Opinion
No. 22877-1-III
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 03-2-00898-0. Judgment or order under review. Date filed: 03/18/2004. Judge signing: Hon. Craig J. Matheson.
Counsel for Appellant(s), J. J. Sandlin, Sandlin Law Firm, PO Box 1005, Zillah, WA, 98953-1005.
Counsel for Respondent(s), Brian a Christensen, Jerry Moberg Associates, 451 Diamond Dr, Ephrata, WA, 98823-2619.
On March 28, 2004, the trial court dismissed a lawsuit filed by Mark Davis and his wife, Brenda Davis, against the City of Prosser and its detective, Edward Blackburn ('the City'), that alleged the City was negligent in arresting Mr. Davis. Police arrested him after his nine-year-old niece claimed that he exposed himself to her. Contending the City owed a statutory and special duty to the Davises for which it is liable, they appeal. We affirm.
On April 30, 2003, Mr. Davis and his wife sued the City on claims of negligent supervision and negligent investigation of the girl's allegation. After learning about 'bad touching' at school one day in January 2000, the girl told her mother that Mr. Davis exposed himself to her while she was staying at his house overnight in the spring of 1999. Mr. Davis appeared in district court on a charge of communicating with a minor for immoral purposes. The prosecutor dismissed the charge eventually, after the Davises sued. In their lawsuit, the Davises contended the City negligently investigated the girl's allegation. They also contended the City negligently supervised and trained Detective Blackburn as to how to handle child sex abuse cases. According to the lawsuit, sexual abuse is rife in the girl's family, including sex-offense convictions of the girl's father and brother. Mr. Davis had no criminal history.
Before filing their lawsuit, the Davises filed an administrative claim against the City for $300,000 in emotional and economic damages. The City did not respond. The Davises claimed more than $100,000 in economic losses. They claimed their personal property was repossessed; rumors had spread about the allegation in their small town; and they were humiliated by the arrest. Mr. Davis earned money as a long-haul truck driver at the time.
On March 18, 2004, the trial court dismissed the Davises' lawsuit on the City's motion for summary judgment. The trial court found the City neither owed a statutory nor a special duty to the Davises that would make it liable.
Appellate courts review summary judgment orders de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); In re Marriage of Ferree, 71 Wn. App. 35, 43-44, 856 P.2d 706 (1993). The appellate courts consider all the facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Id. at 44. After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the material issues of fact. Id. The trial court should grant a motion for summary judgment only if, from all the evidence, reasonable persons could reach but one conclusion. Id. In all negligence actions, the plaintiff must prove the defendant owed the plaintiff a duty of care. Rodriguez v. Perez, 99 Wn. App. 439, 443, 994 P.2d 874 (2000) review denied, 141 Wn.2d 1020 (2000). In general, a claim for negligent investigation does not exist under common law because investigators owe a duty to the public, not a particular class of people. Id. (citing Chambers-Castanes v. King County, 100 Wn.2d 275, 284, 669 P.2d 451 (1983)). A statutory exception is that police and state social workers owe children's parents, custodians, and guardians a duty to carefully investigate children's sex abuse claims under RCW 26.44.010. Rodriguez, 99 Wn. App. at 443-44. The Davises contend on appeal that they are members of this special class.
The government owes all family members, such as grandparents, a duty to reasonably investigate children's sex abuse claims under the statute. Tyner v. Dep't of Soc. Health Servs., 141 Wn.2d 68, 79, 1 P.3d 1148 (2000) (citing Babcock v. State, 116 Wn.2d 596, 604-22, 809 P.2d 143 (1991)). The statute is aimed at preventing poorly investigated sexual abuse claims from prompting the state to remove children from their families unnecessarily. RCW 26.44.100(1). The legislature wants to protect children and protect the adults who are close to those children. Tyner, 141 Wn.2d at 79. The 'bond between a child and his or her parent . . . is . . . paramount.' RCW 26.44.010. The focus of the statute is on faulty investigations that lead to harmful placement decisions, such as removing children from a non-abusive home. M.W. v. Dep't of Soc. Health Servs., 149 Wn.2d 589, 591, 70 P.3d 954 (2003).
The issue is whether Mr. Davis is a parent, guardian, or custodian within the meaning of the statute. He saw the girl two to three times a year. The Davises contend they were her guardians on the night she stayed at their house. But they do not claim they were her permanent legal guardians. There is also no indication Mr. Davis had a close bond to the girl. In these circumstances, Mr. Davis does not fit within the special class of adults the legislature intended to protect. Tyner, 141 Wn.2d at 79.
The Davises next contend that Mr. Davis relied on the City to conduct a fair and balanced investigation of the girl's allegation. A citizen, not part of a protected class, can sue a public official for negligence if the two had a special relationship setting the citizen's relationship with the public official apart from that with the general public. Pettis v. State, 98 Wn. App. 553, 562-63, 990 P.2d 453 (1999). The citizen must show the public official (1) had 'privity' or direct contact with the citizen setting him apart from the general public and (2) made express assurances to the citizen. Furthermore, the citizen must have justifiably relied on those assurances. Id. at 563.
The Davises do not argue they had privity with Detective Blackburn. As for the requirement of an express assurance, a government duty cannot arise from implied assurances. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 789, 30 P.3d 1261 (2001). For example, express assurance is given when a firefighter expressly tells a couple that her crew would take care of the plaintiff's property. Id. at 785-86. The record here shows that Detective Blackburn interviewed the Davises, who told him about other suspects. The record does not indicate that the detective expressly promised anything in return, such as a promise that he would investigate those suggested suspects thoroughly on their behalf.
The Davises contend they reasonably relied on the City's statutory duty to properly investigate the girl's claim. The police do not generally owe a duty to specific people, but rather to the general public. Rodriguez, 99 Wn. App. at 443. Nevertheless, the Davises point to two sections of a statute that they contend the City violated. Those sections, however, do not impose a duty on law enforcement. The duty is imposed on the 'department.' See, e.g., RCW 26.44.035(3); RCW 26.44.100(2). The 'department' means the Department of Social and Health Services. RCW 26.44.020(5). The 'department' and law enforcement are not interchangeable terms as is demonstrated by the context elsewhere in the statute. RCW 26.44.030(4), (5), (10). The Davises also contend the City failed to adopt local protocols on how law enforcement should handle child sex abuse cases. But the City began its investigation of the girl's allegation about five months before the legislature required the City to adopt a protocol. RCW 26.44.180(3). Also, the City circulated a memo telling officers to refer child victims of alleged sexual abuse to trained child interviewers.
Detective Blackburn complied with that memo.
The Davises next contend a malicious prosecution claim exists. They, however, did not plead malicious prosecution in their original complaint before the trial court. Appellate courts generally limit their review to claims the parties raised before the trial court. Nguyen v. Sacred Heart Med. Ctr., 97 Wn. App. 728, 733-34, 987 P.2d 634 (1999). Malicious prosecution was discussed briefly during oral argument before the trial court, but it was not a theory of relief. Here on appeal, the issue is not adequately briefed by either party. Indeed, the Davises merely make mention of malicious prosecution and cite no authority to support their position it was a viable claim. Accordingly, we decline to consider this issue.
The Davises also briefly argue that RCW 26.44.010 violates their equal protection rights. They raise this issue for the first time on appeal, without citation or specificity. A party may raise an error affecting his constitutional rights for the first time on appeal. RAP 2.5(a).
Concerning federal and state constitutional guarantees of equal protection, people similarly situated must be similarly treated for any legitimate purpose under the law. Merseal v. Dep't of Licensing, 99 Wn. App. 414, 420, 994 P.2d 262, review denied, 141 Wn.2d 1021 (2000). Courts apply minimum scrutiny to the constitutional claims of relatives' rights regarding children, as opposed to parents' rights, because relatives are not a 'suspect' or 'quasi-suspect' class. Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986). Under minimum scrutiny, the question is whether the state reasonably could have concluded that a classification would promote a legitimate state purpose. Lipscomb ex rel. DeFehr v. Simmons, 962 F.2d 1374, 1380 (9th Cir. 1992).
Here, the legislature's stated purpose of protecting children is legitimate. RCW 26.44.100(1). The legislature could have reasonably concluded that classifying parents, guardians, and custodians as a protected class against faulty sex abuse investigations would promote the legitimate purpose of protecting children. It could also have reasonably determined that extended family members are less likely than parents, guardians, and custodians to have close bonds with children.
A legislative determination cannot be overcome unless it is manifestly arbitrary, unreasonable, inequitable and unjust. Duffy v. King Chiropractic Clinic, 17 Wn. App. 693, 696, 565 P.2d 435 (1977), review denied, 89 Wn.2d 1021 (1978). There is no such showing here. The statute does not violate the Davises' equal protection rights.
Even when considering all the facts and inferences in a light most favorable to the Davises, we determine the City owed no statutory or special duty to the Davises that would make it liable for negligent investigation and supervision. RCW 26.44.010 also does not violate the Davises' equal protection rights.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and BROWN, J., JJ., Concur.