." That evidence related to the very issue presented to and decided by the hearings examiner. Both parties had an opportunity at the administrative hearing to litigate the disputed issue. Dupard, 93 Wash. 2d at 274. The court, therefore, did not err in applying the doctrine of collateral estoppel to bar the admission and relitigation of whether Ms. Sanders' working conditions were abnormally dangerous.
Ms. Sanders also argues the court erred in applying the doctrine of collateral estoppel because it works an inJustice. She argues that even if the administrative hearing provided an adequate opportunity to litigate her claim, she had no incentive because her "sole savings" was two weeks' pay. Again, we do not agree.
The application of collateral estoppel does not depend on a party's incentive to aggressively litigate a claim. It depends instead on whether the parties had a full and fair hearing on the issue in dispute. Neff v. Allstate Ins. Co., 70 Wash. App. 796, 801, 855 P.2d 1223 (1993), review denied, 123 Wash. 2d 1004 (1994). An administrative proceeding can be a basis for the application of the doctrine of collateral estoppel if the plaintiff received notice, had an opportunity to present evidence and legal argument, and there was finality to the administrative proceeding. Id. at 801.
There are also policy considerations which militate in favor of the preclusive effect of collateral estoppel. If we refuse to apply collateral estoppel, we undermine the integrity of the administrative process. Allowing Ms. Sanders to relitigate an issue reduces the administrative process to a practice session or a rehearsal. Application of the doctrine of collateral estoppel does not result in an inJustice. See Shoemaker v. City of Bremerton, 109 Wash. 2d 504, 508-13, 745 P.2d 858 (1987) (holding that an administrative determination of fact is entitled to collateral estoppel effect in a subsequent civil suit).
Negligent Infliction of Emotional Distress. *fn2 Ms. Sanders next contends the court erred in holding that she could not introduce evidence of her fear of contracting AIDS or hepatitis B unless she could demonstrate actual exposure to the diseases. We do not see this issue as dispositive.
Washington recognizes the tort of negligent infliction of emotional distress, but emotional distress is a fact of life and there are limitations on liability arising from the fundamental concept of negligence. Hunsley v. Giard, 87 Wash. 2d 424, 435, 553 P.2d 1096 (1976); Bishop v. State, 77 Wash. App. 228, 233, 889 P.2d 959 (1995). Negligence "is conduct which falls below the standard established by law for the protection of others against unreasonable risk. It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger." Hunsley, 87 Wash. 2d at 435 (quoting William L. Prosser, Handbook of the Law of ...