Opinion
65879-4-I
05-14-2012
KEITH A. BROWN, Appellant and Cross Respondent, v. CHRYSALIS SCHOOL, INC., a Washington corporation, Respondent and Cross Appellant.
UNPUBLISHED OPINION
Schindler, J.
Keith A. Brown filed a lawsuit against Chrysalis School Inc. for defamation, intentional and negligent infliction of emotional distress, and tortious interference with his relationship with his daughter allegedly caused by statements school staff made to the court-appointed parenting evaluator in a parenting plan modification proceeding. Brown appeals summary judgment dismissal of the lawsuit. Chrysalis School cross appeals denial of summary judgment on the grounds that the doctrine of witness immunity for statements made in a court proceeding precludes civil liability. We affirm dismissal of the lawsuit.
FACTS
Keith A. Brown and Rebecca Garth married in 1986 and have two children, A.B. and C.B. The couple divorced in November 1998, and entered into a parenting plan that provided for joint custody and joint decision-making. Brown and Garth often disagreed about the terms of the parenting plan, resulting in mediation and litigation.
In March 2005, Garth filed a petition for modification of the parenting plan to limit Brown's residential time and eliminate joint decision-making authority. The court appointed Dr. Marsha Hedrick as a parenting evaluator to conduct an independent investigation and make recommendations regarding the parenting plan. Dr. Hedrick is a clinical psychologist specializing in forensic psychology. Dr. Hedrick has been evaluating parents for over 20 years and has performed nearly 500 evaluations. The order appointing Dr. Hedrick sets forth her duties as the parenting evaluator. The order states, in pertinent part:
3.2 DUTIES OF THE PARENTING EVALUATOR/GUARDIAN AD LITEM.
The parenting evaluator/guardian ad litem shall investigate and report factual information to the court concerning parenting arrangements for the child(ren), and shall represent the child(ren)'s best interests. The parenting evaluator/guardian ad litem may make recommendations based upon an independent investigation regarding the best interests of the child(ren). The parenting evaluator/guardian ad litem shall report a child(ren)'s expressed preferences regarding the parenting plan to the court, together with the facts relative to whether any preferences are being expressed voluntarily and the degree of the child(ren)'s understanding.
The order authorizes Dr. Hedrick to obtain records and information from a number of sources.
3.4 PARENTING EVALUATOR/GUARDIAN AD LITEM ACCESS TO CHILD(REN), RECORDS AND INFORMATION.
To facilitate reasonable investigation of information pertaining to the best interest of the child(ren), the parenting evaluator/guardian ad litem shall have access to the child(ren) and to all records and information, including authorization to speak with interested persons, from the following sources: law enforcement agencies; Child Protective Services (or the equivalent out-of-state agency); health care providers; mental health care providers; child care providers; the Department of Social and Health Services (or the equivalent agency in another state); and educational institutions.
Dr. Hedrick interviewed Brown on at least three separate occasions, and interviewed Garth, 15-year-old A.B., and 12-year-old C.B. at least two times. Dr. Hedrick also interviewed a number of other individuals, including the therapists for Brown, Garth, A.B., and C.B.; a former teacher for both children; and the current school counselors for each child.
On February 23, 2006, Dr. Hedrick issued a 20-page "Parental Access Evaluation." The first half of the report describes the interviews with Brown and Garth, and describes their marital history and parenting concerns. The report then describes the interviews with a former teacher, the current school counselors, and Garth's spouse Ed Garth, followed by a description of the interviews with A.B. and C.B.
A.B. and C.B.'s former teacher, Robert Whittemore, told Dr. Hedrick that the children did not perform as well as expected academically.
The tension between the two parents made it difficult. . . . Both children felt very frustrated with going back and forth and there was not a normal flow of information. . . . Neither kid did as well as they could but they were doing the best they could to cope and that's all they could do. . . . Both [parents] looked at information as something to be used, but Rebecca less than Keith. . . . My heart wept for these kids.
(Internal quotation marks omitted) (brackets in original).
The interview with A.B.'s current school counselor, Shannon Murdoch, and two other staff members at Chrysalis School, Wanda Metcalf and Colleen Holder, was conducted by phone. At the beginning of the interview, Murdoch told Dr. Hedrick that Brown sent an e-mail rescinding his permission for the school staff to talk to Dr. Hedrick. The report states that Dr. Hedrick reassured Murdoch, Metcalf, and Holder that "there was a court order allowing access to school personnel and mental health professionals."
The e-mail from Brown states:
I am rescinding permission for you to communicate with the court psycholigist [sic] until this issue is resolved. I assumed incorrectly that Chryslais [sic] recognized that [A.B.] has two parents with equal decision making authority. If you are Rebecca's contact person and not mine, as Wanda claims, then it is detrimental to me for you to provide any input to the court appointed psychologist.
Metcalf told Dr. Hedrick that Brown "calls all the time and emails constantly. He's concerned that Rebecca is making disparaging comments about him. . . . [H]e makes it sound like he wants to talk about [A.B.] but he really wants to find out exactly what his ex-wife has been saying."
(Internal quotation marks omitted) (ellipses in original).
When Dr. Hedrick asked Murdoch about A.B., Murdoch said that A.B. was "doing very well. . . . She's turning in homework on time, she's participating more. It's a big improvement." Dr. Hedrick then asked Murdoch whether A.B. had said anything about the situation with her parents. In response, Murdoch told Dr. Hedrick about an occasion when Brown dropped off a book for A.B. at the front desk and school staff told Murdoch that A.B. was "not excited, she was ambivalent about it." Murdoch also described talking to A.B. before the meeting that had been scheduled at Brown's request to discuss A.B.'s college plans. Murdoch said that at the end of the meeting, A.B. "pushed in her chair and asked if she needed to be involved in the meeting [with her parents.] 'I'd really rather not be there. I haven't seen my dad in a while and I don't want to be there. . . . Do you have to have it on a day I'm here?' "
(Internal quotation marks omitted) (ellipses in original).
(Internal quotation marks omitted.)
(Internal quotation marks omitted.)
A.B. and C.B. each described Brown as controlling and angry, and told Dr. Hedrick that they no longer communicated with Brown. A.B. said that she wanted "minimal contact but not no contact" with Brown. C.B. described a number of altercations with Brown and said he did not want to have contact with his father.
(Internal quotation marks omitted.)
Brown acknowledged that A.B. and C.B. refused to have contact with him. Brown admitted to Dr. Hedrick that he had made poor parenting decisions, but he blamed Garth for the deterioration in his relationship with A.B. and C.B.
In the discussion section of the report, Dr. Hedrick rejected Brown's view that Garth was responsible for the breakdown in his relationship with the children. To the contrary, Dr. Hedrick concluded that "a consistent picture did emerge that suggested these children are primarily reacting to their father's behavior in deciding not to spend time with him."
Keith appears to have a long history of acting-out in angry, poorly controlled ways. He acknowledges some of the information, but is apt to be falsely denying substantial amounts. He acknowledges sending a letter to a former friend and neighbor that is replete with vindictive information and accusations and was sufficiently alarming that law enforcement was notified. He admits to a physical altercation with his mother, but the children credibly describe other instances in which he and his mother were engaged in threatening, angry behavior. He acknowledges one instance of hitting Rebecca but Rebecca gives compelling descriptions of many other instances of intimidating and threatening behavior. He states that Rebecca hit him in the incident in her garage but Ed Garth convincingly describes Keith's angry, uncontrolled behavior, as well as an additional incident in the courthouse. Keith acknowledges three instances of physically grabbing or hitting [C.B]. However, he rationalizes his behavior as being necessitated by [C.B.]'s behavior, even while stating that he "did something that in retrospect was not the best way to handle it." The incident in the Raintree Café is particularly significant in that it was observed by strangers who were so concerned with Keith's behavior, they called 911. Only considering the incidents that Keith acknowledges, there is a clear pattern of angry, unpredictable behavior that is, however apt to be merely the tip of the iceberg.
The other evidence that strongly suggests alienation is not likely to be the source of the children's refusal to see their father is the behavior of the children and their relationship with their mother. During this evaluation, the children's anger about their father's behavior centered on incidents that involved only themselves and Keith, not their mother.
As an example of Brown's "pattern of interaction, " Dr. Hedrick pointed to his "recent interactions" with the Chrysalis School personnel.
Staff at Chrysalis School, in talking about recent interactions with Keith, provided a microcosm of Keith's pattern of interaction with those around him. He projects onto Rebecca his own anger and manipulativeness, believes she is making disparaging statements about him, interacts with the school as though this is the case, and ends up alienating them with his own behavior and attempts to control their view of him. This is Keith's self-defeating pattern and it is unlikely to change in the near future.
Dr. Hedrick addresses the harm to the children caused by the conflict created by Brown as follows:
The other compelling evidence in this case is the extent to which these children are being harmed by the ongoing conflict. . . . [T]he data strongly suggests that the two parents are not equally responsible. Rebecca has certainly erred at times and involved the children in the conflict in unfortunate ways. However, given the unrelenting nature of Keith's attempts to involve himself with her and engender conflict around every decision, it is somewhat surprising that she has not erred more often.
Virtually every important arena of [A.B.] and [C.B.]'s development has been impacted by their father's need to create conflict and control their lives. Their academic performance, emotional development, peer relationships, and participation in extracurricular activities have all been impacted. In addition, the financial hemorrhaging created by Keith's litigiousness is further destabilizing the security of their home life and their future. During this evaluation Keith verbalized an awareness that his pattern of litigating had been problematic and stated an intent to avoid litigation in the future. However, he then filed a contempt motion against Rebecca for failing to force [C.B.] to spend time alone with him and for taking [A.B.] to see a therapist without his permission. This therapy had been court ordered and documentation was provided by Rebecca that indicated Keith had previously agreed to Dr. Antony as [A.B.]'s therapist in an email communication.
Dr. Hedrick recommended the court eliminate Brown's residential time with the children and enter a restraining order "preventing Keith from having contact of any kind with these children or their mother and stepfather or any professionals involved with them."
In light of the above considerations, it is recommended that the court take a firm position that protects these children from the current level of stress and turmoil that they are experiencing. Although most circumstances, even highly conflicted cases, warrant strenuous efforts to preserve children's contact with both parents, this does not seem possible or desirable in this case. These children need respite. It is therefore recommended that there be minimal contact between Keith and either child for the time being. It is specifically recommended that this not be a matter of choice for either child because to leave the decision up [to] them, would be to leave open the possibility that Keith will pressure them about a decision. The recommendation is that Keith and the children have lunch together on one Saturday a month for an hour and a half. The schedule should be set rigidly, i.e. the third Saturday. . . .
In addition to there being no residential time for the children with their father, it is also recommended that there be a restraining order preventing Keith from having contact of any kind with these children or their mother and stepfather or any professionals involved with them other than as outlined above. Each month, the GAL [(guardian ad litem)] should contact Rebecca and the children's school counselors by phone for a brief update on how the children are doing and any substantive changes with regard to their health, school situation, or extra-curricular activities. The GAL could then send a brief letter to Keith updating him with regard to the children's situation.
Dr. Hedrick also strongly recommended that the court give sole decision-making authority to Garth.
In concert with the above recommendations, it is strongly recommended that Rebecca have sole decision-making. These children's lives are hamstrung by the ongoing difficulties around decision-making and Rebecca has consistently acted with good judgment and in their best interests.
The parenting plan modification trial lasted nearly three weeks. A number of witnesses testified at trial, including Brown, Garth, Ed Garth, GAL Paula Pridgeon, and Dr. Hedrick. The testimony of the witnesses is set forth in In re Marriage of Garth & Brown, 142 Wn.App. 1007, 2007 WL 4296603, and will not be repeated here. Brown did not subpoena Murdoch or other Chrysalis School staff to testify.
At the conclusion of the trial, the court rejected Brown's testimony as not credible. The court found that Brown engaged in "a pattern of physical and emotional abuse of the children." The court's findings are set forth in the "Order Re: Modification/Adjustment of Custody/Decree/Parenting Plan/Residential Schedule." In the order, the court cites a number of examples in support of the finding of physical abuse of the children, including the following:
There is the incident pertaining to [A.B.] in the bathroom where she received a number of scratches on her arm.
There is the incident, for example, of throwing [C.B.] to the ground while trying to take away the tape recorder.
There is the incident of grabbing [C.B.]'s arm and twisting it while visiting his paternal grandparent.
There is the incident in the car where Mr. Brown hit [C.B.] while Mr. Brown was driving.
Then there is the incident in the Rainforest Restaurant. There was screaming and Mr. Brown hit [C.B.] in the face. There was a call to 9-1-1 from a neutral civilian witness. His own witness, Ms. Boileau supports this finding as well in that she testified that Mr. Brown told her that he, indeed, hit [C.B.] in the face.
The court will also note the time where the mother and [C.B.] went to a fish store and returned home; while in Ms. Garth's garage Mr. Brown was yelling, grabbed [C.B.] to remove him from the car. This incident is a representation of Mr. Brown demonstrating unreasonable anger. Mr. Brown's need to have [C.B.] in his possession immediately was unreasonable and unacceptable. It was not reasonable given the circumstances. The Court further finds that the impact from this incident on [C.B.] was harmful.
The court also cites to a number of examples in support of the finding that Brown engaged in a pattern of emotional abuse of the children, including:
The Court finds that there has been a pattern of setting the kids up, creating false expectations only to withhold permission at the very last minute causing sadness, frustration, embarrassment and uncertainty surrounding decisions that were very important to both [A.B.] as well as [C.B]. As a result, both of these kids were -- and continue to mistrust those closest to them as well as their surroundings.
. . . .
This Court finds that Mr. Brown's behavior is manipulative and angry, he is moody and the kids never know whether Mr. Brown may go off; and when he does, they don't know why. He can be threatening and he minimizes his responsibility for how the children will see him. The Court finds that the father's involvement or conduct may have an adverse effect on the children's best interests.
. . . Mr. Brown's unpredictable behavior has interfered with [C.B.] and [A.B.]'s ability to trust others. Mr. Brown's behavior is oftentimes disproportionate to any given situation. Both [A.B] and [C.B.]'s development has been impacted by their father's need to control and to create conflict; this can be seen in their academic performance, their emotional development, as well as their relationship with others, it has also interfered with their engagement of other activities or the lack thereof.
In addition, the court found that Brown engaged in a pattern of abusive use of litigation and conflict that was detrimental to the children.
[T]he Court finds that the ongoing litigation over the years, mainly brought by Mr. Brown, has impacted the chance of having a stable home life, knowing what to expect from day to day. . . .
. . . .
Mr. Brown's relationship with the children and Ms. Garth has negatively impacted the children and are fraught with severe conflict. This Court only has to look to Exhibit 20; to the number of orders reflected in the court file. There are over 50 motions and over 20 different judges and/or court commissioners that have been involved in this case. There are 17 court files in this case over the years.
This court recognizes that a number of these motions have occurred following filing of the modification petition, but such motions are a reflection of an ongoing pattern of abusive use of conflict that was established years ago. This Court finds that Mr. Brown is responsible for the ongoing conflict within the court system. This ongoing activity has certainly interfered with his parenting functions.
There is a pattern that comes across. Mr. Brown is deceitful and manipulative. He deliberately misleads the kids where he allows the children to believe one thing, creating expectations, and then changing his position at the last minute, resulting in confusion and great disappointment and oftentimes causing embarrassment. This pattern of behavior precludes stability, consistency and healthy nurturing for the children; it creates confusion and is disastrous for these kids.
Based on the findings set forth in the order, the court concluded there was a substantial impairment of the emotional ties between Brown and his children.
The record is very clear. As a result of years of conflict, uncontrolled anger, manipulation, and extreme litigation, [C.B.] and [A.B.] have completely shut down as it relates to their father; at this time they do not want to see [him] or have visitation. This is a direct result of ongoing and almost daily emotional abuse brought on by the father. This is not the result of alienation caused by the mother. The Court further finds that the father has engaged in the abusive use of conflict which created the danger of serious damage to these kids' psychological development.
The court also concluded that Brown's interactions with therapists and school professionals were harmful to the children.
Mr. Brown's inability to work with others has been harmful to the children; this would include his inability to work with school professionals and therapists as well. Several examples -- and I will simply give the names -- would include Meredith Sergeant, Lorraine Manderschied, Robert Whitmore [sic] with the PACE program; Paige Taylor who is [C.B.]'s counselor at Leota, and then Shannon Murdock [sic] and Ms. Metcalf as well; and those are just a few.
The court limited Brown's time with the children to one-and-a-half hours on the third Saturday of each month at a local restaurant, and entered a restraining order. The court gave Garth sole decision-making authority, and ordered no dispute resolution.
Decision-making. Mother will have sole decision-making. The Court finds that Mr. Brown is responsible for the majority of conflict that has surrounded every decision that has been made; . . . and it includes decisions about [the children's] education, as seen in the Eastside incident. The Court finds that Mr. Brown is unable to participate without engaging in conflict. The Court finds that this ruling is in the best interests of the children. As to dispute resolution. The Court finds that the past use of dispute resolution has not limited conflict but rather has encouraged conflict. Mr. Brown has submitted over 20 issues to be dealt with at one time. Mr. Brown has mediated issues that he has agreed to as a result of other court proceedings. Dispute resolution has only served as one more means for Mr. Brown and his need to control others.
In the final parenting plan order, the court states that the limitations on Brown's contact with the children is justified under former RCW 26.09.191(1) and (2) (1993) based on "A pattern of Physical and Emotional abuse of a child." The court also states that former RCW 26.09.191(3) gives the court the discretion to preclude or limit residential time and decision-making because Brown's "involvement or conduct may have additional adverse effects on the child(ren)'s best interests." The order states, in pertinent part:
A long-term emotional or physical impairment which interferes with the performance of parenting functions as defined in RCW 26.09.004.
The absence or substantial impairment of emotional ties between the parent and child.
The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development and interferes with the performance of parenting functions.
Brown appealed the final parenting plan order. Because Brown did not challenge any of the trial court's findings on appeal, those findings were treated as verities on appeal. Garth & Brown, 2007 WL 4296603, at *1. In an unpublished opinion, we affirmed the decision of the trial court and the final parenting plan order. On February 27, 2009, Brown filed a lawsuit against Chrysalis School for defamation, intentional and negligent infliction of emotional distress, and tortious interference. Brown claimed that he recently discovered "the statements that Ms. Murdoch attributed" to A.B. were false, and alleged the false statements resulted in "damages to his reputation [and] caused Plaintiff to lose custody and decision-making authority related to his daughter and created a damaged relationship between Plaintiff and his daughter." Chrysalis School filed an answer admitting that Murdoch, Metcalf, and Holder participated in an interview with the court-appointed parenting evaluator and asserted that Brown failed to set forth a claim upon which relief may be granted.
Chrysalis School filed a motion for summary judgment dismissal of the lawsuit on the grounds that Murdoch and the school were immune from liability for the statements made by Murdoch to the court-appointed parenting evaluator in the parenting plan modification proceedings. The trial court denied the motion.
Following discovery, Chrysalis School filed a second motion for summary judgment dismissal on the grounds that Brown could not establish causation. In opposition, Brown argued that the statements made by Murdoch were significant to the recommendations made by Dr. Hedrick and the decision of the trial court. In support, Brown submitted a declaration from himself and from A.B. A.B. said that she never told Murdoch that she "did not want to be present when my parents met at Chrysalis to discuss my college plans, " and never told Murdoch she did not want to see or have contact with her father or expressed "any displeasure" with the book her father left.
Chrysalis also argued that Brown could not show the statements were about him, rather than about his daughter, and the statements were not actionable as a matter of law.
The court granted the motion for summary judgment "for lack of evidence of causation or other essential elements of plaintiff's causes of action, " and dismissed the lawsuit against Chrysalis School.
ANALYSIS
Brown contends the court erred in dismissing his lawsuit against Chrysalis School on summary judgment. Chrysalis School contends the court erred in denying its motion for summary judgment dismissal based on witness immunity.
We review summary judgment de novo. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. CR 56(c).
A defendant can move for summary judgment by showing that there is an absence of evidence to support the plaintiff's case. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the defendant shows an absence of evidence to establish the plaintiff's case, the burden then shifts to the plaintiff to set forth specific facts showing a genuine issue of material fact for trial. Young, 112 Wn.2d at 225.
While we construe all evidence and reasonable inferences in the light most favorable to the nonmoving party, if the plaintiff " 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ' " summary judgment is proper. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002); Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Defamation
Brown claims that the statements made by Murdoch and the staff at Chrysalis School were defamatory and a substantial factor in the trial court's decision to modify the parenting plan.
For purposes of avoiding summary judgment dismissal of a defamation claim, the plaintiff must allege facts that would raise a genuine issue of material fact for the jury as to each element: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) that the communication proximately caused damages. Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981). A plaintiff must establish each element with convincing clarity.
A defamation claim must be based on a statement that is provably false. Schmalenberg v. Tacoma News, Inc., 87 Wn.App. 579, 590, 943 P.2d 350 (1997). We assume the statements were false for the purposes of this analysis.
[T]he function of the trial court in ruling on a defense motion for summary judgment in a defamation action is to determine if the plaintiff's proffered evidence is of a sufficient quantum to establish a prima facie case with convincing clarity. Unless the plaintiff has done so, the motion must be granted.Mark, 96 Wn.2d at 486 (quoting Sims v. KIRO, Inc., 20 Wn.App. 229, 237, 580 P.2d 642 (1978)).
Proximate cause has two elements: cause in fact and legal causation. Hartley, 103 Wn.2d at 777. Cause in fact refers to the "but for" consequences of an act and is a cause which in a direct sequence, unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened. Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001). While the question of cause in fact is generally left to the jury, when reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law. Kim, 143 Wn.2d at 203.
(Internal quotation marks omitted) (brackets in original).
Brown concedes that he cannot show that "but for" the statements made by Murdoch and the other Chrysalis School staff members to Dr. Hedrick, the trial court would have ruled differently in the parenting plan modification proceeding. We agree that Brown cannot establish that the court would have reached a different conclusion in the parenting modification proceeding but for the statements Murdoch and the other Chrysalis School staff members made to Dr. Hedrick as part of the court-ordered evaluation. See also Childs v. Allen, 125 Wn.App. 50, 56, 105 P.3d 411 (2004) (no evidence that but for drug and alcohol evaluation, court would have reached different decision in dependency action).
"It is flatly impossible to say what would have happened 'but for' defendant's false statements."
The unchallenged findings of the trial court establish that Brown engaged in a pattern of physical and emotional abuse of the children, as well as an abusive use of litigation. The statements of the Chrysalis School staff that were referred to in the report were not mentioned during trial or in the findings that support the decision to modify the parenting plan. At trial, Brown admitted that "the relationship is so damaged at this point I feel the kids should see me when they want to, " and "these two children have lost a relationship with their dad, and it may never—it may never come back." Brown, 2007 WL 4296603, at *3.
(Internal quotation marks omitted.)
But for the first time on appeal, Brown argues that we should apply a "substantial factor" test to determine whether evidence in the record establishes causation. We do not consider an issue not argued to the trial court for the first time on appeal. RAP 9.12; Sourakli v. Kyriakos, Inc., 144 Wn.App. 501, 509, 182 P.3d 985 (2008). Under RAP 9.12, we will consider "only evidence and issues called to the attention of the trial court" in an appeal of an order on summary judgment. In any event, the substantial factor causation test applies only where there is more than one cause and an expert witness testifies that it is not possible to determine which factor is the cause. Mavroudis v. Pittsburg-Corning Corp., 86 Wn.App. 22, 32, 935 P.2d 684 (1997). Here, the unchallenged record establishes Brown's pattern of physical and emotional abuse, as well as an abusive use of conflict, was the basis for the trial court's decision.
Other Claims
Brown also argues that the court erred in dismissing his claims for intentional and negligent infliction of emotional distress, and tortious interference with a parent child relationship.
To prevail on a claim of intentional infliction of emotional distress, a plaintiff must prove (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff. Robel v. Roundup Corp., 148 Wn.2d 35, 51, 59 P.3d 611 (2002). To establish extreme and outrageous conduct, the conduct must go " 'beyond all possible bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a civilized community.' " Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). In ruling on a motion for summary judgment, the trial court must make a threshold determination on whether reasonable minds could differ on whether the conduct was sufficiently extreme and outrageous to result in liability. Robel, 148 Wn.2d at 51. Here, the trial court did not err in concluding that, as a matter of law, none of the statements Murdoch or other Chrysalis School staff members made to Dr. Hedrick constitute outrageous conduct.
(Italics omitted.)
Likewise, Brown cannot establish negligent infliction of emotional distress or tortious interference with a parent-child relationship. Negligent infliction of emotional distress is a limited, judicially created cause of action that allows a family member to recover for "foreseeable" intangible injuries caused by viewing a physically injured loved one shortly after a traumatic accident. Colbert v. Moomba Sports, Inc., 163 Wn.2d 43, 49, 176 P.3d 497 (2008).
The elements of tortious interference with a parent child relationship are (1) the existence of a family relationship, (2) a wrongful interference with the relationship by a third person, (3) an intention on the part of the third person that such wrongful interference results in a loss of affection or family association, (4) a causal connection between the third parties' conduct and the loss of affection, and (5) that such conduct resulted in damages. Strode v. Gleason, 9 Wn.App. 13, 17-18, 510 P.2d 250 (1973). There is no evidence that the statements made by Murdoch caused the breakdown in Brown's relationship with A.B. The record shows that A.B. was estranged from her father long before the statements were made.
Cross Appeal
Chrysalis School cross appeals the decision denying summary judgment on witness immunity. Chrysalis School argues that as a matter of law, the statements made by Murdoch and the other school staff to Dr. Hedrick are protected by the doctrine of witness immunity barring civil liability.
Witness immunity from civil liability applies to statements made in the course of judicial proceedings. Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 136, 776 P.2d 666 (1989). "The purpose of the rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. . . . The scope of witness immunity is broad." Bruce, 113 Wn.2d at 126. Without immunity, witnesses may be reluctant to come forward to testify or might distort testimony due to fear of subsequent liability. Deatherage v. Exam'ing Bd. of Psychology, 134 Wn.2d 131, 136-37, 948 P.2d 828 (1997).
In Deatherage, our supreme court cites with approval the description of the witness immunity doctrine that is set forth in the Restatement (Second) of Torts section 588 (1977).
A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.Deatherage, 134 Wn.2d at 135 (quoting Restatement (Second) of Torts § 588).
Case law establishes that guardians, therapists, and attorneys who submit reports to family court are absolutely immune. Bruce, 113 Wn.2d at 127. Further, statements do not need to be made under oath or in a courtroom to be protected by absolute immunity. " 'The privilege or immunity is not limited to what a person may say under oath while on the witness stand. It extends to statements or communications in connection with a judicial proceeding.' " Bruce, 113 Wn.2d at 136 (quoting Middlesex Concrete Prods. & Excavating Corp. v. Carteret Indus. Ass'n, 68 N.J.Super. 85, 92 (1961). Witness reliability is ensured by his or her oath, the hazard of cross-examination, and the threat of prosecution for perjury. Bruce, 113 Wn.2d at 126. The court reasoned that the safeguards of the judicial proceeding were sufficient, even when applied to preliminary reports. Bruce, 113 Wn.2d at 136. See also Hill v. J.C. Penney, Inc., 70 Wn.App. 225, 238-39, 852 P.2d 1111 (1993) (statements that were relevant to the proceedings of an administrative agency acting in a quasi-judicial capacity were protected by absolute immunity even though the statements were not made in a courtroom under oath).
Here, the statements of the Chrysalis School staff were made to the court-appointed parenting evaluator under an order entered in a parenting plan modification proceeding. The court order appointing Dr. Hedrick expressly authorized her to obtain information from Chrysalis School regarding the pending parenting modification action.
Former RCW 26.09.220 governs appointment of a parenting evaluator and the evaluator's report. Former RCW 26.09.220(1) and (2) state, in pertinent part:
(1) The court may order an investigation and report concerning parenting arrangements for the child, or may appoint a guardian ad litem pursuant to RCW 26.12.175, or both. The investigation and report may be made by the guardian ad litem, the staff of the juvenile court, or other professional social service organization experienced in counseling children and families.
(2) In preparing the report concerning a child, the investigator may consult any person who may have information about the child and the potential parenting or custodian arrangements.
The court expressly authorized Dr. Hedrick to access school records and obtain information from school personnel for the parenting plan evaluation. Under Former RCW 26.09.220(3), any person, including the Chrysalis School staff, were subject to cross-examination. The statute required Dr. Hedrick to provide Brown with the report, the information forming the basis of the report, and "the names and addresses of all persons whom the investigator has consulted." Former RCW 26.09.220(3). Former RCW 26.09.220(3) states:
The investigator shall mail the investigator's report to counsel and to any party not represented by counsel at least ten days prior to the hearing unless a shorter time is ordered by the court for good cause shown. The investigator shall make available to counsel and to any party not represented by counsel the investigator's file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2) of this section, and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination. A party may not waive the right of cross-examination prior to the hearing.
(Emphasis added.)
Because the statements Murdoch and the Chrysalis School staff made to Dr. Hedrick were in connection with the parenting plan modification proceeding and the safeguards were sufficient, we hold that they were entitled to absolute witness immunity from civil liability.
We affirm.