Opinion
No. 27597-3-III.
September 10, 2009.
Appeal from the Superior Court, Chelan County, No. 06-2-00416-1, John E. Bridges, J., entered October 20, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Brown and Korsmo, JJ.
Unpublished Opinion
Danny Robins (Danny) appeals an order granting summary judgment dismissal of his negligence claim against Home Care of Washington, Inc. (Home Care). He contends the trial court erred in ruling that Home Care did not owe a duty of care to his father, Kenneth Robins (Mr. Robins). We affirm.
FACTS
In August 2005, Danny entered into a contract with Home Care to assist his 85-year-old father with light housekeeping and meal preparation. The contract specifically provided that Home Care would provide these services Monday through Friday from 11:30 a.m. to 12:30 p.m. In the "Plan of Care," Danny indicated that his father's "Wandering" was an area of concern. Clerk's Papers (CP) at 85.
On October 24, 2005, Home Care did not arrive at Mr. Robins' home at the scheduled time. Sometime during that day, Danny got a call from a relative, who had seen a bleeding Mr. Robins crawling on the ground outside his house. At some point, Mr. Robins had fallen and broken his jaw. After the incident, Adult Protective Services concluded that Mr. Robins needed 24-hour care.
Danny sued Home Care for negligence, alleging that it had breached its duty to provide services for Mr. Robins at the scheduled time and that as a proximate result of this negligence, Mr. Robins sustained damages, including medical expenses and attorney fees.
Home Care moved for summary judgment, arguing that its relationship with Mr. Robins was purely contractual and its services were limited to showing up for one hour to prepare a late morning meal, do light housekeeping, and get Mr. Robins dressed. It argued that the contract did not oblige Home Care to ensure Mr. Robins' safety or prevent him from leaving his home. Therefore, its breach of its contractual obligation to provide meal service on the day Mr. Robins was injured did not give rise to a negligence claim.
Danny opposed the motion for summary judgment, arguing the "[e]xistence of a contract [did] not remove Defendant's duty of care." CP at 108. In his deposition, Danny reported that prior to the incident at issue, his father had wandered and fallen at least two times. He stated that he informed Home Care of these falls but never instructed Home Care to keep Mr. Robins in the house.
Shelly Seely, a Home Care supervisor since 2004, stated in her deposition that during a walk-through of Mr. Robins' home she saw notes on his chair reminding him not to go outside. She observed that Mr. Robins' children took no other measures to keep him in the home. During her deposition she was questioned as follows:
Q. Was Home Care hired to make sure Mr. Robins didn't leave the home?
A. No. We were hired to provide lunch and do a little bit of laundry and to let — remind him to take his medicines, his vitamins and stuff.
Q. Was Home Care hired to monitor Mr. Robins in any other way?
A. No.
Q. Did any of the Robins children ever ask Home Care to make sure Mr. Robins never left the house?
A. No, they did not.
CP at 78-79.
Teresa Shook Sanford, a nurse assistant for Home Care who occasionally cared for Mr. Robins, stated that "routine is important" for people with impaired memory and that Mr. Robins looked forward to the visits and meals. CP at 116. When asked to recollect how Mr. Robins was injured on October 24, she speculated, "there wasn't anybody there to make his lunch so he went — he went outside and I believe he tripped on the grass or off the step, and Danny found him in the yard." CP at 117.
Sarah Covington, a registered nurse, reviewed Ms. Shook-Sanford's and Ms. Seely's depositions and concluded that Home Care had fallen below the standard of care for a home care service by failing to schedule a caregiver at the designated agreed time and failing to implement procedures to ensure that a caregiver did not fail to arrive at a client's home without notifying the client or Home Care. In her declaration, she also opined that, "As a sufferer of dementia, it was foreseeable . . . that [Mr. Robins] left his home when Home Care, Inc., did not arrive to care for him." CP at 121.
The trial court granted Home Care's motion for summary judgment and dismissed Danny's claims, concluding that "the duties contracted for were not the cause of [Mr. Robins'] injuries." CP at 143. Danny appeals.
ANALYSIS
We review summary judgments de novo, performing the same inquiry as the trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). A grant of summary judgment may be affirmed only if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437; Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
"In a negligence action the threshold question is whether the defendant owes a duty of care to the injured plaintiff." Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Whether a defendant owes a duty of care is a question of law we review de novo. Hoffstatter v. City of Seattle, 105 Wn. App. 596, 601, 20 P.3d 1003 (2001). When no duty of care exists, a defendant cannot be subject to liability for negligent conduct. Lauritzen v. Lauritzen, 74 Wn. App. 432, 438, 874 P.2d 861 (1994).
Further, in general, a breach of contract does not give rise to an action in tort. Am. Nursery Products, Inc. v. Indian Wells Orchards, 115 Wn.2d 217, 230, 797 P.2d 477 (1990). However, the negligent performance of a contract may create a tort claim if a duty exists independently of the performance of the contract. Id.
Danny argues that Home Care had a duty of care to his father based on its relationship with Mr. Robins and its knowledge that Mr. Robins had a propensity to wander. Relying in part on Hunt v. King County, 4 Wn. App. 14, 481 P.2d 593 (1971) and Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985), he contends that the existence of the contract does not preclude tort liability because it was reasonably foreseeable that Mr. Robins would wander if Home Care failed to show at its scheduled time.
Home Care responds that a duty in negligence is not created simply because a contract for some service is breached. It points out that Danny contracted for very limited services with Home Care, which did not include monitoring Mr. Robins or preventing him from leaving his home. Home Care argues, "even assuming Home Care breached its contractual obligation by not appearing to fix the meal and do housekeeping at the scheduled time, this failure of a contractual obligation does not create any independent duty in tort upon which plaintiffs can support a claim for negligence." Br. of Resp't at 8.
Home Care is correct. Viewing the facts in a light most favorable to Danny, we conclude that Home Care did not owe a duty of care to Mr. Robins. Home Care had a contract to spend one hour a day Monday through Friday in Mr. Robins' home. It contracted to do light housekeeping, make a meal, and ensure that Mr. Robins took his medications. The contract did not contain any obligation to monitor Mr. Robins or restrict his mobility. Nothing in the contract indicated that Mr. Robins was not free to leave his home at any time. The relationship between Home Care and Mr. Robins was purely contractual and does not support a tort action.
The cases cited by Danny are distinguishable and do not support his position. He cites Hartley for the proposition that determining the existence of a duty requires courts to consider "'logic, common sense, justice, policy, and precedent.'" Br. of Appellant at 5 (quoting Hartley, 103 Wn.2d at 779). However, Hartley was not addressing a situation in which the parties' relationship was based on specific contractual terms. In that case, the issue was whether the state had a sufficient "special relationship" with a member of the public to protect him from harm based on its failure to revoke a drunk driver's license. Id. at 782.
Ultimately, the court stated that the question was whether "'the defendant [was] under a duty to protect the plaintiff against the event which did in fact occur.'" Id. at 779 (quoting W. Prosser, Torts 237, 244-45 (4th ed. 1971)). The court concluded that the failure of the state to revoke a drunk driver's license was too remote from the harm to impose liability. Id. at 784. Similarly here, the connection between Home Care's failure to show up at the scheduled time and Mr. Robins' injury was too remote and insubstantial to impose liability.
Next, Hunt does not support Danny's position. In that case, a patient in a secured ward of a hospital jumped from a window. The issue was the scope of the hospital's duty to the patient — not, whether the hospital owed a duty to the patient. The court concluded that the scope of the duty included protecting the patient from the "reasonably foreseeable risk of self-inflicted harm through escape." Hunt, 4 Wn. App. at 20.
Hunt is readily distinguishable. In that case, a duty of care existed because the hospital had assumed 24-hour custody and supervision of the patient. In contrast here, Home Care had a limited contractual obligation to perform various light duties for one hour a day. This limited contract did not create an obligation to prevent Mr. Robins from leaving his home or to monitor him 24 hours a day. Mr. Robins was free to leave his home at any time and had in fact left his home at least two times before any contract with Home Care. Without a duty of care, there is no liability. Accordingly, the trial court's grant of summary judgment was appropriate.
Affirmed.
A majority of the panel has determined that 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.
Brown, J. and Korsmo, J., Concur.